## Response to Comments on Implementation of the 2008

National Ambient Air Quality Standards for Ozone:

Nonattainment Area Classifications Approach, Attainment Deadlines, and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes.

Associated Docket Number: Docket Number EPA-HQ-OAR-2010-0885



### April 201223 

## INTRODUCTION

On February 14, 2012, EPA issued a proposed rule regarding certain issues related to the implementation of the 2008 ozone Nationa l Ambient Air Quality Standards (NAAQS) promulgated by EPA on March 12, 2008. Specifically, the proposed rule (1) presents thresholds for classifying nonattainment areas for the 2008 ozone NAAQS, (2) proposes that the approved prior voluntary reclassi fication requests for the 1997 ozone NAAQS would also apply for the more stringent 2008 ozone NAAQS unle ss a state explicitly requests otherwise, (3) presents the timing of attainment deadlines for each area cla ssified under Clean Air Act (CAA), Title 1, Part D, subpart 2, and (4) proposes revocation of the 1997 ozone NAAQS one year after the effective date of designations for the 2008 ozone NAAQS for transportation conformity purposes only.

1. Establishing thresholds for classifying nonattainment areas.

The method by which EPA proposed to determine th resholds for classifying nonattainment areas for the 2008 ozone NAAQS is the “percent-above-th e-standard” approach. For purposes of this proposed rulemaking, the “percent-above-the-s tandard approach” i nvolves setting the

classification threshold for each classification category at the same percentage above the 2008 ozone NAAQS as the percentage of the same cl assification category’s th reshold set by Congress in 1990 above the NAAQS in place at that time.

2. Voluntary reclassifications.

CAA §181(b)(3) allows states to voluntarily request that EPA r eclassify the area to a higher classification; EPA has no discre tion to deny such requests. There are seven areas for which states requested a voluntary reclassification with respect to the 1997 ozone NAAQS. EPA is further proposing that any appr oved prior voluntary re classification requests for the 1997 ozone NAAQS also apply for the more stringent 2008 oz one NAAQS, unless a state explicitly requests

otherwise.

3. Timing of attainment deadlines.

EPA is proposing two approaches regarding dead lines for attainment. For ozone nonattainment areas, the CAA specifies that the primary NAAQS must be met as expeditiously as practicable, but no later than the deadlines provided in the classification table in subpart 2, where such deadlines for attainment are specified in terms of a certain number of years from the date of

enactment of the 1990 Amendments to the CAA. Because these time periods are inappropriate for later promulgated standards, EPA has in the past interpreted this portion of the CAA to require timeframes with similar time lengths prov ided in subpart 2, but which run from the date that area designations and nonattain ment classifications become effective. The first approach EPA is proposing is to use the approach EPA used in the past. The second and preferred approach EPA is proposing is to use the approach that EPA has used in the past, but with the time lengths running from December 31 of th e year in which area designations and

nonattainment classificati ons become effective.4 4. Revocation of the 1997 NAAQS for tran sportation conformity purposes.

EPA proposed to revoke the 1997 ozone NAAQS one year after the effective date of designations for the 2008 ozone NAAQS for tran sportation conformity purposes only. This action is intended to bring certainty to th e transportation planning process in ozone nonattainment and maintenances areas and to ensure that backsliding does not occur for purposes of transportation conformity, as areas desi gnated as nonattainment for the 2008 ozone NAAQS would be required to use adequate or approved state implementation plan (SIP) motor vehicle emissions budgets for the 1997 ozone NAAQS, if the area has such SIP budgets for one of these ozone NAAQS, until SIP budgets are found ade quate or are approved for the 2008 ozone NAAQS.

5. Scope of comments requested

EPA invited public comments on the proposed ru le during the comment period, which lasted from February 14, 2012 through March 15, 2012. EPA requested comments only on the issues addressed by the proposed rule. EPA explained that this rule does not addr ess the following: (1) specific SIP requirements associated with different classification cat egories, (2) revocation of the 1997 ozone NAAQS for purposes other than tran sportation conformity, (3) anti-backsliding issues. EPA plans to address such issues in a separate rulemaking and does not intend to respond in the context of this rulemaking to comments pe rtaining to implementation issues that will be addressed by a future rulemaking.

6. Summary of commenters.

EPA received 41 public comments regarding the proposed rule. The comments can be obtained online from the Federal Docket Management System at http://www.regulations.gov . The docket number for this rulemaking is EPA-HQ-OAR- 2010-0885. In this document, commenters are identified by the last four di gits of their respective Document IDs. A listing of all persons submitting comments, their respective affiliations, and their respective Document IDs is presented in Table 1. Table 2 explains the acr onyms and frequently cited abbreviations used throughout this document.

Table 1. List of Commenters and Respect ive Affiliations and Document IDs.

ID Commenter/Affiliation

0018 Michael L. Krancer, Secretary, Pennsylvania Department of Environmental Protection (DEP)

0019 Michael G. Dowd, Virginia Department of Environmental Quality

0020 James A. Capp, Chief, Air Protection Branch, Environmental Protection Division, Georgia Department of Natural Resources

0021 Pamela F. Faggert, Vice President and CEO, Dominion Resources Services, Inc.

0022 G. Vinson Hellwig, Chief, Air Quality Division, Michigan Department of Environmental Quality

0023 Bart Sponseller, Bureau of Air Management Director, Wisconsin Department of Natural

Resources

0024 John A. Paul, Administrator, Regional Air Pollution Control Agency (RAPCA)

0025 John V. Corra, Director, Wyoming Department of Environmental Quality (WDEQ)

0026 Scott J. Nally, Director, Ohio Environmental Protection Agency5 ID Commenter/Affiliation

0027 Duplicate of 0026

0028 Jane Hayse, Chief, Transportation Planning Division, Atlanta Regional Commission (ARC)

0029 Russell A. Wozniak, Environmental Health & Sa fety (EH&S) Operations Regulatory Services, The Dow Chemical Company

0030 Michael Villegas, Air Pollution Control Officer, Ventura County Air Pollution Control District,

California

0031 James N. Goldstene, Executive Officer , California Air Resources Board (CARB)

0032 Anne R. Gobin, Chief, Bureau of Air Manage ment, Connecticut Department of Energy and

Environmental Protection

0033 Samir Shiek, Director of Strategies and Incentives, San Joaquin Valley Unified Air Pollution Control District, California

0034 Arthur N. Marin, Executive Director, Northeast States for Coordinated Air Use Management (NESCAUM)

0035 George S. (Tad) Aburn, Jr., Maryland, Co -Chair, and Lynne A. Liddington, Kentucky, Tennessee, Co-Chair, National Association of Clear Air Agencies (NACAA)

0036 Donald R. Schregardus, Deputy Assistant Secretar y of the Navy (Environment), Department of Defense (DoD)

0037 Doug Deason, Environmental Advisor, Downst ream and Chemical SH&E, Exxon Mobile Corporation (Exxon Mobil)

0038 J. Jared Snyder, Assistant Commissioner, Office of Air Resources, Climate Change and Energy, New York State Department of Environmental Conservation (DEC)

0039 Elizabeth Hendler, Project Coordinator, 8-Hour Ozone State Implementation Plan (SIP) Coalition, Texas

0040 John Fainter, Jr., President and Chief Executiv e Officer (CEO), Association of Electric Companies of Texas Inc. (AECT)

0041 Catharine Fitzsimmons, Chair, Central State Air Resource Agencies (CenSARA)

0042 Louis P. Pocalujka, Senior Environmental Pla nner, Policy & Strategies Section, Environmental Services Department, Consumers Energy, Michigan

0043 Chuck Hersey, Environmental Pr ogram Manager, Southeast Michigan Council of Governments (SEMCOG)

0044 F. Gao

0045 Stephen Minick, Vice President of Governmental Affairs, Texas Association of Business (TAB)

0046 Michael J. Nasi, Jackson Walker, LLP, Counsel fo r the Gulf Coast Lignite Coalition (GCLC), et

al.

0047 Mark R. Vickery, Executive Director, Texas Commission on Environmental Quality (TCEQ)

0048 Myra C. Reece, Bureau of Air Quality, South Caro lina Department of H ealth and Environmental Control (SCDHEC)

0049 George S. (Tad) Aburn, Jr., Director, Air a nd Radiation Management Administration, Maryland Department of the Environment (MDE)

0050 J. Wick Havens, Interim Executive Director, Ozone Transport Commission (OTC), a Multi-state Organization

0051 T. Peter Ruane, President and Chief Executive Officer (CEO), American Road & Transportation Builders Association (ARTBA)

0052 Sheila Holman, Director, Division of Air Quality, North Carolina Department of Environment and Natural Resources (NCDENR)

0053 Samuel Biscoe, Travis County Judge, Chai r, Central Texas Clean Air Coalition (CAC)

0054 David Baron, Attorneys, Earthjustice6 ID Commenter/Affiliation

0055 Norman W. Fichthorn, Hunton & Williams LLP, on behalf of Utility Air Regulatory Group (UARG)

0056 Lake Michigan Air Directors Consortium, Organization of Six Region 5 States

0057 John S. Lyons, Director, Division of Air Qua lity, Kentucky Department for Environmental

Protection

0058 Duplicate of 0023

0059 Duplicate of 0019

0060 Ali Mirzakhalili, Director, Division of Air Quality , Delaware Department of Natural Resources

0061 Jungus Jordan, Chair, Regional Transportation Council, Transportation Policy Body of North

Central Texas Council of Governments

Table 2. Explanation of Acronyms a nd Frequently Used Abbreviations Acronym Long Name

APA Administrative Procedure Act

ARB Air Resources Board BID Background Information Document

CAA Clean Air Act CAAAC Clean Air Act Advisory Committee subpart 1 CAA, title I, part D, subpart 1 subpart 2 CAA, title I, part D, subpart 2

CAIR Clean Air Interstate Rule

CARB California Air Resources Board CMAQ Congestion Mitigation and Air Quality

CO Carbon monoxide

CSAPR Cross State Air Pollution Rule DoD Department of Defense EAC Early Action Compact

EO Executive Order EPA Environmental Protection Agency FHWA Federal Highwa y Administration MATS Mercury and Air Toxics Standards MPO Metropolitan Pl anning Organization

MVE Motor vehicle emission NAAQS National Ambient Air Quality Standards

NO

x Nitrogen oxides

PATS Percent-Above-The-Standard PPM Parts per million RFP Reasonable further progress SIP State implementation plan TCMs Transportation control measure VOC Volatile organic compounds7 

# Table of Contents

I. Establishing Thresholds for Cl assifying Nonattainment Areas ............................................ 9

Support for the “percent-above-the-standard” approach.

....................................................... 9 Opposition to the “percent-above-the -standard” approach, as proposed.

............................... 9

EPA Consideration of other Approaches for Classifying Nonattainment Areas

...................... 21

Approach of Relying on CAA, Title, I, Part D, Subpart 1 in Some Cases.

.............................. 23 Application to areas with design values below 0.09 ppm.

.................................................... 23 Rural nonattainment areas impacted by upwind c ontributions should not be classified under subpart 2.

............................................................................................................................... 33 Opposition to relying on subpart 1 and comple tely ignoring subpart 2 classifications.

....... 33

Other subpart 2 Approaches for Classifying Areas.

................................................................. 34

II. Voluntary Reclassification ................................................................................................ .... 36

Support for EPA’s voluntary bump-up approach.

................................................................ 36 Opposition to EPA’s voluntary bump-up approach.

............................................................. 37 Recommendations to expand EPA’ s voluntary bump-up approach.

.................................... 38

III. Attainment Deadlines for Nonattainment Areas ............................................................... 39

Support for adopting Option 1 (attainment da te running from the effective date of designation) and Opposition to Option 2 (a ttainment date running from December 31)

..... 39 Support for Option 2 and Opposition to adopting Option 1

................................................. 44 Opposition to delaying the star t of the attainment clock.

..................................................... 47

Appropriateness of Deadlines due to Upwind Contributions

................................................... 48

IV. Revocation of 1997 NAAQS ................................................................................................. 49

Revocation of 1997 Ozone NAAQS for Pur poses of Transportation Conformity

................... 49 Support for revocation of 1997 NAAQS with respect to transpor tation conformity.

........... 49 Opposition to revocation of 1997 NAAQS with respect to transpor tation conformity.

....... 51 Effect of revocation of transportation conformity requirements on other programs.

........... 61 Implementation of transpor tation control measures.

............................................................ 63

Revocation of the 1997 Ozone NAAQS for General Conformity.

........................................... 64 Support for revocation of 1997 NAAQS with respect to General Conformity.

................... 64

Revocation of the 1997 Ozone NAAQS for Other Purposes.

................................................... 65 Support for revocation of 1997 NAAQS for other purposes.

............................................... 65

V. Transport Emissions ........................................................................................................ ...... 65

Effect of upwind emissions on downwind nonattainment areas.

.......................................... 65

The NAAQS Implementation Process and SIP Requirements

................................................. 688 Generally.

.............................................................................................................................. 68

Timeliness.

............................................................................................................................ 70

SIP Implementation Requirements for the 2008 Ozone NAAQS.

........................................... 72 Demonstrating Attainment.

................................................................................................... 72 Demonstrating reasonable further progress (RFP)

............................................................... 72

Miscellaneous Comments

......................................................................................................... 74 Executive Order (EO) Discussion.

........................................................................................ 74 Future Commitments and New Technologies

....................................................................... 74 Rewarding programs for accelerated attainment of the NAAQS.

........................................ 75 Additional funding for states.

............................................................................................... 76 The conformity process.

........................................................................................................ 779 I. Establishing Thresholds for Classifying Nonattainment Areas

Support for the “percent-above-the-standard” approach.

1. Comment –EPA should adopt the percent-above-the standard (PATS) approach for establishing thresholds for classifying nonattainment ar eas with respect to the 2008 ozone NAAQS.

Many commenters (0018, 0019, 0020, 0023, 0024, 0025, 0026, 0030, 0033, 0037, 0042, 0048, 0056, 0057) generally supported th e adoption of the percent- above-the-standard (PATS) approach for determining thresholds for classi fying nonattainment areas with respect to the 2008 ozone NAAQS. One commenter (0019) further stated that by allo wing as many areas as possible to be designated as Marginal nonattainment areas, EPA will alleviate resource-intensive SIP development processes for many states.

Several commenters (0018, 0024, 0037, 0057) further stat ed that the PATS approach appears to be consistent with the requirements of CAA, title I, part D, subpart 2 (subpart 2) for classifying nonattainment areas. One commenter (0037) further stated that the use of the PATS approach is within EPA’s legal discretion as determined by U.S. Court of Appeals for the District of

Columbia in South Coast Air Quality Management Dist rict vs. Environmental Protection Agency.

Several commenters (0030, 0056) stated that this approach is consistent with that used for the previous ozone standards and would provide ai r agencies and the regulated community with much needed programmatic continuity.

1. EPA Response.

EPA appreciates the support of the commenters.

Opposition to the “percent-above-the-standard” approach, as proposed.

2. Comment –The fact that the 2008 ozone NAAQS is more heavily influenced by background/transport ozone precursor s presents a flaw in applyi ng the PATS approach to the 2008 NAAQS implementation because such tr ansport ozone precursors will prevent a nonattainment area’s compliance with subpart 2 from resulting in at tainment with the 2008 NAAQS.

Several commenters (0044, 0049) claimed that the 8-hour ozone NAAQS is more heavily influenced by background/transpor t ozone precursors than the 1-hour ozone standard. They also claim this presents a flaw in applying th e PATS approach to the 2008 NAAQS implementation because transported ozone precursors will prev ent a nonattainment area from attaining the 2008 NAAQS based on its compliance with subpart 2.

One commenter (0044) specifically stated that the major flaw of EPA’s proposed classification method is to simply apply the previous above-the -standard percentages unde r the 1-hour standard to the current 8-hour standard, w ithout careful consideration of the fundamental differences of10 the two standards; i.e., while the former 1-hour standard reflected peak ozone values within a short time frame, the 2008 8-hour NAAQS represen ts average ozone values over a much longer time frame. The commenter (0044 ) reasoned that this resulted in the former 1-hour standard being more influenced by spikes in ozone concentrations while the 2008 NAAQS is more influenced by eight-hour averages. Consequent ly, the commenter (0044) reasoned that the 2008 NAAQS is more influenced by background transporte d ozone precursors, and stated that this has been supported by modeling studies performed pursua nt to the Clean Air Interstate Rule (CAIR) and the Cross-State Air Pollution Rule (CSAPR). The commenter (0044) reasoned that applying the PATS approach to the 2008 is flawed because such transport ozone precursors will prevent a

nonattainment area from attain ing the 2008 NAAQS based on its compliance with subpart 2.

Another commenter (0049) specifically noted th e differences between the 1-hour NAAQS and the 8-hour NAAQS: (1) the 1-hour ozone design valu es record spikes in ozone concentrations; the 8-hour ozone records rolling averages in ozone concentrations, and (2) the 1-hour ozone design values are often associated with local phenomena while the 8-hour ozone design values are more heavily influenced by background or long-range transport. The commenter (0049)

believes that these differences mean that the PATS approach should not be adopted for the 2008 ozone NAAQS.

2. EPA Response.

EPA disagrees with the assumption that the 1- hour and 8-hour standa rds are fundamentally different. As an initial matter, EPA first adopted this approach for the 1997 ozone NAAQS,

which is also an 8-hour standard and in the context of determini ng how to translate the table in section 181(a) considered the issu es referenced by the commenter. 1 Moreover, data analyses over the period 2006-2010 indicate that daily maximum 8-hour concentrations and daily maximum 1- hour concentrations are highly co rrelated on average nationally. While the longer averaging time for an 8-hour ozone NAAQS, such as the 2008 NAAQS, may slightly extend the geographic region contributing to the viola tions, as compared with a 1-hour ozone NAAQS, EPA disagrees

1 EPA considered for the 1997 ozone NAAQS options for the translation of the classification table in the CAA. These options are discussed in a separate document available in the 1997 8-hour ozone docket - Additional Options Considered for Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard (OAR-2003- 0079-0376). These other possible ways of translating the classification table, in our opinion, did not have the same degree of consonance with the intent of Congress when it enacted subpart 2 as those proposed for the 1997 8-hour ozone NAAQS. In the October 21, 2003 notice that reop ened the comment period, EPA solicited comment on an approach for different percent ranges than Table 1 to account for 1-hour to 8-hour differences and included it as part

of Alternative A. A number of comme nters opposed the idea of regulatorily creating a relationship between the 8- hour and 1-hour standards and were also concerned about the way in which the relationship was established. They claim that the relationship is not scientifically supported. Wh ile we agree that in theory this type of approach could be consistent with the CAA as interpreted by the Supreme Court, we have rejected it, in part, because we also have concerns about establishing such a relationship between the 1-hour and 8-hour standards. In the 2004 Phase I rule, EPA stated the preference for using the percentage range s above the standard concentration for the classification thresholds as an appropriate manner of classifying areas based on the relative magnitude of their problem. We chose those percentages for the 8-hour standard that Congress chose for the 1-hour standard, since it would result in the same relative degree of problem magnitude for each classi fication that Congress select ed in 1990. EPA-HQ-OAR2003-0079-0685 provides additional analysis for comparing 1980 to 2002 1-hour to 8-hour ozone trends.11 that the PATS approach is not appropriate for th is NAAQS. We further not e that it is unclear what the commenter is suggesting as an alternat ive approach. The commenter does not suggest a specific alternative to interpre ting the design values in subpart 2 in a way that would better address its stated concern regard ing transport. To the extent the commenter is suggesting that areas should instead be placed under subpart 1, we note that the Court in South Coast found that

the statute is clear on it s face that subpart 2 must apply to certain areas designated nonattainment for any ozone NAAQS. Furthermore, although the court recognized limited authority for EPA to rely solely on subpart 1 for those areas that the statute is not clear must be subject to subpart 2, the court rejected EPA’s reliance on ozone transport as a basis for choosing to place areas solely under subpart 1. South Coast , 472 Fed.3d at 894. Finally, we note th at the structure of the Act provides for transport to be addr essed even for those areas subj ect to subpart 2. The primary purpose of the implementation requirements in subpart 2 is to addr ess localized pollution problems within a nonattainment area, not transpor ted emissions between two or more areas. Section 110(a)(2)(D) of the Act requires all stat es to address transported emissions and EPA has required most states in the eastern portion of th e country to reduce NOx emissions to address the significant transport of ozone and the precursor NOx to downwind areas for purposes of the 1997 ozone NAAQS. While States are independently obligated to addre ss transport, EPA notes that it has previously issued three regulations addressi ng the long-range transport of ozone. See 63 FR 57356 (NOx SIP Call); 70 FR 25162 (2005 Clean Air Interstate Rule); and 76 FR 48208 (CrossState Air Pollution Rule). 2 EPA will continue to assist Stat es to ensure that the long-range transport of ozone and ozone precursor s is adequately addressed.

3. Comment –Application of the PATS approach to the 2008 ozone NAAQS is flawed because such application results in almost all nonattain ment areas being classi fied as Marginal, and associated control program requirements will be inadequate to bring areas into attainment

Several commenters (0029, 0038, 0044, 0049, 0060, 0049) st ated that applica tion of the PATS approach to the 2008 ozone NAAQS is flawed becau se such application results in almost all nonattainment areas being placed in the Marginal classification, resulting in no or very limited control measure requirements that will not be adequate for bringing the nonattainment area into attainment as expeditiously as practicable.

One commenter (0044) specifically st ated that an application of the PATS approach would result in more than 80% of the country’s nonattainme nt areas being classifi ed as Marginal, which contrasts to the wider spread of nonattainm ent area classifications under the 1997 ozone NAAQS. The commenter (0044) stated that the Marginal areas woul d be subject to very limited requirements with respect to emission controls , and as a result, implementation of new or

additional controls in such nonatt ainment areas would be unlikely.

One commenter (0060) noted that the applicat ion of the PATS approach for the 2008 Ozone NAAQS will result in placing most nonattainment ar eas in the Marginal classification (i.e., 43 Marginal, 6 Moderate, 3 Serious, and 0 Severe or Extreme). The commenter (0060) further stated

2 On December 30, 2012, the D.C. Circ uit stayed CSAPR pending the court’s resolution of the petitions for review of that rule in EME Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The court also indicated that EPA is expected to continue to administer the CAIR in the interim until the court rules on the petitions for

review of CSAPR.12 that in the 2004 Phase 1 ozone implementation rule for the 1997 Ozone NAAQS, EPA rejected a similar methodology for the reason that it woul d have produced a similar outcome, reasoning that Marginal areas are not subject to the requirem ent to submit an attainment plan to ensure that the area identifies and adopts th e controls necessary for atta inment within 3 years of designation. 3 The commenter disagrees with the PATS approach, claiming that classifying most areas as Marginal would delay mitigation of the upwind emissions that are the cause of air quality problems in many downwind areas. Th e commenter (0060) stat es that EPA is now indicating that the PATS approach does make sense because EPA believes that many Marginal areas are expected to attain the 2008 NAAQS within 3 years of attainment due to reductions of ozone precursors resulting from a number of fede ral and state emission reduction programs that have been adopted.

One commenter (0049) stated that the original intent of the 1990 CAA classification approach

was to distribute the areas into all six classifications, providi ng areas with worst problems reasonable periods of time to reach attainment . The commenter (0049) stated that the PATS approach is straightforward but has an unfortunate effect of pl acing nearly all areas into the lowest two classifications, which require almost no control measures at all, and is, therefore, not congruent with Congress’ intent.

3. EPA Response.

We believe that application of the PATS methodology for the 2008 NAAQS is a reasonable

translation of Table 1 in secti on 181 of the Act. We disagree with the commenters who suggest that Congress had some specific intent that ar eas need to be placed in all five of the

classifications. 4 Rather, we believe that at the time Congress enacted the 1990 Amendments establishing the subpart 2 classi fication approach, they were addressing the specific factual situation as it existed at that time, where ther e were areas with greatly divergent air quality and areas with significant air quality problems needed longer to attain the NAAQS than was provided under the generic provisions in section 172 of the CAA. Thus, Congress established an approach where the time to attain and the mandatory co ntrol measures for areas were linked to the significance of the air quality problem for the area. Over the past 20 years, areas have made tremendous strides in addressing air quality problems and many areas, while violating the NAAQS, are doing so to a much le ss significant degree. We belie ve that the overarching intent

of the Act as amended in 1990 is to ensure that most areas are placed in a classification that provides sufficient time to attain the NAAQS, an d to link more stringent requirements to those areas that need more time to attain. Congre ss also included provisions in the Act allowing

reclassification of an area if it is unable to attain the NAAQS by the maximum date associated

with its classification.

Our analyses indicate that a majo rity of the areas should attain by the attainment date associated with their classification under the PATS approach (see response 5 below). For areas that may not be able to attain by their attainment date , the Act provides mechanisms by which a state can

3 The commenter (0060) quotes text from the preamble of the Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard – Phase 1 (84 FR 23962-23964).

4 The commenter refers to six classifications. We note that there are five classifi cations, but in 1990, Congress provided that severe areas with the highest design values would have a maximum attainment date of 17 years.13 request a higher classification. First, section 181(a)(4) provide s that the Administrator may reclassify an area to a higher or lower classification if the area’s design value used for the initial classification is within 5 percent of a classi fication threshold value for a higher or lower classification. This adjustment mu st be made within 90 days of th e initial classification. A State may request this adjustment or the Administrator may make th e adjustment based on her own initiative. Second, section 181(b )(3) provides that a State may request at any time a higher

classification and EPA must grant such a request.

