28424 Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50, 51 and 81 

[EPA–HQ–OAR–2007–0956; FRL–9668–4] 

RIN 2060–AO96 

Final Rule To Implement the 1997 

8-Hour Ozone National Ambient Air 

Quality Standard: Classification of 

Areas That Were Initially Classified 

Under Subpart 1; Revision of the AntiBacksliding Provisions To Address 

1-Hour Contingency Measure 

Requirements; Deletion of Obsolete 

1-Hour Ozone Standard Provision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is revising the rules 

for implementing the 1997 8-hour ozone 

national ambient air quality standards 

(NAAQS) to address certain limited 

portions of the rules vacated by the U.S. 

Court of Appeals for the District of 

Columbia Circuit. This final rule assigns 

Clean Air Act (CAA or Act) 

classifications and associated state 

planning and control requirements to 

selected ozone nonattainment areas. 

This final rule also addresses three 

vacated provisions of the 1997 8-hour 

NAAQS—Phase 1 Implementation Rule 

(April 30, 2004) that provided 

exemptions from the anti-backsliding 

requirements relating to nonattainment 

area New Source Review (NSR), CAA 

section 185 penalty fees, and 

contingency measures, as these three 

requirements applied for the 1-hour 

standard. This rule also reinstates the 

1-hour contingency measures as 

applicable requirements that must be 

retained until the area attains the 1997 

8-hour ozone standard. Finally, this rule 

deletes an obsolete provision that stayed 

the EPA’s authority to revoke the 1-hour 

ozone standard pending the Agency’s 

issuance of a final rule that revises or 

reinstates its revocation authority and 

considers and addresses certain other 

issues. That rule has now been issued. 

DATES: This rule is effective on June 13, 

2012. 

ADDRESSES: The EPA has established a 

docket for this rule, identified by Docket 

ID No. EPA–HQ–OAR–2007–0956. All 

documents in the docket are listed in 

www.regulations.gov. Although listed in 

the index, some information is not 

publicly available, i.e., confidential 

business information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Air and Radiation 

Docket and Information Center, EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. 

FOR FURTHER INFORMATION CONTACT: For 

further general information or 

information on classification of former 

subpart 1 areas, contact Mr. Butch 

Stackhouse, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, 

(C539–01), Research Triangle Park, NC 

27711, phone number (919) 541–2363, 

fax number (919) 541-0824 or by email 

at stackhouse.butch@epa.gov. For 

information on the 1-hour contingency 

measures associated with the 1-hour 

ozone standard contact Mr. H. Lynn 

Dail, Office of Air Quality Planning and 

Standards, (C504–03), U.S. EPA, 

Research Triangle Park, North Carolina 

27711, phone number (919) 541–2363, 

fax number (919) 541–0824, or by email 

at dail.lynn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected directly 

by this action include State, local, and 

tribal governments and specifically 

include the areas identified in Table 1. 

TABLE 1—AFFECTED AREAS INITIALLY CLASSIFIED UNDER SUBPART 1 

State Area 

Arizona ................................. Phoenix-Mesa. 

California .............................. Amador and Calaveras Counties (Central Mountain), Chico, Kern County (Eastern Kern), Mariposa and Tuolumne 

Counties (Southern Mountain), Nevada County, San Diego, Sutter County (Sutter Buttes). 

Colorado ............................... Denver, Boulder, Greeley, Ft. Collins & Loveland. 

Nevada ................................. Las Vegas. 

New York .............................. Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County (Whiteface Mtn.), Jamestown, Rochester. 

Pennsylvania ........................ Pittsburgh-Beaver Valley. 

Entities potentially affected indirectly 

by this action include owners and 

operators of sources of emissions of 

volatile organic compounds (VOCs) and 

nitrogen oxides (NOX), the two 

pollutants that contribute to groundlevel ozone concentrations. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this notice 

is also available on the World Wide 

Web. A copy of this notice will be 

posted at http://www.epa.gov/ttn/naaqs/ 

ozone/o3imp8hr/. 

C. How is this document organized? 

The information presented in this 

Document is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. How is this document organized? 

II. What is the background for this rule? 

III. This Action 

A. Classification of 8-Hour Ozone 

Nonattainment Areas That the EPA Had 

Classified Under Subpart 1 

1. The Proposal 

2. Final Rule 

3. Comments and Responses 

a. Classification of Former Subpart 1 Areas 

b. Timing of SIP Submission Under 

Subpart 2 Classification 

c. Timing of Attainment Date 

d. Data Used for Classification 

e. Other Comments on Classification of 

Former Subpart 1 Areas 

B. Anti-Backsliding Under Revoked 1-Hour 

Ozone Standard-In General 

1. Proposal 

2. Final Rule 

3. Comments 

C. Contingency Measures 

1. Proposal 

2. Final Rule 

3. Comments and Responses 

D. Section 185 Fee Program for 1-Hour 

NAAQS 

1. Proposal 

2. Final Rule 


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Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations 28425 

1 74 FR 2936, January 16, 2009. 

2As the Court made clear in its decision on 

rehearing, the CAA does not mandate coverage 

under subpart 2 of all areas designated 

nonattainment for an ozone NAAQS. As EPA moves 

forward to develop an implementation strategy for 

any future new ozone NAAQS, we may consider 

whether subpart 1 alone might apply for some areas 

for purposes of implementing that NAAQS. 

3We note that areas subject to subpart 2 are also 

subject to subpart 1 to the extent subpart 1 specifies 

requirements that are not suspended by more 

specific obligations under subpart 2. 

3. Comments and Responses 

E. Deletion of Obsolete 1-Hour Ozone 

Standard Provision 

1. Proposal 

2. Final Rule 

3. Comments and Responses 

F. Other Comments 

G. Correction to a Footnote in Proposal 

Rule 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review 

L. Determination Under Section 307(d) 

V. Statutory Authority 

II. What is the background for this rule? 

On January 16, 2009, the EPA 

proposed revisions to the Phase 1 Rule 

for implementing the 1997 8-hour ozone 

NAAQS 1 (Phase 1 Rule) to address 

several of the limited portions of the 

rule vacated by the U.S. Court of 

Appeals for the District of Columbia 

Circuit in South Coast Air Quality 

Management District, et al., v. EPA, 472 

F.3d 882 (D.C. Cir. 2006) reh’g denied 

489 F.3d 1245 (clarifying that the 

vacatur was limited to the issues on 

which the court granted the petitions for 

review). (South Coast). The proposal 

addressed the classification system for 

the subset of initial 8-hour ozone 

nonattainment areas that the Phase 1 

Rule originally covered under CAA title 

I, part D, subpart 1. The proposal also 

addressed how contingency measures 

that are triggered by failure to attain or 

make reasonable progress toward 

attainment of the 1-hour standard 

should apply under the anti-backsliding 

provisions of the Phase 1 Rule. In 

addition, the proposal identified the 

vacated provisions of the rule that 

provided exemptions from the antibacksliding requirements relating to 

1-hour nonattainment NSR, the CAA 

section 185 penalty fees for failure to 

attain the 1-hour standard, and 

contingency measures as these 

requirements applied for the 1-hour 

standard. In the proposal, we planned to 

remove these provisions from the 

regulatory text in 40 CFR 51.905(e). 

Finally, we proposed to delete a 

provision that stayed the EPA’s 

authority to revoke the 1-hour ozone 

standard. A more detailed description of 

the background for this rule appears in 

the January 16, 2009, notice of proposed 

rulemaking (74 FR 2936). 

III. This Action 

A. Classification of 8-Hour Ozone 

Nonattainment Areas That the EPA Had 

Classified Under Subpart 1 

There are a number of areas currently 

designated nonattainment for the 1997 

8-hour ozone NAAQS (0.08 parts per 

million (ppm)) that originally did not 

receive a classification under subpart 2. 

In this action, the EPA is establishing 

initial classifications for these 16 areas 

and immediately finalizing the 

proposed reclassifications to Moderate 

for the areas that would be classified as 

Marginal but that failed to meet the June 

15, 2007 attainment date for Marginal 

areas for the 1997 ozone NAAQS. 

Based on the area classifications, the 

CAA establishes certain planning and 

control requirements for the areas, and 

in this rule, the EPA is specifying the 

deadlines by which states must submit 

plans to meet these requirements. Once 

the ozone air quality in these areas 

meets the 1997 8-hour standard, certain 

of these requirements may be suspended 

by a determination of attainment (Clean 

Data Determination, pursuant to 40 CFR 

51.918, 70 FR 71702). The obligation to 

complete and submit those 

requirements would be suspended as 

long as the area continues to attain the 

standard, and would no longer apply 

once the area is redesignated to 

attainment following the requirements 

of CAA 107(d)(3). However, other 

requirements will continue to apply, 

and appropriate SIP elements must be 

submitted and approved prior to 

redesignation to attainment. 

1. The Proposal 

In the January 16, 2009, proposed 

rule, the EPA proposed that all areas 

designated nonattainment for the 1997 

8-hour ozone standard would be 

classified under and subject to the 

nonattainment planning requirements of 

subpart 2. We proposed to modify the 

regulatory text to remove current 

§ 51.902(b), which was vacated by the 

Court and which subjected certain 

nonattainment areas to regulation only 

under subpart 1.2 The Court vacated the 

Phase 1 rule to the extent it placed 

certain areas solely under the 

implementation provisions of subpart 1. 

Therefore, the proposal addressed 

which provisions of the CAA should 

apply to those areas.3

We also noted that the classifications 

that would be established pursuant to 

this final rule would be the initial 

classifications for the affected areas for 

the 1997 ozone standard. Therefore, we 

proposed to use the 2003 8-hour ozone 

design values (derived from 2001–2003 

air quality data), which were used to 

designate these areas nonattainment 

initially, as the basis for classification. 

We also proposed to use the 

classification table in 40 CFR 51.903 

(established by the Phase 1 Rule) to 

classify these areas. We noted that CAA 

section 181(a) provides that ‘‘at the 

time’’ areas are designated for the ozone 

NAAQS, they will be classified ‘‘by 

operation of law’’ based on the ‘‘design 

value’’ of the areas and in accordance 

with Table 1 of that section. We 

concluded that this language specifies 

that the area will be classified based on 

the design value that existed for the area 

at the time of designation. Areas were 

designated nonattainment in 2004, 

based on design values derived from 

data from 2001–2003. 

Since the classifications under this 

proposal would be the initial 

classifications for the 1997 8-hour 

standard for the affected areas, the EPA 

proposed that the provision of CAA 

section 181(a)(4) would apply to these 

areas. This provision would allow the 

Administrator in her discretion to adjust 

the classification—within 90 days after 

the initial classification—to a higher or 

lower classification ‘‘* * * if the design 

value were 5 percent greater or 5 

percent less than the level on which 

such classification was based.’’ The EPA 

proposed to address requests for such 

classification adjustments for the newlyclassified areas in a manner similar to 

the way requests were handled for the 

original round of subpart 2 

classifications in 2004. This process is 

described at 69 FR 23863 et seq. (April 

30, 2004). We indicated in the proposal, 

however, that if a state requests a 

reclassification from Moderate to 


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4 Denver’s special circumstancs as a former EAC 

area were discussed in the proposal. (74 FR 2939– 

2941). The nonattainment designation for the 

Denver area became effective November 20, 2007. 

(72 FR 53952 and 53953, September 21, 2007). 

Marginal for an area that is currently 

violating the standard, the EPA would 

not grant the request for the 

reclassification because the Marginal 

attainment deadline has already passed. 

We noted that the classification table 

of 40 CFR 51.903 provides an outside 

attainment date based on the number of 

years after the effective date of the 

nonattainment designation (e.g., 3 years 

for Marginal and 6 years for Moderate). 

For all nonattainment areas other than 

Denver, the effective date of designation 

for the 8-hour standard was June 15, 

2004. Thus, Marginal nonattainment 

areas (with the exception of Denver) had 

a maximum statutory attainment date of 

June 15, 2007. Since the Marginal area 

attainment date has passed, the EPA 

proposed that any area that would be 

classified as Marginal based on its 2003 

design value and that had not attained 

by June 15, 2007, or that did not meet 

the criteria for an attainment date 

extension under CAA section 

181(a)(5)(B) and 40 CFR 51.907, would 

be reclassified immediately as Moderate 

under the final rule. 

In addition, we noted that a number 

of areas that were initially placed in 

subpart 1 under the vacated provision of 

the Phase 1 Rule have since been 

redesignated to attainment for the 1997 

8-hour standard. We indicated that 

since these areas are now designated 

attainment for the 1997 8-hour standard, 

the classification provisions of the final 

rule would not apply. 

In the proposal, the EPA took the 

position that transportation conformity 

requirements, and current 

transportation plan and transportation 

improvement program conformity 

determinations for the 1997 8-hour 

ozone standard remain valid, and would 

not be impacted by this final action. 

These areas are already required to 

satisfy the applicable CAA section 

176(c) conformity requirements for the 

1997 8-hour ozone standard based on 

their nonattainment designation in June 

2004. Thus, no new conformity deadline 

would be triggered for these areas after 

the areas are classified under subpart 2. 

These areas would continue to make 

future conformity determinations 

according to the applicable 

requirements of 40 CFR 93.109(d) and 

(e). The EPA indicated that any areas 

classified as Moderate that are using the 

interim emissions tests would be 

required to meet additional test 

requirements that do not apply to 

Marginal areas [40 CFR 93.119(b)(1)]. 

Moderate ozone nonattainment areas are 

required to satisfy both interim 

emissions tests in order to demonstrate 

conformity. Therefore, any area 

classified as Moderate would be 

required to demonstrate that emissions 

in the build scenario are less than the 

no-build scenario and that emissions in 

the build scenario are less than 

emissions in the 2002 base year. 

Marginal areas are required to 

demonstrate conformity using the ‘‘no 

greater than’’ form of one of the two 

interim emissions tests [40 CFR 

93.119(b)(2)(i) and 40 CFR 

93.119(b)(2)(ii)(A)&(B)]. 

The EPA proposed to require states to 

submit all required State 

Implementation Plan (SIP) elements of 

the areas’ Marginal or Moderate 

classification no later than 1 year after 

the effective date of this final rule. The 

proposal noted that the EPA believed 

this to be an appropriate and reasonable 

amount of time given the attainment 

dates that will apply to these areas, and 

that these areas should have made 

significant progress toward developing 

SIPs, originally due June 15, 2007, based 

on the obligations that applied before 

the subpart 1 provision of the Phase 1 

Rule was vacated in December 2006. 

2. Final Rule 

The final rule generally reflects the 

approach we proposed. The final rule 

provides that: 

• All areas originally placed under 

subpart 1 and that remain designated 

nonattainment for the 1997 8-hour 

ozone standard at the time of this final 

rule are now classified under and 

subject to the nonattainment planning 

and emissions control requirements of 

subpart 2, sections 181–185. There are 

sixteen such areas. 

• Initial classifications are based on 

the 8-hour ozone design values (derived 

from 2001–2003 air quality data) that 

were used to designate these areas 

nonattainment initially. 

• The classification table in 40 CFR 

51.903 (established by the Phase 1 Rule) 

is used for the classifications. The 

classification table of 40 CFR 51.903 

provides a maximum attainment date 

based on a number of years after the 

effective date of the nonattainment 

designation (e.g., 3 years for Marginal; 6 

years for Moderate). For all areas other 

than Denver,4 the effective date of 

nonattainment designation and 

classification for the 8-hour standard 

was June 15, 2004. Thus, other than 

Denver, Marginal nonattainment areas 

had a maximum statutory attainment 

date of June 15, 2007. Since the 

Marginal area attainment date of June 

15, 2007 has passed, any area that 

would have been initially classified as 

Marginal, and that did not attain by June 

15, 2007 (based on 2004–6 data), and 

was unable to attain pursuant to the 1- 

year attainment date extensions allowed 

under section 181(a)(5)(B) and 40 CFR 

51.907, is reclassified from Marginal to 

Moderate under this rule. 

