Vol. 78 Thursday, 

No. 109 June 6, 2013 

Part II 

Environmental Protection Agency 

40 CFR Parts 50, 51, 70 et al. 

Implementation of the 2008 National Ambient Air Quality Standards for 

Ozone: State Implementation Plan Requirements; Proposed Rule 

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34178 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] 

RIN 2060–AR34 

Implementation of the 2008 National 

Ambient Air Quality Standards for 

Ozone: State Implementation Plan 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing 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 of state 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 of state 

implementation plan (SIP) submissions 

and of compliance with emission 

control measures in the SIP. Other 

issues also addressed in this proposed 

rule are the revocation of the 1997 

ozone NAAQS and anti-backsliding 

requirements that would apply when 

the 1997 ozone NAAQS is revoked. 

DATES: Comments. Comments must be 

received on or before August 5, 2013. 

Public Hearings. The EPA plans to hold 

one public hearing concerning the 

proposed rule in Washington, DC. The 

date, time and location will be 

announced separately. Please refer to 

SUPPLEMENTARY INFORMATION for 

additional information on the comment 

period and the public hearings. 

Information Collection Request. Under 

the Paperwork Reduction Act (PRA), 

comments on the information collection 

provisions must be received by the 

Office of Management and Budget 

(OMB) on or before July 8, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0885, by one of the 

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 if possible. In 

addition, please mail a copy of your 

comments on the information collection 

provisions to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: 

Desk Officer for EPA, 725 17th St. NW., 

Washington, DC 20503. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, 

Attention Docket ID No. EPA–HQ– 

OAR–2010–0885, Environmental 

Protection Agency in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave. NW., 

Washington, DC. The EPA/DC Public 

Reading Room is open 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: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0885. The EPA’s policy is that all 

comments received will be 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 that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any CD you submit. 

If the EPA cannot read your comment 

due to technical difficulties and cannot 

contact you for clarification, the EPA 

may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters and any 

form of encryption and be free of any 

defects or viruses. For additional 

information about the EPA’s public 

docket, visit the EPA Docket Center 

homepage at http://www.epa.gov/ 

epahome/dockets.htm. For additional 

instructions on submitting comments, 

go to the SUPPLEMENTARY INFORMATION

section of this 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., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center in the EPA 

Headquarters Library, Room Number 

3334 in the EPA West Building, located 

at 1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

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

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. 

FOR FURTHER INFORMATION CONTACT: For 

further general information on this 

rulemaking, contact Dr. Karl Pepple, 

Office of Air Quality Planning and 

Standards, U.S. Environmental 

Protection Agency, by phone at (919) 

54l-2683, or by email at 

pepple.karl@epa.gov; or Mr. Butch 

Stackhouse, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, 

phone number (919) 54l-5208, or by 

email at stackhouse.butch@epa.gov. For 

information on the public hearings, 

contact Ms. Pamela S. Long at (919) 

541–0641 or by email at 

long.pam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected directly 

by this proposal include state, local and 

tribal governments. Entities potentially 

affected indirectly by this proposal 

include owners and operators of sources 

of emissions (volatile organic 

compounds (VOCs) and nitrogen oxides 

(NOX)) that contribute to ground-level 

ozone formation. 

B. What should I consider as I prepare 

my comments for the EPA? 

1. Submitting CBI. Do not submit CBI 

information to the EPA through 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information on a disk or CD ROM that 

you mail to the EPA, mark the outside 

of the disk or CD ROM as CBI and then 

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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 34179 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed to be 

CBI must be submitted for inclusion in 

the public docket. Information marked 

CBI will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this notice 

will be posted at http://www.epa.gov/ 

air/ozonepollution/actions.html#impl. 

D. What information should I know 

about possible public hearings? 

The EPA intends to hold one public 

hearing on this proposal. Further details 

concerning the public hearing for this 

proposed rule will be published in a 

separate Federal Register notice. For 

updates and additional information on 

the public hearings, please check the 

EPA’s Web site for this rulemaking at 

http://www.epa.gov/air/ozonepollution/ 

actions.html#impl. 