The claims by one commenter (0060) misrepresents that the PATS approach was rejected in the previous 8-hour ozone classifica tion rule. In the Phase 1 Rule, EPA determined that certain areas would be subject only to the planning provisions of subpart 1. EPA did note that for those areas (most of which would otherwise have been classified as Marginal if placed under subpart 2) subpart 1 would require submission of an atta inment demonstration – a requirement that does not apply to areas classified as Marginal. This formed part of the basis for EPA’s decision to place certain areas under the planning provision s of subpart 1; it was not, as the commenter suggests, a rejection by EPA of th e PATS approach. In fact, EPA adopted the PATS approach in

the Phase 1 Rule for all areas classified under su bpart 2. We address the commenter’s concerns regarding transport of emissions in Response 4.

4. Comment –Application of the PATS approach to the 2008 ozone NAAQS is flawed because such application results in almost all nonattain ment areas being classi fied as Marginal, and results in delays to address in terstate transport of ozone

Several commenters (0032, 0034, 0038, 0050, 0060) claim that EPA’s analysis referred to in footnote 18 of the proposed rule regarding the likelihood that nona ttainment areas will demonstrate attainment by the deadlines is funda mentally flawed. One commenter (0038) stated that the predominant use of the Marginal classification will result in the delay in implementation

of control measures needed to reduce the interstate transpor t of ozone. The commenter (0038) explained that under CAA § 110(a)(2 )(D) states are required to subm it transport SIPs to prohibit the emissions of pollutants that contribute sign ificantly to nonattainment or interfere with maintenance of a NAAQS in any other states. The commenter (0038) explained that levels of pollution entering New York make it impossible to attain the NAAQS without substantial upwind reductions. The comment er (0038) stated that EPA’s classification approach which places most areas in the Marginal classificati on belies the seriousness of the ozone problem and will lead to further delays as states upwind of New York are not likely to act to control

emissions.

Another commenter (0049) stated that EPA’s PATS approach would result in establishment of mostly Marginal nonattainment areas in Maryla nd, which would mean that Maryland monitors would need to begin monitoring attaining ai r quality levels in 2013. The commenter (0049) stated that Maryland research on transported oz one shows that incoming transported ozone often exceeds the current standard, and th at air quality modeling shows th at current control efforts to reduce transport will not provide enough reduc tions to meet the attainment dates.

The commenter (0049) believes that, because of insufficient controls to reduce transported ozone, it will be impossible for Maryland's monito rs to achieve clean da ta starting in 2013 for14 "Marginal" areas. The commenter (0049) states that Marginal ar eas will not be required to establish budgets for the 2015 attainment year, wh ich is not fair when an upwind Marginal area is significantly impactin g a downwind Moderate area. The comm enter (0049) stated that this is the case with Baltimore and Washington DC; i.e., because mobile emissions in Washington DC are about 50% greater th an emissions in Baltimore, and without strong controls on mobile sources in both Baltimore and Washington DC , Baltimore will never attain the standard.

Several commenters (0029, 0038) specifically stated that EPA’s PATS approach results in 43 out of 52 nonattainment areas being classified as Margin al and 6 more being clas sified as Moderate. The commenters (0029, 0038) stated th at these classifications crea te the false impression that many areas of the United States will be able to attain the ozone standa rd based on air quality from 2013-2015, when in reality the process will take longer and w ill be more complex in certain

areas of the United States.

4. EPA Response.

EPA acknowledges that a large part of the oz one problem for eastern states like Maryland, Delaware, and others is due to long range transport of ozone that comes from upwind states in

the mid-west and south. The Cross State Air Pollu tion Rule is a federal program that will reduce ozone and PM precursors regionally, and provide ai r quality benefits to downwind states. Other national rules that address NOx will provide ad ditional benefits. EPA recognizes that these states have aggressively pursued control measures for sources within their states. In the case of Baltimore, for example, while there are certainly local contributions to the ozone problem, EPA recognizes that a significant portion of the air quality problems come fr om outside the urban

area.

The commenters claim that if area s are designated as Marginal for the 2008 standard, these areas will not adopt any controls and therefore will not help downwind states attain the standard. As noted by the commenters, the Clean Air Act includes separate provi sions for addressing interstate transport of air pollution and for a ddressing local nonattainment area problems. The states have separate and dis tinct obligations to address their contri butions to downwind

nonattainment areas while also m eeting nonattainment requirements to adopt measures needed to attain the standard as expeditious ly as practicable. To address th e issue of long-range transport, section 110 requires States to mitigate pollution from all areas of the State (not just those areas designated nonattainment) that to “contribute significantly to nonattainment in, or interfere with maintenance by, and other State.” For areas such as New York and Baltimore, the long range transport of emissions has been greatly re duced by the NOx SIP Call, 63 FR 57356 (October 27, 1998) and the Clean Air Intersta te Rule, 70 FR 25162 (May 12, 2005). 5 In an “upwind” area that is designated nonattainment, th e control requirements under subpart 2 would primarily address the local air pollution problem and may or may not provide substantial benefit to downwind areas. In most cases, it woul d be expected that controls would be needed from sources throughout the state (i.e. those lo cated within nonattainment areas and those located outside of nonattainment areas) to eliminat e a state’s significant contributi on to a downwind area in another

state.

5 More recently, EPA promulgated the Cross-State Air Pollution Rule, 76 FR 48208 (August 8, 2011), but the United States Court of Appeals for the D.C. Circu it has stayed the CSAPR pending judicial review.15 To the extent “local” control measures may provi de benefits to a downwi nd area, it is important to note that States have the obligation to ensure that Marginal areas and all other areas attain the standard as expeditiously as prac ticable. Thus, in some Marginal areas, it may be appropriate for the state to adopt control measur es even though an attainment demonstration is not specifically required. We understand it can be challenging for states to address conc urrent obligations for interstate transport and nonattainment area planni ng. We will continue to work with States to ensure that the interstate transport of emissions is addressed.

The commenter is correct that Marginal areas are not required to establish motor vehicle emissions budgets for their attainment year. This is because Marginal areas are not required by the Clean Air Act to submit reasonable further pr ogress plans or attainment demonstrations. Motor vehicle emissions budgets are the portion of total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasona ble further progress milestones or demonstrating attainment or maintenance of the NAAQS that is allocated highway and transit vehicle use and emissions. (40 CFR 93.101) While Marginal areas are not required to submit attainment year budgets for the 2008 ozone NAAQS, many areas incl uding Washington, DC have adequate or approved or approved budgets for the 1997 ozone NAAQS. Those budgets are required to be used in conformity determinations for th e 2008 ozone NAAQS. (40 CFR 93.109(c)(2)) With regard to the need for strong mobile source contro ls in the Washington, DC area, as stated above, Marginal areas have the obligation to attain the st andard as expeditiously as practicable. Thus, in some Marginal areas, it may be appropriate fo r the state to adopt additional mobile source control measures that would help to bring such an area into a ttainment. If a dditional mobile control measures were adopted in the Washington area, they woul d likely provide benefits to the Baltimore area as both areas are part of the same CSA.

5. Comment –EPA’s analysis cited in footnote 18 in the proposed rule is flawed in concluding that most Marginal areas will be able to attain the 2008 NAAQS by 2015, and therefore the PATS approach is not an appropri ate classification approach.

Several commenters (0032, 0034) took issue with an EPA analysis which concluded that many Marginal areas are expected to attain the 2008 NAAQS within 3 years of designation (in 2015)

due to reductions incl uding more stringent emission standa rds for onroad and nonroad vehicles and equipment, regional reductions in power plant emission to address interstate transport, and future implementation of programs such as th e boiler maximum achiev able control technology standards. The commenters (0032, 0034) note that EPA estimated that in about half of the Marginal areas, these reductions in conjunction with ongoing states and federal controls should be sufficient to bring about attainment. Several commenters (0032, 0034, 0050, 0060) claim that EPA’s analysis was flawed for three main reasons: (1) EPA’s projections do not account for differences in ozone season meteorology; (2) EPA projections do not account for reductions driven by the economic downtur n that occurred during that period; and (3) EPA’s linear approach assumes the reduction of ozone precurs or emissions on a proportionately comparable basis from 2005 to 2015, while not providing adequate analyses of other efforts that may directly or indirectly reduce ozone precu rsor emissions such as the Me rcury and Air Toxics Standards (MATS) rule.16 First, several commenters (0032, 0034) claim EP A’s analysis uses a design value centered around 2009, which is a meteorologi cally unique year in the No rtheast. Specifically, the commenters (0032, 0034) noted that 2009 included some of the lowest 4 th maximum 8-hour ozone averages recorded since ambient air monitori ng began in the region. They claim that this decrease is not solely attributable to ozone precursor emission reductions, as the Northeast experienced an unusually mild ozone season in 2009 due to relatively cool ozone season temperatures. Consequently, the commenters (0032, 0034) stated that the use of a design value incorporating 2009 without normalizing for meteor ological differences may underestimate future ozone conditions in 2015. Another commenter ( 0060) specifically stated that EPA’s analysis

does not account for differences in ozone seas on meteorology, specifically between the relatively warm ozone season of 2005 and the unusually mild ozone season of 2009.

Second, several commenters ( 0032, 0034, 0038, 0060) claim that EPA’ s analysis uses a design value centered around 2009, which does not adequate ly take into account the economic downturn that occurred during the three-year span between 2008 to 2010. The commenters (0032, 0034) reasoned that as the state of the economy dimini shed during this time, ozone precursor emissions declined in conjunction with economic activity, and therefore, emission reductions are not completely attributable to air pollution contro l programs. The commenters (0032, 0034) noted that EPA’s new projections do not adjust for these emission reductions and therefore do not accurately project ozone through 2015. As th e economy becomes more stable, emissions

increases attributable to economic r ecovery activity are almost certain.

Third, several commenters (0032, 0034, 0038, 0060) stat ed that emissions reductions will not be

linear because the emission reductions from CAIR and CSAPR were front-end loaded and largely occurred by 2010. Consequently, th e commenters (0032, 0034) believe that EPA’s assumption about linearized benefits is flawe d, and will overstate emission reductions in the years of 2010-2015.

One commenter (0060) further stated that the analysis is not robus t enough to reasonably predict

that most of these areas would attain by 2015, as the information a nd calculations provided in the analysis selectively emphasize methods or da ta that support the claim that the Marginal nonattainment areas could attain by the 2015 de adline, while ignoring equally legitimate methods that would not tend to predict attainme nt. The commenter (0060) stated that EPA has been privy to preliminary modeling done by the ozone transport commission that shows that deep reductions beyond those achieved by current c ontrol requirements are needed to achieve widespread attainment of the 75 ppm standa rd, and that EPA’s own CSAPR modeling shows many areas fall short of attainment with the curre ntly adopted suite of reduction strategies.

One commenter (0034) further noted the modeling issues for the differences in ozone season meteorology, the economic downturn and concerns comparing post-2010 pr ojections to pre-2010 control programs are issues that are not unknow n to EPA. Specifically, the commenter (0034) stated that EPA stated in a March 1, 2012 respon se brief that the extent to which a downward

ozone trend could be discerne d from monitoring data during the 2007-2010 time period, it could largely be explained by temporary factors such as CAIR requirements, reduced emissions resulting from the severe economic recession, and by the extremely low concentrations of ozone17 in 2009 due to meteorological variability. 6 The commentor (0034) st ates that EPA emphasized that, “by 2010, many States were alrea dy meeting their 2012 [CSAPR] budgets.” 7 While EPA’s discussion in its response brief caveated the use of these years as end points in elucidating ozone trends, those same caveats are equally applicable to the use of these years as starting points for projecting future trends.

One commenter (0050) stated th at it has completed several screening model runs showing potential pathways to attainment for the 2008 ozone NAAQS, and in contrast to the EPA analysis, these results demonstrate that substantial reductions in NO

x and VOCs are needed throughout the eastern half of the United States in order for it to achieve levels of ozone that meet the NAAQS by 2015 and beyond. The commen ter (0050) stated that its more robust analysis indicates that EPA’s proposed classification approach for the vast majority of the nonattainment areas is likely to fail to ensure attainment because neither those areas, nor contributing upwind areas, will be required to reduce their emissions beyond any measures that are already on the books.

One commenter (0038) specifically stated that recent Ozone Transport Commission modeling suggested that emission reductions on the order of 65% for NO

x and 25% for VOCs through the

eastern United States will be needed for areas along the Eastern Sea board to attain the 2008 NAAQS.

5. EPA Response.

The analysis included in the proposed rule was intended to demonstrate the number of potential Marginal nonattainment areas that might be able to attain by 2015. Numerous Federal rules will continue to provide considerable additional emissions reductions between now and 2015 and our analysis indicates that these reductions woul d be sufficient to bring many of the areas we predicted would be classified as Marginal in to attainment by 2015. The proposed rule modeling analysis showed that 33 out of 43 hypothetical Marginal nonattainment ar eas (at the time of proposal) were expected to attain the oz one NAAQS by their 2015 attainment date.

There continues to be a strong downward trend in NOx and VOC emissions due to rules such as the Tier-2 motor vehicle engine standards, hea vy duty engine standards, and the locomotive and marine diesel engine rule. These rules provi de large annual emissions reductions from the transportation sector. Since th ese engine rules are implemente d through “fleet turnover,” the emissions reductions occur on a steady basis over a large number of years and tend to be roughly linear until the rules are completely implemented (e.g. the fleet has been completely replaced). The total modeled reduction in summer season NOx emissions between 2005 and 2014 (for states in the Transport Rule ozone program ) was about 2.5 million tons per ozone season. 8 Of that total, 84% of the NOx reductions were fr om sources other than electric generating units (EGUs). In general, the vast majority of t hose non-EGU reductions are from mobile sources. Therefore, rules which are implemented through fleet turnover account for the majority of the

6 U.S. EPA Brief for the Respondents, in EME Homer City Generation, L.P, et al. v. EPA, D.C. Circuit, No. 11- 1302 and consolidated cases (filed March 1, 2012), at pp. 75-76.

7 U.S. EPA Brief for the Respondents, at p. 92 ( see also footnote 53 in Brief).

8 The ozone season is defined as May-September.18 summer NOx emissions reductions in the 2005-2 014 period. It was therefore reasonable to

assume that modeled ozone reductions over the 2005-2014 period (from the final Transport Rule) provide a relatively linear oz one reduction during this period.

There are several ways that ambient data can be projected to future years. Because the ozone designations will be based on curre nt (2008-2010) data, we chose to use these ambient data as the anchor point for the analysis. Using the 2008 -2010 data provided a consis tent set of data for both the current years (which will be used to designate areas) and fu ture years. The 2008-2010 design values were projected to 2015 using the average percent per year ozone reductions based on modeling from the final Transport Rule. Beca use the 2008-2010 data was used as the starting point for the analysis, any unusual meteorological or emissions patterns that influenced the 2008-

2010 data are also reflected in the 2015 estimates . We agree that the meteorology in 2009 was not particularly conducive to ozone formation in the Northeast, and we agree that the economic recession likely has affected the amount of emissions of ozone precursors during this time period. In response to comments on the issues raised by commenters about using 2009 ambient data in our analysis, we compared the final Transport Rule 2014 design values, 9 to the values that were projected for the 2015 analys is used to support the proposed rule. The 2014 Transport Rule design values were projected using 2003-2007 ambi ent data as the anchor point. Therefore, these projections are not influenced by the recent recession and 2009 meteorology.

Based on the 2014 final Transport Rule design va lues, 22 out of 40 hypothe tical Marginal areas at proposal 10 would be expected to attain by 2014. Add itionally, there are 3 ar eas that are within 0.5 ppb of attaining in 2014. Since the actual Marginal area attainment date will be 2015, we also expect these 3 areas would to attain by 2015, given an additional year of emissions

reductions. 11

Based on the most recent 2009-2011 ambient data, 10 of these 43 Marginal areas have already attained the NAAQS and are expected to be desi gnated as attainment areas. This is further evidence that Marginal areas are in most cases able to quickly attain the ozone NAAQS with existing Federal and state controls.

Due to the updated ambient data and changes in the expected boundaries of several potential nonattainment areas, EPA now expects there to be 37 Marginal nonattainment areas when designations are finalized. We are able to project future design values for 36 of these areas using the 2008-2010 data analysis 12 and 33 of these areas using the Transport Rule 2003-2007 ambient

9 The 2014 Transport Rule design values were also incl uded in the spreadsheet that documented the analysis completed for the proposal. The ozone design value projection methodology is documented in the final Transport Rule Air Quality Modeling TSD, available at: h ttp://www.epa.gov/airtransp ort/pdfs/AQModeling.pdf

10 There were 43 hypothetical Marginal nonattainment areas that were incl uded in the proposal analysis. However, due to incomplete data in the 2003-2007 base period, we were not able to project design values for 3 of these areas using the Transport Rule methodology. Those areas are Reading PA, San Luis Obispo CA, and Sublette County

WY.

11 All 3 of these areas have annualized modeled ozone re ductions of greater than 1.3 percent per year and would therefore easily achieve more than a 0. 5 ppb ozone reduction in one year.

12 One potential Marginal area is the Pechanga tribal area in California does not have valid ambient data to use for the projection analysis.19 data analysis 13 . The modeling analysis using 2008-2010 ambient data as the anchor point predicts that 27 out of these 36 Marginal nona ttainment areas will be able to attain by 2015 relying solely on measures that are already in place. The modeling analysis using the 2014 Transport Rule design values (which are anchor ed by the 2003-2007 ambient data) predicts that 16 out of 33 hypothetical Marginal nonattainment areas will be able to attain by 2015. 14 The 16 out of 33 area prediction does not include the 10 hypothetical Marginal ar eas that have already attained the NAAQS. The fact th at 10 areas that were violat ing based on 2008-2010 data but now are attaining based on 2009-2011 data is evidence that Marginal areas will be able to attain in 3 years. This fact combined with the updated 2008 -2010 projections to 2015 and the results of the Transport Rule 2014/2015 analysis further suppo rts EPA’s conclusion that the majority of Marginal nonattainment areas will be able to attain the NAAQS with in 3 years or would likely be eligible for an attainment date extension in 2015.

The commenters also assert that preliminary OT C modeling indicates that many more areas than indicated by the EPA analysis will not be able to attain the 75 ppb NAA QS by their attainment date. However the OTC modeling uses a 2020 a ttainment date, and therefore cannot estimate design values for the Marginal area 2015 attainme nt deadline or even for the Moderate area 2018 attainment deadline. The only conclusion regardi ng attainment that can be drawn from the OTC modeling is that all areas in the Northeast corr idor except Philadelphia and New York will attain the ozone NAAQs by 2020. As to all areas in the Northeast other than New York and Philadelphia, the OTC modeling does not indicate when those areas ar e likely to attain other than to show that they will attain by 2020; therefore contrary to the commenter 's conclusion, the OTC modeling does not show that any of those area s will be unable to attain the 2008 NAAQS by the attainment date for Marginal or even for Mode rate areas. Thus, it does not contradict EPA's analysis showing that the majority of Marginal areas across the country ar e predicted to attain by their attainment date. The OTC modeling is qualitatively consistent with EPA's modeling regarding the New York and Philadelphia areas. The EPA modeling predicts these two areas would have difficulty attaining the NAAQS by the 2015 Marginal area attainment date.

The transport related comments included with the comments on the Marginal area modeling projections are addressed in comment 6 and in Section V.

If a state believes it will not be able to meet its attainment date, the Act provides mechanisms by which a state can request a highe r classification. First, sect ion 181(a)(4) provides that the Administrator may reclassify an area to a higher or lower classification if the area’s design value

used for the initial classificati on is within 5 percent of a clas sification threshold value for a higher or lower classification. Th is adjustment must be made within 90 days of the initial classification. A State may request this adju stment or the Admini strator may make the adjustment based on her own initiative. Sec ond, section 181(b)(3) provides that a State may request at any time a higher classificati on and EPA must grant such a request.

13 There are 3 additional areas that don’t have valid ambient data for the 2003-2007 data. These are the same 3 areas that were identified earlier; Reading PA, San Luis Obispo CA, and Sublette County WY.

14 Similar to the results using the original 43 hypothetical area s, there are 3 areas that do not attain based on the 2014 Transport Rule results, but are expected to attain by 2015 with an extra year of emissions reductions.20 6. Comment: Research shows incoming transported ozone often exceeds the current standard

Another commenter (0049) stated that Maryla nd transport research shows that incoming transported ozone often exceeds the current standa rd, and that its modeling shows that current control efforts to reduce transport will not pr ovide enough reductions to meet the attainment dates. The commenter (0049) believes that, because of insufficient controls to reduce transport, it will be impossible for Maryland's monitors to ach ieve clean data starting in 2013 for "Marginal"

areas.

6

. EPA Response

The transport of ozone in the Eastern U.S. ha s been significantly reduced through previously issued rules addressing the transport of ozone and ozone precursors; see 63 FR 57356 (NOx SIP Call); 70 FR 25162 (2005 Clean Air Interstate Rule); and 76 FR 48208 (Cross-State Air Pollution Rule). 15 Additionally, other Federal rules have reduced the transport of NOx from low level sources such as cars and trucks, and thes e reductions are ongoing due to fleet turnover. Section 110(a)(2)(D) of the Act requires all states to address transported emissions and states are required to submit SIPs for the 2008 ozone NAAQS which show how they will eliminate any significant contribution to downwind nonattainment. EPA will continue to assist States to ensure that the long-range tran sport of ozone and ozone precursor s is adequately addressed. With these ongoing reductions in ozone and ozone precursors, EPA’ s modeling analysis indicates that the majority of Marginal areas will be able to attain by their attainment date. However, if a state believes they will not be ab le to meet their attainment date, the Act provides mechanisms by which a state can request a hi gher classification. First, section 181(a)(4) provides that the Administrator may reclassify an area to a higher or lower classification if the area’s design value used for the initial classi fication is within 5 per cent of a classification threshold value for a higher or lower classificat ion. This adjustment must be made within 90 days of the initial classification. A State may re quest this adjustment or the Administrator may make the adjustment based on her own initiative. Second, section 181(b)(3) provides that a State may request at any time a higher classifi cation and EPA must grant such a request.

We disagree with the commenter (0049) who stated that Marginal areas would need to begin monitoring attainment in 2013. We note that a ttainment with the 8-hour ozone standard is determined based on the average of the 4 th high exceedance at a monitor for each of three consecutive three years. Thus, an area could have three exceeda nces of the 8-hour standard in each of the three years and still demonstrate atta inment of the NAAQS, or could attain based on the average even if it has four or more exceedances of the NAAQ S in one or two of the three years. We further note that CAA sections 172(a)(2)(C)(ii) and 181(a)(5 )(B), which allow for EPA to grant one or two 1-year exte nsions of the area’s attainment date if the area has clean data in the attainment year.

15 On December 30, 2012, the D.C. Circ uit stayed CSAPR pending the court’s resolution of the petitions for review of that rule in EME Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The court also indicated that EPA is expected to continue to administer the CAIR in the interim until the court rules on the petitions for

review of CSAPR.21 EPA Consideration of other Approaches for Classifying Nonattainment Areas

7. Comment – EPA is attempting to prevent stakeh olders from presenting ideas for alternative classification approaches.

One commenter (0020) noted that EPA indicated that many interested parties recommended other options for the classification of ozone nona ttainment areas, and that EPA has evaluated many other methods but is not proposing them or soliciting comment on them because it did not find them as compelling as the PATS approach. The commenter (0020) further noted that EPA

stated that it included in the docket all written recommendations it had received in recent years regarding classification approach es. The commenter (0020) stated that it appears that EPA is attempting to prevent stakeholders from presenting ideas for alternative classification approaches that could be more efficient and effective, and by specifically telling th e public that they do not want any input on alternative clas sification approaches, EPA could s uggest in their final, or in a subsequent legal challenge, that their approach is best beca use they received little, if any, alternative suggestions. The commenter (0020) st ated that for EPA to suggest that their own analysis, without any review or critique from those most impact ed by it, would lead them to a single option that would not be swayed by inform ed comments is arbitrar y and capricious on its

face.

7. EPA Response.

In issuing the proposed classifications rule, EPA did consider multiple cl assification approaches which have been suggested by interested parties previously, and these ap proaches were included in a background information document (BID) in the docket for this rulemaking. EPA was not attempting to dissuade public comment on classifi cation approaches, but was noting that it has seriously considered in the rulemaking to implement the 1997 ozone NAAQS and more recently a variety of approaches and had not been persuaded that any ot her approach was as compelling as the approach we proposed. During the comment er period for this rule, we received a number of comments on the approaches listed in the background information document as well as the proposed PATS approach, and we are responding to all of those comments in this response to

comments document.

8. Comment – EPA’s assertion is not accurate that they ha ve included in the docket all recommendations raised to EPA regarding classification approaches.

One commenter (0020) noted that EPA stated that many interested parties have recommended to EPA other options for the classification of ozone nonattainment areas, and that EPA has evaluated many other methods but is not proposi ng them or soliciting comment on them because it did not find them as compelling as the PATS approach. The commenter (0020) further noted

that EPA stated that it included in the docke t all written recommendations it had received in recent years regarding classification approach es. The commenter (0020) stated that it is

inconceivable that EPA failed to even consider as an alternative to its proposal, the option of relying on subpart 1 for the spec ification of SIP requirements a nd deadlines, and that EPA’s assertion that they have included in the docke t all written recommendations received in recent22 years regarding classification approaches ca nnot possibly be accurate. The commenter (0020) stated that only a few months ago, a small stat e/local workshop requested in writing that EPA consider relying on subpart 1 for specifying SIP requirements and deadlines, and that EPA responded that it would do so. However, the commen ter (0020) stated that this option is not in

the docket.