• CAA section 181(a)(4) applies to all 

areas affected by this final rule. This 

provision allows the Administrator in 

her discretion to adjust the 

classification—within 90 days after the 

initial classification—to a higher or 

lower classification ‘‘* * * if the design 

value were 5 percent greater or 5 

percent less than the level on which 

such classification was based.’’ The 

process for making these adjustments is 

described at 69 FR 23863 et seq. (April 

30, 2004). However, the EPA will not 

grant a request for reclassification to a 

lower classification if (1) the attainment 

date for that lower classification has 

passed, and (2) the area is or has 

violated the standard such that it would 

not qualify for the first and second 1- 

year attainment date extensions. Since 

the Marginal attainment date has 

passed, no area initially classified 

Moderate by this notice will be eligible 

for a downward adjustment to Marginal. 

Further, since none of the initial 

Moderate areas affected by this notice 

had a classification design value within 

5 percent of the Serious threshold of 

0.107 ppm, no areas are eligible for an 

upward classification adjustment to 

Serious. 

• Areas originally placed under 

subpart 1 that have already been 

redesignated to attainment are not 

affected by these classification 

provisions, which apply only to areas 

that remain designated nonattainment 

for the 1997 ozone standard. 

In this rulemaking, the EPA is 

responding to the Court’s vacatur of the 

provision that placed certain 

nonattainment areas solely under 

subpart 1 and is now classifying those 

areas under subpart 2. There are sixteen 

such areas identified in Table 2 that are 

being initially classified under subpart 2 

based on the area’s design value at the 

time of designation. To determine the 

area’s design value, we used 2001–2003 

ambient air quality data. We then took 

the following steps to determine 

whether any areas classified Marginal 

should be immediately reclassified to 

Moderate. 

Step 1. If the area would be classified 

as Marginal based on its design value at 

the time of designation, we determined 

if the area attained by the June 15, 2007 

attainment date based on 2004–2006 

ambient air quality data. If so (and if the 

area has not been formally redesignated 


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Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations 28427 

5Section 107(d)(3) of the CAA allows states to 

request nonattainment areas to be redesignated to 

attainment provided certain criteria are met that 

include an approved SIP, a determination that air 

quality improvement is due to permanent and 

enforceable reductions in emissions, an approved 

maintenance plan, and other section 110 and part 

D requirements. 

6Under 40 CFR 51.907, an area would be eligible 

for the first 1-year extension of its attainment date 

for the 1997 ozone standard if the 4th highest daily 

maximum 8-hour average in 2006 is equal to or less 

than 0.084 ppm. 

7Under 40 CFR 50.907, an area is eligible for the 

second 1-year extension if the 2-year average of 4th 

highest daily maximum 8-hour averages for 2006 

and 2007 at the monitor with the highest level is 

equal to or less than 0.084 ppm. 

to attainment) 5 the area remains 

classified as Marginal. There are 8 areas 

classified Marginal as a result of this 

Step. (See Table 2 column for ‘‘Status in 

2007’’, which identifies 8 Marginal areas 

as ‘‘Attaining’’.) 

Step 2. If the Marginal area did not 

attain by the June 15, 2007 attainment 

date, we determined if the area would 

be eligible for the first 1-year extension 

under CAA section 181(a)(5) and 40 

CFR 51.907.6 If the area would not have 

been eligible for the first 1-year 

extension, we are reclassifying Amador 

and Calaveras Counties (Central 

Mountain), CA to Moderate as a result 

of this Step. 

Step 3. For any Marginal area that was 

eligible for the first 1-year extension, we 

reviewed the ambient air quality data 

from 2005–2007 to determine if the area 

attained the standard by the end of the 

first 1-year extension. If so, we are 

classifying the area as Marginal. No 

areas are classified Marginal as a result 

of this Step. 

Step 4. For any Marginal area that was 

eligible for the first 1-year extension, but 

did not attain by the end of that 

extension, we then determined if it 

would have been eligible for the second 

1-year extension.7 If the area would not 

have been eligible for the second 1-year 

extension, we are reclassifying the area 

to Moderate. Mariposa and Tuolumne 

Counties (Southern Mountain), CA are 

reclassified to Moderate as a result of 

this Step. 

Step 5. For any Marginal area that was 

eligible for the second 1-year extension, 

we then reviewed the ambient air 

quality data from 2006–2008 to 

determine if the area attained the 

standard. If so, we are classifying the 

area as Marginal. If the area did not 

attain, we are reclassifying the area as 

Moderate. No areas are classified 

Marginal or reclassified Moderate as a 

result of this Step. 

Any Moderate area that did not attain 

by June 15, 2010 and would not have 

been eligible for the first or second 1- 

year extension, would be subject to the 

CAA’s statutory provisions for 

reclassification (bump-up) to Serious, 

the next higher classification category. 

At the time the January 16, 2009 

proposed rule was issued, the Moderate 

area attainment date of June 15, 2010, 

had not passed. Thus, the proposed rule 

did not address reclassification from 

Moderate to Serious. The EPA will 

address reclassifications from Moderate 

to Serious, as necessary, in separate 

rulemaking action. 

Table 2 identifies the final subpart 2 

classification for each area that was 

originally classified under subpart 1 

pursuant to our Phase 1 Rule (69 FR 

23989, April 30, 2004), and that remains 

nonattainment for the 1997 ozone 

standard. 

TABLE 2—SUMMARY OF NONATTAINMENT AREAS INITIALLY CLASSIFIED UNDER SUBPART 1 RECEIVING RECLASSIFICATION

UNDER SUBPART 2 

State Area 

2004 Initial classification/ 

design value 2001–2003 

(ppm) 

Status in 2007 (based on 2004– 

2006 data) 

(ppm) 

Current subpart 2 

classification 

CA .......... Chico, CA ....................................... Marginal (0.089) ............................. Attaining (0.084) ............................. Marginal 

CA .......... Sutter Co. (Sutter Buttes), CA ....... Marginal (0.088) ............................. Attaining (0.081) ............................. Marginal 

NV .......... Las Vegas, NV ............................... Marginal (0.086) ............................. Attaining (0.083) ............................. Marginal d e

AZ .......... Phoenix-Mesa, AZ ......................... Marginal (0.087) ............................. Attaining (0.083) ............................. Marginal e

CO ......... Denver-Boulder-Greeley-Ft CollinsLoveland, CO.Marginal a (0.087) ........................... Attaining a (0.082) .......................... Marginal 

NY .......... Albany-Schenectady-Troy, NY ....... Marginal (0.087) ............................. Attaining (0.078) ............................. Marginal d

NY .......... Rochester, NY ................................ Marginal (0.088) ............................. Attaining (0.074) ............................. Marginal d

NY .......... Essex Co. (Whiteface Mtn), NY ..... Marginal (0.091) ............................. Attaining (0.071) ............................. Marginal d

CA .......... Amador and Calaveras Counties 

(Central Mtn), CA.

Marginal (0.091) ............................. Not attaining (0.093) b .................... Moderate 

CA .......... Mariposa and Tuolumne Counties 

(Southern Mtn), CA.

Marginal (0.091) ............................. Not attaining (0.086) c .................... Moderate 

NY .......... Buffalo-Niagara Falls, NY .............. Moderate (0.099) ........................... n/a .................................................. Moderate d

PA .......... Pittsburgh-Beaver Valley, PA ........ Moderate (0.094) ........................... n/a .................................................. Moderate d

NY .......... Jamestown, NY .............................. Moderate (0.094) ........................... n/a .................................................. Moderate d

CA .......... Kern Co. (Eastern Kern), CA ......... Moderate (0.098) ........................... n/a .................................................. Moderate 

CA .......... Nevada Co. (Western Part), CA .... Moderate (0.098) ........................... n/a .................................................. Moderate 

CA .......... San Diego, CA ............................... Moderate (0.093) ........................... n/a .................................................. Moderate 

Notes: 

a Denver was identified as an Early Action Compact (EAC) area at the time of designation in 2004 and the effective date of its nonattainment 

designation was deferred pending the EAC process. The EAC program was later terminated and the nonattainment designation for the area became effective on November 20, 2007, based on a 2001–2003 design value of 0.087 ppm placing it in the Marginal classification. The Denver 

area attained the standard by its attainment date of November 20, 2010 (3 years after the date the area was designated nonattainment) and continues to attain based on 2008–10 data. bAmador and Calaveras Counties did not attain by the attainment date and were not eligible for the first 1-year extension based on 2006 4th 

highest daily 8-hour average of 0.098 ppm. Thus, the area’s classification was changed to Moderate. The area now attains the standard based 

on 2008–10 data. c Mariposa and Tuolumne Counties did not attain by the attainment date and were eligible for the first 1-year extension based on 2006 4th 

highest daily 8-hour average of 0.084 ppm. The area was not eligible for the second 1-year extension based on the average of the original attainment year (2006) and first extension year (2007) 4th highest daily 8-hour average of 0.085 ppm. Thus, the area’s classification was changed 

to Moderate. The area now attains the standard based on 2008–10 data. dAlbany-Schenectady-Troy, Rochester, Essex County, Buffalo, Pittsburgh, Jamestown, and Las Vegas have received Clean Data Determinations. 


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8The seven areas that have received Clean Data 

Determinations are Pittsburgh-Beaver Valley, PA, 76 

FR 31237–39, May 31, 2011; Buffalo-Niagara Falls, 

Jamestown, NY and Essex County (Whiteface 

Mountain), 74 FR 63993, December 7, 2009; 

Albany-Schenectady-Troy, NY, Rochester, NY, 73 

FR 15672, March 25, 2008; and Clark County (Las 

Vegas), NV, 76 FR 17343, March 29, 2011. 

9EPA guidance with respect to redesignations to 

attainment can be found in a memorandum entitled 

‘‘Procedures for Processing Requests to Redesignate 

Areas to Attainment,’’ John Calcagni, Director, Air 

Quality Management Division, September 4, 1992. 

See http://www.epa.gov/ttn/oarpg/t5/memoranda/ 

redesignmem090492.pdf. This memorandum notes, 

for example, that, for the purposes of redesignation, 

a state must meet the applicable requirements of 

section 110 and Part D that become due prior to the 

state’s submittal of a complete redesignation request 

to EPA. For the purposes of evaluating a 

redesignation request, the EPA will not need to 

consider the required SIP elements that became due 

after submittal of the redesignation request. 

However, such requirements remain due until EPA 

completes final action approving a redesignation 

request. 

10Moderate ozone nonattainment areas are 

required to satisfy both interim emissions tests in 

order to demonstrate conformity. Therefore, they 

must demonstrate that emissions in the build 

scenario are less than the no-build scenario and that 

emissions in the build scenario are less than 

emissions in the 2002 base year. (40 CFR 

93.119(b)(1)). 

e Las Vegas and Phoenix have requested redesignation to attainment. 

Subpart 2 contains SIP requirements 

that differ from subpart 1. These include 

different attainment deadlines, different 

RFP requirements, requirements to 

adopt RACT-based controls for certain 

categories of NOX and VOC sources, 

specific major source thresholds and 

NSR offset ratio requirements for each 

classification. Table 3 lists new subpart 

2-related SIP requirements for Marginal 

and Moderate nonattainment areas. The 

EPA is aware that many of the subpart 

2 SIP requirements have already been 

satisfied through previous SIP 

submissions or the requirements have 

been suspended due to a Clean Data 

Determination. For example, all of the 

areas that would be affected by the 

Moderate area vehicle inspection and 

maintenance (I/M) program requirement 

are already implementing approved 

programs, and the three areas in the 

Ozone Transport Region (Pittsburgh, 

PA; Jamestown, NY; and BuffaloNiagara, NY) have already submitted 

SIPs to address the VOC and NOX RACT 

requirements. Similarly some areas 

affected by this rulemaking were 

previously nonattainment under the 

1-hour ozone standards, and may have 

already established an emissions 

statement rule and completed RACT 

determinations. Also, 7 of the 16 areas 

affected by this final rule have received 

Clean Data Determinations that suspend 

certain planning requirements.8

As indicated in Table 3, attainment 

demonstrations and RFP plans are 

suspended by a Clean Data 

Determination, while the remaining 

requirements are not. However, it is 

longstanding EPA policy that if an area 

submits a complete request for 

redesignation including a maintenance 

plan before certain nonattainment area 

requirements become due, those 

elements do not need to be submitted in 

order for the area to be redesignated to 

attainment.9

TABLE 3—ADDITIONAL SIP ELEMENTS ASSOCIATED WITH SUBPART 2 FOR PREVIOUS SUBPART 1 8-HOUR OZONE

NONATTAINMENT AREAS

[This table is not inclusive of all CAA requirements] 

Ozone subpart 2 SIP requirement 

(CAA section) Marginal areas Moderate areas 

Is requirement 

suspended by 

clean data 

determination? 

Attainment demonstration including RACM (§ 182(b)(1)) ........................... Not Required ................ Required ....................... Yes. 

Reasonable Further Progress (§ 182(b)(1)) ................................................ Not Required ................ Required ....................... Yes. 

Periodic Emissions Inventory (§ 182(a)(3)(A)) ............................................ Required ....................... Required ....................... No. 

Emissions Statement Rule (§ 182(a)(3)(B)) ................................................ Required ....................... Required ....................... No. 

Subpart 2 RACT for VOCs and NOX (§ 182(b)(2)(f)) .................................. Not Required ................ Required ....................... No. 

Pre-1990 RACT fix-up (§ 182(a)(2)(A)) ....................................................... Required ....................... Not Required ................ No. 

New Source Review (§ 182(a)(2)(C), (a)(4), (b)(5)) .................................... Required ....................... Required ....................... No. 

Vehicle I/M (§ 182(a)(2)(B), (b)(4)) .............................................................. Not Required ................ Required∂ .................... No. 

∂ Applies only in nonattainment areas with population >200,000 based on 1990 census. (See 74 FR 41818–22, August 19, 2009.) 

With respect to transportation 

conformity, current transportation plan 

and transportation improvement 

program conformity determinations for 

the 1997 8-hour ozone standard remain 

valid, and are not impacted by this 

action. Areas formerly classified under 

subpart 1 were already required to 

satisfy the applicable CAA section 

176(c) conformity requirements for the 

1997 8-hour ozone standard based on 

their designation as nonattainment. 

Thus, no new conformity deadline is 

triggered in these areas based on their 

classification under subpart 2. These 

areas would make future conformity 

determinations according to the 

applicable requirements of 40 CFR 

93.109(d) and (e). Any new Moderate 

areas that are using interim emissions 

tests will be required to meet additional 

test requirements that do not apply to 

Marginal areas (40 CFR 93.119(b)(1)).10

Also, areas newly classified under 

subpart 2 that are using budget test 40 

CFR 93.118 and whose attainment year 

is within the timeframe of the 

transportation conformity determination 

and transportation plan must analyze 

the attainment year as required by 40 

CFR 93.118(d)(2). 

3. Comments and Responses 

a. Classification of Former Subpart 1 

Areas 

Comment: A number of commenters 

opposed placing all the former subpart 

1 areas under subpart 2. Most of these 

commenters expressed concern that the 

subpart 2 requirements for local 

emission controls would be too 

burdensome for some of the areas, are 

obsolete, and would not necessarily be 

effective in bringing down ozone levels. 

In the case of Cincinnati, two state air 

agency commenters argued that the 

requirements would produce absurd 

results because the area had recently 

dropped the vehicle I/M program in the 

wake of meeting the 1-hour ozone 


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11Memorandum of March 19, 2007 from William 

L. Wehrum to EPA Regional Administrators, re: 

‘‘Impacts of the Court Decision on the Phase 1 

Ozone Implementation Rule’’ (response to Question 

2) and memorandum of June 15, 2007, from Robert 

J. Meyers to Regional Administrators, re: ‘‘Decision 

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

Columbia Circuit on our Petition for Rehearing of 

the Phase 1 Rule to Implement the 8-Hour Ozone 

NAAQS’’ (Implications for Subpart 1 Areas). 

standard. Some commenters also argued 

that certain areas would benefit more 

from regional controls than from local 

controls. In addition, some of the 

affected areas have already made 

significant progress toward attainment 

since they were originally designated 

nonattainment. Another commenter 

stated that the proposal would take 

away flexibility that they believe the 

CAA allows and that the Court had 

preserved in its ruling by allowing areas 

with design values below 0.09 ppm to 

be classified under subpart 1. Two 

commenters supported placing all the 

former subpart 1 areas under subpart 2. 