E. How is this notice organized? 

The information presented in this 

notice is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for the EPA? 

C. Where can I get a copy of this document 

and other related information? 

D. What information should I know about 

possible public hearings? 

E. How is this notice organized? 

II. Background for Proposal 

A. The 2008 Ozone NAAQS 

B. The Challenge of Ozone Implementation 

C. History of Implementation Rules for the 

1997 Ozone NAAQS 

D. Section 110 SIP Requirements 

E. Part D Nonattainment Area SIP 

Requirements 

III. What are the state implementation plan 

requirements for the 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 the requirements for modeling 

and attainment demonstration SIPs? 

C. What are the RFP requirements for the 

2008 ozone NAAQS? 

D. How do RACT and RACM requirements 

apply for 2008 ozone NAAQS 

nonattainment areas? 

E. Does the 2008 ozone NAAQS result in 

any new inspection and maintenance 

(I/M) programs? 

F. How does transportation conformity 

apply to the 2008 ozone NAAQS? 

G. What requirements for general 

conformity apply to the 2008 ozone 

NAAQS? 

H. What are the requirements for 

contingency measures in the event of 

failure to meet a milestone or to attain? 

I. How do the NSR requirements apply for 

the 2008 ozone NAAQS? 

J. What are the emission inventory and 

emission statement requirements? 

K. What are the ambient monitoring 

requirements? 

L. How can states qualify for a 1-year 

attainment deadline extension? 

M. How will the EPA address transport of 

ozone and its precursors for rural 

nonattainment areas, multi-state 

nonattainment areas and international 

transport? 

N. How will the section 182(f) NOX

provisions be handled? 

O. Emissions Reduction Benefits of Energy 

Efficiency/Renewable Energy Policies 

and Programs, Land Use Planning and 

Travel Efficiency 

P. Efforts To Encourage a Multi-Pollutant 

Approach When Developing 2008 Ozone 

SIPs 

Q. How does this proposed rule apply to 

tribes? 

R. What are the requirements for the Ozone 

Transport Region (OTR)? 

S. Are there any additional requirements 

related to enforcement and compliance? 

T. What are the requirements for 

addressing emergency episodes? 

U. How does the ‘‘Clean Data Policy’’ apply 

to the 2008 ozone NAAQS? 

V. What assistance programs is the EPA 

considering for implementation of the 

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 EPA proposing 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 on the Contingency 

Measures Requirement 

F. What is the EPA proposing regarding 

anti-backsliding requirements for the 

1-hour and 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 to the 2008 ozone NAAQS? 

I. Application of Transition Requirements 

to Nonattainment and Attainment Areas 

J. Satisfaction of Anti-Backsliding 

Requirements for an Area 

K. How will the EPA’s determination of 

attainment (‘‘Clean Data’’) regulation 

apply for purposes of the antibacksliding requirements? 

L. What is the relationship between 

implementation of the 2008 ozone 

NAAQS and the CAA title V permits 

program? 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

Appendix A to Preamble—Glossary of Terms 

and Acronyms 

Appendix B to Preamble—Relevant 

Rulemakings Concerning 

Implementation of the 1997 Ozone 

NAAQS 

Appendix C to Preamble—Methods to 

Account for Non-Creditable Reductions 

When Calculating RFP Targets for the 

2008 Ozone NAAQS 

Appendix D to Preamble—List of Areas 

Nonattainment for the 2008 Ozone 

NAAQS in Addition to a Prior Ozone 

NAAQS 

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34180 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 

1 73 FR 16436. 

2For a detailed explanation of the calculation of 

the 3-year 8-hour average, see 40 CFR part 50, 

Appendix I. 

3http://yosemite.epa.gov/opa/admpress.nsf/0/ 

85F90B7711ACB0C88525763300617D0D. 

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. 6 77 FR 30160, May 21, 2012. 