8. EPA Response.

EPA’s statement in the proposed rule referred to classification appro aches regarding how to interpret the section 181 Ta ble 1 classifications for areas subject to subpart 2. We recognize that parties have expressed an intere st to the Agency of not placing all or certain areas under the subpart 2 classifications and in stead having all or some areas subject only to the planning requirements of subpart 1. Most recently, the issue was rais ed at a State/EPA Workgroup on Work Prioritization in January 2012. The goal of the workgroup was to discuss opportunities for greater efficiency or reduced burden without compromising public health. A subpart 1 implementation approach was raised as an opportunity to stream line and simplify the requirements for implementing the 2008 ozone NAAQS, on the basis that subpart 1 provides more flexibility and avoids some mandatory measures that are not as effective as when they were first included in the Act in 1990. At the workgro up meeting, EPA noted that it did not anticipate providing for any areas to be subj ect solely to the implementation requirements of subpart 1 for the 2008 NAAQS. We agreed to explore ways to continue to streamline and simplify implementation policies. EPA documented its response in its March 2012 EPA/ECOS/NACAA Priorities Workgroup Update, stating that EPA di d not intend to pursue implementation of the 2008 ozone NAAQS under subpart 1 in the classifications rule.

9. Comment – EPA’s assertion that they have included in the docket all written recommendations it has received in recent years regarding cl assification approaches is not accurate.

One commenter (0053) specifically st ated that it sent a letter to EPA staff requesting that it consider including subpart 1 implementation for areas with design values less than 0.09 ppm, and, while EPA staff responded that it would consid er such request, EPA did not provide such a discussion as part of the proposed rule. The commenter (0053) asked EPA to re-propose an approach for the 2008 ozone NAAQS for design valu es of 0.09 ppm or less and seek comment. The commenter (0053) is concerned that since EPA did not include such a di scussion in its initial proposal, it could be limited in it s ability to include any subpart 1 implementation in a final rule due to Administrative Procedure Act (APA) requirements.

9. EPA Response.

As noted in the previous res ponse, the purpose of the document in the docket wa s to identify alternatives for interpre ting the classification approach in Tabl e 1 in section 181(a). We consider how to interpret the table for those areas classifi ed under it to be a separate issue from whether any areas should be subject solely to the planning requirements of subpart 1. Thus, the “subpart 1” approach was not addressed as part of that document. For the reasons discussed in responses23 10 to 14, EPA determined not to propose applying solely subpart 1 to any areas designated nonattainment for the 2008 ozone NAAQS.

We note that the letter referen ced by the commenter was sent to the Agency in February 2011 when EPA anticipated issuing a proposed implemen tation rule for a tighter ozone standard in the range of 0.060 - 0.070 ppm. The letter applied to the 2011 reconsidered ozone NAAQS but will be added to the 2008 ozone NAAQS classifi cation docket for information.

Approach of Relying on CAA, Title, I, Part D, Subpart 1 in Some Cases.

Application to areas with design values below 0.09 ppm.

10. Comment – EPA should require (o r at least consider requiring) only compliance with subpart 1 for nonattainment areas with design values be low 0.09 ppm because subpart 1 will provide a more effective approach in bringing such areas into attainment, while subpart 2 largely will be

ineffective.

Several commenters (0020, 0024, 0053) stated that EPA should require (or at least consider requiring) only compliance with subpart 1 for areas with design values below 0.09 ppm because subpart 1 will provide a more effective approach in bringing such areas into attainment, while subpart 2 will largely be ineffective.

One commenter (0024) specifically stated that the additional SIP re quirements specified by subpart 2 are outdated and ineffective. Specifica lly, the commenter (0024) stated that the 15% reduction in volatile organic co mpounds (VOC) emissions, the requirement for Stage II vapor control, and the requirement for inspection a nd maintenance programs in Moderate and above nonattainment areas are all questiona ble with regard to feasibility and effec tiveness; yet they apparently will be applicable under EP A’s proposed classification approach.

Another commenter (0053) stated that an impl ementation rule that relies on subpart 2 will require a number of measures to address VOC emission without having much of an ozone benefit locally. The commenter (0053) stated th at these include a mandatory 15% cut in VOC

emissions for reasonable furthe r progress (RFP), mandatory vehicle inspection and maintenance programs, stage II vapor recovery programs, cl ean fuel fleet programs, reasonably available control technologies, and specific tiered new source review offset requirements. The commenter (0053) does not believe that requir ing the states, with their limite d staff resources, to develop a suite of unnecessary VOC controls would be an e ffective way to expeditious ly bring an area into

attainment.

One commenter (0053) specifically stated that EPA is missing an opportunity to implement the 2008 ozone NAAQS in a way that would be far more effective in bringing an area with a design value of 0.09 ppm or less into attainment. Th e commenter (0053) stated that the subpart 2 classifications and accompanying requirements ar e not needed for many areas. The commenter (0053) provided the example of the Austin, Texas, area, whose ozone levels have been steadily decreasing over the past several years but ar e still very close to the 2008 ozone NAAQS. The24 commenter (0053) reasoned that si nce its ozone levels are conti nuing to decrease, the subpart 2 requirements are not needed to ensure the area achieves attainment.

One commenter (0020) specifically stated that in previous Federal Register notices, EPA acknowledged that relying on s ubpart 1 would provide the stat es and tribes with greater discretion in determining the mix of controls needed to expeditiously attain the 2008 ozone NAAQS, and that subpart 1 doe s not mandate the implementation of certain VOC control

measures that are known to be ineffective at reducing ozone in some parts of the country.

Another commenter (0052) further stated that based on the types of controls needed in the Southeast to reduce ozone formation (i.e., NO

x rather than VOC controls), North Carolina will be able to attain the 2008 NAAQS more expeditio usly under subpart 1 than under subpart 2.

One commenter (0053) provided a list of reasons why EPA shoul d require only compliance with subpart 1 nonattainment areas with design values below the 0.09 ppm, rather than additionally classifying under subpart 2:

• Subpart 1 would enable synchronized attainment deadlines for areas throughout a state that could be adjusted to account for availability of control measures and the regional nature of ozone pollution, rather than the system of cl assifications and attain ment deadlines under subpart 2 that does not allow for c onsideration of ozone transport,

• Subpart 1 would eliminate 15-year, 17-year, and 20-year attainment dead lines for areas that

would otherwise be classified as Severe or Extr eme, requiring them to attain in no more than 10 years,

• While some areas that might otherwise be cla ssified as Marginal, Moderate, or Serious under subpart 2 and would have no more than 3, 6, and 9 years to attain the standard might now be eligible for up to 10 years to attain, all areas wo uld still have to attain as expeditiously as practicable under subpart 1, which is also true for areas subject to subpart 2, and given what we know about ozone transport, t hose areas might not have been able to attain within those time frames anyhow without getting “bumped up.” And since areas that would be classified as Severe and Extreme under subpart 2 would n eed to attain in no more than 10 years, subpart 1 implementation would accelerate attainment for thos e areas and all of the areas they might be affecting.

• Subpart 1’s possibility of synchronized attain ment deadlines will significantly reduce the

amount of time and resources needed for techni cal preparation for atta inment demonstrations, since states could model a single base year and single future year for all areas-or two years, maximum, rather than for four or five diffe rent future years, a nd additional years of emissions estimates for RFP milestones,

• Subpart 1 allows many more areas to get the fu ll emission reduction benefits of the transport SIPs that are due three years af ter the new ozone sta ndards are finalized a nd the full benefits of federal engine standards and fleet tur nover that will occur over the years following

finalization of the standards,

• Because of the possibility of ten-year attain ment deadlines, subpart 1 enables consideration of the co-benefits of longer-term measures such as transporta tion planning, land use planning, and energy efficiency, that will both reduce ozone and have many other social and25 environmental benefits, but which would not be able to implemented in only three or six years if an area was classified as Ma rginal or Moderate under subpart 2,

• Subpart 1 contains less prescrip tive requirements for control measures, which will enable states more flexibility in designing control strategies th at are appropriate for their jurisdictions and enable them to optimize thei r planning and enforcement staff resources and financial resources to focus on the rules and strategies that will have the most impact on local

ozone levels.

• Subpart 1 would require attainment demonstr ations and contingency measures for all nonattainment areas, unlike subpart 2, which would exempt areas classified as Marginal from these requirements and any local control measur es other than new sour ce review permitting,

• Offset requirements under subpart 1 just require that new or modified sources offset their emissions by more than 100%, without setting specific offset ratios of 110% up to 150% under subpart 2; since local ozone may be main ly a problem of pollution transport, this avoids over regulating local s ources without any clear bene fit for local ozone levels,

• Subpart 1 has higher mandatory major source thre shold of 100 tons per year than the 50 tons per year, 25 tons per year, and 10 tons per year for areas that would be classified as Serious, Severe, or Extreme under subpart 2, which enable s states the ability to focus most of its resources on those sources contributing the most to local ozone pollution; if EPA wanted to adjust these, it could do so through an implemen tation rule, rather than being forced into a specific method by statute;

• Subpart 1 does not include specific mandatory control measures like st age II vapor recovery or clean fuel fleet, which may ha ve been appropriate for reduci ng peak ozone levels in urban

areas in 1990 but have become obsolete beca use of technology and are ineffective at reducing regional ozone levels , or for expensive mandatory inspection and maintenance programs that would provide very fe w emission reductions in some areas,

• Subpart 1 does not contain specific requirement s for RACT rules for every source covered by a Control Technique Guideline, which can cons ume staff resources at state agencies with little to no benefit on local ozone levels, and

• Since subpart 1 does not contain all of the same onerous provisions for each county in a nonattainment area (RFP requirements, mandatory control measures that may have no local ozone benefit, specific new source review offset s), states might be encouraged to look more at the regional pollution problems and make designation recommendations that are more precautionary than they would under subpart 2, where most states seek to keep the nonattainment area as small as possible.

• Subpart 1 offers EPA the opportunity to require areas it would have otherwise classified as

Serious or Moderate to attain in no later than five years, rather than the six or nine years they would have had under subpart 2..

One commenter (0053) noted that Pres ident Obama, in an op-ed in the Wall Street Journal on January 18, 2011 stated that “we are seeking more affordable, less intrusive means to achieve the same ends – giving careful consideration to be nefits and costs.” The commenter (0053) stated that relying on subpart 1 would be exactly the kind of more affo rdable, less intrusive means to achieve the same ends that the President was referring to.26 10. EPA Response.

While EPA did consider placing some areas only under the planning requirements of subpart 1, EPA ultimately determined that such an appro ach was not its preferred approach for the 2008 ozone NAAQS. Instead, EPA determined that cla ssifying all areas under subpart 2 and using the PATS approach to translate Table 1 in secti on 181(a) was the most appropriate option for addressing nonattainment for the 2008 ozone NAAQS. Under this approach, a majority of areas would be classified as Marginal and most of those areas are anticipated to attain the 2008 standard by the Marginal area attainment date. The Marginal classification provides as much, if not more, flexibility for areas than would subpart 1. For example, a Marginal area is not required to submit an attainment demonstration while subp art 1 requires such a plan. For areas that are close to the standard and likely to attain within three years, an attainment demonstration could be a costly and likely unnecessary burden. We further note that the planning and control requirements that the commenters believed were not flexible do not apply in Marginal areas. Further, all of the areas that wi ll be classified as Moderate or higher for the 2008 ozone standard are already subject to those requirements for purposes of the 1997 ozone NAAQS. For a future ozone NAAQS, EPA may consider placing some areas designat ed nonattainment solely under the planning provisi ons of subpart 1.

Furthermore, we disagree with the commenters who suggest that areas would be able to attain the standard more expeditiously under subpart 1. As an initial matter, under bot h subparts, states are required to ensure that areas attain the NAAQS as expeditiously as practicable. Furthermore, the initial maximum statutory attainment date under subpart 1 is five years, while for Marginal areas,

which will be the classification for most area s for the 2008 ozone NAAQS, it is three years. Regardless, under both subparts, st ates are required to ensure th at areas attain the NAAQS as expeditiously as practicable.

For areas classified as Moderate or Serious, with a maximum atta inment date under subpart 2 of 6 or 9 years respectively, again subpart 1 does no t necessarily set a shorter maximum attainment date. We note that the five year limit under subpa rt 1 is only binding if EPA determines it is consistent with expeditious attainment. Subpa rt 1 allows the EPA to approve attainment deadlines up to 10 years from designation based on a demonstrati on by the state that a deadline longer than five years is as expeditious as prac tical considering the seve rity of nonattainment and availability and feasibility of pollution control measures.

While it is true that subpart 1 would provide a shorter maximu m attainment date for areas classified as Severe or Extreme, we note that under the court’s decision in South Coast, EPA’s ability to place such areas solely under the pl anning provisions of subpart 1 is untested. The lowest design value for an area classified as Severe is 0.113 ppm, which is well above the 0.090

level that the Court in South Co ast indicated was the line between where EPA had discretion to place areas in subpart 1 and where it did not have such discretion. 16 Subpart 2 provides areas

classified Severe or Extreme more than the 10 years maximum attainment date which, may be more appropriate for these areas given the se verity of their ozone nonattainment problem.

16 The same is true for all areas classified as Serious as the lowest design value for su ch an area is 0.0100 ppm and for many areas classified as Moderate , which includes areas with a design value no lower than 0.086 ppm and less than 0.100 ppm.27 With regard to comments that classificati on under subpart 1 would allow for coordinated planning and/or synchronized attainment dates where there are multiple nonattainment areas in the State, we note that under subpart 1 (as under subpart 2) areas are re quired to attain the NAAQS as expeditiously as prac ticable. Thus, subpart 1 does not allow a State to synchronize the attainment date for multiple areas unless the Stat e could show that date is as expeditiously as practicable for each individual area. That means that the State would not be able to provide a longer attainment date for an area in order to take advantag e of measures that would be implemented over a longer period if there are shor t-term emission reductions that are practicable

and would result in an earlier atta inment date. Moreover, we note that subpart 2 does not prevent the State from considering synchronization. Th e State could request a voluntary reclassification for an area, particularly if the area cannot practicably attain by th e attainment date for its initial classification. Similarly, since all areas are requir ed to attain as expedi tiously as practicable, a State should consider whether areas with a “highe r” classification might be able to attain more quickly. These provisions allow a State to synchr onize attainment dates to the extent the date selected for areas is “as expe ditiously as practicable.”

To the extent the bulleted list of points is not responded to above, we note the following:

To the extent that the commenter is urging that areas be placed solely under subpart 1 because subpart 1 provides more flexibility, we note th at the Court in South Coast rejected EPA’s approach to placing areas under s ubpart 1 in the Phase 1 Rule on the basis that the Act does not allow the requirements of subpart 2 “to be stripped away” on th e basis that other provisions

would allow attainment to be achie ved more efficiently. 472 F.3d at 894.

It is true that under subpart 1, the offset ratio applicable to sources s ubject to nonattainment new source review is lower than under subpart 2. And, it is also true that the major source threshold

is lower for areas classified under subpart 2 than for those areas s ubject solely to subpart 1. As noted above, EPA’s ability to place areas solely u nder subpart 1 for areas classified as Marginal

and areas classified as Moderate with a design value less than 0.090 ppm is untested. Nonetheless, for those areas the major source thre shold is the same as und er subpart 1 – 100 tpy. The offset ratio is not significantly different – 1.1 to 1 in Marginal areas and 1.15 to 1 in

Moderate areas. We do not believe that difference alone is a sufficient justification for placing areas solely under the pla nning provisions of subpart 1, particular ly in light of the court’s holding

in South Coast.

The commenter also raises several points regardi ng transport. We have addressed the issue of the relationship between transport a nd the nonattainment area planning provisions in response 4 and

Section V.

11. Comment – EPA should not adopt the PATS ap proach under subpart 2 for areas that are in attainment with the 1997 ozone NAAQS but are in nonattainment with the 2008 NAAQS.

One commenter (0020) noted that the history that EPA provide d regarding nonattainment area classification systems for the ozone NAAQS allege d in part that the PA TS approach only was adopted for translating the 1979 NAAQS classi fication threshold values to the 1997 ozone28 NAAQS classification threshold values, and that this approach was challenged in litigation and was upheld by the court. However, the commenter (0020) stated that EPA is attempting to adopt the PATS approach in a different way now than it did in 1997. Specifically, the commenter (0020) explained that when EPA adopted the PATS approach for the 1997 NAAQS, it applied only to areas that were in nonattainment with both the 1979 and 1997 ozone NAAQS. EPA here is attempting to also apply the PATS approach to areas that are in attainment with the 1997 NAAQS but will be in nonattainment with the 2008 NAAQS. The commenter (0020) does not support applying the PATS approach in this way, disagrees with EPA that it has used the PATS approach in this way in the past , and states that EPA’s claim th at the approach was challenged and upheld in previous li tigation is misleading.

11. EPA Response.

While the commenter is correct that the regulation at issue in South Coast did not place all areas in subpart 2 and those areas not placed in s ubpart 2 were not classified under the PATS approach, there is nothing in the Court’s opinion to suggest that it would have reached a different

result if additional areas had been classified under subpart 2. In South Coast , industry petitioners challenged the PATS approach, claiming that it resu lted in unrealistic attainment

dates for areas and that EPA rec ognized in the preamble to its rule that some areas may be unable to attain the standard by the maximum date allowed by the area’s cla ssification. The Court rejected those claims and upheld the classificat ion approach as a reas onable approach to interpreting the gaps in Table 1 of section 181 of the CAA, as recognized by the Supreme Court

in Whitman v. ATA

. South Coast , 472 at 896-98. EPA is adopting the approach used for the 1997 NAAQS for purposes of the 2008 NAAQS for the same reasons and believes that the rationale used by the court to reject i ndustry claims on the classificat ion approach for the 1997 NAAQS applies equally here.

12. Comment – EPA should require (or at least consider requiring) only compliance with subpart 1 for nonattainment areas with design values below 0.09 ppm, as the CAA, as interpreted by recent case law, gives it such authority. In addition, EP A must address the issue, provide adequate public notice of its rationa le regarding this issue, and ther efore, must withdraw the current proposal and re-propose it w ith a proper explanation

Many commenters (0037, 0052, 0053, 0055) stated that EPA should require (or at least consider requiring) only compliance with subpart 1 for no nattainment areas with design values below 0.09 ppm, as the CAA, as interpreted by recent case la w, gives it such authority. All such commenters (0037), 0052, 0053, 0055) relied, at least in part, on Whitman v. American Trucking Association

, 531 U.S. 457, 482-486 (2001) and South Coast Air Quality M anagement District v. EPA , 472 F.3d 882, as modified on rehearing 489 F.3d 1245 (D.C. Cir. 2006) to support this contention.

One commenter (0055) stated that EPA should, at a minimum, provide some explanation for its apparent proposed decision to apply the requireme nts of subpart 2 to areas with design values falling between 0.075ppm and 0.09 ppm. The comme nter (0055) stated that in proposing

classification thresholds for nonattainment ar eas under the 2008 ozone NAAQS, EPA failed to address “gap areas,” which are those areas not ex pressly covered by the ta ble in subpart 2. The commenter (0055) assumed that th rough EPA’s silence, it propos es that such areas will be29 governed by subpart 2. The commenter (0055) stated that EPA is obligated to provide at this state of the rulemaking a reasoned explan ation for its positi on on this issue. See Shell Oil Co. v.

EPA , 950 F.2d 741, 751 (D.C. Cir. 1991) (“Interested pa rties cannot be expected to divine the EPA’s unspoken thoughts.”) (citing Small Refiner Lead Phase-Down Task Force v. EPA , 705 F.2d 506, 548-49 (D.C. Cir. 1983)). The commenter ( 0055) stated that EPA has failed to provide adequate notice for comment on this issue, as required under the APA as well as CAA § 307(d)(3). See Small Refiner Lead Phase-Down Task Force , 705 F.2d at 548 (an “agency must ‘make its views known to the public in a concrete and focused form so as to make criticism or

formulation of altern atives possible’”)( quoting Home Box Office, Inc. v. FCC , 567 F.2d 9, 36 (D.C. Cir. 1977)). The commenter (0055) further stat ed that application of subpart 2 to gap areas is not mandated by the CAA or court decisions, and is even contrary to the plain language of the

CAA and Whitman and South Coast. The commenter (0055) interprets Whitman as stating that

the CAA at a minimum extends to EPA the auth ority to implement the NAAQS in gaps areas under subpart 1, if the reasonable ex ercise of discretion of EPA were to conclude that doing so is appropriate. The commenter (0055) stated that the D.C. Circuit Court acknowledged as much in

South Coast I , finding that, where EPA had made the oz one NAAQS more stringent, “the gap

identified in Whitman affords EPA discretion” to implem ent the revised NAAQS under subpart 1 in those areas that, while not attaining the revi sed, more stringent standa rd, have “air quality [that] is not as dangerous as the level a ddressed by the 1990 [CAA] Amendments, which now translates to 0.09 ppm on the ei ght-hour scale.” 472 F.3d at 893. Consequently, the commenter (0055) stated that any conclusions by EPA that gap areas must be subject to subpart 2 is untenable and unsupported. The commenter (0055) stat ed that the fact that classification of all ozone attainment areas under subpart 2 is not mandatory creates an obligation for EPA to provide a lawful and reasonable ju stification for any proposal to cl assify all areas under subpart 2, but that EPA has provided no such justificat ion in the proposed rule; and indeed, EPA has failed even to acknowledge the issue. Consequen tly, the commenter (0055) stated that consistent with its obligation to provide adequate public no tice of its proposal a nd its underling rationale, EPA must withdraw the current pr oposal and re-propose it with a proper explanation or issue a notice of supplemental rulemaking c ontaining such an explanation.

One commenter (0053) specifically stated that Whitman v. American Trucking Association , 531 U.S. 457, 482-486 (2001) stood for the proposition that EPA can rely solely on subpart 1 for the specification of SIP requirements so long as EPA provided a reasonable explanation for doing so. The commenter (0053) noted that that after this court decision, the EPA finalized the first phase of the ozone implementation rule on Ap ril 30, 2004 (69 FR 23951), and stated that it would not classify all areas under subpart 2 since subpart 2 provides signif icantly less flexibility than subpart 1 for areas aff ected by transport pollution.

The commenter (0053) listed some points to keep in mind regard ing the decision in South Coast Air Quality Management District v. EPA , 472 F.3d 882 (D.C. Cir. 2006):

• The South Coast Court’s ruling that “EPA’s in terpretation of the Act in manner to maximize

its own discretion is unreasonabl e” was specifically tied to its ruling that “the 2004 Rule

violates the Act insofar as it subjects areas with eight-hour ozone in excess of 0.09 ppm to subpart 1” (page 895).30 • The South Coast Court explicitly ex pressed its interpretation of the Whitman ruling as allowing EPA to implement an eight-hour oz one standard under subpart 1 (page 893).

• In its ruling on a rehearing petition on June 8, 2007, the Court clarif ied that “this court

concluded that EPA had misconstrued the extent of the gaps to exercise its interpretive discretion more broadly than the Supreme Cour t had authorized,” which should make it clear that its ruling on EPA’s unreasonable interpre tation of the Clean Air Act related its application of subpart 1 to area s with eight-hour ozone levels in excess of 0.09 ppm, not to its application of subpart 1 to legitimate “gap” areas.

• The Court further clarified that “The court merely recognized that under Chevron agency action that does not constitute a reasonable interpretation of the statute must be vacated. Because Congress sought to reduce EPA discre tion by enacting subpart 2 as part of the 1990 amendments to the CAA, EPA could not reason ably rely upon its pref erence for regulatory flexibility in setting the bounda ry between subpart 1 and subpart 2. EPA’s claim that the court nullified the discretion recognized by the S upreme Court in Whitman is meritless.” The

court did not rule that the EPA did not have the discreti on to set the boundary between subpart 1 and subpart 2, just that it had to be based on a reasonable interpretation of the statute. EPA stated as much in its Ap ril 2010 stakeholder presentation, stating, “In South

Coast the Court determined that Congress did not mandate that areas with an 8-hour DV of less than 0.09 ppm be classified under subpa rt 2. Thus, assuming EPA had a reasonable rationale for classifying such area s under subpart 1, it could do so.”

• A reasonable interpretation of the statute that would allow for subpart 1 implementation could rely on the stated purposes of title I:

o to protect and enhance the quali ty of the Nation’s air resources so as to as to promote the public health and welfare and the productive capacity of its population (§101(b)(1))

o to encourage and assist the developmen t and operation of regional air pollution prevention and control programs (§101(b)(4))

o Relying on the features of subpart 1 that w ould enable more expeditious attainment of an ozone NAAQS (such as eliminating th e Marginal classifi cation and reducing

attainment deadlines for areas that would ot herwise be classified as severe or higher from 15, 17, or 20 years to no more than 10) and that would f acilitate a regional approach to pollution prevention (such as th e ability to classify areas and adjust

attainment deadlines to ta ke pollution transport into account) would avoid running

afoul of the restric tions imposed by the South Coast court.

12. EPA Response.

EPA recognizes that the South Coast court did leave open the possibility that EPA could develop a reasonable basis to subj ect only to subpart 1 all or cert ain areas with an 8-hour design value below 0.09 ppm. EPA determined not to pursue such an approach for purposes of implementing the 2008 ozone NAAQS. Doing s o, however, does not preclude EPA from pursuing such an approach for any future ozone NAAQS.