Response: In South Coast, the Court 

determined that although the CAA does 

not mandate that 8-hour ozone 

nonattainment areas with a design value 

below 0.09 ppm be placed under 

subpart 2, the EPA had not identified a 

reasonable basis for placing any of the 

1997 standard ozone nonattainment 

areas under subpart 1. As noted in the 

proposed rule, the EPA was unable to 

develop a reasonable basis for doing so 

and, despite soliciting comments on 

potential rationales, none of the 

commenters on the proposed rule 

identified any such rationale. Therefore, 

at this time, the EPA is not placing any 

1997 standard nonattainment areas 

solely under subpart 1. 

We disagree with the commenters that 

suggest that the subpart 2 requirements 

associated with the 1997 NAAQS would 

not necessarily be effective in bringing 

down ozone levels. Even if the 

mandated programs under subpart 2 are 

not the most effective programs to 

achieve emission reductions in a 

specific area, that does not render the 

programs ‘‘absurd,’’ as the programs will 

provide benefits by reducing emissions 

of VOC and NOX. We also note that the 

areas being placed under subpart 2 

through this rulemaking have been 

designated nonattainment for the 1997 

ozone standard for over 7 years. Some 

of those areas have attained the 1997 

standard and have had an opportunity 

to seek redesignation to attainment 

before the mandatory subpart 2 

requirements apply. With regard to 

those that are still not attaining the 1997 

standard, we note that the subpart 1 

flexibility that has been available to 

these areas to date has not resulted in 

attainment for these areas. Thus, it is 

difficult to argue for these areas that the 

additional flexibility under subpart 1 is 

more likely to result in attainment than 

the mandated programs under subpart 2. 

Comment: Some of the commenters 

that opposed placing all the former 

subpart 1 areas under subpart 2 believed 

that the EPA did not provide sufficient 

reason for not considering a different 

threshold for placing areas under 

subpart 1. They noted that the Court in 

South Coast had set forth the 0.09 ppm 

8-hour average as a design value to be 

used, such that areas with design values 

below that value could be placed in 

subpart 1. One commenter 

recommended that the EPA maximize 

the use of subpart 1 to the extent it 

could. However, on this matter, several 

environmental organizations 

commented that the Court in South 

Coast expressly rejected all of the EPA’s 

previously stated rationales for placing 

some areas only under subpart 1. They 

also commented that the EPA has not 

identified any alternative rationales to 

justify such an approach, and allege that 

no lawful or non-arbitrary rationales 

exist. 

Response: Although the Court 

determined that an 8-hour design value 

of 0.09 ppm is the appropriate threshold 

for determining which areas must be 

placed under subpart 2 and which areas 

the Agency has discretion to place 

under subpart 1, the Court rejected the 

EPA’s rationale in the Phase 1 Rule for 

placing areas under subpart 1. At the 

time of proposal, the EPA noted that it 

had not developed any rationale for 

placing areas in subpart 1 for the 1997 

8-hour ozone standard and expressly 

solicited comment on potential 

rationales. However, no commenters 

presented a rationale that differed from 

that which the Court rejected in South 

Coast. 

Comment: One state air agency 

supported the proposal to not place 

under subpart 2 those former subpart 1 

areas that have already been 

redesignated attainment. 

Response: As noted in the proposal, 

because the classification provisions 

apply to areas designated 

nonattainment, the final rule does not 

classify those former subpart 1 areas 

that have been redesignated to 

attainment for the 1997 ozone NAAQS. 

b. Timing of SIP Submission Under 

Subpart 2 Classification 

Comment: A number of commenters 

argued that the proposal did not give 

enough time for states to submit SIPs 

under the new classification. Some 

argued that the period of 1 year after the 

effective date of this rule for classifying 

areas was unreasonable and arbitrary, 

and that more time was needed for 

analysis and the rule adoption process, 

including public hearing. Some 

commenters argued that the EPA should 

allow the statutory time period in CAA 

section 181(b)(1) from the date of 

classification (3 years). Several 

commenters noted that even if a state 

had prepared a SIP under subpart 1 

requirements, a subpart 2 Moderate area 

SIP requires much more time and effort 

due to the number of mandatory 

measures that would have to be 

adopted. 

Response: As noted in the proposal, 

subpart 1 areas originally had an 

obligation to submit a SIP under section 

172(c), including an attainment 

demonstration, within 3 years after the 

June 2004 designations. Although the 

Court vacated the EPA’s placement of 

areas under subpart 1, the decision did 

not change the requirement that areas 

designated nonattainment must attain as 

expeditiously as practicable. Moreover, 

we note that areas that would have been 

subject only to subpart 1 if the EPA’s 

rule had not been vacated would have 

had an attainment date of June 2009, 1 

year earlier than the attainment date for 

the Moderate classification. While the 

Court decision did create some 

uncertainty regarding the specific 

classification that might eventually 

apply to an area, we note that areas have 

been on notice since the EPA’s January 

2009 proposal that it is likely they 

would be classified under subpart 2. As 

noted in the proposal, the EPA had 

advised states with areas that had been 

placed under subpart 1, including all of 

the areas affected by this final rule, to 

continue making progress toward 

attainment for these areas.11 Indeed we 

are aware that many of these states have 

been working to adopt and implement 

measures necessary for the affected 

areas to attain the 1997 ozone standard, 

and the EPA believes 1 year is an 

appropriate amount of additional time 

to complete that work. 

For those areas that are still violating 

the 1997 8-hour ozone standard, it is 

critical for them to move forward and 

achieve the emission reductions needed 

to ensure timely attainment. 

Comment: One state agency 

commenter recommended that the 

effective date of the new classifications 

be 1 year after the rule is issued; if the 

area attains before the effective date, the 

rule would be waived for that area. 

Response: The CAA requires that 

areas be classified ‘‘at the time of 

designation by operation of law.’’ The 

effective date of designation for the 1997 

ozone standard was June 15, 2004. 

While we do not believe it is 

appropriate to treat the classifications as 


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‘‘retroactive,’’ such that they would be 

considered effective over 5 years ago, 

we also do not believe there is a legal 

basis for deferring the effective date of 

the classification for 1 year. Moreover, 

as noted above, if the Court had not 

vacated our placement of areas only 

under subpart 1, the areas affected by 

this rule would have had an attainment 

date (June 2009) that is 1 year earlier 

than the attainment date (June 2010) 

they would receive if classified as 

Moderate under this rule. Thus, even if 

the EPA had a legal basis and discretion 

to delay the effective date of the 

classification, and thus delay the 

planning and attainment obligations, we 

do not believe in this instance that it 

would be reasonable to do so. 

c. Timing of Attainment Date 

Comment: A number of commenters 

argued that the proposal did not provide 

newly classified Marginal and Moderate 

areas sufficient time to attain and that 

they should have maximum attainment 

dates of 3 and 6 years (respectively) 

from the effective date of the new 

classifications, not the original 

nonattainment designations in 2004. 

Several commenters cited the EPA’s 

interpretation of the CAA’s attainment 

date in the Phase 1 Rule for support by 

referring to section 181(b)(1) that 

provides that where an area designated 

attainment or unclassifiable is 

subsequently redesignated to 

nonattainment, the area shall be 

classified under Table 1 of section 181 

and shall be subject to the same 

requirements applicable if it had been 

classified at the time of notice under 

section 107(d)(3), ‘‘except that any 

absolute, fixed date applicable in 

connection with any such requirement 

is extended by operation of law by a 

period equal to the length of time 

between the date of enactment of the 

CAA Amendments of 1990 and the date 

the area is classified under this 

paragraph.’’ The commenters note that 

while by its terms section 181(b)(1) 

would not expressly apply to 

reclassification of a nonattainment area, 

the section indicates that retroactive 

application of time requirements is not 

favored. The commenters note that 

regarding the proposed rule, the EPA 

would be classifying areas in 2009, not 

in 2004, and argue that deadlines 

should be calculated from 2009, not 

from 2004. They also argue that even if 

the EPA believes the deadlines need to 

be adjusted in some way to address this 

unique situation, the calculation and 

adjustment should be done from 2009 

after an assessment of the situation as it 

exists in 2009. The commenters also 

argue that the EPA seems to be doing 

exactly what the U.S. Supreme Court 

warned against in Whitman when the 

Court rejected the idea of mechanically 

applying subpart 2’s method for 

calculating attainment dates, which is 

simply to count forward a certain 

number of years from the effective date 

of the 1990 CAA amendments. They 

point out that the Court observed that 

simplistically using the subpart 2 

scheme ‘‘depending on how far out of 

attainment the area started—seems to 

make no sense for areas that are first 

classified under a new standard after 

November 14, 1990. If for example, 

areas were classified in the year 2000, 

many of the deadlines would largely 

have expired at the time of 

classification.’’ 

Response: For the reasons articulated 

in previous responses, we do not believe 

that it is legally supportable to start the 

attainment periods from the time of 

classification pursuant to this rule, nor 

do we believe that such an approach is 

reasonable. The primary trigger for 

planning for attainment of a NAAQS is 

the designation as nonattainment for 

that standard. As noted previously, 

regardless of whether an area is subject 

only to subpart 1, or is classified as 

Marginal or higher under subpart 2, the 

obligation is the same—to attain as 

expeditiously as practicable. Thus, there 

is no legal or policy basis to delink the 

attainment obligation from the time of 

designation and instead link it to the 

time of classification. We disagree that 

this situation is analogous to the 

situation where an area is newly 

designated nonattainment and for which 

section 181(b)(1) provides that any 

submission dates tied to the date of 

enactment of the CAA Amendments be 

extended to account for the time of 

designation. In such a case, the key is 

that the area is newly designated as 

nonattainment—not that the area’s 

classification status has changed or been 

clarified. All of the areas that will 

receive a subpart 2 classification 

pursuant to this rule have been 

designated nonattainment since June 

2004 (except for the Denver area, which 

was designated nonattainment effective 

November 20, 2007) and thus should be 

well on their way toward planning for 

attainment of the 1997 ozone standard 

as expeditiously as practicable. To the 

extent that those efforts have been 

delayed, we see no legal basis or 

justification to provide additional time. 

Comment: One state air agency 

commenter argued that the 5 percent 

reclassification provision of the CAA 

would be rendered meaningless by the 

timing in the proposal, because the 

attainment date for Marginal areas has 

already passed. 

Response: We agree as a practical 

matter that none of the 16 areas affected 

by this final rule are eligible for a 

classification adjustment. 

Comment: Several commenters argued 

that the Denver area should have a June 

2007 attainment date for its Marginal 

classification and thus should be 

reclassified to Moderate because it did 

not attain by a June 2007 attainment 

date. They claim that the Early Action 

Compact (EAC) concept was unlawful. 

They argue that even assuming the EAC 

deferral was legally permissible, Denver 

was in fact identified as a 

nonattainment area in the EPA’s original 

April 30, 2004, designations action. 

Moreover, they point out that the EPA 

agrees, ‘‘as it must under the Act,’’ that 

areas identified as of April 30, 2004, as 

violating the 1997 ozone NAAAQS 

(including Denver) must be classified 

based on their design values as of April 

30, 2004. They claim that under § 181 of 

the Act, such classification occurred by 

operation of law no later than April 30, 

2004. Furthermore, they claim that 

assigning a November 2010 Marginal 

area attainment date to Denver (a 

Marginal area) is also unreasonable and 

arbitrary, given that the EPA is assigning 

a June 2007 attainment date to all other 

areas classified as Marginal based on 

2001–03 design values. They argue that 

even if the Act could be read as giving 

the EPA some discretion in setting the 

outside attainment date, the statute 

expressly requires the attainment date to 

be ‘‘as expeditiously as practicable.’’ 

They argue that the EPA cites no legal 

or rational basis, and none exists, for 

finding that November 2010 is ‘‘as 

expeditiously as practicable’’ for 

Denver, when every other Marginal area 

had a 2007 attainment date, nor is there 

any conceivable justification consistent 

with the Act and its purposes. They 

point out that Denver residents are not 

somehow less deserving of clean air 

than residents of the other areas, nor is 

there any rational basis for delaying the 

stronger controls in Denver that would 

come from the reclassification to 

Moderate required for all other Marginal 

areas that failed to attain by 2007 and 

were ineligible for attainment date 

extensions. They argue that the EPA 

cannot claim that it would be harder for 

Denver to adopt Moderate area controls 

than the other areas proposed for 

Moderate classification, as all of the 

other areas will have had the same 

amount of time to prepare and 

implement SIP requirements. They 

argue that neither is there any inequity 

in requiring Denver to adopt the same 

controls on the same schedules as 

required for other areas initially 


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classified as Marginal based on 2001–03 

design values. To the contrary, they 

argue, allowing Denver more time than 

other Marginal areas not only flouts 

Congressional intent but is grossly 

inequitable to the other Marginal areas 

required to attain by 2007. The 

commenter also argues that the EPA 

cannot rely on the EAC deferral of the 

effective date of Denver’s attainment 

designation and classification because 

that deferral was itself contrary to the 

Act. ‘‘Nowhere does the Act allow the 

EPA to defer the effective dates of ozone 

nonattainment designations and 

classifications, or to otherwise delay 

control requirements triggered by 

designations. To the contrary, the Act 

requires nonattainment designations by 

date-certain deadlines. Section 107(d), 

42 U.S.C. 7407(d); Pub. L. 105–178, 

section 6103, 112 Stat. 465 (June 9, 

1998), codified at 42 U.S.C. 7407 Note. 

Promulgating a non-effective 

nonattainment designation—i.e., a paper 

designation that sits in the books 

without being activated—violates this 

requirement. Further, the Act contains a 

detailed array of requirements, likewise 

governed by date certain deadlines, 

applicable to nonattainment areas, 

including submission of 

implementation plans providing for 

attainment, rate-of-progress, and various 

specific programs such as new source 

review, conformity, and contingency 

measures. See, e.g., CAA sections 181, 

182, 110, 172, 173, 176. By refusing to 

implement these various requirements, 

the EAC scheme violates those 

provisions. The Act likewise prescribes 

requirements governing redesignation of 

nonattainment areas to attainment 

(setting forth several prerequisites that 

must be met before such redesignation 

can be granted), CAA section 

107(d)(3)(E), and requiring the EPAapproved maintenance plans sufficient 

to remedy any relapse into 

nonattainment that occurs during the 

20-year period following redesignation. 

CAA sections 107(d)(3)(E)(iv), 175A. By 

shunting these requirements aside, the 

EPA would violate those provisions as 

well.’’ 

Response: The EPA acknowledges the 

commenters’ concerns with the EAC 

program. However, the EPA’s rules 

regarding EAC areas under the 1997 

ozone NAAQS were promulgated in 

2004, and the proper time for 

challenging the legality of the EAC 

program and the deferral of the effective 

date of the nonattainment designation 

for Denver (and other EAC areas) was 

within 60 days of publication in the 

Federal Register of those final actions 

(40 CFR Part 81, September 21, 2007 (72 

FR 53952) and April 30, 2004 (69 FR 

23857)). To the extent the commenters 

are raising concerns about the effective 

date of designation for the Denver 

nonattainment area and the attainment 

date for that area, those were established 

in a final rule published September 21, 

2007 (72 FR 53952). Thus, these 

comments are not timely. We note that 

contrary to the claims of the 

commenters, the Denver area’s 

classification in this rulemaking is 

based on the design value that existed 

at the time the EPA initially published 

(and deferred the effective date of) the 

nonattainment designation [April 30, 

2004 (69 FR 23858)] and was based on 

2001 to 2003 data. With regard to the 

claims concerning the time periods for 

SIP submissions, we note that the time 

periods for attainment and SIP 

submissions for the Denver area are 

linked to the effective date of the 

designation and/or classification of the 

area, as they are for all areas. With 

respect to the attainment date, the 

Denver area, which is classified as 

Marginal under this rule, had an 

attainment date of November 2010—3 

years following the effective date of 

designation. 