Statutory Authority 

List of Subjects 

II. Background for Proposal 

A. The 2008 Ozone NAAQS 

On March 12, 2008,1 the EPA revised 

the primary NAAQS for ozone, designed 

to protect public health, to a level of 

0.075 parts per million (ppm) (annual 

fourth-highest daily maximum 8-hour 

concentration, averaged over 3 years).2

The secondary NAAQS for ozone, 

designed to protect public welfare, was 

simultaneously set at the same level 

(and with 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, the EPA 

announced 3 that it would initiate a 

rulemaking to reconsider the 2008 

ozone NAAQS for various reasons, 

including the fact the 0.075 ppm level 

fell outside of the range for the primary 

standard recommended by the Clean Air 

Scientific Advisory Committee. Pending 

the outcome of that reconsideration, the 

EPA suspended further work on 

designating areas, and on classifying 

and developing implementation 

guidance for areas that would be 

designated nonattainment for the 2008 

NAAQS. In September 2011, the OMB 

returned for further consideration the 

EPA’s draft rulemaking to reconsider the 

2008 ozone NAAQS.4 The 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 1997 but is set at a more 

stringent level. 

B. The Challenge of Ozone 

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 of the country as attainment/ 

unclassifiable, nonattainment or 

unclassifiable for the 2008 NAAQS.5 On 

April 30, 2012, the EPA also finalized a 

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 That rule, referred to as the 

‘‘Classifications Rule,’’ also addressed 

the revocation of the 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 of additional 

issues important for implementing the 

2008 ozone NAAQS. 

In this action, the EPA proposes a rule 

to address the steps states will take to 

implement the 2008 ozone NAAQS and 

the timing of those steps. In accordance 

with Executive Order (EO) 13563 titled, 

‘‘Improving Regulation and Regulatory 

Review,’’ signed by President Barack 

Obama on January 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 health benefits required 

by the CAA will require the combined 

efforts of federal, state, local, and in 

some cases tribal governments, each 

accomplishing the tasks for which it is 

best suited. For the EPA, that means 

adopting national standards where it 

makes sense to do so, such as standards 

to reduce emissions from sectors that 

are of national concern, such as mobile 

sources and many types of industries. 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 that the 

requirement to implement the 2008 

ozone NAAQS comes at a time 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 of implementing the 

2008 ozone NAAQS by promulgating a 

number of national regulations that will 

provide significant reductions in ozone 

precursors. 

In this preamble, we lay out proposed 

expectations and requirements for 

implementation of the 2008 ozone 

NAAQS. As we have considered the 

elements of implementation of the 

NAAQS required under the CAA, it has 

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 to the states. We 

invite comment on any and all aspects 

of this proposed rule, and encourage 

suggestions that will increase 

implementation efficiency, allow the 

most effective pollution control 

programs to be implemented and 

identify additional ways in which the 

EPA can assist the states to reach 

attainment within the legal framework 

of the CAA. 

The CAA was amended in 1990 to 

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 of scientific knowledge and 

increased understanding of issues 

related to ozone formation and control. 

Specifically, we know more about how 

NOX and VOC interact to form ozone 

and we have better models for 

evaluating control strategies. This better 

understanding allows for more strategic 

approaches in which public health can 

serve as the key factor in prioritizing 

control measures. We also have a better 

appreciation for the role of interstate 

transport of ozone, international 

transport of pollutants and background 

levels of ozone. In the past 20 years, 

technology has evolved substantially, 

particularly with respect to mobile 

sources, with the result that some of the 

very specific programs mandated for 

ozone nonattainment areas, such as 

Stage II Vapor 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 now being explored that 

have great promise for improved air 

quality and other benefits, but may not 

fit easily into the timelines of the CAA 

or the EPA’s traditional expectations for 

SIPs. Other innovative approaches, such 

as I/M programs built around next 

generation testing technologies like 

onboard diagnostics (OBD), are available 

now and the EPA will work with states 

interested in adopting such programs to 

ensure their effective implementation. 