We disagree with the commenter who claims th at EPA failed to address areas with a design value falling between 0.075 ppm and 0.09 ppm. Our proposed rule is clear that areas with these design values would be classifi ed as Marginal (i.e., those w ith a design value of 0.076 ppm and31 less than 0.086) or as Moderate (i.e., those with a design value of 0.086 ppm and less than 0.100 ppm). See 77 FR at 8201, Table 1; see also Background Information Document: Hypothetical Nonattainment Areas for Purposes of Understanding the EPA Proposed Rule for Implementing a 2008 8-Hour Ozone National Ambient Air Qualit y Standard--Illustrative Analysis Based on 2010 Design Values. December 2011 (placing all hypot hetical areas that would be designated

nonattainment for the 2008 ozone standard in one of the subpart 2 classifications). We further disagree with the comment that EPA is obligated to provide an explanation for its choice to classify all areas under subpart 2 rather than to make certain areas subjec t only to the provisions of subpart 1. We read the court's decision in South Coast as interpreting Congressional intent

such that all areas must be classified unde r subpart 2 in the ab sence of a "reasonable interpretation" for choosing to place certain areas under subpart 1. Thus, where EPA has chosen to follow the presumptive statutory approach of placing all areas under subpart 2, EPA is not obligated to explain or justify why it has chosen not to explore other approaches.

The court in South Coast did leave open the pos sibility to implement the ozone NAAQS under subpart 1. For the 2008 NAAQS we are choosin g not to explore the subpart 1 option. For a future ozone NAAQS, EPA may consider an approach under subpart 1. For the 2008 ozone NAAQS, most of the areas designat ed nonattainment have design valu es close to the level of the NAAQS and under the subpart 2 cla ssification approach EPA is promulgating most of the areas will be classified as Marginal. The Marginal classification establishes minimal mandatory requirements, providing flexibility for areas to de velop and adopt additional measures if needed to attain the NAAQS. Furthermore, our analysis at the time of th e proposal indicated that most of the areas that we anticipat ed would be classified as Marginal had been designated nonattainment for the 1997 NAAQS nonattainment areas and are alr eady subject to subpart 2. Thus, these areas already have experience meeting the obligations of subpart 2.

To the extent the bulleted list of comments are not responded to above, we have the following

response:

• We disagree with the comments that the South Coast Court’s ruling regarding the reasonableness of EPA’s decision to place cert ain areas only under subpart 1 was limited to EPA’s placement of areas with an eight-hour design value in excess of 0.09 ppm. Rather, the court clearly states that this section of its opinion is reviewing EPA’s decision to place areas with a design value between 0.08 and 0.09 ppm in subpart 1. South Coast, 472 F.3d at 894 (“For areas with ozone levels between 0.08 and 0.09 ppm, the 2004 Rule overlaps with the gap recognized in Whitman . To this extent, the question under Chevron Step 2 is whether EPA’s interpretation, while not requ ired to ‘represent the best in terpretation of the statute, is reasonable.”).

• We agree that the Court in South Coast determin ed that in order to place areas with an 8-hour design value less than 0.09 ppm in subpart 1, EPA must set forth a reasonable basis. However, we disagree with the commenter that the purposes of the statute as set forth in section 101 of the Act (and which apply equally to subpart 2) provide a basis for choosing subpart 1 over subpart 2. Furthermore, we do not believe that there are features in subpart 1 that would enable more expeditious attainme nt of the 2008 ozone NAAQS. Under subpart 1 or subpart 2, all areas are re quired to attain the NAAQS as expeditiously as practicable, regardless of the maximum attainment date associ ated with the area’s classification. To the32 extent an area that would have a maximum attainment date la ter than 10 year s if placed under subpart 2 (i.e., would be classified as Severe or Extreme), it is still required to attain within 10 years if it is practicable to do so. And, if it is not practicable to do so, then arguably subpart 1 would not be a reasonable implementa tion approach for such areas. As to using subpart 1 as more reasonable way to address transport of oz one and its precursors, we note that the court rejected that rationale in South Coast , 472 at 894.

13

. Comment – EPA should require (or at least consider requiring) only compliance with subpart 1 for nonattainment areas with design values be low the 0.09 ppm because adoption of subpart 2 will result in delays in attainment.

One commenter (0053) stated that th e practical effect of classifyi ng areas as Marginal that cannot attain the NAAQS would be to delay developmen t of plans for improving air quality, which is

inconsistent with the CAA’s intent to attain air quality standards as expedi tiously as practicable.

13. EPA Response.

Our analyses indicate that most areas classified as Marginal will be able to attain the 2008 Ozone NAAQS by 2015. Based on our past experience with the 1-hour and 1997 8-hour ozone NAAQS, it is likely that there are some areas that will be classified as Marginal that will either request reclassification to a higher classification or will be reclassified to a higher classification by operation of law because they fail to attain the 2008 by the Marginal area attainment date.

For areas that are reclassified based on a failure to attain or for which a State requests a voluntary bump-up close to the Marginal area attainment da te, we agree that planning may occur slightly later than for areas that are initially classified as Moderate or higher. The later such an area is reclassified, the more the planning time will need to be compressed in order for the area to attain by the attainment date for the hi gher classification. Hopefully this will act as strong incentive for states to request a reclassificat ion as early as possible where evidence indicates that area is unlikely to attain. While subpart 1 does have the advantage from a planning perspective of requiring an attainment plan for all areas, we believe that most of the areas that are classified as Marginal will not need such a plan as they are expected to attain the 2008 ozone NAAQS

without additional local measures. We do not belie ve that imposing that time and resource cost on all areas is justified based on the fact that a few areas may not be able to attain by the Marginal area attainment date. Moreover, we do not believe that the choi ce of placing areas in subpart 1 only or in subpart 2 will likely aff ect when any particular areas atta ins the 2008 NAAQS. To the extent that States are motivated to ensure clean air for their citizens, they will take timely action regardless of which subpart applies. Similarl y, if political, economic or other pressures prevent a State from taking action to improve air quality, we do not believe that whether an area is placed under subpart 1 or unde r subpart 2 will counter those pressures. We note that under both subparts, ar eas are required to attain th e NAAQS “as expeditiously as practicable” regardless of the maximum attainment date.33 Rural nonattainment areas impacted by upwi nd contributions should not be classified under subpart 2.

14

. Comment – EPA should allow that rural, downw ind areas be subject only to the planning provisions of subpart 1 and not subject to the requirements of subpart 2.

One commenter (0031) stated that rural, downwind areas should be subject only to the provisions of subpart 1 and not subject to the requirement s of subpart 2. The co mmenter (0031) explained that there are several rural, downwind nonattainment areas that are overwhelmingly dominated by urban upwind transport, and that these ru ral downwind nonattainment areas could face potentially insurmountable difficulties demonstra ting reasonable further progress (RFP) required by subpart 2. The commenter (0031) stated th at the necessary emissions reductions for attainment must come from upwind nonattainment areas subject to subpart 2. The commenter (0031) believes that South Coast Air Quality Management District v. EPA , 489 F.3d 1245 (D.C. Cir. 2006) left the door open for EPA to make use of subpart 1 in the future under certain

circumstances.

14. EPA Response.

EPA appreciates the concerns of the commenter about nonattainment areas located in rural areas with few emissions sources. Section 182(h) c ontains specific provisi ons providing relief to “rural transport areas” under subpa rt 2. Specifically, any area that qualifies as a rural transport area is deemed to meet the requirements of subpart 2 if it meets the requir ements applicable to Marginal areas. We note, however, our analyses at the time of proposal i ndicates that there are

no rural areas that would be clas sified higher than Marginal under the classification approach we are adopting (and we believe the final design ation rule will also reflect this result)

Opposition to relying on subpart 1 and comple tely ignoring subpart 2 classifications.

15. Comment – EPA should require that all nonattain ment areas be classified under subpart 2.

One commenter (0054) stated that it supported subpart 2 classificati ons for all areas that are in nonattainment for the 2008 NAAQS, as this approach is consistent with the CAA and the Court’s

decision South Coast Air Quality Management District v. EPA , 472 F.3d 882 (D.C. Cir. 2006). The commenter (0054) stated that there is no lawful or ration al basis for EPA to follow the approach taken in its 2004 implementation rule of classifying only some nonattainment areas under subpart 2 and regulating the rema inder exclusively under subpart1.

15. EPA Response.

EPA acknowledges the commenter’s support of the proposed approach for classifying areas for the 2008 ozone NAAQS only under subpart 2. To the extent the commenter is suggesting that

the Court in South Coast held th at there is no lawful approach to placing certain areas solely under the planning provisions of subpart 1, we disa gree. The court in South Coast specifically

noted that the statute is not clear on its face th at areas with a design value between 0.08 and 0.0934 for the 1997 8-hour standard must be classified under subpart 2 and left open the door for the Agency to develop a reasonable basis for placing some or all of such areas solely under the planning obligations of subpart 1. While EPA has chosen not to adopt such an approach for the 2008 ozone NAAQS, it could choose to do so for a future ozone NAAQS.

Other subpart 2 Approaches for Classifying Areas.

16

. Comment – EPA should propose and solicit comment on at least two other options listed in one of its background information documents for cl assification of ozone nonattainment areas.

One commenter (0029) noted that EPA stated it evaluated many othe r methods but is not proposing them or soliciting comment on them b ecause it did not find them as compelling for application to the 2008 ozone NAAQS as the PATS approach. The commenter (0029) stated that

EPA should have solicited comments on at leas t two other options contained in the EPA document: “Background Information Documen t: Additional Options Considered for

Classification of Nonattainment Areas unde r the Proposed 2008 Ozone NAAQS (January 2012).” The commenter (0029) stated that EP A should have solicited comments on Option #1 (Ratio of Thresholds Method) and Option #6 (M ethod that would rely on the same proportion of areas in each classification as in the original 1991 classifications) because both options are reasonable for classifying areas under th e 2008 ozone NAAQS and set forth a reasonable timetable for attaining the standard fo r most areas of the United States.

16. EPA Response.

After evaluating the various classification options , EPA determined that the PATS approach was the appropriate one to propose for adoption for purposes of the 2008 ozone NAAQS. However, we did include in a Background Information Docume nt the various other approaches considered and while we did not specifically seek comment on those approaches, they were available in the record for the public to comment on them.

Concerning the Ratio of Thresholds approac h, as explained in the Background Information Document, this approach the design value threshol ds for the different classifications would vary depending on the years of data used. This is because the threshold for the extreme area classification would be based on the highest design value at the time of designation and

classification of areas and the thresholds for the ot her classifications would be adjusted from that value. The analysis of the hypothetical areas dem onstrated that the classi fication of a significant number of areas could change based on the year s of data used for designating areas. The classification change for an area was not depende nt on that area’s design value but on the design value of the one or two areas with the highest design value for the three- year period relied on. We believed that this approach provided too much uncertainty in light of the quick timeline we had for designating and classifying areas for the 2008 ozone NAAQS.

Option #6 in the BID would rely on the same proporti on of areas in each cl assification as in the original 1991 classifications. We believed that this approach was complicated by the fact that so many areas had design values close to the le vel of the NAAQS and, significantly, that many35 areas had the same design value. Thus, it w ould have been difficult to include the same percentage of areas in each classification as were included in 1991 unless some areas with the same design value were placed in different classi fications. For example, this approach would require 42% of the areas to be classified Ma rginal to match the 42 of 101 areas designated nonattainment for the 1-hour ozone NAAQS at the time the CAA Amendments of 1990 were enacted. Using that same percentage, 22 of the hypothetical 52 areas would n eed to be classified as Marginal. The hypothetical areas were ra nked in ascending design values. The 2008-10 design value had 11 areas with a 0.076 ppm desi gn value, 8 with a 0.077 ppm design value and 6 with a 0.078 ppm design value. Thus, for the six areas with a design value of 0.078 ppm, EPA would have to make a judgment call on whether to include all six as Marginal, which would result in 25 Marginal areas; include all as Mode rate, which would result in 19 Marginal areas; or

to determine which three of the six to include as Marginal and which three to include as

Moderate. We believe that this method to dete rmine threshold cut points would require more judgment in setting the classifica tion than the CAA contemplated.

17. Comment – EPA should adopt a modified Ratio of Threshold approach recommended by the commenter (0044).

Some commenters (0044, 0049) suggested adopting a modified Ratio of Threshold approach. The commenters (0044, 0049) presented extensive fo rmulas to use, which, when applied, would

result in the classification areas being more evenly dist ributed among the classification categories. The commenter’s version of th e Ratio of Thresholds approach would set the extreme threshold at 0.110 ppm instead of based on the highest design value for an area at the time of designation. Both the Ratio of Thres hold and the modified version suggested would

result in one extreme area.

17. EPA Response.

As explained in the Background Information Docu ment, we anticipated th at under the Ratio of

Threshold method the extreme threshold would be 0.112 ppm, which is the highest design value in 2008-2010. The rationale for this approach was to use the actual design value for an area that would ensure that one area is placed in the highest classification pr ovided under Table 1 in section 181(a). Thus, the design value for the ar ea with the highest design value at the time of designations would be the threshold that would se rve as the basis for then calculating thresholds

for the other classifications. The commenter doe s not explain the basis for selecting 0.110 ppm as opposed to a different level that might also re sult in one area being classified as extreme. Because the design value selected would have a significant effect on the lower classification thresholds, we believe that there should be some basis for the level selected. While we would not rule out using the Ratio of Thresholds method as provided in the BID or the modified version as suggested by the commenter for a future ozon e NAAQS, we believe that we would need to give more consideration as to how the extreme ar ea threshold is set in order to ensure it is not perceived as arbitrary.

18. Comment – EPA should reconsider and seek co mment on the “ratio-of-thresholds” approach.36 One commenter (0044) noted that EPA considered the “ratio of thresholds” approach, which is identified as Option 1 in the EPA document: “Background Information Document: Additional Options Considered for Classification of N onattainment Areas under the Proposed 2008 Ozone NAAQS (January 2012).” The commenter (0044) noted that EPA explained that it considered the option because a number of commenters on th e implementation rule for the 1997 ozone NAAQS

recommended that EPA consider a classification approach that w ould place more areas in higher classifications in order to provide maximum ti meframes for areas to attain. However, the commenter noted that EPA decided not to propose the method, in part, because the result would vary depending on the years of data used for th e design values in calculating the ratios for the 2008 ozone NAAQS. The commenter (0044) stated that it did not agree with EPA’s reasoning, as the ozone situation has changed and the use of the ratio of thresholds would result in more control programs across the country includi ng upwind States that impact Delaware.

The commenter (044) is expres sing a preference for the Ratio of Thresholds or a similar classification method. The commenter prefer s having more areas classified in higher classification categories, as compared to the PATS method. The commenter believes that classifying areas in higher classifications will result in more areas being subject to mandatory control programs in area s upwind of Delaware.

18. EPA Response.

We have explained in previous responses out concerns about using th e Ratio of Threshold approach for the 2008 ozone NAAQS. We have al so addressed in previous responses concerns

from some commenters that more areas should be subject to more stringent controls in order to provide ozone reductions that will help downwind areas. As we noted previously, the structure of the Act provides for States to address interstate transport inde pendent of whether areas in the state are designated nonattainment or, if desi gnated nonattainment, what nonattainment planning provisions apply to the area.

II. Voluntary Reclassification

Support for EPA’s voluntary bump-up approach.

19

. Comment – EPA should allow areas’ requests for voluntary nonattainment reclassifications to higher classifications (bump-ups) under the 1997 oz one NAAQS to automatically apply to the 2008 NAAQS unless otherwise requested by a state.

Many commenters (0022, 0030, 0031, 0033, 0039) stated that they supported EPA’s proposal to allow areas that requested volunt ary reclassifications to higher classifications (bump-ups) under the 1997 ozone NAAQS to automatically a pply the bump-up to the 2008 NAAQS unless otherwise requested by a state.

One commenter (0022) specifically stated that for those areas th at requested a voluntary bumpup in classification for the 1997 ozone NAAQS, it is preferable to grant th ese areas an automatic37 bump-up at the outset of the designa tion process rather than to adju st the thresholds to place all nonattainment areas in higher classifications.

One commenter (0030) specifically explained that in 2008, it request ed that EPA reclassify its county up one level from a Moderate nonattainmen t area to a serious nona ttainment area. The commenter (0030) explained that it made this re quest because it was obvious that more time would be required to attain the 1997 ozone NAAQS . The commenter (0030) reasoned that it will also need the time afforded by a serious classi fication to meet the more stringent 2008 ozone NAAQS and that EPA’s proposal regarding voluntary bump ups w ould give it that time.

One commenter (0033) specifically r easoned that if EPA were to set initial classifications for the 2008 NAAQS based on design values levels alone, th en areas that voluntarily reclassified under the 1997 8-hour standard could end up with an earlier attainment date for a more stringent standard; this situation of repeated voluntar y reclassification request s, and any resulting

contradictions in classificatio n-based CAA requirements would be difficult to communicate to the public.

One commenter (0039) stated th e Houston-Galveston-Brazoria ar ea requested a voluntary bumpup on the 1997 ozone NAAQS, but will not want to be in a higher classification under the 2008 ozone NAAQS. The commenter (0039) supported EPA’ s approach inasmuch as it gives state the ability to opt out of the automatic bump-ups. Another commenter (0047) stated that EPA ‘s voluntarily bump-up approach is appropriate in that requests for voluntarily bump-ups granted under the 1997 ozone NAAQS do not automatically apply to the 2008 ozone NAAQS when a state requests otherwise, and specifically stated this aspect of the proposal makes sense for the

Houston-Galveston-Brazoria area.

19. EPA Response.

We appreciate the support of the commenters.

Opposition to EPA’s voluntary bump-up approach.

20

. Comment – EPA should clearly articulate the CAA authorit y for EPA’s voluntary bump-up approach.

One commenter (0037) stated that EPA had correc tly identified the three legal mechanisms the CAA provides for changing the classificati on (i.e., CAA §184(a)(4), CAA §181(b)(2), CAA §181(b)(3)). The commenter (0037 ) further noted that EPA pr ovided another option, which consisted of allowing areas that requested volun tary nonattainment reclas sifications to higher classifications (bump-ups) under the 1997 ozone NAAQS to au tomatically apply to the 2008 NAAQS unless otherwise requested by a state. The commenter ( 0037) stated that EPA should clearly articulate the CAA authority for this new method. The commenter (0037) noted that states could always prepare another CAA 181(b)(3) voluntary re-classificati on request. The commenter (0037) further noted that some areas such as th e Houston-Galveston-Brazoria nonattainment area have indicated they do not wi sh for the voluntary re -classification requests38 for the 1997 ozone NAAQS to apply to th e 2008 ozone NAAQS, as control measures implemented improved air quality much faster than anticipated.

20. EPA Response.

CAA section 181(b)(3) allows a state to volun tarily request that the EPA reclassify a nonattainment area to a higher classificati on. A number of areas requested voluntary reclassifications under the 1997 NAAQS. Several of the areas that requested, and received, a voluntary reclassification would ini tially have been classified with a lower classification with an

earlier maximum attainment date for the more stringent 2008 NAAQS than the area had for the 1997 NAAQS. We believe it likely that these areas would as a result have requested a similar reclassification for the 2008 NAAQS. The EPA is obligated to approve such voluntary reclassification requests if made . EPA therefore proposed to trea t prior requests as also being requests with respect to the 2008 NAAQS unless a st ate indicated that EPA should not take that interpretation. This approach reduces the burde n on states by obviating the need to go through a separate process to request bump-up for the 2008 NAAQS but also allows them to opt out of this approach by requesting during th e comment period on this proposed rule that EPA not interpret their previous request to apply for purposes of the 2008 ozone NAAQS. We note that Texas has requested that we not interp ret the voluntary bump-up request for Houston for the 1997 ozone NAAQS to apply for purposes of the 2008 ozone NAAQS, while California has commented that it supports this approach. Thus , we are treating the previous bump-up request for areas in California to apply for purposes of the 2008 ozone NAAQS, and interpreting the previous request by Texas for Houston to not apply, consis tent with both the pr oposal and the states’

requests.

Recommendations to expand EPA’s voluntary bump-up approach.

21

. Comment – EPA should also allow nonattainment areas to opt into a previous classification allowed under the previous 1997 ozone NAAQS cla ssification , provided th at the classification is higher than the classification sugge sted for the area by the 2008 ozone NAAQS.

One commenter (0031) noted that EPA proposed to bring forward previous, voluntary bump-ups from the 1997 NAAQS, and stated that the nonatta inment areas in California include Ventura County, South Coast, San Joaquin Valley, Rive rside, and Sacramento Metropolitan. The commenter (0031) stated that it s upported this proposal but recognized that it did not address all areas that may need to request that they be put in a higher cl assification than suggested by the proposed PATS approach. Consequently, the co mmenter (0031) suggested that nonattainment areas be allowed to opt into a classification th at the area could have bumped into under the 1997 ozone NAAQS, provided that the cl assification is higher than the classification suggested for the area by the 2008 ozone NAAQS PATS approach. Th e commenter (0031) stated that it makes sense that if an area previously held a high cl assification for a less st ringent standard, that

classification should be available to the area, on an opt-in basis for a more stringent standard. The commenter (0031) stated that this would allow the former S outheast Desert areas (Antelope Valley, Western Mojave Desert, and Coachella Valle y) access to the severe classification. The commenter (0031) reasoned that this avoids a quirk in the law that precludes these districts from39 requesting a bump-up to severe, which is th e classification they had under the 1997 ozone NAAQS.

21. EPA Response.

Any area that concludes it cannot attain a standa rd by the attainment date corresponding to its classification can request a volun tary reclassification under sec tion 181(b)(3) which EPA would have to approve. Thus, the three California s outheast desert areas could request a bump-up to severe under this pr ovision of the Act.

III. Attainment Deadlines for Nonattainment Areas

Support for adopting Option 1 (attainment da te running from the effective date of designation) and Opposition to Option 2 (a ttainment date running from December 31)

22

. Comment –EPA should adopt Option 1 for determin ing the timing of attainment deadlines for

classified areas.

A few commenters (0032, 0038, 0050) stated that EPA should adopt Option 1 for determining the timing of attainment deadlines for classified areas.

Commenters (0032, 0034, 0050) stated that a plain reading of the CAA, section 181 presupposes an attainment deadline precisely 3 years, or consecutive 365-day periods , after the designations become effective, and EPA established the 1997 NAAQS attainment deadlines using this identical approach. One comme nter (0032) does not support de lays for meeting the ozone standard beyond the statutory requirements set out in the CAA. One commenter (0034) stated that EPA previously stated in a rulemaki ng to implement the 1997 ozone NAAQS, “We do not believe we have authority to change the [oz one NAAQS] attainment da tes to November or December [from June 15] of the attainment year as several commenters requested.”

Commenters (0032, 0038) suggested adopting Opti on 1 because adopting Option 2 would result in further delays in areas being re quired to attain the 2008 ozone NAAQS.

22. EPA Response.

As written, Table 1 in section 181(a) would produce an absurd result if applied for purposes of the 2008 ozone NAAQS since the attainment dates fo r all classifications under that Table have now passed. Where application of the statute, as written, woul d produce an absurd result, EPA has discretion to develop a reasonable interpreta tion. We believe Option 2, which assures each nonattainment area will be afforded 3, 6, 9, 15, or 20 full ozone seasons after the date of designation to attain the NAAQS, is a reasonable approach. It adopts the time periods in the statute (3, 6, 9, 15 or 20 years for each of the five classifications) and instead of running such

timeframes from the date of enactment of th e CAA Amendments of 1990 as provided in the statutory table, runs those date s from the end of the calendar year of the year in which the designations occur. We believe th is approach is appropriate for se veral reasons. First, we believe40 that option 2 is consistent with the intent of Congress at the time the CAA Amendments of 1990

were enacted. Since ozone seasons for most areas run during the spring, summer and fall, 17 the Act, as amended in 1990 allowed marginal areas th ree full ozone seasons to attain and maintain the NAAQS (and six full ozone seasons for modera te etc.) after the time that areas were designated and classified by operation of law at the time of enactment of the CAA Amendments. This approach also is consistent with the re gulatory provisions spec ifying how to determine whether an area has attained the 2008 ozone NAAQS , which require an evaluation of monitoring data from 3 consecutive calendar years runni ng from January 1 to December 31 of each year.

In addition, some states with Ma rginal areas may need to adopt measures beyond federal or state measures already in place in or der to attain within 3 years (b ased on 2012-2014 air quality data). Under the option 1 approach (attainment da te running from the effective date of designation),these states would have 18 to 21 months 18 to adopt and implement such measures by no later than the beginning of the 2014 ozone seas on. This is less time than such areas had for purposes of the 1-hour ozone standard under the CAA as amended in 1990. At that time, States with Marginal areas had over two years to adopt and implement such measures prior to the final ozone season used for purposes of determining attainment. 19 The option 2 approach would provide more time for states with Marginal areas to complete the rulemaking process to adopt and implement additional local measures if neede d, and it would thus be consistent with the 1990 CAA amendments in providing 3 full ozone seasons for Marginal areas to attain the NAAQS.