Comment: One state agency 

commenter argued that for Moderate 

areas, the requirement to provide 

reasonable further progress toward 

attainment is rendered meaningless by 

the timing of the proposal, since there 

would be no time to provide progress 

prior to the attainment date. 

Response: Given the timing of the 

maximum statutory attainment date 

(June 15, 2010) and SIP submission date 

(1 year after the effective date of this 

rulemaking) for Moderate areas, any 

RFP plan not already in effect will not 

have an effect on attainment by the 

attainment date since the attainment 

date for Moderate areas has already 

passed. However, under the CAA, an 

RFP plan (to obtain 15 percent VOC 

emissions reductions from baseline 

emissions within the first 6 years after 

the applicable base year) would still be 

a required SIP element, even though the 

6-year period might end after the 

Moderate area attainment date, 

depending on the base year for the 

state’s RFP calculation. We note that 

under the Clean Data Policy, codified at 

40 CFR 51.918 (70 FR 71702, November 

29, 2005), if the area attains the 

standard, a Clean Data Determination 

under the Clean Data Policy provision 

would suspend the obligation to submit 

the RFP SIP. The suspension would 

remain in place until such time as the 

EPA redesignates the area to attainment, 

at which time the requirement would no 

longer apply, or until EPA determines 

the area has violated the 1997 standard, 

at which time the obligation would 

apply once again. 

d. Data Used for Classification 

A number of the commenters argued 

that the EPA should use more recent 

data for the classification of the former 

subpart 1 areas. There were several 

arguments made in these comments, 

and we address them separately here: 

Comment: Commenters claim that 

using the 2001–2003 data for the initial 

designations ignores the improvements 

in emissions reductions (e.g., through 

the NOX SIP call) and ambient ozone 

reductions that have occurred since 

designations were made in 2004. Some 

commenters note that several of the 

areas are close to attaining the standard 

and would be subjected to mandatory 

controls that would not be necessary to 

attain the standard. Another commenter 

notes that Appendix A of the January 

16, 2009 proposal shows that, with one 

exception, the current subpart 1 areas 

for which a 2005–2007 design value is 

available had a lower design value in 

those years than they did for 2001–2003, 

and the one exception (Las Vegas) had 

the same design value in both periods; 

thus using the earlier data would more 

likely subject areas to a higher 

classification. Another commenter notes 

that section 181(a) directed the EPA in 

1990 to classify areas using the most 

recent data (i.e., data from 1990, or 

actually, a future time when 

designations would be made), not data 

from 6 years earlier. The commenter 

also notes that section 181(a) does not 

state that the data used to classify areas 

must be the data that existed at the time 

of designation. They argue that section 

181(a) instead specifies only that the 

classification occur at the time of 

designation. They point out that 

classification is precisely the thing that 

did not lawfully occur at the time of 

designation in 2004, through no fault of 

the states. They argue that the temporal 

connection between classification and 

designation has been irretrievably 

broken. They argue that a second 

temporal connection in section 181(a), 

namely the connection between 

classification of areas and data used to 

classify areas, has not been broken and 

should be preserved by using the most 

recent data. They claim that doing so 

allows the EPA to better assess where 

states are now and where mandatory 

requirements of a higher classification 

are really needed to address ozone 

nonattainment. It avoids creating 

artificial deadlines based on retroactive 

application of time periods and 

classification based on a backwardlooking review of data. It avoids 


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12We do not agree with arguments that we should 

allow for a Marginal area classification with an 

attainment date in the future. As noted in several 

places, Marginal areas are presumed capable of 

attaining quickly without the adoption of additional 

local controls. For that reason, there are virtually no 

mandated local control requirements for Marginal 

areas under section 182(a), nor is there a 

requirement to develop an attainment 

demonstration. Thus, to the extent an area would 

have been classified as Marginal based on its 2001– 

2003 design value yet failed to attain by June 2007, 

we see no argument that such areas would have 

attained if EPA had ‘‘correctly’’ classified them as 

Marginal in 2004. (We note that many of the areas 

originally identified as subpart 1 have indeed 

attained and been redesignated as attainment.) 

depriving states of the opportunity to 

develop strategies to attain the revised 

standard based upon where the state’s 

air quality is, not was. They argue this 

is particularly true for areas like 

Columbus and Cincinnati in Ohio that 

have attained the 1-hour standard that 

was addressed by subpart 2, and already 

have or are close to attaining the 1997 

standard. They claim that these areas do 

not need to be abruptly classified at the 

tougher Moderate classification with its 

mandatory emission control measures. 

Response: As we noted in the 

proposal, the classifications would be 

the initial classifications for these areas 

for the 1997 ozone standard. We noted 

that CAA section 181(a) provides that 

‘‘at the time’’ areas are designated for a 

NAAQS, they will be classified ‘‘by 

operation of law’’ based on the ‘‘design 

value’’ of the areas and in accordance 

with Table 1 of that section. We believe 

this language requires that the area be 

classified based on the design value that 

existed for the area ‘‘at the time’’ of 

designation. Areas were designated 

nonattainment in 2004, based on design 

values derived from data from 2001– 

2003. 

We also note that arguments that areas 

should be able to develop plans to attain 

based on what the air quality ‘‘is,’’ not 

what it ‘‘was,’’ would only serve to 

further delay the progress that should 

already have been made. As noted 

previously, if the area had remained 

solely subject to subpart 1, the area 

would have been required to attain the 

1997 standard by June 2009. Those areas 

that have attained and have been 

redesignated as of the effective date of 

this final rule will not be classified 

under subpart 2. The EPA has 

previously reminded states that they 

should remain on track with planning 

for attainment despite the Court’s 

remand of the subpart 1 classification. 

We also note that it would be 

inequitable to most areas previously 

classified under subpart 2 to classify a 

former subpart 1 area with similar air 

quality using current air quality data. 

Most of the areas classified under 

subpart 2 in 2004 now have cleaner air 

than they did in 2004 and thus, if they 

were being classified now based on 

more recent air quality data, they too 

would receive a lower classification. 

Comment: One commenter alleged 

that using the 2001–2003 data for 

Allegan County, MI, produces an absurd 

result, requiring mandatory local 

emission controls when the problem is 

clearly transport from outside the state. 

The commenter cites the study, 

‘‘Western Michigan Ozone Study—Draft 

Report’’ of November 2008, prepared by 

the Lake Michigan Air Directors 

Consortium (LADCO) for the EPA, to 

comply with a provision within the 

Energy Policy Act of 2005. That 

commenter notes that in NRDC v. EPA, 

22 F.3d 1125 (D.C. Cir. 1994), the D.C. 

Circuit Court addressed the EPA’s 

failure to meet a November 15, 1991 

deadline in the CAA for publication of 

guidance for states’ preparation of SIPs 

for ‘‘enhanced’’ vehicle inspection and 

maintenance. Those SIPs were due by 

November 15, 1992. Because the EPA 

failed to publish the necessary guidance 

until nearly a year after the statutory 

deadline for that guidance, states could 

not be held to their deadline, and the 

states’ SIP submissions deadline was 

‘‘properly extended to further the CAA’s 

purposes.’’ The commenter concludes 

that for purposes of the proposed rule, 

the EPA’s failure in 2004 to meet its 

statutory obligation to classify ozone 

nonattainment areas lawfully, is no 

cause for the EPA to now use the data 

it would have used at that time in 

classifying areas, where those data 

would disadvantage the areas. They 

comment that the effect of the EPA’s 

proposed approach on this issue is to 

penalize states, areas, and sources 

unfairly for the EPA’s legally deficient 

action. 

Response: We disagree with the 

commenter’s suggestion that it would be 

an ‘‘absurd result’’ to use designationera data for classification. As we noted 

previously in relation to the concept of 

allowing exemptions from requirements 

under subpart 2, the judicial precedents 

in which courts have allowed 

exceptions from the strict language of a 

law are fairly narrow. For instance, in 

the final Phase 2 Rule, we said: ‘‘In 

general, we note that to demonstrate an 

absurd result, a State would need to 

demonstrate that application of the 

requirement would result in more harm 

than benefit. For example, the programs 

mandated under subpart 2 are generally 

effective in reducing emissions of the 

two ozone precursors—NOX and VOC— 

and because reductions of those 

precursors generally lead to improved 

air quality, we believe that such a 

demonstration could be made, if at all, 

only in rare instances.’’ See 70 FR at 

71620; November 29, 2005. We do not 

find that the situation at issue here 

meets the criteria implied by judicial 

precedents. 

We also disagree with the 

commenter’s statement where the 

commenter relies upon NRDC v. EPA to 

argue against using the data from the 

time of designation. In NRDC, the Court 

faced an impossibility argument. Under 

the CAA, States were required to 

develop I/M SIPs consistent with the 

EPA guidance. Because the EPA was 

late in issuing that guidance (which it 

determined needed to be issued through 

rulemaking), States were unable to 

submit timely SIPs that were consistent 

with the guidance. There is no 

impossibility argument here. The data 

from 2001–2003 exist and can be used 

to classify areas. To the extent that SIP 

submission dates for these areas have 

passed, the EPA is providing additional 

time for submission of those plans. To 

the extent that a Marginal area affected 

by this rule did not attain the standard 

by the June 15, 2007, attainment date (or 

the extended deadline), the EPA is 

reclassifying the area to Moderate.12

Furthermore, we note that the subpart 2 

classifications based on 2001–2003 data 

are not ‘‘punishment’’ for the EPA’s 

failure to classify areas correctly in the 

initial Phase 1 Rule. Using the 2001– 

2003 data places the areas in the 

position they would have been in if the 

EPA had initially classified all areas 

under subpart 2 in the initial Phase 1 

Rule. 

Comment: Another commenter notes 

that 40 CFR Part 50, Appendix I states: 

‘‘the 3-year average annual fourthhighest maximum 8-hour average ozone 

concentration is also the air quality 

design value for the site.’’ The appendix 

states in section 2.2 that ‘‘The 3-year 

average shall be computed using the 

three most recent, consecutive calendar 

years of monitoring data meeting the 

data completeness requirements 

described in this appendix.’’ The 

commenter notes that the definition of 

‘‘design value’’ in the CFR requires that 

the three most recent years be used to 

calculate it. 

Response: We disagree with 

commenters that rely on 40 CFR 

Appendix I to argue that there is only 

one ‘‘design value’’ for an area and that 

it is based on the most recent 3 years of 

data. We agree that the current design 

value for an area is based on the most 

recent 3 years of data, but that does not 

mean design values for previous 3-year 

periods of time are no longer relevant. 

As explained previously, we believe 

that the language in section 181(a) of the 


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13Note that if the area is nonattainment for the 

1997 8-hour standard, for purposes of the 1997 

standard, it is subject to nonattainment NSR, 

contingency measures and (if classified as Severe or 

Extreme for the 1997 ozone NAAQS) the section 

185 penalty fee provision. 

14We noted in the proposal that the Court’s June 

2007 clarification, South Coast, 489 F3d 1245, 

confirms that the December 2006 decision was not 

intended to establish a requirement that areas 

continue to demonstrate conformity under the 1- 

hour ozone standard for anti-backsliding purposes. 

Therefore, no revisions were proposed to 40 CFR 

51.905(e)(3). Section 40 CFR 51.905(e)(3) 

establishes that conformity determinations for the 

1-hour standard are not required beginning 1 year 

after the effective date of the revocation of the 1- 

hour standard and any state conformity provisions 

in an applicable SIP that require 1-hour ozone 

conformity determinations are no longer federally 

enforceable. This provision does not require 

revision in light of the Court’s decision and 

clarification, because the Court did not require 

conformity determinations for the 1-hour standard, 

and existing regulations already implement the 

Court’s holding that 8-hour ozone nonattainment 

and maintenance areas must use 1-hour ozone 

budgets to determine conformity to the 1997 8-hour 

standard until such time as 8-hour ozone budgets 

are approved or found adequate for the area. 

Therefore, current transportation conformity-related 

regulations set forth in 40 CFR part 93 and 40 CFR 

51.905(e)(3), and the general conformity regulations 

in 40 CFR part 93 are consistent with the Court’s 

decision and clarification on the Phase 1 Rule and 

do not require revision. 

15Robert J. Meyers Memorandum, October 3, 

2007, New Source Review (NSR) Aspects of the 

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

District of Columbia Circuit on the Phase 1 Rule to 

Implement the 8-Hour Ozone National Ambient Air 

Quality Standards (NAAQS). 

Act provides that classifications be 

based on the design value used for 

designation. 

Comment: Another commenter claims 

that ignoring current air quality data is 

out of step with the EPA’s new 

emphasis on science-based decisions. 

Response: The EPA is not ignoring 

current air quality data, but must 

classify areas based on the law as 

described above. 

Comment: Environmental 

organization commenters argue that the 

EPA should use the air quality data 

available at the time of designation for 

initial classification. 

Response: The EPA agrees for the 

reasons stated in the proposed rule and 

above in response to comments. 

e. Other Comments on Classification of 

Former Subpart 1 Areas 

Comment: One state air agency 

commented that the proposed rule does 

not adequately address situations like 

Allegan County, MI, which is largely 

affected by transport but yet is not 

provided any relief under the CAA such 

as coverage under the rural transport 

area provision of section 182(h). 

Response: We agree that the CAA 

does not provide relief in the form of 

being identified as a ‘‘rural transport 

area’’ for areas such as Allegan County, 

MI, whose nonattainment area boundary 

is adjacent to a metropolitan statistical 

area. Part of the EPA’s rationale in the 

Phase 1 Rule for using subpart 1 was to 

address situations such as that with 

Allegan County. However, the court in 

South Coast found that Congress 

intended to constrain such discretion. 

The commenter has not suggested any 

specific relief available under the CAA 

that the EPA could have applied in this 

final rule. 

B. Anti-Backsliding Under Revoked 

1-Hour Ozone Standard—In General 

1. Proposal 

The EPA codified anti-backsliding 

provisions governing the transition from 

the revoked 1-hour ozone NAAQS to the 

1997 8-hour ozone NAAQS in 40 CFR 

51.905(a). These provisions, as 

promulgated, retained most of the 1- 

hour ozone requirements as ‘‘applicable 

requirements’’ [defined in 40 CFR 

51.900(f)]. A requirement listed as an 

‘‘applicable requirement’’ is retained for 

an area if the requirement applied in the 

area based on the area’s 1-hour ozone 

designation and classification as of the 

effective date of its 8-hour designation 

(for most areas, June 15, 2004). 40 CFR 

51.900(f). 

Section 51.905(b) provides that an 

area remains subject to the 1-hour 

standard obligations defined as 

‘‘applicable requirements’’ until the area 

attains the 8-hour NAAQS. 

Furthermore, § 51.905(b) provides that 

such obligations cannot be removed 

from a SIP, even if the area is 

redesignated to attainment for the 8- 

hour NAAQS, but must remain in the 

SIP as applicable requirements or as 

contingency measures, as appropriate. 

Section 51.905(e), as promulgated in 

2004, indicated that certain 1-hour 

standard requirements would no longer 

apply after revocation of the 1-hour 

standard. Among other things, these 

included 1-hour NSR, section 185 

penalty fees for the 1-hour NAAQS, and 

1-hour contingency measures for failure 

to attain or make reasonable progress 

toward attainment of the 1-hour 

NAAQS.13 The Court vacated these 

exemption provisions, and in the 

January 16, 2009, proposed rule, the 

EPA proposed to delete these three 

vacated provisions from the Code of 

Federal Regulations.14

2. Final Rule 

This final rule addresses how antibacksliding principles will ensure 

continued progress toward attainment of 

the 8-hour ozone NAAQS. The final rule 

removes three vacated provisions of the 

Phase 1 Rule that provided exemptions 

from the anti-backsliding requirements 

relating to nonattainment NSR, CAA 

section 185 penalty fees, and 

contingency measures as these 

requirements applied for the 1-hour 

standard. This rule also reinstates 1- 

hour contingency measures as 

applicable requirements that must be 

retained until the area attains the 1997 

ozone standard. The EPA has issued 

separate guidance 15 and a separate 

proposed rule addressing the nowapplicable 1-hour requirements for NSR 

(75 FR 51960, August 24, 2010). The 

EPA will also address reinstatement of 

the section 185 fee program obligations 

in separate action. 

