# + 2

(,1 1/,1(

Citation: 78 Fed. Reg. 34178 2013

Content downloaded/printed from HeinOnline (http://heinonline.org) Mon Sep 8 21:41:23 2014

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

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

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 50, 51, 70 and 71 [EPA-HQ-OAR-2010-0885, FRL-9810-3]
RIN2060-AR34
Implementation ofthe 2008 National Ambient AirQuality Standards for Ozone: State Implementation Plan Requirements

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: The EPA isproposing a rule for implementing the 2008 ozone national ambient air quality standards (NAAQS) (the "2008 ozone NAAQS") that were promulgated on March 12, 2008. This proposed rule addresses a range ofstate implementation plan requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further
progress (RFP), reasonably available control technology (RACT), reasonably available control measures (RACM),

new source review (NSR)requirements in nonattainment areas, emission inventories, and the timing ofstate implementation plan (SIP) submissions and ofcompliance with emission control measures in the SIP. Other issues also addressed in thisproposed rule are the revocation ofthe 1997

ozone NAAQS and anti-backsliding requirements that would apply when the 1997 ozone NAAQS is revoked. DATES: Comments.Comments mustbe received on orbefore August 5,2013. PublicHearings.The EPA plans tohold

one public hearing concerning the proposed rule in Washington, DC. The date, time and location willbe announced separately. Please refer to SUPPLEMENTARY INFORMATION for additional information on the comment period and the public hearings. InformationCollectionRequest.Under the Paperwork Reduction Act (PRA),
comments on the information collection provisions must be received by the Office ofManagement andBudget (OMB) on or before July 8, 2013. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQOAR-2010-0885, by one ofthe following methods:

* www.regulations.gov:Follow the on-line instructions for submitting
comments.

* Email:a-and-r-docket@epa.gov. * Mail:Air and Radiation Docket and Information Center, Attention Docket ID No. EPA-HQ-OAR-2010-0885, Environmental Protection Agency, 1301 Constitution Ave. NW., Washington, DC 20460. Mail Code: 2822T. Please include two copies ifpossible. In addition, please mail a copy ofyour comments on the information collection provisions to the Office ofInformation and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503. * HandDelivery:Air and Radiation Docket and Information Center, Attention Docket ID No. EPA-HQOAR-2010-0885, Environmental Protection Agency in the EPA Headquarters Library, Room Number 3334 in theEPA West Building,located
at 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room isopen from 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, Air and Radiation Docket and Information Center.

Instructions: Directyour comments to Docket ID No. EPA-HQ-OAR-2010- 0885. The EPA's policyisthat all
comments received willbe included in the public docket without change and may be made available on-line at www.regulations.gov,including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Do not submit information thatyou consider tobe CBIor otherwise protected through www.regulations.gov

or email. The www.regulations.govWeb site is an "anonymous access" system, which means theEPA will notknow your identity or contact information unless you provide itin the body of
your comment. Ifyou send an email
comment directly tothe EPA without going through www.regulations.gov, your email address will be automatically captured and included as part ofthe comment that isplaced in the public docket andmade available on the Internet. Ifyou submit an electronic comment, theEPA recommends that you include your name and other
contact information in thebody ofyour comment andwith any CD you submit. IftheEPA cannot read yourcomment due to technical difficulties and cannot contact you for clarification, theEPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form ofencryption and be free ofany defects orviruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage athttp://www.epa.gov! epahome/dockets.htm.For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section ofthis document.

Docket:All documents in the docket

are listed in www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., CBIor other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and willbe publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.govorin hard copy at the Air and Radiation Docket and Information Center in the EPA Headquarters Library, Room Number 3334 in the EPAWest Building, located
at 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For further general information on this rulemaking, contact Dr. Karl Pepple, Office ofAir Quality Planning and Standards, U.S. Environmental Protection Agency, by phone at (919) 541-2683, or by email at pepple.karl@epa.gov;or Mr. Butch Stackhouse, Office ofAir Quality Planning and Standards, U.S. Environmental Protection Agency, phone number (919) 541-5208, orby email at stackhouse.butch@epa.gov. For information on the public hearings,
contact Ms. Pamela S. Long at (919) 541-0641 orby email at long.pam@epa.gov.

SUPPLEMENTARY INFORMATION:
I. General Information

A. Does thisactionapplytome?

Entities potentially affected directly by this proposal include state, local and tribal governments. Entities potentially affected indirectly by this proposal include owners and operators ofsources ofemissions (volatile organic compounds (VOCs)and nitrogen oxides (NOx)) that contribute to ground-level

ozone formation.

B. WhatshouldIconsiderasIprepare my commentsfortheEPA?
1.SubmittingCBI.Do not submit CBI information to the EPAthrough www.regulations.govor email. Clearly mark thepart or all ofthe information that you claim tobe CBI. ForCBI information on a disk or CDROM that you mail to theEPA, markthe outside ofthe disk or CD ROM as CBI andthen 

### 34178

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

identify electronically within the disk or CD ROM the specific information thatis claimed as CBI. In addition to one completeversion ofthe comment that includes information claimed as CBI, a copy ofthe comment that does not contain the information claimed tobe CBI mustbe submitted for inclusion in the public docket. Information marked CBI will notbe disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips forPreparingYour Comments. When submitting comments, remember
to:* Identify the rulemaking by docket number and other identifying information (subjectheading, Federal Register date and page number).

: Follow directions-The agency may askyou to respond to specific questions

ororganize comments by referencing a Code ofFederal Regulations (CFR) part

or section number.

* Explain whyyou agree ordisagree; suggest alternatives and substitute language for your requested changes.

* Describe any assumptions and provide any technical information and/

ordata that you used.

* Ifyou estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for itto be reproduced.

* Provide specific examples to illustrate your concerns, and suggest alternatives.

* Explain your views as clearly as possible, avoiding the use ofprofanity

orpersonal threats.

* Make sure to submit your comments by the comment period deadline identified.

C. Wherecan Igetacopy ofthis documentandotherrelated information?

In addition to being available inthe docket, an electronic copy ofthis notice will be posted at http://www.epa.govl air/ozonepollution/actions.html#impl.

D. What informationshouldIknow about possiblepublichearings?
The EPA intends to hold one public hearing on this proposal. Further details concerning thepublic hearing for this proposed rule will be published in a separate FederalRegister notice. For updates and additional information on the public hearings, please check the EPA's Web site for this rulemaking athttp://www.epa.gov/air/ozonepollutionactions.html#impl.

E.Howis thisnoticeorganized?

The information presented in this notice is organized as follows:

I. General Information A. Does this action apply to me? B. What should Iconsider as Iprepare my

comments for theEPA? C. Where can Iget a copyofthis document

and other related information? D. What information should Iknow about

possible public hearings? E. Howis thisnotice organized? II. Background for Proposal

A. The 2008 Ozone NAAQS B. The Challenge of Ozone Implementation C. History ofImplementation Rules for the

1997 Ozone NAAQS D. Section 110 SIP Requirements E. PartD Nonattainment Area SIP

Requirements III. What are the state implementation plan requirements forthe 2008 ozone NAAQS? A. What is the deadline for submitting

nonattainment area SIP elements due under Clean Air Act (CAA or Act) section 182 for the 2008 ozone NAAQS? B. What are therequirements for modeling

and attainment demonstration SIPs? C. What are the RFP requirements forthe

2008 ozone NAAQS? D. How do RACT and RACM requirements

apply for 2008 ozone NAAQS nonattainment areas? E. Doesthe 2008 ozone NAAQS result in

any newinspection and maintenance (I/M)programs? F. Howdoes transportation conformity

apply to the 2008 ozone NAAQS? G. What requirements forgeneral

conformity apply to the 2008 ozone NAAQS? H. What are therequirements for

contingency measures inthe event of failure to meet a milestone or to attain? I.How dothe NSRrequirements apply for

the 2008 ozone NAAQS? J.What are the emission inventory and

emission statement requirements? K. What are the ambient monitoring

requirements? L. Howcan states qualify fora 1-year

attainment deadline extension? M. How will theEPA address transport of

ozone and its precursors forrural nonattainment areas, multi-state nonattainment areas and international transport? N. How will the section 182(f)NOx

provisions be handled? 0. Emissions Reduction Benefits ofEnergy

Efficiency/Renewable Energy Policies and Programs, Land Use Planning and Travel Efficiency P. Efforts ToEncourage a Multi-Pollutant

Approach When Developing 2008 Ozone SIPs Q. How does thisproposed rule apply to

tribes? R. What are therequirements for the Ozone

Transport Region (OTR)? S. Are there any additional requirements

related to enforcement and compliance? T. What are therequirements for

addressing emergency episodes? U. How does the "Clean DataPolicy" apply

to the 2008 ozone NAAQS? V. What assistance programs is the EPA

considering for implementation ofthe 2008 ozone NAAQS? W. What is the deadline for states to submit SIP revisions to address the CAA section 185 penalty fee provision for Severe and Extreme areas? IV. What is the EPAproposing to address anti-backsliding issues related to transition from the 1997 ozone NAAQS
to the 2008 ozone NAAQS? A. General Background B. Background on Transition From the 1-

Hour to the 1997 Ozone NAAQS C. Background on Nonattainment NSR D. Background on Section 185 Fees E. Background onthe Contingency

Measures Requirement F. What is theEPA proposingregarding

anti-backsliding requirements for the 1-hourand 1997 ozone NAAQS? G. Timing of 1997 Ozone NAAQS

Revocation and Related Anti-Backsliding Requirements H. What are the applicable requirements

for anti-backsliding purposes during the transition tothe 2008 ozone NAAQS? I.Application ofTransition Requirements

to Nonattainment and Attainment Areas J.Satisfaction ofAnti-Backsliding

Requirements foran Area K. How will theEPA's determination of

attainment ("Clean Data") regulation apply for purposes ofthe antibacksliding requirements? L. What is therelationship between

implementation of the 2008 ozone NAAQS and the CAA title V permits program? V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review andExecutive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory FlexibilityAct 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 FromEnvironmental Health and SafetyRisks H. Executive Order 13211: Actions

Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I.National Technology Transfer and

Advancement Act J.Executive Order 12898: Federal Actions

To Address Environmental Justice in Minority Populations and Low-Income Populations K. Determination Under Section 307(d) Appendix A toPreamble-Glossary ofTerms and Acronyms Appendix B to Preamble-Relevant Rulemakings Concerning Implementation of the 1997 Ozone NAAQS Appendix C to Preamble-Methods to Account forNon-Creditable Reductions When Calculating RFP Targets for the 2008 Ozone NAAQS Appendix D to Preamble-List ofAreas Nonattainment forthe 2008 Ozone NAAQS in Addition to a Prior Ozone NAAQS 

### 34179

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

Statutory Authority List of Subjects

II. Background forProposal

A. The 2008OzoneNAAQS

On March 12, 2008,1 the EPA revised the primary NAAQS for ozone, designed
to protect public health, to alevel of 0.075 parts per million (ppm)(annual fourth-highest daily maximum 8-hour concentration, averaged over 3years).2 The secondary NAAQS for ozone, designed to protect public welfare, was simultaneously set at the same level (andwith the same averaging time) as the primary NAAQS. Since the 2008 primary and secondary NAAQS for

ozone are identical, for convenience, we refer to both as "the 2008 ozone NAAQS" or "the 2008 ozone standard."

On September 16, 2009, theEPA announced 3 that itwould initiate a rulemaking to reconsider the 2008

ozone NAAQS for various reasons, including the factthe 0.075 ppm level fell outside ofthe range for theprimary standard recommended by the Clean Air Scientific Advisory Committee. Pending the outcome ofthat reconsideration, the EPA suspended further workon designating areas, and on classifying and developing implementation guidance for areas thatwould be designated nonattainment for the 2008 NAAQS. In September 2011, the OMB returned for further consideration the EPA's draft rulemaking toreconsider the 2008 ozone NAAQS. 4The current primary and secondary NAAQS for

ozone thus remains at 0.075 ppm, as established in 2008. The 2008 ozone NAAQS retains the same general form and averaging time as the 0.08 ppm NAAQS set in 1997but is set at a more stringent level.

B. The ChallengeofOzone Implementation

The EPA and the states, and some local and tribal air agencies, are now proceeding with activities to implement the 2008 ozone NAAQS. In rules finalized on April 30, 2012, and May 31, 2012, the EPA formally designated all

areas ofthe country as attainment/ unclassifiable, nonattainment or unclassifiable for the 2008NAAQS. 5On April 30, 2012, the EPA also finalized a

173 FR 16436. 2For a detailed explanation ofthe calculation of
the 3-year 8-hour average, see40 CFR part 50, Appendix I.

3http://yosemite.epa.govlopaladmpress.nsflo 85F9OB7711ACBOC88525763300617DOD.

4Memorandum from Cass R. Sunstein to the former EPA Administrator Lisa Jackson, September 2, 2011.

5The EPA designated 46 areas as nonattainment for the 2008 ozone NAAQS. rule that established the approach for classifying ozone nonattainment areas for the 2008 ozone NAAQS based on their air quality concentrations, as well

as the deadline for areas in each classification to achieve the 2008 ozone NAAQS. 6 Thatrule, referred to as the "Classifications Rule," also addressed the revocation ofthe 1997 ozone NAAQS for purposes related to transportation conformity, and reclassification for certain areas in California. Today's proposed rule, referred to as the "SIP Requirements Rule," addresses a range ofadditional issues important for implementing the 2008 ozone NAAQS.

In this action, the EPAproposes a rule
to address the steps states will take to implement the 2008 ozone NAAQS and the timing ofthose steps. In accordance with Executive Order (EO) 13563 titled, "Improving Regulation and Regulatory Review," signed by President Barack Obama onJanuary 18, 2011, which directs governmental agencies to offer and support flexible, common sense approaches, this proposed SIP Requirements Rule is intended to provide the health and environmental protections required under the CAA while maximizing flexibility and minimizing burden for states, who are the primary implementing agencies.

Achieving the healthbenefits required by the CAA will require the combined efforts offederal, state, local, andin

some cases tribal governments, each accomplishing the tasks forwhich itis best suited. Forthe EPA, thatmeans adopting national standards where it makes sense to do so, such as standards
to reduce emissions from sectors that

are ofnational concern, such as mobile

sources and many types ofindustries. It also means providing as much assistance and flexibility as possible to the states as they work to develop and implement their attainment plans. In addition, we are mindful thatthe requirement to implement the 2008

ozone NAAQS comes at atime when many states are facing substantial

resource challenges. The EPA is committed to working in partnership with states and other stakeholders to share the burden ofimplementing the 2008 ozone NAAQS by promulgating a number ofnational regulations that will provide significant reductions in ozone precursors.

In this preamble, we lay out proposed expectations and requirements for implementation ofthe 2008 ozone NAAQS. As we have considered the elements ofimplementation ofthe NAAQS required under the CAA, it has

6 77 FR 30160, May 21, 2012. been our goal to propose approaches that provide flexibility and opportunities for efficiency, without jeopardizing expeditious attainment of the public health and welfare goals, and
to identify the ways in which the EPA will provide assistance tothe states. We invite comment on any and all aspects ofthis proposed rule, and encourage suggestions that willincrease implementation efficiency, allow the
most effective pollution control programs tobe implemented and identify additional ways in which the EPA can assist the states to reach attainment within the legal framework ofthe CAA.

The CAA was amended in 1990to add specific provisions that apply to

ozone nonattainment areas. These include timelines for both planning and implementation, and numerous mandates for specific programs to reduce emissions. Since that time, the EPA, states and others have gained a great deal ofscientific knowledge and increased understanding ofissues related to ozone formation and control. Specifically, we know more about how NOx and VOC interact to form ozone andwe havebetter models for evaluating control strategies. This better understanding allows for more strategic approaches in whichpublic health can

serve as the key factorin prioritizing control measures. We also have abetter appreciation for the role ofinterstate transport ofozone, international transport ofpollutants and background levels ofozone. In the past 20 years, technology has evolved substantially, particularly with respect tomobile
sources, with the result that some ofthe very specific programs mandated for

ozone nonattainment areas, such as Stage IIVapor Recovery and vehicle I/M programs, may not provide the benefits they did originally because the problems that they were designed to address have been largely solved in other ways or technology advances make them no longer relevant. New and creative emission reduction approaches, such as energy efficiency and land use programs, are nowbeing explored that have great promise for improved air quality and otherbenefits, but may not fit easily into the timelines ofthe CAA

orthe EPA's traditional expectations for SIPs. Other innovative approaches, such

asI/M programs built around next generation testing technologies like onboard diagnostics (OBD), are available

now and the EPA willwork with states interested in adopting such programs to

ensure their effective implementation.

The EPAhas explored a number of approaches to address the issues discussed above and has identified 34180

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

several ways to achieve emission reductions through national/regional standards and provide states flexibility and assistance in meeting the CAA requirements to increase implementation efficiency while still ensuring the public health andwelfare protection achieved by meeting the

ozone NAAQS. In subsequent sections ofthis preamble, we lay out our proposed approaches, but here are a few examples:

1.Federalcontrolmeasures:States

canrely on emission reductions from federal control measures to help areas attain the 2008 ozone NAAQS or to meet other SIP-related objectives, as long as the federal measures achieve their reductions prior tothe relevant SIP-related deadlines. Promulgated and planned federal rules include, but are not limited to: (1)Tier 3emissions standards for on-road motor vehicles; 7 (2)Maximum Achievable Control Technology (MACT)rules that address hazardous air pollutants (HAPs)that are also VOCs, such as rules associated with oil and gas development, internal combustion engines, incinerators, boilers and cement kilns; and (3)

consumer product rules. The emission reductions achieved by these federal rules will reduce the amount of emission reductions individual states will need to achieve through state and local regulations in order for areas to attain the 2008 ozone NAAQS.

2. StageII VaporRecovery:In a separate Federal Register notice (77 FR 28772; May 16, 2012), the EPA determined that onboard refueling vapor recovery was in widespread use throughout the country and, as a result, the EPA exercised its authority under the CAA to waive the mandatory section 182(b)(3) stage II vapor recovery requirement. This waiver allows states, ifthey determine itappropriate, to discontinue the requirement for gasoline dispensing facilities (GDFs) in Serious and above nonattainment areas to install and operate Stage II vapor recovery systems, and therequirement for states to inspect such systems, resultingin
cost savings for both the states and the

owners and operators ofGDFs. 3.Attainmentdemonstrations: The EPA is investigating opportunities for easing the burden on states to conduct

7In addition to the planned Tier 3 emission standards, other new and existing mobile source regulations addressing emissions from new heavydutyvehicles, non-road equipment and engines, locomotives, marine engines and ocean-going vessels willcontinue to provide additional emissions reductions as the current fleets are replaced withvehicles, equipment and engines that

are certified to more stringent emissions standards

or engines are re-built to comply withany applicable requirements. air quality modeling to demonstrate attainment, particularly for nonattainment areas initially classified

as Moderate or reclassified to Moderate for the 2008 ozone NAAQS. The EPA is exploring options such asmaking available various emissions, meteorological andboundary conditions inputs, and national scale modeling results that were generated in support of EPA rules, that states could reference as part oftheir attainment demonstrations.

4. Innovativeandcreative approaches: EO 13563 specifically requires agencies to "seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation." The EPA is encouraging innovative and creative approaches toreducing emissions such

as improvements in energy efficiency and land use programs, especially since
many ofthe more traditional control

measures have already been implemented in many areas. The EPA is committed to working in partnership with states to facilitate the incorporation of such approaches into SIPs. Energy efficiency, renewable energy programs, land use planning and travel efficiency

are discussed in more detail in section 111.0 ofthis preamble.

5. Updatedinformation:The EPA will continue to assist states' implementation efforts by offering a variety ofnew compilations of information thatwill be useful to all
states. In 2012, the EPA issued an updated "Menu ofControl Measures" document which includes information

on NOx and VOC control measures, including efficiencies and costs, for a range of source categories. This menu of

measures is located at http:// www.epa.gov/airquality/ozonepollution/ SIPToolkit/.In addition,the EPA developed a Web site with information

on existing local ozone reduction

measures (e.g., ozone action days, ridesharing programs) and a forum for the exchange ofideas about potential
state and local measures. This control

measure Web site is located at http:// www.epa.gov/airquality/ozonestrategy/. General information about SIP implementation requirements islocated
at http://www.epa.gov/airl ozonepollution/implement.html. Specific information regarding SIP submittal and approval status islocated
at http://www.epa.gov/airqualityl urbanair/sipstatus/.

6. Emissionsoffsetrelief inEconomic DevelopmentZones:The EPA will work with states to identify areas within nonattainment areas as zones to which economic development should be targeted. In these zones, the CAA allows

new or modified major sources seeking permits to meet emissions growth offset requirements by drawing from a pool of growth allowances established bythe
state. This will help ensure clean air requirements can be met in a way that is consistent with economic development in low-employment areas and other areas in need ofjobgrowth.

7. Ruraltransport areas:Section 182(h) ofthe CAA provides a "rural transport" classification for ozone nonattainment areas that are rural in
nature and can demonstrate that sources in the area do not make a significant contribution to ozone concentrations measured in the area orin other areas. These areas are subject to Marginal area requirements, regardless ofthe area's classification under section 181(a), in recognition ofthat fact.

8. RFPrequirements: The EPA is proposing to provide nonattainment

areas classified as Moderate and above the flexibility in certain situations to substitute NOx reductions for VOC reductions in their 15 percent RFP plans. Webelieve that, given the improved scientific understanding of the formation ofozone, itmakes sense, wherever possible, to allow states to credit toward the RFP requirement those reductions that an area most needs to reach attainment.

9. Combiningsubmittals:The EPA is proposing, as an option, to allow states to combine SIP submittals where they believe it will reduce administrative burdens, and to adjust timeframes to provide more time for states to conduct

some ofthe necessary rulemaking or program development activities without compromising expeditious progress towards and attainment ofthe standards. 10. Encouraging earlyreductions: Under the "Ozone Advance" program, the EPA is working with states,tribes and local governments to ensure they

are aware ofthe advantages ofearly action and to provide assistance in taking steps to achieve emission reductions in ozone attainment areas and participating Marginal nonattainment areas. Early reductions may help these areas maintain the 2008

ozone NAAQS. The EPAbelieves there

are significant advantages for states, tribes and local governments totake steps toreduce emissions as early as possible. Early reductions can helpto maintain or improve existing air quality, which in turn can help to ensure continued health protection and keep an

area in attainment or, ifeventually designated as nonattainment under a future ozone NAAQS, help bring the

area backinto attainment. In addition, efforts toimprove local air quality can establish working relationships between 

### 34181

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

key stakeholders thatcan help achieve emission reductions quickly and in
ways thatmake the most senseto the particular community.

The EPA will work closely with states andtribes toprovide assistance and flexibility in implementing the 2008

ozone NAAQS consistent with the implementation approaches that are adopted in the final implementation rule. The EPA solicits comment on other suggestions commenters may have for this implementation rulethat are consistent with the CAA and provide flexibility to the states for common

sense implementation thatwill provide for timely progress towards attainment ofthe 2008 ozone standard.

C.HistoryofImplementationRulesfor the1997 OzoneNAAQS

In 2004 and 2005, theEPA promulgated regulations codified in 40 CFR part 51, subpart X, addressing implementation ofthe 1997 8-hour

ozone NAAQS, revocation ofthe 1979 1-hour ozone NAAQS, and the antibacksliding requirements that continued
to apply for therevoked 1979 standard. SeeFederal Register publications at 69 FR 23951, April 30, 2004 (the "Phase 1" Rule) and 70 FR 71612, November 29, 2005 (the "Phase 2" Rule). The EPA received several petitions for reconsideration and several parties submitted petitions forjudicial review ofthose rules. The EPA granted reconsideration of several issues and took final action on those issues. Challenges tothose reconsideration actions were consolidated with the challenges to the Phase 1and Phase 2 Rules. The court upheld portions ofthe Phase 1Rule but vacated limited portions concerning the classification of

areas under subpart 1ofpart D oftitle I ofthe CAA and the failure to include three anti-backsliding requirements associated with therevoked 1-hour

ozone NAAQS. South CoastAirQuality ManagementDistrictv. EPA,472 F.3d 882 (D.C. Cir. 2006) (South Coast). Although the court upheld only limited challenges, itseemed tovacate the Phase 1Rule in its entirety. The EPA requested rehearing and clarification of the ruling, and onJune 8, 2007, the
courtclarified that itvacated the rule onlyto the extent thatit had upheld petitioners' challenges. South Coast Air Quality ManagementDistrict,etal., v. EPA, 489 F.3d 1245 (D.C. Cir. 2007). Thus, onlythe following provisions of the Phase 1Rule were vacated: The provisions that classified some 1997 8-hourozone nonattainment areas under subpart 1, part D, title I ofthe CAA; and the provisions thatdid notretain three anti-backsliding obligations associated with therevoked 1-hour ozone NAAQS: nonattainment NSR, section 185 penalty fees and contingency measures for failure to attain or to make reasonable progress toward attainment. 8The EPA finalized action to re-address the vacated subpart 1classifications and contingency measures provisions ofthe Phase 1Rule. 77 FR 28424, May 14, 2012. The EPAproposed action to readdress the vacated nonattainment NSR provision. 75 FR 51960 (August 24, 2010). We are re-addressing the antibacksliding requirements for the section 185 fee program for the revoked 1-hour

ozone NAAQS and re-proposing further action on the NSR anti-backsliding issues as part ofthis proposal.

In the litigation on the Phase 2Rule, the EPArequested andthe court granted

a remand ofthe provision that allowed emission reductions from outside a nonattainment area tobe credited toward the RFP requirement forthat
area, so thatthe EPA could reconsider that provision in lightofthe EPA's different treatment of such reductions under the fine particle (PM2. 5) implementation rule (72 FR 20586, April 25, 2007). The EPA thenissued a revised rule requiring that states include in their baseline all emissions within any area outside ofthe nonattainment

area from which reductions arebeing credited for rate ofprogress (ROP) purposes (74 FR 40074, August 11, 2009). OnMay 13, 2010, the EPA granted a petition for reconsideration of this provision in light ofthe NOx SIP Call/RACT court decision described below. We proposed a rule to address this reconsideration as it relates tothe 1997 ozone NAAQS (75 FR 80420, December 22, 2010), and we discuss this issue in more detail as itrelates to the 2008 ozone NAAQS in section III.C.4 of this preamble.

On July 10, 2009, the courtissued its ruling on theremaining challenged provisions pertaining to thePhase 2 Rule. NRDCv. EPA,571 F.3d 1245 (D.C. Cir. 2009). The court upheld the Phase 2Rule in large part, finding most ofthe challenged provisions tobe reasonable interpretations consistent with the statutory mandates in the CAA.The court, however, granted thepetitions for review on limited issues. Itremanded the EPA's determination that compliance with the NOx SIP Call regional cap-and-trade program would satisfy the area-specific RACT requirement. Italso remanded the revisions made to the requirements for

8 The court's June 8, 2007, clarification also
confirmed that theDecember 22, 2006, decision did
not establish arequirement that areas continue to demonstrate conformity for the 1-hour ozone NAAQS for anti-backsliding purposes. NSR offsets in certain areas andvacated the extension ofan NSR waiver provision beyond the previous 18- month time limit. The effect ofthe
vacatur ofthe 18-month time limitis discussed in section 111.1 ofthis preamble.

A listing ofthe relevant rulemakings concerning implementation ofthe 1997

ozone NAAQS appears in Appendix B ofthis preamble.

D.Section 110 SIPRequirements

CAA section 110(a) imposes an obligation upon states to make a SIP submission withrespect to the 2008 8-hourozone NAAQS. CAA section 110(a)(1) requires states to submit SIPs that provide for the implementation, maintenance and enforcement ofa new

orrevised NAAQS within 3years following the promulgation ofthe new

orrevised NAAQS, or within such shorter period as the EPA may prescribe. 9 Section 110(a)(2) lists specific requirements that states must meet in these SIP submissions, as applicable. The EPArefers to this type ofSIP submission asthe "infrastructure" SIP. The requirements for infrastructure SIPs include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority thatare designed to

assure attainment andmaintenance of the NAAQS. The contents ofthat submission mayvary depending upon the facts and circumstances. In particular, the content ofsuch a SIP submission mayvary depending upon what provisions the state's existing SIP already contains. Two elements identified in section 110(a)(2) are not governed by the 3-year submission deadline ofsection 110(a)(1). This includes SIP submissions incorporating
necessary local nonattainment area requirements, which are due pursuant to the schedule in section 182.10 The

9The EPA did notprescribe a shorterperiod for the 2008 8-hour ozone NAAQS; thus, the SIP submission was due March 12, 2011.

10Nonattainment area plans required by part D
title I ofthe CAA for the 2008 8-hour ozone NAAQS

are due by various dates as established throughout subpart 2 ofpart D, i.e., reasonably available control

measures are due in 2 years under 182(b)(2), reasonable further progress plans and attainment plans for Moderate areas are due in 3 years under 182(b)(1), and attainment demonstrations for Serious and above areas are due in4 years under 182(c)(2). The EPA has inthe past interpreted these dates to run from the effective dates ofthe nonattainment designations, see 68FR 32802, 32816-817 (June 2, 2003) ("subpart 2 SIP submittals will be dueas a general matter by the same period oftime after designation and classification under the 8-hour standardas provided in subpart 2 for

areas designated and classified at the time of
enactment ofthe 1990 CAA.") The designations for the 2008 ozone standard were effective on July 20, 2012. See 77 FR 30088 (May 21, 2012) and 77 FR 

### 34182

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

two section 110 SIP elements not governed by the 3-year submission deadline are: (i) Submissions required by section 110(a)(2)(C) to the extentthat subsection refers to a nonattainment

area new source reviewpermit program for major sources as required in part D oftitle Iofthe CAA; and (ii) submissions required by section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D oftitleI ofthe CAA. The EPA also notes thatthe D.C. Circuit's recent opinion in EMEHomerCityGeneration

v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012) concluded that a SIP cannot be deemed
to lacka required submission or deemed deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that obligation.

In the case ofthe 2008 8-hour ozone NAAQS, the period during which the EPA was making efforts to reconsider the 2008 NAAQS with the expectation ofrevising it in the nearterm extended about 6 months beyond March 12, 2011, the normal deadline for submission of infrastructure SIPs. The EPAtherefore did not prepare and issue timely guidance for the states to assistthem in preparing their submissions. Also, states

were given theimpression that ifthe NAAQS were revised as a result ofthe reconsideration, the 3-year deadline would reset. However, despite the reconsideration process, March 12, 2011, remained the legally applicable deadline for infrastructure SIPs for the 2008 8-hour ozone NAAQS. The EPA recently responded to a court order requiring theEPA to make findings of failure to submit for certain infrastructure SIPs thathad not been found complete by March 12, 2011.11

The EPArecognizes that many states

are affected by transported ozone and

ozone precursors from upwind states, andthat transported pollution may contribute significantly to air pollution that exceeds the NAAQS in those states. The CAA establishes states' responsibilities to address interstate transport through two provisions: section 110(a)(2)(D) (specifying certain ofthe requirements for the "infrastructure" SIPs) and section 126 (requiringnotification to downwind
states ofplanned new or modified

sources and providing a petitionprocess through which downwind jurisdictions

can seek tohave specific sources of transported pollution addressed). This proposed implementation rule, which deals with the required SIP elements for

34221 (June 11, 2012). Inthis notice, the EPA is proposing two options for SIPsubmittal dates for the 2008 ozone NAAQS. See section III.A.

11See 78 FR 2882, January 15, 2013. areas designated as nonattainment for the 2008 ozone NAAQS, does not address states' obligations under the CAA to reduce transported pollution. Although, as noted elsewhere in this notice, the EPA intends to issue a guidance memorandum on therequired elements ofthe section 110 infrastructure SIP submittal for the 2008

ozone NAAQS, thatmemorandum also would not contain guidance on howto meet the requirements of section 110(a)(2)(D)(i)(I), which deals with air pollutant emissions within a state that significantly contribute to nonattainment or interfere with maintenance ofthe NAAQS in a downwind state.

E.Part D Nonattainment Area SIP Requirements

In addition tothe obligation to submit required section 110 infrastructure SIPs within 3years ofpromulgation ofa new
or revised NAAQS, states with designated nonattainment areas also have the obligation to submit SIPs designed tobring those areas into attainment. SIP requirements applicable
to nonattainment areas are found in part D oftitle Iofthe CAA. Subpart 1 ofpart D discusses general requirements for nonattainment areas, including the requirement that states adopt and submit for the EPA's approval detailed SIPs thatbring the area into attainment. Subpart 2ofpart D contains additional provisions specifically applicable to ozone nonattainment

areas. Subpart 2includes CAA sections 181 through 185B. Section 181 of subpart 2 creates a framework for classifying ozone nonattainment areas into five classification categories based

on the severity oftheir ozone air quality problems. Section 181(a) includes attainment deadlines for each classification category in relation tothe time the area is designated nonattainment: Marginal

areas are required to attain within 3 years ofdesignation; Moderate areaswithin 6 years; Serious areas-within 9
years; Severe-15 areas-within 15 years; Severe- 7 areas-within 17 years; and Extreme areas-within 20 years. 12
Section 182 of subpart 2outlines SIP requirements applicable to ozone nonattainment areas in each classification category. In general, under the framework established by subpart 2,

areas classified in higher nonattainment categories are provided with more time
to attain the ozone NAAQS but are also

12Attainment deadlines for the 2008 ozone NAAQS were established inthe Classifications Rule, 77 FR 30160, May 21, 2012. subject to more extensive planning and control obligations.

Where the Classifications Rule primarily dealt with issues related to CAA section 181, this rule addresses issues related to CAA sections 182 through 185B. Subpart 2isthe focus of much ofthe discussion ofthis rule. When a topic is discussed that is not covered by subpart 2,reference willbe made to themore general subpart 1 requirements found in CAA sections 171 through 179B, or to other sections ofthe CAA, as appropriate. As discussed in section II.D ofthis proposal, section 110(a)infrastructure SIPs willbe the topic ofa separate guidance document.

III.What arethe state implementation plan requirementsforthe 2008 ozone NAAQS?

A. What isthe deadline forsubmitting nonattainment areaSIPelements due underCAA section 182 forthe2008

ozoneNAAQS?

Section 182 ofthe CAA requires states with ozone nonattainment areas to submitvarious SIP elements within specified time periods after enactment ofthe CAA Amendments of1990: (1)An emission inventory for the nonattainment area within 24 months (section 182(a)(1)); (2)a RACT SIP within 24 months (section 182(b)(2)); (3)

a 15 percent RFP planfor Moderate and above areas within 3years (section 182(b)(1)); (4) an attainment plan for Moderate areas within 3years (section 182(b)(1)); (5)an attainment plan and demonstration for Serious and above

areas within 4years (section 182(c)(2)); and (6) a 3percent peryear RFP plan for Serious and above areas within 4 years (section 182(c)(2)).

In the Phase 2Rule, we interpreted the SIP submittal timeperiods in section 182 torun from the effective date ofdesignation and classification for the 1997 ozone NAAQS. See 70 FR 71670. However, with regard to attainment demonstrations for Serious and above areas, we provided 3years, instead of4 years, to submit an attainment demonstration. Specifically,

we promulgated 40 CFR 51.908(a) which required all areas classified Moderate or higher to submit attainment demonstrations based on photochemical grid modeling no later than 3years after the area's designation for the 1997 8-hourozone NAAQS. We explained that at the time ofthe 1990 Amendments, Congress required Serious and above areas to base their attainment demonstrations on photochemical grid modeling, which at that time was a relatively new modeling 34183

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

technique. Congress then gave those

areas 4years to submit an attainment demonstration. In the Phase 2 rulemaking, we determined that photochemical grid modeling shouldbe required for Moderate areas as well as for Serious and above areas, and we explained thatthe technique was no longer new and that areas did not need 4 years to submit an attainment demonstration based on suchmodeling. The policyreasons thatexisted at the time the Phase 2 rule was developed, specifically, the need for timing consistency between subpart 1and subpart 2areas within the same region, the timing ofthe large-scale transport modeling underway at the time, and the option ofcoordinated planning with the similarly timed PM2. 5 SIPs, are not circumstances faced today by the Serious and higher areas.

For purposes ofthe 2008 ozone NAAQS, the EPA proposes in the alternative the following two approaches regarding the deadlines for submittingthe various elements ofthe
state implementation plan.

Periodoftimeprovidedbythestatute. Section 182 ofthe CAA specifies a time period, running from the date of
enactment ofthe 1990 CAA Amendments, for states to submit each required element ofthe state implementation plan for nonattainment

areas. Under this first alternative, the EPA isproposing that thetime period specified in section 182 for the submission ofeach required element (i.e.,2years for emission inventories andRACT SIPs, 3years for 15 percent RFP plans and Moderate area attainment demonstrations and 4years for 3 percent per year 13 RFP plans and attainment demonstrations from Serious andhigher areas), as described above, would apply and that such time periods would run from the effective date ofan area's designation for the 2008 ozone NAAQS. State'schoice:consolidated SIPsubmittaldue30 months after designation,or periodoftimeprovided by thestatute.The EPA's second alternative, which isour preferred alternative, is for the state to have the choice ofmeeting the statutory deadline for each required SIP element as set out in section 182, or following a consolidated submittal approach. Under the consolidated approach, all ofthe required SIP elements for a nonattainment area wouldbe submitted
atone time, no later than 30 months afterthe effective date ofthe area's designation for the 2008 ozone NAAQS.

13Typically submitted in 3-yearincrements, thus

as 9percent RFP plans that produce average reductions of 3percent per year. The consolidated approach represents a

more expeditious schedule for areas to submit attainment demonstrations and RFP SIPs for the 2008 ozone NAAQS, but it provides slightly more time for submittal ofemission inventories and RACT SIPs. We are proposing underthis alternative that a state can choose, for a particular nonattainment area, to submit all SIP elements required under section 182 no later than 30 months afterthe effective date ofdesignation; or the state

can choose to submit all SIP elements in accordance with thetime provided by the statute. As part ofthis alternative proposal, astate with more than one nonattainment area can select the option that is most preferable for each area. This alternative proposal applies only to

areas designated Moderate and above for the 2008 ozone NAAQS.

The consolidated approach may be preferable for some states because it would allow them to undertake amore coordinated andless burdensome planning process, including only having

one period for public review and opportunity for public hearing for all the SIP elements involved. (Notethat all
states thatinclude part ofamulti-state nonattainment area would need to consult with each other and adopt the

same SIP submittal deadline(s) with respect to the entire multi-state area.) Moreover, webelieve that the 30-month timeframe wouldbe reasonable for many areas. Those states with areas currently classified as Moderate and above for the 2008 ozone NAAQS have significant experience preparing modeled attainment demonstrations and
many are participating in ongoing modeling with nearby states to address regional ozone issues. Thus, for some

areas itmay be less burdensome to submit all ozone SIP elements concurrently within 30 months of designation. We note thatan added benefit ofearlier completion ofthe attainment planning process is thatit provides states and sources with additional time to implement the

measures adopted as part ofthe RFP plan and attainment demonstration.14 This is particularly critical for Moderate
areas, which have only 6 years to attain the standard. The EPA designated most

areas on April 30, 2012, with an effective date 60 days after publication in the Federal Register. Thus, attainment demonstrations wouldbe

14Emission reductions resulting from implementation ofRACT, RFP and other state and federal requirements may, in somecases, notbe sufficient to demonstrate attainment. States are responsible for adopting any additional measures needed to attain the NAAQS. These additional

measures wouldbe submitted by the state aspart ofthe attainment plan and demonstration. due under this option formost areas by January 2015, prior to thebeginning of the 2015 ozone season. The EPA believes that the later due date for emission inventories and RACT SIPs under this option would provide for a deminimisdelay. Implementation of the RACT requirements would still

occur on the schedule established by CAA section 182(b)(2)(C). From an accountability standpoint, ifthe 30 months elapse with no SIP submittal from the state, theEPA will assume by default thatthe state has chosen to take the amount oftime allowed by the
statute for the attainment plan and demonstration, and is late with the RACT and emissions inventory SIP and thus potentially subject to a finding of failure to submit.

B. Whataretherequirements for modelingandattainmentdemonstration SIPs?

An attainment demonstration consists of: (1)Technical analyses, such as base
year andfuture year modeling,to locate andidentify sources ofemissions that

are contributing to violations ofthe 2008 ozone NAAQS within the nonattainment area (i.e., analyses related to the emissions inventory for the nonattainment area and the emission reductions necessary to attain the standard); (2)a list ofadopted

measures (including RACT controls) with schedules for implementation and othermeans and techniques necessary and appropriate for demonstrating RFP and attainment as expeditiously as practicable but no later than the outside attainment date for the area's classification; (3)a RACM analysis; and 4) contingency measures required under section 172(c)(9) ofthe CAA thatcan be implemented without further actionby the state or the Administrator to cover emissions shortfalls in RFP plans and failures to attain. Penalty fee programs for failure to attain in Severe and Extreme areas are also associated with

orare part ofthe attainment demonstration and are addressed in other sections ofthis proposal.

1.Marginal Areas

Under section 182(a), Marginal areas have up to 3years from designation to attain the NAAQS, and are not required
to submit an attainment demonstration. When Congress amended the CAA in 1990, it anticipated thatnonattainment

areas with ozone concentrations close to the level ofthe NAAQS would likely

come into attainment within 3years after designation as nonattainment without any additional local planning.

Although states are not required to develop attainment demonstrations for 

### 34184

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

Marginal areas, there may be modeling completed by the EPA or other state organizations which may provide useful information regarding whether Marginal

areas maybe expected to attainby their attainment dates. Forexample, as part of the Cross State Air Pollution Rule (CSAPR), the EPA modeled the expected improvements in air quality from existing federal, state and local controls. We encourage states to use available modeling information to examine the likelihood ofwhether a Marginal area would attain within 3years.

Where such modeling indicates that a Marginal area is unlikelyto attain the standard byits attainment date without the implementation ofadditional controls, we strongly encourage states or local agencies to workto getthe necessary emission reduction measures in place in order to meet the ozone NAAQS within the 3-year timeframe. Marginal areas that do not attainthe standard bythe required date are required to be reclassified (or "bumped up") to the Moderate classification, which would require the application of mandatory planning and control requirements. Ifit is not possible to implement sufficient additional controls for aMarginal area to attainby the 3- year maximum attainment date, states may wish toconsider voluntarily requesting reclassification tothe Moderate classification. The EPA intends to offer assistance to the states

asthey consider the most appropriate

course ofaction for Marginal areas that may be atrisk offailing to meet the NAAQS within the applicable 3year timeframe: whether to adopt additional controls or seek avoluntary reclassification to the nexthigher category. Early reclassification would provide more time for adopting and implementing the control measures needed for attainment by the Moderate

area attainment date than the area would have ifitis reclassified after it fails to attain within 3years of designation. Ifan area is reclassified based onan EPA determination that the

area failed to attain byits attainment date, the state wouldlikely have only 18
to 24 months to adopt and implement controls by thebeginning ofthe final full ozone season before the Moderate

area deadline because the statute requires areas to attain by the latest acceptable attainment date for any classification regardless ofwhen the

area isreclassified.

2.Moderate Areas

Section 182(b)(1)(A) requires states with Moderate (andhigher classified)

ozone nonattainment areas to develop

an attainment demonstration that provides for reductions in VOC and NON emissions "as necessary to attain the national primary ambient air quality standard for ozone." Although not specifically required by the statute, in the Phase 1Rule for the 1997 ozone NAAQS, theEPA required states with Moderate and above areas to submit photochemical grid modeling or another equivalent analytical method to satisfy the attainment demonstration requirement for each area, which is the CAA requirement that applies for Serious and above areas (CAA section 182(c)(2)(A)). The EPA explained that it

was reasonable to do so because this modeling was generally available and reasonable to employ. The EPA is proposing to continue torequire states with an area classified as Moderate to submit an attainment demonstration based on photochemical modeling or another equivalent analytical method that is determined tobe atleast as effective, as is required under the Act for Serious and above areas andmultistate nonattainment areas. 15

This requirement explicitly allows for alternative analytical methods tobe substituted for or used to supplement a photochemical modeling-based
assessment ofan emissions control strategy. Any alternative analysis should be based on technically credible methods and provide for the timely submittal ofthe attainment demonstration and implementation of SIP controls. States should review the EPA modeling guidance and consult their appropriate EPAregional office before proceeding with alternative analyses.

3. Serious and Above Areas

For Serious andhigher-classified
areas, we continue to believe that photochemical modeling isthe most technically credible method of estimating future year ozone concentrations based on projected VOC and NON precursor emissions. States with areas classified as Serious and higher must submit an attainment demonstration based on photochemical modeling or an alternative analytical method determined by the Administrator to be at least as effective.
4. What guidance isthere forusing models to demonstrate attainment?

The procedures for modeling ozone as part ofan attainment demonstration are well developed and described in the EPA's "Guidance on the Use ofModels

15

Stateplans for single nonattainment areas that include morethan one state (multi-state nonattainment areas) arealso required to have photochemical modeling (see CAA section 182(i)(1)(B)). and Other Analyses for Demonstrating Attainment ofAir Quality Goals for Ozone, PM2. 5,and Regional Haze." 16 This guidance document, as itcurrently exists, canbe usedby states developing attainment demonstration SIPs for the 2008 ozone NAAQS. The EPA is considering updates to the guidance to address ozone modeling for the 2008

ozone NAAQS. We will issue any updates as needed.

All photochemical modeling in support ofan attainment demonstration should be consistent with the EPA's

ozone modeling guidance. States with

areas thatwere nonattainment forthe 1997 ozone NAAQS or are nonattainment today have invested considerable resources in local and/or regional ozone modeling analyses. We encourage states to worktogether to leverage the work andresources from these existing analyses, as well asto develop new analyses for the 2008

ozone NAAQS as appropriate. The application ofair quality models requires a substantial effort by state agencies and theEPA. Therefore, in order tomaximize efficient use oftime and resources, states should work closely with the appropriate EPA regional offices in executing each step of the modeling process. Coordination with the EPA during the modeling process will help increase the likelihood that theEPA willbe able to approve the modeling-based attainment demonstration.