We recognize, as stated by the commenters, that at the time we interpreted the section 181(a) Table for purposes of the 1997 ozone NAAQS that we established attainment dates consistent with Option 1 in this proposal. At that time , we did not focus on the fact that by running the

attainment date from the effective date of de signations areas would esse ntially be required to

attain the standard six months earlier than the “attainment dat e” since attainment is based on three full calendar years of data. Thus, for the 1997 ozone NAAQS, the marginal area attainment date was effectively December 31, 2006 and we determined whether marginal areas attained the 1997 ozone NAAQS based on air qu ality data from calendar years 2004, 2005 and 2006. Based on experience with implementing the 1997 ozone NAAQS, we proposed two options for attainment dates for the 2008 ozone NAAQS – neither of which truly gives an area

17 A few of the most southern areas in the country do ha ve a year-round ozone season. For purposes of the 1-hour NAAQS, EPA effectively interpreted the November 15 attainment date as the end of the calendar year (i.e., the end of calendar years 1993, 1996, 1999, 2005, 2007 and 2010) for these areas.

18 The ozone season for all areas of California, Nevada, Arizona, Southern Texas, and Southern Louisiana starts in January, which would provide 18 months for areas classified as marginal in such states to adopt and implement any

additional measures needed for attainment. The ozone seas on for all areas of Colorado , Northern Texa s, Northern Louisiana, Alabama, Mississippi, Georgia, Florida, Tennessee, and Kentucky starts in March, which would provide 20 months for areas classified as marg inal in such states to adopt and impl ement any additional measures needed for attainment. The ozone season for all other areas designated nonattainment for the 2008 NAAQS begins in April, which would provide 21 months for areas classified as marginal in such states to adopt and implement any

additional measures needed for attainment.

19 The same is true for the higher classifications. For example, under Option 1, moderate areas would have approximately 4 1⁄2 years to adopt and implement measures necessary to attain the 2008 ozone NAAQS (i.e., no later than the beginning of the 2017 ozone season, which would be the final ozone season relied on for attainment), whereas at the time of the CAA Amendments of 1990, Moderate areas had approximately 5 years to adopt and implement measures prior to the beginning of the 2006 ozone season, which was the final ozone season considered for determining whether an area attained by the November 2006 Moderate area attainment date.41 three 365-day periods from the effective date of designations to attain the NAAQS. Option 1 would effectively give areas 2 1⁄2 years (i.e ., from mid-2012 until December 2014) and Option 2 would give areas effectively 3 1⁄2 years to attain the NAAQS (i .e., from mid 2012 until December 2015). In light of the fact that at the time th e CAA Amendments of 1990 were enacted, Congress believed that marginal areas would have three fu ll ozone seasons in which to achieve reductions to attain the NAAQS, we believe Option 2 is a reasonable interp retation as it gives areas three full ozone seasons in which to attain. Similarly, Option 1, which is the approach that we adopted for the 1997 ozone NAAQS, is also a reasonable inte rpretation because it is consistent with other statutory provisions th at run the attainment date from the time of designation (see 69 FR 23951, April 30, 2004). Here, EPA conclude s that providing areas three full ozone seasons to attain is a reasonable interpretation because it gives effect to the time periods established by Congress and applies them in a manner consistent with how t hose periods functionally applied at the time of

enactment of the 1990 Amendments. We note th at areas are still required to attain as expeditiously as practicable.

To the extent the commenters are suggesting that in the Phase 1 rule establishing classifications for the 2004 ozone NAAQS that EPA concluded th at Option 2 is unsupportable under the Act, we disagree. EPA made genera l statements that we could not extend the attainment period simply to allow areas to take credit for federal or regional measures expected in the future, but

we did not address the narrow i ssue of whether the time periods for attainment could run from the end of the year in which designations occu rred. We continue to believe (as we did for purposes of the Phase 1 Rule) that although the st atutory provision as ap plied would produce an absurd result, that does not give EPA broad disc retion to establish different attainment periods than specified in Table 1. In other words, EPA cannot establis h attainment periods outside of those contemplated by Congress in enacting section 181(a) simply in order to allow areas to take advantage of federal and regional controls that will achieve continuing ozone reductions over

many years.

We acknowledge for each classification that Option 2 results in data from one later calendar year being used to determine compliance with the ma ximum attainment deadline than Option 1(for example, calendar year 2015 for Marginal areas). However, areas are required to attain the standard “as expeditiously as pr acticable,” so an ar ea that can attain sooner than the maximum deadline is required to do so.

23

. Comment – EPA should not adopt Option 2 for dete rmining the timing of attainment deadlines

for classified areas because it will result in delays in areas reaching attainment with the 2008 ozone NAAQS and endanger public health.

A few commenters (0038, 0054, 0060) stated th at EPA should not adopt Option 2 for determining the timing of attainme nt deadlines because it would re sult in further delays in areas being required to attain the 2008 ozone NAAQS.

One commenter (0038) stated that adopting Option 2 would furthe r delay the initial expedited implementation schedule proposed back on J une 20, 2007 that would have resulted in designations in March 2010 , and consequently, ther e is already an effective delay of two years.42 The commenter stated that reducing that delay by using Option 1 will provide greater protection of public health.

Another commenter (0060) stated that designations were due in March 2011 and attainment according to the CAA for Marginal areas would follow in three years (i.e., March 2014). The commenter (0060) explained that that scenario would have meant that attainment decisions

would have been made on the basis of 2011- 2013 ozone data. However, the commenter (0060)

stated that EPA’s new schedule of finalizi ng designations by August 2012 means that there would be one full year delay from the manda tory CAA requirement. The commenter (0060) further reasoned that Option 2 would be ba sed on ozone season data of 2013-2015 or an additional year delay beyond the prior one. The commenter (0060) stated that this is an unacceptable outcome and contrary to the CAA notion of meeting the NAAQS as expeditiously as practicable.

Another commenter (0054) stated that EPA’s pr oposed approach also arbitrarily endangers public health. The commenter stated that one eff ect of extending the attainment date to the end of the calendar year is to delay reclassification of areas that fail to attain by the deadline, thereby also delaying the stronger an ti-pollution protections that co me with reclassification. The commenter (0054) stated that, in ar eas that continue to violate the standard, a delay of attainment from August to December will mean a delay of at least four months in the enhanced health protections mandated by the CAA, and there is no possible justification for this delay. The commenter (0054) stated that EPA needs to focu s on expediting protecti on of people’s health, not on providing maximum leeway to the states.

The commenter (0054) stated that EPA’s prefe rred approach would furt her violate the CAA by illegally delaying reclassification of areas that fail to attain within the outside timeframes specified in the Act, and that EPA’s approach would forestall the requir ed reclassification by up to one year beyond the deadlines specified in the statute.

23. EPA Response.

As noted in response 22, EPA finds that option 2 (end of calendar year) is a reasonable approach because it provides areas with the same number of ozone seasons for attainment as provided for

areas at the time of the 1990 CAA amendments. We also note that the CAA still requires all areas to attain the NAAQS “as e xpeditiously as practicable.”

To the extent that commenters raise concerns about when designati ons should have been promulgated, we do not believe that is releva nt for purposes of interpreting the maximum

attainment dates Table 1 in secti on 181(a) for the subpart 2 classifi cations. In order to attain the NAAQS, areas classified as Moderate and higher will need to adopt additi onal local controls and will need sufficient time to adopt and implement such measures. We do not believe that we have the authority to shorten the time Congress intended to provide States for those activities because we did not issue designations w ithin the time contemplated by the Act. We note that even though designations were delayed beyond the statutory timeframe, areas designated nonattainment for the 2008 ozone NAAQS conti nue to see reductions in ambient ozone

concentrations due to benefits of federal and regional programs. Moreover, many of these areas43 are also designated nonattainment for the 1997 8-hour ozone NAAQS an d are continuing to implement measures to meet that standard as ex peditiously as practicable . Thus, it is unlikely that such areas could adopt and implement additional “practicable” measures to address ambient

ozone concentrations in the short term. For thes e reasons, we do not agree that public health is not being adequately protected or that setting the maximum attain ment date at the end of the calendar year will delay public heal th protection. To the extent any area fails to attain the standard by the maximum date for its initial classification for the 2008 ozone NAAQS, such area would be reclassified to a highe r classification. Again, even afte r reclassification, areas remain obligated to attain as expedi tiously as practicable.

24

. Comment – EPA should not adopt Option 2 for dete rmining the timing of attainment deadlines for classified areas because EPA has no lega l authority under the CAA to adopt Option 2.

One commenter (0054) stated that EPA should not adopt Option 2 for determining the timing of

attainment deadlines for classified areas because EPA has no legal authority to adopt Option 2. The commenter (0054) stated that the statute explic itly sets out attainment dates in terms of fixed

time frames from enactment of the 1990 amendmen ts, and from designation and classification of nonattainment areas. The commenter (0054) stated that the CAA does not allow EPA to extend these time frames by deferring the start of the statut ory clocks to the end of the calendar year in which designation and cl assification occur.

One commenter (0054) noted that EPA suggested th at its approach is co nsistent with the 1990 CAA amendments because those amendments made designations and classifications on the enactment date, November 15, 1990, thereby giving st ates a full ozone seas on in the attainment year before the attainment dead line. The commenter (0054) stated that the plain la nguage of the statute, however, should control over EPA’s gr oundless attempt to infer meaning into the happenstance that the 1990 amendments were en acted in November instead of some other month. The commenter (0054) reasoned that Cong ress most certainly did not mean to stall the

attainment deadlines to the end of the calendar years is further shown by the fact that (1) the

attainment deadlines are “as e xpeditiously as practicable,” showing that Congress plainly contemplated that states would have to attain so oner than the outside dates in some cases and (2) Congress expressly provided in CAA§181(b) that areas initially designated “attainment” that were later redesignated “nonattainment” would have outside a ttainment dates stated as fixed numbers of years after their rede signation – regardless of when in the year that redesignation happened to occur.

The commenter (0054) further stated that EPA’s rationale is furthe r flawed because not all areas

have a summertime ozone season. The commente r (0054) further explained that Wyoming, for example, suffers ozone violations in the wint er, and EPA has also f ound evidence of wintertime ozone violations in Utah. The commenter (0054) stated that high ozone levels sometimes occur in Spring and Fall in Blount County, Tennessee, in the Great Smoky Mounta ins National Park, as

shown in an attached data chart. The commenter (0054) further stated that, even in states where ozone is mostly a summertime problem, the ozone monitoring season often runs until October, or in some cases December. The commenter (0054) furt her stated that Califo rnia and Arizona have year-round ozone monitoring requirements. The co mmenter (0054) concluded that for areas that experience ozone violations in January, Febr uary or March (or October, November or44 December), EPA’s rationale that an August atta inment would be near the end of the ozone season is wholly unsupportable.

24. EPA Response.

We agree with the commenter that other provisi ons of the CAA, such as section 172(a)(2)(A) and 181(b) link the attainment date to the time of designation or reclassifi cation. However, those provisions are not directly applicab le here and thus are not contro lling. As provided in previous responses, direct application of the attainment da tes in Table 1 would produce an absurd result. Because direct application of the statute would pr oduce an absurd result, EPA must interpret this provision for purposes of the 2008 ozone NAAQS. We do not believe that th is gives the Agency

broad discretion to estab lish attainment periods de novo. Instea d, we must look to the statute and Congressional intent to dis cern a reasonable inte rpretation. For the reasons provided in Response 22, above, we believe it is reasonable to run the statutory periods for the 2008 ozone NAAQS from the end of calendar year 2012, which is the year in which the designations occur.

We also recognize that not all areas have a summertime ozone season and some areas can have high ozone levels in early spring, late fall or ev en the winter. We believe that this further supports having the attainment date fall at the end of the calendar year. Th is will ensure that all areas will have three (or six, etc for Moderate and above) full ozone seasons after designation to achieve reductions necessary to attain the NAAQS, assuming that one or more areas cannot attain more expeditiously.

We note that in making determinations of whethe r areas have actually attained under the 1-hour NAAQS for areas with year-round monitoring seasons, EPA did use December 31 of the attainment year (rather than the year prior to the deadline year) as the operative deadline. One example is Phoenix, AZ. In February 2000, the State of Arizona requested that EPA make a finding that the Phoenix metropolitan nonattainme nt area had attained the 1-hour ozone NAAQS by the applicable ‘‘Serious’’ area attainment date of November 15, 1999 based on 1997–1999 ozone monitoring data. In May of 2000, we pr oposed such a finding (see 65 FR 31859, May 19, 2000) and approximately one year later, we publis hed a final attainment determination for the 1- hour ozone NAAQS. See 66 FR 29230 (May 30, 2001). Similarly, EPA approved attainment demonstration SIPs for areas with year-round ozone seasons where such demonstrations supported attainment in the attainment year . See 62 FR 1150, January 8, 1997 and 65 FR 18903, April 10, 2000 for the approval and amended approva l, respectively, of the SIP demonstrating 1- hour ozone attainment for South Coast, San Di ego, San Joaquin, Sacramento, Ventura and the

Southeast Desert.

Support for Option 2 and Opposition to adopting Option 1

25

. Comment – EPA should adopt Option 2 for determin ing the timing of attainment deadlines for

classified areas.

Many commenters (0018, 0019, 0020, 0021, 0022, 0023, 0024, 0025, 0026, 0028, 0029, 0030, 0031, 0033, 0035, 0037, 0039, 0040, 0041, 0042, 0043, 0045, 0046, 0047, 0048, 0052. 0056,45 0057, 0055, 0061) supported adopting Option 2 for de termining the timing of attainment deadlines for areas designated nonattai nment and classified under subpart 2.

Many commenters (0022, 0025, 0026, 0028, 0029, 0030, 0031, 0033, 0035, 0039, 0040, 0042, 0043, 0045, 0046, 0047, 0056, 0057, 0061) stated that adopting Option 2 would ensure that

there would be data for three full ozone seasons for Marginal areas (or 6 for Moderate, etc.) to utilize for attaining the standard.

Many commenters (0018, 0019, 0023, 0028, 0039, 0040, 0041, 0043, 0045, 0046, 0057, 0061) stated that by providing the extra year of oz one data, EPA allows the full amount of time allocated in the CAA for implemented strate gies and programs to impact ambient ozone concentrations. One commenter (0019) stated that allowing Marginal areas three full years after designation, and Moderate areas six full years after designation, to attain the sta ndard will allow areas an additional year to benefit from rules al ready in place such as the Tier 2 Vehicle and Gasoline Sulfur Program and 2007 Heavy-Duty Highway Rule. One commenter (0018) specifically stated that Option 2 would provide a little more time for the emission reductions expected from CAIR and CSAPR to be consider ed. One commenter (0041) stated that it makes

sense that ozone attainment deadlines account fo r emission reductions from the newest, cleanest, mobile sources purchased thr oughout the year as EPA continue s to pursue cleaner emission standards for vehicles, trucks, and non-road mobile equipment, and it makes sense that monitored readings account for air quality improvements from such programs for as long as possible prior to attainment deadlines.

Several commenters (0018, 0021, 0022, 0026, 0031, 0037, 0040, 0045, 0046, 0061) stated that the deadlines specified by Option 2 are most cons istent with subpart 2 because it allows (for Marginal areas) three full ozone seasons af ter designation for attaining the NAAQS. One commenter (0055) further stated th at Option 2 is consistent with the time periods provided for attainment of the 1-hour ozone NAAQS at th e time the CAA was amended insofar as the 1990

Amendments were enacted after the end of the ozone season for virtually all areas. The commenter (0055) further stated th at subpart 2 does not limit EPA’ s discretion in this regard by, for example, specifying that attainment deadli nes for areas classified under subpart 2 always must be based on a “time period running from the effective date of designation.” With the datecertain attainment deadlines spec ified in Table 1 of subpart 2 no longer applicable, it cannot be said that “Congress has directly spoken to the pr ecise question at issue” he re (i.e., what are the attainment deadlines for the 2008 Ozone NAAQS?) or that the provisions of CAA §181 reflect “the unambiguously expressed intent of Congress” on that precise question. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-43 (1984). Thus, the commenter (0055) believes that EPA at a minimum has discre tion to adopt its preferre d option if that option “is a reasonable policy choice for the agency to ma ke.” For the reasons discussed in the proposed rule, the commenter (0055) stated that EPA-pr eferred option is an em inently reasonable – indeed, the most reasonable – policy choice and shoul d be adopted for any 2008 Ozone NAAQS

nonattainment area.46 25. EPA Response.

EPA finds that option 2 (end of calendar year) is a reasonable approach because it provides

areas with the same number of ozone seasons for attainment as provided for areas at the time of

the 1990 CAA amendments. We also note that th e CAA still requires all areas to attain the NAAQS “as expeditiously as practicable.” EPA acknowledges the commenters who believe that EPA should adopt Option 2 for determining the a ttainment deadlines for areas classified under CAA, Title I, Part 2, subpart 2. For the reasons explained in the prior responses EPA agrees that option 2 is reasonable and is adopting that approach.

26

. Comment –EPA should not adopt Option 1 for dete rmining the timing of attainment deadlines for areas classified under CAA, title I, part D, subpart 2.

Several commenters (0018, 0020, 0026, 0030, 0035, 0039, 0056) stated that they did not support the adoption of Option 1 for determining the a ttainment deadlines for areas classified under subpart 2.

Commenters (0030, 0035, 0039) specifically stated that adopting Option 1 may disqualify air quality data from an area’s an ticipated attainment year from being considered because ozone seasons often extend well beyond the month of A ugust, and thus, the attainment determination for the area would have to be based on the prior three full years of air quality data, which might result in a finding of continued nonattainment when in fact the area has atta ined the standards.

Commenters (0018, 0026, 0056) stated that adopting Option 1 would result in the scenario where Marginal areas would only have 2 full ozone seasons to reach attainment rather than the 3 years intended under the original classification approa ch outlined in the CAA. One commenter (0021) further stated that, for example, a Margin al nonattainment area with an August 15, 2015 attainment deadline would need to use air qu ality data from 2012, 2013, 2014 ozone seasons to

demonstrate attainment of the standard and w ould not be able to consider any air quality improvements that would occur afte r the 2014 ozone season and during 2015.

One commenter (0039) further st ated that significant new fe deral on-road emission reduction measures will take effect in 2014 and yield oz one reductions in 2015, and Marginal areas will not be able to take advantage of the impact of these reductions under the first option, which is particularly significant because EPA estimates that the vast majority of all nonattainment areas (43 out of 52) will be classified as Marginal.

26. EPA Response.

EPA acknowledges the concerns of the commente rs who believe that EPA should not adopt Option 1 for determining the attainment deadlines fo r areas classified under CAA, Title I, Part 2, subpart 2. For the reasons explained in the prio r response EPA agrees that option 2 is reasonable and is adopting that approach.

While it is true that Option 2 would allow States to take credit for federal programs, such as federal on-road emission reductions, for one more year than would option 1 as provided in47 Response 22 above, we do not believ e that this is a basis for a dopting Option 2. Measures such as the on-road emission reduction program will get continuing emission reductions for many years to come and setting attainment deadlines to allow areas to rely on credit for such programs would result in deadlines significantly extende d beyond the periods contemplated by Congress when it enacted Table 1 in Section 181. Thus, we do not think that re lying on reductions from programs that are phased in over ti me would result in reasonable a ttainment dates in light of the general intent of Table 1 and the requirement that areas attain as expeditiously as practicable.

Opposition to delaying the st art of the atta inment clock.

27

. Comment –EPA should not delay the start of the a ttainment clock until the “effective date” of the nonattainment designation.

One commenter (0054) noted that adopting Option 1 would provide that the attainment date would be set as expeditiously as practicable, but not later than the appl icable number of years

after the “effective date ” of the nonattainment designation of the area. The commenter (0054) stated that while Option 1 comes closer to comp lying with the statute than Option 2, Option 1 is unlawful because it delays the start of the attainment clock until the “effective date” of the nonattainment designation. The commenter (0054) st ated that the CAA sets out attainment dates when areas are first designated nonattainment in terms of fixed time frames after “designation” or “classification,” not after the “effective dat e” of designation or clas sification. Moreover, the commenter (0054) stated that CAA §107 mandates that EPA “pro mulgate” designations within specified timeframes (all of which have pa ssed for the 2008 ozone NAAQS, but does not allow EPA to “defer” such promulgations via the ar tifice of a “deferred” effective date. The commenter (0054) noted that the term “promulg ate” means “to put into operation (e.g. a law, decree of court, etc.) by formal proclamation, and thus, Congress plainl y contemplated that designations would become operativ e on the date that they were due. Further, the commenter (0054) stated that Congress expre ssly provide that ozone attainme nt clocks would start at the instant of enactment of the 1990 CAA amendments, and therefore, the time frames in Table 1 of subpart 2 were meant to start at the time that st ates were put on notice of the designations and classification. Consequently, th e commenter (0054) stated that EPA has no legal authority to lengthen the time periods specified in Table 1 of subpart 2 by some additional time period equaling the time by which the agency has “defer red” the effective date of designations or

classifications.

27. EPA Response.

We disagree with the commenter that the CAA ma ndates that attainment dates in subpart 2 must run from the date the designations are signed. As an initial matter, the attainment dates in subpart 2, as set forth in sect ion 181(a), run a period of years from November 15, 1990, the date of enactment of the CAA Amendments of 1990. Thus, the language that the commenter relies on to support their position is not re levant. The language the commenter relies on is that in section 172(a)(2)(A) in subpart 1, which spec ifies that the attainment date for areas subject only to the planning provisions of subpart 1 runs “from the date such area was designated nonattainment.” Although that provision is not app licable here, where all areas are classified under subpart 2, we note that this provision is not clear whether th e attainment date must run from the date the48 designation is signed or is promul gated (i.e., signed and widely di sseminated) or whether it runs from the effective date of the designations. This section uses neither the word “promulgate” nor the term “effective date,” leaving open for inte rpretation what the approp riate starting point is. We believe that provision can be reasonably in terpreted to mean the effective date of the designations. And, we have historically inte rpreted it as such. See, 40 CFR 51.902, Table 1 (specifying that the attainment periods in th e Table for the 1997 ozone NAAQS are “years after

the effective date of nonattainment desi gnation”) see also 75 FR 71033 and 76 FR 72097 (establishing the effective date of the designa tions for the lead NAAQS, which were signed on November 16, 2010 and November 8, 2011, as December 31, 2010 and specifying that the attainment date is December 31, 2015).

However, in this case, the issue posed by the co mmenter is not raised since the ambiguous phrase “designated nonattainment” is not us ed in section 181(a) which instead specifies a precise date as the starting point. As provided in Response 22 above , direct application of that date for purposes of the 2008 ozone NAAQS would produce absurd resu lts and we believe we have discretion to interpret the starting date for attainment periods specified in Table 1 in section 181(a) and have

done so in a reasonable manner.

Appropriateness of Deadlines due to Upwind Contributions

28

. Comment –The deadlines that EPA proposes for meeting the 2008 ozone NAAQS are not attainable due to upwind contributions to downwind nonattainment areas.

One commenter (0020) specifically stated that it is not legal or equitable for EPA to require

downwind areas to meet an attainment deadline when it is still being subjected to significant contributions from upwind, out-of-state sources . The commenter (0020) supported its position with a ruling from a 2008 case in the U.S. Court of Appeals for the D.C. Circuit 20 , which held that EPA must require the elim ination of upwind emissions that contribute significantly to

downwind nonattainment areas and that this elimination of emissions must be consistent with the

attainment deadline established under Title I of the CAA. The commenter (0020) stated that EPA’s use of subpart 2 to make ozone classificati ons coupled with their pr oposal to classify most areas as “Marginal,” even when EPA has conducted analyses projecting that about half of these areas will not attain by the attainment deadline, cl early does not comply with the ruling because EPA has not proposed any methodology for determining significant contribution to

nonattainment or interference w ith maintenance for the 2008 ozone NAAQS and it is impossible for prohibitions on upwind contributions to downwi nd nonattainment to occur consistent with the

deadlines of Title I.

The commenter (0020) stated that EPA should re-propose this classi fication rule, propose alternatives, and take comments on ways that EPA could ensure the requirement that prohibitions on upwind contributions to downwi nd nonattainment is consistent with the attainment deadlines that it is proposing in this action.

20 The commenter did not cite the deci sion, but we presume the commenter wa s referring to a decision on EPA’s Clean Air Interstate Rule (CAIR) based on a suit filed by the State of North Carolina. North Carolina v. EPA, 531 F. 3d 896 (DC Cir. 2008).49 28. EPA Response.

We disagree with the commenter that the requi rements in section 110(a)(2)(D), which require States to address the significant contributi on of ozone and ozone precursor emissions to

downwind states should drive the atta inment dates, which are separate ly addressed in the statute.

The North Carolina case to which the commenter re fers held that in de veloping transport rules EPA must consider downwind attainment dates, not that in setting attainment dates EPA must consider upwind transport. EPA has revised its transport rules c onsistent with the court decision and considering the attainment dates for the NAAQS addressed in those rules. With regard to the comment that “about half” of the areas classified as Marginal will not attain the standard by the Marginal area attainment da te, EPA notes that based on updated analyses, this estimate is more appropriately expressed as a range; 30-50% of Marginal areas may not attain based on emission reductions through 2015 (see response 5 above ). Past history

demonstrates that areas with desi gn values close to the standards are able to attain in a short period due to a steady downward trend in NOx and VOC emissions due to ongoing emission reductions resulting from federal, regional, and state measures (e.g. emissions standards and fuel requirements on cars, trucks, and nonroad engines; NOx reductions from electric utilities and industrial sources). Cong ress recognized this in 1990 by providi ng Marginal areas three years to attain the standard and by not requiring significant additional pl anning or controls. However, Marginal areas must still ensure that they wi ll attain as expeditiously as practicable.

IV. Revocation of 1997 NAAQS

Revocation of 1997 Ozone NAAQS for Purpos es of Transportation Conformity

Support for revocation of 1997 NAAQS with res pect to transportation conformity.