The EPA has explored a number of 

approaches to address the issues 

discussed above and has identified 

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7 In addition to the planned Tier 3 emission 

standards, other new and existing mobile source 

regulations addressing emissions from new heavyduty vehicles, non-road equipment and engines, 

locomotives, marine engines and ocean-going 

vessels will continue to provide additional 

emissions reductions as the current fleets are 

replaced with vehicles, equipment and engines that 

are certified to more stringent emissions standards 

or engines are re-built to comply with any 

applicable requirements. 

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 and welfare 

protection achieved by meeting the 

ozone NAAQS. In subsequent sections 

of this preamble, we lay out our 

proposed approaches, but here are a few 

examples: 

1. Federal control measures: States 

can rely 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 to the relevant 

SIP-related deadlines. Promulgated and 

planned federal rules include, but are 

not limited to: (1) Tier 3 emissions 

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. Stage II Vapor Recovery: 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, 

if they determine it appropriate, 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 the requirement for states 

to inspect such systems, resulting in 

cost savings for both the states and the 

owners and operators of GDFs. 

3. Attainment demonstrations: The 

EPA is investigating opportunities for 

easing the burden on states to conduct 

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 as making 

available various emissions, 

meteorological and boundary conditions 

inputs, and national scale modeling 

results that were generated in support of 

EPA rules, that states could reference as 

part of their attainment demonstrations. 

4. Innovative and creative 

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 to reducing emissions such 

as improvements in energy efficiency 

and land use programs, especially since 

many of the 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 

III.O of this preamble. 

5. Updated information: The EPA will 

continue to assist states’ 

implementation efforts by offering a 

variety of new compilations of 

information that will be useful to all 

states. In 2012, the EPA issued an 

updated ‘‘Menu of Control 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 of ideas 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 is located 

at http://www.epa.gov/air/ 

ozonepollution/implement.html. 

Specific information regarding SIP 

submittal and approval status is located 

at http://www.epa.gov/airquality/ 

urbanair/sipstatus/. 

6. Emissions offset relief in Economic 

Development Zones: 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 by the 

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 of job growth. 

7. Rural transport areas: Section 

182(h) of the 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 or in other areas. 

These areas are subject to Marginal area 

requirements, regardless of the area’s 

classification under section 181(a), in 

recognition of that fact. 

8. RFP requirements: 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. We believe that, given the 

improved scientific understanding of 

the formation of ozone, it makes sense, 

wherever possible, to allow states to 

credit toward the RFP requirement those 

reductions that an area most needs to 

reach attainment. 

9. Combining submittals: 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 of the necessary rulemaking or 

program development activities without 

compromising expeditious progress 

towards and attainment of the 

standards. 

10. Encouraging early reductions: 

Under the ‘‘Ozone Advance’’ program, 

the EPA is working with states, tribes 

and local governments to ensure they 

are aware of the advantages of early 

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 EPA believes there 

are significant advantages for states, 

tribes and local governments to take 

steps to reduce emissions as early as 

possible. Early reductions can help to 

maintain or improve existing air quality, 

which in turn can help to ensure 

continued health protection and keep an 

area in attainment or, if eventually 

designated as nonattainment under a 

future ozone NAAQS, help bring the 

area back into attainment. In addition, 

efforts to improve local air quality can 

establish working relationships between 

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8The court’s June 8, 2007, clarification also 

confirmed that the December 22, 2006, decision did 

not establish a requirement that areas continue to 

demonstrate conformity for the 1-hour ozone 

NAAQS for anti-backsliding purposes. 

9The EPA did not prescribe a shorter period 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 of the CAA for the 2008 8-hour ozone NAAQS 

are due by various dates as established throughout 

subpart 2 of part 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 in 4 years under 

182(c)(2). The EPA has in the past interpreted these 

dates to run from the effective dates of the 

nonattainment designations, see 68 FR 32802, 

32816–817 (June 2, 2003) (‘‘subpart 2 SIP submittals 

will be due as a general matter by the same period 

of time after designation and classification under 

the 8-hour standard as provided in subpart 2 for 

areas designated and classified at the time of 

enactment of the 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 

key stakeholders that can help achieve 

emission reductions quickly and in 

ways that make the most sense to the 

particular community. 