5.High Electricity Demand Days (HEDD)

The current modeling guidance addresses, among many other considerations, episode selection and accounting for potentially higher VOC and/or NON emissions during high energy demand periods. A study has identified high NON emissions from electric generating units (EGUs) in the Northeast Corridor on summer days when demand for electricity ishigh 17 and has labeled these days as "High Electricity Demand Days" (HEDD). This study indicates thatNON emissions from EGUs during periods ofhigh electricity demand in the Northeast may be significantly greater than emissions that occur on an average summer day. This spike in NON emissions isdue to increased power demand on hot

summer days to meet air conditioning

16

The modeling guidance can be found atthe following Web site: http://www.epa.gov/scramOol/ guidance/guide/final-03-pm-rh-guidance.pdf.

17

"High Electric Demand Day and Air Quality in the Northeast." White Paper Prepared by the Northeast States for Coordinated AirUse Management. June 5, 2006. Available at: http:// WW.nesCaum.Orgl. 34185

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

and other electric power needs. High electricity demand days require production ofadditional power from load-following EGUs and/or peaking unit EGUs, which are less frequently used compared tobase-load EGUs. In the Northeast Corridor, these units have tended tobe less well controlled than base-load EGUs.

High energy demand summer days tend to coincide with ozone episodes, which maybe in part due to the factthat NON emissions on these days can greatly exceed average summer day NON emissions from electric power generation. There has been some study ofcontrol measures to reduce NON emissions on HEDDs.18

Since NON emissions from electric
power generation are a significant contributor to the total NON emissions for many ozone nonattainment areas, states thatexperience this phenomenon shouldbe careful to fully account for it by ensuring that these emissions are included in photochemical modeling of episode days on which the phenomenon

occurs. In order toproperly account for HEDD emissions, careful attention shouldbe paid to thetemporalization of emissions to the specific day and hour ofthe day when these emissions occur. We note thatthe current modeling guidance 19 already addresses episode selection and development ofaccurate emissions input information during peak ozone periods. We will consider whether additional updates tothe modeling guidance are needed to address modeling ofthe HEDD phenomenon.

6. Modeled Attainment Test

Models are used to testwhether control measures tobe adopted inthe SIP are likely to result in attainment of the standard. The modeled attainment
test for the ozone NAAQS underthe EPA's guidance uses a combination of ambient ozone data and modeled ozone concentrations to estimate future year air quality. The attainment test is applied at each monitor location within

ornear a designated nonattainment area. Models are used in a relative sense to estimate the response ofmeasured air quality to future changes in emissions. Future air quality is estimated by multiplying recent monitored values by the modeled relative response to

18See, e.g., Chris James and Jeremy Fisher, Ph.D. Reducing Emissions in Connecticut on High Electric DemandDays (HEDD): A Report for the CT Department ofEnvironmental Protection and the U.S. Environmental Protection Agency. July 25, 2008. SynapseEnergy Economics, Inc. 22 Pearl St., Cambridge, MA 02139.

19

http://www.epa.govlscramOOl/guidance guidel final -3-pm-rh -guidance.pdf. projected future changes in emissions. 2 0
The EPA additionally recommends application ofan attainment test tobe performed in unmonitored areas. The recommended attainment test methodology for unmonitored areas has been used in recent 8-hour ozone SIPs developed for the 1997 ozone NAAQS. To make it easier for states to apply the attainment tests, both the monitor-based
test andthe unmonitored area test have been incorporated in a software package called the "Modeled Attainment Test Software" (MATS). The MATS is available for no charge at: http:// www.epa.gov/scram001/ modelingappsmats.htm.

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

The future modeling year shouldbe selected such that all emissions control

measures relied on for attainment will have been implemented by thatyear. Note that for purposes ofthe 1997 ozone NAAQS and as we are proposinghere for the 2008 ozone NAAQS, control

measures relied upon to demonstrate attainment shouldbe implemented by the beginning ofthe last full ozone

season prior to the area's attainment date. To demonstrate attainment, the modeling results for the nonattainment

area must predict thatemissions reductions implemented by the beginning ofthe last full ozone season

20The EPA's guidance on attainment
demonstrations (Guidanceon the Use of Models and OtherAnalyses forDemonstrating Attainment of

Air QualityGoals forOzone,PM 2.5,andRegional Haze,April 2007)recommends that states may supplement the attainment test with otherevidence in a "weight ofevidence" determination ofwhether the nonattainment area is likely to attain the NAAQS by its deadline.The EPA intends to recommend in a forthcoming update ofthis guidance that otherevidence that can be considered includes recent monitored values that have been adjusted so that theybetter represent the airquality that would have existed in the absence ofany unusual natural or anthropogenic events (ifany) that influenced ozone concentrations on the monitored days. The EPA intends to apply certain eligibility conditions to thisrecommendation. Specifically, the EPA intends to apply aneligibility approach that is like the set ofeligibility criteria in the Exceptional Events Rule. However, we will not apply the "no exceedance but for" concept that is part ofthe provision in 50.14(c)(3)(iv)(D) that limits the EPA approvals for data exclusion to situations in which there would have been no exceedance or violation ofthe NAAQS "but for" the event. Inthis
way, the EPA guidance will effectively recommend that states can apply Exceptional Events Rule-like considerations to situations inwhich an eventhas exacerbated the level ofaNAAQS exceedance (but that didnot cause the exceedance inthe "but for" sense) on historical days that occur during the ambient database yearperiod that is used inthe attainment test to project future airquality.The EPA expects there to be limited situations where this potential adjustment would make a difference between future year estimated attainment and nonattainment. The EPA intends to work withstate air agencies inthe development of the planned update to our guidance on this topic. preceding the attainment date will result in ozone concentrations thatmeet the level ofthe standard.21 Because an

area must attain "as expeditiously as practicable," additional considerations

are necessary before a future modeling
year canbe established. For example, although the maximum attainment date for aModerate area designated in 2012 would be December 31, 2018, under the 2008 ozone NAAQS Classifications Rule, the state would need to conduct

a RACM analysis (CAA section 172(c)(1)) to determine ifit can advance the area's attainment dateby at least a year. 2 2 Results ofthe RACM analysis
may indicate attainment can be achieved earlier (e.g., by December 2016

or December 2017) through implementation ofreasonably available control measures prior to the beginning ofan earlier ozone season. For instance, ifemission reductions sufficient to demonstrate attainment are implemented prior to the 2016 ozone season, then in this example the attainment year and the future projection year shouldbe 2016. We strongly recommend thatthe state discuss the selection ofthe future year(s) to model with the appropriate EPA regional office as part ofthe modeling protocol development
process.
8. Multi-State Nonattainment Areas

The CAA requirement for multi-state

ozone nonattainment areas (CAA section 182(j)) requires each state in which a portion ofa multi-state ozone nonattainment area is located to use photochemical grid modeling or any other analytic method determined by the Administrator to be at least as effective and totake all reasonable steps to coordinate, substantively and procedurally, the development, submittal and implementation ofSIPs applicable to the various states within the nonattainment area. The EPA interprets CAA section 182(j) to require coordination on all aspects of nonattainment SIPs, including the development ofan attainment demonstration.

21Note that for purposes ofthe 8-hour ozone NAAQS, a determination ofattainment (or failure

to attain), which EPA is required to make after the attainment date has passed, is based on the most
recent 3 complete years ofdata priorto the area's attainment date. Attainment date extensions are only available ifthe 4thmaximum 8-hour average

ozone concentration inthe attainment yearisbelow the level ofthe standard.

22See section III.D.2 ofthis proposal for a discussionof RACM analysis requirements. 34186

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

C. WhataretheRFPrequirements for the2008 ozoneNAAQS?

1.Background

Areas that are designated nonattainment for ozone must achieve RFP toward attainment ofthe ozone NAAQS. Part D ofthe CAA contains three separate provisions regarding RFP. Under subpart 1,section 172(c)(2) contains a general requirement that nonattainment SIPs must provide for reasonable further progress; this provision does not define RFP, but provides authority for the Administrator
to do so. Sections 182(b)(1) and 182(c)(2)(B) under subpart 2contain specific percent reduction targets for

ozone nonattainment areas classified as Moderate and above and Serious and above, respectively. For Moderate and above areas, section 182(b)(1) requires a 15 percent reduction inVOC emissions from the baseline anthropogenic emissions over the 6-year period between designation and the Moderate

area maximum attainment date. For Serious and above areas, section 182(c)(2)(B) requires an additional 3 percent per year reduction in VOC emissions beginning 6 years after designation until the attainment date. 23

For the additional RFP requirement for Serious and above areas, section 182(c)(2)(B) allows NON reductions to be substituted for VOC reductions under certain conditions. Note that the 15 percent requirement mustbe metby the end ofthe 6-year period regardless of whether the state attains the NAAQS prior to thatpoint. The 3percent per year requirement for Serious and above

areas runs until the attainment date.

The Phase 2Rule interpreted the requirements of subpart 2as they would applyto areas for the 1997 ozone NAAQS. With respect to RFP, the Phase 2Rule interpreted the section 182(b)(1) 15 percent RFP requirement such that

an area that had already metthe 15 percent RFP requirement for VOC under the 1-hour ozone NAAQS (forthe first 6 years after the RFP baseline year for the 1-hour ozone NAAQS) would not have to fulfill thatrequirement again. Instead, Moderate areas would be treated like areas covered under section 172(c)(2), and Serious and above areas would be covered under section 182(c)(2)(B). Forthe purposes ofthe 1997 ozone NAAQS, the EPA interpreted section 172(c)(2) to require Moderate areas to obtain 15 percent

23

CAA section 182(c)(2)(B) states that Serious
and above areas must achieve additional reductions ofat least 3 percent peryear "averaged over each consecutive 3-year period." Thus it is equivalent to

a nine percent additional reduction inbaseline emissions for each subsequent 3-year period. ozone precursor emission reductions

over the first 6 years after the baseline
year for the 1997 ozone NAAQS, and interpreted section 182(c)(2)(B) to require Serious and above areas to obtain 18 percent ozone precursor emission reductions in that 6 year period. Under the section 172(c)(2) and 182(c)(2)(B) RFP requirements, NON emission reductions could be substituted for VOC reductions. This provision ofthePhase 2Rule was upheld inNRDCv. EPA,571 F.3d 1245 (D.C. Cir. 2009).

2.In general, what is the EPA proposing

as the RFP requirements for the 2008

ozone NAAQS?

The EPA is proposing anumber of provisions to address issues relevant to implementing RFP under the 2008

ozone NAAQS: (1)The timing for the submission ofRFP plans; (2)restrictions

on emission reduction measures that

can be used to fulfill the RFP requirements under subpart 2; 3)the RFP plan requirements ofsection 182(b)(1) ofthe CAA for nonattainment

areas classified as Moderate or higher under the 2008 ozone NAAQS for which

no portion of such areas previously fulfilled the 15 percent RFP requirement for VOC in section 182(b)(1); (4) the RFP plan requirements for nonattainment

areas classified as Moderate or higher under the 2008 ozone NAAQS which consist entirely of former nonattainment

areas thatunder a prior ozone NAAQS fulfilled the 15 percent RFP requirement for VOC in section 182(b)(1); (5)the RFP plan requirements for nonattainment

areas classified as Moderate or higher under the 2008 ozone NAAQS which consist partially offormer nonattainment areas thatunder a prior

ozone NAAQS fulfilled the 15 percent RFP requirement for VOCin section 182(b)(1); and (6) proposed procedures for calculating RFP targets. Hereafter in the discussion ofRFP requirements within this section, when we use the
term "2008 nonattainment area" we

mean "nonattainment area classified as Moderate or higher underthe 2008

ozone NAAQS."

a. Whatis the deadline for submitting RFP plans?

As detailed in section III.A ofthis preamble, theEPA isproposing two options regarding the deadline(s) for submittal ofthe various SIP elements required for an ozone nonattainment

area based on its classification for the 2008 ozone NAAQS. The first option is that the required SIP elements would be due in the time frameprovided for such elements in section 182, with the specified time periods running from the effective date ofdesignation for the 2008

ozone NAAQS. Thus, theRFP plan addressing the first 6-year period for Moderate and higher classified areas would be due 3years fromthe effective date ofdesignation; and the RFP plan addressing the additional 3percent per year requirement for Serious and higher classified areas would be due 4years from the effective date ofdesignation.

The second option isto give states the choice toeither submit the various SIP elements required for an area according
to thetimeframes specifiedby statute or to submit all ofthe required SIP elements within 30 months ofthe effective date ofdesignation for the 2008

ozone NAAQS; in other words, the state would submit one consolidated SIP, including all RFP obligations, no later than 30 months from the effective date ofdesignation. Forthe same reasons discussed in section III.A ofthis preamble (relatedto SIP due dates), the EPA believes thatit maybe reasonable, andpreferred by some states, to allow
states to submit the RFP plans within 30 months in conjunction with all other required SIP elements.

We are soliciting comment on options for submission deadlines as listed in this section and section III.A.

b. Restrictions on EmissionReduction Measures ThatCan Fulfill the RFP Requirement

The CAA places certain restrictions

onthe emission reductions that are creditable toward meeting theRFP requirements. Tobe creditable, the reductions must meetthe conditions in CAA sections 182(b) and 182(c), including thatreductions:

e Must be from measures required in the SIP, in a title V permit, or from rules promulgated by the EPA;

* Must occur duringthe RFP period; * May not come from the pre-1990 EPA rules for motorvehicle exhaust and evaporative emissions; and

* May not come from the EPArules limiting theReid vapor pressure (RVP) ofgasoline that were implemented by

1992.24

We areproposing that, except as specifically provided in section 182(b)(1)(D) ofthe CAA, all SIPapproved or federally promulgated emissions reductions that occur after the baseline emissions inventory year are creditable for purposes ofthe RFP requirements, provided the reductions
meet the standard requirements for

24

CAA section 182(b)(1)(D)(ii) states that "Regulations concerning Reid vapor pressure promulgated by the Administrator by November 15, 1990, orrequired to be promulgatedunder section 7545(h) ofthis title" are not creditable toward required RFP reductions. 

### 34187

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

creditability.25 That is, toreceive SIP credit, the reductions must be enforceable, quantifiable, permanent and surplus. We promulgated a regulatory provision adopting this same interpretation for purposes of implementing the 1997 ozone NAAQS. See40 CFR 51.910(a)(2). CAA section 182(b)(1)(D) imposes limitations on specific measures for which states may take credit for RFP reductions required under CAA sections 182(b)(1) and 182(c)(2)(B).

We are also proposing that all emission reductions creditable toward meeting RFP requirements must be from

sources located within the nonattainment area. Section C.4below discusses this issue in further detail.

c. What are the RFP plan requirements for 2008 ozone nonattainment areas for which no portion ofthe area has previously been required to meetthe 15 percent RFP requirement for VOC in section 182(b)(1) ofthe CAA?

Section 182(b)(1) ofthe CAA requires

ozone nonattainment areas classified as Moderate or higher to submit a RFP plan
to achieve a 15 percent reduction in VOC baseline emissions over a 6-year period following the baseline year. Ifthe

area is classified Serious or higher, section 182(c)(2)(B) ofthe CAA requires

an additional RFP plan to achieve an average of3percent additional emissions reductions per year for each subsequent 3-year period after the conclusion ofthe initial 6-year RFP period specified by section 182(b)(1).

We are proposing that the RFP plan for a 2008 nonattainment area must provide for a 15 percent reduction in VOC emissions from the baseline emissions in the 6 yearsfollowing the baseline emissions inventory yearifno portion ofthat 2008 nonattainment area has already fulfilled the 15percent RFP plan requirement for VOC.26 Ifsuch 2008 nonattainment area is classified as Serious or higher, the RFP plan for that 2008 nonattainment area must in addition achieve an average ofthree percent additional emissions reductions per year for each subsequent 3-year period after the conclusion ofthe initial 6-year period specified by section 182(b)(1). We promulgated a similar regulatory provision adopting this

25Note that section LL.C.2.f.below discusses the
EPA's proposal regarding removal of the requirement to calculate non-creditable emissions for pre-1990 vehicles.

26"Fulfilled the 15 percent RFP plan requirement
for VOC" means EPA has approved anRFP plan for the geographic area as meeting the 15 percent RFP plan requirement for VOC specified insection 182(b)(1) ofthe CAA under aprior ozone NAAQS, whether itis the 1-hour ozone NAAQS orthe 1997 8-hour ozone NAAQS. interpretation for purposes of implementing the 1997 ozone NAAQS. See40 CFR 51.910(a)(1)(i).

In the alternative, we are proposing to allow an area tomeetthe 15 percent RFP requirement in whole or inpart with NO reductions in lieu ofVOC reductions ifthat area can demonstrate that ithas infact achieved a 15 percent reduction in VOC emissions from a 1990 baseline. There are two reasons thatwe believe it makes sense to allow areas to substitute NON for VOC in the 15 percent RFP plans. First, our understanding ofthe effects of reductions ofVOC and NON on ambient

ozone levels has greatly improved since the 1990 CAA Amendments were enacted, and there are technical tools

more readily available tohelp states predict the combination ofVOC and/or NON thatwill be most effective in reducing ozone in a particular area. In many areas we nowknowthat NON reductions will have a far greater effect than VOC reductions onreducing ambient ozone concentrations. In fact, in some areasbackground levels of naturally-occurring VOC are so high that reductions in manmade VOC have limited effect on ozone. Since the
purpose oftheRFP provisions in section 182 isto foster the achievement of reasonable further progress toward attainment, we believe thatit makes the
most sense to allow states to credit toward the RFP requirement those reductions that an area most needs to reach attainment. Second, the mixof emissions across the country andin specific areas isvery different than it

was in 1990 because ofemission controls that have gone into effect over the last 20 years. Avariety ofnational and local VOC control measures affecting mobile and stationary sources have already substantially reduced the levels ofmanmade VOC. Since 1990, the EPA has issued aggressive national rules
to reduce tailpipe VOC emissions from on-road vehicles and from non-road engines. The EPA has also reduced evaporative emissions and vehicle refueling emissions through vehicle onboard refueling vapor recovery systems. VOC emissions from most major industrial sectors have also been substantially reduced through controls required tomeet relatively stringent standards for hazardous airpollutants. The EPAhas also promulgated national rules limiting theVOC content ofthe
most ubiquitous paints/coatings and

consumer products. These efforts have substantially reduced the anthropogenic VOC emissions inventory such that additional area-specific VOC reductions will be increasingly difficult to achieve. As a further alternative, ifwe do not finalize the proposal above to allow any

area to substitute NON reductions for VOC reductions where such area can demonstrate thatit has achieved a 15 percent reduction in VOC emissions from a 1990baseline, we are proposing
to allow such substitution only for areas located in the Ozone Transport Region (OTR) thatwould be subject to the 15 percent RFP requirement for the first time as a designated nonattainment area for the 2008 ozone NAAQS. Although attainment areas inthe OTR were not required to adopt 15 percent RFP plans under section 184 ofthe CAA, they were required to adopt certain VOC reduction

measures such as enhanced vehicle I/M plans in metropolitan statistical areas (MSAs) with a population of 100,000 or more, andRACT for all sources covered by a control technique guideline (CTG). At thetime ofthe 1990 Amendments it

was expected that VOC reductions from those measures would account for a significant portion ofthe 15 percent RFP requirement for areas designated nonattainment. Thus, since attainment

areas in the OTR were required to adopt and implement many ofthe same

measures that applied in nonattainment
areas, we are proposingthat such areas should be treated as having met the 15 percent RFP requirement ifthey can demonstrate thatthey did,in fact, achieve a 15 percent reduction in VOC emissions between 1990 and 1996 (even though they ofcourse would not have submitted a 15 percent plan as they

were not subject to the 15 percent requirement at that time). In such a case, the area would be treated the same as a nonattainment area thatpreviously met the 15 percent requirement, as discussed below in section III.C.2.d.27 Specifically, these areas would stillbe required to submit a plan to achieve a 15 percent emission reduction,but could substitute NON reductions for VOC in such plan.

27The EPA's official on-road emissions model, MOVES, currently allows states to model emissions in 1990 and 1999 and lateryears, but not in 1996. EPA will evaluate whether the capability of modeling emissions in 1996 needs to be added to MOVES, orwhether someother methodology can beused for thisanalysis. 

### 34188

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

d. What are the RFP plan requirements for 2008 ozone nonattainment areas that consist entirely ofone or more nonattainment areas for a former ozone NAAQS or pieces ofnonattainment

areas for a former ozone NAAQS where such areas fulfilledthe 15 percent RFP plan requirement for VOC for that former ozone NAAQS?

This provision covers any 2008 nonattainment area 28 which consists entirely ofa nonattainment area or portions ofnonattainment areas for which we previously approved an RFP plan as meeting the 15 percent RFP plan requirement for VOC in section 182(b)(1) ofthe CAA. Such a 2008 nonattainment area could consist ofone

or more 1-hour nonattainment areas,

one or more nonattainment areas under the 1997 ozone NAAQS, or a combination ofnonattainment areas for either the 1-hour or 1997 ozone NAAQS. However, all portions ofthe

area that are a part ofthe 2008 nonattainment area musthave an approved 15 percent RFP plan for either the 1-hour or the 1997 ozone NAAQS.29

We are proposing that such 2008 nonattainment areas have met the CAA requirement for a 15 percent VOC reduction plan and are notrequired to fulfill that requirement again.As we did for the 1997 ozone NAAQS, we propose to interpret the RFP requirement in section 172(c)(2) to mean that a Moderate area must achieve a 15 percent reduction in baseline VOC emissions, but that NON emission reductions maybe substituted for the VOC reductions in themanner specified in section 182(c)(2)(C). Under section 182(c)(2)(B), Serious and higher classified areas would be required to achieve an average of3percent emission reductions per year for each 3-
year period following thebaseline year (i.e., a total of 18 percent emissions reduction in the first 6 years) and NON emission reductions could be substituted as providedunder section 182(c)(2)(C).

2877 FR 30088, May 21, 2012.

29The following nonattainment areas were nonattainment for boththe 1-hour and the 1997

ozone NAAQS, and remained the same sizeunder

the 2008 ozone NAAQS compared to the 1997

ozone NAAQS: Baltimore, MD; Los Angeles-San Bernardino Counties (West Mojave Desert), CA; Los Angeles-South Coast AirBasin, CA; Riverside County (CoachellaValley), CA; Sacramento Metro, CA; SanJoaquin Valley, CA; and Ventura County,
CA. e. What are the RFP plan requirements for 2008 ozone nonattainment areas that include portions consisting ofall or a piece ofone or more nonattainment

areas for a previous NAAQS and which fulfilled the 15 percent RFP plan requirement for VOC for thatprevious NAAQS and portions that have never been subject to or never havefulfilled the 15 percent RFP plan requirement for VOC for a previous NAAQS?

This provision addresses those areas that include all or part ofa nonattainment area under a former

ozone NAAQS that fulfilled the 15 percent RFP plan requirement for VOC and all or part ofan area that was not subject to or did notmeet the 15 percent requirement for a former ozone NAAQS. The most common situation in which this would arise is when a 2008 nonattainment area consists ofa former nonattainment area and additional surrounding areas (e.g., all or part of surrounding counties) that have not previously been designated nonattainment for ozone.

For such 2008 nonattainment areas,

we are proposing thatthe state choose between two approaches for addressing the 15 percent RFP requirement. First, the state could choose to treat the entire

area as an area thatnever met the 15 percent requirement, and meet the requirements of subsection III.C.2.c of this section, described previously. Second, the state could choose to treat the 2008 nonattainment area as divided into two portions: the former non-RFP plan portion and the former RFP plan portion. Forthe former non-RFP plan portion ofthe 2008 nonattainment area, the plan would establish a separate 15 percent VOC reduction requirement under section 182(b)(1) ofsubpart 2. However, VOC emissions reductions to meet the 15 percent requirement may
come from across the entire 2008 nonattainment area, provided that the former RFP plan portion ofthe area also has a VOC reduction target as part ofits RFP plan for the 2008 ozone NAAQS. If the RFP plan for the 2008 ozone NAAQS for the former nonattainment

area relies solely onNON reductions, then the portion ofthe nonattainment

area never before subject to nonattainment requirements is still responsible for the 15 percent VOC reductions.

For the former RFP plan portion ofthe 2008 nonattainment area, theRFP requirements in section 172(c)(2) will apply ifthe 2008nonattainment area is classified as Moderate as described previously in this document in subsection III.C.2.d ofthis section. Also,

as described in subsection III.C.2.d of this section, CAA section 182(c)(2)(B) RFP requirements will apply ifthe 2008

ozone NAAQS nonattainment area is classified as Serious or higher.

f.How should states account fornoncreditable reductions when calculating RFP emission reduction targets?

Section 182(b)(1)(D) specifies four categories ofcontrol measures that are not creditable toward the 15 percent RFP requirement under CAA section 182(b)(1)(A): (i) Measures related to motor vehicle exhaust or evaporative emissions promulgated byJanuary 1, 1990; (ii)regulations concerning RVP promulgated by November 15, 1990; (iii)

measures to correct previous RACT requirements; and (iv)measures required to correct I/M programs. With the exception ofthe first category, reductions from these measures were achieved many years ago, so the question ofcreditability is moot forRFP credit for the 2008 ozone NAAQS. For the motorvehicle standards, a small
amount ofreduction is still occurring due to fleet turnover. InAppendix Ato the preamble ofthe Phase 2Rule (70 FR 71696, as amended by 71 FR 58498, October 4, 2006), we presented methodologies for accounting for noncreditable emission reductions consistent withrequirements of section 182(b)(1)(D)(i) ofthe CAA. The procedures vary with the types ofareas. The EPA also issued a memorandum that supplements the Appendix.30 We

areproposing as one alternative to eliminate the obligation for states to continue to perform this calculation because these reductions are nowvery small and will continue to further decrease in future years. The calculation ofnon-creditable reductions isbased on the impact ofpre-1990 model year vehicles on thetotal emissions inventory. In 2011, pre-1990 model year vehicles are estimated to account for only 2percent ofvehicle miles traveled (VMT), 5percent oftotal on-road VOC emissions and 3percent oftotal on-road NON emissions using national estimates offleetcomposition, activity and emissions from the EPA's latest emissions model. By 2017, the firstyear for which non-creditable reductions
must be calculated for the 2008 ozone NAAQS, pre-1990 model year vehicles will be 27 years old and older. These vehicles will account for approximately 0.2 percent oftotal VMT, 0.6 percent of total on-road VOC emissions and 0.4 percent oftotal on-road NON emissions

30Memorandum from William T. Harnettre: "8-Hour Ozone National Ambient AirQuality Standards (NAAQS) Implementation-Reasonable Further Progress (RFP)," August 15, 2006. See first Q& A. 

### 34189

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

in 2017, using national estimates offleet composition, activity and emissions from the EPA's latest emissions model. Local results may vary, but the noncreditable reductions associated with the turnover ofthese vehicles everywhere willbe avery small fraction ofthe total on-road VOC emissions inventory by 2017 and will continue to decrease over future years. Accounting for allother emission sources, on-road VOC emissions typically constitute less than halfofthe total VOC inventory and about halfofthe total NOx inventory, so these percentages would be further reduced in the context ofthe total emissions inventory. Calculating noncreditable reductions will continue tobe

a very resource-intensive process requiring multiple modeling runs and extensive stafftime. We are proposing to

remove the burden ofperforming this calculation for purposes ofRFP for the 2008 ozone NAAQS based on the de minimisnature ofthese non-creditable reductions. Ifthe finalrule requires
states to account for these noncreditable reductions, we are proposing in the alternative that the calculation should be performed as described in Appendix C to this preamble.

g. Alternative Approaches To Achieving RFP

In the spirit ofthe Executive Order 13563 titled, "Improving Regulation and Regulatory Review," signed by President Barack Obama onJanuary 18, 2011, which directs federal agencies to offer and support flexible, common
sense approaches, the EPA is taking
comment on allowing states to use additional alternative approaches to achieving RFP goals. One alternative is

an airquality-based approach that would measure RFP in terms ofactual ambient air quality improvements tied
to an area's percent emission reduction requirements. Such an approach would involve workon the part ofthe state to translate an area's RFP emissions reduction targets (tons)into ozone improvement targets (ppb)based on air quality modeling or other appropriate analyses. The emission reduction targets for the area should be expressed in
terms ofthe pollutant (VOC or NOx) which, when reduced, is mosteffective in reducing ozone concentrations in the

area. Under this approach, RFP milestones would be satisfied ifthe area implements the target emissions reduction strategies and achieves the targeted ozone air quality improvement

over the relevant RFP assessment period. This approach would retain a state's accountability for making consistent incremental progress while focusing on the most direct measurement ofimprovement, namely air quality. A similar approach is already included in theimplementation rules that govern SIP development for the PM2.5NAAQS (See 40 CFR 51.1009(g) and (h)).

Another alternative approach would be to adjust (or"weight") the amount of RFP credit given for reductions of individual species (or similar groups) of VOCs based on their ozone forming potential (i.e., photochemical reactivity). Accordingly, reductions of VOCs with relatively high photochemical reactivity wouldbe given more credit toward RFP requirements and reductions ofVOCs with relatively low photochemical reactivity wouldbe given less credit toward those requirements. For example, reducing one ton ofa highly reactive VOC (i.e., with 1.5 times the

ozone forming potential ofan average VOC) could be given a RFP credit of 1.5 tons, reducing one ton ofa low reactive VOC (i.e., with 0.5 times the ozone forming potential ofan average VOC) could be given a RFP credit of0.5 tons, and reducing one ton ofa VOC with average reactivity could be given a RFP credit of 1.0 tons. Such an approach provides an incentive for states to target those VOC reductions that will havethe greatest impact on actual ozone formation. In order to use this approach, the EPA and/or states wouldneed to develop more detailed operational parameters, guidelines or rules derived from scientific assessment.

Forboth ofthese alternative approaches, the EPA is seeking
comment onthe usefulness and practicality ofthe approach, and specifically on whether there is adequate legalbasis under the CAA to approve SIPs thatwould employ these approaches.

3.What baseline year may states use for the emission inventory for the RFP requirement?

Thebaseline inventory forRFP is used as the starting point for determining atarget level ofemission reductions to meet the RFP requirement-in other words, itis the baseline from which creditable reductions are determined. Section 182(b)(1)(B) ofthe CAA, as amended in 1990, states thatthe term "baseline emissions" is defined as the total
amount ofactual VOC (orNOx) emissions from all anthropogenic

sources in the area during the calendar year 1990. The initial 6-year RFP period covered the 6 years following the baseline year, 1991-1996, ending in the
year that areas classified asModerate under the 1-hour NAAQS were required
to attain thatNAAQS.

For the 2008 ozone NAAQS, the EPA is proposing that states should use as the baseline year for RFP the calendar year for the mostrecently available triennial emission inventory at the time RFP plans are developed. We promulgated a regulatory provision adopting this same interpretation for
purposes ofimplementing the 1997

ozone NAAQS. See 40 CFR 51.910(d). A triennial emissions inventory under the Air Emissions Reporting Requirements (AERR)Rule (73 FR 76539; December 17, 2008) isrequired for the year 2011 andwas required tobe submitted to the EPA byDecember 31, 2012. Forthe 1997 ozone NAAQS, our regulations alsoprovided that a state has flexibility
to use an alternative baseline yearifit shows thatthe alternative year is appropriate and justifiable. We are proposing to allow similar flexibility for the 2008 ozone NAAQS.

A RFP baseline year of2011 is analogous to the approach provided for RFP in the CAA as amended in 1990. The CAArequired a 1990 baseline for the 15 percent RFP requirement which lined up the 6-year 15 percent RFP period with the 1996 attainment date for Moderate areas under the 1-hour NAAQS. Forthe 2008 ozone NAAQS, initial area designations were effective in 2012 and the 6-year RFP period from

abaseline of2011 (i.e., January 1, 2012- December 31, 2017) would line up reasonably well withthe Moderate area attainment date of2018. As noted above, the AERR Rule required states to report emissions for calendar year 2011
to the EPAby December 31, 2012. This is about 2.5 years before the July 20, 2015, deadline for 15 percent RFP plans
to be submitted. The EPA believes this timing isreasonable for areas designated nonattainment in 2012 and allows time for states to develop and submit an RFP plan, as well as time to implement

measures to satisfy theRFP requirement by December 31, 2017. Ifa state chooses 2011 as abaseline year for a Moderate

area designated nonattainment in 2012, the 15 percent reduction requirement

covers the period from January 1, 2012,
to December 31, 2017. The 6-year period concludes one year prior to the December 31, 2018, attainment date. Areas using 2011 as abase year would thus have to achieve whatever additional emissions reductions are needed to provide for attainment ofthe standard byDecember 31, 2018. This corresponds to the approach taken in the Phase 2Rule (70 FR 71615-71616).

However theEPA is also proposing that states have the option of selecting

an appropriate and justifiable alternate 

### 34190

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

year as a baseline yearfor RFP.Ifstates choose apre-2011 baseline year, the EPA isproposing that the 6-year period for achieving the 15 percent reduction
starts inJanuary ofthe year following the selectedbaseline year. When a year prior to 2011 is chosen as the baseline year, the 6-year period thus concludes

more than one year prior to the start of the attainment year for the area. In this situation, theEPA isproposing thatthe

area isresponsible for a 3percent emissions reduction each year afterthe initial 6-year period has concluded up to the beginning ofthe attainment year. For example, if2009is chosen as a baseline year for a Moderate area, the 15 percent reductions cover the period from January 1, 2010 to December 31, 2015. The area would need to generate

an additional 3percent emissions reduction per year for theyears 2016 and 2017. As in thePhase 2Rule and consistent with CAA section 182(c)(2), Serious and higher classified areas would need to provide in their SIPs an additional average of3percent per year emission reduction over each subsequent year beyond the initial 6- year period through the attainment year (70 FR 71616).

We areproposing that for amulti-state nonattainment area, all states associated with the nonattainment area must consult and agree on the same alternate
year to use as the baseline year for RFP.

4. Can emission reductions from sources located outside the nonattainment area boundary apply toward RFP?

a. Background

Under the EPA's initial Phase 2 Rule,31 certain emission reductions from outside a nonattainment area can be credited toward meeting the 1997

ozone NAAQS RFP requirement. See 70 FR 71647-49. For the same reasons provided in our proposed rule32 to revise this provision for the 1997 ozone NAAQS, the EPA isproposing to not allow states to rely on credit for emission reductions from outside the nonattainment area to meet RFP obligations for the 2008 ozone NAAQS.

The language in the CAA's baseline emissions provision for determining the emissions reductions required forRFP purposes (sections 182(b)(1)(B) and 182(c)(2)(B)) is almostidentical to the language in the CAA's RACT provision (section 172 (c)(1)). The issue oftaking credit for reductions from outside the

31See FinalRule to Implement the 8-Hor Ozone National Ambient AirQuality Standard-Phase 2 (70FR 71612,November 29, 2005).

32

ReasonableFurther Progress Requirements for
the 1997 8-Hour Ozone National Ambient Air Quality Standard(75 FR 80420,December 22, 2010). nonattainment area was raised inthe
context ofthe RACT provision and decided bythe court in NRDCv. EPA, 571 F.3d 1245 (DCCir. 2009). The court there held that "the RACT requirement calls for reductions in emissions from

sources in the area; reductions from

sources outside the nonattainment area do not satisfythe requirement." NRDC at 1256. We note the similarity in language in the several provisions ofthe CAA, but also the difference between RACT, which isa source specific requirement, and RFP, which is not.

b. Proposal

The EPA is therefore proposing that for the 2008 ozone NAAQS states may not take credit for VOC or NON reductions occurring outside the nonattainment area for purposes of meeting the 15 percent and 3percent RFP requirements ofsections 172(c)(2), 182(b)(1) and (c)(2)(B). This approach would mean that RFP credit formeeting the 15 percent VOC requirement for Moderate and above ozone nonattainment areas in section 182(b)(1) and the additional 3percent per year requirement for Serious and above

ozone nonattainment areas in section 182(c)(2)(B) could come only from emission reductions from within the nonattainment area. The EPA notes that the required 15 percent and 3percent reductions are calculated from the baseline emissions inventory for the nonattainment area, which reflects only emissions within the nonattainment

area. In nonattainment areas where there are few significant local emission
sources, and thus relatively small emission inventories, the required reduction percentages would similarly translate into only small required emission reductions. Areas still can and should, where appropriate, rely on outof-area reductions for purposes of demonstrating attainment. There is no limitation under the attainment demonstration provisions ofthe CAA that restricts states from considering outside-the-area reductions aspart of the modeled attainment demonstration for an area. As EPA haspreviously said, in determining the attainment date that is as expeditious as practicable, the state should consider impacts on the nonattainment area ofintrastate transport ofpollution from sources within its jurisdiction, and potential reasonable measures toreduce emissions from those sources.

At the same time, the EPArecognizes that not allowing credit for reductions outside the nonattainment area will make itmore challenging for some areas, such as the areas adjacent tothe South Coast nonattainment area in California, namely, Coachella Valley, West Mojave Desert and Ventura County in California, to meettheir RFP requirements and may foreclose some cost-effective opportunities for emissions reductions. Despite the court's opinion inNRDC,the EPA continues tobelieve thatthere remain valid policyreasons forgiving states incentive to focus on obtaining emission reductions that are the mostbeneficial and cost effective for achieving air quality progress and attaining the ozone standards. The EPAbelieves there may be cases where the mostbeneficial and cost-effective reductions are from

sources located outside the nonattainment area boundaries. In these
cases, we believe itwould be good policy tocredit the emission reductions toward meeting RFP requirements. To this end, the EPA isalso taking
comment on whether there is a clear legal rationale for allowing credit for reductions outside thenonattainment

area to satisfy the RFP requirements for the 2008 ozone NAAQS. We encourage commenters to consider howthe baseline emission inventory shouldbe determined ifreductions from outside the nonattainment area were able tobe creditable for RFP requirements. Ifthe EPA receives comment thatprovides a clear legaljustification for this approach, we will seriously consider including this approach inthe final rule.

The EPArequests comments onthe proposal and itsimplications for the 2008 ozone NAAQS.

D.Howdo RACT andRACM requirementsapply for2008 ozone NAAQS nonattainment areas? 1.Reasonably Available Control Technology

a. Background

Subpart 1ofpart D ofthe CAA includes arequirement that an attainment plan must provide for the implementation ofall RACM as expeditiously as practicable, including suchreductions thatmay be obtained through RACT. 33 Subpart 2requires Marginal ozone nonattainment areas to correctpre-1990 RACT requirements andrequires Moderate and above areas to adopt RACT rules for all VOC and

3 3 The EPA has defined RACT as the lowest emission limitation that a particular source is capable ofmeetingby the application ofcontrol technology that is reasonably available considering technological and economic feasibility (December 9, 1976 memorandum from Roger Strelow, Assistant Administrator forAir and Waste Management, to Regional Administrators, "Guidance for Determining Acceptability of SIPRegulations in Non-Attainment Areas" and alsoin 44 FR 53762; September 17, 1979). 

### 34191

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

NON sources covered by existing or new CTGs andfor all other major sources of VOC and NON (unless the state has received a NON waiver). Additionally,
states must adopt RACTfor all VOC and NON sources covered by a CTG, and for allother major sources ofVOC and NON in the OTR (CAA section 184(b)(1)).

Since the 1970s, the EPA has issued CTGs that establish presumptive RACTlevel control requirements forvarious

source categories. The CTGs usually identify a particular control level which the EPArecommends asbeing RACT. In

some cases, the EPA has issued Alternative Control Techniques guidelines (ACTs)for source categories. 34ACTs differfrom CTGs in that theypresent a range for possible control optionsbut do not identify any particular option as the presumptive

norm for what isRACT. Section 183(c) ofthe CAA requires the EPA to "revise andupdate [CTGs and ACTs] as the Administrator determines necessary." The EPA issued eleven newCTGs from 2006 through 2008. 35 For nonattainment

areas classified as Moderate or higher,
states are required to address RACT for the source categories covered by CTGs.

Some ofthe CTGs specifythe minimum size of sources to which they apply. Where a CTG does not specify the minimum size ofsources to which it applies or there is no CTG for a source category, states are required to apply the RACT requirement to sources in a nonattainment area thatexceed the size threshold corresponding to the statutory definition of"major stationary source." Section 302 ofthe CAA defines major stationary source as a source thatemits 100 tons per year (tpy)ormore ofany air pollutant, and for ozone the air pollutants ofconcern are NON and VOC. That 100 tpy threshold, however, is modified by subsections 182(c)-(f) of the CAA, which define a major source for Serious areas as a source that emits

more than 50 tpy ofVOC or NOx; for Severe areas as a source that emitsmore than 25 tpy ofVOC or NOx; and for Extreme areas as a source thatemits

more than 10 tpy ofVOC or NOx.3 6

34Seehttp://www.epa.govlairlozonepollutionl SIPToolkit/ctgs.htmL.

35CTGs updated from 2006 through 2008: Industrial Cleaning Solvents; Offset Lithographic Printing and Letterpress Printing; Flexible Package Printing; Flat WoodPaneling Coatings; Paper, Film, and Foil Coatings; Large Appliance Coatings; Metal Furniture Coatings; Miscellaneous Metal and Plastic Parts Coatings; Fiberglass Boat Manufacturing; Miscellaneous Industrial; and Automobile and Light-Duty Truck Assembly Coatings.

36

Note,however, that an area may have obligations underanti-backsliding provisions based

on classification under the 1-hour and/or the 1997 8-hour ozone NAAQS. Those obligations mayresult in a lower major source threshold for purposes of The CAArequired states to submit RACT SIPs for Moderate andhigher classified areas within 2years after
enactment ofthe 1990 CAA Amendments and required implementation as expeditiously as practicable but no later than May 31, 1995, or 54 and one-halfmonths following enactment ofthe 1990 Amendments (i.e., no later than 30 and one-half months after the required RACT SIP submission date).

In considering modification to existing RACT guidance, 37theEPA believes there are two principles worth emphasizing: 1.The implementation rules should conform closely tothe clearly articulated goal ofthe CAA that states implement measures thatprovide for attainment ofthe ozone standard as expeditiously aspracticable. 2.The implementation rules should enable, ifnot encourage, the adoption of emission reduction strategies that will be the mosteffective, and the most cost effective, at reducing ozone levels.

b. Proposal
i. Substantive Requirements

RACT SIPs must contain adopted RACT regulations, certifications where appropriate thatexisting provisions are RACT, and/or negative declarations that there are no sources in the nonattainment area covered by a specific CTG source category. States
must provide notice and opportunity for public comment on their RACT submission even where the state determines to certify that the existing provisions remain RACT or where the
state submits a negative declaration. States must also submit appropriate supporting information for their RACT submission as described in the Phase 2 Rule. See 70 FR 71652. States should use current EPA guidance and any other information available in making RACT determinations.38 The EPArecognizes that existing CTGs andACTs for many

source categories have not been revised in anumber ofyears. However, in most
cases, more recent technical information is available in other forms, such asthe BACT/LAER Clearinghouse; SIPs for other nonattainment areas, in particular those areas with higher classifications;

applyingRACT thantheclassification associated with the 2008 ozoneNAAQS.

37May 18, 2006 memorandum from William T. Harnett, Director, Air QualityPolicy Division, to Regional AirDivision Directors, "RACT Qs &AsReasonable Available Control Technology (RACT): Questions and Answers."

38EPA's CTGs and ACTs arelocated athttp:// www.epa.gov/air/ozonepollution/SIPToolkit/ ctgs.html. the "Menu ofControl Measures" for NON and VOC; and emissions standards developed under CAA section 111(d) andNSR/prevention ofsignificant deterioration (PSD)settlement agreements. Aspart oftheir RACT SIP submission, states should provide adequate documentation thatthey have considered control technology that is economically and technologically feasible. The analysis ofeconomic and technological feasibility shouldbe based

oninformation thatis current as ofthe time ofdevelopment oftheRACT SIP for the 2008 ozone NAAQS. In other words, itis not sufficient for states to rely on previous RACT determinations without considering more recent information. Where public commenters submit specific information to a state about controls thatare alleged tobe reasonably available in lightof technological and economic feasibility, the state should consider such information in developing itsRACT SIP. The EPA generally considers controls that havebeen achieved in practice by other existing sources in the same
source category tobe technologically and economically feasible. In some cases, states may conclude that sources already subject to RACT for the 1-hour and/or 1997 ozone NAAQS are also meeting the 2008 ozone NAAQS RACT requirement.

The EPA's NON RACT guidance (Nitrogen Oxides Supplement to the General Preamble, 57 FR 55625; November 25, 1992) encouraged states to develop RACT programs that are based on "area wide average emission rates." Additional guidance on areawide RACT provisions isprovided by EPA's January 2001 economic incentive program guidance titled, "Improving Air Quality with Economic Incentive Programs." 39Thus, theEPA's existing policy recognizes the approach of states submitting a demonstration as part of their NON RACT SIP submittal showing that the weighted average NON emission
rate from sources in the nonattainment

area subject to RACT meets NON RACT requirements.

As part oftheir RACT submission,
states have the option ofdemonstrating that compliance with a regional trading program by certain sources within a nonattainment area will achieve RACTlevel reductions for those sources within the nonattainment area. The analysis would need to consider current control technology andcost effectiveness information as part of any suchdemonstration, and to show that the trading program achieves emission

39http://www.epa.govlttnloarpg/tlmemorandal eipfin.pdf. 

### 34192

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

reductions greater than or equal to reductions thatwould be achieved through a source-specific application of RACT in the nonattainment area.

In the preamble to the Phase 2Rule, the EPA explained that states could, in certain circumstances, conclude that

sources (EGUs and some non-EGUs), in compliance with the requirements of regional trading programs established by the NOx SIP Call and/or the Clean Air Interstate Rule (CAIR), havemet their

ozone NOx RACT requirements with respect to the 1997 ozone standards. See 70 FR 71612, 71656-58. EPA subsequently modified its guidance regarding when compliance with CAIR may satisfyNOx RACT requirements for EGUs in CAIR states. See 72FR 31727, 31730-37.