29

. Comment –EPA should revoke the 1997 NAAQS fo r purposes of transportation conformity.

Many commenters (0018, 0019, 0020, 0022, 0023, 0026, 0028, 0030, 0031, 0033, 0035, 0038, 0043, 0047, 0049, 0052, 0056, 0061) supported revoking th e 1997 NAAQS for purposes of transportation conformity.

Several commenters (0018, 0026, 0028, 0030, 0038, 0043, 0047, 0061) stated that it was most logical to only have one ozone NAAQS, the more protective NAAQS, apply in situations because the confusion and complexity that may result from determining conformity with two ozone NAAQS is an unnecessary burden to pl ace on these agencies performing conformity determinations. One commenter (0028) further stated that leaving two concurrent ozone standards in place would require it to prepare c onformity determinations for two standards for the same pollutant across difference geographical boundaries since it expects a reduction in the

total nonattainment area for the 2008 ozone standard s, and it concurs with any EPA decision to remove conformity requirements for older, le ss stringent standards when new standards are designated. One commenter (0043) fu rther stated this was consiste nt with Executive Order (EO) 13563: Improving Regulation and Regulatory Review, aimed at the President’s belief that the U.S. regulatory system “must promote pr edictability and re duce uncertainty.”50 Several commenters (0018, 0019, 0043, 0061) stat ed that revoking the 1997 NAAQS for purposes of transportation purpos es would reduce needless expens e of state agency and local planning organization time and resources, and woul d allow states/local agencies to use scarce

resources on other vital transportation needs.

One commenter (0048) believes the proposal to revoke the 1997 ozone NAAQS for transportation conformity purposes only, may be beneficial but is incomplete and does not provide certainty for planning purposes. The co mmenter (0048) states that EPA’s position on

whether to also revoke the 1997 NA AQS for other purposes should ha ve been fully contained in this proposal and that this piecemeal appro ach is inefficient and counterproductive.

One commenter (0033) added that enforcement of one NAAQS for transportation conformity is beneficial because it simplifies compliance and utilizes a more health protective standard.

Some commenters (0035, 0049) stated that they supported ensuring against any backsliding relative to transportation conformity duri ng the transition to the 2008 ozone NAAQS and supported the requirement that “areas designated nonattainment for the 2008 ozone NAAQS that have adequate or approved SIP budgets for ei ther the 1997 ozone NAAQS or the 1-hour ozone NAAQS must continue to use such budgets in transportation conformity determinations until budgets for the 2008 ozone NAAQS are found adequa te or approved. Another commenter (0030) stated they would be using the motor vehicl e emission (MVE) budgets in their Early Progress Plan until the MVE budgets in their SIP for e ither the 1997 or 2008 standards are found adequate or the SIP is approved.

29. EPA Response.

EPA thanks the commenters for their support of this proposal.

EPA understands the commenter’s concerns; howe ver as stated in the proposal EPA did not include a broad proposal addres sing revocation and an ti-backsliding requirements for purposes besides transportation conformity because of the need to quickly finalize a rule that addresses

nonattainment area classifications. The classification requirements must be finalized by the time that EPA designates nonattainment areas in orde r for areas to know their classification, the requirements that result from those classifications and their attainment date. EPA was able to move forward with this rulemaking concer ning the revocation of the 1997 ozone NAAQS for transportation conformity purposes because the an ti-backsliding requirements have already been clearly established, by the Clean Air Act, the tr ansportation conformity rule and by the D.C. Circuit Court. (CAA section 176(c)(1), 40 CFR 93.109(c)(2), South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329) EPA continues to anticipate that we will propose a separate rule in the spring of 2012 that will address how anti-backsl iding requirements would apply if the 1997 ozone NAAQS is revoked for other purposes.51 Opposition to revocation of 1997 NAAQS with respect to tr ansportation conformity.

30

. Comment – EPA should not revoke the 1997 oz one NAAQS for purposes of transportation conformity for areas designated attainment for the 2008 NAAQS to prevent backsliding.

One commenter (0032) recommended that EPA not drop current conformity requirements for areas that will be designated atta inment for the 2008 NAAQS as th is amounts to backsliding and could lead to greater levels of transported emi ssions. The commenter (0032) stated that in order to prevent backsliding, EPA s hould retain the exis ting requirements for those areas to demonstrate conformity with the 1997 ozone NAAQS for attainment areas. For areas that will be designated nonattainment with the 2008 ozone NAAQS, the commenter (0032) agreed with EPA’s proposal to require a conformity SI P budget for only one NAAQS, either the 1997 NAAQS or a new budget for the 2008 NAAQS.

Two commenters (0035, 0049) stated that they were concerned about the results regarding areas

that were nonattainment under the 1997 ozone NAAQS but will be attainment under the 2008 ozone NAAQS based on 2008 through 2010 data. Th e commenters (0035, 0049) stated that when the 1997 ozone NAAQS is revoked, attainment areas will not be required to do transportation conformity or have maintenance plans or mobile budgets. Both commenters (0035, 0049) stated that for areas likely to become nonattainment under the 2008 ozone NAAQS once 2011 or 2012 data are considered, the transportation conform ity requirement will not be reinstated until the area is redesignated nonattainment and required to develop its attainment SIP. The commenters (0035, 0049) stated that backslidi ng that could occur in the inte rim could adversely affect not only the area itself, but also downwind areas and recommended th at EPA consider and address this issue. One of these commenters (0049) also stated that areas that are designated nonattainment for the 2008 ozone NAAQS and classifi ed as Marginal would not be subject to transportation conformity.

30. EPA Response.

EPA disagrees with the comments recomme nding that the 1997 8-hour ozone NAAQS should not be revoked in areas that are designated attainment for the 2008 8-hour ozone NAAQS. We promulgated the 2008 8-hour ozone NAAQS in respons e to the latest data and science regarding ozone; the 2008 8-hour ozone NAAQS of 0.075 ppm is more protectiv e of public health than the 1997 8-hour ozone NAAQS which can be met if an area ’s air quality is at 0.084 ppm. It is clear that any area that is design ated attainment for the 2008 8-hour ozone NAAQS must also be attaining the less stringent 1997 8-hour ozone NAAQS because all attainment areas for the 2008 8-hour ozone NAAQS must have de sign values of 0.075 ppm or less, even if they were not previously redesignated for the 1997 ozone NAAQS. Therefore, there will be no areas that are not attaining the 1997 8-hour ozone NAAQS but are attaining the 2008 8-hour NAAQS, as may have been the case when prior standards were revo ked. Areas that are designated attainment for the 2008 8-hour ozone NAAQS would not be subj ect to transportation conformity because section 176(c)(5) of the Clean Ai r Act explicitly limits the app licability of conformity to designated nonattainment and maintenance areas. However, areas designated attainment still have an incentive to monitor the growth of emi ssions from the transportation sector; because if these areas violate the 2008 8-hour NAAQS, EPA could use its discretionary authority to52 redesignate them as nonattainment for the 2008 8-hour NAAQS and conformity would then apply one year after the effective date of that nonattainment designation.

The EPA notes that although states could not implement transporta tion conformity for attainment areas as a matter of federal law, these areas could still work with their Metropolitan Planning Organizations (MPOs) to estimate regional emis sions that would be generated by the planned transportation system to see whether a viola tion could occur and to address motor vehicle emissions growth in advance of any such violation. 21 These types of state activities may be done under state law, when possible, or on a voluntary basis. EPA al so notes that the continued implementation of motor vehicle emissions stan dards that apply to bot h light-duty and heavyduty vehicles would continue to reduce on-road emissions in future years and any revisions to state or local control programs , including controls that reduce emissions from on-road sources, that have previously been approved in an ar ea’s ozone SIP would require EPA approval and must address the Clean Air act’s anti-backsliding requirements.

Two commenters described concer ns regarding attainment areas that may be redesignated as nonattainment for the 2008 8-hour ozone NAAQS if high concentrations occurred in 2011 or

occur in 2012 and one of these commenters also expressed concerns with areas that are designated nonattainment for the 2008 8-hour ozon e NAAQS, but are classified as Marginal. The commenters believe that there may be long dela ys before such areas would be required to demonstrate conformity and backsliding may occu r in the areas and downwind of those areas. The commenters appear to be under the impressi on that Marginal nonattainment areas for the 2008 ozone NAAS are not subject to transportation c onformity requirements. This is incorrect. Marginal ozone areas are requi red to determine conformity for the 2008 ozone NAAQS. Such areas are required to make an initial transportation conformity determination for the 2008 ozone NAAQS within one year after the effective date of their nonattainment designation. That conformity determination must be based on the a pplicable conformity test (i.e., adequate or approved motor vehicle emissions budgets for the 1997 ozone NAAQS or one-hour ozone NAAQS if the area has such budgets or the app licable interim emissi ons test(s). (40 CFR 93.109(c)(2) and (3)) With regard to attainment areas that are redesign ated as nonattainment areas, such areas would be required to demonstrate conformity within one year after the effective date of the redesignation to nonattainment as opposed to when such an area develops its attainment SIP. Because a transportation confor mity determination is required within one year of the redesignation rather than when the attainment SIP is de veloped it would minimize any

21 Clean Air Act section 176(c)(5) restricts conformity to nonattainment areas and areas that are required to submit maintenance plans under section 175A; in these areas, the Federal government’s sovereign immunity is waived so th at DOT can be required to make conformity determinations. The concept of sovereign immu nity specifies that the federal government can only be subjected to regulation to the extent it vol untarily agrees to become subject. With respect to conformity, in the Clean Air Act, Congress ha s agreed that the federal government should be subject only one year after de signation in areas designated nonattainment or previously designated nonattainment and redesignated to at tainment subject to a 175A maintenance plan. Thus, sovereign immunity prevents the mandatory application of conform ity requirements either prior to a year after designation or after revocation with respect to a given air quality standard.53 potential for backsliding. Such areas would also have to use any prior bud gets if they exist or

use the interim emission tests.

31

. Comment – EPA should not revoke the 1997 oz one NAAQS for purposes of transportation conformity for the 2008 NAAQS to prevent backsliding.

Several commenters (0050, 0060) stated that EPA should not revoke th e 1997 ozone NAAQS for purposes of transportation conformity in order to prevent backsliding.

Some commenters (0050, 0060) stated they are interested in ensuring against any backsliding related to transportation conformity during th e transition to the 2008 ozone NAAQS, but that without a complete implementation rule it is no t certain what backslidi ng provisions EPA intends to put in place to allay its concerns. Consequently, the co mmenters (0050, 0060) believe that EPA’s proposal to revoke the 1997 standard is premature and should not yet be done, and recommend EPA delay this proposed rule and instead re-propose it in the near future with the implementation rule, so that the transportation conf ormity issues can be evaluated carefully with through consideration of all re lated issues, in particular the necessary anti-backsliding provisions.

31. EPA Response.

EPA disagrees with the commenters’ reco mmendation that EPA should re-propose the revocation of the 1997 8-hour ozone NAAQS for tran sportation conformity purposes so that they

can better determine if their concerns over the potential for backslidi ng are addressed in the context of a proposal that addr esses all facets of the implemen tation of the 2008 8-hour ozone NAAQS. EPA continues to believe that the an ti-backsliding requirements that apply to the transition from the 1997 8-hour ozone NAAQS to the 2008 8-hour ozone NAAQS are well established in the Clean Air Act, the transporta tion conformity rule and recent court decisions. (CAA section 176(c)(1), 40 CFR 93. 109(c)(2), South Coast Air Qual ity Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Enviro nmental Defense v. EPA, 467 F3.d at 1329) Specifically, areas that are de signated nonattainment for the 2 008 ozone NAAQS are required to demonstrate conformity for that NAAQS using ad equate or approved motor vehicle emissions budgets for the 1997 8-hour ozone NAAQS, or, if an area does not have budgets for the 1997 8- hour ozone NAAQS, it would use adequate or approved budgets for the 1-hour ozone NAAQS, if available, until such time that motor vehi cle emissions budgets for the 2008 ozone NAAQS are found adequate or are approved. If no such budgets exist the area would de monstrate conformity using the interim emissions tests. EPA intends to propose a broader implementation rule for the 2008 8-hour ozone NAAQS in the spring of 2012. That proposal will address the revocation of the 1997 ozone NAAQS for other purposes and a pplicable anti-backsliding requirements for those purposes, but will not furthe r address transportati on conformity anti-bac ksliding issues as they are settled as discussed above. Those anti-b acksliding requirements must be consistent with

the Clean Air Act and Court decision in th e South Coast case (South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006)).54 32

. Comment – EPA revocation of the 1997 ozone NAAQS for purposes of transportation conformity for the 2008 NAAQS is unlawful.

One commenter (0054) stated that EPA’s pr oposed revocation of the 1997 ozone NAAQS for transportation conformity purposes is unlawful. The commenter (0054) st ated that adoption of the 1997 standard triggered statutory attainment deadlines and control re quirements (including transportation conformity requirements) for mee ting that standard, and EPA has no authority to suspend those deadlines and requirements by fiat, a nd thus, EPA must hold states to meeting the 1997 8-hour standard by the earlie r attainment deadlines for that standard and require that transportation plans conform to attainment by those earlier deadlines (and related progress requirements).

32. EPA Response.

We disagree with the commenter’s assertions that the revocation of the 1997 ozone NAAQS is

unlawful and that it relieves states of control me asure, SIP or attainment obligations for the 1997 8-hour ozone NAAQS.

In this action EPA is revoking the 1997 ozone NAAQS for the purposes of transportation conformity only one year after the effective da te of designations for the 2008 ozone NAAQS. This means that any areas that are currently desi gnated as nonattainment or maintenance for the 1997 8-hour ozone NAAQS will not be required to demonstrate conformity for that NAAQS beginning one year after the effective date of de signations for the more health protective 2008 8- hour ozone NAAQS. However, all of those area s which are designated nonattainment for the 2008 8-hour ozone NAAQS will be required to ma ke a conformity determination for that NAAQS by the effective date of the revocation or the area will enter a conformity lapse. The Clean Air Act, the transportation conformity rule and the South Coast and Environmental

Defense court decisions all re quire that any area designated nonattainment for the 2008 8-hour ozone NAAQS that has either (1) approved or ad equate motor vehicle emissions budgets for the 1997 8-hour ozone NAAQS or (2) approved or ad equate motor vehicle emissions budgets for the 1-hour ozone NAAQS (if the area has those but does not have adequate or approved budgets for the 1997 8-hour ozone NAAQS) must use th ose budgets in transportation conformity

determinations until the state submits a SIP re vision for the 2008 ozone NAAQS and EPA either finds the budgets in that SIP revision to be ad equate for use in trans portation conformity or approves the budgets as part of the SIP. (C AA section 176(c)(1), 40 CFR 93.109(c)(2), South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329) When areas demonstrate conformity for the 2008 8-hour ozone NAAQS using the motor vehi cle emissions budgets from a SIP for the 1997 8-hour or 1-hour ozone NAAQS , that determination must include an analysis that shows that the

area conforms to all of the relevant motor vehicl e emissions budgets. For example, if an area is

classified as Severe for th e 1997-hour ozone NAAQS with an a ttainment year of 2018 it would have adequate or approved rate of progr ess budgets for 2014 and 2017 and attainment budgets for 2018. A conformity determination for the 2008 8-hour ozone NAAQS would have to demonstrate that the area conforms to the budgets for each of those years as well as any years that would be required for the area based on its classification for the 2008 ozone NAAQS. If the

area was also classified as Severe for the 2008 ozone NAAQS with an attainment year of 2027,55 conformity would have to be demonstrated for emissions in the attain ment year by comparing emissions in that year with th e area’s adequate or approved b udget for 2018. The area would also at least have to demonstrate conformity for the last year of its transportation plan which could be a year such as 2035. A determination for that year would also use the adequate or approved budgets for 2018 from the area’s SIP for th e 1997 8-hour ozone NAAQS. By determining conformity for each of the ex isting budgets for the 1997 8-hour ozone NAAQS the area not only demonstrates progress toward attainment of the more health protective 2008-hour ozone NAAQS until such time that it submits a SIP for that NAAQS , but it also demonstrates that motor vehicle emissions remain consistent with those necessary to make progress toward and attain the less protective1997 8-hour ozone NAAQS.

Areas that are currently designa ted as nonattainment or mainte nance for the 1997 8-hour ozone NAAQS, and are designated as attainment areas for the 2008 8-hour ozone NAAQS would not be required to demonstrate conformity for ozone beginning one year after the effective date of designations for the 2008 8-hour ozone NAAQS. These areas would have air quality data showing that they attain both the 1997 and 2008 8-hour ozone NAAQS. Revoking the 1997 8- hour ozone NAAQS in these areas does not reliev e these areas of any statutory obligations for attaining the 1997 8-hour ozone NAAQS because such areas would have already attained that NAAQS.

This action addresses revocation for transportation conformity purposes only. No requirements of an area’s SIP nor obligations related to attainment of the 1997 8-hour ozone NAAQS will be altered by revocation of the 1997 NAAQS for tr ansportation conformity purpose only. EPA intends to propose a separate implementation ru le this spring which will address all other requirements for implementing the 2008 8-hour ozone NAAQs and making the transition from the 1997 8-hour ozone NAAQS to the 2008 8-hour ozone NAAQS. This proposal would address revocation of the 1997 8-hour ozone NAAQS for ot her purposes, anti-back sliding requirements for the transition from the 1997 to 2008 8-hour ozone NAAQS and any SIP obligations for the 1997 8-hour ozone NAAQS. This future rulemaki ng would be consistent with Clean Air Act requirements and the decision in the South Coast lawsuit. (South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006))

33

. Comment – EPA’s revocation of the 1997 ozone NAAQS for purposes of transportation conformity for the 2008 NAAQS is arbitrary and irrational.

One commenter (0054) stated that EPA’s pr oposed revocation of the 1997 ozone NAAQS for purposes of transportation conformity for th e 2008 NAAQS is arbitrary and irrational. The commenter (0054) reasoned that having determined that ozone is even more dangerous than was thought in 1997, EPA cannot plausibly claim that states should be allowed to do less than was required to meet the 1997 ozone NAAQS, or be allo wed more time to limit transportation-related pollution than is necessary to timely achieve th at standard. The commenter (0054) noted that EPA asserts that the proposal is justified to pr ovide transportation and air quality agencies with certainty as to what conformity requirements w ill apply after designati ons for the 2008 standard, but that is hardly a rational ground for revoki ng the 2008 standard. The commenter (0054) stated that equal or greater certainty w ould be achieved by telling those ag encies that they must assure56 conformity with both standards within the re levant time frames for progress toward and attainment of each. Further, the commenter (0054) st ated that also groundle ss is EPA’s claim that requiring conformity determinations for both stan dards would lead to “unnecessary complexity,” as there is no reason transportation and air agen cies cannot perform conformity analyses for two ozone standards: Indeed, such agencies routin ely perform conformity analyses for multiple pollutants with differing progress schedules and attainment dates. The commenter (0054) further stated that there is no reason that planning ag encies cannot line up attainment dates by working to meet all standards by the earlier deadlines.

33. EPA Response.

EPA disagrees with the commenter’s assertion th at EPA is giving states more time to reduce transportation related emissions to attain th e less protective 1997-hour ozone NAAQS and that it is allowing states to do less to attain th at NAAQS. EPA is revoking the 1997 8-hour ozone NAAQS for transportation conform ity related purposes only in this action. This revocation does not relieve the states of any obligation to implement their SIPs for the 1997 8-hour ozone NAAQS. It simply means that areas will not ha ve to determine conformity for the 1997 8-hour ozone NAAQS beginning one year after the effectiv e date of designations for the more protective 2008 8-hour ozone NAAQS. If an area is designa ted as nonattainment for the 2008 8-hour ozone NAAQS and has adequate or SIP approved moto r vehicle emissions budgets for the 1997 8-hour ozone NAAQS those areas are required by the Clean Air Act, the transportation conformity rule and recent D.C. Circuit decisions to use those budgets in conformity determinations for the 2008 8-hour ozone NAAQS until a SIP is submitted for the 2008 8-hour ozone NAAQS and motor vehicle emissions budgets are found to be adequate for transportation conformity purposes or are approved into the SIP. (CAA section 176(c)(1), 40 CFR 93.109(c)(2), S outh Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329)

If an area is designated as attainment for the 2008 8-hour ozone NAAQS, it would have also by

definition attained the less heal th protective 1997 8-hour ozone NAAQS. Therefore, revocation would have the effect of relieving these areas of the obligation to demonstrate conformity for any ozone NAAQS. However this is because the Clean Air Act bars EPA from requiring that attainment areas demonstrate conformity. (Cl ean Air Act section 176(c)(5)) Therefore, EPA cannot require that areas designa ted attainment demonstrate conf ormity for the more protective 2008 8-hour ozone NAAQS. With regard to th e 1997 8-hour ozone NAAQS, such areas would have attained that NAAQS by a fairly wide marg in because in order to be designated as an attainment area for the 2008 8-hour ozone NAAQS the area must have a design value of 75 ppb or less and the 1997 8-hour ozone NAAQS can be met with air quality at 84 ppb. Moreover, while these areas would no longer have to de monstrate conformity for the 1997 ozone NAAQS and cannot be required to demonstrate confor mity for the 2008 8-hour ozone NAAQS, nothing in this action relieves them of any statutory oblig ation to implement their approved SIPs for the 1997 8-hour ozone NAAQS. Any revisions to those SIPs would have to comply with Clean Air Act requirements that prevent backsliding. EPA intends to issue a notice of proposed rulemaking (NPRM) in the spring of 2012 that ad dresses all other implementation requirements for the 2008 8-hour ozone NAAQS. This woul d include revocation for other purposes,57 associated anti-backsliding requirements and any remaining obligations for the 1997 8-hour ozone NAAQS.

With regard to the commenter’s statement that EPA justifies the revo cation of the 1997 8-hour ozone NAAQS based on it bringing more certainty to the transportation a nd air quality planning process, this was not EPA’s only reason for pr oposing to revoke the less health protective 1997 8-hour ozone NAAQS. EPA maintains and a numb er of commenters agree that the proposed revocation does bring more certainty to the tr ansportation planning proc ess because it allows areas to be aware of the specifi c transportation confor mity requirements that will apply at the earliest possible time. The commenter implies that this was EPA’s sole justification for the revocation; however, as explai ned in the proposed rule, it was not. EPA also proposed the revocation because the anti-backsliding requirement s that apply to transportation conformity are

well established as described el sewhere in this response to co mments document. Furthermore, areas that are designated nona ttainment for the 2008 ozone NAAQS will be required to determine conformity for that NAAQS and will be required to use adequate or approve motor vehicle emissions budgets for the 1997 ozone NAAQS until they have adequate or SIP approved budgets for the 2008 8-hour ozone NAAQS according to the existing trans portation conformity regulation. We maintain and the DC Circuit has agreed that this is the most appropriate test to be used in determining conformity for a revised NAAQS until budgets for the new NAAQS are available. (South Coast Air Qu ality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329) As stated in the proposal, determining conformity for the more health protective 2008 8-hour ozone NAAQS both fulfills the Clean Air Act requirements to prevent new violations of the NAAQS, to avoid making existing violations worse and to avoid delaying timely attainment of the ozone NAAQS and any required interim milestones. (Clean Air Act s ection 176(c)(1)(B)(i)-(iii )) As for commenters that support the revocation of the 1997 ozone NAAQS for transporta tion conformity purposes indicate it also

serves to make the most efficient use of state a nd local resources in fulfilling those requirements.

The commenter states that equal or greater certainty could be achieved by determining conformity for both the 1997 and 2008 8-hour oz one NAAQS. As described in the example provided above in response to one of this comme nter’s other comments, for an area that is designated nonattainment for the 1997 ozone NAAQS and has a nonattainment date in the future the conformity rule’s requirements for using budgets for the 1997 8-hour ozone NAAQS until adequate or approved budgets for the more protective 2008 8-hour ozone NAAQS are available

shows that emissions in the area remain consiste nt with those needed for rate of progress and attainment purposes establishe d in the area’s SIP for the 1997 8-hour ozone NAAQS. Such an area as shown in the example has to use all of its future year b udgets (i.e., rate of progress and attainment) until the area has adequate or ap proved budgets for the 2008 8-hour ozone NAAQS. Once budgets for the more protective 2008 8-hour ozone NAAQS are available, the budgets for the prior NAAQS no longer apply, as the area has established its plan for how to come into attainment for the more protective NAAQS.

The commenter further asserts th at areas can continue to determine conformity for the 1997 ozone NAAQS because MPOs already determine conformity for multiple pollutants with differing requirements and attainment dates. EPA agrees that some MPOs are located in

nonattainment or maintenance areas for multiple pollutants and each may have unique attainment58 or maintenance years and differing boundaries. Howe ver, EPA disagrees that this is a reason for continuing to determine conformity for two ozone NAAQS. The commenter should recognize that where MPOs are determining conformity for different NAAQS, each of those NAAQS provides its own independent health protection and it is important to demonstrate conformity for each to ensure that the SIP for each of these pol lutants achieves its purpose. However, EPA does not agree that this is a justification for re quiring conformity determinations for two ozone NAAQS after the end of the one-y ear grace period, particularly considering that the 2008 8-hour ozone NAAQS is more protective. EPA does not believe that areas should be required to continue to determine conformity for the le ss health protective 1997 ozone NAAQS as well as the now applicable standard.

