Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 82133 

Paperwork Reduction Act 

These rules are not subject to Section 

3504(h) of the Paperwork Reduction Act 

(44 U.S.C. 3501) since they do not 

contain any new information collection 

requirements. 

Small Business Regulatory Enforcement 

Fairness Act 

Because these rules relate to Agency 

procedure and practice and merely 

modify the Agency’s internal processing 

of ballots in representation cases, the 

Board has determined that the 

Congressional review provisions of the 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801) do not 

apply. 

List of Subjects in 29 CFR Part 102 

Administrative practice and 

procedure; Labor-management relations. 

Accordingly, the Board amends 29 

CFR part 102 as follows: 

PART 102—RULES AND 

REGULATIONS, SERIES 8 

■ 1. The authority citation for 29 CFR 

part 102 continues to read as follows: 

Authority: Section 6, National Labor 

Relations Act, as amended (29 U.S.C. 151, 

156). Section 102.117 also issued under 

Section 552(a)(4)(A) of the Freedom of 

Information Act, as amended (5 U.S.C. 

552(a)(4)(A)). Sections 102.143 through 

102.155 also issued under Section 504(c)(1) 

of the Equal Access to Justice Act, as 

amended (5 U.S.C. 504(c)(1)). 

Subpart X—Special Procedures When 

the Board Lacks a Quorum 

■ 2. Add § 102.182 to subpart X to read 

as follows: 

§ 102.182 Representation Cases Should 

Be Processed to Certification. 

During any period when the Board 

lacks a quorum, the second proviso of 

§ 102.67(b) regarding the automatic 

impounding of ballots shall be 

suspended. To the extent practicable, all 

representation cases should continue to 

be processed and the appropriate 

certification should be issued by the 

Regional Director notwithstanding the 

pendency of a request for review, 

subject to revision or revocation by the 

Board pursuant to a request for review 

filed in accordance with this subpart. 

Signed in Washington, DC, on December 

28, 2011. 

Mark Gaston Pearce, 

Chairman. 

[FR Doc. 2011–33668 Filed 12–29–11; 8:45 am] 

BILLING CODE P 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Part 104 

RIN 3142–AA07 

Notification of Employee Rights Under 

the National Labor Relations Act 

AGENCY: National Labor Relations 

Board. 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: On August 30, 2011, the 

National Labor Relations Board (Board) 

published a final rule requiring 

employers, including labor 

organizations in their capacity as 

employers, subject to the National Labor 

Relations Act (NLRA) to post notices 

informing their employees of their rights 

as employees under the NLRA. (76 FR 

54006, August 30, 2011.) On October 12, 

2011, the Board amended that rule to 

delay the effective date from November 

14, 2011, to January 31, 2012. (76 FR 

63188, October 12, 2011.) The Board 

hereby further amends that rule to delay 

the effective date from January 31, 2012, 

to April 30, 2012. The purpose of this 

amendment is to facilitate the resolution 

of the legal challenges with respect to 

the rule. 

DATES: This amendment is effective 

December 30, 2011. The effective date of 

the final rule published at 76 FR 54006, 

August 30, 2011, and amended at 76 FR 

63188, October 12, 2011, is delayed 

from January 31, 2012 to April 30, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Lester A. Heltzer, Executive Secretary, 

National Labor Relations Board, 1099 

14th Street NW., Washington, DC 20570, 

(202) 273–1067 (this is not a toll-free 

number), 1–(866) 315–6572 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: On August 

30, 2011, the National Labor Relations 

Board published a final rule requiring 

employers, including labor 

organizations in their capacity as 

employers, subject to the National Labor 

Relations Act (NLRA) to post notices 

informing their employees of their rights 

as employees under the NLRA. The 

Board subsequently determined that in 

the interest of ensuring broad voluntary 

compliance with the rule concerning 

notification of employee rights under 

the National Labor Relations Act, 

further public education and outreach 

efforts would be helpful. Accordingly, 

the Board changed the effective date of 

the rule from November 14, 2011, to 

January 31, 2012, in order to allow time 

for such an education and outreach 

effort. On December 19, 2011, the U.S. 

District Court for the District of 

Columbia requested that the Board 

consider postponing the effective date of 

the rule in connection with a pending 

proceeding concerning the rule. The 

Board has determined that postponing 

the effective date of the rule would 

facilitate the resolution of the legal 

challenges that have been filed with 

respect to the rule. Accordingly, the 

Board has decided to change the 

effective date of the rule from January 

31, 2012 to April 30, 2012. 

Signed in Washington, DC, on December 

23, 2011. 

Mark Gaston Pearce, 

Chairman. 

[FR Doc. 2011–33571 Filed 12–29–11; 8:45 am] 

BILLING CODE 7545–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0638; FRL–9612–8] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

California; Determinations of Failure 

To Attain the One-Hour Ozone 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is taking final action 

to determine that three areas in 

California, previously designated 

nonattainment for the now-revoked onehour ozone national ambient air quality 

standard (NAAQS), did not attain that 

standard by their applicable attainment 

dates: the Los Angeles-South Coast Air 

Basin Area (‘‘South Coast’’), the San 

Joaquin Valley Area (‘‘San Joaquin 

Valley’’), and the Southeast Desert 

Modified Air Quality Maintenance Area 

(‘‘Southeast Desert’’). These 

determinations are based on three years 

of quality-assured and certified ambient 

air quality monitoring data for the 

period preceding the applicable 

attainment deadline. 

DATES: Effective Date: This rule is 

effective on January 30, 2012. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2011–0638 for 

this action. The index to the docket is 

available electronically at 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 


tkelley on DSK3SPTVN1PROD with RULES
82134 Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 

1For ease of communication, many reports of 

ozone concentrations are given in parts per billion 

(ppb); ppb = ppm × 1000. Thus, 0.12 ppm becomes 

120 ppb (or between 120 to 124 ppb, when 

rounding is considered). 

2An ‘‘expected number’’ of exceedances is a 

statistical term that refers to an arithmetic average. 

An ‘‘expected number’’ of exceedances may be 

equivalent to the number of observed exceedances 

plus an increment that accounts for incomplete 

sampling. See, 40 CFR part 50, appendix H. 

Because, in this context, the term ‘‘exceedances’’ 

refers to days (during which the daily maximum 

hourly ozone concentration exceeded 0.124 ppm), 

the maximum possible number of exceedances in a 

given year is 365 (or 366 in a leap year). 

3The South Coast includes Orange County, the 

southwestern two-thirds of Los Angeles County, 

southwestern San Bernardino County, and western 

Riverside County (see 40 CFR 81.305). 

4San Joaquin Valley includes all of Fresno, Kings, 

Madera, Merced, San Joaquin, Stanislaus, and 

Tulare counties, as well as the western half of Kern 

County (see 40 CFR 81.305). 

5The Southeast Desert covers the Victor Valley/ 

Barstow region in San Bernardino County, the 

Coachella Valley region in Riverside County, and 

the Antelope Valley portion of Los Angeles County 

(see 40 CFR 81.305). 

6 ‘‘Indian country’’ as defined at 18 U.S.C. 1151 

refers to: ‘‘(a) all land within the limits of any 

Indian reservation under the jurisdiction of the 

United States Government, notwithstanding the 

issuance of any patent, and, including rights-of-way 

running through the reservation, (b) all dependent 

Indian communities within the borders of the 

United States whether within the original or 

subsequently acquired territory thereof, and 

whether within or without the limits of a state, and 

(c) all Indian allotments, the Indian titles to which 

have not been extinguished, including rights-of-way 

running through the same.’’ 

either location (e.g., Confidential 

Business Information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Doris Lo, (415) 972–3959, or by email at 

lo.doris@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. EPA’s Proposed Action 

A. Background 

B. Technical Evaluation 

C. Consequences 

II. Public Comments and EPA Responses 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. EPA’s Proposed Action 

On September 14, 2011 (76 FR 56694), 

EPA proposed to determine, under the 

Clean Air Act (CAA or ‘‘Act’’), that three 

areas previously designated 

nonattainment for the one-hour ozone 

NAAQS—the South Coast, the San 

Joaquin Valley, and the Southeast 

Desert—failed to attain the NAAQS for 

one-hour ozone by their applicable onehour NAAQS attainment dates. 

A. Background 

Regulatory Context 

The Act requires us to establish 

NAAQS for certain widespread 

pollutants that cause or contribute to air 

pollution that is reasonably anticipated 

to endanger public health or welfare 

(sections 108 and 109 of the Act). In 

1979, we promulgated the revised onehour ozone standard of 0.12 parts per 

million (ppm) (44 FR 8202, February 8, 

1979).1

An area is considered to have attained 

the one-hour ozone standard if there are 

no violations of the standard, as 

determined in accordance with the 

regulation codified at 40 CFR section 

50.9, based on three consecutive 

calendar years of complete, qualityassured and certified monitoring data. A 

violation occurs when the ambient 

ozone air quality monitoring data show 

greater than one (1.0) ‘‘expected 

number’’ of exceedances per year at any 

site in the area, when averaged over 

three consecutive calendar years.2 An 

exceedance occurs when the maximum 

hourly ozone concentration during any 

day exceeds 0.124 ppm. For more 

information, please see ‘‘National 1- 

hour primary and secondary ambient air 

quality standards for ozone’’ (40 CFR 

50.9) and ‘‘Interpretation of the 1-Hour 

Primary and Secondary National 

Ambient Air Quality Standards for 

Ozone’’ (40 CFR part 50, appendix H). 

The Act, as amended in 1990, 

required EPA to designate as 

nonattainment any area that was 

violating the one-hour ozone standard, 

generally based on air quality 

monitoring data from the 1987 through 

1989 period (section 107(d)(4) of the 

Act; 56 FR 56694, November 6, 1991). 

The Act further classified these areas, 

based on the severity of their 

nonattainment problem, as Marginal, 

Moderate, Serious, Severe, or Extreme. 

The control requirements and date by 

which attainment of the one-hour ozone 

standard was to be achieved varied with 

an area’s classification. Marginal areas 

were subject to the fewest mandated 

control requirements and had the 

earliest attainment date, November 15, 

1993, while Severe and Extreme areas 

were subject to more stringent planning 

requirements and were provided more 

time to attain the standard. Two 

measures that are triggered if a Severe 

or Extreme area fails to attain the 

standard by the applicable attainment 

date are contingency measures [section 

172(c)(9)] and a major stationary source 

fee provision [sections 182(d)(3) and 

185](‘‘major source fee program’’ or 

‘‘section 185 fee program’’). 

Designations and Classifications 

On November 6, 1991, EPA 

designated the South Coast 3 as 

‘‘Extreme’’ nonattainment for the onehour ozone standard, with an 

attainment date no later than November 

15, 2010 (56 FR 56694). In its November 

6, 1991 final rule, EPA designated the 

San Joaquin Valley 4 as ‘‘Serious’’ 

nonattainment for the one-hour ozone 

standard, but later reclassified the valley 

as ‘‘Severe’’ (66 FR 56476, November 8, 

2001), and then as ‘‘Extreme’’ (69 FR 

20550, April 16, 2004) for the one-hour 

ozone standard, with the same 

attainment date (November 15, 2010) as 

the South Coast. In its 1991 final rule, 

EPA designated the Southeast Desert 5

as ‘‘Severe-17’’ nonattainment for the 

one-hour ozone standard, with an 

attainment date no later than November 

15, 2007. 