On July 10, 2009, in NRDCv. EPA, the Court ofAppeals for theDC Circuit remanded the provision ofthe Phase 2 Rule determining thatcompliance with the NOx SIP Call satisfies NOx RACT because EPA had failedto show that compliance with the NOx SIP Call would achieve at least RACT-level reductions in each nonattainment

area. 4 0 The courtheld that "[b]ecause the EPAhas not shown thatthe NOx SIP call compliance will result in at least RACT-level reductions in emissions from sources within each nonattainment
area,the EPA's determination that compliance with the NOx SIP call satisfies theRACT requirement is inconsistent with the "in the area" requirement and thus violates the plain
text of [section] 172 (c)(1)." 41 Additionally, the court emphasized that "the RACT requirement calls for reductions in emissions from sources in the area; reductions from sources outside the nonattainment area do not satisfythe requirement... Accordingly, participation in the NOx SIP call would constitute RACT only if participation entailed at leastRACTlevel reductions in emissions from

sources within the nonattainment area."

The EPAbelieves that the concerns expressed bythe court about the agency's approach tothe NOxRACT requirement for sources, including EGUs, and the emissions reductions required bythe NOx SIP Call raise significant questions about the EPA's approach to the comparable issues related to compliance with the CAIR.

The EPAhas not analyzed whether participation in either the NOx SIP call

orCAIR would achieve reductions at

40 In viewof its decision in North Carolina v. EPA, in which the Court hadpreviously remanded the CAIR, the Court deferred consideration ofthe litigant's challenge insofar asit related to the CAIR
program.

41 See NHDCv.EPA, 571 F.3d 1245. least equivalent to what would be achieved ifRACT requirements were applied on asource-specific basis in nonattainment areas for the 2008 ozone NAAQS. The analysis the EPA prepared for the Phase 2Rule addressed only nonattainment areas for the 1997 ozone NAAQS. Moreover, since sourcespecific control assumptions would need to be developed in order to determine the overall reduction level achievable in a nonattainment area through source-specific application of RACT, the EPAbelieves states are in a better position than EPAto conductthis analysis.

The statute, as interpreted by the
court in NRDCv. EPA, provides that RACT SIPs must demonstrate that RACT-level emission reductions are achieved within therelevant nonattainment area. Thus, and for the

reasons explained above, it does not allow states to, without providing such demonstration, rely upon the participation ofa source in a regional cap-and-trade program to satisfy RACT requirements. However, as noted above,
states retain the option ofdemonstrating that compliance with a regional trading program by certain sources within a nonattainment area, will achieve RACTlevel reductions for those sources within the nonattainment area.

For clarity, we alsonote that a state has discretion to require beyond-RACT reductions from any source, and has an obligation to demonstrate attainment as expeditiously aspracticable. Thus,
states may require VOC and NOx reductions that are "beyond RACT" if such reductions are needed in order to provide for timely attainment ofthe

ozone NAAQS.

The EPA is soliciting comment on modifying existing guidance to provide additional flexibility in implementing the section 182(b)(2) RACT requirements. In some nonattainment

areas additional reductions of anthropogenic VOC emissions have been scientifically demonstrated to have

a limited impact on reducing ozone concentrations. We are soliciting
comment onwhether such a demonstration isan appropriate factor
to consider in determining what is "reasonable" in a RACT analysis. This modification toexisting guidance is being explored in the spirit ofthe Executive Order 13563 titled, "Improving Regulation and Regulatory Review," signed by President Barack Obama onJanuary 18, 2011, which directs governmental agencies to offer and support flexible, common sense approaches. The EPArecognizes that limited state and federal resources need
to be used wherethey will produce the best environmental benefit, and thatwe should attempt to accommodate air quality management approaches that will be a better use ofpublic and private

resources and lead tomore expeditious attainment.

In some areas, additional VOC reductions maybe oflittle value in further reducing ozone, andmay be far less effective than NOx reductions (whichmaybe quicker to implement and lower cost). Under such circumstances, the EPA is taking
comment on whether state RACT determinations could take into consideration, in the evaluation ofwhat is economically feasible, the potential air quality benefit (orlack thereof)of further VOC controls. Commenters should discuss the specific circumstances and limitations to which

an airquality benefit factor would apply. Forexample, commenters should address whether this approach would (or can)be limited to cases where it can be scientifically demonstrated that additional VOC controls are ineffective in reducing ambient ozone concentrations. In addition, commenters

are encouraged to provide specific examples ofwhere modeling has demonstrated that anthropogenic VOC reductions have "negligible effect." Commenters, ifpossible, should also provide a defensible threshold for defining "ineffective," and define a test for concluding that the effect of additional VOC reductions wouldbe "negligible." The EPA is also interested in comments that address whether this flexibility should be provided on an individual source basis, or also on a

source category basis. Any approaches suggested by commenters should also address how public health and welfare will be impacted. Finally, commenters

are encouraged to provide an explanation as to the specific legal basis for supporting the suggested approach.

For VOC sources subject to MACT standards, our policyisto allow states to streamline their RACT analysis by including a discussion ofthe MACT controls and considerations relevant to VOC RACT. Historically, in many cases, states havebeen able to rely on MACT standards for purposes ofshowing that

a source has met VOC RACT. States need totake care to ensure that any MACT controls relied onfor RACT adequately address all VOCs and not just those that are alsoHAPs. For example, ifa manufacturer complies with MACTby reformulating products
to remove HAPsbut theproduction
process still releases non-HAP VOCs, the state would need to justify whythe MACT meets the RACT requirement for that source or would need to develop an 

### 34193

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

appropriate RACT rule to address nonHAP VOCs.

ii. Timing

We areproposing two alternatives for when states would be required to submitRACT SIPs. Under the first alternative, states withModerate and higher classified areas would be required to submit RACT SIPs within the period specified in section 182(b) with the time running from the effective date ofan area's designation for the 2008 ozone NAAQS (i.e., within 2years from the effective date of designation). Under the second alternative, states would be given the choice of submitting RACT SIPs for Moderate and higher classified areas either as part ofa consolidated SIP submittal 30 months afterthe effective date ofdesignation, or within the period oftimeprovided in section 182(b), as described above. The 30-month option would align the submission date for the RACT SIP with the proposed submission date for other SIP elements for the area's classification in order torelieve states ofthe added burden that can resultfrom processing different SIP elements at different times.

We are also proposing a specific deadline bywhich RACT measures are to be implemented for the 2008 ozone NAAQS. Section 182(b)(2) requires RACT measures to be implemented as expeditiously as practicable, but no later than May 31, 1995, which was 54 and one-halfmonths from the date of
enactment ofthe 1990 CAA Amendments. This date was also near the beginning ofthe ozone season for many nonattainment areas at the time of enactment, and ensured thatRACT

measures were required to be in place during most ofthe last two ozone
seasons before the Moderate area attainment date ofNovember 15, 1996. For the 2008 ozone NAAQS, we are proposing that areas must implement RACT measures as expeditiously as practicable, but no later thanJanuary 1 ofthe fifth year after the effective date ofa nonattainment designation. Nonattainment designations for all areas ofthe country were effective July 20, 2012. RACT measures for these areas would be required tobe implemented byJanuary 1, 2017. This allows a comparable amount oftime for sources to meetRACT requirements as originally anticipated under the 1990 CAA Amendments, and ensures that RACT measures are required tobe in place throughout the lasttwo ozone

seasons prior to theModerate area attainment date ofDecember 31, 2018.

Ifwe finalize the "state's choice" approach for when SIP elements would be due, those states which chose to submit a consolidated SIP within 30 months ofdesignation would have a little longer to develop and submittheir RACT SIPs,but affected sources would have alittle less lead time toimplement the adopted requirements. Thus, any emission reductions due to RACT would not be delayed due to the slightly later RACT SIP submission date. The EPAbelieves this is a reasonable interpretation ofthe statute in this case.
2.Reasonably Available Control Measures (RACM)

The RACM requirement, which is set forth in section 172(c)(1) ofthe CAA, applies to all nonattainment areas that

are required to submit an attainment demonstration. The EPA has issued policies andprocedures relatedto RACM. Specifically, the EPA has issued guidance that interprets the RACM provision to require a demonstration that the state has adopted all reasonable

measures (includingRACT) to meet RFP requirements and to demonstrate attainment as expeditiously as practicable and thus thatno additional

measures that are reasonably available will advance the attainment date or contribute to RFP for the area.424344We believe that this guidance should continue to apply for purposes ofthe 2008 ozone NAAQS.

The determination ofwhether a SIP contains all RACM requires an areaspecific analysis thatthere are no additional economically and technologically feasible control

measures (alone or cumulatively) that will advance the attainment date.45The EPA's RACM policy, as outlined in the April 16, 1992, General Preamble, indicates that states should consider all candidate measures that are potentially available for the particular nonattainment area thatcould advance the attainment dateby 1year. 46The

42 "State Implementation Plans; General Preamble
for Proposed Rulemaking on Approval ofPlan Revisions for Nonattainment Areas" 44 FR 20372 at 20375 (April4, 1979). "State Implementation Plans; General Preamble for the Implementation ofTitle I ofthe Clean AirAct Amendments of 1990; Proposed Rule." 57 FR 13498 at 13560 (April 16, 1992).

43"Guidance on the Reasonably Available Control Measures (RACM)Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas." John S. Seitz, Director, Office ofAir Quality Planning and Standards. November 30, 1999. www.epa.gov/ttn/oarpg/tl/ memoranda/revracm.pdf.

44

Memorandum ofDecember 14, 2000, from John S. Seitz, Director, Office of AirQuality Planning and Standards, re: "Additional Submission on RACM from States with Severe One-Hour Ozone Nonattainment Area SIPs." www.epa.gov/ttn/oarpg/ ti/memoranda/121400racmmemfin.pdf.

45Ibid.

46 "State Implementation Plans; General Preamble
for the Implementation ofTitle I ofthe CleanAir April 16, 1992, General Preamble 47 also provides that "any measure that a commenter indicates during a public
comment period isreasonably available shouldbe closely reviewed by the planning agency to determine ifitis in fact reasonably available for implementation in the area in light of local circumstances." Although states should consider all available measures, including those being implemented in other areas, astate must adopt measures for an area only ifthose measures are economically and technologically feasible and will advance the attainment date orare necessary for RFP.This interpretation ofthe section 172 requirements has been upheldby several courts. See, e.g., SierraClubv. EPA, et al., 294 F.3d 155 (D.C. Circuit, 2002).

E.Doesthe2008 ozoneNAAQS result in anynewinspectionandmaintenance (I/M) programs?

No new I/Mprograms are currently required as a result ofareas being designated and classified nonattainment for the 2008 ozone NAAQS. The applicable requirements for ozone nonattainment areas that are required to adoptI/M programs are described in sections 182(a)(2)(B), 182(b)(4), 182(c)(3), and 184(b)(1)(A) ofthe CAA andfurther defined in section 51.350 ("Applicability") ofthe I/M rule (40 CFR part 51, subpart S).Under these cumulative requirements, Moderate

ozone nonattainment areas in urbanized

areas with 1990 Censuspopulations of 200,000 or more are required to adopt basic I/M programs, while Serious and higher classified ozone nonattainment

areas outside ofthe northeast OTR with 1980 Census-defined urbanized populations of200,000 or more are required to adopt enhanced I/M programs. Within the OTR, MSAs with populations of 100,000 or more are required to adopt enhanced I/M programs, regardless ofattainment
status. Currently, all thenonattainment

areas meeting the criteria for mandatory I/M under the 2008 ozone NAAQS are already operating I/M programs due to being designated nonattainment and classified as Moderate or above under

an earlier ozone standard. Ifa Marginal 2008 ozone nonattainment area meeting the population cutofffor mandatory I/M is ever in the future reclassified to Moderate or a higher classification, then

an I/Mprogram meeting the SIP

Act Amendments of 1990; Proposed Rule." 57 FR 13507 (April 16, 1992). The discussion ofRACM in that document contains otherrelevant history concerning the RACM requirement.

4757 FR 13498. 

### 34194

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

submittal and program implementation requirements oftheI/M rule wouldbe required at thattime.

1.Ifnew I/M programs are required in the future, what are the SIP and implementation requirements?

On April 7, 2006, the EPA finalized a suite ofrevisions to the I/M rule (71 FR 17705) to address the implementation of I/M under an 8-hour ozone NAAQS. The revised rule included deadlines for 8-hournonattainment areas thatwere tied tothe effective date of agiven area's designation and classification under the 8-hourozone NAAQS. Specifically, the April 2006 rulemaking established a deadline for submission ofan I/M SIP

no later than one year afterthe effective date ofthe area's nonattainment designation and classification for the 8- hour ozone standard. This rule was originally applied for purposes ofthe 1997 8-hour NAAQS, but it remains applicable to the 2008 8-hour NAAQS. In addition toestablishing the I/M SIP submittal schedule, the April 2006 rulemaking also set a deadline ofno later than 4 years afterthe effective date ofdesignation and classification by which the I/M program in question would actually begin testingvehicles.

2.Should theEPA allow more timefor
states to submit future I/M SIPs?

Since the 2006 I/M rulemaking, the EPA has revisited the question ofhow much time it takes to submit an I/M SIP based upon the degree to which the modeling workneeded to demonstrate attainment is closely linked to the modeling workrequired to design an I/M program thatmeets the area's attainment needs. Put simply, areas need to determine together the amount ofemissions reductions needed for attainment and the amount ofemissions reductions toget from different sectors and strategies (includingI/M),before designing an I/M program capable of achieving thenecessary reductions to demonstrate attainment. Requiring submittal ofan I/M program in advance ofan attainment demonstration for the
current or future ozone standard could result in significant unnecessary work

onmodeling, SIP revisions, and implementation, ifrevisions to the I/M program are later deemed necessary.

Because control strategy decisions andthe modeling needed to perform the attainment demonstration are intertwined with decisions and modeling needed to design the local I/M program to such a high extent, the EPA isrequesting comment onits proposal to align deadlines for the attainment SIP andthe I/M SIP so that both are due at the same time.48
Commenters are asked totake the following factors into consideration when providing comments onthis portion ofthe proposed rulemaking: Areas' need to analyze various I/M program designs to determine which combination ofprogram parameters is capable ofmeeting the emission reduction needs ofthe attainment SIP; the needto secure legal authority when

some ofthepotentially affected state legislatures may only meet for 2-4 months during any given legislative session; the time needed to promulgate

a regulation; and the impact on timing ofother, potentially competing resource demands that willbe placed on states as

a result ofthe need to meet current and/

or future ozone standards.

3.How is modern I/M different fromthe last time new I/M programs were required?

It is important tonote thatmuch has changed since I/M programs were required under the original, November 5, 1992, I/M Rule. Atthat time, an I/M program would have included testing a vehicle's tailpipe emissions, in some

cases using a treadmill-like device (dynamometer), so thatthe emissions

were measured under more realistic driving conditions rather than at rest (idle).Dynamometer-based tests also allowed for measurement ofNOx emissions, which was not possible at idle. The equipment needed for these types ofprograms was expensive compared totoday's next-generation alternatives and the test itselfwas time consuming as the vehicle needed to be secured to the dynamometer and then driven through thetest cycle.

Beginning with the 1996 model year, vehicles havebeen equipped with a computerized system known as onboard diagnostics or OBD. The OBD system monitors the vehicle's emission control system continuously and illuminates the vehicle's dashboard "Check Engine" light ifa problem is detected. The vehicle's computer stores information

on the type ofmalfunction detected, and is therefore able to provide repair shops with information on the type ofrepair that is needed. The EPA estimates that about 80 percent ofthe national vehicle fleet is already equipped with an OBD system and thatby the time any potential new I/M programs would be required tobegin operation, about 90 percent ofthe national vehicle fleet will

48As discussed in section III.A oftoday's proposal, the EPA is soliciting comment on alternative deadlines for attainment SIP submissions. TheEPA is here soliciting comment

on aligning the deadline for I/M submittal with those alternative deadlines. be OBD equipped. As a result,the EPA believes that I/M programs will no longer needto usetailpipe testing, and

caninstead rely on a simple, fast and inexpensive interrogation ofthe OBD system.

There are many ways to conduct OBD system checks but all involve a relatively inexpensive scanner. The

scanner isconnected to aport in the vehicle and the tool downloads information from the vehicle's computer. This type oftesting canbe done either in a centralized testing facility, directly at a repair shop, or even remotely using telematics technology. Compared to earliervehicle test methods, next-generation I/M testing through OBD system checks is substantially quicker, less invasive, less costlyto implement and ideally suited
to innovative testing strategies such as remote inspections using cellular or telematic technologies, self-serve testing kiosks and even mail-in data loggers,

none ofwhich were practical under the previous generation oftailpipe tests and allofwhich are available for use in today's andfuture I/M programs.

The EPAbelieves that OBD technology can change not only the way vehicles are testedbut also whether vehicles needto be independently tested at all. This isbecause OBD offers vehicle owners all the information they need regarding whether ornot their vehicle will pass or fail an I/M inspection. Simplyput, ifthe "Check Engine" light is on, the vehicle will fail. This capability ofOBD to provide immediate driver feedback suggests

some as-yet untestedbut nevertheless intriguing alternatives to traditional I/M.

One such alternative-the EPA believes-would include programs that offer somevehicle owners free or subsidized repairs ofvehicles with lit "Check Engine" lights. Should such a program result in the same number of vehicles being repaired as wouldbe the

case in a traditional I/M program, then the program in question wouldbe considered functionally equivalent to I/M. The choice ofhowto fundthese repairs would rest with the state but couldinclude collecting a fee equivalent
to what would otherwise be charged for testing from all registrants, requiring vehicle insurance providers or a state to

coverthe cost ofrepairing the vehicle when the "Check Engine" light comes on, partnering with local vocationaltechnical schools to provide repair services, making driving with a lit "Check Engine" light on a secondary traffic offense (similarto driving without a seatbelt or working headlights in some states), etc. Ultimately, program equivalency would 

### 34195

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

not depend upon howrepairs are funded but rather on the number of relevant repairs accomplished by the program. Similarly, programs that accelerate the retirement ofvehicles in need ofemission-related repairs or that significantly prompt older vehicles to be replaced by cleaner technology could be considered equivalent to I/M ifthe
amount ofemission reductions achieved equals or exceeds what would be achievedby a traditional enhanced I/M
program.

The EPA is requesting comments on these or other ideas for "right sizing" I/M for the current and future fleet. Comments should address how proposals will meetthe minimum statutory requirements for I/M while still achieving I/M's primary goal of reducing emissions from the fleet in-use and supporting vehicle maintenance and emission repair.

F.Howdoes transportation conformity applyto the2008 ozoneNAAQS?

1.What istransportation conformity?

Transportation conformity is required under CAA section 176(c) toensure that transportation plans, transportation improvement programs (TIPs)and federally supported highway and transit projects are consistent with ("conform to") thepurpose ofthe SIP. Conformity
to the purpose ofthe SIP means that transportation activities will not cause

new air quality violations, worsen existing violations, or delay timely attainment ofthe relevant NAAQS or interim reductions and milestones. Transportation conformity applies to

areas that are designated nonattainment, andto those former nonattainment areas that havebeen redesignated to attainment since 1990 andhave a CAA section 175A maintenance plan ("maintenance areas") for transportation-related criteria pollutants: Carbon monoxide, ozone, nitrogen dioxide, and particulate matter.

The EPA's Transportation Conformity Rule (40 CFR 51.390 and Part 93, subpart A) establishes the criteria and procedures for determining whether transportation activities conform to the SIP. The EPA first promulgated the Transportation Conformity Rule on November 24, 1993 (58 FR 62188), and subsequently published several amendments. For example, the EPA published afinal rule onJuly 1, 2004 (69 FR 40004)that provided transportation conformity procedures for state and local agencies under the 1997 ozone NAAQS, among other things. Forfurther information on transportation conformity rulemakings, policy guidance and outreach materials, see theEPA's Web site at http:// www.epa.gov/otaq/stateresources/ transconf/in dex.htin.

2.Why is theEPA discussing transportation conformity in this proposed rulemaking?

We are discussing transportation conformity in this proposed rulemaking in order to provide affected parties with information on when transportation conformity must be implemented for the 2008 ozone NAAQS and how we plan
to make the transition from the 1997

ozone NAAQS to the 2008 ozone NAAQS with respect totransportation conformity. Affected parties would include state and local transportation and air quality agencies, metropolitan planning organizations (MPOs) and the U.S. Department ofTransportation (the DOT) (40 CFR 93.102).

3.When would transportation conformity apply to areas designated nonattainment for the 2008 ozone NAAQS?

Transportation conformity for the 2008 ozone NAAQS applies 1year after the effective date of nonattainment designations for that standard. This is because CAA section 176(c)(6) and 40 CFR 93.102(d) provide a 1-year grace period from the effective date ofinitial designations before transportation conformity applies in areas newly designated nonattainment for a particular pollutant and standard.

4. How would the 1-year transportation conformity grace period apply?

The transportation conformity grace period applies to all areas designated nonattainment for the 2008 ozone NAAQS. Metropolitan areas are urbanized areas thathave a population greater than 50,000 and a designated MPO responsible for transportation planning per 23 U.S.C. 134. Ingeneral, within 1year afterthe effective date of the initial nonattainment designation for

a given pollutant and standard, the area's MPO and the DOT must make a conformity determination with regard to that pollutant and standard for the area's transportation plan and TIP. The conformity requirements for donut
areas, 49including the application ofthe 1-year conformity grace period, are generally the same asthose for metropolitan areas. MPOs and any adjacent donut areas must continue to meet conformity requirements in nonattainment and maintenance areas

49For the purposes oftransportation conformity,

a "donut" area is the geographic area outside a metropolitan planningarea boundary, but insidea designated nonattainment ormaintenance area boundary that includes anMPO (40 CFR93.101). for the 1997 ozone NAAQS during the grace period, in addition to any other applicable standards. If,atthe end of the grace period, the MPO and the DOT have not made a transportation plan and TIP conformity determination for the relevant pollutant and standard, the area would be in a conformity "lapse." During a conformity lapse, only certain projects can receive additional federal funding or approvals to proceed. The practical impact ofa conformity lapse will vary from area to area.

Isolated rural nonattainment and maintenance areas are areas that do not contain or are notpart ofan MPO (40 CFR 93.101). Conformity requirements for isolated rural nonattainment and maintenance areas can be found at 40 CFR 93.109(g). An isolated rural area would be required tomake a conformity determination only at the point when a

new transportation project needs funding or approval. This point may

occur significantly after the 1-year grace period has ended. Seethe EPA's July 1, 2004, final rule for furtherbackground

on how the EPAhas implemented this conformity grace period for the 1997

ozone NAAQS in metropolitan, donut and isolated rural areas (69 FR 40008- 40014). 50

5.What flexibilities exist for isolated rural areas?

As discussed previously in this proposal, for transportation conformity purposes, isolated rural nonattainment andmaintenance areas are areas that do
not contain or are not part ofan MPO (40 CFR 93.101). In general, ozone nonattainment and maintenance areas with populations ofless than 50,000 would be considered to be isolated rural

areas for transportation conformity purposes because the DOT only requires

an MPO tobe established when an area'spopulation exceeds 50,000.

The Transportation Conformity Rule contains a number offlexibilities that applyto isolated rural areas. As discussed previously, they are not required to determine conformity by the end ofthe 1-year grace period that applies for new nonattainment areas, since isolated rural areas do not have MPOs and do not have transportation plans that are subject to the requirements to demonstrate conformity

on aperiodic basis. Isolatedrural areas

are only required to demonstrate conformity when a non-exempt Federal Highway Administration or Federal

50 Also, see the EPA's transportation conformity
Web site for more information, including EPA's "Transportation Conformity Guidance for 2008 Ozone NAAQS Nonattainment Areas" at: www.epa.gov/otaq/statesresources/transconf/ 2008naaqs.htm. 

### 34196Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

Transit Administration project in the nonattainment or maintenance area requires funding or approval. Experience has shown that isolated rural areas have few projects that require atransportation conformity determination. Another available flexibility is thatisolated rural areas may choose from several alternative conformity tests thatmay be usedfor analysis years beyond the last year for which the SIP has established a motor vehicle emissions budget. These alternative tests are described in 40 CFR 93.109(g)(2)(ii)(A)-(C). We also note that since these areas do nothave transportation plans or TIPs, they would

never experience a conformity lapse.

6. Does transportation conformity apply for the 1997 ozone NAAQS once that standard isrevoked?

The CAA onlyrequires transportation conformity in areas that are designated nonattainment or maintenance for a given pollutant and standard. Therefore, transportation conformity would no longer apply for purposes ofthe 1997

ozone NAAQS as ofthe time that standard (and thus an area's designation for that standard) is revoked. In other words, existing 1997 ozone NAAQS nonattainment and maintenance areas, regardless oftheir designation for the 2008 ozone NAAQS, would no longer be required to demonstrate transportation conformity for the 1997 ozone NAAQS afterthe 1997 ozone NAAQS isrevoked. The EPArevoked the 1997 ozone NAAQS for transportation conformity
purposes in the Classifications Rule for the 2008 ozone NAAQS. The revocation will become effective onJuly 20, 2013, 1year after the effective date of designations for the 2008 ozone NAAQS. Under our current Transportation Conformity Rule, the latest approved or adequate emission budgets for a previous ozone NAAQS (i.e., the 1997 orthe 1-hour ozone NAAQS) would continue to be used in conformity determinations for the 2008

ozone NAAQS until emission budgets

are established and found adequate or

are approved for the 2008 ozone NAAQS. 77 FR 14981-2. 7.What impact willthe implementation ofthe 2008 ozone NAAQS have on a state's Transportation Conformity SIP?

Since we are not proposing to make revisions to our Transportation Conformity Rule in this proposal, states with previously approved Transportation Conformity SIPs should
not need torevise those SIPs, unless they needto do so to ensure that existing state regulations apply in the appropriate newly designated areas. However, ifthis isthe first timethat transportation conformity will apply in

a state, such a state isrequired to submit

a SIP revision thatcovers the three specific transportation conformity requirements that are delineated in CAA section 176(c)(4)(E). These specific requirements are consultation procedures and written commitments to control or mitigation measures associated with conformity determinations for transportation plans, TIPs or projects. 40 CFR 51.390. Additional information and guidance

can be found in EPA's "Guidance for Developing Transportation Conformity State Implementation Plans" (http:// www.epa.gov/otaq/stateresources/ transconf/policy/420b09001 .pdj).

G. What requirements forgeneral conformityapplyto the2008 ozone NAAQS?

1.What isthe purpose ofthe general conformity regulations?
Section 176(c) ofthe CAA requires thatbefore a federal entity takes an action affecting air quality in a state, it
must make a determination thatthe proposed action will not interfere with the SIP or the state's abilityto attain and maintain theNAAQS. In November 1993, the EPApromulgated two sets of regulations to implement section 176(c). One set,known as the Transportation Conformity Rules (described previously in this proposal), deals with approval and funding ofhighway and mass transit projects. The other set, known as the General Conformity Regulations, deals with all other federal activities. Besides ensuring thatfederal actions will not interfere with the SIP,the general conformity program also fosters communications between federal agencies and state/local air quality agencies, provides for public notification ofand access to federal
agency conformity determinations and allows for airquality review of individual federal actions. In 1995, Congress limited the application of section 176(c) to nonattainment and maintenance areas only.

2.How are federal actions in nonattainment or maintenance areas addressed?

Federal agencies must demonstrate that their new actions occurring in a nonattainment or maintenance area will conform with the SIP by showing they will not (1)cause or contribute to any

new violation ofany standard in respective nonattainment and maintenance areas; (2)interfere with provisions in the applicable SIP for maintenance ofany standard; (3) increase the frequency or severity ofany existing violation ofany standard; or (4) delay timely attainment ofany standard

orany required interim emissions reductions or other milestone. Information on what federal actions are covered and how to demonstrate conformity are found in 40 CFR part 93 subpart B. On March 24, 2010, former Administrator Lisa P. Jackson signed the General Conformity Final Rule "Revisions tothe General Conformity Regulations," which was published April 5, 2010 (75 FR 17254-17279). More information on the general conformity program is available at http://www.epa.gov/air/genconform/. 3.General Conformity for the 2008
Ozone NAAQS

a. What de minimis emission levels will apply for ozone precursors?

For the ozone precursors VOC and NOx, the existing deminimisemission levels that are set forth inthe EPA's General Conformity Regulations at 40 CFR 93.153(b)(1) continue to applyto the 2008 ozone NAAQS. Those levels

were based on the definition ofa major stationary source for NSR programs as established by sections 182, 183 and 302 ofthe CAA. Federal actions estimated to have an annual netemissions increase less than the deminimislevels are not required to demonstrate conformity under the General Conformity Regulations. The current deminimis levels are identified in Table 1.

TABLE 

### 1-De Minimis EMISSION LEVELS FOR VOC AND 

### NOx

Type of ozone area VOC NOx Typ

ofozoe aeatons/year tons/year

Extreme Nonattainment

................................................................................................................................................... 10 10 Severe Nonattainment

..................................................................................................................................................... 25 25 Serious Nonattainment

.................................................................................................................................................... 50 50 Other ozone Nonattainmentareas outside an ozone transport region

........................................................................... 100 100 

### 34197

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

TABLE 

### 1-De Minimis EMISSION LEVELS FOR VOC AND 

### NOx-Continued

Type of ozone area VOC NOx tons/year tons/year

Other ozone Nonattainment areas inside an ozone transport region

............................................................................. 50 100

b. What impact will implementation of the 2008 ozone NAAQS have on a state's General Conformity SIP?

We are not proposing to make revisions to our General Conformity Regulations in this proposal. States with approved General Conformity SIPs should not need to revise those SIPs, unless they needto do so to ensure the existing regulations apply in the appropriate newly designated areas.

c. Are there any other impacts related to general conformity based on implementation ofthe 2008 ozone NAAQS?

As noted above, we are not proposing any revisions to the General Conformity Regulations at this time. However, as

areas develop SIPs forthe 2008 ozone NAAQS, we recommend thatstate and local air quality agencies work with federal agencies with major facilities that are subject to the General Conformity Regulations (e.g., commercial airports, ports andlarge military bases) to establish an emission budget for those facilities in order to facilitate future conformity determinations. Such a budget couldbe used by federal agencies in determining conformity or identifying mitigation

measures ifthebudget level is included andidentified in the SIP.

One federal activity subject to general conformity requirements is prescribed burning. The EPA recognizes that prescribed fire in some instances must be employed for natural resource management purposes and prevention

orcontrol ofwildfires. The use of prescribed fire presents federal agencies,
states and tribes with the challenge to balance and integrate two public policy goals, (1)to allow fire to function, as nearly as possible, in itsnatural role in maintaining healthy wildland ecosystems; and (2)to protect public health and welfare by mitigating the impacts ofair pollutant emissions on air quality. The EPA encourages states and tribes to work with federal agencies to develop Smoke Management Programs (SMPs) anduse Basic Smoke Management Practices (BSMPs)that identify the responsibilities ofFederal Land Managers and state/tribal air quality managers to coordinate fire activities, minimize air pollutant emissions, manage smoke from prescribed fires for resource benefits,

ensure the safety ofburners andthose in the forest/urban interface and establish emergency action programs to mitigate the impacts on the public. To reduce administrative burden on federal agencies, the EPA's April 5, 2010 revisions, to its General Conformity Regulations (75 FR 17254) provided flexibilities in 40 CFR 93.153(h) and (i) for prescribed fires to meet general conformity requirements using SMPs and BSMP.

4. When would general conformity apply to areas designated nonattainment for the 2008 ozone NAAQS?

General conformity for the 2008 ozone NAAQS applies 1year after the effective date ofnonattainment designations for that standard. This isbecause CAA section 176(c)(6) (which applies to general conformity as well as to transportation conformity) provides a 1-
year grace period from the effective date ofinitial designations before general conformity determinations are required in areas newly designated nonattainment for a particular pollutant and standard.

5.How does the 1-year grace period apply to general conformity determinations?

As discussed previously in this proposal, CAA section 176(c)(6) applies
to both transportation and general conformity. Therefore, the EPA's April 2010 revisions toits the General Conformity Regulations (see 75 FR 17277, April 5, 2010) apply the grace period for the purposes ofgeneral conformity in the same manner as for transportation conformity.

6. How would the revocation ofthe 1997 ozone NAAQS affect general conformity requirements?

Our proposal to revoke the 1997

ozone NAAQS at the timethe final SIP Requirements Rule is published inthe Federal Register means that general conformity requirements under the 1997

ozone NAAQS would end after the 2008

ozone NAAQS general conformity requirements begin. H. Whataretherequirements for contingencymeasuresin the eventof failuretomeet amilestoneorto attain?

1.Background

Contingency measures are additional emissions control measures states must implement in the event a nonattainment

area fails to meet an RFP milestone or fails to attainby its attainment date. Under the CAA, nonattainment areas that are classified under subpart 2of part D oftitleI as Moderate, Serious, Severe or Extreme must include in their SIPs contingency measures consistent with section 172(c)(9), and those classified as Severe orhigher must include contingency measures that are also consistent with section 182(c)(9). These contingency measures must be fully adopted rules or measures that are ready for implementation quickly upon failure tomeet milestones or attain. Per EPA guidance, 51these measures should represent 1year's worth ofreductions,

orapproximately 3percent ofthe baseline emissions inventory. For additional background information on contingency measures, see68 FR 32802 (June 3, 2003) and 70 FR 71650 (November 29, 2005) (theproposed and final Phase 2Rule).

Guidance developed by the EPA in 1993 specified the content ofthe contingency measures. This guidance indicated thatfor areas classified Moderate and higher thathad completed the initial 15 percent VOC reductions, contingency measures could be a mixture ofVOC and NOx reductions. The guidance indicated that ofthe 3percent emissions reductions required, 0.3 percent had to be VOC emissions reductions, allowing the remaining 2.7 percent of emissions reductions tobe NOx emissions reductions.

2.Proposal

The EPA is proposing to interpret the contingency measure requirement for the 2008 ozone NAAQS in the same

manner it has interpreted that requirement for the 1-hour and 1997

ozone NAAQS, with the exception of the content ofthe contingency

51 August23, 1993 memorandum from MichaelH. Shapiro,Acting Assistant Administrator forAir and Radiation, to Regional Air Directors, "Guidance on Issues Related to 15 Percent Rate-of-Progress Plans." 

### 34198

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

measures, as discussedbelow. The EPA is proposing thatthe contingency

measures required for Moderate and above areas under CAA sections 172(c)(9) and 182(c)(9) must provide for the implementation of specific measures ifthe area failsto meet any applicable milestone. These measures mustbe submitted for approval into the SIP as adopted measures that wouldtake effect without further rulemaking actionby the state or the Administrator upon a determination that an area failed to attain ormeet the applicable milestone. Contingency measures should represent 1year's worth ofprogress for the nonattainment area, which wouldbe achieved while the area isrevising its plan. Where appropriate, federal

measures providing ongoing reductions into the future can be used as contingency measures. Innovative

measures such as energy efficiency programs or renewable energy programs that meetthe requirements ofCAA section 172(c)(9), as well as section 182(c)(9) for areas classified as Serious

orhigher, can alsobe used as contingency measures.

Regarding content ofthe 1year's worth ofemissions covered by the contingency measures, theEPA believes that prior contingency measure guidance specifying a minimum of0.3 percent ofthe emission reductions (i.e., one-tenth ofthe total 3percent emission reduction requirement) mustbe from VOCs is no longer necessary. The EPA is proposing thatfor Moderate and above areas that have completed the initial 15 percent VOC reduction required byCAA section 182(b)(1)(A)(i), the 3percent emissions reductions of the contingency measures maybe based entirely on NOx controls ifthatis what the state's analyses have demonstrated would be most effective in bringing the

area into attainment. There is no minimum VOC requirement.

We are soliciting comment on a contingency measure issue for nonattainment areas classified as Extreme, based on past state experience developing control plans for Extreme

areas. The CAA in section 182(e)(5) allows theEPA to approve an Extreme

area attainment plan thatrelies, inpart,

onthe future development ofnew control technologies or improvements of existing control technologies. This discretion is available as long asthe
state has demonstrated that: all reasonably available control measures, including RACT, havebeen included in the plan; the area's RFP demonstration during the first 10 years after designation does not rely on anticipated future technologies; and the state has submitted enforceable commitments to develop and adopt contingency

measures in the event that anticipated future technologies do not achieve planned reductions.

Ifan Extreme area qualifies for the discretion authorized by section 182(e)(5), itcould be argued thatitis unreasonable toexpect the state to provide for the contingency measures required by sections 172(c)(9) and 182(c)(9). Indeed, it ishard to know how an area whose attainment SIP can include measures that are not fully developed wouldbe able to identify contingency measures that are more specific. And while the CAA does not limit these measures to "feasible"
measures, we do not believe that such

areas shouldbe required to adopt unreasonable or draconian measures when all reasonable candidate contingency measures will already have been employed in theplan to meet the RACM and RFP requirements. In this

case it couldbe argued thatthe section 182(e)(5) contingency measure provision is the only reasonable way to meet the section 172(c)(9) and 182(c)(9) contingency measure requirements. Accordingly, the EPA is soliciting
comments on how Extreme areas that

can demonstrate theyhave implemented all feasible measures for purposes of their RFP SIPs and their RACM analyses

can legally address CAA contingency

measure requirements.

3.Additional Guidance for States That Use a Federal Measure as a Contingency Measure

The EPAhas a long-standing practice ofallowing federal measures tobe used

as contingency measures as long as they provide emissions reductions in the relevant years in excess ofthose needed for attainment or RFP. The EPAhas interpreted this policy as applying to federal measures that have alreadybeen adopted, which would include emissions reductions from fleetturnover to lower emitting on-road vehicles and non-road equipment such as on-road vehicles certified to Tier 2light-duty vehicle emission standards. 52The EPA has approved the use offederal

measures to meet contingency measure

52Fleet turnover is the change inmodel year composition ofthe local motor vehicle fleet. The composition ofthe motor vehicle fleet changes as

new vehicles enter the fleet and old vehicles are removed. Generally, this results in a decrease in fleet average NOx and VOC emissions each year as older model year vehicles certified to less stringent emission standards leave the fleet and arereplaced by newer vehicles certified to more stringent standards. The emission impacts offleet turnover outside ofCalifornia arecurrently calculated using EPA's MOVES emission factor model. 75 FR 9411, March 2, 2010. in California these emissions impacts are currently calculated using EMFAC2007. requirements in several EPA actions approving 1-hour and 8-hour ozone SIPs. (62 FR 15844, April 3, 1997), (62 FR 66279, December 18, 1997), (66 FR 30811, June 8, 2001), (66 FR 586 and 66 FR 634, January 3, 2001) (74 FR 1903, January 14, 2009). We plan to continue
to allow areas to use future reductions from promulgated federal measures as contingency measures for the 2008

ozone NAAQS, consistent with our practice forboth the 1-hour and 1997

ozone NAAQS.

States using on-road motorvehicle fleet turnover as a contingency measure should establish and submit, as part of the SIP containing the contingency
measure, motorvehicle emissions budgets (MVEBs) consistentwith the

use ofon-road fleetturnover as a contingency measure. Such budgets would help to ensure thatthe emissions reductions attributed to the on-road fleet
turnover contingency measure are actually available in the event thatthe contingency measure is triggered and would be available to serve the purpose intended by the SIP. Forexample, ifan

area isrequired to attain the 2008 ozone NAAQS in 2018 andthe SIP includes VOC and NOx emissions reductions resulting from on-road fleet turnover as

a contingency measure in the eventthat the area fails to attainby 2018, the SIP for that area should include VOC and NOx MVEBs for 2019 (theyear after the attainment date) that are consistent with the use ofthe on-road fleetturnover contingency measure. Having such budgets would help toensure that reductions from a fleet turnover contingency measure would be surplus and available for the SIP in the event that contingency measures are triggered.

L Howdo theNSR requirementsapply forthe2008 ozoneNAAQS?

1.NSR Requirements for the 2008 Ozone NAAQS

The NSR programs contained in parts C and D oftitle I ofthe CAA are preconstruction review and permitting programs applicable to new or modified major stationary sources ofair pollutants regulated under the CAA. In attainment and unclassifiable areas outside the OTR, the requirements under part C apply under the PSD program. In nonattainment areas and throughout the OTR, the program is implemented under therequirements of part D, under the nonattainment NSR program. Collectively, we commonly refer to the PSD and nonattainment NSR
programs together as the "major NSR programs."

The regulations for the major NSR
programs are contained in 40 CFR 

### 34199

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

51.166 and 52.21 for PSD, and 51.165, 52.24 andpart 51, Appendix S for nonattainment NSR. Among other things, in unclassifiable and attainment

areas outside ofthe OTR,the PSD program requires a new major source, or

amajor modification to an existing
source, to install best available control technology (BACT) and conduct an air quality impact analysis, including an analysis ofpotential impacts on Class I

areas (see CAA sections 162, 165(a)(3), 165(a)(4), 165(a)(5) and 165(d)).

Section 165(a)(3) ofthe CAA provides that in order to obtain a PSD permit the

owner or operator ofa proposed facility must, among other things, demonstrate that "emissions from construction or operation of such facility will not cause,

orcontribute to, air pollution in excess ofany

. . . national ambient air quality standard in any air controlregion." The EPA has generally interpreted this requirement to include any NAAQS that is in effect at the time a permit is issued.53 See,e.g., 73FR 28321, 28324, 28340 (May 16, 2008); Memorandum from Stephen D. Page, Director, Office of Air Quality Planning &Standards, "Applicability ofthe Federal Prevention ofSignificant Deterioration Permit Requirements toNew and Revised National Ambient Air Quality Standards" (April 1, 2010). Accordingly, since the May 27, 2008, effective date of the 2008 ozone NAAQS, permit applications for new major stationary

sources and major modifications have been subjected to the PSD program requirements for ozone under two sets ofcircumstances: first,prior to the designation ofareas based onthe 2008

ozone NAAQS, sources locating in areas designated attainment or unclassifiable for the 1997 ozone NAAQS; and second,

on and after the July 20, 2012 effective date ofarea designations forthe 2008

ozone NAAQS, sources locating in areas designated as attainment or unclassifiable forboth the 1997 and 2008 ozone NAAQS. In all cases, the permit applicants must, among other things, demonstrate that the proposed project's emissions increase willnot

cause or contribute to a violation ofthe 2008 ozone NAAQS.

For purposes ofdetermining individual source impacts withrespect to the 2008 ozone NAAQS, PSD permit applicants and permitting authorities

53 However, the EPA has alsorecognized that it has discretion to grandfather, under appropriate circumstances, permit applications that are pending
at the time a new or revised NAAQS comes into effect from the requirement to demonstrate that a major new source or modification does not cause

or contribute to a violation ofa new orrevised NAAQS. Since the NAAQS has been in effect since 2008, the EPA does notbelieve anygrandfathering is necessary and proposes no such action here. should continue to follow the current practice described in Appendix Wto 40 CFR part 51, which isto consultwith the applicable EPA regional office to determine the appropriate means of addressing suchimpacts. 40 CFR part 51, App. W, §5.2.1(c). Although those applicants must demonstrate that the proposed source or modification will
not cause or contribute to a violation of the 2008 ozone NAAQS, that demonstration does not necessarily require the permit applicants to perform

new air quality modeling. See 40 CFR 51.166(k)(1) and 52.21(k)(1) (requiring

source impact analysis); see also40 CFR part 51, App. W, §5.2.1(c) (explaining that the choice ofmethods to assess the impact ofan individual source on the

ozone NAAQS depends on thenature of the source and its emissions, andthat appropriate methods are determined in consultation with theEPA regional office on a case-by-case basis). As appropriate, after consultation with the applicable EPAregional office, the demonstration canbe made using modeling performed previously for air quality planning purposes or with other forms ofqualitative or quantitative analysis, as has generally been the case in past permits. The adoption ofthe 2008 ozone NAAQS does not change that approach.

Following the July 20, 2012, effective date ofarea designations and classifications for the 2008 ozone NAAQS, and in keepingwith the general policythat the permit issued to

a major new source or major modification must satisfy the applicable permit requirements in effect as ofthe date ofpermit issuance, the requirements tobe satisfiedby the permit applicant in an area designated nonattainment for the 2008 ozone NAAQS will have depended onthe area's highest nonattainment classification, whether for the 2008

ozone NAAQS or a previous ozone NAAQS for which the area remains nonattainment. See section IV ofthis proposal for a more detailed description ofanti-backsliding requirements. Accordingly, some pending permitsthat

were originally being reviewed under the PSD requirements but not yetissued

were to have been (ormay need to be) revised to adequately reflect the area's

new status as nonattainment for the 2008 ozone NAAQS. For example, ifan

area designated as attainment or unclassifiable for the 1997 ozone NAAQS was designated as nonattainment for the 2008 ozone NAAQS, any permit issued on or after the July 20, 2012, effective date ofthe

new nonattainment designation (and classification) must satisfy the requirements for nonattainment NSR. In

an area that was already designated as nonattainment for the 1997 ozone NAAQS at the time itwas designated nonattainment for the 2008 ozone NAAQS, the source would need to

ensure that itspermit application applies the appropriate nonattainment NSR requirements (e.g., the applicable major source thresholds and offsets) consistent with the area's new classification under the 2008 ozone NAAQS as reflected in the SIP and the final NSR anti-backsliding provisions for the 2008 ozone NAAQS, as discussed in section IV.

Some states may already have had in place a nonattainment NSR program consistent with the applicable part D requirements oftheAct that canbe directly applied to areas designated nonattainment for the 2008 ozone NAAQS and that were not designated nonattainment for the 1997 ozone NAAQS as ofthe July 20, 2012, effective date ofthe designations for the 2008

ozone NAAQS. Fornonattainment areas in states with SIPs containing a generic requirement to issue nonattainment NSR permits in areas designated as nonattainment, those permit requirements for the 2008 ozone NAAQS became automatically effective
upon designation.

For a newly designated 2008 ozone nonattainment area in a state with a SIP that specifically lists the areas in which nonattainment NSR requirements under part D apply, or in a state which currently has no approved nonattainment NSR program, there will be an interim period between theJuly 20, 2012, designation date and the date when the state amends its SIP either to list any new nonattainment area(s) or to include a part D plan. Duringthis interim period, nonattainment NSR requirements are governed by the EPA's Emission Offset Interpretative Ruling codified in appendix S to 40 CFR part 51. In general, appendix S requires new
ormodified major sources in nonattainment areas to meet the lowest achievable emission rate (LAER) and obtain sufficient offsetting emissions reductions to assure thatthe new or modified major sources will not interfere with the area's progress toward attainment. Readers should refer to 40 CFR part 51, appendix S for a complete understanding ofthese and other appendix S permitting requirements.