Finally, the commenter suggests th at areas could line up attainment dates so that they could attain both standards by the earlie r deadline. However, this is neither required by the Clean Air Act nor is it feasible. First, th e majority of areas that are nona ttainment or maintenance for the 1997 8-hour ozone NAAQS have attainment dates that are in the past. (A number of areas that are still officially designat ed as nonattainment for the 1997 8-hour ozone NAAQS have clean

data but have either elected not to seek redesi gnation or are in the pr ocess of doing so. Two areas that missed their attainment dates, Dallas and Baltimore, have been bumped up to a higher classification.) It would be impossible for thes e areas to line up attainment dates for the 1997 and 2008 ozone NAAQS due to the unique air quality challenges in each of these areas. While areas are required to attain the NAAQS as expeditiously as practicable, EPA cannot compel an area to attain a more stringent NAAQS by an earlier deadline for a less stringent NAAQS.

34. Comment – EPA should not revoke the 1997 oz one NAAQS for purposes of transportation conformity because the 1997 ozone NAAQS require s compliance with NAAQS in ways not yet required by the 2008 ozone NAAQS.

One commenter (0054) stated that EPA shoul d not revoke the 1997 ozone NAAQS for purposes of transportation conformity because the 1997 ozone NAAQS requires compliance with the NAAQS in ways not required by the 2008 ozone NAAQS. Specifically, the commenter (0054) stated that EPA’s proposal does not in fact en sure conformity with the 2008 ozone NAAQS with anything like the accuracy or ce rtainty required at this junc ture for the 1997 ozone NAAQS. The commenter (0054) explained that EPA is apparently planning to allow states to claim conformity with the 2008 ozone NAAQS based on an “ad equacy” showing (due one year after nonattainment designation) that does not re quire full attainment or rate-of-progress demonstrations and that does not require ac tual motor vehicle emission budgets for the 2008 standard. The commenter (0054) explained that, in contrast, by now, the CAA requires motor vehicle emission budgets – based on approved rate-o f-progress and attainme nt demonstrations - to be in place for any area that is nonattain ment or maintenance for the 1997 ozone NAAQS, and to be sufficient to assure attainment by the applicable attainment date for the 1997 ozone NAAQS. In addition, the commenter (0054) stated that it appears th at EPA is proposing to allow

areas that are nonattainment or maintenance for the 1997 standards and that lack fully approved and sufficient motor vehicle emission budgets (bas ed on the progress and attainment deadlines

for their relevant classificati on for the 1997 standard) to be re lieved of any requirement to prepare and secure approval for such budgets once the 1997 standard is revoked. The commenter (0054) reasoned that, as a result of all the foregoing, EPA’s proposal will weaken protections59 required under the 1997 ozone NAAQS for reside nts of areas that are nonattainment or maintenance for the 1997 ozone NAAQS, flouting both the anti-backslid ing directives of CAA§172(e).

34. EPA Response.

The commenter alleges that the proposal will not ensure conformity for the 2008 8-hour ozone NAAQS because the proposal will allow confor mity determinations for the 2008 8-hour ozone to be based on an “adequacy” showing which is due one year after the effective date of the area’s designation rather than on a SIP fo r the 2008 ozone NAAQS. EPA does not understand what the commenter is referring to as an “adequacy ” showing. We reiterate that areas that are designated nonattainment for the 2008 ozone NAAQS are required by the Clean Air Act, the transportation conformity rule and the recent DC Circuit court decisions to determine conformity for the 2008 ozone NAAQS by using adequate or SIP approved budgets for the 1997 8-hour ozone NAAQS (or 1-hour ozone NAAQS if the area has those but not budgets for the 1997 8- hour ozone NAAQS) until such time as the area has adequate or SIP approved budgets for the 2008 8-hour ozone NAAQS. (CAA section 176(c)(1), 40 CFR 93.109(c)(2), South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329)This was the outco me of the DC Circuit court decision in the

South Coast case and the DC Circuit case on the tran sportation conformity rule. (South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006) and Environmental Defense v. EPA, 467 F3.d at 1329)). This has been judged to be the best test of conformity for these areas until a SIP for the revised NAAQS is subm itted and motor vehicle emissions budgets are found adequate or are approved. If an area does not have any existing mo tor vehicle emissions budgets for any ozone NAAQS, the area would be re quired to demonstrate conformity using the applicable interim emissions test(s). (40 CFR 93.109(c)(3)) In addition, areas are required to determine conformity for the new NAAQS with in one year after they are designated nonattainment or they enter a conf ormity lapse which greatly restri cts the types of transportation projects they can fund. EPA main tains and the DC Circuit court ag rees that the best test of conformity before an area has budgets for a re vised NAAQS is to use budgets for the prior NAAQS if an area has such budgets.

The commenter states nonattainment areas for the 1997 8-hour ozone NAAQS are already required to have approved motor vehicle emi ssions budgets from rate of progress plans and attainment demonstrations, and that EPA is not requiring that motor vehicle emissions budgets for the 2008 8-hour ozone NAAQS be used in the in itial conformity determinations for the 2008 8-hour ozone NAAQS. EPA agrees that many areas that are still designated nonattainment for the 1997 8-hour ozone NAAQS have adequate or approved motor vehicle emissions budgets for the 1997 8-hour ozone NAAQS which mu st continue to be used for conformity determinations for the 2008 NAAQS as described above. There ar e reasons that some remaining nonattainment areas do not yet have adequa te or approved budgets. Some areas received clean data

determinations and under that rule the requirement for these areas to submit plans such as rate of progress plans or attainment demonstrations is suspended as long as the area continues to have clean data. Areas that are classified as Margin al are not required to submit rate of progress or

attainment demonstrations.60 In addition, as already describe d in the responses to this co mmenter’s comments these budgets for the 1997 8-hour ozone NAAQS must be used in transportation conformity determinations for the 2008 8-hour ozone NAAQS until a SIP is su bmitted for the 2008 8-hour ozone NAAQS and EPA finds the budgets in that SIP to be ade quate for use in transportation conformity determinations or approves those budgets. Th e initial conformity de termination for the 2008 ozone NAAQS is due within one year after the effective date of an area’s designation. SIPs that would establish motor vehicle emissions budgets for the 2008 ozone NAAQS are generally due three years after the effective date of an area’s designation and conformity for the 1997 8-hour ozone NAAQS continues to apply until the end of the one-year grace period in areas that are currently nonattainment or maintenance for the 1997 8-hour ozone NAAQS. Therefore, it would not be possible to demonstrate conformity fo r the 2008 8-hour ozone NAAQS by the end of the Clean Air Act’s one year grace by using moto r vehicle emissions budgets for the 2008 8-hour ozone NAAQS. As stated previously in the re sponse to these comments using the budgets for the prior ozone NAAQS is, until budgets for the cu rrent ozone NAAQS are available, is the best test of conformity and is consistent with the Clean Air Act, transporta tion conformity rule and decisions from the DC Circuit Court. (CAA s ection 176(c)(1), 40 CFR 9 3.109(c)(2), South Coast Air Quality Management Dist rict v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329)

The commenter also stated that it appears th at EPA is proposing to allow areas that are

nonattainment or maintenance for the 1997 8-hour ozone NAAQS and that lack fully approved and sufficient motor vehicle emission budgets (bas ed on the progress and attainment deadlines

for their relevant classifica tion for the 1997 8-hour ozone NAAQS ) to be relieved of any requirement to prepare and secure approval for such budgets once the 1997 8-hour ozone NAAQS is revoked. EPA must point out that maintenance areas for the 1997 8-hour ozone NAAQS have attained that NAAQS otherwise they could not have been redesignated. These areas all have approved motor ve hicle emissions budgets that are consistent with their approved maintenance plans. With regard to nonatta inment areas for the 1997 8-hour ozone NAAQS, this rulemaking does not address whether or not thes e areas would have to submit SIPs for the 1997 8-hour ozone NAAQS or whether EPA would have to act on submitted SIPs for the 1997 8-hour ozone NAAQS after that NAAQS is revoked. The requirements with regard to the submittal of outstanding SIPs for the 1997 8-hour ozone NAAQS will be addressed in the upcoming proposal for the remainder of the implementation requ irements for the 2008 8-hour ozone NAAQS. Requirements for EPA to act on submitted SIPs are governed by the Clean Air Act and this rulemaking does not alter those requirements.

EPA disagrees with the assertion that EPA’s proposal will weaken protections required under the 1997 ozone NAAQS for residents of areas that are nonattainment or maintenance for the 1997 ozone NAAQS. The revocation of the 1997 ozone NAAQS for transportation conformity purposes will not weaken the protection provide d to residents of ar eas that are either nonattainment or maintenance for the 1997 ozone NAAQ S precisely because it is consistent with Clean Air Act anti-backsliding requirements. This was the subject of two court cases decided by

the DC Circuit court and these affirmed that EPA can revoke a NAAQS if it provides adequate anti-backsliding requirements and that those requ irements for transportation conformity purposes are that budgets for the prior NAAQS be used in transportation conformity determinations until budgets for the new NAAQS are submitted and ar e found adequate or are approved, and that61 conformity for a revoked standa rd is not required after revo cation. (South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329) With regard to the rema ining anti-backsliding requirements for the 2008 ozone NAAQS, EPA intends to address those in a pr oposal that will be issued this spring. Those requirements must be consistent with the Clean Air Act and the DC Circuit court’s decision in the South Coast litigation. (South Coast Air Qu ality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006))

Effect of revocation of transportation co nformity requirements on other programs.

35. Comment –EPA should consider th e effect of revoking transporta tion conformity requirements on potential future year Congestion Mitig ation and Air Quality fund allocations.

Several commenters (0019, 0022, 0048) expressed concer n on the effect of the revocation of the 1997 NAAQS for purposes of transportation co nformity on Congestion Mitigation and Air Quality (CMAQ) fund allocations.

One commenter (0019) specifically urged EPA, in collaboration with the Federal Highway Administration (FHWA), to consid er the effect of the revocati on on potential future year CMAQ fund allocations for areas that were designate d nonattainment or maintenance under the 1997 Ozone NAAQS, but will be designated atta inment under the 2008 ozone NAAQS. The commenter (0019) stated that fundi ng is an integral part of many jurisdictions’ future year transportation plans and funds a wi de array of very beneficial programs. The commenter (0019)

further stated that if such areas cannot conti nue to receive CMAQ funds, EPA should work with FHWA to ensure that jurisdictions are eligible to receive allotments at least three to five years into the future. The commenter (0019) stated that this transiti onal period would allow Metropolitan Planning Organizatio ns (MPOs) time to determine which projects and programs

must be continued and to determ ine alternative funding sources fo r those projects and programs. The commenter (0019) stated that in these difficult fiscal time s where many MPOs have less money with which they need to do more, making such decisions about which programs to keep and which to fund as well as finding new fundi ng mechanisms will require a great deal of planning and analysis.

One commenter (0048) explained that CMAQ funds are apportioned annually to each state according to the severity of its ozone and carbon monoxide (CO) problem, where the population of each county that is in a nonattainment or main tenance area for ozone a nd/or CO is weighted by multiplying by the appropriate factor, but that PM nonattainment and maintenance areas and former 1-hour areas are not included in the appo rtionments, except for areas participating in Early Action Compacts (EACs).” The commenter (0048) stated that give n that South Carolina led the nation in forming EACs in 45 of the state’ s 46 counties, it is concerned with the issue of how classification designations and/or revocation of prev ious NAAQS may affect the distribution of CMAQ funds in the future.

One commenter (0022) specifically stated that while the potential loss of CMAQ funds is a looming concern for maintenance areas that will be in attainment under the new standard, the62 CMAQ funding effects of a full revocation of the 1997 ozone standard will not be understood

until after the reauthorization of the fe deral transportation bill by Congress.

35. EPA Response.

Revocation of the transportation conformity requirements will not affect the amount of CMAQ funds apportioned to the States. The eligibility requirements and the apportionment formula for distributing CMAQ funds to the States is es tablished by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). 22 Funds for the CMAQ program are appropriated yearly, and apportio ned to the States according to the statutory formula, which includes the population of c ounties in CO and ozone nonattainment and maintenance areas, and weighting fa ctors for the severity of CO and ozone air pollution in those areas. Since this action revokes only the c onformity requirements for the 1997 ozone nonattainment and maintenance areas, and does not change the designation and classification of areas, this action has no eff ect on the apportionment of CMAQ funds to the States.

CMAQ apportionment may be changed by a full revocation of the 1997 ozone standard and designation and classification unde r the 2008 ozone standard. Any such impact is unknown at this time due in part to the fact that SAFETEA-LU reauthor ization is being considered by Congress at this time and changes could be made to the CMAQ program which could further affect the amount of funds received by the States.

36. Comment – If the proposed rule is finalized th e CMAQ fund should not be continued to areas

that are in attainment or to Ozone Advance areas.

One commenter (0049) stated that under the pr oposed PATS approach, the Baltimore area will become one of only a handful of areas classified as Moderate and will need to find additional

local reductions to incor porate into a SIP. The commenter (0049) stated that since transportation emissions remain a significant portion of the emissions causing the problem, it will need

additional emission reductions from this sector . The commenter (0049) stated that without additional controls expected in the near term and considerin g the expense of travel demand measures, it does not support continuation of CMAQ f unds to areas that become attainment or to Ozone Advance areas. The commenter (0049) reasoned that since these areas are not nonattainment or maintenance, the limited pool of CMAQ dollars should not be stretched to include them, and that areas wi th continuing problems or more severe problems should receive additional funds if they are available.

36. EPA Response.

This issue is not related to Clean Air Act transp ortation conformity require ments. The eligibility requirements and the apportionment formula for distributing CMAQ funds to the States is established by the Safe, Accountable, Flexible, E fficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). CMAQ eligibility and CMAQ apportionments are two different things. CMAQ apportionments of funds to the St ates are calculated based on the population and severity of air pollution in the nonattainment and maintenance areas that exist at the time of

22 Pub. L. 109-59, 119 Stat. 1144 (Aug. 10, 200563 apportionment. Areas that are no longer designat ed and classified because the 1997 8-hour ozone NAAQS is revoked are not included in the appor tionment formula. However, States have flexibility in how they direct the CMAQ funds they receive to eligible areas. The former nonattainment and maintenance areas are elig ible under SAFETEA-LU and therefore could receive CMAQ funds from the Stat e, but the State is under no ob ligation to do so. If the State decided to do so, it could invest its CMAQ funds entirely in ar eas designated and classified

under the 2008 ozone standard.

CMAQ apportionment may be changed by a full revocation of the 1997 ozone standard and designation and classification unde r the 2008 ozone standard. Any such impact is unknown at this time due in part to the fact that SAFETEA-LU reauthor ization is being considered by Congress at this time and changes could be ma de which could affect the apportionment formula and the geographic eligibility criteria for CMAQ funds.

Implementation of transportation control measures.

37

. Comment –EPA should address timely implemen tation of transportation control measures (TCMs).

One commenter (0030) stated that timely impl ementation of transporta tion control measures (TCMs), a part of the transporta tion conformity process, is not addressed in the proposed rule. The commenter (0030) stated that this requirement should be clarif ied with respect to revocation of the 1997 ozone standards, especially when th e revocation occurs before ozone SIPs for the 2008 are approved. The commenter (0030) questione d whether the TCMs in an approved SIP for the 1997 ozone standards are subject to timel y implementation after the 1997 ozone standards are revoked for conformity purposes, and sought clar ification from EPA on this issued to be provided in future rulemaki ng or guidance documents.

37. EPA Response.

Timely implementation of transportation control measures is required by the Clean Air Act as part of an area’s transportation conformity dete rmination and as a matter of SIP implementation requirements. (Clean Air Act section 176(c)(2)(B )) The transportation conformity rule contains specific requirements for demonstrating that TCMs are being implemented on a timely basis for transportation conformity purposes. (40 CFR 93.113) However, these requirements also apply to TCMs that are contained in approved SIPs as a matter of Clean Air Act SIP requirements. Therefore, any TCMs that are approved as pa rt of an area’s SIP for the 1997 8-hour ozone NAAQS remain subject to timely implementa tion requirements even after the 1997 ozone NAAQS is revoked. Revocation of the NAAQS does not change any of the elements of an area’s approved SIP for the NAAQS that is bein g revoked. If an area wishes to remove an approved TCM from its SIP and replace it with a TCM or TCMs that provide equal emissions reductions it could make use of the Clean Air Act’s TCM substitution mechanism. (Clean Air Act section 176(c)(8)) However, if an area wishes to remove a TCM from an approved SIP and not replace it, the area must go through a SIP revi sion process and demonstrate that backsliding

does not occur.64 Revocation of the 1997 Ozone NA AQS for General Conformity.

Support for revocation of 1997 NAAQS with respect to General Conformity.

38

. Comment – EPA should clearly indi cate that in a separate acti on that EPA propose a rule to

address the revocation of the 1997 ozone NAAQS for general conformity purposes.

One commenter (0036) stated th at the proposed rulemaking addr esses the revocation of the 1997 ozone NAAQS for transportation conformity pur poses but does not pr opose to revoke the 1997 ozone NAAQS for general conformity purposes. The commenter (0036) explained that all Department of Defense (DoD) conformity analys es have been done under the general conformity

rule and not under tran sportation conformity, and if th e implementation of the 2008 ozone NAAQS does not include revocation of th e 1997 ozone NAAQS for general conformity purposes, then DoD and other federal agencies woul d be subject to satisfying general conformity requirements for both the 1997 and 2008 ozone NAA QS. The commenter (0036) stated that while EPA is likely to address revocation of the 1997 ozone NAAQS for general conformity purposes in its follow-up rulemaking to comp lete the implementation of the 2008 ozone NAAQS, the commenter (0036) believes that it is n ecessary that it be explicitly mentioned in the preamble of this final rule due to th e importance of this issue to DoD.

38. EPA Response.

The 1997 ozone NAAQS is being revoked for transpor tation conformity due to the fact that implementation of the 2008 NAAQS triggers a re quirement for a new transportation conformity requirement within one year, unlike for genera l conformity. There are no new requirements for demonstrating general conformity of a federal ac tion that is nonattainment or maintenance under the 1997 ozone NAAQS when it is designated under the 2008 ozone NAAQS. For ozone, general conformity cannot be demonstrated us ing modeling. Generall y, an emissions test offsetting or mitigating net emissions increase s to zero would be no different under either standard. EPA does not anticipate that two confor mity determinations would be needed. Only one demonstration to the applicable SIP is requ ired. The 2008 ozone classification may be lower than the 1997 ozone classification for some areas, in these cases the applicability thresholds are higher and a general conformity determinati on may not be required. Revocation of the 1997 ozone NAAQS for purposes other than transportation conformity will be addressed in a subsequent rulemaking and the EP A plans to address any relevant comments in that action.65 Revocation of the 1997 Ozone NAAQS for Other Purposes.

Support for revocation of 1997 NAAQS for other purposes.

39. Comment –EPA should revoke the 1 997 ozone NAAQS for other purposes.

One commenter (0048) stated that EPA’s proposal to revoke the 1997 ozone NAAQS for transportation conformity purposes only may be beneficial but is incomplete and does not provide certainty for planning purposes.

39. EPA Response.

EPA understands the commenter’s concerns; howe ver as stated in the proposal EPA did not include a broad proposal addres sing revocation and an ti-backsliding requirements for purposes besides transportation conformity because of the need to quickly finalize a rule that addresses

nonattainment area classifications. The classification requirements must be finalized by the time that EPA designates nonattainment areas in orde r for areas to know their classification, the requirements that result from those classifications and their attainment date. EPA was able to move forward with this rulemaking concer ning the revocation of the 1997 ozone NAAQS for transportation conformity purposes because the an ti-backsliding requirements have already been clearly established, by the Clean Air Act, the tr ansportation conformity rule and by the D.C. Circuit Court. (CAA section 176(c)(1), 40 CFR 93.109(c)(2), South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), and Environmental Defense v. EPA, 467 F3.d at 1329) EPA continues to anticipate that we will propose a separate rule in the spring of 2012 that will address how anti-backsl iding requirements would apply if the 1997 ozone NAAQS is revoked for other purposes.

V. Transport Emissions

Effect of upwind emissions on do wnwind nonattainment areas.

40

. Comment – EPA should address the effect of upwind emissi ons on downwind nonattainment areas, which is the true challenge faced by many nonattainment areas.

Many commenters (0020, 0031, 0034, 0035. 0038, 0050, 0053, 0060) stated that EPA should address the effect of upwi nd emissions on downwind nonattainment areas. Many commenters (0031, 0034, 0038, 0049, 0050) stated that upwind emissi ons would prevent some nonattainment areas from attaining the 2008 ozone NAAQS.

Several commenters (0031, 0034, 0050) stated that th e proposed rule does not address the true challenge to nonattainment areas, which is tr ansported pollution out of control of the nonattainment area. One commenter (0031) specifical ly stated that EPA is proposing that areas meet the required progress wit hout reflecting out-of-area emi ssions, and that downwind areas failing to demonstrate the require d progress must meet prohibitiv e requirements applicable to66 those for Extreme areas. The commenter (0031) stat ed that applying these subpart 2 requirements to downwind sources not responsible for the nonattainment problem w ould do little to reduce downwind ozone levels. The commenter (0031) stat ed that while one possible approach is to incorporate these rural areas into larger nonattainment areas along with their upwind metropolitan neighbors, doing so is not necessarily appropriate or cost-effective because it would require that complex controls developed for more populated areas be applie d to rural, distant, less populated areas. Another commenter (0034) st ated that EPA should pursue strategies to address the challenges faced by many nonattainme nt areas for which a vast majority of contributing pollution comes from sources outsi de the nonattainment areas, or from sources

within the nonattainment areas over which the stat e air agencies have no regulatory authority, or for which federal regulation is far more cost-eff ective than state action, because such strategies would greatly assist in ensuring further progress towards clean air. The commenter (0034) stated

that EPA should ensure that states submit a nd implement CAA §110(a)(2)(D) SIP revisions to provide the reductions in transpor ted air pollution necessary to en able downwind states to attain and maintain the 2008 ozone NAAQS in the ti meframes established by the CAA. One commenter (0050) explained that a Marginal ar ea in the upper end of the proposed range will require about 10 ppb reduction in 8-hour ozone leve ls in less than three years. The commenter (0050) stated that this is a tremendous chal lenge that cannot be possible to meet unless reductions in transported ozone into the area are addressed adequately. Consequently, the commenter (0050) stated that EPA consider full y such impacts by considering a classification approach that would require the implementation of appropriate measures in a timeframe designed to bring healthy air to no nattainment areas as expedi tiously as practicable.

One commenter (0038) stated that nonattainment is still predicted in 2015 in Baltimore, New York, and Philadelphia and also possibly Pitts burgh and Washington D.C., and that the New York City metropolitan area will continue to bear the burden of this transported pollution, leaving it at a distinct environm ental and economic disadvantage.

One commenter further stated that classification approach based on s ubpart 2 is flawed in that it does not address transport pollution for Marginal areas. The commenter ( 0053) stated that the Austin, Texas area, for example, is impacted by transported emissions, and under subpart 2, the only way to account for transported emissions would be to bump-up an area, which would impose more stringent local contro ls without directly addressing the regional transport emissions that are the problem. However, the commenter (0053) stated that under subpart 1, EPA could take this relationship into acc ount in setting Austin’s attainment deadline and determining control requirements if the region we re to be designated nonattainment.

40. EPA Response

The EPA understands the commente rs’ concern about the potentia l impact of ozone precursor emissions from upwind states on the ability of downwind states to at tain the 2008 NAAQS, and acknowledges the potential role fo r federal measures to help ach ieve these reductions. The EPA also knowledges the requirements that states ha ve an obligation to submit and implement CAA §110(a)(2)(D) SIP revisions to address significan t contribution to violations of the NAAQS in

areas other States. The EPA will address th e CAA §110(a)(2)(D)(i) interstate transport requirements for the 2008 ozone NAAQS in a separate rulemaking and/or guidance.67 41

. Comment – EPA should move forward to adopt federal rules to addr ess significant source categories that are the larg est upwind contributors to dow nwind nonattainment areas.

Commenters (0031, 0035, 0048) stated that, in order to address the effect of upwind emissions on downwind nonattainment areas, EPA should move forward to adopt fede ral rules to address significant source categories.

One commenter (0035) stated that it cannot overstate the critical need for EPA to move forward without delay to adopt federal rules to address significant sour ce categories. The commenter (0035) noted that in October, 2010, the commen ter (0035) adopted a resolution highlighting the need for EPA to develop and promulgate strong na tional strategies and controls for seven source categories (electric generating un its; industrial, commercial, a nd institutional boilers; cement kilns; light-duty vehicles; loco motive engines; oceangoing marine engines; and aircraft). The commenter (0035) reiterated its recommendations since such source categories represent a large portion of contributing emissions.

One commenter (0031) stated that EPA should move as fast as possible to tighten standards for sources (ships, locomotives, harbor craft, airc raft, off-road equipment) under its authority, keeping in mind California’s ai r quality challenge and attainment deadlines. The commenter (0031) noted that it has the author ity to regulate operational contro ls on these sources at the state level, and the ability to regulate such sources in markets outside of California when they operate within California, but for these sources and fo r other sources under exclusive or concurrent federal jurisdiction, federal regulation would enab le greater and faster emission reductions than otherwise would be possible with only State ac tion. The commenter (0031) reasoned that not only would federal action lower emissions for ne w sources, but it would allow state and local actions to lower emissions from existing sour ces by setting in-use rules and speed up the integration of the cleaner engines an d technology into California fleets.