Outside of Indian country,6 the South 

Coast lies within the jurisdiction of the 

South Coast Air Quality Management 

District (SCAQMD). Similarly, with the 

exception of Indian country, San 

Joaquin Valley lies within the San 

Joaquin Valley Unified Air Pollution 

Control District (SJVUAPCD). Likewise, 

excluding Indian country, the Los 

Angeles portion of the Southeast Desert 

lies within the Antelope Valley Air 

Quality Management District 

(AVAQMD), the San Bernardino County 

portion of the Southeast Desert lies 

within the Mojave Desert Air Quality 

Management District (MDAQMD), and 

the Riverside County portion of the 

Southeast Desert lies within the 

SCAQMD. 

Under California law, each air district 

is responsible for adopting and 

implementing stationary source rules, 

such as the fee program rules required 

under CAA section 185, while the 

California Air Resources Board (CARB) 

adopts and implements consumer 

products and mobile source rules. The 

district and state rules are submitted to 

EPA by CARB. 

Transition From One-Hour Ozone 

Standard to Eight-Hour Ozone Standard 

In 1997, EPA promulgated a new, 

more protective standard for ozone 

based on an eight-hour average 

concentration (the 1997 eight-hour 

ozone standard). In 2004, EPA 

published the 1997 eight-hour ozone 

designations and classifications and a 

rule governing certain facets of 

implementation of the eight-hour ozone 

standard (herein referred to as the 

‘‘Phase 1 Rule’’) (69 FR 23858 and 69 FR 

23951, respectively, April 30, 2004). 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 82135 

7Final Rule to Implement the 8-Hour Ozone 

National Ambient Air Quality Standard—Phase 1, 

69 FR 23951 (April 30, 2004). 

8 Generally, a ‘‘complete’’ data set for determining 

attainment of the ozone is one that includes three 

years of data with an average percent of days with 

valid monitoring data greater than 90% with no 

single year less than 75%. See 40 CFR part 50, 

appendix I. There are less stringent data 

requirements for showing that a monitor has failed 

an attainment test and thus has recorded a violation 

of the standard. 

9The average number of expected exceedances is 

determined by averaging the expected exceedances 

of the one-hour ozone standard over a consecutive 

three calendar year period. See 40 CFR part 50, 

appendix H. 

Although EPA revoked the one-hour 

ozone standard (effective June 15, 2005), 

to comply with anti-backsliding 

requirements of the Act, eight-hour 

ozone nonattainment areas remain 

subject to certain requirements based on 

their one-hour ozone classification. 

Initially, in our rules to address the 

transition from the one-hour to the 

eight-hour ozone standard, EPA did not 

include contingency measures or the 

section 185 fee program among the 

measures retained as one-hour ozone 

anti-backsliding requirements.7

However, on December 23, 2006, the 

United States Court of Appeals for the 

District of Columbia Circuit determined 

that EPA should not have excluded 

these requirements (and certain others 

not relevant here) from its antibacksliding requirements. South Coast 

Air Quality Management District v. EPA, 

472 F.3d 882 (DC Cir. 2006) reh’g 

denied 489 F.3d 1245 (clarifying that 

the vacatur was limited to the issues on 

which the court granted the petitions for 

review) (referred to herein as the South 

Coast case). 

Thus, the Court vacated the 

provisions that excluded these 

requirements. As a result, States must 

continue to meet the obligations for onehour ozone NAAQS contingency 

measures and, for Severe and Extreme 

areas, section 185 major source fee 

programs. EPA has issued a proposed 

rule that would remove those specific 

portions of 40 CFR 51.905(e) that the 

court vacated, and that addresses 

contingency measures for failure to 

attain or make reasonable further 

progress toward attainment of the onehour standard. See 74 FR 2936, January 

16, 2009 (proposed rule); 74 FR 7027, 

February 12, 2009 (notice of public 

hearing and extension of comment 

period). 

Rationale for Proposed Action 

In our September 14, 2011 proposed 

rule, we explained that, after revocation 

of the one-hour ozone standard, EPA 

must continue to provide a mechanism 

to give effect to the one-hour antibacksliding requirements that have been 

specifically retained. See South Coast, 

47 F.3d 882, at 903. In keeping with this 

responsibility with respect to one-hour 

anti-backsliding contingency measures 

and section 185 fee programs for these 

three California areas, on September 14, 

2011, EPA proposed to determine that 

each area failed to attain the one-hour 

ozone standard by its applicable 

attainment date. 

B. Technical Evaluation 

A determination of whether an area’s 

air quality meets the one-hour ozone 

standard is generally based upon three 

years of complete,8 quality-assured and 

certified air quality monitoring data 

gathered at established State and Local 

Air Monitoring Stations (‘‘SLAMS’’) in 

the nonattainment area and entered into 

the EPA’s Air Quality System (AQS) 

database. Data from air monitors 

operated by state/local agencies in 

compliance with EPA monitoring 

requirements must be submitted to the 

AQS database. Monitoring agencies 

annually certify that these data are 

accurate to the best of their knowledge. 

Accordingly, EPA relies primarily on 

data in its AQS database when 

determining the attainment status of an 

area. See 40 CFR 50.9; 40 CFR part 50, 

appendix H; 40 CFR part 53; 40 CFR 

part 58, appendices A, C, D and E. All 

data are reviewed to determine the 

area’s air quality status in accordance 

with 40 CFR part 50, appendix H. 

Under EPA regulations at 40 CFR 

50.9, the one-hour ozone standard is 

attained at a monitoring site when the 

expected number of days per calendar 

year with maximum hourly average 

concentrations above 0.12 parts per 

million (235 micrograms per cubic 

meter) is equal to or less than 1, as 

determined by 40 CFR part 50, appendix 

H.9

In our September 14, 2011 proposed 

rule, EPA proposed to determine that 

the South Coast, the San Joaquin Valley, 

and the Southeast Desert failed to attain 

the one-hour ozone standard by their 

applicable attainment dates based on 

findings that the number of expected 

exceedances at sites in each of the three 

nonattainment areas was greater than 

one per year in the period prior to the 

applicable attainment date. These 

proposed determinations were based on 

three years of quality-assured and 

certified ambient air quality monitoring 

data in AQS for the 2008–2010 

monitoring period for the South Coast 

and the San Joaquin Valley, and qualityassured and certified data in AQS for 

2005–2007 for the Southeast Desert. 

In so doing, in our September 14, 

2011 proposed rule, we reviewed 

documents prepared by CARB and the 

local air districts in connection with the 

ozone monitoring networks as well as 

any applicable EPA technical systems 

audits to determine the 

comprehensiveness and reliability of the 

data reported to AQS and used by EPA 

to determine the attainment status of the 

areas with respect to the one-hour ozone 

standard. We then evaluated the ozone 

monitoring data contained in AQS from 

each area against the criterion discussed 

above to determine whether the areas 

attained the one-hour ozone standard by 

their applicable attainment dates. 

With respect to the South Coast, based 

on the monitoring data from 29 ozone 

monitoring sites for the years 2008– 

2010, we found that, generally, the 

highest ozone concentrations in the 

South Coast occur in the northern and 

eastern portions of the area. We also 

determined that the highest three-year 

average of expected exceedances at any 

site in the South Coast Air Basin for 

2008–2010 is 10.4 (at Crestline, a site 

located at 4,500 feet elevation in the San 

Bernardino Mountains). Because the 

calculated exceedance rate of 10.4 

represents a violation of the one-hour 

ozone standard (a three-year average of 

expected exceedances less than or equal 

to 1), and taking into account the extent 

and reliability of the applicable ozone 

monitoring network, and the data 

collected therefrom, we proposed in our 

September 14, 2011 action to determine 

that the South Coast Air Basin failed to 

attain the one-hour ozone standard (as 

defined in 40 CFR part 50, appendix H) 

by the applicable attainment date (i.e., 

November 15, 2010). Please see pages 

56696–56698 in the September 14, 2011 

proposed rule for additional information 

on the ozone monitoring network 

operating in the South Coast during the 

relevant period and the data collected 

therefrom. 

With respect to the San Joaquin 

Valley, based on the monitoring data 

from 22 ozone monitoring sites for the 

years 2008–2010, we found that, 

generally, the highest ozone 

concentrations in San Joaquin Valley 

occur in the central (i.e., in and around 

the city of Fresno) and the southern 

portions (i.e., southeast of Bakersfield) 

of the area. We also determined that the 

highest three-year average of expected 

exceedances at any site in the San 

Joaquin Valley for 2008–2010 is 6.6 at 

Arvin, a site located with mountains to 

the east, west, and south. Because the 

calculated exceedance rate of 6.6 

represents a violation of the one-hour 

ozone standard (a three-year average of 

expected exceedances less than or equal 


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82136 Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 

to 1), and taking into account the extent 

and reliability of the applicable ozone 

monitoring network, and the data 

collected therefrom, we proposed in our 

September 14, 2011 action to determine 

that the San Joaquin Valley failed to 

attain the one-hour ozone standard (as 

defined in 40 CFR part 50, appendix H) 

by the applicable attainment date (i.e., 

November 15, 2010). Please see pages 

56698–56699 in the September 14, 2011 

proposed rule for additional information 

on the ozone monitoring network 

operating in the San Joaquin Valley 

during the relevant period and the data 

collected therefrom. 

With respect to the Southeast Desert, 

based on the monitoring data from nine 

ozone monitoring sites for the years 

2005–2007, we found that, generally, 

the highest ozone concentrations in the 

Southeast Desert occur in the far 

southwestern portion of the area, near 

mountain passes through which 

pollutants are transported to the 

Southeast Desert from the South Coast 

Air Basin. We also determined that the 

highest three-year average of expected 

exceedances at any site in the Southeast 

Desert for 2005–2007 is 2.3 at Palm 

Springs in Riverside County and 

Hesperia in San Bernardino County. 

Because the calculated exceedance rate 

of 2.3 represents a violation of the onehour ozone standard (a three-year 

average of expected exceedances less 

than or equal to 1), and taking into 

account the extent and reliability of the 

applicable ozone monitoring network, 

and the data collected therefrom, we 

proposed to determine in our September 

14, 2011 proposed action that the 

Southeast Desert failed to attain the onehour ozone standard (as defined in 40 

CFR part 50, appendix H) by the 

applicable attainment date (i.e., 

November 15, 2007). Please see pages 

56699–56700 in the September 14, 2011 

proposed rule for additional information 

on the ozone monitoring network 

operating in the Southeast Desert during 

the relevant period and the data 

collected therefrom. 

C. Consequences 

In our September 14, 2011 proposed 

rule, we explained that a final 

determination of a Severe or Extreme 

area’s failure to attain by its one-hour 

ozone NAAQS attainment date would 

trigger the obligation to implement onehour contingency measures for failure to 

attain under section 172(c)(9) and fee 

programs under sections 182(d)(3), 

182(f), and 185. Section 172(c)(9) 

requires one-hour ozone SIPs, other 

than for ‘‘Marginal’’ areas, to provide for 

implementation of specific measures 

(referred to herein as ‘‘contingency 

measures’’) to be undertaken if the area 

fails to attain the NAAQS by the 

attainment date. Thus, in our September 

14, 2011 proposed rules, we stated that 

a consequence of the proposed 

determinations, if finalized, would be to 

give effect to any one-hour ozone 

contingency measures that are not 

already in effect within the three subject 

California nonattainment areas. 

Section 182(d)(3) requires SIPs to 

include provisions required under 

section 185, and section 185 requires 

one-hour ozone SIPs in areas classified 

as ‘‘Severe’’ or ‘‘Extreme’’ to provide 

that, if the area has failed to attain the 

standard by the applicable attainment 

date, each major stationary source of 

ozone precursors located in the area 

must begin paying a fee [computed in 

accordance with section 185(b)] to the 

State. Section 182(f) extends the section 

185 requirements, among others, that 

apply to major stationary sources of 

VOCs to major stationary sources of 

NOX unless EPA has waived such 

requirements for NOX sources in the 

particular nonattainment area. Thus, in 

our September 14, 2011 proposed rules, 

we stated that another consequence of 

the determinations, if finalized, would 

be to give effect to the section 185 fee 

requirements to the extent they are not 

already in effect within the three subject 

California nonattainment areas. 