Section 110(a)(2)(C) ofthe CAA establishes a general duty on the state to include a program in its SIP that regulates the modification and construction ofany stationary source as necessary to assure thatNAAQS are 34200

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

achieved. This general duty exists during all periods, including the period between the effective date ofa new nonattainment area designation and the date when a state has an EPA-approved nonattainment NSR program satisfying the applicable part D requirements. Although section 110(a)(2)(C) does not contain specific requirements a state must follow for issuing major source permits during the interimperiod, the EPA's regulations at 40 CFR 52.24(k) require the state to follow 40 CFR part 51, appendix S, during this time. The availability ofthe waiverprovision in section VI ofappendix S is limited by the court's ruling inNRDCv. EPA, 571 F.3d 1245 (D.C. Cir. 2009). In the EPA's Phase 2Rule forthe 1997 ozone NAAQS, the EPA revised section 52.24(k)to eliminate language stating that ifa nonattainment area did not have an approved nonattainment NSR program within 18 months after designation, a construction ban would apply. 70 FR 71612 (November 29, 2005). The effect was to extend the applicability ofappendix S, including the section VI waiver provision, tocover the full period from the date of designation to the date on which the EPA approved the nonattainment NSR SIP.

InNRDCv. EPA (571 F.3d 1245 (D.C. Cir. 2009)), the court considered the petitioners' general objections tothe NSR waiver provision in sectionVI of appendix S, as well asthe EPA's elimination ofthe 18-month limit onthe applicability ofthat section. The court dismissedthe petitioners' general objections as "untimely" but vacated "the elimination ofthe 18-month time limit for NSR waivers under Appendix S" onthe ground thatitviolated section 172(e) ofthe CAA (571 F.3d at 1276). The EPA intends torevise section 52.24(k)to reflect the court's vacatur of the extension ofthe 18-month timelimit for sectionVI ofappendix S. Inthe meantime, as a result ofthe vacatur, no sectionVI waivers maybe granted beyond 18 months from the date of designation. 2.Facilitating New Source Growth in
Nonattainment Areas

a. Offset Banks

The Act requires new and modified major sources in nonattainment areas to

secure emissions reductions (i.e., "offsets") to compensate for the proposed emissions increase. States can help facilitate continued economic development in a nonattainment area by establishing offset banks or registries. Suchbanks orregistries can help new

ormodified major stationary source owners meet offset requirements by streamlining identification and access to available emissions reductions. Several
states have established offsetbanks to help ensure a consistent method for generating and transferring NOx and VOC offsets.54 Offsets are generated by emissions reductions thatmeet specific creditability criteria set forth by EPA regulations. 5540 CFR 51.165(3)(ii)(A)- (J).

b. Interpollutant Offset Substitution

States can make iteasier fornew or modified major sources to satisfy the offset requirements in an area by establishing interpollutant offset substitution provisions. Such provisions
create additional flexibility in meeting offset requirements by allowing NOx emissions reductions to satisfy VOC offset requirements and vice versa. The appropriate exchange rate for substitution is determined by the state for each area consistent with the attainment needs ofthe area and must be approved bythe EPA.

c. Economic Development Zones
Section 173(a)(1)(B) ofthe CAA authorizes theAdministrator, in consultation with the Secretary of Housing and Urban Development (HUD), toidentify areas within nonattainment areas as "zone(s) to which economic development shouldbe targeted." In these zones, states are able
to assist new ormodified major sources in meeting thenonattainment area offset requirement by setting aside growth "allowances" that serve as a pool of offsets to be tappedby such sources. The advantage ofcreating an offset pool specifically for a CAA economic development zone (EDZ) relative to relying on a traditional offsetbank is that the offsets can be fully owned and controlled by the state, and the offsets do not need tobe obtained fromfacilityspecific emissions reductions or shutdowns in the nonattainment area. Accordingly, this provision is especially well suited to address the needs ofthe manufacturing sector and small businesses. The EPA is willing to work with HUD and states to identify potential areas.

In the context ofthe 1997 ozone NAAQS, theEPA previously worked with Arkansas officials to create a CAA

54 See, for example, emission reduction credit banking programs in Ohio (OAC Chapter 3745- 1111) and California (H&SC Section 40709).

55 See theEPA's "Improving AirQuality with Economic Incentive Programs" document at http://www.epa.govlregion 07airlnsrlnsrmemosl eipfin.pdf.Foradditional memoranda and guidance documents, seehttp://www.epa.govlregion7/airl nsr/nsrindex.htm. EDZ in Crittenden County, which is part oftheMemphis ozone nonattainment

area (see 71 FR 8857, February 21, 2006). The EPA identified Crittenden County as a CAAEDZ after consultation with the Secretary ofHUDto review qualification information associated with HUD-implemented economic development programs. We also evaluated socio-economic statistics for Crittenden County in comparison with similar information for other U.S. counties, and we reviewed air quality modeling ofthe Memphis nonattainment area providedby the Arkansas Department ofEnvironmental Quality demonstrating that a specified growth allowance pool was consistent with timely attainment ofthe 1997

ozone NAAQS. After reviewing this information, the Administrator determined that the EDZ designation would help the citizens ofCrittenden County withoutjeopardizing the clean air goals ofthe Greater Memphis area. The Memphis area has since attained the 1997 ozone NAAQS and the Arkansas portion ofthe Memphis nonattainment area was redesignated to attainment on March 24, 2010. j. Whataretheemissioninventoryand
emissionstatementrequirements?

1.Emission Inventory Requirements

Emission inventories are critical for the efforts of state, local and federal agencies to attain and maintain the NAAQS that theEPA has established for criteria pollutants, including ozone. Pursuant to section 110(a)(2)(F)(ii) ofthe CAA, states must submit emission inventories containing information regarding the current emissions of criteria pollutants and their precursors. The EPA first codified regulations to implement CAA section 110(a)(2)(F)(ii) in 40 CFR part 51, subpart Q in 1979 and amended them in 1987.

The 1990 CAA Amendments established new emission inventory requirements applicable tocertain areas that were designated nonattainment for certain pollutants. First, CAA section 182(a)(1) requires that Marginal and above ozone nonattainment areas submita base year emission inventory for the nonattainment area 2 years after designation as nonattainment in 1990. For areas designated nonattainment for the 2008 ozone NAAQS, we are proposing that the base year emission inventory submission be due no later than 2years after the effective date of designation, or alternatively, 30 months following the effective date of designation under the consolidated SIP submittal option described in section III.A ofthis preamble. 

### 34201

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

Second, CAA section 182(a)(3)(A) requires that states submit periodic emission inventories every 3years after the initial base year inventory for Marginal and above ozone nonattainment areas. The periodic inventory must include emissions of VOC and NON for point, nonpoint and mobile sources (on-road and non-road). OnDecember 4, 2008, the EPA promulgated the AERR rule (40 CFR 51, subpart A). The AERR requires states to submitcomprehensive statewide 3-year cycle emission inventories (2008, 2011, 2014, etc.) regardless ofan area's attainment status. The EPA thinks it would be appropriate for states with periodic inventory obligations under 182(a)(3)(A) to rely on their 3-year cycle inventory as described in the AERRto satisfytheir 182(a)(3)(A) periodic inventory obligation. In cases where a state will use its 3-year cycle inventory
to meetits 182(a)(3)(A) inventory obligation, we are further proposing that the emissions reporting requirements of the AERRbe applied to determine all of the data elements required for such inventories. (see,e.g. Tables 2A, 2B, 2C and 2D of40 CFR part 51, subpart A, Appendix A).

For all inventories that are used in developing RFP plans or attainment demonstrations, mobile source emissions shouldbe estimated using the latest emissions models, data and planning assumptions. The latest approved models shouldbe used to estimate emissions from on-road and non-road sources, in combination with the latest available estimates ofVMT, vehicle population, and/or equipment activity. States are advised to check the EPA Web pages for the mobile source models and to consult with the EPA Office ofTransportation and Air Quality andtheir regional office to determine the versions ofmodels to use fortheir SIPs for the 2008 ozone NAAQS.

Currently, themost recently approved model for estimating on-road emissions in states outside ofCalifornia is MOVES2010 56 which initially was approved for use in SIPs on March 2, 2010 (75 FR 9411). 5 7 The EPA has subsequently released two minor updates to MOVES2010, MOVES2010a andMOVES2010b that are also approved for use in SIPs. The on-road

56 MOVES2010 refers to the initial version ofthe
model that was approved for use in SIPs and regional transportation conformity analyses on March 2, 2010, as well as subsequent minor upgrades to the model such as MOVES2010a and MOVES2010b.

57EMFAC is the model used to estimate on-road mobile source emissions in California. The latest version ofthe model that hasbeen approved for SIP and conformity purposes is EMFAC2011. See 78 FR
14533 (March 6, 2013). emissions canbe generated either through inventory mode (viaMOVES) or through emission rates mode (via SMOKE-MOVES 58). Guidance onusing MOVES as well as information on the
current version ofMOVES thathas been approved for use in SIPs and transportation conformity is available at: http://www.epa.gov/otaq/modelsl moves/index.htm.

Emissions from non-road equipment should be estimated with the latest official version ofthe EPA's NONROAD model, and other appropriate methods for estimating emissions from sources not covered by these models. Links to Federal Register notices and policy guidance memos on the latest approved versions ofMOVES and NONROAD can be found at http://www.epa.gov/otaql models.htm. States should consult the guidance document "Emission Inventory Guidance for Implementation ofOzone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations," EPA-454/R-05-001 (updatedNovember 2005) and submit inventories that are appropriate for each nonattainment area and consistent with this guidance.

As indicated above, some inventories submitted to meetthe requirements of section 182(a)(1) and 182(a)(3)(A) may be used in the development ofRFP plans and/or attainment demonstrations. As such, the EPA requires the methodologies used to develop these inventories to be clearly documented and the inventories themselves to be subject to public participation requirements and formal approval/disapproval by the EPA.5 9

In guidance titled, "Public Hearing Requirements for 1990 Base-Year Emissions Inventories for Ozone and Carbon Monoxide Nonattainment Areas," September 29, 1992, the EPA set forth itsinterpretation ofa "de minimis" deferral ofthe public hearing requirement andthe requirement for the EPA to approve or disapprove certain emissions inventories under section

58For more information, seehttp://www.smokemodel.org/index.cfm.

59In comparison, the AERR emissions data are submitted by the states to the EPA, electronically via the Emission Inventory System to the National Emissions Inventory (NEI), without public review. The states submit AERR data to the NEI inventory 12 months after the NEI inventory year (i.e., calendar year 2014 NEI inventory data are submitted by December 31, 2015). The NEI process provides for the states to review the data as collected by the EPA before theEPA officially publishes the data. (Underthe current process, the EPA would intend to publish the data for the 2014 NEI in June of 2016, 6months after the AERR data is required to be submitted to the EPA.) 110(k).60 The EPA isproposing to follow this guidance in implementing the emissions inventory requirements under CAA sections 182(a)(1) and 182(a)(3)(A) for purposes ofthe 2008 ozone NAAQS. Under this approach, where emission inventories are used in the development ofan RFP plan or attainment demonstration, states can defer the public hearing on these inventories until the time the areas adopt and submittheir RFP plans and/or attainment demonstrations thatrely on suchinventories. The EPA wouldnot take action to approve or disapprove suchinventories until the state completes the state public participation process. Ifa state opts to submit a consolidated SIP submittal, this should
not be an issue.

2.Source Emission Statements

Section 182(a)(3)(B) ofthe CAA requires Marginal and above areas to submitan emissions statement within 2 years ofenactment ofthe CAA Amendments of 1990. Specifically it provides thatthe emission statement
must: ".

. . require that the owner or operator ofeach stationary source of oxides ofnitrogen or volatile organic compounds provide the state with a statement,in such form as the Administrator may prescribe (or an equivalent alternative developed by the state), for classes or categories of
sources, showing the actual emissions of oxides ofnitrogen and volatile organic compounds from that source. The first such statement shall be submitted within 3years after the date ofthe
enactment ofthe CAA Amendments of 1990. Subsequent statements shall be submitted atleast every year thereafter. The statement shall contain a certification thatthe information contained in the statement is accurate to the best knowledge oftheindividual certifying the statement."

We published guidance on source emission statements in a July 1992 memorandum titled, "Guidance onthe Implementation ofan Emission Statement Program." Amemorandum titled, "Emission Statement Requirements Under 8-hour Ozone NAAQS Implementation," dated March 14, 2006, clarified that the source emission statement requirement under the CAA was applicable to all areas designated nonattainment for the 1997

ozone NAAQS and classified as Marginal or higher under subpart 2,part D, title Iofthe CAA. This requirement similarly applies to all areas designated

60CAA section 110(k) lists the actions that the
EPA may take on SIP submissions, including approval and disapproval ofthe SIP. 

### 34202

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

nonattainment for the 2008 ozone NAAQS and classified asMarginal or higher under subpart 2.The EPA is proposing this SIP submittal be due 2
years after the effective date of designations or, alternatively, no later than 30 months after the effective date ofdesignations as part of a consolidated SIP submission as described previously in this proposal. Most areas thatneed an emission statement program already have one in place due to a nonattainment designation for an earlier

ozone NAAQS. Ifan area has a previously approved emission statement rule in force for the 1997 ozone NAAQS

orthe 1-hour ozone NAAQS thatcovers allportions ofthe nonattainment area for the 2008 ozone NAAQS, such rule shouldbe sufficient for purposes ofthe emissions statement requirement for the 2008 ozone NAAQS. The state should review the existing rule to ensure itis adequate and, ifitis, may rely on itto meet the emission statement requirement for the 2008 ozone NAAQS.

We note thatregardless ofwhether
states submit their emissions inventory
statements within 2years ofthe effective date ofdesignations, or within 30 months ofthe effective date of designations as part ofa consolidated SIP submission, this proposed rule will

ensure that, consistent with the intent of section 182(a)(3)(B), states will submit their first emission statements no later than 3years following the effective date ofdesignations for the 2008 NAAQS. We are soliciting comments on our interpretation ofthe emission statement requirements under section 182(a)(3)(B)

asthey would apply to areas designated nonattainment for the 2008 ozone NAAQS.

K. Whataretheambientmonitoring requirements?

Ozone monitoring data play an important role in designations, classifications, control strategy development and related implementation activities. The EPA's ambientmonitoring requirements are contained in 40 CFR part 58. On July 16, 2009, the EPAproposed revised rules for monitoring ambient ozone (74 FR 34525). The EPAproposed to modify minimum monitoring requirements in urban areas, add new minimum monitoring requirements in non-urban

areas and extend the length ofthe required ozone monitoring season in

some states. The schedule for finalizing any or all aspects ofthe ambient ozone monitoring proposal remains unclear at this time. There were no new monitoring requirements included in the 2008 ozone NAAQS rule. The Photochemical Assessment Monitoring Station (PAMS)program, required by CAA section 182(c)(1), collects enhanced ambient air
measurements in areas classified as Serious, Severe, or Extreme ozone nonattainment. Each PAMS area collects data for a targetlist ofvolatile organic compounds (VOCs), NOx, NOy, and
ozone, as well as surface and upper air meteorological measurements. Monitoring rule amendments published

on October 17, 2006, (71 FR 61236) reduced the minimum PAMS requirements. The revisions were intended torequire the retention ofthe minimum common PAMS network elements necessary to meetthe objectives ofevery PAMS program, while freeing up resources for states to tailor other features oftheir own PAMS networks to suit their specific data needs.

L.How canstatesqualify fora 1-year attainmentdeadlineextension?
Section 181(a)(5) ofthe CAA addresses the conditions under which

an area may be eligible for a 1-year extension ofits attainment date. Because that statutory provision was written for an exceedance-based standard, such as the 1-hour ozone NAAQS, theEPA established through the Phase 1Rule (40 CFR 51.907) an interpretation thatwould apply to a concentration-based standard, such as the 1997 ozone NAAQS.61 The 2008

ozone NAAQS is also a concentrationbased standard. Thus, we are proposing the same approach as set forth in section 51.907 for purposes ofthe 2008 ozone NAAQS. Under this approach, an area that fails to attain the 2008 ozone NAAQS by its attainment date would be eligible for the first 1-year extension if, for the attainment year,the area's 4th highest daily 8-hour average isat or below the level ofthe standard. The area would be eligible for the second 1-year extension ifthe area's 4thhighest daily 8-hour value, averaged over both the original attainment year and the first extension year, is at orbelow the level ofthe standard. Thus, to be eligible for the first 1-year extension, the4th highest daily 8-hour value for an area would need tobe at or below 0.075

6 1The exceedance based standard basically allowed the NAAQS level to be exceeded an average ofonly once a year over a 3-year period. (This is a generalization ofhow attainment is determined; the actual method considers other factors such as completeness ofthe data.) See 40 CFR, appendix H. In contrast, the concentration based standard allows the level ofthe 8-hour ozone NAAQS to be "exceeded" more than once a year

on average because the form (concentration-based) ofthat NAAQS is determined by averaging the 4th highest reading foreach year over a 3-year period. ppm. The area would be eligible for the second extension ifthe area's 4th highest daily 8-hour value, averaged

over both the original attainment year andthe first extension year, is less than

orequal to 0.075 ppm.
M.Howwill theEPAaddresstransport ofozone anditsprecursors forrural nonattainment areas,multi-state nonattainment areasandinternational transport?

1.Rural Transport Areas (RTAs)

Section 182(h) ofthe CAA recognizes that ozone standard violations in some rural areas may be almost entirely attributable to emissions from outside the nonattainment area (i.e., from upwind areas). That sectionprovides that an area meeting certain criteria
may, at the Administrator's discretion, be treated as a "rural transport area." Under this classification, the area's

ozone implementation requirements are met ifthe area satisfies the requirements applicable to areas classified as Marginal. This means that the area does
not need to provide an attainment demonstration or adopt specific mandatory measures associated with higher classifications. The only requirements that would apply, regardless ofthe level ofozone air quality, would be nonattainment NSR,
atthe Marginal major source threshold and offset ratio, and conformity requirements associated with a nonattainment designation, as well as the emission inventory and source emission statement requirements. Because the area's nonattainment problem is primarily due to upwind

sources outside the control ofthe area, the consequences offailure to attain by the Marginal area deadline would not apply.

The EPA may determine an area is a rural transport area ifitmeets two statutory criteria. First, a nonattainment

area may onlybe a rural transport area ifit ".

. .does not include, and is not adjacent to, any part ofa Metropolitan Statistical Area or, where one exists, a Consolidated Metropolitan Statistical Area..." In addition, the EPA must determine that "sources ofVOC emissions (and,where the Administrator determines relevant, NOx emissions) within the area donot make

a significant contribution to the ozone concentrations measured in the area or in other areas." The metropolitan areas addressed in section 182(h) were only those withpopulation cores of50,000 or

more.

In 2000, OMB issued new standards for defining statistical areas (65 FR 82228; December 27, 2000). The new 

### 34203Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

statistical area standards supersede and replace the previous 1990 standards for defining metropolitan areas, which the EPA used for the ozone designations and classifications for the 1-hour ozone NAAQS and the 1997 ozone NAAQS. In order tofacilitate comparison ofdata for MSAs over time, OMB retained the conceptual approach to defining metropolitan statistical areas based around population cores of50,000 or

more. These core areas are not necessarily confined to city limits, and
may include multiple counties or parts ofcounties. Because ofthe usefulness of the metropolitan area standards and dataproducts, OMB received requests that thenew standards take into account

more territory ofthe United States. In
response, OMB established a new category called micropolitan statistical
areas, which are defined as areas with

an urban core population ofat least 10,000 but less than 50,000. The new standards also establish the term Core Based Statistical Area (CBSA), which refers collectively to both metropolitan statistical areas and the new smaller micropolitan statistical areas, and the
term Combined Statistical Area (CSA), which consists oftwo or more adjacent CBSAs that are linkedby commuting patterns. (Seehttp://www.census.govpopulation/www/metroareas/ metrodef.html.)

In light ofthe changed OMB definitions, the EPAhas considered how the reference in section 182(h)to

areas adjacent to a "Metropolitan Statistical Area or, where one exists, a Consolidated Metropolitan Statistical Area" should be interpreted. We intend
to interpret this language to refer to OMB's current definition ofMSA. In other words, toqualify for arural transport classification, the nonattainment area's boundary could
not include or be adjacent to an OMBdefined MSA based on the Census Bureau's latestpopulation estimates. Under this approach, any nonattainment

area associated with a micropolitan area

orarea too sparsely populated tobe included in a census-defined statistical
area,based on Census Bureau population estimates, maybe able to qualify for a rural transport classification.

The EPAbelieves this interpretation ofCAA section 182(h)is consistent with the scope ofsection 182(h) as promulgated in 1990 and provides maximum flexibility for areas to qualify for this classification where appropriate. During the designations process forthe 2008 ozone NAAQS, no states identified
any rural transport areas. 2.Multi-State Nonattainment Areas
Each state within a multi-state ozone nonattainment area isresponsible for meeting all the requirements relevant to the given area. Section 182(j)(1)(a) requires that states should "take all reasonable steps to coordinate substantively and procedurally" on SIP development. States should coordinate

on topics such as determining the appropriate modeling domain, baseline year, projection years and meteorological episodes. In addition, they should coordinate modeling efforts and, as required by section 182(j)(1)(B), the attainment demonstration must be based on photochemical grid modeling

or another method determined by the EPA tobe at least as effective. Section 182(j)(2) recognizes thatin certain instances, one or more states within a multi-state nonattainment area may not submit an attainment plan by the required date, and thus interfering with the ability ofthe area as awhole
to demonstrate attainment. In such case, section 182(j) provides thateven though the area as a whole would not be able
to demonstrate attainment, the sanction provisions of section 179 shall not apply in the portion ofthe nonattainment area located in a state that submitted all other provisions ofan attainment plan and demonstrated that itcould have demonstrated attainment but for the failure ofthe other state to cooperate.

3.International Transport

a. Transboundary Transport

Most ozone air quality problems in the United States are due primarily to emission sources within the United States. However, domestic ozone air quality can alsobe affected by sources ofemissions located across United States borders in Canada and Mexico, and from other continents. These contributions to U.S. ozone concentrations from sources outside the United States can affect to varying degrees the ability of some areas to attain and maintain the 2008 ozone NAAQS and may play a largerrole in

ozone attainment demonstrations for future NAAQS.

There is strong evidence thatbaseline levels oftropospheric ozone have risen above pre-industrial levels in the northern hemisphere, and much ofthis increase can be directly attributed to human-caused emissions ofozone precursors. Our ability to fully characterize and quantify theimpact of

sources ofair pollution from otherparts ofNorth America (Canada and Mexico) has been steadily improving; however,

our ability to assess theimpacts ofair pollution from other continents on air quality in theU.S. is still developing. Some factors thataffect our current abilityto fully characterize international transboundary transport ofair pollution from other continents are uncertainties in foreign emissions inventories, incomplete understanding of atmospheric chemistry during transport andthe inability to distinguish longrange pollutant contributions from local andregional sources ofair pollution.

In order to address the challenging and complex problem oftheimpact of foreign emissions on air quality in the U.S., theEPA has been engaged in a number ofdifferent efforts both domestically and internationally. In 1991, the U.S. and Canada entered into

an agreement to address transboundary air pollution (U.S.-Canada Air Quality Agreement); and in 2000 an Ozone Annex was added to the agreement to establish commitments to reduce ozone andits precursors-NOx and VOCs. Under this agreement, significant progress hasbeen made inreducing transport ofozone and itsprecursors

across the U.S.-Canada border. Similarly, the U.S. hasbeen working with Mexico in addressing the transboundary transport ofair pollution under the LaPaz Agreement (Cooperationfor the Protection and Improvement ofthe Environment in the Border Area) established in 1983.

In addition,the EPA, alongwith several other federal agencies, sponsored a National Academy of Sciences study to summarize the state of knowledge regarding the international flows ofair pollutants into and out of the U.S. and consider the impact of these flows on the achievement of environmental objectives related to air quality and pollutant deposition in the U.S. 62The study, completed in 2009, recommended a variety ofresearch initiatives, such as advanced "fingerprinting" techniques to better identify source-specific pollutant characteristics in order toenhance the understanding oflong-range transport of pollution. Moreover, the EPA co-chairs the Task Force on Hemispheric Transport ofAir Pollution under the Convention on Long-range Transboundary Air Pollution ofthe United Nations Economic Commission for Europe. The task force was established to develop a fuller understanding ofintercontinental transport ofair pollution in the northern hemisphere, and serves as aforum for international scientific communication

62 "Global Sources ofLocal Pollution: An
Assessment ofLong-Range Transport ofKey Air Pollutants to and from the United States." http:// www.nap.edu/catalog.php?record id=12743. 34204

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

and collaboration and as a bridge between the international research community andthe international air quality policy community. This task force concluded that methane is an important precursor totropospheric

ozone on global scales andthat decreasing methane emissions will, over several decades, decrease background

ozone levels and help mitigate climate change.

Methane has not been addressed as part ofozone attainment planning in the past because ofthe limited effect that local measures to control methane would have on local or regional ozone concentrations in the immediate time frame. Given thetemporal and spatial characteristics associated with methane and ozone, we continue to believe that it is inappropriate to require orrely on local methane emission reductions in

ozone SIPs. Through voluntary partnership programs focused on greenhouse gas reduction, the EPAhas worked with U.S. industries and state andlocal governments to promote costeffective opportunities for reducing methane emissions from the coal, natural gas, petroleum, landfill and agricultural industries. Building on these domestic programs and the international Methane to Markets Partnership, the United States has joined with other countries to launch the Global Methane Initiative to facilitate the reduction ofmethane emissions globally. These domestic and international efforts will helpmitigate climate change and decrease background ozone levels over the next several years and decades.

The EPA will continue to workwith

our domestic and international partners to better understand the extent and implications oftransboundary flows of air pollutants and, wherepossible, to mitigate their impact on U.S. domestic air quality.

b. The SIP Approval Process Under Section 179B for International Border Areas

Emissions from sources outside the United States that may contribute to violations ofthe 2008 ozone NAAQS in

an area designated as nonattainment may be addressed by section 179B ofthe CAA. This section allows the EPAto approve an attainment demonstration for anonattainment area if: (1)The attainment demonstration meets all other applicable requirements ofthe CAA; and (2)the submitting state can satisfactorily demonstrate that "butfor emissions emanating from outside ofthe United States," the area would attain andmaintain the ozone standard. The EPA isproposing that this couldinclude consideration ofany emissions from North American or intercontinental

sources. The EPAhas historically evaluated these "but for" demonstrations on a case-by-case basis, based on the individual circumstances, the classification ofthe area and the data provided by the submitting state. These data have included ambient air quality monitoring data, modeling scenarios, emissions inventory data and meteorological or satellite data. For

areas classified as Moderate and above, the modeling and other elements ofthe attainment demonstration must show timely attainment ofthe NAAQS but for the emissions from outside ofthe U.S. Section 179B does not,however, provide authority to exclude monitoring data influenced by international transport from regulatory determinations related to attainment and nonattainment. Thus, even ifthe EPA approves a section 179B "but for" demonstration for an area, the area would continue to be designated as nonattainment and subject tothe applicable requirements, including nonattainment new source review, conformity and other measures prescribed for nonattainment areas by the CAA. However, ifthe EPA approves

a "but for" demonstration for an area, the area would not be subject to reclassification for failure to attain byits attainment deadline and, ifsuch areas

were classified as Severe or Extreme, the section 185 fee program would not apply based on a failure to attain bythe attainment date.

Although monitored data cannot be excluded for a determination ofwhether

an area has attained based solely onthe fact the data are affected by emissions from outside the U.S., such data may be excluded from consideration ifthey

were significantly influenced by exceptional events. CAA section 319(b)(3). Where international transport meets the criteria contained inthe EPA's Exceptional Events Rule (40CFR 50.14), itcan be addressed by thatrule.

The EPAbelieves thatthe best approach for addressing the potential impacts ofinternational transport on nonattainment is for states to work with the EPA on a case-by-case basis to determine themost appropriate information and analytical methodsfor each area's unique situation. We will work with states that are developing plans pursuant to section 179B, and

ensure the states have the benefit ofthe EPA's developing understanding of international transport of ozone andits precursors. N. Howwill thesection 182(f)NOx provisionsbehandled?

1.Background

Section 182(f)ofthe CAA applies to

areas designated nonattainment for

ozone and classified as Serious and above under subpart 2ofpart D oftitle 1,and to areas in the OTR.It requires
states to apply the same requirements to major stationary sources ofNON as applyto major stationary sources of VOC under subpart 2. Specifically, this requirement applies toRACT and nonattainment NSR for major stationary

sources ofNON in these areas.63
However, while NON emissions are necessary for the formation ofozone in the lower atmosphere, a local decrease in NON emissions can, in some cases, increase local ozone concentrations. Thus, section 182(f) also allows a person
or a state to request an exemption from

or limitation on the application ofthe specified NON requirements ifspecific circumstances are met ("NON exemption"). Areas granted aNON exemption under section 182(f)may alsobe granted an exemption from certain requirements oftheEPA's motor vehicle I/M regulations and from certain federal requirements ofGeneral and Transportation Conformity.64 The EPA initially issued guidance onthe section 182(f)NON requirements in 1993.65 On January 14, 2005, the EPA issued an update to that guidance to address implementation ofthe 1997 ozone NAAQS.66

63See 57 FR 55622, November 25, 1992, "Nitrogen Oxides Supplement to the General Preamble."

64As stated inthe EPA's I/M rule (57 FR 52950;
November 5, 1992) and conformity rules (60 FR 57179, November 14, 1995 for transportation conformity and 58 FR 63214, November 30, 1993 for general conformity), certain NOxrequirements in thoserules do not apply where the EPA grants

an area-wide exemption undersection 182(f).

65In 1993 the EPA issued a guidance document
for application ofthe section 182(f)provisions with respect to the 1-hour ozone NAAQS. The document

was titled "Guideline for Determining the Applicability ofNitrogen Oxides Requirements under Section 182(f), from John S. Seitz, Director, Office ofAirQuality Planning and Standards, to the Regional Division Directors, December 16, 1993. The NOxexemption guidance was revised laterin "Section 182(f) Nitrogen Oxides (NOx)Exemptions Revised Process and Criteria," memorandum from John S. Seitz, Director, Office ofAir Quality and Standards, to the Regional Division directors, May 27, 1994; and "Section 182(f) Nitrogen Oxides (NOx)Exemptions-Revised Process and Criteria," memorandum from John S. Seitz, Director, Office of Air Quality and Standards, to the Regional Division Directors, February 8, 1995.

66Memorandum datedJanuary 14, 2005,
"Guidance on Limiting Nitrogen Oxides (NOx) Requirements Related to 8-Hour Ozone Implementation" from Stephen D. Page, Director, Office ofAirQuality Planning and Standards, to Air Directors, Regions I-X. 

### 34205

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

2.Proposal

We are not proposing any modifications to our previous interpretation ofthe NON RACT requirement for purposes of implementing the 2008 ozone NAAQS. Consistent with the approach taken in the 2005 updated guidance and the Phase 2Rule, we areproposing that a previously granted NON exemption (or waiver) under the 1-hour or 1997 ozone NAAQS would not apply for purposes ofimplementing the 2008 ozone NAAQS. A state would needto submit

anew request for an exemption thatis supported byanalyses specific to the 2008 ozone NAAQS and considers any relevant information developed after the 1-hour or 1997 ozone NAAQS waivers

were granted. As states evaluate whether to seek a NON waiver, the EPA encourages themto include consideration ofair quality effects that may extend beyond the designated nonattainment area. See,for example, the discussion in the Phase 2Rule, November 29, 2005, on page 71661 (70 FR at 71661-71662).

A SIP revision requesting aNON exemption for the 2008 ozone NAAQS
must contain adequate documentation that theprovisions of section 182(f) and

our regulations are met. The EPA has issued guidance on appropriate documentation regarding section 182(f) for application to the 8-hour ozone program. 67The EPAbelieves this guidance is sufficient to cover the 2008

ozone NAAQS.

0. EmissionsReductionBenefits of EnergyEfficiency/RenewableEnergy PoliciesandPrograms, Land Use PlanningandTravelEfficiency

1.Energy Efficiency/Renewable Energy Policies and Programs

Governments at all levels-local, state, tribal and federal-have been developing energy efficiency/renewable energy (EE/RE) policies andprograms to reduce demand for and production of fossil-fuel driven electric power. As of 2011, twenty-nine states (and Washington, DC) had adopted renewable portfolio standards (RPS) which require retail electricity providers
to supply a minimum percentage or amount ofretail demand with renewable resources, more than double the number ofstates in 2000.68 69

67 Memorandum datedJanuary 14, 2005,
"Guidance on Limiting Nitrogen Oxides (NOx) Requirements Related to 8-Hour Ozone Implementation" from Stephen D. Page, Director, Office ofAirQuality Planning and Standards, to Air Directors, Regions I-X.

68Formore information, seepresentations from
the 2011 National Summit on RPS at http:// Although the details ofeach RPS policy
vary, generally they are structured such that, initially, a relatively small percentage ofa state's electricity supply
must come from renewable sources, and

over time the percentage increases until

a state-specified target is achieved. For example, the State ofConnecticut requires that 4.5 percent ofelectricity

come from renewable sources beginning in 2005, and the target increases to 27 percent by 2020.70

Energy efficiency policies refer to a range oflaws, regulations, and public utility commission (PUC) orders aimed
at reducing energy demand through the

use ofmore energy efficient equipment, technologies, and practices. These policies canbe funded through ratepayer surcharges, federal funds (e.g., American Recovery and Reinvestment Act 71), state general funds, proceeds from pollution auctions such asthe Regional Greenhouse Gas Initiative 72 and/or any combination ofthe above. Examples ofenergy efficiency policies include:

* Minimum efficiency requirements for new homes andbuildings (building energy codes) or appliances (appliance standards).

* Requirements for utilities (orother program administrators) to deliver a specified amount ofenergy savingsby developing energy efficiency programs to increase market adoption ofenergy efficiency technologies and practices (i.e., energy efficiency resource standards (EERS), also known as Energy Efficiency Portfolio Standards (EEPS)). Some states have incorporated EERS to function alongside or as part oftheir RPS.

* Specified funding levels collected via ratepayer electric bills or other

sources and dedicated toimplementing energy efficiency programs (e.g., public benefits funds, air pollution allowance auction revenue).

EE/RE policies and programs can help reduce electricity generation from fossilfueled sources resulting in lower emissions ofNON (as well as other criteria pollutants, hazardous air pollutants and greenhouse gases) from power generation. Many renewable
energy sources such as wind, solar and hydro power have no associated NON

www.cleanenergystates.org/assets/Uploads/2011- BPS-Summit-Combined-Presentations-File.pdf.

69SeeDatabase ofCHPPolicies and Incentives (dCHPP) athttp://www.epa.govlchplpoliciesl database.html.

7 0http://www.dpuc.state.ct.uslelectric.nsfl $FormHenewableEnergyView?OpenForm&.

71For more information, go to: http:// www.recovery.gov/Pages/default.aspx.

72For more information, go to: http:// www.rggi.org/. and other emissions. Other renewable energy sources, such as landfill gas combustion used to power electrical generators, do produce some air emissions but generally less NON emissions than coal-fired EGUs. Energy efficiency is achieving the same or better level ofservice or performance with lower energy consumption. Examples include high-efficiency appliances; efficient lighting; highefficiency heating, ventilating and air conditioning systems or control modifications; efficientbuilding design; advanced electric motor drives; combined heat and power; andheat recovery systems.

The EPA encourages states to consider adopting EE/RE policies and programs to benefit nonattainment areas in their

own state, as well as to reduce the impact ofozone transport on downwind
states.In July 2012, the EPA made available the first version of clarifying guidance on the incorporation ofEE/RE

measures in SIPs. 73 Specifically, the EPA made available a document titled, "Roadmap for Incorporating Energy Efficiency/Renewable Energy Policies and Programs into State and Tribal Implementation Plans" toencourage state, tribal and local agencies to consider incorporating EE/RE policies and programs into SIPs/tribal implementation plans (TIPs). The manual is a "living" document, and it will be updated periodically as new information becomes available.

The manual describes four pathways for considering air pollution reductions from EE/RE policies and programs in SIPs and TIPs. They canbe included in the attainment year projectedbaseline, factored into a "weight ofevidence" attainment demonstration, incorporated

as emerging/voluntary measures, or adopted as control measures and modeled in the attainment demonstration. When reviewing air pollution reductions from EE/RE policies and programs for the purpose of SIPs and TIPs, itis important to consider how the EE/RE policies and
programs and their associated emission reductions best fitwithin one ormore ofthe four SIP pathways. Valid EE/RE policies and programs thatmeet the applicable requirements ofsection 182(c)(9) can also be used as contingency measures.

The EPA is providing additional assistance to state, tribal and local agencies, including tools for quantifying the emissions impacts ofEE/RE policies and programs, training and technical assistance, and energy savings information for state-level EEpolicies

73Seehttp://www.epa.govlairqualityleere.html. 

### 34206

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

andprograms. The EPA is also working with states on developing examples to illustrate howreductions from specific EE/RE policies and programs couldbe quantified and considered in their SIPs. The EPA encourages states to continue
to workwith each other and with the EPA to incorporate emission reductions from their EE/RE policies and programs into SIPs.

2.Land Use Planning

States may also wish to consider strategies that foster more efficient urban and regional development patterns as another effective long-term air pollution control measure. For example, land use strategies consistent with the principles endorsed by the HUD DOT EPA Sustainable Communities Partnership 74 can reduce mobile source emissions by providing a broader range oftransportation and housing choices. Strategies that achieve such results include: increased residential development in major employment centers, transit-oriented development, redevelopment of underutilized land in existing communities and making pedestrian and transit access key design features of

new communities. Specific activities that support such strategies include: changing local zoning codes to accommodate mixeduse development and more walkable neighborhoods;
greenway corridors; complete streets ordinances; increasing street connectivity; creating more flexible parking standards; transit station area planning; and funding or policy incentives to support redevelopment. EPA studies have concluded that development patterns thatenable people tolive closer to work, and that allow people to walk,bike or use transit, will reduce VMT, thereby decreasing automobile emissions and improving regional air quality. 75 Several studies conducted by metropolitan planning organizations have also found significant reductions in VMT associated with accommodating more growth though redevelopment in existing communities rather than greenfields development.

74Sustainable Communities Principles: 1. Provide

more transportation choices. 2. Promote equitable, affordable housing. 3. Enhance economic competitiveness. 4. Support existing communities. 5. Coordinate and leverage federal policies and
investments. 6. Value communities and neighborhoods. See http://www.epa.govl smartgrowth/partnership/index.html.

75"Our Built andNatural Environments" (EPA 231-R-01-002, January 2001). "Measuring the Air Quality and Transportation Impacts ofInfill Development" (EPA 231-R-07-001, November 2007). The EPAhas issued guidance onhow
to include emissions reductions from such growth strategies in SIPs. This guidance document, "Improving Air Quality Through Land Use Activities," is available at: http://www.epa.gov/otaql stateresources/policy/transp/lan duse/ rOlOOl.pdf.

The guidance provides communities experiencing air quality problems with the information they need to better understand the link between air quality, transportation and land use activities, and how certain landuse activities have the potential to help local areas meet and maintain healthy air quality.The document also includes methods to help communities account for the air quality benefits oftheir local land use activities in their air quality plans. The EPA will provide additional guidance as needed, and will continue to work with states on incorporating these types ofprograms into their SIPs.

3.Travel Efficiency

In addition toland use strategies,

areas should consider incorporating travel efficiency strategies in their SIPs. Travel efficiency strategies may include land use strategies, but also include new

or expanded mass transit options,
commuter strategies, system operations (e.g., eco-driving, ramp metering), pricing (e.g., parking taxes, congestion pricing, intercity tolls), speed limit restrictions and multimodal freight strategies.

In July 2009, the Urban Land Institute released a report titled, Moving Cooler: An Analysis ofTransportation Strategies forReducingGreenhouseGas Emissions, 7 6 which the EPA and the DOT helped to fund. The report analyzed thepotential levels of emissions reductions achievable from light-duty travel efficiency strategies. Moving Coolerincluded six different bundles ofstrategies to reflect different potential groups of strategies that could be implemented.

We believe that the "Low Cost" bundle ofmeasures represents the most appropriate combination of strategies for
states toconsider based on cost, likelihood of success and accuracy of the research results. This bundle of

measures includes the strategies listed above. We have conducted a preliminary national emissions modeling analysis usingthe data in the report and estimate thatbetween 2010 and 2020 the low cost bundle of

measures couldreduce NON and VOC

76Cambridge Systematics, Inc. (2009). Moving Cooler: An Analysis ofTransportation Strategies for Reducing Greenhouse Gas Emissions. UrbanLand Institute: Washington, DC (http://wvw.uli.org/). emissions between approximately 2and 5percent depending on how aggressively the strategies are implemented. Additional reductions are possible in later years.

TheMoving Coolerreport makes assumptions about the geographic scope for which each strategy couldbe implemented. For example, certain strategies like increased transit are dependent on high population density, while other strategies like telecommuting couldbe implemented in both urban and rural areas. The percent reductions for such measures would be larger in urban areas, where VMT reductions would be concentrated. The EPAbelieves that states should consider these types ofstrategies as they develop SIPs for the 2008 ozone NAAQS.

In March of2011, the EPA released
two documents that we believe will
prove to be useful to states that want to evaluate emissions reductions that may be available from travel efficiency strategies. The first document is titled, "Potential Changes in Emissions Due To Improvements In Travel Efficiency." 77 This report provides information on the effectiveness oftravel efficiency

measures for reducing emissions of NOx, VOCs andPM2. 5 atthe national scale. The report describes an approach that usesregionally derived travel model data and other travel activity information, and sketch-planning analysis to estimate potential emission reductions from urban areas ofvarying size and characteristics. The results are applied to other urban areas in the U.S. ofsimilar characteristic to estimate potential national emission reductions.

The second document is titled, "Transportation Control Measures: An Information Document for Developing andImplementing EmissionReduction Programs." 78 This document provides information on transportation control

measures that havebeen implemented

across the country for a variety of purposes, including reducing emissions related to criteria pollutants. The document describes the processes used
to develop and implement the strategies and, where available, their effectiveness.

P.Efforts ToEncourageaMultiPollutant ApproachWhen Developing 2008Ozone SIPs

1.In General

From a planning and resource perspective, the EPAbelieves thatit can

77EPA-420-R-11-003, March 2011, http:// epa.gov/otaq/stateresources/policy/420r1 1003.pdf.
7 8EPA-430-R-09-040, March 2011, http:// www.epa.gov/otaq/stateresources/policy/ 430rO9040.pdf. 

### 34207

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

be efficient for states to develop integrated control strategies that addresses multiple pollutants rather than separate strategies for each pollutant or NAAQS individually. An integrated air quality control strategy that reduces multiple pollutants can help ensure that reductions are efficiently achieved and produce the greatest overall air quality benefits. For example, we knowthat certain control

measures that reduce emissions ofthe

ozone precursors NOx and VOC, and thus reduce ambient ozone levels, can alsoresult in reduced emissions and ambient concentrations ofPM2. 5 79 and also canimprove visibility. Many VOCs

are also HAP, so an ozone control strategy may provide the additional benefit ofreducing airtoxics.We also know thatmany sources ofPM2.5 also emit toxic metals as particulates, so controlling directly emitted PM2.5 emissions from these sources would alsoreduce the emissions oftoxic metals. In addition, due to expected changes in meteorology resulting from climate change, the EPA encourages states to assess climate change and air pollution together and account for the potential effects ofclimate change in their multi-pollutant planning efforts.

In June 2007, the EPA's CAA Advisory Committee (CAAAC) recommended thatthe agency allow
states to integrate SIP requirements and other air quality goals into a comprehensive plan.80 The recommended plan would demonstrate attainment/maintenance ofmultiple NAAQS, accomplish sector-based reductions, realize riskreductions of HAPs andmake improvements in visibility. It could alsobe structured to integrate programs addressing landuse, transportation, energy and climate.

The EPAhas encouraged states to take

amulti-pollutant approach to managing air quality.81 Specifically, we have encouraged states to involve all stakeholders when planning to meet air quality standards and to provide a basic outline for how localjurisdiction(s) could address air pollutants in an integrated manner.

While the agency encourages states to develop multi-pollutant plans, we recognize that therequirement for the

79Fora list ofpotential control measures for PM2 .5precursors, seehttp://www.epa.gov/ airquality/particlepollution/measures/
pm controlmeasures tables verl.pdf.

80Recommendations to the Clean Air Act Advisory Committee: Phaseii,June 2007, http:// epa.govlairlcaaaclaqmlphase2finalrept2007.pdf.

81Memo from Stephen D. Page to Regional Air Division Directors, Aug. 10, 2005, "Consideration of Multiple Pollutants inControl Strategy Development." http://epa.gov/air/caaac/aqm/aqmpage-memo.pdf. EPA toreview and, as necessary, revise NAAQS every 5years, which cantrigger

new statutory SIP submission and attainment dates, aswell as the everevolving understanding ofpollutants and the myriad control programs that may be available toreduce emissions,

can sometimes make such efforts challenging. For example, under the
current law, the 2007 submission date for Regional Haze SIPs has already passed while the December 2012 submittal date for attainment demonstrations for the 2006 PM 2.5 NAAQS is more than 2years before the proposed submittal date for attainment demonstrations for the 2008 ozone NAAQS. Although it isthus notfeasible
to integrate fully the planning requirements for regional haze, the 2006 PM2 . 5NAAQS andthe 2008 ozone NAAQS, states could use common databases and modeling tools for all three programs and rely on similar control measures as appropriate. Furthermore, as states develop plans to meet the 2008 ozone NAAQS, they may wish to modify existing plans for other NAAQS or for regional haze as they consider strategies more comprehensively. However, it is important tonote that all the CAA mandated planning and program elements for individual standards must continue tobe met.We are specifically requesting comments on other approaches tointegrating the planning requirements for multiple NAAQS and other CAA programs that are promulgated at different times.

2.What isthe EPA doing beyond encouraging states to integrate their air quality planning activities to the extent feasible?