3. Comments and Responses 

Comment: One group of 

environmental organizations supported 

the proposal to remove the three 

exemptions from the regulations, but 

stated that NSR and the section 185 fee 

requirement must be added to the list of 

‘‘applicable requirements’’ at 40 CFR 

51,900(f). Several commenters 

expressed other concerns about the 

implications of removing the 1-hour 

NSR and section 185 fee program 

exemptions. 

Response: In this final rule, the EPA 

is only removing the regulatory 

language at 40 CFR 50.9(c) that provided 

for the exemptions from 1-hour NAAQS 

requirements in accordance with the 

court vacatur. The EPA has addressed in 

a separate proposed rulemaking exactly 

how the regulatory provisions should 

address the now-applicable 1-hour NSR 

requirements (75 FR 51960, August 24, 

2010), and plans to address application 

of section 185 fee program requirements 

for the 1-hour standard in separate 

actions. 

Comment: A state agency commented 

that the Court never addressed the 

requirements that should still apply to 

prevent backsliding in areas that had 

already achieved timely attainment of 

the 1-hour ozone standard and only 

focused on whether NSR was a required 

control for the purposes of CAA section 

172(e) anti-backsliding provisions for 

areas not attaining the 1-hour standard 

(such as South Coast Air Basin). 

The commenter stated that section 

51.905(e)(4), which states that upon 

revocation of the 1-hour ozone NAAQS, 

a 1-hour nonattainment area’s 

implementation plans must meet 

requirements contained in paragraphs 

(e)(4)(ii) through (e)(4)(iv) of this 

section, should not be deleted. Instead, 

this section should be retained and 

supplemented with further language to 

appropriately address the circumstances 

of 1-hour standard nonattainment areas 


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that attained the 1-hour standard. For 

example, the further language could 

specify that section 51.905(e)(4) is not 

applicable in the circumstances that 

were present with the South Coast Air 

Basin. Alternatively, the further 

language could specify that section 

51.905(e)(4) is applicable only in certain 

circumstances, including those that 

were present for the Greater Chicago 

Ozone Nonattainment Area, which 

attained the 1-hour standard prior to the 

November 2007 Severe area deadline. 

Response: In South Coast, the Court 

vacated the regulatory provision that 

did not retain the obligation for States 

to have 1-hour major NSR requirements 

as part of their approved SIPs. The 

Court held that removing such 

provisions from a SIP ‘‘would constitute 

impermissible backsliding.’’ 472 F.3d 

882 (2006), clarified, 489 F.3d 1245 (DC 

Cir. 2007), cert. denied, 76 U.S.L.W. 

3095 (U.S. Jan. 14, 2008). 

In this final rule, we are removing the 

vacated provision that did not retain 1- 

hour NSR obligations from the 

regulations at 40 CFR part 51 in order 

to ensure the published regulatory text 

is consistent with the Court’s vacatur. 

The South Coast decision means that 

states remain obligated to have in their 

SIPs the 1-hour major NSR thresholds 

and offsets in those 8-hour 

nonattainment areas that had not been 

redesignated to attainment for the 1- 

hour ozone NAAQS as of the date of 

designation for the 1997 8-hour ozone 

NAAQS. The Phase 1 Rule (69 FR 

23972) established the date of the 

designation for the 1997 8-hour ozone 

NAAQS (June 15, 2004 for most areas) 

as the relevant date for determining 

what anti-backsliding requirements 

would apply to areas (i.e., the 

requirements that applied based on the 

area’s 1-hour designation and 

classification as of the effective date of 

designation for the 8-hour standard). In 

a separate rulemaking, we plan to 

address the circumstances in which 1- 

hour NSR requirements might be 

removed from a SIP, specifically 

addressing areas that currently attain 

the 1-hour standard such as Chicago. 

We disagree with the commenter that 

the Court’s decision only addressed the 

specific circumstances applicable to the 

South Coast Air Quality Management 

District (SCAQMD). While SCAQMD, as 

the ‘‘lead petitioner,’’ lent its name to 

the case, the challenges to the rule were 

broad and concerned the antibacksliding requirements as they 

applied to all types of areas. 

Furthermore, we note that the antibacksliding rules applied in the same 

manner in the Chicago area as they did 

in SCAQMD. Under the rules, the 

requirements that were retained for an 

area were those that applied as of the 

effective date of designation for the 1997 

8-hour NAAQS. Both the Chicago area 

and the SCAQMD were designated 

nonattainment for the 1-hour standard 

at the time of designation for the 8-hour 

standard and were designated 

nonattainment for the 8-hour standard. 

Thus, both areas were subject to the 

anti-backsliding provisions in 40 CFR 

51.905(a)(1) that address requirements 

for ‘‘8-Hour NAAQS Nonattainment/1- 

Hour NAAQS Nonattainment.’’ 

Furthermore, the provisions in 40 CFR 

51.905(e) that did not retain certain 1- 

hour requirements applied in the same 

manner to both areas. Thus, to the 

extent the South Coast decision 

addresses these regulatory provisions, it 

applies in the same manner to both 

areas. 

Comment: One commenter 

maintained that we should ensure and 

confirm that the proposed rules do not 

have retroactive effect. Speaking in 

terms of NSR, the commenter said any 

changes to the 8-hour ozone 

implementation rule that impose 

additional or new requirements on 

designated areas should not be effective 

until after the implementation rule is 

adopted and any necessary SIP revision 

is adopted and approved on a timely 

basis. To support their comment, they 

referenced Sierra Club v. Whitman, 285 

F.3d 63 (DC Cir. 2002). They also 

commented that the Administrative 

Procedure Act severely restricts 

retroactive rulemaking and Congress did 

not take the unusual step of giving U.S. 

EPA the ability to implement rules 

retroactively. The requirement that 1- 

hour NSR continues to apply to 8-hour 

nonattainment areas that attain the 1- 

hour NAAQS will not be officially 

adopted until mid-2009, at the earliest. 

Hence, for all units that commence 

construction (e.g., contract 

commitments are in place or building 

has begun) between 2004 and 2009, in 

areas re-designated as attaining the 1- 

hour NAAQS, 1-hour NSR has not 

applied. They asserted the South Coast 

court could not have intended the 

retroactive application of the 

requirement. Further the commenter 

maintained that retroactive application 

of this rule to sources that have already 

committed contracts is contrary to 

fairness and predictability in regulatory 

environments. 

Response: In this final rule, we are 

removing from the regulations at 40 CFR 

part 51 the provision that did not retain 

1-hour NSR obligations in order to 

ensure the published regulatory text is 

consistent with the Court’s vacatur. We 

view the portions of the Court’s decision 

on the anti-backsliding provisions as 

self-implementing; thus, at a minimum, 

as of the date of the Court’s mandate 

(August 29, 2007), areas that were 

designated nonattainment for the 1-hour 

standard as of the effective date of 

designation as nonattainment for the 

1997 8-hour standard, have been 

obligated to adopt and implement an 

NSR program consistent with their 1- 

hour classification as of the effective 

date of designation for the 1997 ozone 

standard. We note that we have urged 

states to take steps to comply with the 

decision without waiting for further 

EPA rulemaking. See e.g., Memorandum 

from Robert Meyers to Regional 

Administrators (October 3, 2007). The 

necessary actions to achieve such 

compliance may vary depending on the 

specific situation. 

Because this rule merely removes the 

vacated regulatory text, it has no 

‘‘retroactive effect’’ as suggested by the 

commenter. As noted above, at a 

minimum, as of the date the mandate 

issued, areas designated nonattainment 

for the 1997 8-hour standard have been 

obligated to ensure that their SIP 

includes a 1-hour NSR program 

consistent with their classification for 

the 1-hour standard as of the effective 

date of designation for the 1997 ozone 

standard and to implement such 

program. Thus, for any permitting 

actions that have occurred since the 

issuance of the Court’s mandate, we do 

not believe there is any argument that 

the requirement to meet 1-hour NSR 

obligations is ‘‘retroactive.’’ 

To the extent the commenter raises 

the issue of retroactivity, the issue is 

relevant only to the extent to which the 

Court’s vacatur has retroactive effect. In 

some instances, a vacated regulation has 

been held to be ‘‘void ab initio’’; in 

other words, the regulation is treated as 

if it had never existed. See, e.g., United 

States v. Goodner Bros. Aircraft, Inc., 

966 F.2d 380 (8th Cir. 1992). In 

addition, the D.C. Circuit has held that 

there is a presumption of retroactivity 

for adjudications when such 

adjudications clarify existing law, and 

that the presumption is departed from 

only when to do otherwise would lead 

to manifest injustice. Qwest Services 

Corp. v. F.C.C., 509 F.3d 531 (D.C. Cir. 

2007). The D.C. Circuit has stated that 

vacatur has ‘‘the effect of restoring the 

status quo ante.’’ Air Transport 

Association of Canada v. FAA, 254 F.3d 

271, 277 (D.C. Cir. 2001). The EPA will 

work with states and sources to resolve 

any issues arising from permitting 

actions taken between June 15, 2004 and 


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16That is, between the effective date of the initial 

area designations for the 1997 8-hour standard and 

the date of the final D.C. Circuit Court ruling on 

rehearing of the South Coast case. 

17The preamble to the Phase 1 Rule clarified that, 

‘‘it is appropriate to maintain these mandated 

controls to remain as part of the implemented SIP 

until an area attains the 8-hour NAAQS and is 

redesignated to attainment.’’ (69 FR 23983). This 

accompanying preamble text clarifies that an area 

must not only attain, but also must be redesignated 

to attainment prior to shifting any ‘‘applicable 

requirements’’ to contingency measures. (69 FR 

23982–83). This is further supported by the portion 

of § 51.905(b) that provides for the shifting of the 

1-hour anti-backsliding measures to contingency 

measures. Such a shift can occur only in the context 

of an approved section 175A maintenance plan. 

August 29, 2007,16 based on a permit 

program that was consistent with the 

waiver in 40 CFR 51.905(e)(4). 

C. Contingency Measures 

1. Proposed Rule 

The Court in South Coast Air Quality 

Management District, et al., v. EPA, 472 

F.3d 882 (D.C. Cir. 2006) reh’g denied 

489 F.3d 1245, vacated 40 CFR 

51.905(e)(2)(iii), which did not retain 

the anti-backsliding requirement 

concerning contingency measures, on 

the basis that they were control 

measures that must continue to apply. 

Therefore, the EPA proposed that states 

be required to retain 1-hour contingency 

measures in their SIPs that apply based 

on a failure to meet 1-hour RFP 

milestones or upon a failure to attain the 

1-hour standard by the area’s attainment 

date. Furthermore, consistent with the 

EPA’s proposal to retain these 1-hour 

contingency measure requirements as 

anti-backsliding measures, we also 

proposed to add ‘‘contingency measures 

under sections 172(c)(9) and 182(c)(9) of 

the CAA’’ to the list of applicable 

requirements under § 51.900(f). The 

proposal noted that in situations where 

an area attains the 1-hour NAAQS by 

the applicable attainment date for that 

standard, the area is not subject to the 

requirement to implement contingency 

measures for failure to attain the 

standard by its attainment date. As a 

result, any area that has met its 

attainment deadline for the 1-hour 

standard (or meets its deadline if it has 

not yet passed), would not be required 

to implement the contingency measures 

for failure to attain the standard by its 

attainment date for purposes of antibacksliding even if the area 

subsequently lapses into nonattainment. 

Additionally, the contingency measures 

for failure to meet RFP milestones 

would not be triggered if the area has 

met those milestones. 

The proposal also noted that in 

situations where a 1-hour ozone 

nonattainment area is in attainment of 

that standard based on current air 

quality, the EPA can make a finding of 

attainment. See Memorandum from 

John S. Seitz, Director, Office of Air 

Quality Planning and Standards, 

entitled, ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone Ambient Air 

Quality Standard,’’ dated May 10, 1995. 

Under this policy, which is referred to 

as the ‘‘Clean Data Policy,’’ if the EPA 

determines through rulemaking that the 

area is meeting the 1-hour ozone 

standard, the requirements for the state 

to submit an attainment demonstration 

and related components such as 

contingency measures for failure to 

attain or make reasonable further 

progress are suspended as long as the 

area continues to attain the 1-hour 

ozone NAAQS. (We note that such a 

determination does not relieve an area 

of the requirement to comply with a 

contingency measure provision in an 

approved SIP, but merely suspends any 

outstanding submission requirement.) If 

the area subsequently violates the ozone 

NAAQS for which the determination 

was made (in this example, the 1-hour 

ozone NAAQS), the EPA would initiate 

notice-and-comment rulemaking to 

withdraw the determination of 

attainment, which would reinstate the 

requirement for the state to submit such 

plans. 

The proposal noted that three federal 

courts of appeal have upheld the EPA 

rulemakings applying the Clean Data 

Policy. See Sierra Club v. EPA, 99 F.3d 

1551 (10th Cir. 1996); Sierra Club v. 

EPA, 375 F.3d 537 (7th Cir. 2004) and 

Our Children’s Earth Foundation v. 

EPA, No. 04–73032 (9th Cir. June 28, 

2005) memorandum opinion. Since the 

proposal, the U.S. Court of Appeals for 

the District of Columbia Circuit has also 

upheld the Clean Data Policy, which 

was codified in 40 CFR 51.918 for 

purposes of implementing the 1997 

ozone NAAQS, in NRDC v. EPA, 571 

F.3d 1245 (DC Cir. 2009). 

Thus if the EPA makes a 

determination of attainment of the 1- 

hour ozone standard as provided by the 

Clean Data Policy, the EPA would find 

that the requirement under the antibacksliding provisions (40 CFR 51.905) 

to submit any outstanding section 172 

and 182 contingency measures under 

the 1-hour standard would be 

suspended for so long as the area 

continues to attain the 1-hour standard. 

2. Final Rule 

The final rule takes the same 

approach as proposed, namely, that 

areas designated nonattainment for the 

1997 8-hour ozone NAAQS must adopt, 

if not already adopted, and retain in 

their SIPs, contingency measures for 

failure to meet 1-hour RFP milestones 

and for failure to attain the 1-hour 

standard by the area’s attainment date. 

This requirement applies where an area 

remained designated nonattainment for 

the 1-hour standard at the time of the 

area’s designation to nonattainment for 

the 1997 8-hour ozone standard. To 

clarify that this requirement continues 

to apply, we are including ‘‘contingency 

measures under sections 172(c)(9) and 

182(c)(9) of the CAA’’ in the section 

51.900(f) list of ‘‘applicable 

requirements.’’ Consistent with 40 CFR 

51.905(b), areas remain obligated to 

adopt and retain these requirements in 

their SIPs until they attain and are 

redesignated for the 1997 8-hour ozone 

NAAQS. The rule at § 51.905(b) 

provides that an 8-hour nonattainment 

area will remain subject to the 

applicable requirements listed in 

§ 51.900(f) until it attains the 8-hour 

standard and that after an area attains 

the 8-hour standard, the state may 

request that the 1-hour obligations be 

shifted to contingency measures, but 

may not remove them completely from 

the SIP.17 In addition, if prior to 

attaining the 1997 8-hour ozone 

standard, the area attains the 1-hour 

standard, the EPA may make a 

determination of attainment for the 1- 

hour standard which would suspend the 

obligation to submit such contingency 

measures if the state has not already 

done so. 

3. Comments and Responses 

Comment: One environmental 

organization commenter recommended 

that contingency measures for the 8- 

hour standard should be at least as 

stringent as those for the 1-hour 

standard. 

Response: The proposal addresses the 

contingency measure requirement as it 

relates to anti-backsliding for the 1-hour 

standard, which was vacated by the 

Court. It does not interpret the 

contingency measure obligations for the 

8-hour standard. Because states have 

discretion in selecting the measures to 

adopt as contingency measures, 

concerns regarding the adequacy of 

contingency measures are best 

addressed in the context of a specific 

SIP rulemaking. 