Please see pages 56700–56701 in the 

September 14, 2011 proposed rule for 

additional information on the 

consequences of our proposed 

determinations in the three subject 

California one-hour ozone 

nonattainment areas. 

II. Public Comments and EPA 

Responses 

Our September 14, 2011 proposed 

rule provided a 30-day comment period. 

During this period, we received three 

comment letters: a letter from the San 

Joaquin Valley Unified Air Pollution 

Control District (SJVUAPCD) dated 

October 12, 2011; a letter from the South 

Coast Air Quality Management District 

(SCAQMD) dated October 13, 2011; and 

a letter from Earthjustice dated October 

14, 2011. None of the commenters 

challenge EPA’s proposed air quality 

determinations themselves, nor any 

aspect of the technical basis for the 

proposed determinations. Rather, they 

variously challenge the necessity, 

rationale, and statutory basis for the 

proposed actions and the consequences 

that they entail. We have summarized 

the comments from each commenter’s 

letter and provide EPA’s responses 

below. 

San Joaquin Valley Unified Air 

Pollution Control District—Comments 

and Responses 

SJVUAPCD Comment #1: The 

SJVUAPCD provides a number of 

grounds to support its argument that 

EPA should not make a determination 

that the San Joaquin Valley failed to 

meet its deadline for attaining the onehour ozone standard. The District’s 

reasons include: the one-hour ozone 

standard has been revoked; EPA’s Phase 

1 Ozone Implementation rule stated that 

EPA will no longer make findings of 

failure to attain for one-hour ozone 

nonattainment areas, citing 69 FR 

23951, at 23984 (April 30, 2004); while 

certain provisions of EPA’s April 2004 

Ozone Implementation rule were 

vacated, the applicable provision related 

to findings of failure to attain was not 

challenged, and thus EPA remains 

bound by it. 

EPA Response to SJVUAPCD 

Comment #1: Under EPA’s April 30, 

2004 Phase 1 Rule, EPA is no longer 

obligated, after revocation of the onehour ozone standard, to determine 

pursuant to section 179(c) or 181(b)(2) 

of the CAA whether an area attained the 

one-hour ozone standard by that area’s 

attainment date for the one-hour ozone 

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

agrees that the relevant provision from 

EPA’s Phase 1 Rule [i.e., 40 CFR 

51.905(e)(2)] was not challenged and 

has not been vacated, but disagrees that 

this provision precludes EPA from 

making the determinations that are the 

subject of this notice. First, although the 

provision states that the Agency is no 

longer obligated to make certain 

determinations, it does not prohibit the 

Agency from exercising its discretion to 

do so. However, more to the point, EPA 

is not today invoking the authority of 

section 179(c) to determine that the San 

Joaquin Valley failed to attain the onehour ozone standard by the applicable 

attainment date. Rather, EPA is acting 

pursuant to its obligations to give effect 

to two specific one-hour ozone antibacksliding requirements whose 

implementation is dependent on such 

determinations. In doing so, EPA is 

complying with the DC Circuit’s 

directive to formulate the Agency’s 

procedures to dovetail with the required 

anti-backsliding measures. For the 

reasons explained in our September 14, 

2011 proposed rule and further below, 

EPA is acting pursuant to its authority 

under section 301(a) and also the 

relevant portion of section 181(b)(2). 

SJVUAPCD Comment #2: The 

SJVUAPCD believes that EPA’s action is 

unnecessary with respect to the San 

Joaquin Valley because the District’s 


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10EPA proposed approval of SJVUAPCD Rule 

3170 at 76 FR 45212 (July 28, 2011). 

one-hour ozone contingency measures 

take effect without further action by the 

District or EPA, and because, with 

respect to section 185 fees, the DC 

Circuit did not specify the mechanism 

that EPA must use to trigger section 185 

fees, and the District’s rule 

implementing section 185 has been 

proposed for approval by EPA. 

EPA Response to SJVUAPCD 

Comment #2: EPA recognizes that the 

approved one-hour ozone plan for the 

San Joaquin Valley relies on existing 

State and federal on- and off-road road 

new engine standards to meet the 

contingency measure requirements in 

section 172(c)(9), 75 FR 10420, at 10432 

(March 8, 2010) and that such standards 

are already being implemented and 

provide an estimated additional benefit 

in 2011 beyond the reductions from 

those measures in 2010 regardless of our 

determination of failure to attain the 

one-hour ozone standard for the San 

Joaquin Valley. EPA also recognizes that 

the District’s rule (i.e., District Rule 

3170) that is intended to implement 

section 185 of the CAA in connection 

with the one-hour ozone standard does 

not condition its applicability upon 

EPA’s determination of failure by the 

area to attain the one-hour ozone 

standard by the applicable attainment 

date and that the rule has been 

submitted to EPA for review.10 EPA, 

however, believes that a determination 

of failure to attain the one-hour ozone 

standard is appropriate to eliminate any 

uncertainty as to whether such 

measures and rules must continue to be 

implemented in San Joaquin Valley for 

anti-backsliding purposes. 

South Coast Air Quality Management 

District—Comments and Responses 

SCAQMD Comment #1: SCAQMD 

asserts that there is no need for EPA to 

make the proposed determinations. 

SCAQMD believes that, with respect to 

the South Coast, there is no need for a 

‘‘trigger mechanism’’ which would 

inform the area that, due to its failure to 

attain, the area must implement section 

185 fees and contingency measures 

because the related section 185 fees rule 

(SCAQMD Rule 317) has been adopted 

and submitted to EPA and because the 

contingency measures have already 

been implemented. 

EPA Response to SCAQMD Comment 

#1: We recognize that SCAQMD Rule 

317 has already been adopted by the 

District and submitted to EPA by CARB 

as a revision to the California SIP. As is 

true for the corresponding SJVUAPCD 

rule, SCAQMD Rule 317 does not 

condition applicability on EPA making 

a determination of failure to attain the 

one-hour ozone standard (by the 

applicable attainment date), and thus, 

the rule is in effect regardless of EPA’s 

determination herein. EPA has not yet 

acted to approve this SIP revision. 

Furthermore, prior to today’s action, 

there has been no final determination of 

the area’s failure to attain, which is 

what establishes the requirement to 

implement a rule developed to comply 

with section 185. Without a dispositive 

determination that implementation is 

required, it would be difficult if not 

impossible to clearly establish and 

enforce the obligation, and to assess 

when it may cease. Moreover, because 

EPA has not yet taken final action to 

approve SCAQMD Rule 317, and if we 

were to disapprove the rule, or if we 

were to approve SCAQMD Rule 317, but 

find that the SCAQMD is not 

administering and enforcing the rule, 

EPA could be under an obligation to 

implement the fee program required 

under section 185 [see CAA section 

185(d)]. Thus, in order to comply with 

the process set forth in section 185, and 

to provide a legal basis for the State 

and/or EPA as appropriate to collect 

fees, EPA must ensure that the 

necessary determination for application 

of section 185 has been made. Thus, 

EPA concludes that, in the 

circumstances presented, the agency 

must make the determination that 

triggers the obligation to implement 

section 185, and we do so today in this 

document. 

Moreover, the Agency has grounds to 

make today’s determination other than 

for purposes of implementing 

contingency measures. EPA’s 

determination is also linked to 

implementation of anti-backsliding 

requirements under section 185. Thus, 

today’s action is not aimed solely at 

one-hour ozone contingency measures. 

SCAQMD Comment #2: Even if it 

were necessary for EPA to have a 

‘‘trigger mechanism’’ to cause an area to 

implement its section 185 fee, or to 

implement contingency measures, the 

SCAQMD believes it is not necessary to 

use a formal determination of failure to 

attain. The SCAQMD states that there is 

nothing in the South Coast case that 

indicated that a formal determination of 

failure to attain is necessary and that, as 

a result, EPA could simply send the 

affected districts a letter informing them 

that those obligations had been triggered 

based on submitted monitoring data. 

EPA Response to SCAQMD Comment 

#2: EPA’s established practice for 

making a determination whether an area 

has attained, or failed to attain, the 

NAAQS is to conduct a rulemaking 

under the Administrative Procedure Act 

(APA), not to issue a letter, a list or 

some other informal document. In other 

words, if there has not been a 

rulemaking providing notice and an 

opportunity for comment, there has not 

been an attainment determination. 

EPA’s longstanding practice in this 

regard was explicitly recognized and 

upheld more than a decade ago by the 

United States Court of Appeals for the 

DC Circuit. The Court rejected the Sierra 

Club’s arguments that means other than 

rulemaking were sufficient for this 

purpose, especially when a 

determination results in additional 

obligations for an area. See Sierra Club 

v. Whitman, 285 F.3d 63, at 66 (DC Cir. 

2002). In determining through notice 

and comment rulemaking that the South 

Coast failed to attain the one-hour ozone 

standard by the applicable attainment 

date, EPA is acting consistently with its 

established practice and applicable 

administrative procedure law in making 

such determinations. 

SCAQMD Comment #3: The SCAQMD 

asserts that the CAA does not authorize 

EPA to make the proposed 

determinations. In support of this 

assertion, the SCAQMD argues that: 

• While CAA sections 179(c) and 

179(d) require EPA to determine 

whether an area attained the standard 

by the applicable attainment date and 

that a new attainment demonstration 

requirement is triggered by a 

determination of failure to attain the 

standard by the applicable attainment 

date under those provisions, the onehour ozone standard has been revoked 

and, as a result, the one-hour ozone 

standard is no longer a ‘‘standard’’ for 

the purposes of section 179(c) and 

section 179(d); 

• EPA’s past statements, such as 

those from EPA’s April 30, 2004 Phase 

1 Rule, indicate that areas would no 

longer have the obligation to 

demonstrate attainment of the revoked 

one-hour ozone standard if the area had 

an approved one-hour ozone attainment 

demonstration; and 

• The recent decision published by 

the U.S. Court of Appeals for the Ninth 

Circuit (Association of Irritated 

Residents v. EPA, 632 F.3d 584 (9th Cir. 

2011) that appears to require EPA to 

assure that California demonstrate 

attainment of the one-hour ozone 

standard for the South Coast was 

rendered without consideration of the 

fact that the plan in issue there was 

aimed at attaining the one-hour ozone 

standard, which had been revoked by 

the time EPA acted on the plan, and that 

the decision is pending appeal and not 

yet final. 


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EPA Response to SCAQMD Comment 

#3: In making today’s final 

determinations, we are not acting 

pursuant to section 179(c) nor triggering 

the related requirements under section 

179(d). Neither of these provisions was 

retained as a 1-hour ozone antibacksliding requirement, and the 

relevant provisions of the antibacksliding rule in this respect were not 

challenged. As explained in our 

September 14, 2011 proposed rule, we 

are acting here in accordance with our 

obligation to enforce specific one-hour 

ozone anti-backsliding requirements, 

and the DC Circuit’s instruction to us in 

the South Coast case that we determine 

the process necessary for that purpose. 

Thus, as explained in our proposal and 

elsewhere in this notice, we are acting 

here pursuant to our general authority 

in section 301(a) and the relevant 

portion of section 181(b)(2) concerning 

attainment determinations (i.e., not the 

portion concerning reclassifications, 

which the commenter correctly notes 

was not retained for anti-backsliding 

purposes), and for the purpose of 

effectuating the two anti-backsliding 

provisions that are triggered by a 

determination of failure to meet the 

attainment deadline—contingency 

measures and section 185 fees. 