The EPA will work closely with states 

and tribes to provide 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 rule that are 

consistent with the CAA and provide 

flexibility to the states for common 

sense implementation that will provide 

for timely progress towards attainment 

of the 2008 ozone standard. 

C. History of Implementation Rules for 

the 1997 Ozone NAAQS 

In 2004 and 2005, the EPA 

promulgated regulations codified in 40 

CFR part 51, subpart X, addressing 

implementation of the 1997 8-hour 

ozone NAAQS, revocation of the 1979 

1-hour ozone NAAQS, and the antibacksliding requirements that continued 

to apply for the revoked 1979 standard. 

See Federal 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 for judicial review 

of those rules. The EPA granted 

reconsideration of several issues and 

took final action on those issues. 

Challenges to those reconsideration 

actions were consolidated with the 

challenges to the Phase 1 and Phase 2 

Rules. The court upheld portions of the 

Phase 1 Rule but vacated limited 

portions concerning the classification of 

areas under subpart 1 of part D of title 

I of the CAA and the failure to include 

three anti-backsliding requirements 

associated with the revoked 1-hour 

ozone NAAQS. South Coast Air Quality 

Management District v. EPA, 472 F.3d 

882 (D.C. Cir. 2006) (South Coast). 

Although the court upheld only limited 

challenges, it seemed to vacate the 

Phase 1 Rule in its entirety. The EPA 

requested rehearing and clarification of 

the ruling, and on June 8, 2007, the 

court clarified that it vacated the rule 

only to the extent that it had upheld 

petitioners’ challenges. South Coast Air 

Quality Management District, et al., v. 

EPA, 489 F.3d 1245 (D.C. Cir. 2007). 

Thus, only the following provisions of 

the Phase 1 Rule were vacated: The 

provisions that classified some 1997 

8-hour ozone nonattainment areas under 

subpart 1, part D, title I of the CAA; and 

the provisions that did not retain three 

anti-backsliding obligations associated 

with the revoked 1-hour ozone NAAQS: 

nonattainment NSR, section 185 penalty 

fees and contingency measures for 

failure to attain or to make reasonable 

progress toward attainment.8 The EPA 

finalized action to re-address the 

vacated subpart 1 classifications and 

contingency measures provisions of the 

Phase 1 Rule. 77 FR 28424, May 14, 

2012. The EPA proposed 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 of this proposal. 

In the litigation on the Phase 2 Rule, 

the EPA requested and the court granted 

a remand of the provision that allowed 

emission reductions from outside a 

nonattainment area to be credited 

toward the RFP requirement for that 

area, so that the EPA could reconsider 

that provision in light of the EPA’s 

different treatment of such reductions 

under the fine particle (PM2.5) 

implementation rule (72 FR 20586, 

April 25, 2007). The EPA then issued a 

revised rule requiring that states include 

in their baseline all emissions within 

any area outside of the nonattainment 

area from which reductions are being 

credited for rate of progress (ROP) 

purposes (74 FR 40074, August 11, 

2009). On May 13, 2010, the EPA 

granted a petition for reconsideration of 

this provision in light of the NOX SIP 

Call/RACT court decision described 

below. We proposed a rule to address 

this reconsideration as it relates to the 

1997 ozone NAAQS (75 FR 80420, 

December 22, 2010), and we discuss this 

issue in more detail as it relates to the 

2008 ozone NAAQS in section III.C.4 of 

this preamble. 

On July 10, 2009, the court issued its 

ruling on the remaining challenged 

provisions pertaining to the Phase 2 

Rule. NRDC v. EPA, 571 F.3d 1245 (D.C. 

Cir. 2009). The court upheld the Phase 

2 Rule in large part, finding most of the 

challenged provisions to be reasonable 

interpretations consistent with the 

statutory mandates in the CAA. The 

court, however, granted the petitions for 

review on limited issues. It remanded 

the EPA’s determination that 

compliance with the NOX SIP Call 

regional cap-and-trade program would 

satisfy the area-specific RACT 

requirement. It also remanded the 

revisions made to the requirements for 

NSR offsets in certain areas and vacated 

the extension of an NSR waiver 

provision beyond the previous 18- 

month time limit. The effect of the 

vacatur of the 18-month time limit is 

discussed in section III.I of this 

preamble. 