Comment: Several commenters noted 

that the preamble to the proposed rule 

describes two situations in which states 

would no longer need to retain or 

implement 1-hour contingency 

measures: (1) Where a nonattainment 

area meets or has met its 1-hour 

attainment date, even if the area 


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18 In addition, in June 2003, we stayed our 

authority to apply the revocation rule pending our 

reconsideration in the implementation rule for the 

1997 NAAQS of the basis for revocation. (68 FR 

38160, June 26, 2003). We completed that 

reconsideration in the Phase 1 Rule, which was 

published in the Federal Register of April 30, 2004. 

(69 FR 23951). 

subsequently lapses into nonattainment; 

and (2) where—whether before or after 

its 1-hour attainment date—a 

nonattainment area has 1-hour 

attainment air quality and the EPA 

makes a finding of 1-hour attainment 

pursuant to the Clean Data Policy that 

has been in effect since 1995. They 

recommended that the EPA reaffirm 

these principles in its final action in this 

rulemaking. 

Response: The EPA reaffirms the 

position stated in the proposal that 

contingency measures for failure to 

attain would not be triggered where an 

area attains the 1-hour standard by its 

attainment date, even if the area 

subsequently lapses into nonattainment. 

However, the commenter misinterprets 

the scope of the Clean Data Policy. 

Clean Data Determinations under the 

Clean Data Policy only suspend the 

requirement to submit certain 

outstanding planning requirements 

(such as contingency measures that 

would be triggered by a failure to attain 

by the applicable attainment date). In 

addition, the obligation to submit such 

a SIP is suspended only for so long as 

the area remains in attainment. If the 

area is redesignated to attainment, the 

obligation to make such submission 

would no longer apply. Furthermore, 

when an area is redesignated to 

attainment, it may also move adopted 

contingency measures linked to a failure 

to attain to the contingency measure 

portion of the maintenance plan. To the 

extent contingency measures have been 

adopted and approved into the SIP, a 

Clean Data Determination under the 

Clean Data Policy does not authorize the 

state to remove them from the SIP. Nor 

does a Clean Data Determination affect 

the requirement that areas comply with 

SIP-approved measures, such as 

contingency measures. Thus, if an area 

fails to attain by its attainment date and 

contingency measures approved into the 

SIP are triggered by that failure, a Clean 

Data Determination that is issued 

subsequently would not suspend the 

obligation to implement the contingency 

measures consistent with terms of the 

approved SIP. 

Comment: One state agency 

commenter supported removing the 

vacated provision of the regulations that 

provided that states need not retain 1- 

hour standard contingency measures for 

failure to attain or make reasonable 

further progress toward attaining the 1- 

hour standard. 

Response: The EPA has removed the 

vacated provision from the regulatory 

text. 

Comment: One state agency 

commenter supported use of the Clean 

Data Policy for the 1-hour standard but 

does not agree with the portion of the 

policy that would require states to meet 

any planning requirements stayed 

pursuant to the policy if there is a 

subsequent violation of a revoked 

standard. 

Response: We note first that the 

proposed rule did not set forth any 

proposal concerning the Clean Data 

Policy, but merely described a situation 

in which the Clean Data Policy might be 

applied. As noted in the Clean Data 

Policy and the regulation codifying that 

policy for purposes of the 1997 8-hour 

ozone standard, a determination of 

attainment suspends the obligation to 

submit certain planning requirements 

for only so long as the area continues to 

attain the standard. We note that 

redesignation of the area to attainment 

for the 1997 8-hour standard would 

relieve the area permanently of the 

obligation to submit such planning SIPs. 

D. Section 185 Fee Program for 1-Hour 

NAAQS 

1. Proposal 

The EPA proposed to remove the 

language relating to the vacated 

provisions of the Phase 1 Rule that did 

not retain the requirement for areas that 

were classified as Severe or Extreme for 

the 1-hour standard at the time of 

designation for the 1997 8-hour 

standard to include in their SIP a CAA 

section 185 penalty fee program for the 

1-hour standard (i.e., 40 CFR 

51.905(e)(2)(ii)). In South Coast, the 

Court vacated this exemption provision. 

2. Final Rule 

We are removing the language in 40 

CFR 51.905(e)(2)(ii) that did not retain 

the requirement for areas that were 

classified as Severe or Extreme for the 

1-hour standard at the time of 

designation for the 1997 8-hour 

standard to include a CAA section 185 

penalty fee program for the 1-hour 

standard in their SIP. 

3. Comments and Responses 

Comment: Several commenters 

expressed support for not defining the 

1-hour section 185 fee provision as an 

‘‘applicable requirement’’, as 

promulgated in § 51.905(e), and 

indicated that the fees should only 

apply until an area attains the 1-hour 

standard. 

Response: The EPA believes that not 

defining the section 185 fee provision as 

an ‘‘applicable requirement’’ is in 

conflict with the ruling of the Court. 

Nevertheless, in this rulemaking, the 

only issue the EPA is addressing 

regarding the applicability of section 

185 requirements is the removal of the 

regulatory provision that was vacated by 

the Court in South Coast. Exactly how 

the EPA plans to address this applicable 

anti-backsliding requirement for section 

185 fee programs will be addressed in 

separate action. 

Comment: Several commenters 

oppose the requirement to have 3 years 

of attaining air quality data under the 

Clean Data Policy in order to suspend 

section 185 fees temporarily. They 

believe fees should be suspended for 

any year with data indicating 

compliance with the 1-hour standard. 

They believe requiring a 3-year period 

of attainment is a more appropriate 

criterion for permanent cessation of the 

1-hour section 185 fees. 

Response: In this rulemaking, the only 

issue the EPA is addressing regarding 

the section 185 requirements is the 

removal of the regulatory provision that 

was vacated by the Court in South 

Coast. The EPA plans to address antibacksliding requirements for section 185 

fee programs in separate action. 

E. Deletion of Obsolete 1-Hour Ozone 

Standard Provision 

1. Proposal 

The EPA proposed to delete 40 CFR 

50.9(c) because it is obsolete. In the 

proposal the EPA explained that when 

we promulgated the 8-hour ozone 

standard on July 18, 1997 (62 FR 38856), 

we also revised 40 CFR 50.9 to provide 

that the 1-hour ozone standard would be 

revoked for an area once the EPA 

determined that the area had air quality 

meeting the 1-hour standard. 

Subsequently, because the pending 

litigation over the 1997 8-hour NAAQS 

created uncertainty regarding the 8-hour 

NAAQS and associated implementation 

requirements, we revised 40 CFR 50.9 to 

place two limitations on our authority to 

apply the revocation rule: (1) The 1997 

8-hour NAAQS must no longer be 

subject to legal challenge, and (2) it 

must be fully enforceable.18 (65 FR 

45182, July 20, 2000). These limitations 

were codified as § 50.9(c). In the final 

Phase 1 Rule, we again revised § 50.9, 

this time to revise § 50.9(b) to provide 

for revocation of the 1-hour standard 1 

year after designation of areas for the 

1997 8-hour ozone standard. However, 

according to our proposal, in 

promulgating the Phase 1 rule, we 

neglected to remove paragraph (c) 

which was no longer necessary since the 


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19Early Action Compacts (EAC) allowed states to 

pledge to meet the 1997 8-hour ozone standard 

earlier than required. State seeking an EAC must 

meet a number of criteria and must agree to meet 

certain milestones. The most significant milestone 

was that the EAC areas had to be in attainment by 

December 31, 2007, based on air quality data from 

2005, 2006, and 2007. 

8-hour standard is no longer subject to 

legal challenge and the standard has 

been upheld and is enforceable. 

American Trucking Assoc. v. EPA, 283 

F.3d 355. (D.C. Cir. 2002) (resolving all 

remaining legal challenges to the 8-hour 

ozone standard and upholding the 

EPA’s rule establishing that standard.) 

2. Final Rule 

In reviewing the regulatory text in 

light of one of the comments received 

on the proposal, we realized that we 

incorrectly described the obsolete 

regulatory text in 50.9(c). The language 

described in the proposal, which stayed 

the EPA’s authority to revoke the 1-hour 

ozone standard while the 8-hour 

standard remained subject to legal 

challenge, was language that was 

actually removed in the Phase 1 Rule 

(69 FR 23951, Apr. 30, 2004). That 

language was added to the second 

sentence of 50.9(b) at the time that the 

status of the 1997 8-hour standard 

remained uncertain because of the 

ongoing litigation challenging that 

standard and our ability to enforce it. 

(65 FR 45200, July 20, 2000.) Because 

the litigation challenging the 1997 

standard and our ability to enforce that 

standard was fully resolved, we deleted 

that regulatory language in the Phase 1 

Rule. 

However, in June 2003, consistent 

with a settlement agreement in a lawsuit 

challenging the revocation provision we 

had promulgated simultaneous with the 

1997 ozone standard, we separately 

stayed our authority to revoke the 1- 

hour ozone standard. (68 FR 38163, June 

26, 2003). Specifically, we added 40 

CFR 50.9(c), which provides that our 

authority to revoke the 1-hour ozone 

standard is stayed until ‘‘EPA issues a 

final rule revising or reinstating’’ the 

revocation authority and considers and 

addresses certain issues in that 

rulemaking process. We considered and 

addressed those issues in the 

rulemaking for implementing the 1997 

ozone standard and as part of the final 

Phase 1 Rule. We revised and reinstated 

our authority to revoke the 1-hour 

standard. (68 FR 32818–19, June 2, 

2003; 69 FR 23969–71, April 30, 2004). 

However, we neglected at that time to 

remove 40 CFR 50.9(c), which became 

obsolete upon the issuance of the Phase 

1 Rule. 

Despite the confusion created by our 

incorrect description in the proposed 

rule, we are deleting 40 CFR 50.9(c). As 

provided above, the provision is 

obsolete because the future rulemaking 

it refers to is the Phase 1 Rule, which 

was promulgated in April 2004. 

Although we incorrectly described the 

provision in the proposal, we correctly 

indicated that the provision was 

obsolete and thus we are deleting it in 

this final action as proposed. 

3. Comments and Responses 

Comment: One commenter expressed 

concern about the background 

statements and explanation regarding 

the removal of 40 CFR 50.9(c). The 

commenter claims there is an incorrect 

citation in the preamble. In the 

Background discussion at 74 FR 2938, 

col 2, paragraph B, the proposal said, 

referring to the two limitations we 

placed on our authority to apply the 

revocation rule, that ‘‘These limitations 

were codified as § 50.9(c).’’ 

Response: As provided above, we 

recognize that the explanation in the 

proposal was confusing because we 

described regulatory text that was 

removed from 40 CFR 50.9(b) at the time 

we promulgated the Phase 1 Rule, rather 

than describing the regulatory text we 

planned to delete, which is provided in 

40 CFR 50.9(c). However, as explained 

above, the regulatory text in 50.9(c) is 

obsolete as noted in the proposal and 

thus we are moving forward to remove 

it from the CFR as proposed. 

Comment: One environmental 

commenter expressed concern about 

confusing language in 40 CFR 50.9(b) 

and recommended that the second 

sentence of that provision be removed. 

Response: Paragraph (b) of § 50.9 

states that the 1-hour standards set forth 

in the section will remain applicable to 

all areas notwithstanding the 

promulgation of 8-hour ozone standards 

under § 50.10. The 1-hour NAAQS set 

forth in paragraph (a) of the section will 

no longer apply to an area one year after 

the effective date of the designation of 

that area for the 8-hour ozone NAAQS 

pursuant to section 107 of the Clean Air 

Act. Area designations and 

classifications with respect to the 1-hour 

standards are codified in 40 CFR part 

81. 

The commenter does not specify why 

the sentence is confusing and we 

disagree that it is. Rather, that sentence 

is the operative sentence for revoking 

the 1-hour standard. Pursuant to this 

sentence of the regulation, the 1-hour 

standard was revoked for most areas on 

June 15, 2005, the date 1 year after their 

effective date of designation for the 1997 

8-hour standard. For 13 EAC19 areas 

with a deferred effective date of 

designation, the 1-hour standard was 

revoked April 15, 2009, the date 1 year 

following their effective date of 

designation as attainment for the 1997 

NAAQS. For the Denver EAC area, 

which was designated nonattainment 

for the 1997 NAAQS effective November 

20, 2007, the 1-hour standard was 

revoked November 20, 2008. We believe 

that it is important to retain this 

sentence because it specifies the time at 

which the 1-hour standard, identified in 

40 CFR 51.9(a), no longer applied to 

areas. 

F. Other Comments 

Comment: Several commenters 

advised that this rulemaking addressing 

the 1997 ozone standard should be 

integrated with planning to address the 

2008 ozone NAAQS. Several 

commenters recommended that 

addressing the 1997 standard should not 

result in additional paperwork beyond 

what is needed for the 2008 standard. 

One commenter recommended that the 

EPA rulemaking focus on 

implementation of the 2008 ozone 

NAAQS and deal with implementation 

deficiencies of the 1997 standard within 

the context of implementing the 2008 

NAAQS. One local air agency 

commenter argued that reclassification 

of subpart 1 areas should not be a 

priority concern when viewed against 

other more important priorities, such as 

implementation of the 2008 ozone 

NAAQS. 

Response: The Court in South Coast 

vacated portions of the Phase 1 Rule 

that addressed certain anti-backsliding 

provisions for the 1-hour standard and 

the portion of the rule that classified 

certain 1997 8-hour standard 

nonattainment areas under subpart 1. 

We plan to address the transition from 

the 1997 standard to the 2008 standard 

in separate rulemaking. 

Comment: One commenter noted that 

there are several provisions of subpart X 

that continue to refer to subpart 1 even 

though the EPA has now proposed to 

classify all nonattainment areas for the 

1997 ozone standard under subpart 2. 

These include §§ 51.908(b), 51.910(b), 

51.912(c) and the portions of § 51.915 

that are subject to § 51.902(b). The 

commenter suggests that these 

provisions may be extraneous if there 

are no areas covered under subpart 1. 

Response: As an initial matter, we 

note that the general implementation 

requirements in subpart 1 also apply to 

areas classified under subpart 2; thus, 

we cannot automatically conclude that 

the provisions referred to by the 

commenter are extraneous. We choose 

to err on the side of retaining provisions 

that may not apply to any areas rather 


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than to remove them in this final rule 

without notice and an opportunity for 

comment. 

Comment: One environmental 

organization commenter indicated 

support for the proposal only if the rule 

could be interpreted as requiring 

Marginal areas to meet the CAA 

reasonably available control measures 

(RACM) requirement. The commenter 

noted that the Denver area was a former 

EAC area that failed to attain and was 

subsequently designated nonattainment. 

Under the proposed rule, Denver would 

be classified as Marginal. The 

commenter pointed out that the table in 

the proposal that summarized CAA 

requirements applicable under both 

subparts 1 and 2 indicates that RACM 

(under subpart 1) applies to subpart 2 

areas also and thus should apply to 

Marginal areas. 

Response: It is true that the RACM 

requirement, which is contained in 

subpart 1, applies to areas classified 

under subpart 2. However, the EPA has 

interpreted the RACM requirement for 

many years in the context of the 

requirement to demonstrate attainment 

as expeditiously as practicable and 

subpart 2 specifically exempts Marginal 

areas from the requirement to submit an 

attainment demonstration. In light of 

that exemption, the EPA has historically 

not required Marginal areas to meet the 

RACM test required of Moderate and 

higher classified areas. However, we 

note that under our EAC regulations, we 

required EAC areas that were 

subsequently designated nonattainment 

(like Denver) to submit an attainment 

demonstration within 1 year of the 

effective date of designation. 40 CFR 

81.300(e)(3)(ii)(D). Therefore, the RACM 

requirements currently apply to the 

Denver nonattainment area. 

Comment: One state air agency 

commenter recommended that the EPA 

should approve requests for 

redesignation to attainment for the 

1-hour ozone standard. 