EPA believes that the Ninth Circuit’s 

decision in the Association of Irritated 

Residents (AIR) case cited by SCAQMD 

has no bearing on the question raised in 

this rulemaking regarding whether EPA 

must invoke section 179 when it seeks 

to make a determination regarding 1- 

hour ozone contingency and fee antibacksliding measures. The AIR case 

centers on EPA’s duties under section 

110(l) of the CAA when it reviews a SIP 

revision, particularly, a SIP revision that 

includes an attainment demonstration. 

It does not pertain to the issue raised in 

this rulemaking—whether section 179, 

though not preserved in EPA’s antibacksliding provisions, should 

nonetheless be tacked on for the first 

time here as an additional antibacksliding requirement to impose yet 

further planning for a revoked standard. 

In contrast to AIR, which considers 

EPA’s duty at the time it reviews a plan, 

the question raised in this rulemaking is 

not whether the plan’s faults were 

known at the time of plan review. The 

question here regarding section 179(c) 

concerns only whether that section’s 

provision, which was not preserved as 

an anti-backsliding requirement, can be 

applied to extract an additional round of 

planning based on a subsequent failure 

to attain. As EPA explains elsewhere in 

this notice, the answer is that it cannot. 

Section 179’s requirement for additional 

planning was not included in the antibacksliding measures that were 

exhaustively litigated, reviewed and 

dispositively determined by the DC 

Circuit. As noted, the exclusion of 

section 179, and in particular the 

additional planning requirements in 

section 179(d), from the list of 

applicable requirements that continue to 

apply for anti-backsliding purposes was 

not challenged and remains the current 

law. Above all, sections 179(c) and (d) 

are not necessary to the enforcement of 

any of the anti-backsliding requirements 

which are included. 

SCAQMD Comment #4: SCAQMD 

acknowledges that EPA’s proposal 

described the consequences of the 

determinations only in terms of section 

185 fees and contingency measures, but 

is concerned that if EPA finalizes the 

proposed action, it will be used in an 

effort to compel SCAQMD to submit a 

plan to attain the revoked one-hour 

standard. 

EPA Response to SCAQMD Comment 

#4: EPA’s final determinations in this 

rulemaking are intended to effectuate 

only those 1-hour anti-backsliding 

requirements that have been specifically 

retained, and which are activated by a 

finding of failure to attain. For the 

reasons set forth at length elsewhere in 

these responses, EPA is not acting 

pursuant to section 179, and does not 

believe that section’s provisions can be 

invoked to require additional rounds of 

planning for the revoked 1-hour 

standard. EPA and the states are 

implementing the one-hour standard, 

which has been revoked, by means of 

the specified one-hour anti-backsliding 

requirements. While EPA agrees that it 

must continue to make determinations 

of attainment or failure to attain the onehour ozone standard by the applicable 

attainment date, it is for the sole 

purpose of ensuring implementation of 

those one-hour ozone anti-backsliding 

requirements (section 185 fees and 

contingency measures) and not to trigger 

new attainment demonstration plans or 

reclassifications for the revoked onehour ozone standard. EPA’s reasoning is 

elaborated further in its responses below 

to the comments of Earthjustice. 

SCAQMD Comment #5: SCAQMD 

states that it has recently initiated the 

2012 Air Quality Management Plan 

(AQMP) development process. 

SCAQMD anticipates that the 2012 

AQMP will be submitted to EPA by the 

end of 2012 and will include a 

demonstration of attainment of the 24- 

hour PM2.5 standard and an update to 

the ‘‘black box’’ commitment under 

CAA section 182(e)(5) for attainment of 

the 1997 8-hour ozone standard. 

SCAQMD asserts that this plan will 

necessarily include all feasible measures 

and believes that it is doubtful that 

additional measures could be identified 

solely for the purposes of addressing the 

revoked one-hour ozone standard. 

SCAQMD also asserts that the strategies 

for emissions reductions would 

essentially be the same for both the one 

and eight-hour ozone standards. 

SCAQMD argues that no separate 

additional plan for the revoked onehour ozone standard should be required, 

since the 2012 plan for the eight-hour 

standard will evaluate future one-hour 

ozone design values and, all feasible 

measures are being taken, and the 

additional resource needed to prepare 

such a demonstration would divert 

resources away from the effort to 

demonstrate attainment with the current 

NAAQS. Thus, SCAQMD believes that 

requiring a new attainment 

demonstration for the one-hour ozone 

standard is not necessary and is overly 

burdensome given the upcoming 2012 

AQMP. 

EPA Response to SCAQMD Comment 

#5: As stated above, EPA believes that 

the anti-backsliding requirements 

applicable for the revoked 1-hour ozone 

standard are limited to those specified 

in EPA’s regulations and the South 

Coast decision, and do not and should 

not compel additional planning for the 

one-hour standard here. We agree that 

requiring a new attainment 

demonstration for the one-hour ozone 

standard for the South Coast is not 

necessary or required by a final 

determination today that the South 

Coast failed to attain the one-hour ozone 

standard by the applicable attainment 

date. As set forth in our September 14, 

2011 proposed rule and elsewhere in 

this document, we are making today’s 

determination pursuant to our authority 

under CAA section 301(a) and also 

under the relevant portion of section 

181(b)(2), in order to ensure 

implementation of only those measures 

specifically identified as one-hour 

ozone anti-backsliding requirements—in 

this case—contingency measures and 

section 185 fees. 

SCAQMD Comment #6: SCAQMD 

requests that EPA clarify that a final 

determination of failure to attain does 

not trigger any obligation to submit an 

attainment demonstration for the 

revoked one-hour ozone standard. 

EPA Response to SCAQMD Comment 

#6: In this final rule, EPA explains and 

responds to comments concerning the 

statutory basis and rationale set forth in 

our September 14, 2011 proposed rule 

for the determination of failure to attain 

the one-hour ozone standard by the 

applicable attainment date. EPA is 

taking this action under its authority to 


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ensure implementation of one-hour 

ozone anti-backsliding requirements 

under CAA section 301(a) and the 

relevant portion of section 181(b)(2). 

Thus, EPA is stating plainly that today’s 

determination does not trigger any 

requirement for the State of California to 

prepare and submit a new attainment 

demonstration for the one-hour ozone 

standard under section 179(c) and (d) 

for any of the three subject California 

nonattainment areas. As EPA has stated 

elsewhere, a new additional attainment 

demonstration triggered by a failure to 

attain the one-hour ozone standard by 

the attainment date is not an 

‘‘applicable requirement’’ for the 

purposes of anti-backsliding in 40 CFR 

51.905 and 40 CFR 51.900(f). 

SCAQMD Comment #7: The SCAQMD 

requests that EPA separate the Coachella 

Valley from the remainder of the 

Southeast Desert Air Basin and 

determine that the Coachella Valley has 

attained the one-hour ozone standard. 

SCAQMD acknowledges that the 

Coachella Valley still exceeded the 

revoked one-hour ozone standard in the 

three-year period before 2007, but 

believes that Coachella Valley can now 

show it has attained the revoked onehour standard based on data from the 

2008–2010 period. 

EPA Response to SCAQMD Comment 

#7: The air quality determinations that 

are the subject of this rulemaking focus 

solely on whether the areas attained the 

one-hour ozone standard by the 

applicable attainment dates. Whether an 

area is currently attaining the standard 

is not relevant to these determinations. 

In the case of the South Coast and the 

San Joaquin Valley, the applicable 

attainment date was November 15, 2010, 

and the determination of whether the 

areas attained by the applicable 

attainment date is based on data from 

2008–2010. For the Southeast Desert, 

the determination of whether the area 

met its attainment date is based on data 

for 2005–2007. As a Severe-17 area, the 

area’s applicable attainment date for the 

one-hour ozone standard was November 

15, 2007. 

In today’s rulemaking, EPA is not 

addressing current attainment of the 

one-hour ozone standard in these areas 

or making a determination regarding 

current attainment of any area. Should 

the SCAQMD wish to seek a revision of 

the boundary of the Southeast Desert 

one-hour ozone nonattainment area in 

order to establish a separate Coachella 

Valley one-hour ozone nonattainment 

area and a determination by EPA that 

this area is currently attaining the onehour ozone standard, the SCAQMD 

should work with CARB to prepare and 

submit a request for a boundary 

redesignation under CAA section 

107(d)(3)(D) and for a related attainment 

determination. EPA would then 

consider such requests in a separate 

rulemaking. 

SCAQMD Comment #8: SCAQMD 

states that it believes that, for the sake 

of consistency and to avoid future 

litigation, EPA should make 

determinations similar to today’s 

determinations for all areas in the 

United States that failed to attain the 

revoked ozone standard by their 

applicable attainment dates. 

EPA Response to SCAQMD Comment 

#8: By mid-2012, EPA intends to make 

a determination of attainment or failure 

to attain the one-hour ozone standard 

for approximately 20 areas throughout 

the country, consisting of almost every 

one-hour ozone nonattainment area that 

was classified as Moderate or above on 

June 15, 2005 (the date of revocation of 

the one-hour ozone standard) and that is 

currently designated as nonattainment 

for the 1997 8-hour ozone standard. The 

only two exceptions, Portsmouth-DoverRochester, New Hampshire and 

Providence, Rhode Island were 

classified as ‘‘Serious’’ for the one-hour 

ozone standard, and thus not subject to 

section 185 fee requirements, and EPA 

has determined through rulemaking that 

they are attaining the 1997 eight-hour 

ozone standard. See 75 FR 64949 

(October 21, 2010)(Providence, RI); and 

76 FR 14805 (March 18, 2011) 

(Portsmouth-Dover-Rochester, NH). 

The areas for which EPA has made 

determinations regarding attainment of 

the one-hour ozone standard, or for 

which EPA is committed to make 

determinations, are: South Coast (CA); 

San Joaquin Valley (CA); Southeast 

Desert (CA); Chicago-Gary-Lake County 

(IL–IN); Houston-Galveston (TX); 

Milwaukee-Racine (WI); New York-N. 

New Jersey-Long Island (NY–NJ–CT); 

Baltimore (MD); Baton Rouge (LA); 

Philadelphia-Wilmington-Trenton (PA– 

NJ–DE–MD); Sacramento Metro (CA); 

Ventura County (CA); Metropolitan 

Washington (DC–MD–VA); BeaumontPort Arthur (TX); Boston-LawrenceWorcester (MA–NH); Dallas-Fort Worth 

(TX); El Paso (TX); Greater Connecticut 

(CT); Springfield (Western MA); 

Atlantic City (NJ); and Poughkeepsie 

(NY). 

Earthjustice—Comments and Responses 

Earthjustice Comment #1: Earthjustice 

states that it assumes that EPA’s failure 

to cite the relevant sections of the CAA 

and fully explain the implications of a 

failure to attain is an oversight because 

it contends that the requirements in 

CAA sections 179(c) and 181(b)(2) 

plainly mandate EPA to determine 

whether a nonattainment area attained 

the standard by the applicable 

attainment date. 

EPA Response to Earthjustice 

Comment #1: For a number of reasons, 

EPA does not agree that it is compelled 

to act under the authority of CAA 

sections 179(c) and 181(b)(2) when 

making determinations for the revoked 

one-hour ozone standard. CAA section 

179(c) requires, in relevant part, that 

EPA determine, based on the area’s air 

quality as of the attainment date, 

whether the area attained the standard 

by that date. CAA section 179(c) applies 

to all of the NAAQS whereas CAA 

section 181(b)(2), in relevant part, 

largely mirrors section 179(c) and 

applies specifically to the ozone 

standard. 