A listing of the relevant rulemakings 

concerning implementation of the 1997 

ozone NAAQS appears in Appendix B 

of this preamble. 

D. Section 110 SIP Requirements 

CAA section 110(a) imposes an 

obligation upon states to make a SIP 

submission with respect to the 2008 

8-hour ozone NAAQS. CAA section 

110(a)(1) requires states to submit SIPs 

that provide for the implementation, 

maintenance and enforcement of a new 

or revised NAAQS within 3 years 

following the promulgation of the new 

or revised 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 EPA refers to this type 

of SIP submission as the 

‘‘infrastructure’’ SIP. The requirements 

for infrastructure SIPs include basic SIP 

elements such as requirements for 

monitoring, basic program requirements 

and legal authority that are designed to 

assure attainment and maintenance of 

the NAAQS. The contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the content of such a SIP 

submission may vary 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 of section 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 

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34221 (June 11, 2012). In this notice, the EPA is 

proposing two options for SIP submittal dates for 

the 2008 ozone NAAQS. See section III.A. 

11See 78 FR 2882, January 15, 2013. 

12Attainment deadlines for the 2008 ozone 

NAAQS were established in the Classifications 

Rule, 77 FR 30160, May 21, 2012. 

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 extent that 

subsection refers to a nonattainment 

area new source review permit program 

for major sources as required in part D 

of title I of the CAA; and (ii) 

submissions required by section 

110(a)(2)(I) which pertains to the 

nonattainment planning requirements of 

part D of title I of the CAA. The EPA 

also notes that the D.C. Circuit’s recent 

opinion in EME Homer City Generation 

v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012) 

concluded that a SIP cannot be deemed 

to lack a 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 of the 2008 8-hour ozone 

NAAQS, the period during which the 

EPA was making efforts to reconsider 

the 2008 NAAQS with the expectation 

of revising it in the near term extended 

about 6 months beyond March 12, 2011, 

the normal deadline for submission of 

infrastructure SIPs. The EPA therefore 

did not prepare and issue timely 

guidance for the states to assist them in 

preparing their submissions. Also, states 

were given the impression that if the 

NAAQS were revised as a result of the 

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 the EPA to make findings of 

failure to submit for certain 

infrastructure SIPs that had not been 

found complete by March 12, 2011.11

The EPA recognizes that many states 

are affected by transported ozone and 

ozone precursors from upwind states, 

and that transported pollution may 

contribute significantly to air pollution 

that exceeds the NAAQS in those states. 

The CAA establishes states’ 

responsibilities to address interstate 

transport through two provisions: 

section 110(a)(2)(D) (specifying certain 

of the requirements for the 

‘‘infrastructure’’ SIPs) and section 126 

(requiring notification to downwind 

states of planned new or modified 

sources and providing a petition process 

through which downwind jurisdictions 

can seek to have specific sources of 

transported pollution addressed). This 

proposed implementation rule, which 

deals with the required SIP elements for 

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 the required 

elements of the section 110 

infrastructure SIP submittal for the 2008 

ozone NAAQS, that memorandum also 

would not contain guidance on how to 

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 of the NAAQS in a 

downwind state. 

E. Part D Nonattainment Area SIP 

Requirements 

In addition to the obligation to submit 

required section 110 infrastructure SIPs 

within 3 years of promulgation of a new 

or revised NAAQS, states with 

designated nonattainment areas also 

have the obligation to submit SIPs 

designed to bring those areas into 

attainment. SIP requirements applicable 

to nonattainment areas are found in part 

D of title I of the CAA. Subpart 1 of part 

D discusses general requirements for 

nonattainment areas, including the 

requirement that states adopt and 

submit for the EPA’s approval detailed 

SIPs that bring the area into attainment. 

Subpart 2 of part D contains 

additional provisions specifically 

applicable to ozone nonattainment 

areas. Subpart 2 includes 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 of their ozone air quality 

problems. 