The commenter (0048) further stated that it relies on EPA to prom ulgate national measures, such as stricter controls on mobile sources and major source categories, in a timely manner to address ozone and ozone precursors. Consequently, the commenter (0048) stated that EPA must complete a rulemaking and align schedules to pr ovide the necessary redu ctions on which states are dependent for attaining the ozone NAAQS. Ho wever, the commenter (0048) stated that such reliance on federal rules in SIPs is problematic, b ecause often the entire validity of a SIP can be compromised by the vacatur of any one rule, wh ich is what happened wi th CAIR and CSAPR.

41. EPA Response

The EPA acknowledges that federal rules can be very effective at re ducing ozone precursor emissions. The EPA has promulgated a number of regulations over the past decade to reduce emissions from many types of mobile sources (e .g., Tier 2 on-road vehi cle and standards; the 2007 heavy duty highway vehicle, engine and on-road diesel fuel rule; various non-road engine, vehicle and equipment regulations; the locomotive and marine engine rule ; and the ocean-going vessel rule). All of these regulati ons, in addition to federal stationa ry source controls on electric generating units, will provide emission reducti ons over a broad region, wh ich are expected to68 help many Marginal nonattainment areas attain the NAAQS. The EPA intends to continue evaluating the appropriateness of additional federal emissions control measures to satisfy CAA requirements imposed on EPA and state governments.

42

. Comment – Upwind states contributing to the no nattainment of downwin d states should be required to follow the requirement s for Moderate classifications.

One commenter (0049) stated that the classification of most ar eas as Marginal does nothing to help states within the Ozone Transport Region (OTR) attain the standard, and ignores accepted meteorological science transport. The commente r (0049) explained that OTR states are required to implement Reasonably Available Control Tec hnology (RACT) and follow the requirements of areas classified as Moderate, where such re quirements were established by Congress as the “standard” for transport areas before the scope of transport was understood. The commenter (0049) believes that now the broader scope of transport is known, all contributing areas should be required to follow the require ments of Moderate areas.

42. EPA Response

We disagree with the commenter that the classifi cation of nonattainment ar eas should be a means of addressing ozone transport. Section 110(a )(2)(D) of the CAA provides for all States to address transported emissions th at significantly impact areas in downwind states regardless of the designation or classification of areas in the State. The cla ssification of areas under subpart 2 is primarily for the purpose of addressing lo cal impacts of air polluti on. The commenter is correct that Congress established through CAA section 184 the Ozone Transport Region (OTR) in the northeast and required all areas within the OTR to implement certain requirements applicable in nonattainment areas. Furthermore, this section does provide for the creation of additional ozone transport regions , though none have been created to date. To the extent the commenter is suggesting that EPA create one or more additional transport regions, the

commenter should make such a recommendation to EPA in a separate request and identify and support the areas that should be included in each re quested region. If additional transport regions are created, they would be subjec t to the same requirements that apply under section 184 to the

northeast OTR.

VI. Additional Comments

The NAAQS Implementation Pr ocess and SIP Requirements

Generally.

43

. Comment – Compliance with the CAA SIP requirements and with the NAAQS implementation process in general is burdensome, co mplicated, costly, and unnecessary.

Commenters (0048, 0051) stated that compliance with the CAA SIP requirements and with the NAAQS process, in general, is burdens ome, complicated, costly and unnecessary.

One commenter (0048) specifically stated that no air quality imp rovements were gained from complying with the SIP requirements for the 199 7 ozone NAAQS, despite the fact that the state69 spent significant time and resources on modeling, SIP preparations, and then EPA requested the commenter state (0048) to withdraw these subm issions for various reasons. The commenter (0048) believes that a paradigm shift is needed away from a process th at favors paperwork and procrastination and a process that favo rs pollution reduction and public health.

Another commenter (0051) stated that the NAAQS process should be reexamined in light of President Obama’s recent Executive Order (EO) no ting that all regulatory efforts must “protect public welfare, safety and our environmen t while promoting economic growth, innovation competitiveness and job creation” and “be based upon the best available science” and the “use the best, most innovative and least burdensome tools for achieving regulatory ends” and to “impose the least burden on society.” Th e commenter (0051) st ated that the NAAQS implementation process is inconsistent with such EO on all accounts. The commenter (0051) stated that regulations should not operate in vacuum. The comment er (0051) further stated that many counties are focused on addressing existing ozone standards and any further changes will undermine these efforts. The commenter (0051) stat ed that local officials need some sense of predictability in order to develop and implem ent long-range transportation plans to achieve ozone reductions. The commenter (0051) reasoned that if counties are to effectively comply with current standards, additional requirements will only serve to hamper these efforts by opening the door to possible litiga tion and sanctions potentially re sulting in the loss of federal funding for transportation improvement projects, many of which ultimately improve air quality by reducing congestion.

43. EPA Response.

We disagree that plans to implement the 1997 ozone NAAQS have not resulted in emission reductions and air quality improvement. Over the past 8 years, since areas were designated for the 1997 ozone NAAQS approximately 62% of the areas designated nonattainment have been redesignated as attainment. In addition, many more ar eas have achieved significant reductions in ambient ozone levels, as evidenced by the fact that 36 of the 46 areas designated nonattainment for the 2008 NAAQS have a design value indi cating the area is at taining the 1997 ozone NAAQS. We also disagree that promulgation of a more stringent standard will undermine efforts to comply with the 1997 NAAQS. Existin g efforts to address the 1997 standard should also provide air quality improvements that move toward meeting the more stringent 2008 ozone

standard. The EPA is concerned about reducin g the burden of transportation planning when multiple ozone standards are in effect, which is why this final rule revokes transportation conformity for the 1997 NAAQS so that future pl ans only need to address the more stringent 2008 NAAQS. To the extent that a state’s failure to submit a required plan would result in a highway funding sanction, we note that the sanc tion does not cut off federal highway funding; rather such funds can only be spent on an enumer ated list of highway pr ojects, including “such other transportation-relate d programs as the Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity.”

The NAAQS and SIP planning processes are specif ied in the CAA and the President’s Executive Order does not modify those stat utory requirements. EPA has been considering the Executive Order as it develops the proposed rule to im plement the 2008 ozone NAAQS and is considering70 how it can best meet the goals stated in the Executive Order in a manner consistent with the requirements of the CAA.

Timeliness.

44

. Comment –EPA should address other implem entation issues as soon as possible.

Many commenters (0020, 0022, 0024, 0026, 0028, 0033, 0034, 0041, 0042, 0048, 0049, 0052) urged EPA to issue further implemen tation guidance in a timely manner.

Several commenters (0022, 0028, 0033) stated that having an implementation rule finalized well before plans are due will provide a better tool to guide local processes, which will ultimately result in better plans, and plans that EPA w ill be able to approve within CAA deadlines. One commenter (0028) stated that by providing the en tire implementation rule as soon as possible, including information on what to do about ch anges in geography and timing requirements, EPA

can ensure that redundancies in work can be av oided and local and state money can be used as efficiently as possible. One commenter (0022) fu rther stated that states should have a full understanding of the requirements for nonatt ainment areas prior to making nonattainment recommendations, and should be provided with the entire attainment planning period for developing the most technically appropriate SI P submittals, and adopting the necessary state laws and regulations to fully comply with the CAA.

One commenter (0041) stated that states must know now what EP A’s expectations are for the SIPs required under CAA §110(a)(2)(D ), but that planning is diffi cult when states are told by EPA that the requirements will be similar to those for the 1997 ozone NAAQS, but EPA continues to delay confirmation of that through a proposed rule . The commenter (0041) urged EPA to share the 2008 ozone NAAQS implementation rule with states as soon as possible.

One commenter (0048) further emphasized how important it is for EPA to provide timely, complete and appropriate guidance for this a nd revisions to all NAAQS. The commenter (0048)

stated that it is difficult to ha ve meaningful public participati on when it cannot answer important questions due to lack of guidance and requireme nts needed to implement the standards.

One commenter (0049) stated that EPA has indi cated that the proposed rule does not address specific SIP requirements associat ed with different classificati on categories, broader revocation (for purposes beyond transportation conformity) of the 1997 ozone NAAQS and any related antibacksliding issues, and EPA stat es, "[t]he remaining implementation requirements for the 2008 ozone NAAQS will be addressed in a separate rulemaking. The commenter (0049) stated that the ozone implementation rule is essential to state and local air agencies and urged EPA to propose and promulgate that rule as quickly as possible.

Several commenters (0020, 0028, 0049) stated that EPA should consider providing the entire implementation rule at once in the future instead of breaking it into two or more separate rules, and for the implementation rules be concurrent with the final NAAQS.

One commenter (0020) specifically stated that it understood that EPA does not intend to respond to any comments related to other issues regarding the implementation of the 2008 ozone71 NAAQS, but that many states, includ ing Georgia, have consistently stated in many forums that it is imperative that these kinds of rules be finalized concur rent with the final NAAQS. The commenter (0020) stated that sin ce these rules have not yet been proposed, it was concerned that EPA will not be able to finalize them in time for effective implementation of the standard. The commenter (0020) stated that de lays in promulgation of the implementation rules result in uncertainty on the part of the states, regulated sources, and the public, which leads to wasted effort on the part of states that are forced to implement the NAAQS without knowing what regulatory path to follow, and also leads to de lays in emission reductions, which is the key element needed for protection of public hea lth and the environment. The commenter (0020)

stated that in a memorandum dated March 25, 2010 from Assistant Administrator Gina McCarthy, she stated that “EPA headquarters pl ans to issue implementation rules and related guidance with NAAQS promulgation or as promptly thereafter as possible.” It has now been more than four years since the 2008 ozone NAAQ S was promulgated and EPA has not proposed any implementation rules (other than the classifi cations and conformity ma tters in this proposal) or issued any substantive implementation gu idance (other than fo r assessing nonattainment boundaries). The commenter (0020) stated that of particular importance is that EPA has not proposed any rulemaking or issued any implemen tation guidance for the purpose of determining significant contribution to nona ttainment or interference.

44. EPA Response.

The CAA sets out in detail the requirements th at apply to areas desi gnated nonattainment for ozone and classified under subpart 2. Wh ile EPA intends to issue shortly a proposed implementation rule that would provide some add itional guidance to States, we believe that the Act, in conjunction with EPA’s interpretation of those provisions for more than 20 years, provides sufficient overall guidance for States to be gin their planning efforts. To the extent that States have questions or concer ns as they develop SIPs to implement the 2008 ozone NAAQS, as always, they should consult with the relevant regional EPA office.

One commenter is correct that in a memorandum issued two years after EPA promulgated the 2008 ozone NAAQS, Gina McCarthy i ndicated EPA’s intention in th e future to at the time of NAAQS promulgation or soon therea fter to issue implementation rules and related guidance. With respect to the 2008 ozone NAAQS, EPA ini tially delayed implementation efforts based on

a decision to reconsider that st andard. Late last summer, EPA determined that it must move forward to implement the 2008 NAAQS and has been acting quickly to do s o, prioritizing first its statutory obligation to designate areas, which entailed issuing a rule regarding how areas would be classified under subpart 2. C oncurrently, but on a slightly la ter schedule, EPA is developing a proposed rule addressing implementation issu es for the 2008 ozone NAAQS, revocation of the 1997 ozone NAAQS for purposes other than tran sportation conformity, and anti-backsliding requirements for the 1997 ozone NAAQS. EPA expects to issue that proposal in the next several

months.72 SIP Implementation Requirements for the 2008 Ozone NAAQS.

Demonstrating Attainment.

45. EPA should simplify attainment demonstrations by requiring a weight-of-the-evidence method for demonstrating attainment rather th an the use of photochemical modeling.

One commenter (0031) stated that demonstr ating attainment through photochemical grid modeling in Moderate areas under subpart 2 or under subpart 1 nonattainment areas would require a great level of resources at the stat e and local level; and alternatively, EPA should require a weight-of-the-evidence method for dem onstrating attainment. The commenter (0031) stated that in California photochemical modeling for demonstrating attainme nt is better reserved for upwind, major, urbanized regions. The comm enter (0031) stated other areas should be allowed to use weight-of-evidence methods incl uding air quality trends, emission assessments, and photochemical modeling done by upwind areas to demonstrate attainment. The commenter (0031) further stated that in many of Calif ornia’s areas, the mount ainous terrain causes unpredictable weather patte rns within the model’s grid cells making it difficult to predict air quality. Consequently, the commenter (0031) stated that photochemical modeling is unavailable

or unsuitable as a stand-alone tool for demonstrating attainment for many areas.

45. EPA Response.

The CAA requires that attainment demonstrations for Serious a nd higher classified areas be based on photochemical modeling or another analytical method that the Administrator

determines is at least as effective. Fo r purposed of the 1997 ozone NAAQS, EPA guidance specified that States should perform a weight-o f-evidence analysis as pa rt of the attainment demonstration for all areas required to have su ch a plan. EPA will be addressing attainment demonstration requirements for the 2008 ozone NAA QS in a separate proposed implementation rule that we expect to issue in the next several months.

Demonstrating reasonable further progress (RFP)

46

. Comment –EPA should provide for th e treatment of nitrogen oxides (NO

x ) emissions in RFP

determinations that accommodate the current scientific understanding that volatile organic compounds (VOC) reductions alone may be relatively ineffectiv e in reducing ozone levels.

One commenter (0031) stated that EPA should provide for the treatment of NO

x emissions in

RFP determinations to accommodate the curren t scientific understanding that VOC reductions alone may be relatively ineffective in reducing oz one levels, particularly in downwind, transportimpact areas in California. Firs t, the commenter (0031) suggested that EPA allow a longer time frame for showing a 15 percent VOC-only reducti on for RFP instead of the current six year period from 1990 to 1996, where the longer period could be from 1990 up to the baseline year of

the RFP demonstration. The commenter (0031) reasoned that while the current requirement reflects the emphasis on the role of VOC in ozone formation at the time of the CAA, this change would continue to secure the necessary VOC re ductions while enabling these areas to take full

credit for more beneficial NO

x reductions. Second, the commen ter (0031) suggested that EPA73 should use a weighting approach in RFP determina tions that is more c onsistent with the CAA and current science. The commenter (0031) note d that CAA §182(c)(2)(C) allows for the use of

NO

x reductions in RFP demonstrations on an eq uivalent ozone formi ng basis, but existing guidance for RFP is more limiting, only allowing for the substitution of NO

x reductions on a one-for-one percent basis.

46. EPA Response.

The EPA intends to address the statutory RFP requirements as they apply for the 2008 ozone NAAQS in a separate proposed implementation rule that we expect to issu e in the next several

months.

47

. Comment –EPA should allow downwind subpart 1 ar eas to use out-of-area emissions in their RFP plans.

One commenter (0031) who supported placing areas solely under the planning provisions of subpart 1 further stated that EPA should allo w downwind subpart 1 areas to use out-of-area emissions in their RFP plans since the subpart 1 language gov erning RFP allows for tailoring RFP requirements to each planning area.

47. EPA Response.

We are placing all nonattainment areas under the classifications pr ovided in subpart 2 and thus we are not addressing subpart 1 RFP requirements in the implementation rules for the 2008 ozone NAAQS.

48. Comment –EPA should allow for base year flexibility for RFP purposes.

One commenter (0031) stated that EPA should allow states to select a year other than 2011 as the baseline year for RFP demonstrations. The commen ter (0031) stated that this will enable states to select the most technically robust and quality assured base year inventory upon which to develop its plans, and if EPA proposes use of either 2008 or 2011 as the baseline year for RFP demonstrations, all emission reductions targets in su ch plans would be calculated from either of these two years. The commenter (0031) reasoned that emission leve ls in both years are expected to be lower due to the economic recession, and RFP em ission targets will be se t at artificially low

levels that will be difficult to meet as the economy rebounds and activity increases.

48. EPA Response.

The EPA intends to address the baseline year requirement as it applies for the 2008 ozone NAAQS in a separate proposed implementation rule that we expect to issu e in the next several

months.74 Miscellaneous Comments

Executive Order (EO) Discussion.

49. Comment –EPA’s cite to EO 13121 is erroneous.

One commenter (0020) noted that in the preamble, EPA makes the statement, “In the spirit of EO 13121 and consistent with EPA policy to promot e communications between the EPA and state and local governments, the EP A is soliciting comments on this proposal from state and local officials.” The commenter (0020) stated that it assumes that the reference to EO 13121 is a typographical error, since this order pertains to Blocking Property of the Governments of the Federal Republic of Yugoslavia (Serbia and Mo ntenegro), the Republic of Serbia, and the Republic of Montenegro, and Prohibiting Trade Tr ansactions Involving th e Federal Republic of Yugoslavia.

49. EPA Response.

The commenter is correct that th is was a typographical error. EPA meant to refer to EO 13132 --

the EO issued for Federalism.

50. Comment –EPA should consider commenter input as the “consu ltation” contemplated by EO 13132, Section 3(d)(3).

One commenter (0020) stated that EO 13132, s ection 3(d)(3) states the following: “in determining whether to establish uniform national standards, consult with appropriate State and

local officials as to the need for national standa rds and any alternatives that would limit the scope

of national standards or otherw ise preserve State prerogatives and authority; and (4) where

national standards are re quired by Federal statutes, consult with appropriate State and local officials in developing those standards.” Th e commenter (0020) asked EPA to consider the correspondence from the commenter (0020) as such “consultation.”

50. EPA Response.

We appreciate the comment. However, in the context of EO 13132 the EPA is not establishing any national standards in the rule being finalized today. The three issues addressed in this final

rule are not ones for which “standards” are set. Ra ther, EPA is establishing how to classify areas for the 2008 ozone NAAQS, attainment dates for each classification of areas, and when the 1997 ozone standard is revoked for purpos es of transportation conformity.

Future Commitments and New Technologies

51. Comment –EPA should approve SIPs with grea ter dependence on future commitments based on developing new, green technologies.

One commenter (0031) stated that EPA should approve SIPs with greater dependence on future commitments based on developing new, green te chnologies. The commenter (0031) stated that75 with more stringent ozone standards on the hor izon and a transition towa rds an economy based on clean energy, EPA should reconsider old polic ies about future commitments. The commenter (0031) noted that in the past EPA expressed unease with SIPs that contain emission reductions from new technologies and maintains that it cannot approve SIPs until many of the new measures in the SIP are adopted by the distri cts and the Air Resources Board (ARB), submitted to EPA, and federally approved. The commenter (0031) believes that a SIP that emphasizes previously-approved measures is not a roadmap for future efforts, but ra ther an accounting of

actions taken to date.

51. EPA Response.

While this issue is not relevant for purposes of the issues being addressed in this final rule, we note that section 182(e) of the C AA addresses this issue specifically, but only for areas classified as Extreme. In addition, we note that for all ar eas EPA interprets the Act to allow approval of commitments in place of adopted measures in lim ited circumstances. See our approval of the SJV PM10 Plan at 69 FR 30005 (May 26,2004), th e SJV 1-hour ozone plan at 75 FR 10420 (March 8, 2010), the Houston-Galveston 1- hour ozone plan at 66 FR 57160 (November 14, 2001), proposed approval of the SJV 2007 PM2.5 SIP at 76 FR 41338 (July 13, 2011), proposed approval of the South Coast PM2.5 SIP at 76 FR 41562 (July 14, 2011), the South Coast 8-hour ozone plan at 77 FR 12674 (March 1, 2012), a nd the SJV 8-hour ozone plan at 77 FR 12652 (March 1, 2012) The U.S. Court of Appeals for the Fifth Circuit upheld EPA’s interpretation of CAA sections 110(a)(2)(A) and 172(c)(6) and the EPA’ s approval of enforceable commitments

in the 1-hour ozone SIP for Houston-Galvest on. (BCCA Appeal Group et al. v. EPA et al., 355 F.3d 817 (5th Cir. 2003)). Although there are thes e limited tools that allow States additional time to adopt cutting edge measures, we note that we do not believe that the Act allows for broad

deferral of measures that will achieve reductions in the short term where such measures are reasonably available.

Rewarding programs for accelerate d attainment of the NAAQS.

52

. EPA should reward programs for accelerated attainment of the ozone NAAQS.

One commenter (0048) stated that the goal should be attainment of the ozone NAAQS as soon as practical to provide public hea lth protection as expeditiously as possible. Consequently, the commenter (0048) stated that th at process should reward and pr ovide maximum flexibility to programs that that can attain the standard on an accelerated basis. The commenter (0048) stated that EPA should consider providing an incentive for areas to attain the NAAQS sooner than would be required, especially as it considers comments on its Ozone Advance program. The commenter (0048) noted that 13 out of 14 ar eas across the nation were successful in implementing the 8-hour Ozone Early Action Compact (EAC) for the 1997 ozone NAAQS, and these areas were provided the incentive of a deferred effective data of a nonattainment designation as long as the require ments of the EAC were followed, including the implementation of measures earlier than required and essentiall y avoided a nonattainment designation altogether.76 52

. EPA Response.

We agree that the goal of the Act is to provide health protection as expedi tiously as practicable. We have introduced the Ozone Advance program as a collaborative effort between EPA, states, tribes, and local governments to encourage exped itious emission reductions in ozone attainment areas to help these areas con tinue to meet the NAAQS for gr ound-level ozone. For those areas designated nonattainment, Congre ss enacted a more rigorous pr ogram for attainment of the NAAQS because of the past failure of areas to adopt plans and meet attainment deadlines under more flexible provisions. The EPA does not have authority to modify statutory mandates. We do not believe that the EAC approach is not a viable approach but are open to exploring incentive programs that are consistent with the Act.

Additional funding for states.

53

. EPA should provide additional funding to states to implement new federal requirements.

One commenter (0048) stated that it is imperative that states and local air programs receive additional funding to implement new federal require ments, and to help ease the financial burden, EPA should immediately implement the funding allo cation formula that was finalized in late 2008 by the EPA funding allocation formula wor kgroup. The commenter (0048) further stated that EPA should recognize the valu e in the regional pr ocess and financially support this technical work, as significant financial resources have been conserved by states working together regionally on the technical work required to develop inventories and conduct the modeling necessary for the SIPs that must be submitted to the EPA to demonstrate how standards will be

met.

53

. EPA Response.

EPA agrees that additional funds are needed by st ate, local and tribal ai r programs for basic CAA implementation and the EPA has again requested a si gnificant increase in funds for these core air program operations for FY 2013. However, the uncertain budget climate notwithstanding, EPA and its partners must still addre ss the realignment of st ate grant funds in orde r to target resources to the most pressing air quality problems while s till maintaining the integrity of state/local air program operations. In April 2011, the EPA Assist ant Administrator for the Office of Air and Radiation (OAR) indicated that, despite uncertain fundi ng levels, the EPA would need to move

towards a reallocation consistent with its guiding princi ples and would work with states/locals in implementing a reasonable, equitabl e approach beginning in FY 2013.

EPA agrees that there is value in states working together to address regi onal air quality issues, but Congress is no longer target ing dedicated funding for the Re gional Planning Organizations (RPOs). The RPOs, originally formed from ex isting multi-jurisdictional organizations, were

created to assist states in char acterizing their regional haze problem and in developing their state implementation plans to address it. The EPA is work ing with state, local, and tribal agencies that still find it advantageous to conti nue to support key RPO activities.77 The conformity process.

54. The conformity process is flawed.

One commenter (0051) opined that the transpor tation conformity process is flawed. The commenter (0051) suggested that conformity la pses occur due to missed deadlines and not because of air quality problems. The commente r (0051) believes that conformity does not emphasize true transportation planning that is good for the environment and the mobility of the region’s population. The commenter (0051) is also concerned tran sportation plans having long planning horizons requiring fre quent updates, and most air qual ity plans having short planning horizons and being updated infrequently.

Another commenter (0049) stated th at the conformity process suffe rs from budgets that exert no downward pressure on transportation emissions a nd a lack of requirements for future budgets. The commenter included an example to illustrate his views. The commenter (0049) believes that incentives to reduce emissions in the transportati on process by smart growth and travel demand strategies no longer exist.

54

. EPA Response.

All of these are comments are outside of the scope of today’s rulemaking. EPA did not propose any changes to the transportation conformity regulations. EPA me rely proposed and is finalizing a revocation of the 1997 8-hour ozone NAAQS for tr ansportation conformity purposes effective one year after the effective date of de signations for the 2008 8-hour ozone NAAQS.

With regard to comments made by the first comme nter, the conformity rule ’s requirements that address the frequency of conformity determinatio ns and the timeframe over which transportation conformity is determined are based on specific requirements contained in Clean Air Act section 176(c)(3)(E), (4)(D)(ii), and (7). The commen ter should also be aware that Clean Air Act section 176(c)(9) establishes a 12-month grace peri od before the consequences of a conformity lapse are applied; therefore, giving an area the opportunity to make a conformity determination before a lapse is put in place.

The second commenter appears to be under th e misimpression that a SIP’s motor vehicle emissions budgets are control measures. The budgets that the commenter refers to are contained in an area’s implementation plan and those budgets must be consistent with the purpose of an area’s implementation plan (i.e., reasonable furthe r progress, attainment or maintenance) and the control measures contained in that implementati on plan, and must be based on the most recent planning information available when the SIP is deve loped. Therefore, it is not budgets that exert downward pressure on transportation emissions, but rath er the control measures in an area’s SIP. Additionally, an area’s SIP may contain budgets fo r later years (e.g., a year or years after the area’s attainment date); however, those must be consistent with th e area’s SIP and have a basis in fact for planning assumptions concerning expected gr owth in the area. Some strategies such as smart growth are longer term strategies and are not well aligned with short term attainment dates.