Both section 179(c) and 181(b)(2) refer 

to the ‘‘standard,’’ which doubtless 

applies to the NAAQS, but which does 

not clearly apply to a revoked standard, 

such as the one-hour ozone standard, 

which was revoked after promulgation 

of the 1997 eight-hour ozone standard, 

one year after the effective date of 

designations for the 1997 ozone 

standard. See 40 CFR 50.9(b). Based on 

an effective date of June 15, 2004 for 

designations for the eight-hour ozone 

standard (see 69 FR 23951, April 30, 

2004), the date for revocation of the onehour ozone standard was June 15, 2005. 

Because we are well past that date, the 

revoked one-hour ozone NAAQS no 

longer constitutes a ‘‘standard’’ for the 

purposes of sections 179(c) or 181(b)(2). 

Moreover, not all CAA provisions that 

applied prior to revocation of the onehour standard were preserved as antibacksliding requirements. Only 

specified requirements were identified 

and retained as applicable requirements. 

While EPA’s identification of these 

requirements was challenged in the 

South Coast litigation, the DC Circuit’s 

decisions in that case disposed of those 

challenges and closed the door on the 

issue of what constitutes an antibacksliding requirement. The provisions 

of the rule indicating that EPA would 

not be obligated to make determinations 

under section 179(c) for purposes of 

future planning or section 181(b)(2) for 

purposes of reclassifications were not 

challenged and stand as promulgated. 

Even more significantly, the 

consequences of determinations set 

forth in portions of those provisions— 

reclassification and additional one-hour 

planning—were not retained as antibacksliding requirements. This aspect of 

the anti-backsliding regime was not 

challenged by litigants or addressed by 

the South Coast Court. The court 

vacated only those portions of EPA’s 

implementation rule that it addressed in 


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its South Coast decision. In accordance 

with EPA’s Phase 1 Ozone 

Implementation Rule, EPA is no longer 

obligated, after revocation of the onehour ozone standard, to determine 

pursuant to section 179(c) or section 

181(b)(2) of the CAA whether an area 

attained the one-hour ozone standard by 

that area’s attainment date for the onehour ozone standard. See 40 CFR 

51.905(e)(2). While EPA remains 

obligated to ensure implementation of 

those one-hour ozone anti-backsliding 

measures that were retained as 

applicable requirements, EPA is not 

obligated to, and has elected not to 

apply section 179(c) to make 

determinations whether an area attained 

the one-hour ozone standard by the 

applicable attainment date. EPA is 

undertaking these determinations 

expressly and solely to give effect to the 

anti-backsliding requirements for 

contingency measures and section 185 

fees that have been retained as 

applicable requirements and which are 

linked to such determinations, under 

our authority under CAA section 301(a) 

and the relevant portion of section 

181(b)(2) consistent with the South 

Coast decision. The only antibacksliding requirements related to 

attainment planning for the one-hour 

ozone standard are contained in EPA’s 

regulation 40 CFR 51.905(a), which does 

not include any obligations for 

subsequent planning rounds under 

section 179(d). Section 179(d) prescribes 

consequences that were not retained for 

purposes of anti-backsliding after 

revocation of the one-hour ozone 

standard. 

Earthjustice Comment #2: Earthjustice 

states its belief that the consequences of 

a failure to attain are plainly 

enumerated in the Act—a new plan 

meeting the requirements of section 110 

and 172 [see section 179(d)], 

contingency measures approved under 

section 172(c)(9) and section 185 fees. 

EPA Response to Earthjustice 

Comment #2: As stated on page 56700 

of our September 14, 2011 proposed 

rule, we agree that a final determination 

that a Severe or Extreme area failed to 

attain by its one-hour ozone NAAQS 

attainment date triggers a State’s 

obligation to implement one-hour 

contingency measures for failure to 

attain under section 172(c)(9) and fee 

programs under sections 182(d)(3), 

182(f), and 185. Because the South 

Coast, San Joaquin Valley, and 

Southeast Desert areas are classified as 

Extreme (or Severe in the case of the 

Southeast Desert) for the one-hour 

ozone standard, today’s final 

determinations of failure to attain by the 

applicable attainment date trigger the 

obligation to implement such one-hour 

contingency measures and fee programs. 

We do not agree, however, that these 

determinations re-activate a requirement 

to prepare and submit an additional 

round of one-hour attainment planning 

pursuant to CAA section 179(d). Section 

179(d) was not retained as an antibacksliding requirement, and as 

explained in Response to Comment #1, 

above, EPA is not applying section 179 

in order to make the determinations of 

failure to attain for the three subject 

California areas under section 179(c). 

For these and other reasons set forth 

elsewhere in this notice, the additional 

plan requirements under section 179(d) 

are not triggered. 

Earthjustice Comment #3: Earthjustice 

cites the decision by the Court of 

Appeals for the DC Circuit in the South 

Coast Air Quality Mgmt. Dist. v. EPA 

case (472 F.3d 882, 903–904 (DC Cir. 

2007) in asserting that EPA 

unsuccessfully attempted to delete 

certain statutory requirements (i.e., new 

plan under section 179(d), contingency 

measures under section 172(c), and 

section 185 fees) in the Agency’s 2004 

Phase 1 Rule. 

EPA Response to Earthjustice 

Comment #3: We agree that the South 

Coast case, cited above, vacated the 

provisions of EPA’s Phase 1 Rule that 

excluded section 172(c)(9) contingency 

measures and section 185 fees from the 

list of applicable requirements for 

purposes of anti-backsliding after 

revocation of the one-hour ozone 

standard. We disagree, however, that the 

South Coast decision preserves EPA’s 

obligations under CAA section 179(c) or 

the related State obligations under CAA 

section 179(d) after revocation of the 

one-hour ozone standard. EPA’s 

authority to revoke the one-hour ozone 

standard was specifically challenged in 

the South Coast case but upheld by the 

DC Circuit. See South Coast, 472 F.3d 

882, at 899 (‘‘Therefore, EPA retains the 

authority to revoke the one-hour 

standard so long as adequate antibacksliding provisions are introduced.’’) 

As we have noted, the claim that all the 

specific requirements of sections 179(c) 

and (d) and 181(b)(2) should be retained 

and imposed as anti-backsliding 

measures was not raised in the South 

Coast case and cannot be resurrected at 

this time. Because the one-hour ozone 

standard has been revoked, it is no 

longer a ‘‘standard’’ for the purposes of 

CAA section 179(c) and thus the 

statutory requirements of section 179(d) 

also no longer apply. While EPA is 

obliged to make those determinations 

necessary to effectuate the contingency 

measure and fee anti-backsliding 

requirements, there is nothing that 

requires EPA to make those 

determinations under section 179 or 

181, or that dictates the imposition of 

the consequences formerly imposed by 

those sections before revocation, i.e., 

reclassification, second-round 

attainment planning. These were not 

retained as anti-backsliding 

requirements and 40 CFR 51.905(e)(2) 

made that explicit, was never 

challenged, and was not vacated by the 

South Coast decision. Commenters are 

conflating EPA’s obligation to determine 

whether an area attained by its one-hour 

ozone attainment date with the terms of 

section 179, which exceed the limits of, 

and are not necessary for purposes of 

anti-backsliding requirements. 

Earthjustice Comment #4: Earthjustice 

observes that EPA promulgated, as part 

of the Agency’s Phase 1 Rule, a 

provision that states in essence that, 

after revocation, EPA is no longer 

obliged to determine pursuant to section 

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

area attained the one-hour ozone 

standard by that area’s attainment date 

for the one-hour ozone standard, but 

asserts that EPA has never interpreted 

the statute or EPA’s regulations as 

allowing EPA to avoid making the 

required determinations under sections 

179(c) or 181(b)(2) when needed to 

fulfill the obligations of the CAA. In 

support of this contention, Earthjustice 

points to the text found in EPA’s onehour ozone attainment determinations 

for Washoe County [as citing both 179(c) 

and 181(b)(2)], Philadelphia and District 

of Columbia [as citing section 181(b)(2)], 

Southern New Jersey [as citing section 

181(b)(2)] and Milwaukee [as citing 

section 181(b)(2)]. 

EPA Response to Earthjustice 

Comment #4: First, the only example 

that Earthjustice claims as evidence that 

EPA has conceded that it remains 

obligated after revocation of the onehour ozone standard to make attainment 

determinations for the one-hour ozone 

standard under section 179(c), is an 

attainment determination that was made 

before the one-hour ozone standard was 

revoked. EPA’s one-hour ozone 

attainment determination for Washoe 

County, Nevada was published on May 

3, 2005 (70 FR 22803), the one-hour 

ozone standard was revoked on June 15, 

2005. Therefore, EPA’s determination 

for Washoe County proves nothing 

about EPA’s obligation to make 

attainment determinations under 

section 179(c) of the Act after 

revocation. To the contrary, 40 CFR 

51.905(e)(2) clearly provides: ‘‘Upon 

revocation of the 1-hour NAAQS for an 

area, EPA is no longer obligated (A) To 

determine pursuant to section 181(b)(2) 


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or section 179(c) of the CAA whether an 

area attained * * *.’’ 

Second, although after revocation, on 

a number of occasions, EPA has cited 

section 181(b)(2)—but never section 

179—when determining that areas 

attained the one-hour ozone standard by 

the applicable deadline, all of these 

rulemakings were determinations of 

attainment rather than determinations of 

failure to attain. Because the areas met 

their attainment deadlines, EPA was not 

determining or imposing the 

consequences of failure to attain. 

Moreover, when EPA invoked section 

181(b)(2) in determining that areas had 

attained the one-hour ozone deadline, 

EPA made clear in those actions that the 

only portion of section 181(b)(2) 

applicable for purposes of the one-hour 

ozone anti-backsliding requirements 

was the obligation to make the 

determination itself, since the portions 

of the section prescribing the 

consequence of reclassification had not 

been retained. 40 CFR 51.905(e). 

For example, in one of the 

determinations of attainment, EPA 

noted that: 

‘‘EPA remains obligated under section 

181(b)(2) to determine whether an area 

attained the one-hour ozone NAAQS by its 

attainment date. However, after the 

revocation of the one-hour ozone NAAQS, 

EPA is no longer obligated to reclassify an 

area to a higher classification for the onehour NAAQS based upon a determination 

that the area failed to attain the one-hour 

NAAQS by the area’s attainment date for the 

one-hour NAAQS. (40 CFR 

51.905(e)(2)(i)(B).) Thus even if we make a 

finding that an area has failed to attain the 

one-hour ozone NAAQS by its attainment 

date, the area would not be reclassified to a 

higher classification.’’ 73 FR 42727, at 42728 

(July 23, 2008). 

As EPA has noted, after revocation, 

the only possible anti-backsliding 

requirements triggered by a failure to 

attain the one-hour ozone attainment 

deadline are the requirements of 

sections 172(c)(9) (i.e., contingency 

measures) and 185 (i.e., fees). Thus, 

even if EPA were to invoke section 

181(b)(2) as the statutory basis under 

which EPA is obligated to make 

determinations of attainment or failure 

to attain the one-hour ozone standard in 

the South Coast, San Joaquin Valley, 

and Southeast Desert, no requirement 

for new plans would be triggered for 

these areas. None of EPA’s postrevocation determinations regarding 

one-hour attainment deadlines cite 

section 179(c). All of the post-revocation 

rulemakings determining attainment by 

the attainment deadline that cite section 

181(b)(2) do so only with respect to the 

obligation to make the requisite air 

quality determination for the sole 

purpose of the applicable one-hour antibacksliding requirements linked to such 

determinations, i.e., contingency 

measures and section 185 fees. An 

additional round of one-hour attainment 

planning is not one of these ‘‘applicable 

requirements.’’ See 40 CFR 51.900(f) 

and 51.905(a)(1). One could also 

conclude that the requirement and 

corresponding obligation to adopt and 

implement a new one-hour attainment 

plan for failure to attain the one-hour 

ozone standard by the applicable 

attainment date, in contrast to the 

obligation to adopt and implement 

contingency measures and fees, could 

not be an ‘‘applicable requirement’’ for 

anti-backsliding purposes for the 

purposes of 40 CFR 51.900(f) and 

51.905(a)(1) in the South Coast, San 

Joaquin Valley and Southeast Desert 

because the only applicable attainment 

dates that could trigger new planning 

requirements for these areas were well 

after June 15, 2004, the date of 

designation for the eight-hour ozone 

standard and the date that determines 

which ‘‘applicable requirements’’ apply 

to any given eight-hour ozone 

nonattainment area. As such, new 

planning requirements triggered by a 

failure to attain by the applicable 

attainment date could not have been a 

requirement on that date, and thus 

could not be an ‘‘applicable 

requirement’’ for the purposes of antibacksliding. 