Response: Because the EPA revoked 

the 1-hour ozone standard, the EPA 

indicated in the Phase 1 Rule that we 

were no longer obligated to redesignate 

areas to attainment or nonattainment for 

the 1-hour standard because once that 

standard was revoked it was no longer 

effective in an area. See 40 CFR 

51.905(e). We are not reconsidering that 

issue as a part of this rulemaking. 

Comment: Several environmental 

commenters alleged that there were 

incorrect statements in the discussion of 

conformity in the anti-backsliding 

portion of the proposal. In one 

comment, the commenter says: 

On page 2940, column 1 of the proposal, 

the EPA states: ‘‘Areas that would be 

reclassified under subpart 2 are already 

satisfying the applicable CAA section 176(c) 

conformity requirements for the 1997 8-hour 

ozone standard.’’ The EPA offers no evidence 

and analysis to support this claim, which 

goes far beyond the scope of the rulemaking 

proposal. It is neither necessary nor 

appropriate for the EPA to make a blanket 

statement that areas that would be 

reclassified are already in fact satisfying 

applicable conformity requirements. What 

the EPA can say is that areas that would be 

reclassified under subpart 2 are already 

required to satisfy applicable section 176(c) 

conformity requirements for the 8-hour 

standard. 

In another comment they say: 

The EPA is also incorrect in stating (at 

2941 n.18) that 40 C.F.R. § 51.905(e)(3) does 

not require revision. That rule includes 

language stating that ‘‘any state conformity 

provisions in an applicable SIP that require 

1-hour ozone conformity determinations are 

no longer federally enforceable.’’ The DC 

Circuit has ruled that the EPA cannot declare 

conformity provisions of an approved SIP to 

be unenforceable. Environmental Defense v. 

EPA, 467 F.3d 1329, 1337 (D.C. 2 Cir. 2006). 

The approved provisions of a SIP remain 

enforceable until the state submits and the 

EPA approves their revocation. Id. 

Accordingly, 40 CFR § 51.905(e)(3) must be 

revised to delete the above-quoted clause. 

Response: We agree with the first 

comment that the quoted sentence was 

worded poorly. We did not intend by 

that statement to make a determination 

that any specific area is satisfying the 

conformity requirements. We agree with 

the commenter’s suggestion as to how 

the statement could have been better 

phrased. 

Regarding the second statement, we 

disagree that 40 CFR 51.905(e)(3) 

requires revision. That regulatory 

provision states that ‘‘[u]pon revocation 

of the 1-hour NAAQS for an area, 

conformity determinations pursuant to 

section 176(c) of the CAA are no longer 

required for the 1-hour NAAQS. At that 

time, any provisions of applicable SIPs 

that require conformity determinations 

in such areas for the 1-hour NAAQS 

will no longer be enforceable pursuant 

to section 176(c)(5) of the CAA.’’ Since 

there is no 1-hour NAAQS, there is no 

ongoing conformity requirement for that 

NAAQS under section 176(c). The 

regulation also specifically refers to 

section 176(c)(5), which states that 

conformity determinations apply only 

in nonattainment and maintenance 

areas. Therefore, the intent of the 

regulations is to clarify that SIP 

provisions requiring conformity 

demonstrations for the revoked 1-hour 

NAAQS are essentially meaningless in 

light of section 176(c)(5). Of course, 

1-hour ozone budgets in approved SIPs 

must be used to demonstrate conformity 

to the 8-hour ozone NAAQS if no 8-hour 

ozone budget exists. 

Comment: Several environmental 

commenters allege that the Clean Data 

Policy is unlawful. One commenter 

states that for reasons explained in 

briefs filed in NRDC v. EPA, No. 06– 

1045 (D.C. Cir.) (which were 

incorporated by reference, and attached 

to the comment), the EPA is completely 

without authority to suspend the Act’s 

mandates for submission and 

implementation of these SIP 

components merely because an area is 

meeting standards at a given point in 

time. They note that the Act provides no 

exception or waiver for submission of 

these SIP elements on grounds of 

temporary attainment. To the contrary, 

they note that section 175A(c) of the Act 

makes crystal clear that all requirements 

for nonattainment areas must remain in 

full force and effect unless and until the 

area is redesignated to attainment and 

has an approved maintenance plan. For 

all of these same reasons, they claim the 

EPA cannot suspend any Part D 

requirements retained pursuant to the 

Act’s anti-backsliding provisions merely 

because an area is temporarily meeting 

either the 1-hour or 8-hour standards. 

They assert that the EPA’s ‘‘clean data’’ 

policy is nothing more than an illegal 

attempt to circumvent the Act’s 

redesignation provisions, section 

107(d)(3)(E) and 175A(c). 

Another environmental organization 

commenter also alleged that the EPA 

lacks authority to suspend controls from 

a SIP by finding the area is meeting the 

1-hour standard. That commenter 

alleged that the CAA’s redesignation 

procedures of section 107 provide a 

specific method that a nonattainment 

area must follow in order to remove 

controls from a SIP. They note that the 

CAA is silent on any alternative manner 

for a nonattainment area to remove 

controls from its SIP, besides being 

redesignated to a different classification. 

They thus claim it is clear that Congress 

intended the extensive redesignation 

process described in section 107 to be 

the only manner in which an area was 

to be permitted to remove controls from 

its SIP. The commenter also notes that 

the proposed rule ignores the 

statutorily-required redesignation 

procedures provided in section 107. The 

commenter further claims that even 

assuming the Clean Data Policy is valid 

as written, it cannot be used to waive 

fees required under section 185 of the 

CAA. They point out that the 1995 Seitz 

memorandum has never even applied to 

waive the section 185 fees controls, only 

other planning requirements. Thus, the 

EPA would take the Seitz memorandum 

reasoning beyond the situations to 


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which it purported to apply, yet the 

EPA does not even acknowledge this 

extension, much less explain why the 

Seitz memo rationale can be extended to 

section 185 fees. The commenter further 

notes that the 1-hour standard is no 

longer the standard that the EPA deems 

requisite to protect public health with 

an adequate margin of safety. Therefore, 

they argue, attaining the 1-hour 

standard should have no bearing on 

whether a state may remove 

contingency measures from its SIP. 

Response: The Clean Data Policy, first 

articulated by the EPA in 1995 with 

regard to the 1-hour ozone standard, and 

subsequently upheld by several Courts 

of Appeals, is not unlawful. The EPA’s 

interpretation of the Clean Data Policy 

for the 1-hour ozone standard is the 

basis for its Clean Data Policy regulation 

for the 8-hour ozone standard, which 

was codified at 40 CFR 51.918 and 

upheld by the D.C. Circuit in NRDC v. 

EPA 571 F.3d 1245 (D.C. Cir. 2009). 

A commenter objects to the Clean 

Data Policy because it is not ‘‘a valid 

manner of removing controls from a 

SIP,’’ and that it ‘‘permits EPA to 

remove applicable controls from an 

area’s SIP by merely making a ‘factual 

finding’ of attainment.’’ This comment 

misconstrues the Clean Data Policy—it 

is not applied to remove any controls 

from the SIP. Rather, it is the EPA’s 

interpretation that the obligation to 

submit certain requirements, including 

those for RFP and contingency 

measures, is suspended for so long as an 

area attains the standard. Once SIP 

provisions have been approved into the 

SIP, the Clean Data Policy does not 

operate to remove them. The same 

commenter contends that attainment of 

the 1-hour standard should have no 

significance because it has been 

‘‘discarded.’’ Although the 1-hour 

standard has been revoked, the 1-hour 

designation and classification status of 

an area at the time of designation for the 

8-hour standard remains the basis for 

determining the 1-hour ozone antibacksliding requirements for that area. 

Independent of and in addition to the 

1-hour standard, the EPA continues to 

separately implement the 8-hour ozone 

standard and all requirements 

applicable under that NAAQS. As the 

EPA noted in its proposal, attainment of 

and redesignation for the 8-hour 

standard also affects the antibacksliding requirements under the 

1-hour standard. 40 CFR 51.905(b) 

Proposal at 74 FR 2942. 

The EPA’s Clean Data Policy does not 

expressly address the suspension of the 

requirement that affected emissions 

sources submit section 185 fees. 

Substantive issues concerning when and 

how section 185 fees apply for purposes 

of the 1-hour standard are not addressed 

as part of this rulemaking action and 

thus we are not addressing substantive 

comments on such issues here. 

G. A Correction to a Footnote in 

Proposed Rule 

The January 16, 2009, proposed rule, 

in the discussion of contingency 

measures, stated, ‘‘In situations where a 

1-hour ozone nonattainment area is in 

attainment based on current air quality 

(e.g., after the area’s attainment date), 

EPA can propose to make a finding of 

attainment.’’ Footnote 16 followed that 

sentence and read as follows: ‘‘This 

applies even if the area did not attain by 

the attainment date; however, the CAA 

requires EPA in these cases to make a 

finding of failure to attain by the 

attainment date and either reclassify the 

area or apply other requirements (such 

as section 185) as specified for the area’s 

classification.’’ (74 FR at 2941, 2942; 

January 16, 2009.) The text ‘‘however, 

the CAA requires EPA in these cases to 

make a finding of failure to attain by the 

attainment date and either reclassify the 

area or apply other requirements (such 

as section 185) as specified for the area’s 

classification’’ was in error and should 

have been deleted. The wording would 

have been appropriate had the situation 

applied to an existing ozone standard, 

such as the 1997 8-hour standard. 

However, for the revoked 1-hour 

standard, EPA has adopted a regulation, 

that was not challenged, providing that 

upon revocation of the NAAQS, the EPA 

would no longer be obligated to make 

findings of failure to attain the 1-hour 

standard or to reclassify areas for failure 

to attain the 1-hour standard by the 

area’s attainment date under the 1-hour 

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

Thus, the EPA is clarifying that the 

portion of footnote 16 stating that the 

EPA remains obligated to make a 

finding of failure to attain the 1-hour 

ozone standard by an area’s attainment 

date (under section 181(b)(2) or section 

179(c)) and to reclassify the area was 

erroneous and in conflict with 

§ 51.905(e)(2)(i). 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

significant regulatory action because it 

raises novel legal or policy issues 

arising out of legal mandates. 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. This 

action sets forth the EPA’s rule for 

addressing portions of the partial 

vacatur of the EPA’s Phase 1 Rule for 

implementation of the 1997 8-hour 

ozone NAAQS. However, OMB has 

previously approved the information 

collection requirements contained in the 

existing Phase 1 Rule (April 30, 2004; 69 

FR 23951) and the Phase 2 Rule 

(November 29, 2005; 70 FR 71612) 

regulations and has been assigned OMB 

Control Number 2060–0594. The OMB 

control numbers for the EPA’s 

regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice-andcomment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 

Agency certifies the rule will not have 

a significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of these regulation revisions on small 

entities, small entity is defined as: (1) A 

small business that is a small industrial 

entity as defined in the U.S. Small 

Business Administration (SBA) size 

standards (See 13 CFR 121.); (2) A 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

A small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impact of these revisions to the 

regulations on small entities, I certify 

that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule will not impose any 

requirements on small entities. The EPA 

is aware that the two small entities 

listed in Table 2, Essex County and 

Jamestown, NY, have either satisfied the 

requirements through previous SIP 


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revisions or certain requirements have 

been suspended due to receiving a 

Clean Data Determination. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995 (UMRA), 2 U.S.C. 1531–1538 for 

state, local, or tribal governments or the 

private sector. This rule restores 

provisions that existed under the 1-hour 

ozone standard and that would have 

continued under the 1-hour standard 

had not the EPA issued a revised ozone 

standard. Those provisions were 

revoked when the EPA revoked the 1- 

hour standard itself. Although a court 

upheld the EPA’s right to revoke the 1- 

hour standard, the court ruled that the 

EPA erroneously revoked several 1-hour 

NAAQS provisions and vacated those 

portion of the EPA’s rule. Thus, the 

court’s own ruling restored the former 1- 

hour NAAQS provisions. This rule 

merely sets forth a corrective regulatory 

mechanism for restoring the 1-hour 

provisions that the court had already 

restored. Therefore, this action is not 

subject to the requirements of section 

202 and 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

EPA has determined that these 

regulation revisions contain no 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires the EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by state 

and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ Policies that have 

‘‘Federalism implications’’ are defined 

in the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule 

restores provisions that existed under 

the 1-hour ozone standard and that 

would have continued under the 1-hour 

standard had not the EPA issued a 

revised ozone standard. Those 

provisions were revoked when the EPA 

revoked the 1-hour standard itself. 

Although a court upheld the EPA’s right 

to revoke the 1-hour standard, the court 

ruled that the EPA erroneously revoked 

several 1-hour NAAQS provisions and 

vacated those portion of the EPA’s rule. 

Thus, the court’s own ruling restored 

the former 1-hour NAAQS provisions. 

This rule merely sets forth a corrective 

regulatory mechanism for restoring the 

1-hour provisions that the court had 

already restored. Thus, Executive Order 

13132 does not apply to these regulation 

revisions. 

In the spirit of Executive Order 13121 

and consistent with the EPA policy to 

promote communications between EPA 

and state and local governments, the 

EPA solicited comments on the proposal 

from state and local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. It does not have a 

substantial direct effect on one or more 

Indian tribes, since no tribe has to 

develop a SIP under these regulatory 

revisions. Furthermore, these regulation 

revisions do not affect the relationship 

or distribution of power and 

responsibilities between the Federal 

government and Indian tribes. The CAA 

and the Tribal Air Rule establish the 

relationship of the Federal government 

and Tribes in developing plans to attain 

the NAAQS, and these revisions to the 

regulations do nothing to modify that 

relationship. Thus, Executive Order 

13175 does not apply. 

The EPA specifically solicited 

additional comment on the proposed 

revisions to the regulations from tribal 

officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

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

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the EO has the 

potential to influence the regulation. 

This action is not subject to Executive 

Order 13045 because these rule 

revisions address NAAQS-related SIP 

obligations of the CAA. The NAAQS are 

promulgated to protect the health and 

welfare of sensitive populations, 

including children. However, the EPA 

solicited comments on whether the 

proposed action would result in an 

adverse environmental effect that would 

have a disproportionate effect on 

children. No comments were received 

on this specific topic. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs the 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This rulemaking does not involve 

technical standards. Therefore, the EPA 

did not consider the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this rule 

will not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 


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environment. The revisions to the 

regulations revise SIP obligations 

related to the ozone NAAQS, which are 

designed to protect all segments of the 

general populations. As such, they do 

not adversely affect the health or safety 

of minority or low income populations 

and are designed to protect and enhance 

the health and safety of these and other 

populations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective June 

13, 2012. 

L. Determination Under Section 307(d) 

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

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

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

V. Statutory Authority 

The statutory authority for this action 

is provided 42 U.S.C. 7409; 42 U.S.C. 

7410; 42 U.S.C. 7511–7511f; 42 U.S.C. 

7601(a)(1). 

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Ozone. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Transportation, Nitrogen oxides, 

Volatile organic compounds. 

40 CFR Part 81 

Air pollution control. 

Dated: April 27, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 50—NATIONAL PRIMARY AND 

SECONDARY AMBIENT AIR QUALITY 

STANDARDS 

■ 1. The authority citation for part 50 

continues to read as follows: 

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

§ 50.9 [Amended] 

■ 2. Section 50.9 is amended by 

removing paragraph (c). 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

■ 3. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

Subpart X—[Amended] 

■ 4. Section 51.900 is amended by 

adding paragraph (f)(14) to read as 

follows: 

§ 51.900 Definitions. 

* * * * * 

(f) * * * 

(14) Contingency measures required 

under CAA sections 172(c)(9) and 

182(c)(9) that would be triggered based 

on a failure to attain the 1-hour NAAQS 

by the applicable attainment date or to 

make reasonable further progress toward 

attainment of the 1-hour NAAQS. 

* * * * * 

■ 5. Section 51.902 is revised to read as 

follows: 

§ 51.902 Which classification and 

nonattainment area planning provisions of 

the CAA shall apply to areas designated 

nonattainment for the 1997 8-hour NAAQS? 