Ideally, an air quality management plan (AQMP) isa set ofpollution reduction strategies/planning activities for an area demonstrating: attainment/ maintenance ofone or more NAAQS; riskreductions from HAPs; improvements in visibility and ecosystem health; and integration of land use, transportation, energy and climate activities in the area. Three

areas in the country-North Carolina, New Yorkand the city ofSt. Louis (involvingboth Missouri and Illinois)- participated in an EPA-led pilot effort to develop multi-pollutant AQMPs. The pilots provided lessons regarding AQMP development that should prove useful to other areas interested in better integrating their air quality planning. The areas' initial AQMPs and other materials are available on the EPA's Web site. 82

3 2http://www.epa.govlairlaqmpl. Implementation ofthe 2008 ozone NAAQS provides an opportunity for
states to consider how to use a multipollutant approach from thebeginning oftheir planning process. We recommend that states and tribes wishing totake a comprehensive approach consider the following activities.

e Develop models for the attainment demonstration thatinclude previously implemented or planned measures to reduce ozone precursors, secondary fine particles, pollutants that contribute to regional haze and, where appropriate, air toxics and any potential negative impacts on ecosystems.

* Conduct an integrated assessment ofthe impact controls have on ambient levels ofozone, PM 2.5,regional haze and, where applicable, air toxics, greenhouse gases, ecosystem protection and environmental justice.

* Use common databases and analytical tools, where possible.

EPA isrequesting comment on what incentives or assistance we mightbe able to provide to encourage states to integrate their planning activities.

3.Multi-pollutant Assessments/Oneatmosphere Modeling

A multi-pollutant assessment, or oneatmosphere modeling, is conducted with a single air quality model thatis capable of simulating transport and formation ofmultiple pollutants simultaneously.83 For example, this type ofmodel can simulate formation and deposition involving pollutants associated with ozone, PM2. 5 and regional haze, and it can include algorithms simulating gas phase chemistry, aqueous phase chemistry, aerosol formation and acid deposition. This type ofmodel could alsoinclude the formation and deposition ofkey air toxics and the chemical interactions that

occur with these individual toxic species to produce ozone andPM2.5.

Multi-pollutant assessments are recommended for ozone attainment demonstrations because the formation andtransport ofozone is closely related
to the formation ofboth PM 2.5 and regional haze. There isoften a positive correlation between measured ozone and secondary particulate matter. Many ofthe same factors affecting concentrations ofozone also affect concentrations ofsecondary particulate
matter because similarities exist in

83Depending on the context, "multi-pollutant"

can be defined in different ways. In this context we

are defining multi-pollutant modeling as simultaneous modeling ofozone, PM2.5,key air toxics, and regional haze. Future multi-pollutant models mayinclude the abilityto model abroader
array ofairtoxics as well as greenhouse gases. 34208

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

sources ofprecursors for both pollutants. For example, emissions of NON may lead to formation ofnitrates, which affectboth ambient ozone and PM2.5levels and impairvisibility. Many VOCs (suchas toluene) are air toxics and may alsobe sources orprecursors forboth ozone and organic particles. In addition, the presence ofozone itself
may be an important factor affecting secondary particle formation.

Because ofthese relationships, models and data analysis intended to address ozone could be beneficial for

use in addressing PM2.5 andvisibility impairment. When performing a multipollutant assessment, themodeling should take into account previously implemented or planned measures to reduce ozone, PM2. 5 andregional haze. States that undertake multi-pollutant
assessments as part oftheir attainment demonstration should consider assessing the impact oftheir ozone strategies on PM2. 5 andvisibility impairment to ensure that optimal emission reduction strategies are developed for the three programs to the
extentpossible. This could facilitate addressing all ofthesepollutants in a

more cost effective manner.

States may also find itdesirable to

assess the impact ofozone, PM2
. 5 and/

or regional haze control strategies on toxic air pollutants regulated under the CAA or under state air toxic initiatives. Given the relationships that exist between air toxics and the formation of

ozone and PM2
. 5, states may find that controls can be selected to meet goals for ozone and/or PM2. 5 attainment as well as those of specific airtoxic programs. Q.Howdoesthisproposedruleapplyto tribes?

Section 301(d) ofthe CAA authorizes the EPAto approve eligible Indian tribes
to implement provisions ofthe CAA on Indian reservations and other areas within the tribes' jurisdiction. The Tribal Authority Rule (TAR) (40 CFR part 49), which implements section 301(d)ofthe CAA, sets forth the criteria and process for tribes to apply to the EPA for eligibility to administer CAA programs. Among the programs that tribes may seek to administer are Tribal Implementation Plans (TIP),84 which are submitted to theEPA for approval. However, unlike states, tribes are not required to develop implementation plans.85Under the TAR, the EPA determined that tribes are not required

84 Notto beconfused withTransportation Improvement Programs (also abbreviated "TIPs"); the context will determine the meaning.

85 70 FR 71666 (November 29, 2005). to meet plan submittal and implementation deadlines in the CAA,
e.g., the deadlines specified in CAA sections 110(a)(1), 172(a)(2), 182, 187 and 191.86

Where tribes do seek to develop and administer TIPs, theTAR provides flexibility for tribes in the preparation of

a TIP to address the NAAQS. See, e.g., 40 CFR 49.7(c). The TAR also states that the EPAhas authority to promulgate federal implementation plan (FIP) provisions, as necessary and appropriate, to protect air quality if tribes choose not to implement those provisions. The EPA may findit necessary and appropriate to develop a FIP to reduce emissions from sources in Indian country where the tribehas not developed a TIP to address an air quality problem.

It is important for states and tribes to work together to coordinate planning efforts where nonattainment areas include both Indian country and state land. Coordinated planning inthese

areas will help ensure thatthe planning decisions madeby the states and tribes complement each other and thatthe nonattainment area makes reasonable progress toward attainment and ultimately attains the 2008 ozone NAAQS. In reviewing and approving individual TIPs and SIPs, we will determine iftogether they are consistent with the overall air quality needs ofan

area.

States have an obligation to notify other states in advance ofany public hearing(s) on their state plans ifsuch plans will significantly impact such other states. 40 CFR 51.102(d)(5). Under section 301(d) ofthe CAA andthe TAR, tribes maybecome eligible tobe treated in amanner similar to states (TAS)for this purpose. Affected tribes with this
status must alsobe informed ofthe
contents ofsuch state plans andgiven

access to the documentation supporting these plans. In addition to this mandated process, we encourage states to extend the same notice to all affected tribes, regardless oftheir TAS status.

Executive Orders and theEPA's Indian policies generally call for the EPA tocoordinate and consult with tribes on matters thataffect tribes. Executive Order 13175, titled, "Consultation and Coordination with Indian Tribal Governments" requires the EPAto develop a process to ensure "meaningful and timely inputby tribal officials in the development of regulatory policies thathave Tribal implications." In addition, the EPA's policies include the agency's 1984 Indian Policy relating to Indian tribes

86 See 40CFR 49.4(a). andimplementation offederal environmental programs, the April 10, 2009, Office ofAir Quality Planning and Standards guidance "Consulting with Indian Tribal Governments," and the "EPA Policy on Consultation and Coordination With Indian Tribes." 87

Consistent with these policies, the EPA intends to meet with tribes on activities potentially affecting the attainment and maintenance ofthe 2008

ozone NAAQS in Indian country, including our actions on SIPs. As such, it wouldbe helpful for states to work with tribes with land thatispart ofthe

same air quality area during the SIP development process and to coordinate with tribes as they develop their SIPs.

R. Whataretherequirements forthe Ozone Transport Region (OTR)?

The Phase 2Rule codified the requirements applicable tothe OTR for the 1997 ozone NAAQS in 40 CFR 51.916. The EPA isproposing to adopt the same requirements for the 2008

ozone NAAQS, except that the submission date for OTR RACT SIPs would be the same as proposed under the RACT section ofthis preamble for nonattainment areas. That is, we are proposing to require thatstates submit the RACT SIPs required under section 182(b)(2) within the final timeline we adopt based on the two SIP submittal options detailed in sectionIII.A of today's proposal. (See section III.D of this preamble for additional information

on RACT timeframes.)

S.Are thereanyadditional requirementsrelatedto complianceand enforcement?

The EPA is not proposing any specific regulatory provisions related to compliance and enforcement. Section 172(c)(6) requires nonattainment SIPs to "include enforceable emission limitations, and such other control
measures, means or techniques

. . . as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment

. The EPA's current guidance, "Guidance on Preparing Enforceable Regulations and Compliance Programs for the 15 Percent Rate-of-Progress Plans (EPA-452/R-93-005, June 1993)" is still relevant to rules adopted for SIPs under the 2008 ozone NAAQS and should be consulted for purposes ofdeveloping appropriate enforceable nonattainment plan provisions under section 172(c)(6).

87 Fora copy ofthis 2011 policy, see http://www.epa.gov/tribal/pdf/cons-and-coord-withindian-tribes-policy.pdff. 34209

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

T. Whataretherequirements for addressing emergencyepisodes?
The EPAproposes thatthe existing requirements for emergency episodes (40 CFR part 51, subpart H) would also applyto the 2008 ozone NAAQS. Subpart H requires SIPs to identify areas by priority classification and to contain contingency plans to prevent pollutant concentrations from reaching levels that would cause significant harmto the health ofpersons. The significant harm level for ozone hadbeen established as 0.6ppm, 2-hour average (40 CFR 51.151). This level remains appropriate for the 2008 ozone NAAQS.

U.Howdoes the "CleanDataPolicy" applyto the2008 ozoneNAAQS?

The EPA, in itsPhase 1Rule, codified its long-standing interpretation under the Clean Data Policyin a regulation. Under 40 CFR 51.918, a determination ofattainment suspends the obligation to submitattainment planning SIP elements for the 1997 ozone NAAQS. An EPA determination thatthe area attained the 1997 ozone NAAQS suspended the obligation to submit any attainment-related SIP elements not yet approved in the SIP, for so long as the

area continued in attainment.

The EPA in this rulemaking is proposing to apply this same approach with respect to determinations of attainment for the 2008 ozone NAAQS. Moreover, in order to reflect the intended ongoing status ofthe Clean Data Policy and toconsolidate in one regulation a comprehensive provision applicable to determinations of attainment for the current and former

ozone NAAQS, theEPA proposes, after revocation ofthe 1997 ozone NAAQS, to replace 40 CFR 51.918 with proposed 40 CFR 51.1118. Section 51.1118 applies essentially the same language as 51.918. Iffinalized, 40 CFR 51.1118 will apply
to a determination ofattainment thatis made with respect to any revoked or current ozone NAAQS-the 1-hour, the 1997 or the 2008 ozone NAAQS. The

new section 51.1118, like section 51.918, will set forth the regulatory consequences ofan EPA determination, made afternotice-and-comment rulemaking, that an area designated nonattainment for an ozone standard has air quality attaining that standard. Upon such a determination by the EPA, the requirements for the area to submit

an attainment demonstration, associated reasonably available control measures, reasonable further progress plans, contingency measures and other attainment-related SIP elements forthat NAAQS, shall be suspended until such time as the area isredesignated to attainment, at which time the requirements no longer apply, or until the EPA determines thatthe area has again violated that ozone NAAQS, in which case the requirements are again applicable. The EPA intends to apply the provision for the 2008 ozone NAAQS in asimilar manner as itdid for the 1997 ozone NAAQS. Because the proposed section 51.1118 merely incorporates the continuation ofthe EPA's long-held interpretation (Clean Data Policy) for the 1-hour ozone NAAQS, which was embodied in regulation 51.918 for the 1997 ozone NAAQS, itis appropriate to apply itin the context ofthe 2008 ozone NAAQS

as well as the 1997 and 1-hour ozone NAAQS. On July 10, 2009, the U.S. Court ofAppeals for the District of Columbia upheld the section 51.918 regulatory provision. (NRDCv. EPA,571 F.3d 1245 (D.C. Cir. 2009))

V. Whatassistance programsis theEPA considering forimplementationofthe 2008 ozone NAAQS?

For purposes ofthe 1997 ozone NAAQS, theEPA established the Early Action Compact (EAC) program. Under the EAC program, certain areas that

were violating the 1997 ozone NAAQS
at the time ofdesignation were allowed
to enter into an EAC agreement, and

were given a deferred effective date for their area designation in order to allow time for the area to meet the terms ofthe agreement. The EPA does not have plans to proceed with an EAC program for the 2008 ozone NAAQS.

Nevertheless, the EPAbelieves there

are significant advantages for states, tribes and local agencies to take steps to reduce emissions as early as possible. First and foremost, early reductions help to achieve cleaner air sooner, and help to ensure continued health protection. Secondly, early steps could help an area avoid anonattainment designation in the first place, or for an

area eventually designated as nonattainment, early reductions could result in a lower nonattainment classification. In addition, early action
to improve air quality canhelp an eventual nonattainment area, particularly an area that has never been designated nonattainment before, establish working relationships between key stakeholders. Our expectation is that early actions to reduce emissions in such areas wouldbe less resourceintensive than actions taken once a nonattainment designation has been made, since at thatpoint the implementation ofcontrols would need
to occur in conjunction with actions to comply with other requirements such as nonattainment NSR and transportation conformity.

Ifan area uses 2011 as the baseline
year for its RFP plan, as we are proposing asthe default approach in this rule, any reductions thatwere made before 2011 canbe fully reflected in the baseline for the area's attainment plan. Reductions achieved after 2011 due to

measures in the area's SIP may receive emission reduction credit, subject to CAA requirements.

Under the 8-Hour Ozone Flex program for the 1997 ozone NAAQS (begunin 2006), the EPA worked with interested attainment areas to take proactive steps thatwould keep them in attainment.88 The EPA is now offering a

new early emission reduction program to attainment areas called "Ozone Advance," which is similar to the Ozone Flex program. 89The EPA initiated the Ozone Advance program in April 2012. Additional information on the Ozone Advance program for the 2008 ozone NAAQS isprovided in a separate guidance document thatis available at www.epa.gov/ ozonepmadvance.

W. Whatis thedeadline forstatesto submit SIPrevisionsto addressthe CAA section 185penalty feeprovision for SevereandExtremeareas?

Under section 185, major stationary

sources ofVOC and NOx in a Severe or Extreme ozone nonattainment area are subject to penalty fees for emissions in

excess of 80 percent ofthe source's baseline amount ofemissions ifsuch an
area fails to attain the NAAQS by its attainment date. Thebaseline amount for asource isbased on its applicable emission limit(s)or actual emissions in the attainment year, whichever is lower.

Section 182(d)(3) provides thatby December 31, 2000, the state shall submita plan revision which includes the provisions required under section 185 for the 1-hour ozone NAAQS. Thus, the CAA provided slightly more than 10 years for submission ofthe fee program SIP revision for areas designated as

88 Seehttp://www.epa.govlttnloarpgltll memoranda/o3flexguideines.pdf.

89 Areas that signed up for Ozone Advance prior

to designations for the 2008 ozone NAAQS are able
to continue to participate in the program even if they were subsequently designated nonattainment and classified as Marginal. These areas may continue to participate in the program until such time as they maybe reclassified to a higher classification. Participation in the OzoneAdvance
program does notremove anynonattainment area requirements from theseareas. The current Marginal areas in the Ozone Advance program are Baton Rouge, LA; DeSoto County, MS (part of Memphis, TN-AR-MS); andUpper Green River Basin, WY. The Uinta Basin, UT area, which was designated "Unclassifiable," is also taking part in the program. 34210

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

nonattainment and classified as Severe

orExtreme by operation oflaw in 1990 for the 1-hour ozone NAAQS. We are proposing that states with areas initially classified as Severe orExtreme for the 2008 ozone NAAQS wouldbe required
to submit a section 185 SIP no laterthan 10 years after the effective date of designation and classification for the 2008 ozone NAAQS. For areas that are reclassified to Severe or Extreme at any other time, the EPA will establish an appropriate fee program SIP submission deadline as part ofthe reclassification action.

IV. What isthe EPA proposing to addressanti-backsliding issuesrelated totransitionfromthe 1997 ozone NAAQS tothe 2008 ozone NAAQS?

A. GeneralBackground

This section sets forthbackground for today's proposal regarding areas that will be subject to anti-backsliding requirements for the 1-hour ozone NAAQS and/or the 1997 ozone NAAQS, andthe requirements thatwill apply to these areas after revocation ofthe 1997

ozone NAAQS. "Anti-backsliding" provisions are designed to ensure that for existing ozone nonattainment areas that are designated nonattainment for the revised and more stringent ozone NAAQS, (1)there isprotection against degradation ofair quality (e.g., the areas do not "backslide"), (2)the areas continue to make progress toward attainment ofthe new, more stringent NAAQS, and (3)there is consistency with the ozone NAAQS implementation framework outlined in subpart 2 ofPart D ofthe CAA.

The CAA contains several provisions indicating Congressional intent not to allow a state to alter or remove provisions from an approved implementation plan ifthe revision would reduce air quality protection. Section 193 ofthe CAA prohibits modification ofa control requirement in effect or required tobe adopted as of November 15, 1990 (thedate of
enactment ofthe 1990 CAA Amendments), unless such a modification would ensure equivalent

orgreater emissions reductions. CAA section 172(e), which addresses relaxations ofa NAAQS, requires protections for areas thathave not attained a NAAQS prior to arelaxation, by requiring controls which are atleast

as stringent as the controls applicable in nonattainment areas prior to any such relaxation. Section 110(1) provides that

a SIP revision cannot be approved ifit will interfere with attainment or other CAA requirements. Under section 175A(d), an area thatis redesignated to attainment 90may, with an appropriate showing, cease toimplement a measure that is contained in the SIP atthe time ofredesignation, but onlyifthat

measure is retained as a contingency

measure in the area's maintenance plan.9 1

B. Backgroundon TransitionFromthe 1-Hourto the1997 OzoneNAAQS

The following discussion addresses the transition policies the EPA adopted in the 2004 Phase 1Rule for implementation ofthe 1997 ozone NAAQS; the legal challenges to that rule; and theresulting court decision in South Coast,which directed the EPAto provide 1-hour ozone NAAQS antibacksliding requirements for nonattainment NSR, section 185 fees and section 172(c)(9) and 182(c)(9) contingency measures for failure to attain the 1-hour ozone NAAQS by the applicable attainment date or to make reasonable further progress toward attainment ofthat standard.

In its Phase 1Rule, the EPA stated that the 1-hour ozone NAAQS would be revoked (i.e., no longer apply) 1year after the effective date ofinitial area designations for the 1997 ozone NAAQS. 92 The EPA alsoincluded antibacksliding requirements in the Phase 1 Rule to address the transition between the two standards.

In developing the Phase 1Rule, the EPA recognized that Congress did not directly address how anti-backsliding requirements should apply where the EPA replaces a prior NAAQS with a

more stringent NAAQS, as occurred

90Nonattainment areas that wereredesignated to attainment with an approved section 175A maintenance plan arereferred to throughout this document as "maintenance" areas. CAA section 175A(a) requires an area to develop a ten-year maintenance plan in order to beredesignated to attainment. CAA section 175A(b) requires anarea to submit a second ten-year plan 8 years after approval of the first plan.

91Unimplemented requirements in the SIP or those shown to be unnecessary for maintenance can be shifted to the contingency measures portion of the SIP uponredesignation. "Procedures for Processing Requests to Redesignate Areas to Attainment," Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992; "State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment ofthe Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On orAfter November 15, 1992," Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993. As discussed elsewhere in this document, an exception is made for nonattainment NSR, which can beremoved from the SIP completely, and need notbe retained as a contingency measure afterredesignation to attainment. (See discussion in text below.)

92 See section IV.G ofthis proposal for a discussion of the timingof the 1997 ozone NAAQS revocation and related anti-backsliding requirements. when the EPA replacedthe 1-hour

ozone NAAQS with the 1997 ozone NAAQS. 93However, in section 172(e), Congress did address anti-backsliding requirements for when the EPA replaces

aNAAQS with a less stringent NAAQS. In the absence ofany express Congressional direction regarding antibacksliding where a NAAQS isreplaced with a more stringent NAAQS, the EPA concluded that itwas reasonable to look
to theprinciples set forth in section 172(e) for purposes ofthetransition from the 1-hour ozone NAAQS to the 1997 ozone NAAQS.

The Phase 1Rule codified antibacksliding provisions governing the transition from the revoked 1-hour

ozone NAAQS to the 1997 ozone NAAQS in 40 CFR 51.905(a). These provisions, as promulgated, retained certain nonattainment area requirements specified under section 182 ofthe CAA,

asthose requirements applied for the 1- hour ozone NAAQS. The retained requirements, which were defined as "applicable requirements" in the ozone implementation regulations,94
continued to apply to areas that were designated nonattainment for the 1-hour

ozone NAAQS as ofthe date that NAAQS was revoked, and thatwere also designated nonattainment for the 1997

ozone NAAQS as ofthat same date. The 1-hour ozone NAAQS requirements that the EPAretained as applicable requirements were the following: (1) RACT; (2)I/Mprograms; (3)Major

source applicability cut-offs for purposes ofRACT; (4) Rate ofprogress (ROP)reductions; (5)Stage II vapor recovery; (6) the Clean fuels fleet program under section 183(c)(4) ofthe CAA; (7)Clean fuels forboilers under section 182(e)(3) ofthe CAA; (8) Transportation control measures (TCMs) during heavy traffic hours as provided under section 182(e)(4) ofthe CAA; (9) Enhanced (ambient) monitoring under section 182(c)(1) ofthe CAA; (10) Transportation controls under section 182(c)(5) ofthe CAA; (11) Vehicle miles traveled provisions under section 182(d)(1)(A) ofthe CAA; (12) NON requirements under section 182(f)ofthe CAA; and (13) Attainment demonstration (or an alternative as provided for under 40 CFR section 51.905(a)(1)(ii)).

Under the Phase 1Rule, those 1-hour nonattainment areas would remain subject to the anti-backsliding provisions until theywere redesignated

93 While there was the possibilityofan area meeting the 1997 ozone NAAQS while exceeding the 1-hour ozone NAAQS, inalmost all instances the 1997 ozone NAAQS was the more stringent of the two.

94 See 40CFR 51.900(f). 

### 34211

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

to attainment for the 1997 ozone NAAQS. In order for an area tobe redesignated for the 1997 ozone NAAQS, the state would needto show that the applicable nonattainment requirements for the 1-hour ozone NAAQS had been satisfied with respect to that area.

Upon redesignation of an area to attainment for the 1997 ozone NAAQS,

a state could request that 1-hour antibacksliding provisions contained in the SIPbe shifted to the contingency

measures portion ofthe SIP, based on a showing that active implementation of these measures was notnecessary for attainment or maintenance ofthe NAAQS and that such a revision would be consistent with section 110(1). 40 CFR 51.905(b). (Provisions inthe contingency measures portion ofthe maintenance SIP are not actively implemented, but are measures the state may implement ifthe area were to violate the standard again.95)The court in South Coastdid not vacate the EPA's regulations concerning these thirteen "applicable requirements."

The Phase 1Rule also provided that three requirements applicable under the 1-hour ozone NAAQS would no longer apply afterrevocation ofthatNAAQS: Nonattainment NSR, section 185 fee requirements and section 172(c)(9) and 182(b)(9) contingency measures for failure to attain the 1-hour ozone NAAQS by the applicable attainment date orto make reasonable further progress toward attainment ofthe standard. See 40 CFR 51.905(e).96 As a result ofthe South Coastchallenge to the Phase 1Rule, the court vacated the regulatory provisions whichhad stated that these three obligations would no longer apply for purposes ofthe 1-hour

ozone NAAQS upon revocation ofthat standard. See South Coast,900-904. The following sections discuss how the EPA has addressed these three provisions since the South Coast decision.

C.BackgroundonNonattainmentNSR

On October 3, 2007, the EPA issued

a memorandum indicating thatthe
vacatur ofthenonattainment NSR provisions in the Phase 1Rule by the South Coastcourt meant that states with

95 States may adjust control strategies in the SIP

or maintenance plan ifthey can demonstrate that the revision will notinterfere withattainment or maintenance ofthe NAAQS, or any otherCAA requirements. See CAA sections 175A and 110(1). Section 175A(d) of the CAArequires that contingency measures in the maintenance plan include all measures inthe area's SIPbefore that

area was regesignated to attainment.

96The fee obligations are also briefly addressed in
section 181(b)(4), which cross-references the more detailed provisions found insection 185. 1-hour nonattainment areas thatwere subject tothe anti-backsliding provisions remain subject to the obligation to include in their SIPs major

source applicability thresholds and offset ratios consistent either with their nonattainment classification for the 1- hour ozone NAAQS or with their designation and classification forthe 1997 ozone NAAQS, whichever is higher, as ofthe effective date of designation as nonattainment forthe 1997 ozone NAAQS. 97

Thereafter, in a separate proposed rulemaking action in 2010, theEPA proposed revised regulations regarding
treatment ofmajor source thresholds and offset ratios for areas that were designated nonattainment for the 1-hour

ozone NAAQS at the time ofdesignation

as nonattainment for the 1997 ozone NAAQS. See "Proposed Rule to Implement the 1997 Ozone National Ambient Air Quality Standard: New Source Review Anti-Backsliding Provisions for Former 1-Hour Ozone Standard," August 24, 2010, 75 FR 51960 (hereinafter "NSR AntiBacksliding Proposed Rule"). The EPA proposed that 1-hour ozone NAAQS nonattainment NSR requirements would apply in a manner similar to the requirements specifically listed as "applicable requirements" in the Phase 1Rule.

The NSR Anti-Backsliding Proposed Rule further proposed thatin situations where an area's classification underthe 1-hour ozone NAAQS was higher than its classification underthe 1997 ozone NAAQS, (1)the obligation to implement nonattainment NSR requirements associated with the area's classification under the 1-hour ozone NAAQS would continue to apply afterthe revocation of the 1-hour ozone NAAQS until the area is redesignated to attainment for the 1997 ozone NAAQS, and (2)once the obligation to implement 1-hour ozone NAAQS nonattainment NSR ceases to apply, the state may request removal of the 1-hour ozone NAAQS nonattainment NSR requirements, without retaining them as contingency

measures. The EPA also requested
comment onan alternate proposal that, ifcertain conditions were met, would allow a state to requestremoval ofthe 1-hour nonattainment NSR requirements prior to redesignation of

97Memorandum from Robert J.Meyers, Principal DeputyAdministrator, Office ofAir and Radiation,
to EPA Regional Administrators, October 3, 2007, "New Source Review (NSR)Aspects ofthe Decision ofthe U.S. Court ofAppeals for the District of Columbia on the Phase 1 Ruleto Implement the 8- Hour Ozone National Ambient Air Quality Standards (NAAQS)." the area to attainment forthe 1997

ozone NAAQS.

The EPAhas not finalized the proposed NSR Anti-Backsliding Rule, and does not intend to do so. This proposal replaces and supersedes that proposal, and the finalrule will address all outstanding NSR anti-backsliding issues forboth the 1-hour and 1997

ozone NAAQS. These include how ongoing obligations toimplement antibacksliding requirements pertaining to NSR thresholds and offset ratios under the 1-hour and 1997 ozone NAAQS can be terminated, in light ofrevocation of the 1-hour ozone NAAQS and the impending revocation ofthe 1997 ozone NAAQS.

D.Backgroundon Section 185Fees

Section 185 ofthe CAA applies to

areas classified as Severe or Extreme for the 1-hour ozone NAAQS. This section
states thatifsuch an area fails to attain the 1-hour ozone NAAQS by the applicable attainment deadline,98 each major stationary source ofVOC and NON 99 located in the area is required to pay a fee to the state for each calendar year following the attainment year for emissions above a baseline amount. 1 00 If the EPA determines that an area attained the standard as ofthe applicable attainment date, then the program does not take effect, evenifthe

area subsequently violates that standard in a later year.

On January 5, 2010, the EPA issued a memorandum 101 that addressed the obligation ofstates with Severe or Extreme 1-hour ozone NAAQS nonattainment areas that did not attain by their attainment dates to collect fees from major sources. The memorandum discussed options for the EPA approval ofSIPs that included an equivalent alternative program tothe section 185 fee program specified in the CAA under

98 Under the 1990 CAA Amendments,
nonattainment areas haduntil November 15 ofthe indicated yearto attain: Marginal-1993; Moderate-1996; Serious-1999; Severe-15-2005, Severe-17-2007, Extreme-2010.

99 While section 185 expressly mentions only VOC, section 182(f) extends the application ofthis provision to NOx,byproviding that "plan provisions required under [subpartD] for major stationary sources of [VOC] shall also apply to major stationary sources

. . . of [NOx]."

100See section III.Wofthis proposal for a discussion ofbaseline amount. See also CAA section 185(b)(2) for the definition ofbaseline
amount.

101Memo from Stephen D. Page to Regional Air DivisionDirectors, Jan. 5, 2010, "Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the 1-Hour Ozone NAAQS." TheEPA had previously issued guidance on baseline emissions undersection 185. Memorandum from William T. Harnett, Director, Air Quality Policy Division,to EPA Regional Air DivisionDirectors, March 21, 2008. 

### 34212

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

the principles of section 172(e), including an "attainment alternative." The EPA stated that itwould use federal notice-and-comment rulemaking procedures and seekpublic comment on any future approval of such alternative plans.

On March 5, 2010, the Natural Resources Defense Council (NRDC) petitioned the U.S. CourtofAppeals for the District ofColumbia Circuit to review the 2010 Stephen D. Page guidance memorandum on section 185 fee programs. NRDC argued thatthe EPA violated the Administrative Procedures Actby issuing the guidance without notice-and-comment rulemaking, and thatboth the section 185 alternate fee program and the "attainment alternative" in the guidance violated the CAA. Despite the factthat the EPA stated that approval ofan alternative program would need to go through individual notice and comment rulemaking, the court concluded that the section 185 fee program guidance amounted to a rulemaking that should have provided notice and an opportunity to comment. The courtthus vacated and remanded the EPA's guidance. NRDCv.EPA, 643 F.3d 311 (D.C.Cir.July 2011).

Although the court vacated the 2010 guidance memorandum on procedural grounds, itdid not prohibit alternative programs, stating that "neither the
statute nor our case law obviously precludes that alternative." Idat 332. However, the court did express its disapproval ofone alternative that was based in part on attainment ofthe 1997

ozone NAAQS. The court concluded that itwould be impermissible to terminate an area's obligations under section 185 for the revoked 1-hour

ozone NAAQS based solely on attainment ofthe 1997 ozone NAAQS. NRDC,643 F.3d at 313. The EPA has taken into account the NRDCcourt's decision in developing the EPA's
current approach toterminating antibacksliding requirements for 1-hour

ozone NAAQS section 185 fees, and that approach is reflected in today's proposal regarding terminating those antibacksliding requirements for both the 1997 and 1-hour ozone NAAQS.

At this time, a relatively small group ofareas are affected by uncertainties surrounding implementation and termination of 1-hour ozone NAAQS section 185 obligations. Separate rulemakings regarding individual 1- hour ozone NAAQS Severe and Extreme

areas may resolve those issues before this implementation rule is finalized.

For areas subject to section 185 antibacksliding requirements for the 1997

ozone NAAQS, this implementation rulemaking will have no near-term impact. The earliest attainment deadline for areas designated Severe or Extreme for that standard is 2019. Moreover, as yet no SIP submittals to establish section 185 penalty fee programs for the 1997 ozone NAAQS havebecome due.

In sum, the EPA's proposed approach
to section 185 anti-backsliding requirements for the 1997 ozone NAAQS (whichwillbe described below in sectionIV.H.2) should be viewed in the context of (1)EPA's ongoing efforts
to address the section 185 antibacksliding requirements for individual 1-hour ozone NAAQS Severe and Extreme areas in separate rulemakings, and (2)the fact thatfor 1997 ozone NAAQS Severe and Extreme areas, no fees can be triggered until 2020 (the calendar year after 2019).

E.Backgroundon the Contingency MeasuresRequirement

In response to the South Coast decision, the EPA issued a final regulation on May 14, 2012 (77 FR 28424), which added nonattainment

area contingency measures for failure to attain or meet RFP milestones (section 172(c)(9) and 182(c)(9) contingency measures)102 for the 1-hour ozone NAAQS to the list of"applicable requirements" in 40 CFR 51.900(f). These contingency measures were required for failure to meet an RFP milestone or to attainthe 1-hour ozone NAAQS by the area's attainment date for the 1-hour ozone NAAQS.103 The EPA is similarly proposing in this implementation rulemaking to include

an anti-backsliding requirement for nonattainment area contingency

measures for failure to attain or to meet

an RFP milestone for the 1997 ozone NAAQS by the applicable deadlines for that NAAQS.

F. What is theEPAproposingregarding anti-backslidingrequirements forthe 1- hourand1997ozoneNAAQS?

We discuss here the EPA's proposed anti-backsliding requirements for the 1- hour andthe 1997 ozone NAAQS in the
context ofimplementing the 2008 ozone NAAQS. With the 2008 ozone NAAQS,

102Thesenonattainment area contingency

measures are notto be confused withmaintenance plan contingency measures for areas redesignated to attainment under CAA section 175A(d).

103 The January 16, 2009, proposal (74FR 2936)
did not address when section 185 and NSR antibacksliding requirements wouldberemoved, indicating that the EPA would issue a separate Federal Register notice providing guidance on those issues. As discussed elsewhere, theEPA addressed nonattainment NSR anti-backsliding in its 2010 proposal (August 24, 2010, 75 FR 51960), and addressed section 185 in the 2010 guidance that has since been vacated. as with the 1997 ozone NAAQS, the EPA strengthened rather than relaxed the ozone NAAQS. The transition from the 1997 to the 2008 ozone NAAQS is

a straightforward lowering ofthe level with no change in the form ofthe standard, so itis unambiguous thatthe 2008 ozone NAAQS is always more stringent-never more lenient-than the 1997 ozone NAAQS. In these circumstances, section 172(e) on its face does not apply. In proposing the following anti-backsliding requirements,

we looktherefore tothe principles but
not to the letter ofCAA section 172(e).
G. Timingof1997OzoneNAAQS RevocationandRelatedAntibacksliding Requirements
This section discusses therevocation ofthe 1997 ozone NAAQS andthe application ofanti-backsliding requirements for that NAAQS and for the previously-revoked 1-hour NAAQS. The EPA is proposing torevoke the 1997 ozone NAAQS on the date the final SIP Requirements Rule for the 2008 ozone NAAQS ispublished in the Federal Register for all purposes other than transportation conformity, where it has alreadybeen revoked. See proposed revision to 40 CFR 50.10(c).

The EPAbelieves it is appropriate to revoke rather than retain the 1997 standard for all remaining purposes.'0 4
The EPAhas already taken final action revoking the 1997 primary and secondary ozone NAAQS for transportation conformity purposes only. 05 106The EPA explained its rationale for this action in the notice proposing revocation ofthe 1997 ozone NAAQS in the context ofconformity.107 The EPA's action ensures that only one

ozone NAAQS-the more protective 2008 ozone NAAQS-applies, rather than having two standards, one of which the agency has determined is insufficiently protective, apply concurrently. The EPArelies on similar reasoning to support today's proposal to revoke the 1997 ozone NAAQS for all purposes.

At the time the EPApromulgated the 2008 ozone NAAQS, the Administrator determined that the 1997 ozone NAAQS

104When theEPA revises aNAAQS, the prior NAAQS is not automatically revoked. Accordingly, boththe 1997 ozone NAAQS and the more stringent 2008 ozone NAAQS areactive standards unless and until theEPA takes action torevoke the previous 1997 ozone NAAQS.

10577 FR 30160, 30162, May 21, 2012. 1 0 6The EPA's authority to revoke the standard for transportation purposes only has been challenged. To ensure that the 1997 ozone NAAQS is revoked for all purposes, today's proposal wouldrevoke that standard for all purposes for which it has notyet been revoked.

10777 FR 8197, 8205, February 14, 2012.

### 34213

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

was no longer sufficient to protect public health and the environment with

an adequate margin ofsafety and thatit

was therefore necessary to establish a

more stringent standard.108 In determining how totransition fromthe 1997 ozone NAAQS tothe more stringent 2008 ozone NAAQS, the EPA is nowpresented with the same situation that we faced with the transition from the 1-hour ozone NAAQS to the more stringent 1997

ozone NAAQS. Forthat transition, our Phase 1Rule forthe 1997 ozone NAAQS revoked the 1-hour ozone NAAQS for allpurposes. 1 0 9The Phase 1Rule also established comprehensive antibacksliding provisions to ensure that the level ofprotection provided by requirements for the 1-hour ozone NAAQS would remain in place as areas transitioned to implementing the more stringent 1997 ozone standard. The D.C. Circuit upheld EPA's decision, recognizing EPA's "authority to revoke the one-hour standard so long as adequate anti-backsliding measures are introduced." 110

We believe that revoking the 1997

ozone NAAQS, as we have already done for transportation conformity, is now appropriate for all other purposes. The EPA believes thatthe permanent retention oftwo conflicting standards, differing onlyin the ozone concentrations they allow, could lead to unnecessary complexity and thatitis inappropriate to retain the 1997 standard of .08ppm, which isless protective ofhuman health thanthe 2008 standard of .075 ppm. The EPA's

reason for establishing the new standard

asrequisite toprotect public health was its conclusion thatthe old standard was not adequate. Revoking rather than retaining that 1997 ozone NAAQS will facilitate a seamless transition from demonstrating compliance with the 1997 ozone NAAQS to demonstrating compliance with the more health and welfare protective 2008 ozone NAAQS. This approach will ensure the most efficient use of state and local resources in working toward attainment ofthe standard thatEPA has determined is requisite to protect public health. Moreover, we believe that following the

same course we followed inrevoking the hourly standard by requiring adequate anti-backsliding measures will

ensure continued momentum in states' efforts toward cleaner air.

Until the 1997 ozone NAAQS is revoked, that NAAQS remains in effect,

10873 FR 16436, March 27, 2008.

109See 69 FR 23954. 110 South Coast Air Quality ManagementDistrict

v. EPA, 472 F.3d at 899. in parallel with the 2008 ozone NAAQS, and continues to apply independently and by its own terms. Similarly, prior to its revocation, implementation ofthe 1997 ozone NAAQS continues under the Phase 2Rule (SubpartX,40 CFR 51.900 et seq.) as modified in accordance with the South Coast decision. After the 1997 ozone NAAQS is revoked, however, the EPA is proposing that the anti-backsliding requirements for that NAAQS, as proposed in this rulemaking, will become applicable.

After therevocation ofa standard the EPA no longer intends totake actionto designate or toredesignate areas for that standard. The extent ofcontinued implementation ofa revoked standard derives from administration ofantibacksliding requirements for that standard. After revocation ofthe 1997

ozone NAAQS, andbecause the 1-hour

ozone NAAQS has alreadybeen revoked, obligations under these NAAQS will be defined by the antibacksliding requirements that are specified for these NAAQS in the final rule for today's proposal.

Upon revocation ofthe 1997 ozone NAAQS, theEPA proposes that antibacksliding provisions would apply to

an area in accordance with its designations and, as applicable, its nonattainment classifications, for the 1997 (and,ifapplicable, 1-hour) ozone NAAQS at the time ofrevocation ofthe 1997 ozone NAAQS. The sections below discuss in detail the applicable requirements and how theywould apply to areas with various designations and classifications for the 2008 and the revoked 1997 and 1-hour ozone NAAQS.

After revocation ofthe 1997 standard, the designations for that standard are no longer in effect, and the sole designations thatremain in effect are those for the 2008 ozone NAAQS. However, the EPA is retaining the listing ofthe designations ofareas for the revoked 1997 ozone NAAQS in 40 CFR part 81, for the solepurpose of identifying the anti-backsliding requirements that may apply to the

areas as a result ofthese designations at the time ofrevocation. Accordingly, such references to historical designations for the revoked standard should not be viewed as current designations under CAA section 107.

The Phase 1Rule revoked the 1-hour

ozone NAAQS for all purposes 1year after the effective date ofinitial area designations for the 1997 ozone NAAQS. The South Coastcourtrejected

a challenge to this revocation, and determined that the EPA had the authority to revoke the 1-hour ozone NAAQS, subject to adequate antibacksliding provisions.

The EPA is today proposing to exercise its authority to revoke the 1997 primary and secondary ozone NAAQS for allremaining purposes upon the publication ofthe final SIP Requirements Rule in the Federal Register. The EPA's Classifications Rule "' for the 2008 ozone NAAQS provides thatthe 1997 ozone NAAQS will be revoked 1year after the effective date ofinitial area designations for the 2008 ozone NAAQS for purposes of transportation conformity. Therefore, the 1997 ozone NAAQS will be revoked for allpurposes upon the publication of the final SIP Requirements Rule in the Federal Register. However, theEPA is taking comment on alternate dates for revocation ofthe 1997 ozone NAAQS for allpurposes other than transportation conformity. Alternate suggestions should explain the basis for the suggested date and be accompanied by technical and legaljustifications.

We are proposing, for purposes ofthe transition from the 1997 ozone NAAQS
to the 2008 ozone NAAQS, that an area that was designated as nonattainment for the 1997 ozone NAAQS and also is designated as nonattainment for the 2008 ozone NAAQS, and which has not been redesignated to attainment forthe 1997 ozone NAAQS prior tothe effective date ofrevocation ofthat NAAQS, willbe subject to antibacksliding requirements for the 1997

ozone NAAQS. To the extent that 1- hour ozone NAAQS anti-backsliding requirements are also applicable SIP requirements in such an area at thetime the 1997 ozone NAAQS is revoked,we
are proposing that those requirements will also remain applicable.112

The timing that EPA isproposing

means that any 2008 ozone NAAQS nonattainment area thatwas previously

a 1997 ozone NAAQS nonattainment
area,buthas been redesignated to attainment for the 1997 ozone NAAQS by thetime ofrevocation ofthat NAAQS, will notbe subject to the antibacksliding requirements for the 1997 or the 1-hour ozone NAAQS. This is because when an area hasbeen redesignated to attainment for an ozone NAAQS while that NAAQS isin effect, it has fulfilled all applicable

11177 FR 30160, May 21, 2012. 112As apractical matter, where a 2008 ozone nonattainment area is subjectto anti-backsliding requirements forboth the 1997 ozone NAAQS and the 1-hoar ozone NAAQS, the anti-backsliding requirements that will apply to the area for NSR and Title V will bethose corresponding to the higher ofthe two nonattainment classifications that the area possessed with regard to the 1997 and 1- hour ozone NAAQS at the time ofrevocation ofthe respective ozone NAAQS. 

### 34214

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

requirements for that NAAQS, including applicable anti-backsliding requirements for any prior ozone NAAQS. The area is, therefore, not subject to anti-backsliding requirements for the revoked ozone NAAQS or any prior ozone standard(s).

During the period prior to revocation ofthe 1997 ozone NAAQS, that NAAQS will remain in effect and applicable requirements for that NAAQS, and any applicable 1-hour ozone NAAQS antibacksliding requirements, will apply as usual. Redesignations and reclassifications for the 1997 ozone NAAQS may continue up to the time of revocation ofthat standard.

This approach ofestablishing antibacksliding requirements is consistent with the EPA's actual practice in the transition from the 1-hour to the 1997

ozone NAAQS. 1 13It would not make

sense to select a pointprior to revocation ofthe 1997 ozone NAAQS for the anti-backsliding requirements associated with that standard to take effect, since prior torevocation ofthe 1997 ozone NAAQS, that NAAQS remains in effect and still applies directly, and an area can still be redesignated to attainment for that standard or reclassified to a higher nonattainment classification.114 In fact, the status ofmany areas withrespect to designation and classification for the 1997 ozone NAAQS has already changed since promulgation ofthe 2008

ozone NAAQS. Thus, theEPA concludes thatestablishing the date of revocation ofthe 1997 ozone NAAQS as the time for anti-backsliding requirements for that NAAQS to take effect is reasonable and consistent with past practice under the Phase 1Rule.

H. Whataretheapplicablerequirements foranti-backsliding purposesduringthe transition to the2008 ozoneNAAQS?
The EPA in this rulemaking is proposing to establish subpart AA, 40 CFR 51.1100 etseq., which will provide comprehensive anti-backsliding requirements for transition to the 2008

ozone NAAQS. The EPA isproposing that,upon revocation ofthe 1997 ozone NAAQS, subpart X, 40 CFR 51.900 et seq., be effectively replacedby the proposed subpart AA.

The proposed subpart AA addresses anti-backsliding requirements for both

113

Although section 51.905(a) specified that the anti-backsliding requirements "attached" at the time of designation for the 1997 ozone NAAQS,

areas were still able to redesignate to attainment for the 1-hoar ozone NAAQS up to the date of revocation ofthat standard.

114See, for example, theredesignations to 1-hoar attainment for Phoenix (70 FR 34362, June 14, 2005) and Atlanta (70 FR 34660, June 15, 2005). the previously revoked 1-hour ozone NAAQS and the 1997 ozone NAAQS in

a consolidated and streamlined fashion. Areas designated nonattainment for the 2008 ozone NAAQS and also designated nonattainment for either orboth the 1- hour or 1997 ozone NAAQS at the time ofrevocation ofthe 1997 ozone NAAQS will be subject to section 51.1100(o). This provision specifies the list of "applicable requirements" thatwill apply as anti-backsliding requirements for the transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS. At the time ofrevocation ofthe 1997 ozone NAAQS, section 51.1100(o) will replace 40 CFR 51.900(f). The EPA is proposing

as "applicable requirements" the requirements that were previously listed in section 51.900(f) (excepting only Stage II vapor recovery),1 5 as well as the three anti-backsliding requirements that were included as aresult ofthe South Coastdecision: nonattainment NSR thresholds and offset ratios, nonattainment contingency measures for failure to attain by the applicable deadline or to meet RFP milestones, and section 185 fee program requirements. Since the South Coastdecision,the EPA has been including these three requirements as anti-backsliding requirements for the 1-hour ozone NAAQS for the purpose ofdischarging its obligations to effectuate antibacksliding for that standard. Proposed section 51.1100(o) contains definitions ofthe EPA's proposed applicable requirements for the transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS. These applicable requirements

as proposed in section 51.1100(o) include the following: (1)RACT; (2) vehicle I/M programs; (3)Major source applicability cut-offs forpurposes of RACT; (4) ROP and/or RFP reductions; (5)the Clean fuels fleetprogram under section 183(c)(4) ofthe CAA; (6) Clean fuels forboilers under section 182(e)(3) ofthe CAA; (7)Transportation control

measures during heavy traffic hours as provided under section 182(e)(4) ofthe CAA; (8) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA; (9) Transportation controls under section 182(c)(5) ofthe CAA; (10) Vehicle miles traveled provisions under section 182(d)(1)(A) ofthe CAA; (11) NOx requirements under section 182(f) ofthe CAA; (12) Attainment

15 Under CAA section 202(a)(6), the EPA found that onboard refueling vapor recovery (ORVR) systems are in widespread use inthe motor vehicle fleet and waived the section 182(b)(3) Stage I vapor recovery requirement for Serious and higher ozone nonattainment areas on May 16, 2012 (77 FR 28772). Thus, in this proposal, the section 182(b)(3) Stage I requirement is omitted from the list of applicable requirements in 51.1100(o). demonstrations; (13) Nonattainment contingency measures, (14) Nonattainment NSR requirements, and (15) Section 185 requirements for Severe andExtreme areas.