Earthjustice Comment #5: Earthjustice 

contends that, between the plain 

language of the CAA and EPA’s 

consistent interpretation of these 

provisions, there is no question that 

section 179(c) or section 181(b)(2) is the 

appropriate authority for making the 

determinations that the South Coast, 

San Joaquin Valley, and Southeast 

Desert one-hour ozone nonattainment 

areas have failed to attain the applicable 

attainment dates but notes that EPA 

cites neither one, but instead cites 

section 301(a) as providing the authority 

for EPA’s determination. Earthjustice 

faults the September 14, 2011 proposed 

rule for failing to explain how or why 

section 301(a) provides the appropriate 

authority for the action, what 

regulations are being ‘‘prescribed’’ 

under section 301(a), and why such 

regulations are ‘‘necessary’’ given the 

statutory and regulatory commands. 

EPA Response to Earthjustice 

Comment #5: Section 301(a)(1) of the 

CAA, in relevant part, provides that: 

‘‘The Administrator is authorized to 

prescribe such regulations as are 

necessary to carry out his functions 

under this chapter.’’ Today’s final rule 

is a regulation that included EPA review 

and evaluation of air quality 

information in relation to a standard 

and that followed the procedural 

requirements of the Administrative 

Procedure Act, including publication of 

a proposed rule and the consideration of 

public comments. 

EPA’s invocation of section 301(a) is 

appropriate because the South Coast 

Court required EPA to determine the 

procedures necessary to enforce the 

contingency measures and section 185 

fees requirements, but did not specify 

those procedures. In the words of the 

South Coast court: ‘‘While EPA 

maintains that it would be impractical 

to enforce [section 185 fees] because 

EPA will no longer make findings of 

attainment * * *, section 172(e) does 

not condition its strict distaste for 

backsliding on EPA’s determinations of 

expediency; EPA must determine its 

procedures after it has identified what 

findings must be made under the Act.’’ 

South Coast, 472 F.3d 882, at 903. The 

court’s decision in South Coast did not 

compel EPA to make determinations for 

the one-hour ozone standard under any 

specific provision of the statute, much 

less CAA sections 179(c) or 181(b)(2). 

Nor did the Court’s decision vacate 40 

CFR 51.905(e)(2), which relieves EPA of 

the obligation to make determinations 

under sections 181(b) and section 179. 

The South Coast decision simply 

required EPA to identify the procedures 

to make the findings related to antibacksliding measures. 

In response, EPA has identified a 

determination of attainment or failure to 

attain the one-hour ozone standard by 

the applicable attainment date, made 

through notice and comment 

rulemaking, as the necessary and 

appropriate procedure to be followed to 

effectuate the specific one-hour ozone 

anti-backsliding measures of sections 

172(c)(9) and 185. EPA believes that 

section 301(a) therefore provides 

appropriate authority for EPA to 

promulgate the necessary procedures to 

fulfill the objective of ensuring 

implementation of anti-backsliding 

measures and be consistent with 40 CFR 

51.905(e)(2). EPA also believes that it 

would not bring about any different 

result were EPA instead to invoke that 

portion of section 181(b)(2) that 

addresses such attainment 

determinations. To this extent, EPA 

agrees with the suggestion of the 

commenter that it may also rely on 

authority of section 181(b)(2) as a basis 

for continuing to make determinations 

for the limited purpose of effectuating 

one-hour ozone contingency measures 

and section 185 fees. After revocation, 

the other portions of section 181(b)(2) 

regarding consequences of these 

determinations, including 


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reclassifications, are no longer 

applicable under 40 CFR 51.905(e)(2). 

Conversely, there is no need or 

justification for reliance on section 

179(c), which has played no role with 

respect to the one-hour standard since 

revocation of the standard. For the 

purpose of ensuring the contingency 

measure and fee anti-backsliding 

measures, it is not necessary for EPA to 

trigger the obsolete planning 

requirements of section 179(d) with 

which section 179(c) was linked, nor is 

EPA obligated to do so. In these 

circumstances, section 179 should not 

be used to revive an additional one-hour 

planning obligation that has not been 

preserved as an anti-backsliding 

requirement. 

We recognize that, subsequent to 

revocation of the one-hour ozone 

standard, we have cited section 

181(b)(2) as preserving an obligation to 

make determinations of attainment for 

the one-hour ozone standard by the 

applicable attainment date. As we have 

observed, however, we have been 

careful in every instance to sever the 

attainment determination itself from 

other portions of that section—notably, 

the obligation to reclassify areas that fail 

to attain the one-hour ozone standard by 

the applicable attainment date. EPA 

believes it is consistent with the statute, 

the South Coast decision and EPA’s 

Phase 1 Rule to proceed either under 

section 301(a) or section 181(b)(2)’s 

provision for making a determination, 

for the limited purpose of ensuring 

implementation of anti-backsliding 

measures. In acting under either 

provision, EPA is enforcing those 

specific requirements that are applicable 

for anti-backsliding. In no way do EPA’s 

determinations act to revive the 

additional one-hour requirements that 

have not been retained for antibacksliding—one-hour planning 

requirements under section 179(d) and 

reclassification. 

Earthjustice Comment #6: Earthjustice 

questions whether the action to 

determine that the three subject 

California nonattainment areas failed to 

attain the one-hour ozone standard by 

the applicable attainment dates is an 

authority that has been delegated to the 

Regional Administrator from the EPA 

Administrator. 

EPA Response to Earthjustice 

Comment #6: Section 301(a)(1) of the 

CAA, in relevant part, provides that: 

‘‘The Administrator may delegate to any 

officer or employee of the 

Environmental Protection Agency such 

of his powers and duties under this 

chapter, except the making of 

regulations subject to section 7607(d) of 

this title, as he may deem necessary or 

expedient.’’ This rulemaking is not one 

of the regulations subject to section 

7607(d) (i.e., section 307(d)). 

Under the authority of CAA section 

301(a)(1), the Administrator has 

delegated numerous authorities under 

the Clean Air Act. As noted above, EPA 

believes that it may also rely on 

authority of section 181(b)(2) as a basis 

for continuing to make determinations 

for the limited purpose of effectuating 

one-hour ozone contingency measures 

and section 185 fees, and with respect 

to section 181(b)(2), Delegation 7–110 in 

the Delegations Manual provides 

authority for Regional Administrators to 

make these determinations. Delegation 

7–110 in relevant part delegates 

authority to regional administrators: 

‘‘[t]o determine, based on the number of 

exceedances, whether an area attained 

its ozone standard by the date required 

(181(b)(2)).’’ Therefore, the EPA Region 

IX Regional Administrator is duly 

authorized to take the final action that 

he does today through this document. 

In addition, under Delegation 7–10 (in 

Chapter 7 of EPA’s Delegations Manual), 

the EPA Administrator has delegated 

authority to propose or take final action 

on any SIP under section 110 of the 

CAA to the Regional Administrators. 

Among the references cited in 

Delegation 7–10 are section 110 and 

section 301(a) of the CAA. EPA’s final 

determinations of failure to attain the 

one-hour ozone standard by the 

applicable attainment dates for South 

Coast, San Joaquin Valley, and 

Southeast Desert are not SIP actions 

themselves but are made herein under 

CAA section 301(a) for the express 

purpose of ensuring implementation of 

one-hour ozone SIP requirements, 

namely, contingency measures and 

section 185 fees, that applied to these 

areas as Severe or Extreme areas for the 

revoked one-hour ozone standard at the 

time of designation of these areas for the 

eight-hour ozone standard. For these 

reasons, EPA’s final determinations 

made herein by the EPA Region IX 

Regional Administrator are covered by 

both Delegation 7–110 and 7–10. 

Earthjustice Comment #7: Earthjustice 

contends that EPA’s invocation of 

section 301(a) is not adequate to 

prescribe new regulatory requirements 

revising the well-established 

‘‘obligations’’ to make findings under 

sections 179(c) and 181(b)(2) to 

implement the requirements of the 

CAA. Earthjustice argues that EPA is 

attempting to change its interpretation 

of its statutory requirements, and asks 

EPA to explain its reasoning for this 

alleged change so as to allow 

commenters to meaningfully comment 

on the Agency’s rationale. Earthjustice 

further states that such a change in the 

ozone implementation rules must be 

made through national rulemaking 

signed by the Administrator. 

EPA Response to Earthjustice 

Comment #7: EPA disagrees with 

Earthjustice’s characterization of EPA’s 

actions here as somehow prescribing 

new regulatory requirements. Rather, it 

is Earthjustice that is seeking to use 

EPA’s determinations here to impose 

additional plan requirements that have 

not been retained for one-hour antibacksliding. EPA here is simply making 

the same air quality determinations and 

applying the same notice and comment 

rulemaking process that it used prior to 

revocation. The only difference is that, 

after revocation of the one-hour 

standard, the purpose and consequences 

of these determinations are no longer 

‘‘reclassification’’ (section 181(b)(2)) or 

requiring additional rounds of SIP 

revisions (section 179(d)). The purpose 

is to ensure implementation of those 

one-hour ozone requirements that EPA 

and the South Coast Court have taken 

pains to identify with specificity. EPA is 

thus acting consistently with the 2004 

Phase 1 Rule and with the directives of 

the Court in the South Coast case. 

Simply because EPA acknowledges it 

now has an obligation to make these 

determinations for purposes of 

legitimate anti-backsliding requirements 

does not mean that these determinations 

call down all the consequences that had 

been excluded from those identified by 

EPA and the Court. See 40 CFR 

51.905(e)(2). Earthjustice, not EPA, is 

attempting to change the established 

rules of anti-backsliding by reviving 

moribund portions of sections 179 

under the guise of enforcing EPA’s 

obligation to make attainment 

determinations for quite different 

purposes. It is Earthjustice that seeks 

improperly to add to the list of antibacksliding requirements by 

representing new requirements as 

merely a procedural mechanism to 

enforce those that have been 

legitimately recognized. 

We strongly disagree with the 

commenter’s claim that we are changing 

our interpretation of the Agency’s 

statutory obligations with respect to the 

one-hour ozone standard. As explained 

above, since revocation of the one-hour 

ozone standard, we have never cited 

section 179(c) as preserving an 

obligation on our part to determine 

whether an area attained the one-hour 

ozone standard by the applicable 

attainment date. We certainly have 

never stated or implied, after revocation 

of the one-hour standard that a 

determination of failure to attain by the 

one-hour attainment deadline would 


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Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 82143 

call for additional section 179(d) 

planning requirements. As pointed out 

above, since revocation we have cited 

section 181(b)(2) only in the context of 

making determinations of attainment 

that do not result in any attendant 

requirements relating to additional 

planning or reclassifications, but rather 

only to implement two specific antibacksliding measures. 