(a) An area designated nonattainment 

for the 1997 8-hour NAAQS will be 

classified in accordance with section 

181 of the CAA, as interpreted in 

§ 51.903(a), for purposes of the 1997 

8-hour NAAQS, and will be subject to 

the requirements of subpart 2 that apply 

for that classification. 

(b) [Reserved]. 

■ 6. Section 51.905 is amended by: 

■ a. Revising the section heading. 

■ b. Adding a sentence to the end of 

paragraph (b). 

■ c. Removing and reserving paragraphs 

(e)(2)(ii) and (e)(2)(iii). 

■ d. Removing paragraph (e)(4). 

The revisions and addition read as 

follows: 

§ 51.905 How do areas transition from the 

1-hour NAAQS to the 1997 8-hour NAAQS 

and what are the anti-backsliding 

provisions? 

* * * * * 

(b) * * * Once an area attains the 

1-hour NAAQS, the section 172 and 182 

contingency measures under the 1-hour 

NAAQS can be shifted to contingency 

measures for the 1997 8-hour ozone 

NAAQS and must remain in the SIP 

until the area is redesignated to 

attainment for the 1997 8-hour NAAQS. 

* * * * * 

(e) * * * 

(2) * * * 

(ii) [Reserved] 

(iii) [Reserved] 

* * * * * 

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 7. The authority citation for part 81 

continues to read as follows: 

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

Subpart C—Section 107 Attainment 

Status Designations 

■ 8. In § 81.303, the table entitled 

‘‘Arizona—Ozone (8-Hour Standard)’’ is 

amended by revising the entries for 

Phoenix-Mesa, AZ: Maricopa County 

(part) and Pinal County (part) to read as 

follows: 

§ 81.303 Arizona. 

* * * * * 

ARIZONA—OZONE [8-HOUR STANDARD] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Phoenix-Mesa, AZ: 

Maricopa County (part) .......................................................................... .................... Nonattainment ..................... 6/13/12 Subpart 2/Marginal. 


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ARIZONA—OZONE [8-HOUR STANDARD]—Continued 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

T1N, R1E (except that portion in Indian Country); T1N, R2E; T1N, 

R3E; T1N, R4E; T1N, R5E; T1N, R6E; T1N, R7E; T1N, R1W; T1N, 

R2W; T1N, R3W; T1N, R4W; T1N, R5W; T1N, R6W; T2N, R1E; 

T2N, R2E; T2N, R3E; T2N, R4E; T2N, R5E, T2N, R6E; T2N, R7E; 

T2N, R8E; T2N, R9E; T2N, R10E; T2N, R11E; T2N, R12E (except 

that portion in Gila County); T2N, R13E (except that portion in Gila 

County); T2N, R1W; T2N, R2W; T2N, R3W; T2N, R4W; T2N, 

R5W; T2N, R6W; T2N, R7W; T3N, R1E; T3N, R2E; T3N, R3E; 

T3N, R4E; T3N, R5E; T3N, R6E; T3N, R7E; T3N, R8E; T3N, R9E; 

T3N, R10E (except that portion in Gila County); T3N, R11E (except 

that portion in Gila County); T3N, R12E (except that portion in Gila 

County); T3N, R1W; T3N, R2W; T3N, R3W; T3N, R4W; T3N, 

R5W; T3N, R6W; T4N, R1E; T4N, R2E; T4N, R3E; T4N, R4E; 

T4N, R5E; T4N, R6E; T4N, R7E; T4N, R8E; T4N, R9E; T4N, R10E 

(except that portion in Gila County); T4N, R11E (except that portion 

in Gila County); T4N, R12E (except that portion in Gila County); 

T4N, R1W; T4N, R2W; T4N, R3W; T4N, R4W; T4N, R5W; T4N, 

R6W; T5N, R1E; T5N, R2E; T5N, R3E; T5N, R4E; T5N, R5E; T5N, 

R6E; T5N, R7E; T5N, R8E; T5N, R9E (except that portion in Gila 

County); T5N, R10E (except that portion in Gila County); T5N, 

R1W; T5N, R2W; T5N, R3W; T5N, R4W; T5N, R5W; T6N, R1E 

(except that portion in Yavapai County); T6N, R2E; T6N, R3E; 

T6N, R4E; T6N, R5E; T6N, R6E; T6N, R7E; T6N, R8E; T6N, R9E 

(except that portion in Gila County); T6N, R10E (except that portion 

in Gila County); T6N, R1W (except that portion in Yavapai County); 

T6N, R2W; T6N, R3W; T6N, R4W T6N, R5W T7N, R1E (except 

that portion in Yavapai County); T7N, R2E; (except that portion in 

Yavapai County); T7N, R3E; T7N, R4E; T7N, R5E; T7N, R6E; 

T7N, R7E; T7N, R8E; T7N, R9E (except that portion in Gila County); T7N, R1W (except that portion in Yavapai County); T7N, R2W 

(except that portion in Yavapai County); T8N, R2E (except that portion in Yavapai County); T8N, R3E (except that portion in Yavapai 

County); T8N, R4E (except that portion in Yavapai County); T8N, 

R5E (except that portion in Yavapai County); T8N, R6E (except 

that portion in Yavapai County); T8N, R7E (except that portion in 

Yavapai County); T8N, R8E (except that portion in Yavapai and 

Gila Counties); T8N, R9E (except that portion in Yavapai and Gila 

Counties); T1S, R1E (except that portion in Indian Country); T1S, 

R2E (except that portion in Pinal County and in Indian Country); 

T1S, R3E; T1S, R4E; T1S, R5E; T1S, R6E; T1S, R7E; T1S, R1W; 

T1S, R2W; T1S, R3W; T1S, R4W; T1S, R5W; T1S, R6W; T2S, 

R1E (except that portion in Indian Country); T2S, R5E; T2S, R6E; 

T2S, R7E; T2S, R1W; T2S, R2W; T2S, R3W; T2S, R4W; T2S, 

R5W; T3S, R1E; T3S, R1W; T3S, R2W; T3S, R3W; T3S, R4W; 

T3S, R5W; T4S, 1E; T4S, R1W; T4S, R2W; T4S, R3W; T4S, R4W; 

T4S, R5W. 

Pinal County (part) .................................................................................

Apache Junction: T1N, R8E; T1S, R8E (Sections 1 through 12) 

.................... Nonattainment ..................... 6/13/12 Subpart 2/Marginal. 

* * * * * * * 

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

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

* * * * * 

■ 9. In § 81.305, the table entitled 

‘‘California—Ozone (8-Hour Standard)’’ 

is amended by revising the entries for 

the following: 

■ a. Amador and Calaveras Cos (Central 

Mtn), CA 

■ b. Chico, CA 

■ c. Kern Co. (Eastern Kern), CA 

■ d. Mariposa and Tuolumne Cos. 

(Southern Mtn), CA 

■ e. San Diego, CA 

■ f. Sutter Co. (part), CA 

■ g. Nevada Co. (Western Part), CA 

§ 81.305 California. 

* * * * * 

CALIFORNIA—OZONE [8-HOUR STANDARD] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Amador and Calaveras Cos., CA: 

(Central Mountain Cos.) 

Amador County ................................................................ .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Calaveras County ............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Chico, CA: 

Butte County .................................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Kern County (Eastern Kern), CA ............................................ .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Kern County (part) 


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CALIFORNIA—OZONE [8-HOUR STANDARD]—Continued 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

That portion of Kern County (with the exception of that 

portion in Hydrologic Unit Number 18090205—the Indian Wells Valley) east and south of a line described 

as follows: Beginning at the Kern-Los Angeles County 

boundary and running north and east along the northwest boundary of the Rancho La Liebre Land Grant to 

the point of intersection with the range line common 

to Range 16 West and Range 17 West, San 

Bernardino Base and Meridian; north along the range 

line to the point of intersection with the Rancho El 

Tejon Land Grant boundary; then southeast, northeast, and northwest along the boundary of the Rancho El Tejon Grant to the northwest corner of Section 

3, Township 11 North, Range 17 West; then west 1.2 

miles; then north to the Rancho El Tejon Land Grant 

boundary; then northwest along the Rancho El Tejon 

line to the southeast corner of Section 34, Township 

32 South, Range 30 East, Mount Diablo Base and 

Meridian; then north to the northwest corner of Section 35, Township 31 South, Range 30 East; then 

northeast along the boundary of the Rancho El Tejon 

Land Grant to the southwest corner of Section 18, 

Township 31 South, Range 31 East; then east to the 

southeast corner of Section 13, Township 31 South, 

Range 31 East; then north along the range line common to Range 31 East and Range 32 East, Mount 

Diablo Base and Meridian, to the northwest corner of 

Section 6, Township 29 South, Range 32 East; then 

east to the southwest corner of Section 31, Township 

28 South, Range 32 East; then north along the range 

line common to Range 31 East and Range 32 East to 

the northwest corner of Section 6, Township 28 

South, Range 32 East, then west to the southeast 

corner of Section 36, Township 27 South, Range 31 

East, then north along the range line common to 

Range 31 East and Range 32 East to the Kern-Tulare 

County boundary. 

* * * * * * * 

Mariposa and Tuolumne Cos., CA: 

(Southern Mountain Counties) 

Mariposa County .............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Tuolumne County ............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

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

San Diego County (part) 

.................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

That portion of San Diego County that excludes the 

areas listed below: La Posta Areas #1 and #2 b, 

Cuyapaipe Area b, Manzanita Area b, Campo Areas #1 

and #2.b

* * * * * * * 

Sutter County (part), CA: .................... Nonattainment ............... 6/13/12 Subpart 2/Original. 

Sutter County (part).

(Sutter Buttes) That portion of the Sutter Buttes mountain range at or above 2,000 feet in elevation. 

* * * * * * * 

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

Nevada County (part) 

.................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

That portion of Nevada County, which lies west of a 

line, described as follows: beginning at the NevadaPlacer County boundary and running north along the 

western boundaries of Sections 24, 13, 12, 1, Township 17 North, Range 14 East, Mount Diablo Base 

and Meridian, and Sections 36, 25, 24, 13, 12, Township 18 North, Range 14 East to the Nevada-Sierra 

County boundary. 


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CALIFORNIA—OZONE [8-HOUR STANDARD]—Continued 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

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

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

and are illustrated in a map entitled ‘‘Eastern San Diego County Attainment Areas for the 8-Hour Ozone NAAQS,’’ dated March 9, 2004, including an attached set of coordinates. The map and attached set of coordinates are available at EPA’s Region 9 Air Division office. The designated 

areas roughly approximate the boundaries of the reservations for these tribes, but their inclusion in this table is intended for CAA planning purposes only and is not intended to be a federal determination of the exact boundaries of the reservations. Also, the specific listing of these tribes 

in this table does not confer, deny, or withdraw Federal recognition of any of the tribes so listed nor any of the tribes not listed. 1This date is June 15, 2004, unless otherwise noted. 

* * * * * 

■ 10. In § 81.306, the table entitled 

‘‘Colorado—Ozone (8-Hour Standard)’’ 

is amended by revising the entry for 

Denver-Boulder-Greeley-Ft. CollinsLoveland, CO as follows: 

§ 81.306 Colorado. 

* * * * * 

COLORADO—OZONE [8-HOUR STANDARD] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Denver-Boulder-Greeley-Ft. Collins-Loveland, CO: 

Adams County .................................................................. 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Arapahoe County ............................................................. 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Boulder County (includes part of Rocky Mtn. Nat. Park) 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Broomfield County ............................................................ 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Denver County ................................................................. 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Douglas County ................................................................ 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Jefferson County .............................................................. 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Larimer County (part) ....................................................... 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

(includes part of Rocky Mtn. Nat. Park). That portion of 

the county that lies south of a line described as follows: Beginning at a point on Larimer County’s eastern boundary and Weld County’s western boundary 

intersected by 40 degrees, 42 minutes, and 47.1 seconds north latitude, proceed west to a point defined 

by the intersection of 40 degrees, 42 minutes, 47.1 

seconds north latitude and 105 degrees, 29 minutes, 

and 40.0 seconds west longitude, thence proceed 

south on 105 degrees, 29 minutes, 40.0 seconds 

west longitude to the intersection with 40 degrees, 33 

minutes and 17.4 seconds north latitude, thence proceed west on 40 degrees, 33 minutes, 17.4 seconds 

north latitude until this line intersects Larimer County’s 

western boundary and Grand County’s eastern 

boundary. 

Weld County (part) ........................................................... 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

That portion of the county that lies south of a line described as follows: Beginning at a point on Weld 

County’s eastern boundary and Logan County’s western boundary intersected by 40 degrees, 42 minutes, 

47.1 seconds north latitude, proceed west on 40 degrees, 42 minutes, 47.1 seconds north latitude until 

this line intersects Weld County’s western boundary 

and Larimer County’s eastern boundary. 

* * * * * * * 

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

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

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

* * * * * 

■ 11. In § 81.329, the table entitled 

‘‘Nevada—Ozone (8-Hour Standard)’’ is 

amended by revising the entry for Las 

Vegas, NV as follows: 

§ 81.329 Nevada. 

* * * * * 


emcdonald on DSK29S0YB1PROD with RULES2
Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations 28445 

NEVADA—OZONE [8-HOUR STANDARD] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Las Vegas, NV: 

Clark County .................................................................... 2 Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

That portion of Clark County that lies in hydrographic 

areas 164A, 164B, 165, 166, 167, 212, 213, 214, 216, 

217, and 218 but excluding the Moapa River Indian 

Reservation and the Fort Mojave Indian Reservation.b

* * * * * * * 

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

bThe use of reservation boundaries for this designation is for purposes of CAA planning only and is not intended to be a federal determination 

of the exact boundaries of the reservations. Nor does the specific listing of the Tribes in this table confer, deny or withdraw Federal recognition of 

any of the Tribes listed or not listed. 1This date is June 15, 2004, unless otherwise noted. 

2The effective date is September 13, 2004. 

* * * * * 

■ 12. In § 81.333, the table entitled 

‘‘New York—Ozone (8-Hour Standard)’’ 

is amended by revising the entries for 

the following: 

■ a. Albany-Schenectady-Troy, NY 

■ b. Buffalo-Niagara Falls, NY 

■ c. Essex County (Whiteface Mtn.), 

NY—Essex County (Part) 

■ d. Jamestown, NY 

■ e. Rochester, NY 

§ 81.333 New York. 

* * * * * 

NEW YORK—OZONE [8-HOUR STANDARD] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

Albany-Schenectady-Troy, NY: 

Albany County .................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Greene County ................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Montgomery County ......................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Rensselaer County ........................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Saratoga County .............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Schenectady County ........................................................ .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Schoharie County ............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Buffalo-Niagara Falls, NY: 

Erie County ...................................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Niagara County ................................................................ .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Essex County (Whiteface Mtn.), NY: 

Essex County (part).

The portion of Whiteface Mountain above 1,900 feet in 

elevation in Essex County. 

.................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

* * * * * * * 

Jamestown, NY: 

Chautauqua County ......................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

* * * * * * * 

Rochester, NY: 

Genesee County .............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Livingston County ............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Monroe County ................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Ontario County ................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Orleans County ................................................................ .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

Wayne County .................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Marginal. 

*******

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

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

2The effective date is September 13, 2004. 

* * * * * 

■ 13. In § 81.339 the table entitled 

‘‘Pennsylvania—Ozone (8-Hour 

Standard)’’ is amended by revising the 

entries for Pittsburgh-Beaver Valley, PA 

as follows: 

§ 81.339 Pennsylvania. 

* * * * * 


emcdonald on DSK29S0YB1PROD with RULES2
28446 Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations 

PENNSYLVANIA—OZONE [8-HOUR STANDARD] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Pittsburgh-Beaver Valley, PA: 

Allegheny County ............................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Armstrong County ............................................................ .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Beaver County ................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Butler County ................................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Fayette County ................................................................. .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Washington County .......................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

Westmoreland County ...................................................... .................... Nonattainment ............... 6/13/12 Subpart 2/Moderate. 

* * * * * * * 

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

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

2The effective date is September 13, 2004. 

* * * * * 

[FR Doc. 2012–11232 Filed 5–11–12; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK29S0YB1PROD with RULES2