A number ofareas designated nonattainment for the 2008 ozone NAAQS may retain residual attainmentrelated SIP obligations for the 1997

ozone NAAQS. Itis possible that SIP revisions to address obligations under the 2008 ozone NAAQS can also satisfy similar outstanding SIP obligations to prevent backsliding for revoked 1997 and 1-hour ozone NAAQS. Forareas with residual attainment-linked requirements for the revoked 1997

ozone NAAQS, theEPA has taken into
account the close relationship intiming andnature ofattainment-linked obligations for the 1997 and 2008 standards. The 2008 ozone NAAQS incorporates and supersedes the 1997

ozone NAAQS, and the attainment deadline for the 2008 ozone NAAQS is
near-term. Thus the EPAbelieves itis critical to avoid the duplication ofeffort that requiring separate SIP submissions for the 1997 and 2008 ozone NAAQS would create. Thebest course wouldbe
to integrate, wherever possible, the attainment planning requirements for the revoked and current ozone NAAQS. At this time ofscarce resources the
states and theEPA should strive to develop SIP submissions that achieve the goals ofboth the 1997 andthe 2008

ozone NAAQS. Forexample, areas that have not yet fully attained the 1997

ozone NAAQS and have an obligation to continue meeting planning and control requirements to attain as expeditiously

aspracticable may find itmore efficient
to develop plans and controls that achieve the goals ofboth the 1997 and the 2008 ozone NAAQS. The need for

an approach similar to the one EPAtook in the transition from the 1-hour ozone NAAQS to the 1997 ozone NAAQS is heightened as we move on to athird

more stringent ozone NAAQS. In the Phase 1Rule (69 FR 23975-6), an attainment-related SIP submission to satisfy a requirement for the 1997 ozone NAAQS could also satisfy an outstanding 1-hour ozone NAAQS SIP requirement. Atthis time it is even more important than in the previous transition tocoordinate efforts and avoid overlapping and redundant planning efforts.

In this proposal, the EPA is also proposing adifferent approach to the Stage IIVapor Recovery requirement than was contained in 51.900(f)(5) in the Phase 1Rule. In May 2012,116 the EPA

11677 FR 28772, May 16, 2012. 34215

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

determined that ORVR systems are in widespread use nationally, and the EPA waived the CAA section 182(b)(3) requirement for states to adopt and submitprograms for implementation of the Stage II vapor recovery system at GDFs located in Serious and above

ozone nonattainment areas, pursuant to authority provided in CAA section 202(b)(6). As a result ofthis waiver,
states may seek EPA approval to discontinue implementing an existing Stage II Control Program forGDFs in Serious and above ozone nonattainment
areas, subject to (1)the submittal ofan approvable demonstration showing that removing theprogram from the SIP would not interfere with attainment and maintenance ofthe NAAQS pursuant to section 110(1), and (2)the submittal of

an approvable demonstration under section 193 for Stage II programs that

were in effect in 1990. Accordingly, in this proposed rule, theEPA isproposing

arevision to the existing antibacksliding rules and not including the Stage IIvapor recovery program previously required by CAA section 182(b)(3) in the list ofmeasures that need tobe retained for anti-backsliding
purposes. Areas that already have Stage II programs in their SIPs could remove these programs iftheymake the appropriate showings as detailed in CAA sections 110(1) and 193, following EPA approval ofsuch SIP revisions.117 These revisions would not need to move Stage IIrequirements to contingency

measures when Stage IIis removed from the active SIP. Today's proposed rule would have no effect on the continuing independent CAA section 184(b)(2) requirement for OTR states to implement Stage II programs or

measures capable of achieving emissions reductions comparable to those achieved by Stage II.

The EPA discusses below the three anti-backsliding requirements that proposed section 51.1100 would add to the applicable requirements originally contained in section 51.900(f) ofthe rule.

1.NSR

a. NSR for Areas Designated Nonattainment for the 2008 Ozone NAAQS

In response to the South Coastcase, the EPAhasbeen requiring areas designated nonattainment for the 1997

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

117 See U.S. EPA Office of AirQuality Planning and Standards, "Guidance on Removing Stage I Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures," August 7,2012 (EPA-457/B-12-001). NAAQS to implement the nonattainment NSR requirements that applied at the time ofrevocation ofthe 1-hour ozone NAAQS, where such requirements are more stringent than those based on the area's classification for the 1997 ozone NAAQS. In keeping with itspractice following the South Coastdecision, the EPA isproposing that nonattainment NSRbe added to the list ofapplicable requirements. Thus, for areas designated nonattainment for the 2008 ozone NAAQS, nonattainment NSR will be required for any prior

ozone standard for which they remain designated nonattainment. As explained later in this preamble, however, areas that remained designated nonattainment for the 1-hour ozone NAAQS atthe time ofitsrevocation, but were subsequently redesignated to attainment forthe 1997

ozone NAAQS, would notbe subject to this obligation. In practical terms, the obligation to implement nonattainment NSR requirements associated with two

or more standards means that the area must implement thethresholds and offset ratios associated withthe highest nonattainment classification. In the section on termination ofantibacksliding requirements below, the EPA isproposing two options forlifting 1997 and 1-hour ozone NAAQS nonattainment NSR requirements for

areas designated nonattainment for the 2008 ozone NAAQS: redesignation for the 2008 NAAQS, or a "redesignation substitute" for the 1997 and/or 1-hour

ozone NAAQS. The EPA is also soliciting comment from the public on additional routes to lifting nonattainment NSR requirements tied to the revoked 1997 and 1-hour ozone NAAQS, in areas where the 2008 nonattainment NSR requirements would remain in place. These additional
processes, like the redesignation substitute option the EPA is proposing, would operate to lift the nonattainment NSR requirements for the revoked NAAQS while retaining theNSR requirements for the 2008 ozone NAAQS. The EPA asks thatcommenters provide supporting legal rationales for
any additional option, taking into
account the DC Circuit's decision in South Coast.The timing and basis for termination ofnonattainment NSR requirements for the revoked NAAQS is discussed below in section IV.J.

b. NSR for Areas Designated Attainment for the 2008 Ozone NAAQS

This proposal also addresses whether nonattainment NSR must continue tobe implemented in areas initially designated attainment 118 for the 2008

ozone NAAQS, but thatwere still designated nonattainment for the 1997

ozone NAAQS as ofthe effective date of their attainment designations under the 2008 ozone NAAQS. Some ofthe areas that havebeen designated as attainment for the 2008 ozone NAAQS are still designated as nonattainment for the 1997 ozone NAAQS.

Until the 1997 ozone NAAQS is revoked, we propose that nonattainment NSR would continue to apply in areas designated as attainment for the 2008

ozone NAAQS but nonattainment for the 1997 ozone NAAQS. This approach is consistent with the exemption in the PSD regulations at 40 CFR 51.166(i)(2) and 52.21(i)(2), which provides that PSD requirements do not apply with respect to a particular pollutant ifthe

new source or modification is located in

an area designated as nonattainment under CAA section 107 as to that pollutant.

We propose that after the 1997 ozone NAAQS is revoked, areas designated as attainment for the 2008 ozone NAAQS would not be required to retain in their SIPs nonattainment NSR programs for

ozone. Instead, such areas would be required to implement Prevention of Significant Deterioration (PSD) requirements, consistent with their attainment designation forthe 2008

ozone NAAQS, notwithstanding any remaining references to nonattainment designations for the 1997 ozone NAAQS in 40 CFR Part 81.

When we revoke the 1997 ozone NAAQS, the designations for that standard have no further effect except as reference for anti-backsliding purposes. We are retaining references to the designations for the revoked standard in 40 CFR part 81 solely for antibacksliding purposes for areas designated nonattainment for the 2008

ozone NAAQS. Accordingly, such references to historical nonattainment designations for the revoked standard should not be viewed as current "nonattainment designation[s] under CAA § 107" within the meaning of40 CFR 51.166(i)(2) and 52.21(i)(2) and, therefore, do not trigger the exemption from PSD requirements otherwise resulting from those provisions.

While theEPA interprets the present regulatory text in 40 CFR 51.166(i)(2) and 52.21(i)(2) in the manner described above, these provisions do not expressly saythat a nonattainment designation for

arevoked standard does nottrigger the

118

Applies to areas designated either
"unclassifiable/attainment" (hereafterreferred to as "attainment" areas)or "unclassifiable," asdefined in CAA § 107(d)(1)(A). 

### 34216

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

exemption. To avoid confusion inthe regulatory text and toclarify its intent,

we are alternatively proposing that an amendment to 40 CFR 51.166(i)(2) and 52.21(i)(2) would be appropriate to make itclear that a nonattainment designation for a revoked NAAQS, once the revocation becomes effective in an area, would not trigger the PSD exemption in those provisions and would not prevent application ofPSD requirements for that pollutant. We request comment on whether such an amendment to 40 CFR 51.166(i)(2) and 52.21(i)(2) is necessary or whether itis sufficient for theEPA to articulate the interpretation ofthese provisions described in the preceding paragraph. We also request comment on how such

an amendment to 40 CFR 51.166(i)(2) and 52.21(i)(2) should be worded.

The EPAtook a similar approach in rules governing thetransition from the 1-hour to the 1997 ozone NAAQS. This approach would not apply to areas located in the OTR and designated attainment, since the CAA requires these areas toremain subject to Moderate area nonattainment NSR requirements. As explained more fully in the NSR Anti-Backsliding Proposed Rule, the EPA isproposing this approach because the EPA does not interpret the South Coastdecision as requiring thatNSR requirements associated with a previous standard be retained in areas designated attainment for the current standard. See 75 FR 51964. The issue before the court in South Coastinvolved the substitution of

one set ofnonattainment NSR requirements for another, notthe replacement ofnonattainment NSR with PSD requirements. The EPA's determination that nonattainment NSR does not apply to areas designated attainment for the current NAAQS and thus is not required to remain in the SIP for such areas is consistent with Greenbaumv.EPA, 370 F.3d at 536.119

2.Section 185 Fee Programs

States with nonattainment areas classified as Severe orExtreme for a prior NAAQS at the timethat NAAQS is revoked remain subject to the

119 "It would makelittle sensefor [nonattainment NSR] to beincluded inthe post-attainment SIP, as the Clean AirAct... explicitly states that attainment area SIPs must include a PSD program." requirements of section 185 withrespect to thatNAAQS. This approach is consistent with the July 2011 NRDC
court decision on the EPA's previouslyissued section 185 guidance. As previously discussed, EPA hasbeen working with states to address the section 185 requirements forthe 1-hour

ozone NAAQS. The timeline for section 185 requirements for the 1997 ozone NAAQS differs from that for the 1-hour

ozone NAAQS; the earliest attainment deadline for a Severe area under the 1997 ozone NAAQS is 2019, and no 1997 ozone penalty fee program has yet become due.120 As in the case ofNSR, the section below on termination of anti-backsliding requirements proposes two alternative approaches to terminating section 185 anti-backsliding requirements forboth the 1-hour and 1997 ozone NAAQS. Section IV.J goes into detail on the twoproposed routes to terminate section 185 antibacksliding requirements: redesignating
to attainment for the 2008 ozone NAAQS, or providing a redesignation substitute for the revoked NAAQS triggering the section 185 requirement.

3.Contingency Measures Under Sections 172(c)(9) and 182(c)(9)

The EPA's recent finalrulemaking (May 14, 2012, 77 FR 28424) setforth the EPA's rationale for including, as an applicable 1-hour ozone NAAQS antibacksliding requirement, nonattainment

area contingency requirements for failure to attain the 1-hour NAAQS by the applicable deadline or to meet RFP milestones with respect tothat NAAQS. The EPA is proposing to adopt the same contingency requirements for failure to attain the 1997 ozone NAAQS bythe applicable deadlines or to meet RFP milestones with respect tothat NAAQS, based on the same rationale that the

agency articulated in its May 14, 2012 rulemaking.

L ApplicationofTransition RequirementstoNonattainmentand AttainmentAreas

1.Introduction

This section discusses howthe EPA's proposed transition requirements will

120 Underthe 1997 ozone NAAQS, areas classified Severe-15 must attain by 2019, Severe-17

areas by 2021, andExtreme areas by 2024. applyto various types ofareas. The general principle is to apply transition requirements depending on howthe

area is designated-attainment or nonattainment-for the 2008 ozone NAAQS, while taking into account the area's status withrespect to prior standards.121 Table 2provides a summary ofthe four transition scenarios, and theproposed requirements that would apply for each ofthose scenarios. 122The following sections describe each scenario in detail. In Table 2and inthe subsequent sections, for purposes ofdetermining an area's transition requirements, we first look to the area's designation and classification for the 2008 ozone NAAQS. We then determine the area's designation and classification status for the 1997 ozone NAAQS as ofthe effective date the 1997 ozone NAAQS is revoked. Finally, where appropriate, we determine whether anti-backsliding requirements for the 1-hour ozone NAAQS apply in the area and, ifso, we determine the area's designation and classification status for the 1-hour ozone NAAQS as ofthe date the 1-hour NAAQS was revoked.123 For ease of reference, throughout theremainder of this preamble, werefer to an area's designation and classification for the 1997 ozone NAAQS at the time of revocation ofthatNAAQS, simply as the area's "designation" and "classification" for the 1997 ozone NAAQS. Similarly, we refer to an area's designation and classification for the 1- hour ozone NAAQS at the time of revocation ofthatNAAQS (June 15, 2005 for mostareas), simply as the area's "designation" and "classification" for the 1-hour ozone NAAQS.

1 2 1One area, the Uintah Basin, UT, was designated as "unclassifiable," and for purposes here would betreated like an area designated "attainment."

122Section IV.Jdetails the proposedroutes to satisfy the anti-backsliding requirements listed in Table 2.

123Ifthe nonattainment area was initially designated attainment for the 1997 ozone NAAQS

or was redesignated to attainment ("Maintenance") for the 1997 ozone NAAQS priorto the date of revocation ofthe 1997 NAAQS, then the area has already fulfilled any applicable 1-hour antibacksliding requirements. For ease ofreference, we refer to these areas as "Maintenance" areas. 

### 34217

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

TABLE 

### 2-2008 OZONE NAAQS TRANSITION OBLIGATIONS

Designation for 2008 Designation for previous Proposed NSR/PSD NAAQS NAAQS (attime of oose Other proposed transition obligations revocation) obligations

1.Attainment

........................ Attainment/Maintenance

..... PSD remains in effect

........ -Area remains subject to existing section 175A maintenance plan for the previous ozone NAAQS and requirements already in the SIP, subject to revision consistent with sections 110(l) and 193. -Section 175A maintenance plan satisfies maintenance requirement under section 110(a)(1). 2. Attainment

........................ Nonattainment for 1997 Nonattainment NSR in ef- -Area remains subject to measures to meet nonozone NAAQS only; or fect until revocation of the attainment requirements already in its adopted nonattainment for 1997 1997 ozone NAAQS; SIP. Removable only with a section 110(l) demand1-hour NAAQS. then PSD applies. onstration and a section 193 demonstration if applicable. -Two alternatives to address section 110(a)(1)

maintenance provision: (a) Area's approved PSD SIP satisfies section 110(a)(1) maintenance provision, or (b) additional maintenance showing under section

110(a)(1). 3. Nonattainment

.................. Attainment/Maintenance

..... Nonattainment NSR applies -Area remains subject to existing section 175A based on 2008 ozone maintenance plan for the previous NAAQS and reNAAQS classification. quirements already in the SIP, subject to revision consistentwith sections 110(l) and 193. 4. Nonattainment

.................. Nonattainment for 1997 Nonattainment NSR applies -Area subject to all applicable anti-backsliding reozone NAAQS only; or based on highest applica- quirements for 1-hr and/or 1997 NAAQS. nonattainment for 1997 ble classification. -Anti-backsliding obligations lifted when the area and 1-hour ozone either is redesignated to attainment for the 2008 NAAQS. ozone NAAQS, orthe EPA approves a redesignation substitute for the revoked 1-hour or 1997 NAAQS -EPA solicitscomment on additional options for lifting anti-backsliding obligations.

2.Requirements for Areas Designated Attainment for the 2008 Ozone NAAQS and (i) Maintenance forthe 1997 Ozone NAAQS or (ii)Nonattainment for the 1997 Ozone NAAQS

In this section the EPA considers the requirements applicable afterrevocation ofthe 1997 ozone NAAQS, to (i) areas that are designated attainment forthe 2008 ozone NAAQS and attainment for the 1997 ozone NAAQS with an approved 175A maintenance plan (hereafter "maintenance for the 1997

ozone NAAQS"), as ofthe date of revocation ofthe 1997 ozone NAAQS, andto (ii)areas that are designated as attainment for the 2008 ozone NAAQS andnonattainment for the 1997 ozone NAAQS. The EPA isproposing a preferred approach and an alternative, less-preferred approach for requirements for areas that are designated attainment for the 2008

ozone NAAQS and nonattainment for the 1997 ozone NAAQS, and a single approach for requirements for areas that

are designated attainment for the 2008

ozone NAAQS and maintenance for the 1997 ozone NAAQS. Appendix D contains a full listofthese areas. a. Background and Overview
The Phase 1Rule for implementation ofthe 1997 ozone NAAQS adopted 40 CFR 51.905(c) and (d). These sections specified requirements applicable to

areas designated attainment for the 1997

ozone NAAQS, and designated nonattainment or redesignated to attainment for the 1-hour ozone NAAQS. These areas were no longer obligated to adopt any outstanding applicable measures for the 1-hour

ozone NAAQS. Sections 51.905(c) and (d)required, however, thatthese areas submit, within 3years ofthe effective date ofdesignation as attainment for the 1997 ozone NAAQS, a maintenance plan under CAA section 110(a)(1) for the 1997 ozone NAAQS. 124 Due to changes thathave occurred since 2004, the EPA is nowproposing as its preferred approach for an area designated attainment for the 2008

ozone NAAQS and redesignated to attainment for the 1997 ozone NAAQS (asofrevocation ofthe 1997 ozone NAAQS), thatthe area's approved 175A maintenance plan will satisfy its maintenance plan obligation for the 2008 ozone NAAQS under section

124 This maintenance plan was required to cover

a 10-year period starting at the effective date of designation and to include contingency measures. 110(a)(1). The EPA is also proposing as its preferred approach for an area designated attainment for the 2008

ozone NAAQS and nonattainment for the 1997 ozone NAAQS (asof revocation ofthe 1997 ozone NAAQS), that the area's approved PSD SIP will satisfyits maintenance plan obligation for the 2008 ozone NAAQS under section 110(a)(1).

The EPAbelieves this is appropriate for several reasons. First,many ofthese

areas are now subject to a number of national rules which were not applicable in 2004. These national rules impose ozone precursor emissions limits on important emission source categories, independent ofthe provisions ofany area-specific maintenance or anti-backsliding plan for

ozone. These rules include the several significant mobile source regulations, emission standards for toxic VOCs, power plant regulations reducing NOx emissions, and the Regional Haze Rule.125 Second, since 2004 a number of

125Mobile source regulations that have begunto reduce emissions since 2004 include the Tier 2 emissions standards for light-duty vehicles, the 2007 emissions standards forheavy-duty on-road vehicles, the clean airnon-road diesel rule that

covers a wide variety ofnon-road equipment and engines, and the locomotive and marinerule that establishes more stringent emissions standards for 

### 34218

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

these areas have also reduced emissions in order to attain the 1997 and/or 2006 PM2.5NAAQS. These PM2.5-related emissions reductions also help reduce and limit growth in ozone precursor emissions. Some ofthese measures will produce large reductions during the 10- year period over which amaintenance plan could be required. Third, the EPA anticipates thatit will complete the next review ofthe ozone NAAQS before any additional section 110(a)(1) maintenance plan requirements could be due with respect to the 2008 ozone NAAQS. Under these circumstances, imposing additional section 110(a)(1) maintenance plan requirements for

areas attaining the 2008 ozone NAAQS could, without compensating benefit,
create a conflict for state resources needed to address a more protective

ozone standard. Finally, these areas are meeting a more protective NAAQS that is directly comparable inform to the 1997 ozone NAAQS, which was not the

case when the anti-backsliding requirements for the 1-hour standard

were created.

An area designated attainment for the 2008 ozone NAAQS has already attained the most stringent existing standard. Except for the substitution of PSD for nonattainment NSR requirements, the area remains subject
to the nonattainment requirements already approved into the SIP, which

can be revised only upon a showing that such revision is consistent with CAA sections 110(1) and 193.126 These sections prevent any SIP revisions that would increase emissions ofany pollutant related to a NAAQS unless a demonstration ofcontinued attainment and maintenance accompanies the revision, and thus these sections effectively function as anti-backsliding provisions. Finally,because the form of the 1997 and 2008 ozone NAAQS is the
same, there isno possibility that an area attaining the 2008 ozone NAAQS could be violating the 1997 ozone NAAQS, which isunlike the relationship that existed between the 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS. Thus, the EPAbelieves that designation as attainment for the 2008

ozone NAAQS should result in no additional new obligations beyond PSD for this large group ofareas, regardless oftheir status for prior standards.

As a result ofthese considerations, the EPA is proposing an approach more suited to areas designated attainment for

engines used inlocomotives and in marine applications.

1 26It should benoted that transportation conformity requirements no longer apply in these

areas after the effective date oftherevocation of the
1997 ozone NAAQS. (77 FR 30160, May 21, 2012). the 2008 ozone NAAQS than the approach contained in thePhase 1Rule. Below we describe ourproposals for

areas that are designated attainment for the 2008 ozone NAAQS and designated (i) maintenance or (ii) nonattainment for the 1997 ozone NAAQS.

b. Proposals
i. Areas Designated Attainment forthe 2008 Ozone NAAQS and Maintenance for the 1997 Ozone NAAQS

For areas designated attainment for the 2008 ozone NAAQS and maintenance for the 1997 ozone NAAQS (asofthe date ofrevocation ofthe 1997

ozone NAAQS), theEPA isproposing that the area's approved section 175A maintenance plan for the revoked 1997

ozone NAAQS satisfies both its obligations for maintenance under section 110(a)(1) for the 2008 ozone NAAQS and its obligation to submit a second approvable maintenance plan under section 175A for the revoked 1997 ozone NAAQS. The EPA's reasoning is as follows. All areas inthis
group are already subject to a section 175A maintenance plan for the revoked 1997 ozone NAAQS, and have been both redesignated to attainment for the 1997 ozone NAAQS and designated attainment for the more stringent 2008

ozone NAAQS. As explained elsewhere, the section 175A maintenance plan for the 1997 ozone NAAQS satisfies the anti-backsliding requirements ofthese

areas for all prior standards. Anyfurther 110(a)(1) maintenance plan requirement under the 2008 ozone NAAQS would be unnecessarily burdensome. No revision
to the section 175A maintenance plans for these areas canbe approved unless it complies with the anti-backsliding checks in CAA sections 110(1) and 193. Thus, the EPA believes strongly that there is nojustification for additional maintenance planburdens tobe imposed on these areas solelybecause at

one time they were designated nonattainment under the revoked 1997

ozone NAAQS. Since these areas were redesignated to attainment forthe 1997

ozone NAAQS prior to its revocation, the EPA's proposed approach recognizes and reflects that status.
ii. Areas Designated Attainment for the 2008 Ozone NAAQS and Nonattainment for the 1997 Ozone NAAQS

The EPA is proposing as itspreferred approach that areas designated attainment for the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS (asofrevocation ofthe 1997

ozone NAAQS) not be required to adopt any outstanding applicable requirements for the revoked 1997 standard. This approach is similar to the approach followed in the Phase 1Rule. The EPA also proposes, in a departure from the Phase 1Rule, thatthe approved PSD SIPs for these areas satisfythe obligation to submit an approvable maintenance plan for the 2008 ozone NAAQS under section 110(a)(1). The EPA's rationale for this approach is as follows: areas designated attainment for the 2008 ozone NAAQS andnonattainment for the 1997 ozone NAAQS (as ofrevocation ofthe 1997

ozone NAAQS) have already attained the most stringent existing standard. These areas thus have developed nonattainment SIPs thatin combination with federal measures and emissions controls in upwind areas have produced sufficient emissions reductions to achieve the more protective 2008 ozone NAAQS. They remain subject to the 1997 nonattainment area requirements already approved into the SIP, which

canbe revised only upon a showing that suchrevision complies with the antibacksliding checks in CAA sections 110(1) and 193. Atthis time, andgiven the succession ofNAAQS ofincreasing stringency thathas occurred, the EPA believes that theburden ofdeveloping

an approvable 110(a)(1) maintenance plan for the 2008 ozone NAAQS would outweigh any compensating benefit for

an area that is already attaining that NAAQS and that is subject to prior nonattainment requirements which are already incorporated into the SIP.

The EPA is proposing a second, and less preferred, alternative for areas designated attainment for the 2008
ozoneNAAQS and nonattainment for the 1997 ozone NAAQS as ofrevocation ofthe 1997 ozone NAAQS. Similar to the approach taken in thePhase 1Rule, under this alternative we propose that the area be required to show maintenance for the 2008 ozone NAAQS. (See proposed regulatory text section 51.1105.) This maintenance showing wouldbe due 3years after the effective date ofdesignations forthe 2008 ozone NAAQS. The maintenance showing would contain a demonstration ofcontinued maintenance ofthe 2008

ozone NAAQS in the area for tenyears from the effective date ofthe area's designation as attainment for the 2008

ozone NAAQS. The EPA proposes a maintenance showing in a form other than a formal SIP revision. Ifthe EPA

were to adopt this option, the EPA would provide guidance regarding the specific elements ofthe maintenance showing. The EPA seeks comment on this option. 

### 34219

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

3.Areas Designated Nonattainment for the 2008 Ozone NAAQS

In the next sections the EPA addresses the transition requirements for three distinctgroups ofareas designated nonattainment for the 2008 ozone NAAQS: those which are also designated nonattainment for the 1997

ozone NAAQS as ofthe time of revocation ofthatNAAQS; those which

are designated maintenance for the 1997

ozone NAAQS as ofthe time of revocation ofthatNAAQS; and those which are also designated nonattainment for both the 1997 and the previously revoked 1-hour ozone NAAQS as ofthe time ofrevocation of the 1997 NAAQS. See Appendix D for

alist ofthese areas.

The EPA is proposing that areas designated nonattainment for the 2008

ozone NAAQS and also designated nonattainment for the 1997 ozone NAAQS, or forboth the 1997 and the 1- hour ozone NAAQS, be subject to antibacksliding provisions as interpreted by 51.1105. In particular, we areproposing that these areas be subject to applicable requirements for any prior standard for which theyremain designated nonattainment at the time ofrevocation ofthe 1997 ozone NAAQS. 1 27 Aswas also the case in the proposed NSR AntiBacksliding Rule, 75 FR 51965, neither oftheEPA's current proposed approaches to allowing removal ofNSR anti-backsliding requirements for a previous NAAQS (as discussed in section IV.J) would have an effect on any source permit conditions established during the time period in which a major NSR program pursuant to

aprevious NAAQS was applied. The NSR regulations do not provide a mechanism for major NSR permit conditions tobe removed from apermit

ormodified when a SIP is laterrevised

so as to remove or change NSR thresholds and/or offset requirements for purposes offuture permitting. Replacement orremoval ofNSR SIP provisions does not relieve sources of their obligations under previously established permit conditions.

Under this proposed rule, areas that

are designated nonattainment for the 2008 ozone NAAQS and are also

127We donotinclude inthesetwo groups any
areas thatwereredesignated toattainment forthe 1997 ozone NAAQS priortorevocation ofthat NAAQS. In order toberedesignated for the 1997

ozone NAAQS, the area had to satisfy all applicable anti-backsliding requirements for the 1-hour ozone NAAQS. Any 1997 ozone NAAQS nonattainment

area that was designated nonattainment for the 1- hoar ozone NAAQS at time ofrevocation ofthe 1- hoar NAAQS had to meet applicable 1-hoar ozone NAAQS anti-backsliding requirements in order to beredesignated to attainment for the 1997 ozone NAAQS. designated nonattainment for a prior

ozone NAAQS (as ofthe revocation of the 1997 NAAQS) will be subject to applicable requirements for thatprior NAAQS, as well as the pertinent requirements for the current 2008 ozone NAAQS. In addition, ifa state seeks to revise any measure already approved into its SIP for any prior standard, the revision must comply with the antibacksliding checks in CAA sections 110(1) and 193.

a. Areas Designated Nonattainment for the 2008 Ozone NAAQS and Maintenance for the 1997 Ozone NAAQS

The EPA is proposing thatfor these
areas, the area's approved section 175A maintenance plan for the revoked 1997

ozone NAAQS would satisfy the obligation to submit a second approvable maintenance plan under section 175A for therevoked 1997

ozone NAAQS. The EPA's reasoning is

as follows. All areas inthis group are already subject to an approved section 175A maintenance plan for the revoked 1997 ozone NAAQS and havebeen redesignated to attainment forthe 1997

ozone NAAQS. As explained elsewhere, the approval ofthe redesignation and of the section 175A maintenance plan for the 1997 ozone NAAQS required the EPA to determine thatthe antibacksliding requirements ofthese areas for the 1-hour standard, as well as those requirements applicable for the 1997 standard, have been met. Thus EPA's approvals ofthe redesignation request and the maintenance plan for the 1997 standard signify not only that all applicable requirements for the 1997

ozone standard havebeen met,but also that all applicable anti-backsliding

measures for the 1-hour standard have been adopted and approved into the SIP. No revision tothe section 175A maintenance plans for these areas can be approved unless itcomplies with the anti-backsliding checks in CAA sections 110(1) and 193.

These areas are also designated nonattainment for the more stringent 2008 ozone NAAQS and therefore are subject tononattainment NSR and other nonattainment requirements for their classification under the more stringent 2008 ozone NAAQS. Thus, the EPA believes strongly that there is no justification for a second 175A maintenance plan tobe imposed on these areas solelybecause at one time they were designated nonattainment under the revoked 1997 ozone NAAQS. Since these areas were redesignated to attainment for the 1997 ozone NAAQS prior to itsrevocation, the EPA's proposed approach recognizes and reflects that status.
b. 2008 Nonattainment Areas Also Designated Nonattainment for the 1997 Ozone NAAQS But Not for the 1-Hour Ozone NAAQS

Tobetter understand how the antibacksliding requirements will affect these areas, it ishelpful to review which

areas are included in this group and their status withrespect to attainment of the 1997 ozone NAAQS. Table 1in Appendix D lists the fifteen areas that

are designated nonattainment for the 2008 ozone NAAQS and which, at the time ofproposal ofthis rule, currently remain designated nonattainment for the 1997 ozone NAAQS but not for the 1-hour ozone NAAQS.128 As Table 1 in Appendix D shows, even though these

areas are currently designated nonattainment for the 1997 ozone NAAQS, the EPA anticipates making final determinations thatmore thanhalf ofthese areas have attained the 1997

ozone NAAQS prior to the date of revocation ofthe 1997 ozone NAAQS pursuant to the EPA's "Clean Data" regulation, 40 CFR 51.918, and anticipates that several ofthese will have been redesignated to maintenance for that standard. Adetermination of attainment suspends obligations for
states to submit attainment-related planning requirements for the 1997

ozone NAAQS for those areas as long as they continue to attain that standard.129

In addition,the EPA notes thattwo

areas in this group are located inthe OTR. For these areas in particular, a nonattainment designation for the 1997

ozone NAAQS does not necessarily indicate current unsatisfactory air quality or unmet SIP requirements with respect to that standard. The CAA requires areas in the OTR, among other
measures, to be subject tocertain nonattainment requirements such as nonattainment NSR even ifthey are redesignated to attainment. Therefore,

even when these areas are eligible for redesignation to attainment, states often elect not to submit a redesignation request for these areas and to undergo the redesignation process because they view the workload involved incommensurate with the benefits of redesignation. Under the EPA's proposal, all areas listed in Table 1of

12 8 The status of someareas listedin Table 1 with respect to the 1997 ozone NAAQS maychange between today and the date that NAAQS is revoked.

129Depending on the area's classification for the 1997 ozone NAAQS and the SIPelements already approved, the area may still have outstanding 1997 anti-backsliding submission requirements that are not suspendedby 51.918 (e.g., nonattainment NSR, Subpart 2 RACT requirements). 

### 34220

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

Appendix D will be subject to antibacksliding requirements for the 1997

ozone NAAQS, unless they are redesignated to attainment for that standard prior toits revocation.

The EPAbelieves that Table 1in Appendix D illustrates thatmany ofthe

areas in this category will have already
met the 1997 ozone NAAQS and will have been redesignated to attainment by the time itis revoked, and thus after revocation ofthatNAAQS, the number ofareas with 1997 anti-backsliding requirements will be correspondingly reduced. Forother areas which remain designated nonattainment for the 1997

ozone NAAQS, under theEPA's Clean Data Regulation, a determination of attainment suspends the obligation to submitcertain attainment-related requirements. Forthose areas which have already incorporated measures into their approved SIPs that satisfythe nonattainment requirements for that standard, section 110(1) functions as an anti-backsliding check to require continued implementation of such

measures unless revised in accordance with itsprovisions.

The EPA is also proposing that once the nonattainment NSR anti-backsliding requirement(s) for the 1997 ozone NAAQS cease to apply, since PSD will then be in effect the state may request that the corresponding NSR requirements be removed entirely, rather than be retained in the SIP as a maintenance plan contingency

measure. 130

c. 2008 Nonattainment Areas Also Designated Nonattainment for the 1- Hour and 1997 Ozone NAAQS

Table 2in Appendix D lists the 18

areas that are currently designated nonattainment for all three ozone NAAQS-the 2008 ozone NAAQS, the 1997 ozone NAAQS and the already revoked 1-hour ozone NAAQS. More than halfofthese areas are located in either California (9) or Texas (2). The remaining 7areas are located in the East. The EPAhas already made final determinations that all 7eastern areas (fivelarge metropolitan areas and two smaller areas), have attained the 1-hour

ozone NAAQS. Anumber ofthe eastern areas-including Washington, DC, Philadelphia and Boston-have met their attainment deadlines forboth the 1-hour and 1997 ozone NAAQS, although they have not undergone the process to be redesignated to attainment for these NAAQS. The EPA proposes

130 See 40 CFR 51.905(a)(3), the comparable provision for transitions from the 1-hoar NAAQS to the 1997 ozone NAAQS, which allows states to request that the 1-hoar nonattainment NSR provisions beremoved from the SIPfor such areas. that, upon revocation ofthe 1997 ozone NAAQS, the areas listed in this group will be subject to applicable requirements, including nonattainment NSR, for the 1-hour and 1997 ozone NAAQS (tothe extent those requirements have not been suspended by a Clean DataDetermination), unless they havebeen redesignated to attainment for the 1997 ozone NAAQS prior to itsrevocation. Implementation ofmeasures previously approved into a SIP for either the 1-hour ozone NAAQS

or the 1997 ozone NAAQS must continue unless the SIP isrevised in accordance with the anti-backsliding checks in CAA sections 110(1) and 193.
4. Summary

a. Areas Designated Attainment for the 2008 Ozone NAAQS

Areas designated attainment for the 2008 ozone NAAQS are meeting the current, most stringent ozone standard. Section 110(1) functions as an antibacksliding provision to assure that the
state may not revise any previously approved SIP provision without a showing thatthe revision willnot interfere with attainment and maintenance or any other CAA requirements.

i. Attainment for the 2008 Ozone NAAQS and Maintenance for the 1997 Ozone NAAQS

Areas in this category (designated attainment for the 2008 ozone NAAQS and maintenance for the 1997 ozone NAAQS, as ofrevocation ofthe 1997

ozone NAAQS) have fulfilled all antibacksliding requirements for prior standards through their section 175A maintenance plans, and are not obligated to meet further requirements with respect to those standards. The EPA proposes no further requirements for these areas, apart fromthe requirements in their approved SIPs. The areas' approved section 175A maintenance plans for the 1997 ozone NAAQS also satisfy their obligations for maintenance plans for the 2008 ozone NAAQS pursuant to section 110(a)(1).

ii. Attainment for the 2008 Ozone NAAQS and Nonattainment forthe 1997 Ozone NAAQS

In the case ofareas designated attainment for the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS (asofrevocation ofthe 1997

ozone NAAQS), a state 131 may, upon

131Thisapproach wouldnot applytoareas located in the OTR and designated attainment, since the CAArequires these areas remain subject toModerate nonattainment NSRrequirements notwithstanding designation. revocation ofthe 1997 ozone NAAQS, request that any requirements for nonattainment NSR included in the SIP for that revoked NAAQS be removed. In place ofnonattainment NSR, these areas would be required toimplement PSD requirements after the revocation ofthe 1997 ozone NAAQS. (As explained above, until the 1997 ozone NAAQS is revoked, nonattainment NSR applies.)

For these areas, the EPA is proposing
to adopt as itspreferred alternative that the SIP-approved PSD program that would apply to the area satisfies the maintenance plan obligation underCAA section 110(a)(1) for the 2008 ozone NAAQS; or as a less-preferred alternative, the EPA isproposing a requirement for an additional maintenance showing for the 2008

ozone NAAQS. (See proposed regulatory text 51.1105(a)(3).) b. Areas Designated Nonattainment for
the 2008 Ozone NAAQS
i. Areas Designated Nonattainment for the 2008 Ozone NAAQS and Maintenance for the 1997 Ozone NAAQS

The areas in this category are designated nonattainment for the 2008

ozone NAAQS and were (orwill be) redesignated to attainment for the 1997

ozone NAAQS prior to itsrevocation. Thus, they are subject to section 175A maintenance plans for the 1997 ozone NAAQS. Having attained andbeen redesignated to attainment with a maintenance plan for the 1997 ozone NAAQS assures thatthe EPAhas reviewed the area's approved maintenance SIP and has determined that itaddresses all applicable antibacksliding requirements for both the 1997 and 1-hour ozone NAAQS. The EPA believes thatthe approved SIP for these areas satisfies applicable antibacksliding requirements. These areas

are subject to nonattainment NSR and other nonattainment requirements for their classification under the 2008

ozone NAAQS.

The EPA wishes to solicit comments

on ways tointegrate requirements from existing NAAQS with those ofnew NAAQS so as to prevent their interaction from draining resources rather than protecting airquality. The EPA will consider suggestions for mitigating the cumulative effect ofantibacksliding requirements when they would frustrate, rather than further efforts topreserve and improve air quality. The EPA seeks ways to synthesize and reconcile antibacksliding obligations with current planning and control efforts, so as to 

### 34221

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

preserve scarce resources without sacrificing air quality protection.

ii. Areas Designated Nonattainment for the 2008 Ozone NAAQS and Also Nonattainment for a Prior Revoked Ozone NAAQS

The EPA is proposing that an area designated nonattainment for the 2008

ozone NAAQS and nonattainment for the 1997 ozone NAAQS at the time of revocation ofthe 1997 ozone NAAQS will be obligated to implement the applicable requirements set forthin 51.1100(o) for the 1997 ozone NAAQS. Ifthe area isalso designated nonattainment for the 1-hour ozone NAAQS and subject to applicable requirements for that NAAQS atthe time ofrevocation ofthe 1997 ozone NAAQS, the state must also continue addressing those applicable 1-hour

ozone NAAQS requirements for that

area. These areas must apply nonattainment NSR in accordance with their highest nonattainment classification under any ozone standard for which they are (orwere atthe time ofrevocation) designated nonattainment, as well as any section 185 requirements for areas classified Severe or Extreme atthe time of revocation for a prior standard.

J.Satisfactionof Anti-backsliding Requirements foranArea
The EPA is proposing two acceptable procedures through which a state may demonstrate thatit isno longer required
to adopt any applicable requirements for

an area which have not alreadybeen approved into the SIP for arevoked

ozone NAAQS, through which it may

remove nonattainment NSR provisions from the SIP and, upon a showing of consistency with the anti-backsliding checks in CAA sections 110(1) and 193 (ifapplicable), itmay shift to the contingency measures portion ofthe SIP requirements which are already contained in the SIP.132

Procedure 1: Redesignation to Attainment for the 2008 Ozone NAAQS

The first ofthese procedures is formal redesignation ofthe area to attainment for the 2008 ozone NAAQS. This process is an extension ofthe approach EPA adopted in thePhase 1Rule. Redesignation to attainment for the 2008

ozone NAAQS would allow a state to terminate and remove from its SIP for an

area any nonattainment NSR requirements associated with its classifications under the 2008 ozone

1 3 2Nonattainment NSR is not required to be
retained inthe SIP as a contingency measure. This isbecause for attainment areas, PSD replaces nonattainment NSR. NAAQS, or under the 1997 or 1-hour

ozone NAAQS, except for areas in the OTR as noted above. The area would instead apply PSD. We are proposing that once the area isredesignated and the requirement(s) for nonattainment NSR for the 2008 ozone NAAQS and for any prior ozone NAAQS cease to apply, the state may request thatthe corresponding NSR requirements be removed from the SIP rather thanbe retained as a maintenance plan contingency measure. This approach is consistent with the EPA'slongstanding interpretation ofNSR requirements for

areas that are redesignated to attainment. 133Redesignation to attainment would also terminate any section 185 obligations applicable to a Severe or Extreme Area for the 2008 or prior revoked 1997 or 1-hour ozone NAAQS pursuant tothe express terms ofCAA section 185.

For areas subject to anti-backsliding requirements for revoked standards, approval ofredesignation to attainment for the 2008 ozone NAAQS signifies that the state has satisfiedits obligations to adopt anti-backsliding requirements for the revoked standards. This same approach was used in the Phase 1Rule in requiring redesignations for the 1997

ozone NAAQS to address antibacksliding requirements for the revoked 1-hour standard. Approval of the section 175A maintenance plan for the 2008 ozone NAAQS assures that the area's SIP includes the provisions
necessary for maintenance ofthe 2008

ozone NAAQS, which is the most stringent ofthe NAAQS. Therefore, upon redesignation to attainment and approval ofitsplan for maintenance of the 2008 ozone NAAQS, an area has satisfied its obligations to adopt antibacksliding requirements. All ofthe anti-backsliding measures that have been approved into the SIP must continue tobe implemented unless or until the state can show that such implementation isnot necessary for maintenance, consistent with section 110(l) and section 193 ifapplicable. This showing maybe submitted to the EPA at the same time as the maintenance plan, and may be approved by the EPA in a single action. Subject
to this process, anti-backsliding requirements contained in the SIP could be shifted to the contingency measures portion ofa section 175A maintenance

133 See 40CFR 51.905(a)(3), the comparable provision for transition from the 1-hour NAAQS to the 1997 ozone NAAQS, which allows such areas to request that the 1-hour nonattainment NSR provisions beremoved from the SIP. plan, or, in limited circumstances 134 removed from the SIP.

Procedure 2: Providing a Redesignation Substitute for Revoked NAAQS

In addition to the redesignation ofan
area to attainment for the 2008 ozone NAAQS, the EPA isproposing a new separate route for satisfying antibacksliding requirements for a revoked 1997 or 1-hour ozone NAAQS. The EPA's experience in implementing the anti-backsliding requirements in the Phase 1Rule hastaughtthat the EPA should provide an additional mechanism to allow for satisfaction of anti-backsliding requirements for a revoked standard.

Under the Phase 1Rule, the EPA lacked a rule-based method that, like redesignation to attainment for a current standard, could serve as a demonstration that applicable nonattainment requirements for a revoked standard have been satisfied. Because the EPA can no longer formally redesignate areas to attainment for a standard after that standard isrevoked, the only reliefthe Phase 1Rule provided to areas subject to outdated anti-backsliding requirements for the revoked 1-hour ozone NAAQS was redesignation to attainment for the 1997

ozone NAAQS that replaced it.The lack ofanother avenue ofreliefcreated hardship and confusion, particularly with respect to terminating 1-hour

ozone nonattainment NSR and section 185 program feerequirements.

As we confront theissue again, this time for areas which, in some cases, are subject to anti-backsliding requirements for two revoked ozone standards, the EPA nowrecognizes the need to create

an alternative other than formal redesignation to attainment for the 2008

ozone NAAQS. Unless we provide a second mechanism, after revocation of the 1997 ozone NAAQS, areas that attain andmeet requirements for the revoked 1997 or 1-hour ozone NAAQS will be treated more harshly than areas that were redesignated to attainment for those standards prior to their revocation. Areas thatwould otherwise have qualified for redesignation to attainment for the 1997 or 1-hour ozone NAAQS, were it not fortheir revocation, would have to waittobe relieved of outdated requirements until they also qualify for redesignation to attainment for the more stringent 2008 ozone NAAQS. The EPAbelieves that, under any view ofanti-backsliding for a revoked standard, it should not mean

1 34As explained inthe text above, nonattainment NSRrequirements can beremoved from the SIP entirely. 

### 34222

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

imposing more onerous terms than those thatwould apply ifthe standard had not been revoked.