Lastly, contrary to Earthjustice’s 

contention, we believe that, the specific 

language in 40 CFR 51.905(e)(2) 

eliminating any compulsion for EPA to 

make determinations under section 

179(c) for the one-hour ozone standard 

and the availability of other more 

appropriate procedures to enforce antibacksliding requirements, refute any 

argument for reliance on that section. 

The only reason to involve section 

179(c) would be the illegitimate one of 

seeking, long after anti-backsliding 

requirements have been debated and 

established, to add section 179(d) plans 

to the list. It is disingenuous to argue 

the necessity of invoking the authority 

of section 179(c) to enforce the only 

anti-backsliding requirements in play, 

which clearly do not include additional 

one-hour attainment demonstration 

plans under section 179(d). The South 

Coast decision did not vacate 40 CFR 

51.905(e)(2). It established only that, 

notwithstanding that provision, EPA 

must continue to make determinations 

of attainment for purposes other than 

those addressed by that regulation. EPA 

today is complying with the directive of 

the Court, and making through notice 

and comment rulemaking the requisite 

determinations to implement the 

specific anti-backsliding measures of 

contingency measures and section 185 

fees. 

Earthjustice Comment #8: By relying 

on CAA section 301(a), Earthjustice is 

concerned that EPA is attempting to 

invent new procedures for determining 

attainment in order to avoid the 

obligation under section 179(d) to 

prepare a new one-hour ozone plan. 

Waiving the planning obligations 

would, in Earthjustice’s view, violate 

the statute. 

EPA Response to Earthjustice 

Comment #8: EPA is not waiving any 

planning requirements under section 

179(d), because they are not applicable 

as one-hour anti-backsliding 

requirements. In accordance with 40 

CFR 51.905(e)(2), we are no longer 

obligated to make attainment 

determinations under section 179(c) and 

there is nothing in the South Coast case 

or in EPA’s past statements to the 

contrary. In any event, there is no 

provision for retaining further planning 

under section 179(d) with respect to the 

revoked one-hour ozone standard. See 

also EPA Responses to Earthjustice 

Comments elsewhere in this final rule. 

Earthjustice Comment #9: Earthjustice 

contends that spikes in one-hour ozone 

concentrations over 0.12 ppm are 

harmful to public health and that EPA’s 

decision to adopt an eight-hour ozone 

standard was not based on any 

determination that these shorter-term 

exposures were no longer of concern. 

Earthjustice cites EPA’s 1997 final rule 

establishing the eight-hour ozone 

standard as describing new evidence 

that EPA had found of an array of 

adverse health effects associated with 

short-term exposures (i.e., 1 to 3 hours) 

above the standard level of 0.12 ppm. 

EPA Response to Earthjustice 

Comment #9: At root, Earthjustice 

objects to EPA’s decision in 1997 to 

replace the one-hour ozone standard 

with the eight-hour ozone standard 

rather than retaining both standards. 62 

FR 38856 (July 18, 1997). This issue was 

raised many years ago in the comments 

on EPA’s proposal (61 FR 65716, 

December 13, 1996) to revise the ozone 

standard. A number of commenters on 

EPA’s 1996 proposal urged EPA to 

maintain standards based on both onehour and eight-hour averaging times to 

provide protection from one- and eighthour exposures of concern. 62 FR 

38856, at 38863 (column 1). These 

commenters generally argued that an 8- 

hour standard alone could still allow for 

unhealthful high one-hour exposures. 

While EPA acknowledged the 

possibility that an eight-hour ozone 

standard alone could allow for high onehour exposures of concern, at and above 

0.12 ppm, EPA concluded for the 

reasons set forth in the 1997 final rule 

that replacing the one-hour ozone 

standard with an eight-hour ozone 

standard, considering the level and form 

adopted, was appropriate to provide 

adequate and more uniform protection 

of public health from both short-term 

(1–3 hours) and prolonged (6 to 8 hours) 

exposure to ozone in the ambient air. 62 

FR 38856, at 38863 (column 2). The 

decision to retain only the new eighthour ozone standard included the result 

that, apart from the specific 

requirements of 40 CFR 51.905(a) 

regarding one-hour ozone plans, an 

attainment demonstration for the eighthour standard would provide requisite 

protection against violations of both the 

one- and the eight-hour standards. 

EPA’s decision to replace the one-hour 

ozone standard with an eight-hour 

ozone standard has long been settled, 

and EPA does not intend, and is not 

required to re-open that issue in the 

context of today’s determinations. 

Earthjustice Comment #10: Citing 

CAA section 181(a) and the South Coast 

case, Earthjustice believes that Congress 

clearly intended the most polluted 

ozone areas to address the harms caused 

by these peak concentrations within 20 

years of the 1990 CAA Amendments, 

and contends that it would not make 

sense to decide that attainment of the 

one-hour standard was no longer 

needed when the one-hour ozone 

problem is just as serious as Congress 

believed it to be. 

EPA Response to Earthjustice 

Comment #10: This comment 

essentially restates the objection to 

EPA’s decision in 1997 to replace the 

one-hour ozone standard with an eighthour ozone standard and EPA’s decision 

in 2004 to revoke the one-hour ozone 

standard for all areas of the country by 

a fixed date, rather than by the date 

when areas were found to have attained 

the one-hour ozone standard. In 

response to the proposed rule that 

culminated in our 2004 Phase 1 Rule, 

we received and considered comments 

that EPA should retain the one-hour 

ozone standard because it is necessary 

to protect public health. Comments 

submitted in that rulemaking included 

the same assertion that the one-hour 

ozone standard may be more protective 

of public health than the eight-hour 

ozone standard in several areas such as 

the South Coast and Houston, and the 

same assertion that revocation would be 

contrary to the CAA and Congressional 

intent. In our 2004 Phase 1 Rule, we 

responded to these comments, pointing 

out that the question whether the onehour ozone standard is necessary to 

protect public health is a standardsetting issue that was resolved in EPA’s 

1997 final rule promulgating the eighthour ozone standard to replace the onehour ozone standard. See 69 FR 23951, 

at 23970 (column 1) (April 30, 2004). 

Earthjustice’s comment here regarding 

Congressional intent is the same 

argument that was made in the South 

Coast case challenging EPA’s authority 

to revoke the one-hour standard. There, 

the environmental petitioners 

contended that the one-hour ozone 

standard cannot be withdrawn because 

Congress ‘‘codified’’ the one-hour ozone 

standard in subpart 2, but the court 

recognized that, by establishing the 

periodic NAAQS review process in 

section 109(d)(1) of the CAA, Congress 

clearly contemplated the possibility that 

scientific advances would require 

amendment of the national ambient air 

quality standard, and upheld EPA’s 

authority to revoke the one-hour ozone 

standard so long as adequate antibacksliding provisions were applied. 

South Coast, 472 F.3d 882, at 899. 


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11EPA’s approval of the San Joaquin Valley 

‘‘Extreme’’ area one-hour ozone plan is the subject 

of ongoing litigation in the Ninth Circuit Court of 

Appeals. Sierra Club v. EPA (Nos. 10–71457, 10– 

71458). 

In our 2004 Phase 1 Rule, in response 

to comments on the scope of its antibacksliding requirements, EPA 

specifically addressed planning 

requirements under the one-hour ozone 

standard: ‘‘Where they are not required 

by anti-backsliding provisions, EPA 

does not believe that the additional 

burden States would undertake in 

planning to achieve both the 1-hour and 

the 8-hour NAAQS is necessary to 

protect public health.’’ 69 FR 23951, at 

23971 (April 30, 2004). The South Coast 

case also disposed of the specific 

challenges raised as to the adequacy of 

the anti-backsliding provisions in EPA’s 

implementation rule, and established 

specifically which measures were 

required to be retained. As EPA has 

explained elsewhere in responses to 

comments, those provisions do not 

include additional attainment plans 

under section 179. The provisions of 40 

CFR 51.905(e)(2) relating to section 

179(c) were not challenged or vacated 

by the South Coast court. Contrary to 

commenter’s contention, today’s 

determinations fully discharge EPA’s 

responsibility to address the only onehour ozone anti-backsliding measures 

(contingency measures and section 185 

fees) activated by determinations of 

failure to meet one-hour attainment 

deadlines. EPA has struck the balance 

between preserving old one-hour ozone 

requirements and allowing current 

planning and control requirements for 

the newer standards to function on their 

behalf. It is long past the time to 

challenge this balance and dispute the 

revocation of the one-hour ozone 

standard and the established set of onehour anti-backsliding requirements, 

which do not include additional rounds 

of one-hour ozone planning. We also 

note that California has submitted 

attainment demonstration plans for all 

three subject California nonattainment 

areas for the 1997 eight-hour ozone 

standard; such plans also serve to 

promote attainment of the revoked onehour standard. 

Earthjustice’s comment seeks to 

remind EPA that the DC Circuit stated: 

‘‘The Act placed states onto a one-way 

street whose only outlet is attainment.’’ 

South Coast at 472 F.3d 882, at 900. In 

making today’s determinations to ensure 

implementation of one-hour ozone 

contingency measures and section 185 

fees, which the DC Circuit has resolved 

are those required by anti-backsliding 

upon failure to attain the revoked 

standard, EPA is heeding the DC 

Circuit’s admonition in South Coast and 

fulfilling the requirements of the Act. 

Earthjustice Comment #11: 

Earthjustice contends that EPA cannot 

reasonably conclude that the South 

Coast, San Joaquin Valley and Southeast 

Desert areas, now that they have failed 

to attain and their attainment plans 

appear inadequate, can be relieved of 

this obligation to demonstrate 

attainment. In support of this 

contention, Earthjustice cites two Ninth 

Circuit decisions, Association of 

Irritated Residents v. EPA, 632 F.3d 584, 

at 594 (9th Cir. 2011) (herein referred to 

as the AIR case), and Hall v. EPA, 273 

F.3d 1146, at 1159 (9th Cir. 2001) 

(herein referred to as the Hall case). 

EPA Response to Earthjustice 

Comment #11: As explained elsewhere 

in these responses, EPA evaluates the 

adequacy of a plan containing a 

demonstration of attainment, and 

whether it meets all applicable 

requirements, when EPA acts to approve 

or disapprove the plan and not after the 

applicable attainment date. In the case 

of the three subject California 

nonattainment areas, EPA approved the 

one-hour ozone plans prior to the 

applicable attainment dates and thus, 

the determinations that the areas did not 

actually attain the one-hour ozone 

standard by the applicable attainment 

dates was not an issue under 

consideration at that time and does not 

undermine the validity of EPA’s prior 

approvals of the plans at the time they 

were taken. 

The anti-backsliding requirements for 

one-hour ozone attainment 

demonstrations are set forth in 40 CFR 

51.900(f)(13) and 51.905(a)(1)(i). For the 

purposes of anti-backsliding, an eighthour ozone nonattainment area is 

obligated to have a fully-approved 

attainment demonstration plan for the 

one-hour ozone standard based on the 

area’s ozone classification that the area 

had at the time of designation for the 

eight-hour ozone standard. Thus, the 

State of California is obligated to have 

a fully-approved ‘‘Extreme’’ area 

attainment demonstration plan for the 

South Coast and the San Joaquin Valley 

and a fully-approved ‘‘Severe-17’’ area 

attainment demonstration plan for the 

Southeast Desert. EPA approved the 

relevant South Coast plan in April 2000 

(65 FR 18903, April 10, 2000), the 

relevant San Joaquin Valley plan in 

March 2010 (75 FR 10420, March 8, 

2010),11 and the relevant Southeast 

Desert plan in January 1997 (62 FR 

1150, January 8, 1997). 

EPA did disapprove a revision to the 

attainment demonstration plan for the 

South Coast in March 2009 (74 FR 

10176, March 10, 2009) because the 

measures upon which the revised 

attainment demonstration relied had 

been withdrawn, but such disapproval 

does not necessarily undermine EPA’s 

prior approval of the attainment 

demonstration plan for the South Coast. 

This will depend on the final decision 

in the AIR case, once all appeals have 

been resolved. It is possible that EPA 

will need to consider requiring 

California to prepare and submit a new 

one-hour ozone attainment 

demonstration plan for the South Coast, 

but if EPA were to do so, the Agency 

would be acting pursuant to a decision 

that the State had not complied with the 

anti-backsliding requirement for a onehour ozone attainment demonstration 

under 40 CFR 51.905(a)(1) for the South 

Coast, and not because the area had 

failed to attain the one-hour ozone 

standard by the applicable attainment 

date. 

Earthjustice cites the AIR case and 

Hall in support of its contention that it 

is unreasonable for EPA to conclude 

that, in light of the failure of the three 

subject California nonattainment areas 

to attain the one-hour ozone standard by 

the applicable attainment dates, the 

areas can be relieved of the obligation to 

demonstrate attainment of the one-hour 

ozone standard. This argument 

erroneously assumes that there is an 

additional obligation to submit a revised 

one-hour attainment plan even after 

valid approval of the State’s plan as 

required under 40 CFR 51.905(a). These 

two cases stand for the principle that, 

under section 110(l) of the CAA, when 

EPA reviews a SIP revision, EPA must 

evaluate the existing SIP and make a 

determination as to whether the existing 

SIP, as modified by the SIP revision at 

hand, would provide for attainment of 

the national ambient air quality 

standards. In AIR, the specific SIP 

revision at issue was a revised 

attainment demonstration plan for the 

one-hour ozone standard for the South 

Coast. In Hall, the specific SIP revision 

at issue was a set of revised new source 

review rules for Clark County, Nevada. 

Section 110(l) of the CAA applies to 

SIP revisions, and, unlike the case in 

AIR, EPA is not acting today on any SIP 

revision and thus section 110 and both 

the Hall and AIR cases are not relevant 

to this action. After revocation of the 

one-hour standard, a State’s obligation 

with respect to attainment 

demonstration plans for the one-hour 

ozone standard is defined in 40 CFR 

51.905(a)(1)(i). As stated above, because 

California has submitted and EPA has 

approved the one-hour ozone plans for 

San Joaquin Valley and the Southeast 

Desert, the State has addressed its onehour ozone attainment plan obligations 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 82145 

12On December 15, 2011, EPA took final actions 

to approve SIP revisions for the South Coast and 

San Joaquin Valley as meeting, among other 

requirements, the requirement to demonstrate 

attainment of the 1997 eight-hour ozone standard. 

for these areas. For the South Coast, as 

explained above, whether the State has 

satisfied this obligation may depend on 

the final resolution and mandate by the 

Court in the AIR case, but does not 

depend on today’s determination. For 

all three subject areas, today’s 

determinations serve to ensure the 

implementation of one-hour ozone 

contingency measures and section 185 

fees, which, unlike further one-hour 

attainment planning, are the measures 

required by the Court-approved antibacksliding provisions. 

Earthjustice Comment #12: 

Earthjustice demands that, in the final 

rule, EPA clearly communicate that, for 

the South Coast, San Joaquin Valley and 

Southeast Desert areas, new one-hour 

ozone plans complying with the 

requirements of section 179(d) must be 

submitted to EPA within one year of the 

date EPA publishes the final 

determinations. 

EPA Response to Earthjustice 

Comment #12: For the reasons set forth 

elsewhere in EPA’s response to 

comments, we disagree that the 

determinations that we make in this 

document trigger a requirement under 

CAA section 179(d) on the State of 

California to prepare and submit SIP 

revisions including new demonstrations 

of attainment for the one-hour ozone 

standard for the three subject California 

nonattainment areas. A new section 

179(d) ozone plan, triggered by section 

179(c) is not an applicable antibacksliding requirement. 

With respect to anti-backsliding 

requirements, the South Coast Court 

vacated the Phase 1 Rule only with 

respect to the measures addressed. Here, 

the only pertinent anti-backsliding 

measures triggered by a determination 

of failure to meet the one-hour deadline 

are one-hour contingency measures for 

failure to attain and section 185 fees. In 

the South Coast decision reviewing 

EPA’s implementation rule, neither 

51.905(e)’s provisions regarding sections 

179 and 181, nor the exclusion of 

section 179(d) from one-hour antibacksliding requirements was 

challenged by the parties or addressed 

by the Court. Challenges regarding antibacksliding specifically addressed 

sections 172(c)(9) and 185 and two other 

anti-backsliding provisions not relevant 

here (NSR and conformity). To 

effectuate section 172(c)(9) and section 

185 anti-backsliding provisions, EPA is 

determining that these three areas failed 

to attain by their one-hour attainment 

dates. But EPA has explained at length 

why these determinations do not 

reinstate the additional planning 

requirements of section 179(d) that were 

not retained as anti-backsliding 

measures. 

Earthjustice Comment #13: 

Earthjustice contends that the South 

Coast, San Joaquin Valley, and 

Southeast Desert continue to exceed the 

0.12 ppm one-hour ozone standard on a 

regular basis, that these spikes have 

consequences. Earthjustice asserts that, 

after more than 20 years, the residents 

of these areas have not been afforded the 

protections needed and required by the 

Clean Air Act to meet even this 

standard. 

EPA Response to Earthjustice 

Comment #13: EPA recognizes that 

exceedances of the one-hour ozone 

standard in the three subject California 

nonattainment areas have occurred, and 

is making final determinations that the 

three areas have failed to attain the onehour ozone standard by their applicable 

attainment dates. However, EPA also 

recognizes that significant progress has 

been made in lowering peak hourly 

concentrations, frequency of 

exceedances, and the geographic extent 

of exceedances in these areas. Since 

passage of the CAA Amendments of 

1990, one-hour ozone concentrations in 

these areas have decreased, despite 

significant increases in population and 

vehicle miles traveled. For example, 

CARB data indicates that the number of 

days on which concentrations exceeded 

the one-hour ozone standard have 

dropped from 131 in 1990 to only 9 in 

2010 in the South Coast, from 45 in 

1990 to only 7 in 2010 in San Joaquin 

Valley, and from 76 in 1990 to only 3 

in the Mojave Desert portion of the 

Southeast Desert. Moreover, a 

comparison of CARB’s one-hour ozone 

data from the three-year period prior to 

revocation (2002–2004) with 

corresponding data from the three-year 

period following revocation (2006– 

2008) shows a decrease in the annual 

number of days on which the one-hour 

standard was exceeded from 46 to 27 in 

the South Coast, from 26 to 13 in San 

Joaquin Valley, and from 11 to 4 in the 

Mojave Desert portion of the Southeast 

Desert. While we acknowledge that even 

this significant progress has not yet 

resulted in attainment, it does not bear 

the hallmark of backsliding. 

We disagree that the residents of these 

areas are not afforded the protections 

needed and required by the Clean Air 

Act. Through today’s determinations, all 

applicable anti-backsliding 

requirements for the revoked one-hour 

ozone standard must be implemented. 

One-hour anti-backsliding measures, 

moreover, do not operate in a vacuum. 

State planning efforts for attainment of 

the current, more protective eight-hour 

ozone standard, and adoption and 

implementation of control measures 

actively continue.12 These provide an 

ongoing regimen for reducing ozone 

concentrations in terms of both the oneand the eight-hour ozone standards. 

Thus, EPA believes that the residents of 

these areas are being afforded the 

protections that are required in 

accordance with EPA regulations and 

the CAA. 

III. Final Action 

After revocation of the one-hour 

ozone standard, EPA must continue to 

provide a mechanism to give effect to 

the one-hour anti-backsliding 

requirements, see South Coast, 47 F.3d 

882, at 903. Thus, pursuant to EPA’s 

obligation and authority under section 

301(a) and the relevant portion of 

section 181(b)(2) to ensure 

implementation of one-hour ozone antibacksliding requirements, and for the 

reasons given above and in our 

September 14, 2011 proposed rule, EPA 

is taking final action to determine that 

the South Coast, the San Joaquin Valley, 

and the Southeast Desert failed to attain 

the one-hour ozone standard by the 

applicable attainment dates. For South 

Coast and San Joaquin Valley, qualityassured and certified data collected 

during 2008–2010 show that these two 

‘‘Extreme’’ one-hour ozone 

nonattainment areas failed to attain the 

standard by November 15, 2010. For 

Southeast Desert, a ‘‘Severe-17’’ onehour ozone nonattainment area, qualityassured and certified data for 2005–2007 

show that the area failed to attain the 

standard by November 15, 2007. 

These determinations bear on the 

areas’ obligations with respect to the 

one-hour ozone standard antibacksliding requirements whose 

implementation is triggered by a failure 

to attain by the applicable attainment 

date: section 172(c)(9) contingency 

measures for failure to attain and 

sections 182(d)(3) and 185 major 

stationary source fee programs. 

IV. Statutory and Executive Order 

Reviews 

These actions make determinations 

that certain areas did not attain the 

applicable standard based on air quality, 

and do not impose any requirements 

beyond those required by statute and 

regulation. For that reason, these 

actions: 

• Are not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 


tkelley on DSK3SPTVN1PROD with RULES
82146 Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / Rules and Regulations 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

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

• Are not significant regulatory 

actions subject to Executive Order 

13211 (66 FR 28355, May 22, 2001); 

• Are not subject to the requirements 

of Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Do not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by February 28, 

2012. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: December 16, 2011. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.282 is amended by 

adding paragraph (d) to read as follows: 

§ 52.282 Control strategy and regulations: 

Ozone. 

* * * * * 

(d) Determinations that Certain Areas 

Did Not Attain the 1-Hour Ozone 

NAAQS. EPA has determined that the 

Los Angeles-South Coast Air Basin Area 

and the San Joaquin Valley Area 

extreme 1-hour ozone nonattainment 

areas did not attain the 1-hour ozone 

NAAQS by the applicable attainment 

date of November 15, 2010 and that the 

Southeast Desert Modified Air Quality 

Maintenance Area severe-17 1-hour 

ozone nonattainment area did not attain 

the 1-hour ozone NAAQS by the 

applicable attainment date of November 

15, 2007. These determinations bear on 

the areas’ obligations with respect to the 

one-hour ozone standard antibacksliding requirements whose 

implementation is triggered by a 

determination of failure to attain by the 

applicable attainment date: section 

172(c)(9) contingency measures for 

failure to attain and sections 182(d)(3) 

and 185 major stationary source fee 

programs. 

[FR Doc. 2011–33475 Filed 12–29–11; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2010–0865; FRL–9330–2] 

Tepraloxydim; Pesticide Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of tepraloxydim 

in or on the imported commodities ‘‘Pea 

and bean, dried shelled, except soybean, 

subgroup 6C’’ and ‘‘Sunflower subgroup 

20B’’. BASF Corporation requested 

these tolerances under the Federal Food, 

Drug, and Cosmetic Act (FFDCA). This 

regulation also removes established 

tolerances for residues of tepraloxydim 

on ‘‘Lentil, seed’’ and ‘‘Pea, dry, seed,’’ 

as residues on these commodities will 

be covered by the new tolerance on the 

pea and bean subgroup (6C). 

DATES: This regulation is effective 

December 30, 2011. Objections and 

requests for hearings must be received 

on or before February 28, 2012, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2010–0865. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 


tkelley on DSK3SPTVN1PROD with RULES