Therefore, in addition toformal redesignation to attainment for the 2008

ozone NAAQS, theEPA isproposing a separate mechanism for satisfaction of anti-backsliding requirements for a revoked 1997 or 1-hour ozone NAAQS. Because the EPA can no longer formally redesignate areas for a revoked standard, under this option, areas wouldbe eligible to qualify for satisfaction of applicable requirements for therevoked 1-hour or 1997 ozone NAAQS by submitting a showing thatfunctions as

a substitute for redesignation to attainment for that revoked standard, andinsures thatthe substance ofthe redesignation requirements are met.For

arevoked standard, this second mechanism would serve as a successor to redesignation to attainment, for which the area would havebeen eligible

were itnot for revocation. See,for example, CAA section 185, which states that the obligation to implement a fee program terminates when "the area is redesignated as an attainment area for ozone." Thus, redesignation to attainment for the 1-hour ozone NAAQS ifitwere still possible would have clearly relieved the area ofthis obligation with respect tothat standard.

For an area to show thatit qualifies for this redesignation substitute, the EPA proposes that the state provide a showing that addresses the substance of the redesignation criteria. After noticeand-comment rulemaking on this showing, the EPA approval ofthe showing would have the same effect on the area's nonattainment antibacksliding obligations as would a redesignation to attainment for the revoked standard.

The EPAproposes thatthe showing, based onthe CAA's criteria for redesignation to attainment (CAA section 107(d)(3)(E)), would include: Attainment ofthe relevantrevoked 1- hour or 1997 ozone NAAQS; a showing that attainment was due to permanent andenforceable emissions reductions; and a demonstration thatthe area can continue to maintain the standard over the next 10 years. Redesignation criteria in section 107(d)(3)(E)(ii) and (v)would be met by the existing approved SIP, under which the area has attained the revoked standard, in the context of (and reinforced by) therequirements for the

new 2008 ozone NAAQS. We believe that, for a revoked standard, this approach results in a notice-andcomment process thatfulfills the function ofredesignation to attainment for the purpose ofsatisfying requirements for anti-backsliding requirements for a revoked standard. SeeCAA sections 107(d)(3)(E) and 175A. While we do not propose to require formal SIP submission procedures, since areas will not actually be redesignated under this option, the EPA will conduct notice-and-comment rulemaking on the state's showings. The EPAbelieves thatrequiring more elaborate administrative procedures would needlessly impose burdens on the area, which will remain subject to all the formal requirements for redesignation to attainment for the 2008

ozone NAAQS. Development ofthese SIP revisions takes time, and can impose costs to both industry and the public. Under these circumstances, itis consistent with the requirements ofantibacksliding for areas underpressure from multiple environmental obligations to be relieved ofprocedural burdens once the area has attainedthe revoked standard. Asin the case ofa redesignation to attainment for the 2008

ozone NAAQS, at thetime of submitting

a redesignation substitute or at any time thereafter, a state may request torevise its SIP so as to cease implementing a specific nonattainment SIP requirement. However, this request could notbe granted, and the SIP revised, until the EPA approves the redesignation substitute and a demonstration thatthe SIP revision meets the requirements of section 110(1). The EPA is not providing this mechanism for the purpose of allowing areas to avoid requirements needed for attainment and maintenance ofthe NAAQS. The showings required, the provisions ofsection 110(1), and the fact thatthe area remains subject to the

more stringent 2008 ozone NAAQS,

assure thatis notthe case. It is, however, important to relieve areas of requirements that are no longer necessary, or that canbe replaced by other forms ofprotection thatmight better meet local needs and circumstances.

The EPA notes thatthis proposed option, a redesignation substitute procedure for therevoked 1-hour or 1997 ozone NAAQS, is more stringent than an option previously adopted in the EPA's Phase 1Rule (69 FR 23982). It requires a more extensive showing than mere attainment oftherevoked standard. We also note that section 172(e) does not address when antibacksliding requirements can be removed. Nor does the South Coast decision clearly answer this question. Here, the EPA isproposing a mechanism that demands more than a determination ofattainment ofthe prior standard, andcalls for a showing that addresses redesignation criteria for that standard. Moreover the process under this option occurs while the area remains subject to ongoing requirements
to meetthe new more stringent standard. In this context, the proposed option isclearly sufficient for itslimited anti-backsliding purpose: Itrecognizes and supports the area's progress in having attained theprior standard due
to permanent and enforceable emissions reductions, and reinforces continued attainment by calling for a demonstration thatthe area can maintain the revoked standard.

Under both ofthe EPA'sproposed procedures, a state seeking to revise its SIP toremove anti-backsliding measures from the active portion ofits SIP must demonstrate, pursuant to section 110(1), that such revision wouldnot interfere with attainment or maintenance ofany applicable NAAQS, or any other requirement ofthe CAA.13 5

The EPA seeks comments onits proposed approaches for the final rule. Additionally, as mentioned in section IV.H.1 above, the EPA is soliciting
comments on additional routes to lifting nonattainment NSR requirements tiedto the revoked 1997 and 1-hour ozone NAAQS, where the 2008 nonattainment NSR requirements would remain in place. These additional processes, like the redesignation substitute option the EPA isproposing, would operate to lift the nonattainment NSR requirements for the revoked NAAQS while retaining the NSR Requirements for the 2008 ozone NAAQS. The EPA asks thatcommenters provide supporting legal rationales for any additional option, taking into
account the D.C. Circuit's decision in South Coast.

K.Howwill theEPA's determinationof attainment("CleanData")regulation apply forpurposesoftheantibackslidingrequirements?

The EPA, in itsPhase 1Rule, codified its long-standing interpretation under the Clean Data Policyin a regulation. Under 40 CFR 51.918, an EPA determination that an area is attaining the 1997 ozone NAAQS suspends the obligation to submit any attainmentrelated SIP elements for the 1997 ozone NAAQS not yet approved in the SIP, for

so long as the area continues in attainment ofthat NAAQS.136 The EPA

135Likewise to the extent a SIPrevision seeking
to remove anti-backsliding measures modifies control requirements subject to section 193, the revision would alsohave to satisfy the requirements ofthat provision.

1 36The EPA initiallyissued the Clean Data Policy
in 1995, "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient AirQuality Standard."
Continued 

### 34223Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

in this rulemaking isproposing to apply this same approach withrespect to determinations ofattainment forthe 2008 ozone NAAQS. Moreover, in order
to reflect the intended ongoing status of the Clean Data Policy and to consolidate in one regulation a comprehensive provision applicable to determinations ofattainment for the current andformer

ozone NAAQS, theEPA proposes, after revocation ofthe 1997 ozone NAAQS, to replace 40 CFR 51.918 with proposed 40 CFR 51.1118. Section 51.1118 applies essentially the same language as 51.918. Upon revocation ofthe 1997 ozone NAAQS, this section wouldbe applicable to determinations of attainment for all ozone NAAQS: the 2008, 1997 and the already revoked 1- hour ozone NAAQS. Ifsection 51.1118 is finalized, the EPA'slong-standing Clean Data Policy, which has been upheld by the D.C. Circuit and all other
courts that have considered it,willbe embodied in a regulation applicable, afterrevocation ofthe 1997 ozone NAAQS, for the purpose ofall existing andprior ozone NAAQS. The planning elements that are suspended under section 51.1118 would be the same as those suspended under existing section 51.918: RFP requirements, attainment demonstrations, RACM, contingency

measures and other state planning requirements related to attainment of the relevant standard. Fora Severe or Extreme area, a section 185 fee program isby its express terms linked to an attainment demonstration; therefore suspension ofthe obligation to submit the attainment demonstration also suspends the obligation to submit the fee program which is part ofthe attainment demonstration (provided that theEPA has not already determined that the area failed to attain by its attainment deadline). The EPA notes that a determination ofattainment would not, however, suspend obligations to submit NSR, subpart 2 RACT or emission inventories under section 182(a)(1).

L. What is therelationshipbetween implementationofthe2008ozone NAAQS andthe CAA title Vpermits program?

We areproposing, and soliciting
comment on, two alternative approaches for implementing the title V permit program for sources in areas designated nonattainment for the 2008 ozone

Memorandum fromJohn S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. For purposes ofthe 1997 ozone NAAQS, we codified that policy at 40 CFR51.918. This codified policy was upheldby the D.C. Circuit in AtRDC v. EPA 571 F.3d 1245 (DC 2009). NAAQS and subject to anti-backsliding requirements for a prior ozone NAAQS. One ofthe ways a source canbecome subject totitle V is as a "major source." SeeCAA section 502(a); 40 CFR 70.3; 71.3. Furthermore, the definition of "major source" for purposes oftitle V includes, but isnot limited to, a "major stationary source as defined

. . . in part D" oftitle 1. 137 SeeCAA section 501(2)(B); 40 CFR 70.2; 71.2. Thus, changes in an area's classification (e.g., from "Serious" to "Severe") by changing the emissions threshold for being deemed a major source (e.g., from 100 tpy to 50 tpy ofa relevant pollutant)

can result in changes in title V applicability for a source. 138

Between the effective date ofarea classifications for the 2008 ozone NAAQS and the revocation date ofthe 1997 ozone NAAQS, the major source thresholds forboth the 1997 ozone NAAQS classifications andthe 2008

ozone NAAQS classifications are in effect under part D oftitle I,1 a9and therefore under title V as well.However, after revocation ofthe 1997 ozone NAAQS and the corresponding area classifications for that NAAQS, the question arises as to whether only the major source thresholds for the 2008

ozone NAAQS designations and classifications are relevant for determining whether a source is major for ozone precursors for purposes oftitle V.As discussed below, theEPA is coproposing and soliciting comments on the following two alternative approaches for determining whether a

source is a "major stationary source as

137The EPA notes that sources can become subject to title Vpermitting for other reasons, and nothing in this discussion is intended to suggest that changes in anarea's classification wouldaffect those other provisions oftitleV. Accordingly,

sources subject to title V under otherprovisions would remain subject to title V for those independent reasons.

138 It should benoted that, pursuant to CAA section 503(a), a source is subject to a permit
program on the later of the date that itbecomes a major source and the effective date ofa permit
program applicable to the source. Thus, ifa permitting authoritywith an approved title V program lacks any authority to permit certain

sources that aremajor sources subject to title V as

a result ofozone precursor emissions and an area classification forozone that has a major source threshold lower than 100 tpy (e.g., "Serious") then there is no title V permit program "applicable to the source" and those sources have no obligation to apply for a title V permit until after such time as

a permit program becomes applicable to them. The EPA will work with States to ensure that all approved title V programs are adequate under the CAA.

139 It should benoted that the major source threshold associated with an area's 1-hour ozone NAAQS classification may bethe applicable threshold for at least some purposes where antibacksliding requirements forthe 1-hour ozone NAAQS apply in the area. defined in

. . .part D" for purposes of title V after the revocation ofthe 1997

ozone NAAQS: (1)The major source threshold for title V in an area isthe

same as the major source threshold for purposes ofrequirements such as NSR andRACT (i.e., the major source threshold associated with the area's classification for the 1997 and/or 1-hour

ozone NAAQS may be the applicable threshold for title V purposes, to the
extentthat anti-backsliding requirements for the 1997 and/or 1-hour

ozone NAAQS apply in the area); and (2)the major source threshold for title V in the area depends solely onthe area's classification for the 2008 ozone NAAQS.

In the Phase 2Rule for implementing the 1997 ozone NAAQS, theEPA discussed, in response to comments, its approach to implementing title V during the transition to implementation ofthe 1997 ozone NAAQS. See 70FR 71689- 71691. Specifically, the EPA recognized that thePhase 1Implementation Rule retained themajor source applicability cut-offs associated with the prior 1-hour

ozone NAAQS for purposes ofRACT as
an anti-backsliding requirement. In otherwords, an area classified as Moderate for the 1997 ozone NAAQS, but Serious for the 1-hour ozone NAAQS, wouldbe treated as a Serious

area and required to applymajor source RACT to sources above the major source threshold for Serious areas (i.e., 50 tpy

ormore ofVOC or NOx). In the Phase 2Rule, theEPA concluded thatthe antibacksliding provisions ofthe Phase 1 Implementation Rule were not relevant
to the definition ofmajor source for purposes oftitleV. The EPA suggested the anti-backsliding provisions could
not change the major source thresholds for title V, as those are defined in the
statute. See 70 FR 71690.

Following theEPA's promulgation of the Phase 2Rule, the U.S. Court of Appeals for the D.C. Circuit issued its ruling on challenges tothe Phase 1Rule, which had established which requirements for the 1-hour ozone NAAQS would be retained as antibacksliding requirements, and found that EPA erred in its approach to antibacksliding by not requiring states to retain, as applicable requirements, all control measures that applied for the 1- hour ozone NAAQS. South CoastAir Quality ManagementDistrictv. EPA, 472 F.3d 882 (D.C. Cir. 2006). Accordingly, today's proposal not only includes RACT as an anti-backsliding
measure, with the major source thresholds that applied to areas under the 1997 ozone NAAQS or 1-hour ozone NAAQS (i.e., where such thresholds are

more restrictive than the thresholds 

### 34224

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

applicable to areas under their classifications for the 2008 NAAQS), but also includes the requirement for these

areas tocontinue to implement NSR using the major source thresholds that applied under the 1997 ozone NAAQS
orthe 1-hour ozone NAAQS, where those thresholds are more restrictive than the threshold applicable to an area under its classification for the 2008 NAAQS. In lightofthe D.C. Circuit's decision in South Coast,and the current approach ofthis proposed ruleto retain

as anti-backsliding requirements the RACT and NSR obligations, including the major source applicability thresholds associated with prior NAAQS, the EPA solicits comment on appropriate approaches to titleV applicability during the transition tothe 2008 ozone NAAQS. In summary, EPA is co-proposing two approaches to interpreting title V applicability requirements following revocation of the 1997 ozone NAAQS: (1)Major

source thresholds for title V shouldbe the same as the major source thresholds applicable for purposes ofother requirements such as RACT andNSR; and (2)major source thresholds for title V depend solely on the area's classification for the 2008 ozone NAAQS.

In particular, the EPA solicits
comments on whether title V should (or should not)be considered a"control," within the meaning ofsection 172(e) in light ofthe factthattitle V generally does not impose new substantive air quality control requirements but is intended to assure compliance with all suchexisting requirements. The EPA also solicits comments on the consistencyof thetwo proposed approaches with the language and purposes ofthe Act, in light ofthe major

source thresholds under the revoked standard being retained for requirements such as RACT andNSR. The EPA generally solicits comment on other legal or policy issuesrelevant to these two approaches.

Because the EPA would benefit from public comment on these issues, the EPA is co-proposing these two approaches and, following review of public comments on the issues raised by each approach, intends to adopt one of the approaches in the finalrule. Aspart ofthe proposal to retain major source applicability thresholds for the 1997 and/or 1-hour classifications, the EPA is alsoproposing to make minor conforming amendments to the definition of"major source" in40 CFR 70.2 and 71.2 by inserting after each

occurrence ofthe word "classified" in paragraph (3)the phrase "or treated as classified" in order to make clear that sources subject to major source thresholds pursuant to a revoked standard for controls are also subject to the same major source thresholds for
purposes oftitle V. The EPA further solicits comments on the proposed conforming amendments, and on whether additional changes, different changes, or no changes to parts 70 and 71, and to approved state title V programs, wouldbe necessary, ifthe EPA concluded thatthe thresholds under the 1997 and/or 1-hour classifications should be retained for purposes oftitle V.

V. Statutoryand Executive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview andExecutive Order13563:ImprovingRegulationand RegulatoryReview

This action is not a "significant regulatory action" under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and istherefore not subject toreview under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork ReductionAct
The information collection requirements in this proposed rule have been submitted for approval to the OMB under the Paperwork ReductionAct, 44 U.S.C. 3501 etseq. The Information Collection Request (ICR) document prepared by the EPAhasbeen assigned the EPA ICR number 2347.01.

The EPA is proposing this 2008 ozone NAAQS SIP Requirements Rule so that
states will know what CAA requirements apply to their nonattainment areas when the states develop their SIPs for attaining and maintaining the NAAQS. The intended effect ofthe SIP Requirements Rule-in conjunction with the rule on other aspects ofimplementation-is to provide certainty to states regarding their planning obligations such that
states maybegin SIP development. For purposes ofanalysis ofthe estimated paperwork burden, theEPA assumed 46 140 non-attainment areas, some of which must prepare an attainment demonstration as well as submit an RFP and RACT SIP. The attainment demonstration requirement would appear as 40 CFR 51.908 which implements CAA subsections 172(c)(1), 182(b)(1)(A) and 182(c)(2)(B). The RFP SIP submission requirement would
appear in 40 CFR 51.910, and the RACT SIP submission requirement would appear in 40 CFR 51.912, which

140 77 FR 30088, May 21, 2012. implements CAA subsections 172(c)(1) 182(b)(2),(c),(d) and (e).

States should already have information from emission sources, as facilities shouldhave provided this information to meet 1-hour and 1997

ozone NAAQS SIP requirements, operating permits and/or emissions reporting requirements. Such information does not generally reveal the details ofproduction processes. But, to the extent it may, confidential business information for the affected facilities is protected. Specifically, submissions ofemissions and control efficiency information thatis confidential, proprietary and trade
secret isprotected from disclosure under the requirements ofsubsections 503(e) and 114(c) ofthe CAA.

The annual burden for this information collection averaged over the first 3years ofthis ICR is estimated to be a total of 120,000 laborhours per year atan annual labor cost of$2.4 million (presentvalue) over the 3-year period or approximately $91,000 per state for the 26 state respondents, including theDistrict ofColumbia. The
average annual reporting burden is 690 hours per response, with approximately 2responses per state for 58 state respondents. There are no capital or operating and maintenance costs associated with theproposed rule requirements. Burden is defined at 5 CFR 1320.3(b).

An agency may not conduct or sponsor, and a person is notrequired to respond to, a collection ofinformation unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in40 CFR are listed in 40 CFR part 9.

To comment on the agency's need for this information, the accuracy ofthe provided burden estimates and any suggested methods for minimizing respondent burden, the EPA has established a public docket for this rule, which includes this ICR, underDocket ID number EPA-HQ-OAR-2010-0885. Commenters should submit any comments related to theICR to both the EPA and OMB. See the ADDRESSES section atthebeginning ofthis notice for where to submit comments tothe EPA. Send comments to OMB at the Office ofInformation and Regulatory Affairs, Office ofManagement and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB isrequired
to make a decision concerning the ICR between 30 and 60 days afterJune 6, 2013, a commentto OMB isbest assured ofhaving its full effect ifOMB receives it byJuly 8, 2013. The final rule will respond to any OMB or public 34225

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

comments on the information collection requirements contained in thisproposal.

C.RegulatoryFlexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare

aregulatory flexibility analysis ofany regulation subject to notice and
comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies therule will not have a significant economic impact on a substantial number of small entities. Small entities include smallbusinesses, small organizations and small governmental jurisdictions.

For purposes ofassessing theimpacts oftoday's rule on small entities, small entity is defined as: (1)A smallbusiness

as defined in the Small Business Administration's (SBA) regulations at 13 CFR 121.201;) (2)a small governmental jurisdiction thatis a government ofa city, county, town, school district or special district with a population ofless than 50,000; and (3)a small organization that is any not-for-profit enterprise which isindependently owned and operated and is not dominant in itsfield.

After considering the economic impacts oftoday's proposed rule on small entities, Icertify thatthis action will not have a significant economic impact on a substantial number of small entities. This proposed rule willnot impose any requirements directly on small entities. Entities potentially affected directly by this proposal include state, local and tribal governments and none ofthese governments are small governments. Othertypes ofsmall entities are not directly subject to the requirements of this rule because this action only addresses whether a SIP will provide for adequate attainment and maintenance of the NAAQS and meet the obligations of the CAA.

We continue to be interested in the potential impacts ofthe proposed rule

on small entities and welcome
comments on issues related to such impacts.

D. UnfundedMandatesReformAct

This action contains no federal mandate under the provisions oftitle II ofthe Unfunded Mandates Reform Act of1995 (UMRA), 2U.S.C. 1531-1538 for state, local and tribal governments, in the aggregate, or the private sector. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of section 202 and 205 ofthe UMRA. This action is also not subject tothe requirements of section 203 ofthe UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The CAA imposes the obligation for states to submit SIPs toimplement the 2008

ozone NAAQS; in this rule, the EPA is merely explaining those requirements.

E.Executive Order13132:Federalism

This action does not have federalism implications. It willnot have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. The requirement to submit SIP revisions to meet a revised ozone standard is imposed by the CAA. This proposed rule, ifmade final, would interpret those requirements as they apply to the 2008 ozone NAAQS. Thus, Executive Order 13132 does not apply to these proposed regulation revisions.

In the spirit ofExecutive Order 13132 and consistent with the EPApolicy to promote communications between the EPA and state and local governments, EPA specifically solicits comments on this proposed action from state and local officials. In addition, the EPA intends tomeet with organizations representing state and local officials during the comment period for this action.

F.Executive Order13175:Consultation andCoordinationWithIndian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It would not have a substantial direct effect on one or more Indian tribes, since no tribe has to develop a SIP under these proposed regulatory revisions. Furthermore, these proposed regulation revisions do not affect the relationship or distribution ofpower and responsibilities between the federal government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship ofthe federal government and tribes in developing plans to attain the NAAQS, and these revisions to the regulations do nothing to modifythat relationship. Thus, Executive Order 13175 does not apply to this action.

Although Executive Order 13175 does
not applyto this action, the EPA met with tribal officials in developing this action. Meeting summaries are contained in the docket for this rulemaking. The EPA specifically solicits additional comment on this proposed action from tribal officials.

G.Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

The EPA interprets EO 13045 (62FR 19885, April 23, 1997) as applying only
to those regulatory actions that concern health or safety risks, suchthat the analysis required under section 5-501 of the EO hasthe potential to influence the regulation. This action is not subject to EO 13045 because itdoes not establish

an environmental standard intended to mitigate health or safety risks. These proposed revisions address whether a SIP willbe adequate to attain and maintain the NAAQS and will meet the obligations ofthe CAA. The NAAQS are promulgated to protect the health and welfare of sensitive population, including children.

H. Executive Order13211:Actions Concerning RegulationsThat Significantly Affect EnergySupply, Distribution,or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it isnot a significant regulatory action under Executive Order 12866.

L NationalTechnology Transferand AdvancementAct

Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104- 113, section 12(d) (15 U.S.C. 272 note) directs theEPA touse voluntary

consensus standards in itsregulatory 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) thatare developed or adopted byvoluntary consensus standardsbodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides
not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of anyvoluntary consensus standards.

J.Executive Order12898:Federal Actions ToAddressEnvironmental JusticeinMinorityPopulations 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 

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

federal agencies, to the greatest extent practicable and permitted by law,to make environmental justice part oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheirprograms, policies and activities on minority populations and low-income populations in the United States.

The EPAhas determined thatthis proposed rule will not have disproportionately high and adverse human health or environmental effects

onminority or low-income populations because it does not affect the level of protection provided to human health or the environment. The proposed revisions to the regulations would, if promulgated, revise the substantive requirements for SIPs to attain the NAAQS, which are designed toprotect all segments ofthe general populations. As such, they do not adversely affect the health or safety ofminority or lowincome populations and are designed to protect and enhance thehealth and safety ofthese and other populations.

K.DeterminationUnderSection307(d)

Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) ofthe CAA, the Administrator proposes to determine that this action is subject to the provisions of section 307(d). Under section 307(d)(1)(V), the provisions of section 307(d) apply to "such other actions as the Administrator may determine."
Appendix A to Preamble Glossary ofTerms and Acronyms
ACT Alternative ControlTechniques

(document) AERR Air Emissions Reporting

Requirements Rule BACT Best Available Control Technology CAA Clean Air Act CAAAC Clean Air Act Advisory Committee CAIR Clean Air Interstate Rule CERR Consolidated Emissions Reporting

Rule CFR Code ofFederal Regulations CO Carbon Monoxide CSAPR Cross-State Air Pollution Rule CTG ControlTechnique Guideline DOT Department ofTransportation DV Design Value EMFAC EMissions FACtors (amobile

emissions model) ESRP Emissions Statement Reporting

Program EGU Electricity Generating Unit EO Executive Order EPA Environmental Protection Agency FIP Federal Implementation Plan GDF Gasoline dispensing facilities HEDD High Electric Demand Day ICR Information Collection Requirement I/M Inspection and Maintenance (i.e., smog

check) km Kilometers LAER Lowest Achievable Emission Rate MACT Maximum Achievable Control

Technology MCR Mid-course Review MPO Metropolitan Planning Organization NAAQS National Ambient Air Quality

Standards NOx Nitrogen Oxides NPRM Notice ofProposed Rulemaking NSR New Source Review NTTAA National Technology Transfer and

Advancement Act of 1995 OMB Office ofManagement and Budget OTR Ozone Transport Region ORVR Onboard refueling vapor recovery PM Particulate Matter PM 2.5 Fine Particulate Matter ppb Parts per Billion
ppm Parts per Million PSD Prevention ofSignificant Deterioration RACM Reasonably Available Control

Measures RACT Reasonably Available Control

Technology RFA RegulatoryFlexibility Act RFG Reformulated Gasoline RFP Reasonable Further Progress ROP Rate ofProgress RPO Regional Planning Organization SBA Small Business Administration SIP State Implementation Plan TAR Tribal Authority Rule TAS Treatment in the Same Manner as a

State ("Treatment as State") TIP Tribal Implementation Plan; also

Transportation Improvement Program (depending on context) tpd Tons Per Day tpy Tons Per Year TSP Total Suspended Particulate UMRA Unfunded Mandates Reform Act of

1995 VCS Voluntary Consensus Standards VOC Volatile Organic Compound

APPENDIX 

### B TO PREAMBLE RELEVANT RULEMAKINGS CONCERNING IMPLEMENTATION OF THE 

### 1997 OZONE 

### NAAQS AND ANTI-BACKSLIDING PROVISIONS FOR REVOKED 1-HOUR OZONE 

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

FR Citation Date Title (kind of rule) Action Topic

68 FR 32802

..............

68 FR 46536

.............. 108/06/2003

.................

68 FR 60054

..............

69 FR 23858

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

.................

04/30/2004

.................

69 FR 23951

.............. 104/30/2004

.................

69 FR 35526

.............. 06/25/2004

................. Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standards (MR). Draft Regulatory Text for Proposed Rule to

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

Ozone National Ambient Air Quality Standards (OT). Air Quality Designations and Classifications

for the 8-Hour Ozone National Ambient Air Quality Standards; Early Action Compact Areas With Deferred Effective Dates (MR). Final Rule to Implement the 8-Hour Ozone

National Ambient Air Quality StandardsPhase 1 (MR). Revisionto the Preamble of the Final Rule to

Implement the 8-Hour Ozone National Ambient Air Quality Standards-Phase 1; Correction (CO). Proposed Rulemaking

Notice of Availability

.. I Draft regulatory text.

Reopening of public

comment period.

Final Rule

...................

Final Rule

...................

Final rule; correction

.. Classification system.

Classification; Revocation of 1-hour std, anti-backsliding. Filing of petitions for

review. 06/02/2003

................. 

### 34227

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

APPENDIX 

### B TO PREAMBLE RELEVANT RULEMAKINGS CONCERNING IMPLEMENTATION OF THE 

### 1997 OZONE 

### NAAQS AND ANTI-BACKSLIDING PROVISIONS FOR REVOKED 1-HOUR OZONE 

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

FR Citation Date Title (kind of rule) Action Topic

70 FR 5593

................ 02/03/2005

.................

70 FR 17018

.............. 04/04/2005

.................

70 FR 30592

.............. 05/26/2005

.................

70 FR 39413

.............. 07/08/2005

.................

70 FR 44470

.............. 108/03/2005

.................

70 FR 71612

.............. 111/29/2005

.................

71 FR 15098

.............. 03/27/2006

.................

71 FR 58498

.............. 10/04/2006

.................

71 FR 75902

.............. 112/19/2006

.................

72 FR 31727

..............

73 FR 42294

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

.................

07/21/2008

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

Nonattainment Major New Source Review

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

Nonattainment Major New Source Review

Implementation Under 8-Hour Ozone National Ambient Air Quality Standards: Reconsideration (RE). Identification of Ozone Areas for Which the

1-Hour Standard Has Been Revoked and Technical Correction to Phase 1 Rule (RE).

Final Rule To Implement the 8-Hour Ozone

National Ambient Air Quality StandardsPhase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline (MR). Implementation of the 8-Hour Ozone National Ambient Air Quality StandardsPhase 1: Reconsideration (RE).

Final Rule To Implement the 8-Hour Ozone

National Ambient Air Quality StandardsPhase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline; Correction (CO). Phase 2 of the Final Rule To Implement the

8-Hour Ozone National Ambient Air Quality Standards-Notice of Reconsideration (RE). Phase 2 of the Final Rule To Implement the

8-Hour Ozone National Ambient Air Quality Standards-Notice of Reconsideration (RE). Proposed Rule to Implement the 1997 8-

Hour Ozone National Ambient Air Quality Standard: Addressing a Portion of the Phase 2 Ozone Implementation Rule Concerning Reasonable Further Progress Emissions Reduction Credits Outside Ozone Nonattainment Areas (OT). Proposed rule; notice of public hearing.

Proposed rule; notice

of public hearing.

Final rule

....................

Final rule; notice of

final action on reconsideration.

Final Rule

...................

Final Rule

...................

Proposed rule; notice

of public hearing; reopening comment period. Final rule; correction Waiver from anti-backsliding of 1-hour

ozone Sec. 185 penalty fees and contingency measures; listing of 1- hour attainment demos as applicable requirement. NSR under 8-hour

NAAQS.

Waiver from Antibacksliding of 1- hour ozone Sec. 185 penalty fees and contingency measures; listing of 1-hour attainment demos as applicable requirement. NSR under 8-hour

NAAQS.

Part 81 changeto reflect revocation of 1- hour standard; correction to 40 CFR 51.905(c). All other 8-hour ozone

SIP requirements, including attainment demo, RFP, RACT/ RACM.

Overwhelming transport classification.

Corrections to methods for calculating RFP targets.

Proposed Rule

........... CAIR/RACT issue & two NSR issues.

Final notice of reconsideration.

Proposed Rule

........... CAIR/RACT issue & two NSR issues.

Phase 2 rule addressing partial vacatur
on RFP Credit from outside nonattainment area. 

### 34228

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

APPENDIX 

### B TO PREAMBLE RELEVANT RULEMAKINGS CONCERNING IMPLEMENTATION OF THE 

### 1997 OZONE 

### NAAQS AND ANTI-BACKSLIDING PROVISIONS FOR REVOKED 1-HOUR OZONE 

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

FR Citation Date Title (kind of rule) Action Topic

74 FR 2936

................ 101/16/2009

.................

74 FR 34525

.............. 107/16/2009

.................

74 FR 40074

.............. 108/11/2009

.................

75 FR 51960

.............. 108/24/2010

.................

75 FR 80420

.............. 12/22/2010

.................

76 FR 41731

.............. 107/15/2011

................. Proposed Rule To Implement the 1997 8-

Hour Ozone National Ambient Air Quality Standards: Revision of Subpart 1 Area Reclassification and Anti-backsliding Provisions Under Former 1-Hour Ozone Standard; Proposed Deletion of Obsolete 1-Hour Ozone Standard Provision.

Ambient Ozone Monitoring Regulations: Revisions to Network Design Requirements.

Implementation of the 1997 8-Hour Ozone

National Ambient Air Quality Standard: Addressing a Portion of the Phase 2 Ozone Implementation Rule Concerning Reasonable Further Progress Emissions Reduction Credits Outside Ozone Nonattainment Areas. Proposed Rule To Implement the 1997 8-

Hour Ozone National Ambient Air Quality Standard: New Source Review Anti-Backsliding Provisions for Former 1-Hour Ozone Standard.

Reasonable Further Progress Requirements

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

Air Quality: Widespread Use for Onboard

Refueling Vapor Recovery and Stage II Waiver. Proposed Rule

...........

Proposed Rule

...........

Final Rule

...................

Proposed Rule

...........

Proposed Rule

...........

Proposed Rule

........... Phase 1 Rule-response to vacaturSubpart 1 areas, 1- hour contingency measures, rule text revision on 1-hour Anti-backsliding exemptions. Proposing to modify

monitoring requirements and extend the length of the required ozone monitoring season in

some states. Phase 2 rule addressing partial vacatur
on RFP Credit from outside nonattainment area.

Proposing to address

New Source Review anti-backsliding requirements for the revoked 1-hour

ozone NAAQS. Proposing to revise

the agency's earlier interpretation of its rule that allowed emissions reductions from outside the nonattainment

area to be credited toward meeting the RFP requirements inside the area. Proposing: 1)criteria

for determining whether onboard refueling vapor recovery (ORVR) is in widespread use; 2) to determine the date at which widespread use of ORVR will occur.

Appendix Cto Preamble Methods To Account forNon-Creditable Reductions When Calculating RFP Targets forthe 2008 Ozone NAAQS

The following methods properly account for the non-creditable emissions reductions when calculating RFP targets.' Theyare

1 These methods assumetheuse ofEPA's on-road motor vehicle emissions model in all states other thanCalifornia. Allof the methods given here require theuser toturnoffallpost-1990 CAA

measures as partofthecalculation. InEPA's current motor vehicle emissions model, MOVES, this is accomplished by selecting "Rate ofProgress" in the "Strategies" section oftheMOVES Navigation Panel. Thisis described intheMOVES2010 User's consistent withrequirements ofsections 182(b)(1)(C) and (D) and 182(c)(2)(B) ofthe CAA. 2

Guide and inthe MOVES Technical Guidance (both found at www.epa.gov/otaq/models/moves/ index.htm). Users offuture versions ofEPA's motor vehicle emissions model should consultthe appropriate User's Guide for the version ofthe model they are using for instructions on what model command to use. For California nonattainment areas, the current motor vehicle emissions model is EMFAC2007. Users modeling California nonattainment areas should consult with the EPA regional office for information on doing equivalent calculations inthat model and infuture versions.

2Thesesections ofthe Clean AirAct list four types ofmeasures that arenot creditable inthese (1)Method 1applies to areas (orportions thereof) that must meet a 15 percent VOC reduction requirement without NOx substitution:

(A)Estimate the actual anthropogenic baseline year VOC inventory forthe baseline year with all control programs that were in the baseline year.

calculations: motor vehicle exhaust or evaporative standards promulgated by January 1, 1990; certain fuel RVPrequirements that were implemented in 1992; certain corrections to RACT provisions in SIPs; and certain corrections to I/M programs. The latter two corrections occurred shortly after 1990 and no longer need to be accounted for. The methods described inthis appendix address the first two types ofnon-creditable reductions.

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

(B) Using the samehighway vehicle activity inputs usedto calculate theactual baseline year inventory,run the appropriate
motor vehicle emissions model forthe baseline year andthe 15percent milestone
year (i.e., the sixth year following the baseline year) with all post-1990 CAA

measures turned off.Any other localinputs for vehicle inspection and maintenance (I/M)
programs should be set according to the program thatwas required to be in place in 1990. Fuel vapor pressure (RVP) should be
set at 9.0 or 7.8 depending on theRVP required in the local area as aresult ofthe RVP regulations promulgated in June 1990.

(C) Calculate the difference between the baseline and 15 percent milestone yearVOC emissionfactors calculated in Step B and multiply by vehicle miles traveled (VMT) for the baseline year. The result is the VOC emissions reduction that will occurbetween the baseline year and the 15 percent milestone yearwithout the benefits ofany post-1990 CAAmeasures. This is the noncreditable reduction that will occur over this period.

(D) Subtract the non-creditable reduction calculated in Step Cfrom theactual anthropogenic baseline inventory estimated in Step A.This adjusted VOC inventory is the basis for calculating the target level of actual emissions in the 15 percent milestone
year.

(E) Reduce the adjusted VOC inventory calculated in Step Dby 15 percent. The result is the level ofVOC emissions in the 15 percent milestone year necessary to meet the 15 percent VOCreduction requirement. The actual projected 15percent milestone year inventory for all sources with all control

measures inplace in the milestone year and including projected growthin activity through the 15 percent milestone year must be at or lower thanthis target level of emissions.

(2) Method 2 applies to areas initially classified as Moderate forthe 2008 ozone NAAQS and portions thereofand forareas or those portions thereofthat had already met the 15 percent RFP requirement for VOC in section 182(b)(1) ofthe CAA forthe 1-hour

ozone NAAQS orthe 1997 ozone NAAQS, or, that met this 15 percent RFP requirement based upon a combination of SIPs forboth the 1-hour ozone NAAQS and the 1997 ozone NAAQS. These areas orthe portions thereof

are covered by subpart 1RFP requirements and must meet a 15 percent VOC emission reduction requirement bythe 15 percent milestone yearbut withNOx substitution allowed, following EPA's NOx Substitution Guidance s:

(A)Estimate the actual anthropogenic baseline year inventory forboth VOC and NOx with allcontrol programs in place in the baseline year.

(B) Using the samehighway vehicle activity inputs usedto calculate thebaseline
year inventory, run the appropriate motor vehicle emissions model forthe baseline year and the 15 percent milestone year with all post-1990 CAAmeasures turned off. Any

3NOx Substitution Guidance (December 15, 1993; available at http://www.epa.govlttnloarpgl tlpgm.html). other local inputs for I/Mprograms should be
set according to the program that was required to be inplace in 1990. Fuel RVP should be set at 9.0 or 7.8 depending onthe RVP required inthe local area asaresult of RVP regulations promulgated in June 1990.

(C) Calculate the difference between the baseline and 15 percent milestone years VOC emissions factors calculated in Step B and multiply by thebaseline yearVMT. The result is the VOC emissions reduction that will occur between thebaseline year andthe 15percent milestone year without the benefits of anypost-1990 CAA measures. This is the non-creditable VOC reduction that will occur over this period. Calculate the difference between the baseline year and the 15percent milestone year NOx emissions factors calculated in Step B and multiply by the baseline year VMT. This result isthe NOx emissions reduction that will occur between the baseline year and the 15 percent milestone year without the benefits ofany post-1990 CAA measures. This is the noncreditable NOx reduction that will occur over this period.

(D) Subtract the non-creditable VOC reduction calculated in Step C fromthe actual anthropogenic baseline year VOC inventory estimated in Step A. Subtract the non-creditable NOx reduction calculated in Step Cfrom the actual anthropogenic baseline yearNOx inventory estimated in Step A. These adjusted VOC and NOx inventories are the basis for calculating the target level ofemissions in the 15 percent milestone year.

(E) The target forVOC and NOx emissions in the 15 percent milestone yearneeded to meet the 15 percent milestone year RFP requirement is any combination ofVOC and NOx emissions whichresult in a combined total of 15percent reductions when compared to the adjusted VOC and NOx inventories calculated in Step D. For example, thetarget level of VOC emissions in the 15 percent milestone year could be 90 percent ofthe adjusted VOC inventory calculated in Step D, which would bea 10 percent reduction, and similarly the target level ofNOx emissions couldbe 95 percent ofthe adjusted VOC inventory calculated in Step D, which would be a 5 percent reduction. The actual projected 15 percent milestone year VOC and NOx inventories for all sources with all control measures in place

as ofthe milestone year and including projected 15 percent milestone yeargrowth in activity must be at or lower thanthe target levels ofVOC and NOx emissions.

(3) Method 3 appliesto Serious andhigher classified areas forthe 2008 ozone NAAQS

or portions thereofthat have met a 15 percent reduction requirement fora previous ozone NAAQS and that must meet an 18 percent VOC emission reduction requirement with NOx substitution allowed, following EPA's NOx Substitution Guidance 4:

(A) Estimate the actual anthropogenic baseline yearinventory forboth VOC and NOx with all source control programs in place during thebaseline year.

4NOxSubstitution Guidance (December 15, 1993; available athttp://www.epa.govlttnloarpgl tlpgm.html). (B) Using the samehighway vehicle activity inputs usedto calculate thebaseline
year inventory, run the appropriate motor vehicle emissions model forthe baseline year and the 18 percent milestone year (i.e., the sixth year following thebaseline year)with all post-1990 CAA measures turned off. Any other local inputs for I/Mprograms should be
set according to the program thatwas required to bein place in 1990. Fuel RVP should be set at 9.0 or 7.8 depending onthe RVP required in the local area as aresult of RVP regulations promulgated in June 1990.

(C) Calculate the difference between the baseline year andthe 18percent milestone
year VOC emissions factors calculated in Step B andmultiply this difference by the baseline year VMT. The result is the VOC emissions reduction that will occurbetween the baseline year and the milestone year without the benefits of anypost-1990 CAA

measures. Thisis the non-creditable VOC reduction that will occur over this period. Calculate the difference between the baseline and milestone years NOx emissions factors calculated in Step B and multiply bythe baseline year VMT. This result is theNOx emissions reduction that will occurbetween the baseline year and the milestone year without the benefits of anypost-1990 CAA

measures. Thisis the non-creditable NOx reduction that will occur over this period.

(D) Subtract the non-creditable VOC reduction calculated in Step C fromthe actual anthropogenic baseline year VOC inventory estimated in Step A. Subtract the non-creditable NOx reduction calculated in Step C fromthe actual anthropogenic baseline year NOxinventory estimated in Step A. These adjusted VOC and NOx inventories are the basis for calculating the target level ofemissions inthe milestone
year.

(E) The target forVOC and NOx emissions in the 18 percent milestone year neededto meet the 18 percent milestone year RFP requirement is anycombination ofVOC and NOx emissions that result ina combined total of 18percent reductions when compared to the adjusted VOC and NOx inventories calculated in Step D. For example, the target level ofVOC emissions in the 18 percent milestone year could be 92 percent ofthe adjusted VOC inventory in Step D (and 8 percent reduction inVOC) and 90percent of the adjusted NOx inventory in Step D (a 10 percent reduction in NOx). The actual projected 18percent milestone year VOC and NOx inventories for all sources with all control measures inplace in the milestone year and including projected 18 percent milestone year growth in activity
must beat or lower than thetarget levels of VOC and NOx emissions.

(4)Method 4applies to all Serious and higher classified areas that have usedMethod 1(and therefore do not have a NOx target level ofemissions for the 15 percent milestone year) and must meet an additional reduction VOCrequirement of9 percent every 3 years afterthe 15 percent milestone year with NOx substitutionallowed, following EPA's NOx Substitution Guidance. Each subsequent target level ofemissions should be calculated as an emission reduction fromthe previous target. 34230

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

(A)Estimate the actual anthropogenic baseline year NOxinventory in the baseline
year with all control programs in place in the baseline year.

(B) Using the samehighway vehicle activity inputs usedto calculate theactual baseline year inventory,run the appropriate emissions model for VOC and NOx in the baseline year andthe 15percent milestone
year (previously done in Step Bin Method 1forVOC but not necessarily for NOx) and the first 9 percent milestone year with all post-1990 CAAmeasures turned off. Any otherlocal inputs for I/Mprograms should be
set according tothe program thatwas required to bein place in 1990. Fuel RVP shouldbe set at 9.0 or 7.8 depending onthe RVP required in the local area as aresult of fuel RVP regulations promulgated inJune, 1990.

(C) Calculate the difference between the 15 percent milestone year and the first 9 percent milestone yearVOC emission factors calculated in Step B and multiply bythe baseline year VMT. The result is the VOC emissions reduction that will occurbetween the 15 percent milestone year and the 9 percent milestone year without thebenefits ofany post-1990 CAA measures. This is the non-creditable VOCreduction that will occur

overthis period. Calculate the difference between the baseline year and the first 9 percent milestone year NOx emission factors calculated in Step B and multiply bythe baseline year VMT. The result is the NOx emissions reduction that will occurbetween the baseline year and the first 9 percent milestone yearwithout the benefits ofany post-1990 CAAmeasures. This is the noncreditable NOx reduction that will occur over this period.

(D) Subtract the non-creditable VOC reduction calculated in Step C fromthe 15 percent milestone year VOC target level of emissions calculated previously. Subtract the non-creditable NOx reduction calculated in Step C fromthe actual the baseline year NOx inventory of emissions calculated in Step A. These adjusted VOC and NOx inventories are the basis for calculating the target level of emissions forthe first 9 percent milestone year.

(E) The target forVOC and NOx emissions in the 9 percent milestone year needed to meet the first 9 percent milestone year RFP requirement is anycombination ofVOC and NOx emissions that result ina combined total of9 percent reductions when compared
tothe adjusted VOC and NOx inventories calculated in Step D that total 9 percent. For example, the target level ofVOC emissions in the first 9 percent milestone year could be 96 percent ofthe adjusted VOC inventory in Step D (a 4percent reduction in VOC emissions) and 95 percent oftheadjusted NOx inventory in Step D (a 5 percent reduction in NOx emissions). The actual projected first 9 percent milestone year VOC and NOx inventories forall sources with all control measures in place inthe milestone
year and including projected first 9 percent milestone yeargrowth in activity mustbe at

orlower than thetarget levels ofVOC and NOx emissions.

(F) For subsequent 3-year periods untilthe attainment date, the adjusted VOC inventory should bebased onthe difference in VOC emissions during that 3-year period when all post-1990 CAA measures are turned off, subtracted fromthe previous VOC target level of emissions. For subsequent 3-yearperiods, the adjusted NOx inventory should bebased

on the difference inNOx emissions during that 3-year periodwhen all post-1990 CAA

measures are turned off, subtracted from the previous NOx target level of emissions. For example, forthe subsequent 9 percent milestone year, take the VOC and NOx emissions reductions that will occur between the 9 percent milestone yearand the subsequent 9 percent milestone year without the benefits ofany post-1990 CAA measures and with consistent vehicle activity. These reductions are subtracted from the 9 percent milestone year target level ofVOC and NOx emissions calculated in Step E to get the adjusted VOC and NOx inventories to be used as thebasis forcalculating thetarget levels ofVOC and NOx emissions in the subsequent 9 percent milestone year.

(5) Method 5 appliesto allModerate areas that are subsequently reclassified as Serious (or higher)pursuant to section 181(b) ofthe CAA, that usedMethod 2 (andtherefore do have a NOx target level ofemissions forthe 15percent milestone year) and that must meet an additional reduction VOC requirement of9 percent every 3 years after the 15 percent milestone year withNOx substitution allowed, following EPA's NOx Substitution Guidance. Each subsequent target level ofemissions should be calculated

as an emissions reductionfrom the previous target.

(A) Using the samehighway vehicle activity inputs usedto calculate the actual baseline yearinventory, run the appropriate emissions model for VOC and NOx in the 15 percent milestone year (previously done in Step Bin Method 2) and the 9 percent milestone year with all post-1990 CAA

measures turned off. Any other local inputs for I/Mprograms should be set according to the program that was required to be in place in 1990. Fuel RVP should be set at 9.0 or 7.8 depending onthe RVP required in the local

area asaresult offuel RVP regulations promulgated in June 1990.

(B) Calculate the difference between the 15 percent milestone year and the 9 percent milestone year VOC emission factors calculated in Step A and multiply bythe baseline yearVMT. The result is the VOC emissions reduction that will occur between the 15 percent milestone year and the 9 percent milestone year without the benefits of anypost-1990 CAA control measures. This is thenon-creditable VOCreduction thatwill

occur over this period. Calculate the difference between the baseline year and the first 9 percent milestone yearNOx emission factors calculated in Step A and multiply by the baseline year VMT. The result is the NOx emissions reduction that will occur between the baseline year and the first 9 percent milestone year without the benefits ofany post-1990 CAA measures. This is the noncreditable NOx reduction that will occur over this period.

(C) Subtract the non-creditable VOC reduction calculated in Step B fromthe 15 percent milestone year VOC target level of emissions calculated previously. Subtract the non-creditable NOx reduction calculated in Step B fromthe 15 percent milestone year NOx target level of emissions calculated previously. These adjusted VOC and NOx inventories are the basis for calculating the target level ofemissions forthe 9 percent milestone year.

(D)The target forVOC and NOx emissions in the 9 percent milestone year needed to meet the first 9 percent milestone year RFP requirement is anycombination ofVOC and NOx emissions that result ina combined total of9 percent reductions when compared
tothe adjusted VOC and NOx inventories calculated in Step D For example, the target level ofVOC emissions in the first 9 percent milestone year couldbe 96 percent ofthe adjusted VOC inventory in Step C (a 4 percent reduction inVOC emissions) and 95 percent ofthe adjusted NOx inventory in Step C (a 5 percentreduction in NOx emissions). The actual projected 9 percent milestone yearVOC and NOx inventories for all sources with allcontrol measures in place and including projected 9 percent milestone
year growth in activity must be at orlower than the targetlevels ofVOC and NOx emissions.

(E) For subsequent 3-year periods untilthe attainment date, the adjusted VOC inventory shouldbe based onthe difference in VOC emissions duringthat 3-year period when all post-1990 CAAmeasures are turned offusing the same VMT used in the baseline year, subtracted fromthe previous VOC target level ofemissions. For subsequent 3-year periods, the adjusted NOx inventory shouldbe based

on the difference inNOx emissions during that 3-year period whenall post-1990 CAA

measures are turned offusing the same VMT used in thebaseline year, subtracted from the previous NOx target level of emissions. For example, forthe subsequent 9 percent milestone year,take theVOC and NOx emissions reductions that will occur between the 9 percent milestone year and the subsequent 9 percent milestone year without the benefits ofany post-1990 CAA measures. These reductions are subtracted from the 9 percent milestone year target level ofVOC and NOx emissions calculated in Step D to get the adjusted VOC and NOx inventories to be used as the basis for calculating the target levels ofVOC and NOx emissions in the subsequent 9 percent milestone year.

(6) Method 6 applies to all Serious and higher classified areas that have usedMethod 3 (and therefore do have a NOx target level of emissions for the 18 percent milestone year) and must meet an additional reduction VOC requirement of9 percent every 3 years after the 18 percent milestone yearwithNOx substitution allowed, following the EPA's NOx Substitution Guidance. Each subsequent target level ofemissions should be calculated

as an emissions reduction fromthe previous target.

(A)Usingthe same highway vehicle activity inputs usedto calculate theactual baseline year inventory,run the appropriate emissions model for VOC and NOx in the 18 percent milestone year (previously done in Step B inMethod 3) and the 9 percent milestone yearwith all post-1990 CAA

measures turned off.Any other localinputs 

### 34231

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

for I/Mprograms should be set according to the program that was required to be in place in 1990. Fuel RVP should be set at 9.0 or 7.8 depending onthe RVP required in the local

area as aresult offuel RVP regulations promulgated in June 1990.

(B) Calculate the difference between the 18 percent milestone year and the 9 percent milestone yearVOC emission factors calculated in Step A and multiply bythe baseline year VMT. The result is the VOC emissions reduction that will occurbetween the 18 percent milestone year and the 9 percent milestone year without thebenefits ofany post-1990 CAA control measures. This is the non-creditable VOCreduction that will

occur over this period. Calculate the difference between the baseline year and the first 9 percent milestone year NOx emission factors calculated in Step A and multiplyby the baseline year VMT. The result is the NOx emissions reduction that will occurbetween the baseline year and the first 9 percent milestone yearwithout the benefits ofany post-1990 CAAmeasures. This is the noncreditable NOx reduction that will occur over this period.

(C) Subtract the non-creditable VOC reduction calculated in Step B fromthe 18 percent milestone year VOC target level of emissions calculated previously. Subtract the non-creditable NOx reduction calculated in Step B from the 18 percent milestone year NOx target level of emissions calculated previously. These adjusted VOC and NOx inventories are the basis for calculating the target level ofemissions for9 percent milestone year.

(D) The target forVOC andNOx emissions in the 9 percent milestone year needed to meet the first 9 percent milestone yearRFP requirement is any combination ofVOC and NOx emissions that result in a combined total of9 percentreductions when compared
to the adjusted VOC and NOx inventories calculated in Step D Forexample, the target level ofVOC emissions inthe first 9 percent milestone year could be 96 percent ofthe adjusted VOC inventory in Step C (a 4 percent reduction in VOC emissions) and 95 percent ofthe adjusted NOx inventory in Step C (a 5 percent reduction in NOx emissions). The actual projected 9 percent milestone year VOC and NOx inventories for all sources with all control measures in place and including projected 9 percent milestone
year growth in activitymust be at orlower than the target levels ofVOC and NOx emissions.

(E) For subsequent 3-year periods until the attainment date, the adjusted VOC inventory should bebased onthe difference in VOC emissions duringthat 3-year period when all post-1990 CAAmeasures are turned offusing the same VMT used in the baseline year, subtracted from the previous VOC target level ofemissions. For subsequent 3-year periods, the adjusted NOx inventory shouldbe based

on the difference inNOx emissions during that 3-year period whenall post-1990 CAA

measures are turned offusing the same VMT used in thebaseline year, subtracted from the previous NOx target level of emissions. For example, forthe subsequent 9 percent milestone year,take the difference inVOC and NOx emissions reductions that will

occur between the 9 percent milestone year and the subsequent 9 percent milestone year without the benefits of anypost-1990 CAA

measures. These values are subtracted from the 9 percent milestone yeartarget level of VOC and NOx emissions calculated inStep D to getthe adjusted VOC and NOx inventories to be used as thebasis for calculating the target levels ofVOC and NOx emissions in the subsequent 9 percent milestone year.
Appendix D toPreamble-List ofAreas Nonattainment forthe 2008 Ozone NAAQS In Additionto aPriorOzone NAAQS

TABLE 1-AREAS NONATTAINMENT FOR BOTH THE 

### 2008 AND 

### 1997 OZONE 

### NAAQS

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

Atlanta Area, GA*

................................................... M oderate

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

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

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

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

............................................... Attainment Deadline Determination*** Clean Data Determination. Chico Area, CA

........................................................ M arginal

................................................. Attainment Deadline Determ ination Clean Data Determination. Denver-Boulder-Greeley-Ft. Collins-Loveland Area, Marginal

.................................................

CO. Imperial County Area, CA

........................................ M oderate

............................................... Clean Data Determination. Jamestown Area, NY

............................................... M oderate

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

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

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

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

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

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

............................................... Attainment Deadline Determination Clean Data Determination. Phoenix-Mesa Area,AZ *

........................................ M arginal

................................................. Pittsburgh-Beaver Valley Area, PA

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

............................................... Clean Data Determination-* San D iego Area, CA

................................................ M oderate

............................................... ** Sheboygan County, WI

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

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

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

............................................... Attainment Deadline Determination * Clean Data Determination.

*2008 nonattainment area boundary differs from 1997 nonattainment area boundary. **The EPA published a proposed approval action for the state submitted redesignation request under CAA section 107(d)(3)(E) for the 1997

ozone NAAQS.

***The EPA published a final approval action for the redesignation request submitted by the state of SC under CAA section 107(d)(3)(E) for the 1997ozone NAAQS. The state of NC submitted a redesignation request under CAA § 107(d)(3)(E) for the 1997 ozone NAAQS.

  Former subpart 1 areas with Determinations of Attainment prior to subpart 2 classification on May 14, 2012 (77 FR 28424). The EPA is considering approving an Attainment Deadline Determination for the Marginal or Moderate 1997ozone NAAQS attainment date.

** *** *The state of WI submitted a redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS. ******The EPA published a final approval action for the redesignation request submitted by the state of IL under CAA section 107(d)(3)(E) for the 1997ozone NAAQS. The state of MO submitted a redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS. 

### 34232Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

TABLE 2-AREAS NONATTAINMENT FOR THE 

### 2008, 1997, AND 

### 1-HOUR OZONE 

### NAAQS

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

# Sa i ci attainment name classification classification jde termination classification determination

Baltimore Area, MD

............

Dallas-Fort Worth Area,

TX *. Dukes County, MA*

...........

Greater Connecticut Area,

CT.

Houston-Galveston

-

Brazoria Area, TX. Los Angeles and San

Bernardino Counties (W Mojave Desert) Area, CA. Los Angeles-South Coast

Air Basin Area, CA. Morongo Areas of Indian

Country (Morongo Band of Mission Indians)**. New York-N. New JerseyLong Island Area, NY, NJ, CT. Pechanga Areas of Indian

Country (Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation) **.Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE*.

Riverside County

(Coachella Valley) Area (1-hr Southeast Desert), CA. Sacramento Metro Area,

CA. San Francisco Bay Area,

CA.

San Joaquin Valley Area,

CA. Seaford, DE ***

...................

Ventura County (part) Area,

CA.

Washington Area, DC, MD,

VA. Moderate

...............

Moderate

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

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

..................

Marginal

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

..................

Marginal

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

.................. Clean Data Determination. Clean Data Determination. Clean Data Determination, Attainment Deadline Determination. Clean Data Determination. Serious

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

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

...............

Moderate

...............

Marginal

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

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

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

..............

Extreme

.................

Moderate

...............

Marginal

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

..............

Extreme

.................

Extreme

.................

Severe 17

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

...................

Extreme

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

..............

Moderate

...............

Moderate

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

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

..............

Marginal

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

.............. Clean Data Determination, Attainment Deadline Determination. Moderate

...............

Severe 15

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

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

..............

Severe 15

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

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

................. Other

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

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

.................

Extreme

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

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

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

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

.................

Serious

.................. 

### ISevere 15

..............

Marginal

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

.............. Clean Data Determination, Attainment Deadline Determination. Clean Data Determination, Attainment Deadline Determination. Clean Data Determination, Attainment Deadline Determination. Moderate

...............

Serious

..................

Moderate

............... Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination.

Clean Data Determination, Attainment Deadline Determination.

*2008 nonattainment area boundary differs from 1997 and 1-hr ozone nonattainment area boundary. **Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries. Classification for the 1997ozone NAAQS was the classification based on the DVfor a South Coast monitor near the tribal land.

***Part of the Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE for 1997 ozone nonattainment area boundary, and part of the Sussex County, DE ozone nonattainment area boundary for the 1-hour ozone NAAQS.

StatutoryAuthority

The statutory authority for this action is providedby sections 109; 110; 172; 181 through 185B; 301(a)(1) and 501(2)(B) ofthe CAA, as amended (42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 42 U.S.C. 7511-7511f; 42 U.S.C. 7601(a)(1); 42 U.S.C. 7661(2)(B)). This notice is also subject to section 307(d) ofthe CAA (42 U.S.C. 7407(d)). 

### 34233

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

List ofSubjects

40CFR Part 50
Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

40CFR Part 51
Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Transportation, Volatile organic compounds.

40CFR Part70

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Operating permits, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

40CFR Part71

Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen oxides, Operating permits, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: May 29, 2013. Bob Perciasepe, ActingAdministrator.

For the reasons stated inthe preamble, Title 40, Chapter Iofthe Code ofFederal Regulations is proposed tobe amended as follows:

PART 50-NATIONAL PRIMARY AND SECONDARY AXVYGH9

m 1. The authority citationfor part50 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq. * 2.Section 50.10 is amendedby revising paragraph (c) toread as follows:
§50.10 National 8-hour primary and secondary ambient air qualitystandards for
ozone.

(c) Until date ofpublication ofthe final SIP Requirements Rule in the Federal Register, the 1997 ozone NAAQS set forth in this section will continue in effect, notwithstanding the promulgation ofthe 2008 ozone NAAQS under §50.15. The 1997 ozone NAAQS
setforth in this section will nolonger applyto an area upon the date of publication ofthe final SIP Requirements Rule in the Federal Register. Area designations and classifications with respect to the 1997

ozone NAAQS are codified in CFR part 81. PART 51-REQUIREMENTS FOR PREPARATION, ADOPTION AND SUBMITTAL OF IMPLEMENTATION PLANS

* 3.The authority citation for part 51 continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401- 7671q. Subpart X-Provisionsfor Implementation of 8-Hour Ozone National Ambient AirQuality Standard

* 4. Section 51.919 is added toread as follows:
§51.919 Applicability

As ofone year afterthe effective date ofdesignations for the 2008 ozone NAAQS, as set forth in 50.10(c), the provisions ofSubpart AA shall replace the provisions ofSubpart X, 51.900 to 51.918, which cease to apply.
Subpart AA-Provisionsfor Implementation ofthe 2008 Ozone National Ambient AirQuality Standards

5.Amendpart 51, subpartAAby: * a. Revising §51.1100 byadding paragraphs (o) through (aa): and * b. Adding §§ 51.1104 through 51.1119.

The revisions and additions read as follows
Subpart AA-ProvisionsforImplementation ofthe2008 Ozone National Ambient Air Quality Standards

Sec. 51.1100 Definitions. 51.1101 Applicability ofpart 51. 51.1102 Classification and nonattainment

area planning provisions. 51.1103 Application ofclassification and attainment date provisions inCAA section 181 of subpart 2 to areas subject
to § 51.1102(a). 51.1104 [Reserved]. 51.1105 Transition fromthe 1997 and 1- hour NAAQS to the 2008 ozone NAAQS and anti-backsliding. 51.1106 Redesignation to nonattainment following initialdesignations. 51.1107 Applicability ofCAA section 181(a)(5)(B) for an area that fails to attain the 2008 ozone NAAQS byits attainment date. 51.1108 Modeling and attainment demonstration requirements. 51.1109 [Reserved]. 51.1110 Requirements forreasonable further progress (RFP). 51.1111 [Reserved]. 51.1112 Requirements forreasonably available control technology (RACT) and reasonably available control measures (RACM). 51.1113 Section 182(f) NOx exemption provisions. 51.1114 New source review requirements. 51.1115 Emissions inventory requirements. 51.1116 Requirements for an Ozone Transport Region. 51.1117 Fee programs for Severe and Extreme nonattainment areas that fail to attain. 51.1118 Suspension ofattainment SIP planning requirements in a nonattainment areaupon a determination that the areahas attained
the ozone NAAQS. 51.1119 Applicability. Appendixes A-K to Part 51 [Reserved] Appendix L to Part 51-Example Regulations for Prevention ofAirPollution Emergency Episodes Appendix M to Part 51-Recommended Test Methods for State Implementation Plans Appendixes N-0 to Part 51 [Reserved] Appendix P to Part 51-Minimum Emission Monitoring Requirements Appendixes Q-R to Part 51 [Reserved] Appendix S to Part 51-Emission Offset Interpretative Ruling Appendixes T-U to Part 51 [Reserved] Appendix V to Part 51-Criteria for Determining the Completeness of Plan Submissions Appendix W to Part 51-Guideline on Air Quality Models Appendix X to Part 51-Examples of Economic Incentive Programs Appendix Y to Part 51-Guidelines forBART Determinations Underthe Regional Haze Rule Subpart AA-Provisionsfor Implementation ofthe 2008 Ozone National Ambient AirQuality Standards.

§51.1100 Definitions.

(o) Applicable requirements for an

area means the following requirements,
to the extent such requirements apply to the area pursuant toits classification under CAA section 181(a)(1) for the 1- hour NAAQS or the 1997 ozone NAAQS
atthe time ofrevocation ofthe 1997

ozone NAAQS:

(1)Reasonably available control technology (RACT). (2)Vehicle inspection and maintenance programs (I/M) under CAA section 182(b)(4) and 182(c)(3).

(3)Major source applicability cut offs for purposes ofRACT. (4) Reductions to achieve Reasonable Further Progress (RFP). (5)Clean fuels fleet program under CAA section 183(c)(4). (6) Clean fuels for boilers underCAA section 182(e)(3).

(7)Transportation Control Measures (TCMs) during heavy traffic hours as specified under CAA section 182(e)(4).

(8) Enhanced (ambient)monitoring under CAA section 182(c)(1). (9) Transportation controls under CAA section 182(c)(5). (10) Vehicle miles traveled provisions ofCAA section 182(d)(1). 34234

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

(11) NOx requirements under CAA section 182(f).

(12) Attainment demonstration. (13) Nonattainment contingency

measures required under CAA sections 172(c)(9) and 182(c)(9) for failure to attain the 1-hour or 1997 ozone NAAQS by the applicable attainment date or to make reasonable further progress toward attainment ofthe 1-hour or 1997 ozone NAAQS. (14) Nonattainment New Source Review (NSR)requirements. (15) Penalty fee program requirements for Severe andExtreme Areasunder CAA section 185. (p)CAIR means the Clean Air Interstate Rule codified at 40 CFR 51.123(a) through (ee).

(q)NOx SIP Call means the rules codified at 40 CFR 51.121 and 51.122. (r)Ozone transport region means the

area established byCAA section 184(a)

or any other area established by the Administrator pursuant to CAA section 176A for purposes ofozone.

(s) Reasonable further progress (RFP)

means for the purposes ofthe 2008

ozone NAAQS, theprogress reductions required under CAA section 172(c)(2) and CAA sections 182(b)(1) and (c)(2)(B) and (c)(2)(C). (t)Rate ofprogress (ROP) meansfor the purposes ofthe 1-hour ozone NAAQS, the progress reductions required under CAA section 172(c)(2) and CAA sections 182(b)(1) and (c)(2)(B) and (c)(2)(C). (u)Revocation ofthe 1-hour NAAQS

means the time atwhich the 1-hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9(b). (v)Revocation ofthe 1997 ozone NAAQS means the time atwhich the 1997 8-hour NAAQS no longer apply to

an area pursuant to 40 CFR 50.10(c). (w)Subpart 1means subpart 1 ofpart D oftitle Iofthe CAA. (x)Subpart 2means subpart 2ofpart D oftitle Iofthe CAA. (y) [Reserved] (z) Consolidated submittal means a joint submittal ofthe emissions inventory, RACT, and attainment demonstration SIPs no later than 30 months after the effective date of designation. (aa)An area "designated nonattainment for the 1-hour ozone NAAQS" means, for purposes ofsection 51.1105, an area thatis subject to applicable 1-hour ozone NAAQS antibacksliding requirements at the time of revocation ofthe 1997 ozone NAAQS. § 51.1104 [Reserved] 

### §51.1105 Transition fromthe 1997 ozone NAAQS to the2008 ozone NAAQS and antibacksliding.

(a)Requirements thatcontinue to apply after revocation ofthe 1997 ozone NAAQS. (1) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS nonattainment.

The following requirements apply to

an area designated nonattainment for the 2008 ozone NAAQS and also designated nonattainment for the 1997

ozone NAAQS, or nonattainment for both the 1997 and 1-hour ozone NAAQS, at the time ofrevocation ofthe 1997 ozone NAAQS:

(i) The area remains subject tothe obligation to adopt and implement the applicable requirements as defined in §51.1100(o), for any NAAQS for which it was designated nonattainment at the time ofrevocation, in accordance with its classification for thatNAAQS at the time ofthatrevocation; except as provided in paragraph (b)ofthis section.

(2)2008 ozone NAAQS nonattainment and 1997 ozone NAAQS maintenance.

For an area designated nonattainment for the 2008 ozone NAAQS thatwas redesignated to attainment prior to the date ofrevocation (hereinafter a "maintenance area") for the 1997 ozone NAAQS at the time ofrevocation ofthat NAAQS, the approved SIP,including the maintenance plan, satisfies the applicable requirements defined in section 51.1100(o) for the revoked NAAQS. These applicable requirements shall be implemented in accordance with themeasures included inthe area's SIP, including the maintenance plan. Any applicable requirements thatwere shifted to contingency measures priorto revocation ofthe 1997 ozone NAAQS may remain in thatform. (3)2008 ozone NAAQS attainment and 1997 ozone NAAQS nonattainment. (i) Obligations in an approved SIP. An area thatis designated attainment for the 2008 ozone NAAQS, and designated nonattainment for the 1997

ozone NAAQS or for both the 1997 and the 1-hour ozone NAAQS is no longer subject tononattainment NSR as of revocation ofthe 1997 ozone NAAQS: the state may at any time request that the nonattainment NSR provisions applicable tothe area be removed from the SIP as ofthat date. The state may also request, consistent with CAA section 110(1) and 193, that SIP

measures adopted to satisfy other applicable requirements of §51.1100(o) be shifted to maintenance contingency

measures. [OPTION 1] (ii) Termination of previous obligations for areas initially designated attainment for the 2008

ozone NAAQS.

For areas initially designated attainment for the 2008 ozone NAAQS, and designated nonattainment for the 1997 or forboth the 1997 and 1-hour

ozone NAAQS at the time ofrevocation ofthe 1997 ozone NAAQS, an area's approved PSD SIP shall satisfythe state's obligations with respectto the area's maintenance ofthe 2008 ozone NAAQS pursuant to CAA section 110(a)(1).

[OPTION 2] (ii)Maintenance showing for the 2008 ozone NAAQS.

For areas initially designated attainment for the 2008 ozone NAAQS, and designated nonattainment for the 1997 or forboth the 1997 and 1-hour

ozone NAAQS at the time ofrevocation ofthe 1997 ozone NAAQS, the state shall provide a showing ofmaintenance for the 2008 ozone NAAQS, which shall be due no later than three years afterthe effective date ofdesignations forthe 2008 ozone NAAQS. This maintenance showing shall demonstrate thatthe area

cancontinue to maintain the 2008

ozone NAAQS for 10 years following the designations for that NAAQS. (4) 2008 ozone NAAQS attainment and 1997 ozone NAAQS maintenance.

(i) Obligations in an approved SIP. An area thatis designated attainment ofthe 2008 ozone NAAQS andwhich has been redesignated to attainment for the 1997 ozone NAAQS with an approved section 175A maintenance plan, satisfies the applicable requirements set forth in section 51.1100(o) through implementation of the provisions ofits SIP and maintenance plan. After revocation of the 1997 ozone NAAQS, and tothe
extent consistent with sections 110(1) and 193, the state may request that obligations under the applicable requirements of section 51.1100(o) be shifted to itslist ofmaintenance plan contingency measures.

(ii)No additional obligation for the 2008 ozone NAAQS.

For an area thatis initially designated attainment for the 2008 ozone NAAQS andwhich hasbeen redesignated to attainment for the 1997 ozone NAAQS with an approved section 175A maintenance plan, the area's approved section 175A plan shall satisfy the state's obligations under CAA section 110(a)(1) with respect tomaintenance of the 2008 ozone NAAQS. (b)Forhow long does an area designated nonattainment for the 2008

ozone NAAQS remain subject to the applicable requirements as provided under paragraph (a)? 34235

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

(1)Redesignation for 2008 ozone NAAQS or approval ofa redesignation substitute for a revoked ozone NAAQS.

A state remains subject to the obligations for a revoked NAAQS under paragraphs (a)(1) and (a)(2) ofthis section until either (1)EPA approves the area'sredesignation to attainment for the 2008 ozone NAAQS; or (2)EPA approves a showing for the area in a procedure that succeeds the redesignation process for a revoked NAAQS, and which serves the same purpose ofending anti-backsliding requirements as would redesignation,

were the NAAQS in effect. Under this redesignation substitute procedure for a revoked NAAQS, andfor this limited anti-backsliding purpose, the area must show thatit has attained that revoked NAAQS due to permanent and enforceable emission reductions, and it
must demonstrate thatit will maintain that NAAQS for tenyears from the date ofEPA's approval ofthis showing. If EPA, after notice-and-comment rulemaking, approves this showing, it will have the effect setforth in paragraph (b)(2) below. (2)Effect ofredesignation to attainment for the 2008 ozone NAAQS

or approval ofa redesignation substitute for arevoked ozone NAAQS. After redesignation to attainment for the 2008

ozone NAAQS, the state may request that provisions for nonattainment NSR be removed from the SIP, and that other anti-backsliding obligations be shifted to contingency measures provided that such action is consistent with CAA sections 110(1) and 193. After approval ofa redesignation substitute for a revoked NAAQS, the state may request to remove from the SIP provisions for nonattainment NSR for that revoked NAAQS. The State may also request to shift other anti-backsliding obligations for the relevant revoked standard to contingency measures provided that such action is consistent with CAA sections 110(1) and 193.

(c) Portions ofan area designated nonattainment or attainment for the 2008 ozone NAAQS thatremain subject
to the obligations identified in paragraph (a)ofthis section.

Only that portion ofthe designated nonattainment or attainment area forthe 2008 ozone NAAQS thatwas required to adoptthe applicable requirements in §51.1100(o) for purposes ofthe 1-hour

or 1997 ozone NAAQS is subject to the obligations identified in paragraph (a)of this section. 40 CFR part 81, subpart C identifies the areas designated nonattainment and associated area boundaries for the 1997 ozone NAAQS. Areas that are designated nonattainment for the 1997 ozone NAAQS at the time ofdesignation for the 2008 ozone NAAQS may be redesignated to attainment prior to the effective date of revocation ofthat ozone NAAQS. (d) Obligations under the 1997 ozone NAAQS that no longer apply after revocation ofthe 1997 ozone NAAQS. (1)Maintenance plans. Upon revocation ofthe 1997 ozone NAAQS, an area with an approved 1997

ozone NAAQS maintenance plan under CAA section 175A may modify the maintenance plan: (a)To remove the obligation to submit a maintenance plan for the 1997 ozone NAAQS 8 years after approval ofthe initial 1997 ozone NAAQS maintenance plan; and (b) to

remove the obligation to implement contingency measures upon a violation ofthe 1997 ozone NAAQS. However, such requirements will remain enforceable as part ofthe approved SIP until such time as EPA approves a SIP revision removing such obligations. (2)Determinations offailure to attain the 1997 and/or 1-hour NAAQS. (i) After revocation ofthe 1997 ozone NAAQS, EPA is no longer obligated to determine pursuant to CAA section 181(b)(2) or section 179(c) whether an

area designated Marginal, Moderate, or Serious attained the 1997 ozone NAAQS by that area's attainment date for the 1997 ozone NAAQS.

(ii)Upon revocation ofthe 1997 ozone NAAQS for an area,under no circumstances isEPA obligated to reclassify an area to a higher classification for the 1997 ozone NAAQS based upon a determination that the area failed to attain the 1997

ozone NAAQS by the area's attainment date for the 1997 ozone NAAQS. (iii)Forthe revoked 1-hour and 1997

ozone NAAQS, EPA is required to determine whether a nonattainment area attained the 1-hour or 1997 ozone NAAQS by the area's attainment date solely for the purpose ofaddressing an applicable requirement for nonattainment contingency measures or section 185 fee programs. In making such a determination, the EPA may consider and apply the provisions of former section 51.907 in interpreting whether a 1-year extension ofthe attainment date is applicable under section 172(a)(2)(C) or 181(a)(5) ofthe CAA. (e) What isthe continued applicability ofthe FIP and SIP requirements pertaining to CAA section 110(a)(2)(D)(i) and (ii)after revocation of the 1997 ozone NAAQS?

All control requirements associated with a FIP or approved SIP in effect for

an area at the timethe 1997 ozone NAAQS is revoked, such as the NOx SIP Call or the CAIR shall continue to apply afterrevocation ofthe 1997 ozone NAAQS. Control requirements approved into the SIP pursuant to obligations arising from section 110(a)(2)(D)(i) and (ii),including 40 CFR 51.121, 51.122 and 51.123, maybe modifiedby the
state only ifthe requirements of §§ 51.121, 51.122 and 51.123, including statewide NOx emission budgets continue to be in effect. Any such modification must meetthe requirements ofCAA section 110(1). (f)New source review.
An area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS at the time ofrevocation ofthe 1997 ozone NAAQS remains subject to the obligation to adopt and implement the requirements for nonattainment NSR that apply or applied to the area pursuant to CAA sections 172(c)(5), 173 and 182based on thehighest of: (i) The area's classification under CAA section 181(a)(1) for the 1-hour NAAQS as of the effective date ofrevocation ofthe 1- hour ozone NAAQS; (ii)the area's classification under 40 CFR 51.903 for the 1997 ozone NAAQS as ofthe date

a permit is issued or as ofthe effective date ofrevocation ofthe 1997 ozone NAAQS, whichever isearlier; and (iii) the area's classification under 40 CFR 51.1103 for the 2008 ozone NAAQS. Upon removal ofnonattainment NSR obligations for a revoked NAAQS under section 51.1105(b)(ii), the state remains subject to the obligation to adopt and implement therequirements for nonattainment NSR that apply or applied to the area forthe remaining applicable NAAQS consistent with this paragraph.
§51,1106 Redesignation to nonattainment following initialdesignations.

For any area thatis initially designated attainment for the 2008

ozone NAAQS and thatis subsequently redesignated to nonattainment forthe 2008 ozone NAAQS, any absolute, fixed date applicable in connection with the requirements ofthis part other than an attainment date is extended by aperiod oftime equal tothe length oftime between the effective date ofthe initial designation for the 2008 ozone NAAQS andthe effective date ofredesignation, except as otherwise providedin this subpart.The number ofyears such an

area would have to attain would be based onthe area's classification, consistent with Table 1in section 51.1103. 

### 34236

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

§51.1107 Applicabilityof CAAsection 181(a)(5)(B) foran area thatfailstoattain the 2008ozone NAAQS by itsattainment date. (a)A nonattainment area will meet the requirement ofCAA section 181(a)(5)(B) pertaining to 1-year extensions ofthe attainment date if:

(1)Forthe first 1-year extension, the area's 4th highest daily 8 hour average in the attainment yearis 0.075 ppm or less. (2)for the second 1-year extension, the area's 4th highest daily 8 hour value, averaged over both the original attainment year and the first extension
year, is 0.075 ppm or less. (b)Forpurposes ofparagraph (a) of this section, the area's 4th highest daily 8 hour average for a year shall be from the monitor with the highest 4thhighest daily 8 hour average forthat year of all the monitors that represent that area. §51.1108 Modeling and attainment demonstration requirements. (a)Attainment demonstration requirements for nonattainment areas classified as Moderate or higher pursuant to §51.1103. (1)An area classified as Moderate under §51.1103(a) shall be subject to the attainment demonstration requirement applicable for that classification under CAA section 182, except such demonstration is dueno later than [option 1: 36 months] [option 2: The state's choice ofeither 36 months

or 30 months for a consolidated submission] after the effective date of the area's designation for the 2008

ozone NAAQS.

(2)An area classified as Serious or higher under §51.1103(a) shall be subject to the attainment demonstration requirement applicable for that classification under CAA section 182, except such demonstration is dueno later than [option 1: 48 months] [option 2: The state's choice ofeither 48 months

or 30 months for a consolidated submission] after the effective date of the area's designation for the 2008

ozone NAAQS.

(b)Attainment demonstration criteria. An attainment demonstration due pursuant to paragraph (a)ofthis section
must meet the requirements of §51.112; the adequacy ofan attainment demonstration shall be demonstrated by

means ofa photochemical gridmodel or any other analytical method determined by theAdministrator, in the Administrator's discretion, tobe at least

as effective.

(c) Implementation ofcontrol

measures.

For each nonattainment area, the state must provide for implementation ofall control measures needed for attainment

no later than the beginning ofthe attainment year ozone season. §51.1109 [Reserved] 

### §51.1110 Requirements for reasonable further progress (RFP). (a)RFP for nonattainment areas classified pursuant to §51.1103.

The RFP requirements specified in CAA section 182 for that area's classification shall apply. (1)Submission deadline. For each

area classified as Moderate or higher pursuant to §51.1103, the state shall submit a SIP revisionno later than [option 1: 36 months] [option 2: The state's choice ofeither 36 months or 30 months for a consolidated submittal] after designation as nonattainment for the 2008 ozone NAAQS that provides for RFP as described in paragraphs (a)(2)-(4) ofthis section.

(2)RFP requirements for areas classified as Moderate or higher with an approved 1-hour or 1997 ozone NAAQS 15 percent VOC RFP plan or a Determination ofAttainment for those NAAQS.

An area classified as Moderate or higher that has the same boundaries as

an area, or isentirely composed of several areas or portions ofareas, for which EPA fully approved a 15 percent plan for the 1-hour or 1997 ozone NAAQS or which hasbeen determined
to be attaining those NAAQS is considered to have met the requirements ofCAA section 182(b)(1) for the 2008 ozone NAAQS and instead: (i) Ifclassified as Moderate or higher, the area is subject to the RFP requirements under CAA section 172(c)(2) and shall submit a SIP revision that: (A)Provides for a 15 percent emission reduction from thebaseline year within 6 years after thebaseline year; (B) provides for an additional 3 percent per year reduction from the end ofthe first 6 years up to the beginning ofthe attainment year ifabaseline year earlier than 2011 isused; and (C) relies on either NOx orVOC emissions reductions (ora combination)
to meet the requirements of(a)(2)(i)(A) and (B). Use ofNOx emissions reductions must meetthe criteria in CAA section 182(c)(2)(C). (ii)Ifclassified as Serious or higher, the area is also subject to RFP under CAA section 182(c)(2)(B) and shall submit an RFP SIP no later than [option 1: 48 months] [option 2: The state's choice ofeither 48 months or 30 months for a consolidated submission] providing for an average of 3percent per year ofreduction for: (A)Allremaining 3-year periods after the first 6-year period until the area's attainment year; and that

(B) relies on either NOx or VOC emissions reductions (ora combination)
to meetthe requirements of (a)(2)(ii)(A) and (B). Use ofNOx emissions reductions must meetthe criteria in CAA section 182(c)(2)(C). (3)RFP requirements for Moderate and above areas for which only a portion has an approved 15 percent VOC RFP plan for the 1-hour or 1997

ozone NAAQS.

An area classified as Moderate or higher that contains one or more areas,

orportions ofareas, for which EPA fully approved a 15 percent plan forthe 1- hour or 1997 ozone NAAQS as well as

areas for whichEPA has not fully approved a 15 percent plan for either the 1-hour or 1997 ozone NAAQS shall
meet the requirements ofeither paragraph (a)(3)(i) or (ii)below. (i) The state shall not distinguish between the portion ofthe area that previously met the 15 percent VOC reduction requirement and the portion ofthe area that did not,and shall meet the requirements of (a)(4) ofthis section for the entire nonattainment area. (ii)The state shall treat the area as two parts, each with a separate RFP target as follows: (A)Forthe portion ofthe area without

an approved 15 percent VOC RFP plan for the 1-hour or 1997 ozone NAAQS, the state shall submit a SIP revision as required under paragraph (a)(4) ofthis section. Emissions reductions to meet this requirement may come from anywhere within the 2008 ozone NAAQS nonattainment area. (B) Forthe portion ofthe area with an approved 15 percent VOC planfor the 1-hour or 1997 ozone NAAQS, the state shall submit a SIP as required under paragraph (a)(2) ofthis section. (4) RFP Requirements for areas without an approved 1-hour or 1997

ozone NAAQS 15 percent VOC RFP plan and without a determination of attainment that suspends the requirements for those NAAQS. (i) For each area classified as Moderate or higher, the state shall submita SIP revision consistent with CAA section 182(b)(1). The 6-year period referenced in CAA section 182(b)(1) shall begin January 1 ofthe year following the year used for the baseline emissions inventory. (ii)ForModerate areas, the plan must provide for an additional 3 percent per year reduction from the end ofthe first 6 years up to thebeginning ofthe attainment year ifabaseline year earlier than 2011 isused. 

### 34237

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

(iii)For each area classified as Serious

orhigher, the state shall submit a SIP revision consistent withCAA section 182(c)(2)(B). The final increment of progress must be achieved no later than the attainment date for the area. (5)Creditability ofemission control

measures for RFP plans.

Except as specifically provided in CAA section 182(b)(1)(C) and (D), section 182(c)(2)(B), and 51.1110(e) below, all emission reductions from SIPapproved or federally promulgated

measures that occur after thebaseline emissions inventory year are creditable for purposes ofthe RFP requirements in this section, provided thereductions
meet the requirements for creditability, including theneed tobe enforceable, permanent, quantifiable, and surplus. (a)Baseline emissions inventory for RFP plans.

For the RFP plans required under this section, at the time ofdesignation for the 2008 ozone NAAQS the baseline emissions inventory shall be the emissions inventory for the mostrecent calendar year for which a complete triennial inventory isrequired tobe submitted to EPAunder the provisions ofsubpart A ofthis part. States may use

an alternative baseline emissions inventory provided the state demonstrates whyit is appropriate to

use the alternative baseline year. All
states associated with a multi-state nonattainment area must consult and
agree on a single alternative baseline year. (b)NOx Substitution. [Alternative 1for the finalrule] For

areas classified as Moderate or higher that are subject to the requirements of CAA section 182(b)(1), the state must submit an RFP plan for the area that reduces VOC by 15percent. [Alternative 2for the finalrule] For

areas classified as Moderate or higher that are subject to the requirements of CAA section 182(b)(1), the state may submit an RFP plan for the area that substitutes NOx reductions for VOC, consistent with section 182(c)(2)(C), provided that the state can demonstrate that the area achieved a 15 percent reduction in VOC emissions in the 6- year period from abaseline emission
year of1990. [Alternative 3for the finalrule] For

areas in the OTR that are subject to the requirements ofCAA section 182(b)(1) for the first time, the state may submit

an RFP plan for an area that substitutes NOx reductions for VOC, consistent with CAA section 182(c)(2)(C), provided that the state can demonstrate thatthe

area achieved a 15 percent reduction in VOC emissions in the 6-year period from a baseline emission year of 1990. (c) Creditability ofout-of-area emissions reductions. Foreach area classified as Moderate or higher pursuant to §51.1103, in addition to the restrictions on the credibility of emission control measures listed in 51.1110(a)(5), creditable emission reductions for percentage reduction RFP also must be obtained from sources within the nonattainment area. (d)Calculation ofnon-creditable emissions reductions. [Alternative 1for the final rule] The following four categories ofcontrol

measures listed in CAA section 182(b)(1)(D) are no longer required tobe calculated for exclusion in RFP analyses because the Administrator has determined that due to the passage of time the effect ofthese exclusions would be de minimis: (i) Measures related to motorvehicle exhaust or evaporative emissions promulgated by January 1, 1990; (ii)regulations concerning Reid vapor pressure promulgated by November 15, 1990; (iii)

measures to correct previous RACT requirements; and (iv)measures required tocorrect I/M programs. [Alternative 2for the final rule] The non-creditable emissions reductions for RFP targets must be calculated using the methodology in Appendix C ofthe preamble to the 2008 SIP Requirements Rule.
§51.1111 [Reserved] 

### §51.1112 Requirements for reasonably available controltechnology(RACT) and reasonably available controlmeasures (RACM). (a)RACT requirement for areas classified pursuant to §51.1103. (1)For each primary standard nonattainment area classified Moderate

or higher, the state shall submit a SIP revision that meets the NOx and VOC RACT requirements in CAA sections 182(b)(2) and 182(f).

(2)The state shall submit the RACT SIP for each area nolater than [option 1: 24 months] [option 2: State's choice ofeither 24 months or 30 months for a consolidated submittal] after the effective date ofdesignation forthe 2008

ozone NAAQS. (3)The state shall provide for implementation ofRACT as expeditiously aspracticable but no later than January 1ofthe fifthyear after the effective date ofdesignation forthe 2008

ozone NAAQS. (b)Determination ofmajor stationary

sources for applicability ofRACT provisions.

VOCs andNOx are to be considered separately for purposes ofdetermining whether a source is a major stationary

source as defined in CAA section 302. (c) Reasonably Available Control Measures (RACM) requirement for areas designated nonattainment for the 2008

ozone NAAQS.

For each nonattainment area required
to submit an attainment demonstration under §51.1108(a) and (b),the state shall submit with the attainment demonstration a SIP revision demonstrating that ithas adopted all RACM necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements.
§51.1113 Section 182(f) NOxexemption provisions.

(a)A person or a state may petition the Administrator for an exemption from NOx obligations under section 182(f)for any area designated nonattainment for the 2008 ozone NAAQS and for any area in a section 184 ozone transport region.

(b)The petition must contain adequate documentation thatthe criteria in section 182(f)are met. (c) A section 182(f)NOx exemption granted for the 1-hour or 1997 ozone NAAQS does not relieve the area from any NOx obligations under section 182(f)for the 2008 ozone standard.
§51.1114 New sourcereview requirements.

The requirements for NSR for the

ozone NAAQS are located in §51.165 of this part.
§51.1115 Emissions inventory requirements.

For each nonattainment area classified in accordance with §51.1103, the emissions inventory requirements in CAA sections 182(a)(1) and 182(a)(3) shall apply, and such SIP shall be due

no later [option 1: 24 months] [option 2: 24 months or state's choice of30 months for a consolidated submittal] after designation. For purposes of defining the data elements for the emissions inventories for these areas, the ozone-relevant data element requirements under 40 CFR part 51 subpart A shall apply.
§51.1116 Requirements foran Ozone Transport Region. (a)In general. CAA sections 176A and 184 apply for purposes ofthe 2008 ozone NAAQS. (b)RACT requirements for certain portions ofan Ozone Transport Region. (1)The state shall submit a SIP revision that meets the RACT requirements ofCAA section 184(b)(2) for each area that islocated in an ozone transport region. (2)The state isrequired to submit the RACT revision no later than [option 1: 34238

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

24 months] [option 2: State's choice of 24 months or 30months for a consolidated submittal] after designation for the 2008 ozone NAAQS and shall provide for implementation of RACT as expeditiously as practicable but no later than January 1 ofthe fifth year after designation forthe 2008 ozone NAAQS. §51.1117 Fee programs forSevere and Extreme nonattainment areas thatfail to attain.

For each area classified as Severe or Extreme for the 2008 ozone NAAQS, the
state shall submit a SIP revision within 10 years ofthe effective date of designation thatmeets the requirements ofCAA section 185. §51.1118 Suspension ofattainment SIP planning requirements inanonattainment
area upon adetermination thatthe area has attained theozone NAAQS.

Upon a determination by EPAthat an

area designated nonattainment for the 2008 ozone NAAQS, or for any prior

ozone NAAQS, has attained the standard, the requirements for such area to submit attainment demonstrations and associated reasonably available control measures, reasonable further progress plans, contingency measures for failure to attain or make reasonable progress and other planning SIPs related
to attainment ofthe 2008 ozone NAAQS, or for any prior NAAQS for which the determination hasbeen made, shall be suspended until such time as: the area is redesignated to attainment for that NAAQS, at which time the requirements no longer apply;

or EPA determines that the area has violated that NAAQS, at which timethe

area is again required to submit such plans. §51.1119 Applicability.

As ofrevocation ofthe 1997 ozone NAAQS, as set forth in 50.10(c), the provisions ofSubpart AA shall replace the provisions ofSubpart X, 51.900 to 51.918, which cease to apply. See Subpart X section 51.919. * 6. Appendix Sto Part 51 is amended by adding section VII. to read as follows: Appendix S toPart51-Emission Offset InterpretativeRuling

VII. Anti-Backsliding Measures

Nonattainment area new sourcereview obligations forprior ozone NAAQS.

(a)Except as provided in paragraph (b) of this section, an area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment forthe 1997

ozone NAAQS at the time ofrevocation of the 1997 ozone NAAQS remains subject to the obligation to adopt and implement the requirements fornonattainment new source review that apply or applied to the area pursuant to CAA sections 172(c)(5), 173 and 182 based onthe highest of: (i) The area's classification under CAA section 181(a)(1) for the 1-hour ozone NAAQS as ofthe effective date ofrevocation ofthat NAAQS; (ii)the area's classification under 40 CFR §51.903 for the 1997 ozone NAAQS as ofthe date a permit is issued or as ofthe effective date of revocation ofthat NAAQS, whichever is earlier; and (iii) the area's classification under 40 CFR § 51.1103 for the 2008 ozone NAAQS.

(b)(i)An area remains subject to the obligations for a revoked NAAQS under paragraph (a) until either (1) the area is redesignated to attainment for the 2008 ozone NAAQS; or (2) EPA, after notice-andcommentrulemaking, approves a showing for the area in a procedure that succeeds the redesignation process for a revoked NAAQS, and which serves the same purpose ofending anti-backsliding requirements as would redesignation, were the NAAQS in effect. Under thisredesignation substitute procedure for a revoked NAAQS, and for this limited anti-backsliding purpose, the area must show that it has attained that revoked NAAQS due to permanent and enforceable emission reductions, and it must demonstrate that it will maintain that NAAQS for ten
years from the date ofEPA's approval ofthis showing.

(ii) Effect ofredesignation to attainment for 2008 ozone NAAQS or approval ofa redesignation substitute for a revoked ozone NAAQS. After redesignation to attainment for the 2008 ozone NAAQS, the state may request that provisions for nonattainment NSR beremoved from the SIP. After EPA approval ofa redesignation substitute for a revoked NAAQS, the state mayrequest that provisions for nonattainment NSR for the revoked NAAQS be removed from the SIP. Upon removal ofnonattainment new source review obligations for a revoked NAAQS, the

state remains subject to the obligation to adopt and implement the requirements for nonattainment new source review that apply

or applied to the area for the remaining applicable NAAQS consistent with paragraph (a).
[FRDoe. 2013-13233 Filed 6-5-13; 8:45 am]
BILLING CODE 6560-50-P 

### 34239