Section 181(a) includes attainment 

deadlines for each classification 

category in relation to the time the area 

is designated nonattainment: Marginal 

areas are required to attain within 3 

years of designation; Moderate areas— 

within 6 years; Serious areas—within 9 

years; Severe-15 areas—within 15 years; 

Severe-17 areas—within 17 years; and 

Extreme areas—within 20 years.12

Section 182 of subpart 2 outlines 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 

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 2 is the focus of 

much of the discussion of this rule. 

When a topic is discussed that is not 

covered by subpart 2, reference will be 

made to the more general subpart 1 

requirements found in CAA sections 

171 through 179B, or to other sections 

of the CAA, as appropriate. As 

discussed in section II.D of this 

proposal, section 110(a) infrastructure 

SIPs will be the topic of a separate 

guidance document. 

III. What are the state implementation 

plan requirements for the 2008 ozone 

NAAQS? 

A. What is the deadline for submitting 

nonattainment area SIP elements due 

under CAA section 182 for the 2008 

ozone NAAQS? 

Section 182 of the CAA requires states 

with ozone nonattainment areas to 

submit various SIP elements within 

specified time periods after enactment 

of the CAA Amendments of 1990: (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 plan for Moderate and 

above areas within 3 years (section 

182(b)(1)); (4) an attainment plan for 

Moderate areas within 3 years (section 

182(b)(1)); (5) an attainment plan and 

demonstration for Serious and above 

areas within 4 years (section 182(c)(2)); 

and (6) a 3 percent per year RFP plan 

for Serious and above areas within 4 

years (section 182(c)(2)). 

In the Phase 2 Rule, we interpreted 

the SIP submittal time periods in 

section 182 to run from the effective 

date of designation and classification for 

the 1997 ozone NAAQS. See 70 FR 

71670. However, with regard to 

attainment demonstrations for Serious 

and above areas, we provided 3 years, 

instead of 4 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 3 years after 

the area’s designation for the 1997 

8-hour ozone NAAQS. We explained 

that at the time of the 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 

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13Typically submitted in 3-year increments, thus 

as 9 percent RFP plans that produce average 

reductions of 3 percent per year. 

14Emission reductions resulting from 

implementation of RACT, RFP and other state and 

federal requirements may, in some cases, not be 

sufficient to demonstrate attainment. States are 

responsible for adopting any additional measures 

needed to attain the NAAQS. These additional 

measures would be submitted by the state as part 

of the attainment plan and demonstration. 

technique. Congress then gave those 

areas 4 years to submit an attainment 

demonstration. In the Phase 2 

rulemaking, we determined that 

photochemical grid modeling should be 

required for Moderate areas as well as 

for Serious and above areas, and we 

explained that the technique was no 

longer new and that areas did not need 

4 years to submit an attainment 

demonstration based on such modeling. 

The policy reasons that existed at the 

time the Phase 2 rule was developed, 

specifically, the need for timing 

consistency between subpart 1 and 

subpart 2 areas within the same region, 

the timing of the large-scale transport 

modeling underway at the time, and the 

option of coordinated planning with the 

similarly timed PM2.5 SIPs, are not 

circumstances faced today by the 

Serious and higher areas. 

For purposes of the 2008 ozone 

NAAQS, the EPA proposes in the 

alternative the following two 

approaches regarding the deadlines for 

submitting the various elements of the 

state implementation plan. 

Period of time provided by the statute. 

Section 182 of the CAA specifies a time 

period, running from the date of 

enactment of the 1990 CAA 

Amendments, for states to submit each 

required element of the state 

implementation plan for nonattainment 

areas. Under this first alternative, the 

EPA is proposing that the time period 

specified in section 182 for the 

submission of each required element 

(i.e., 2 years for emission inventories 

and RACT SIPs, 3 years for 15 percent 

RFP plans and Moderate area attainment 

demonstrations and 4 years for 3 

percent per year 13 RFP plans and 

attainment demonstrations from Serious 

and higher areas), as described above, 

would apply and that such time periods 

would run from the effective date of an 

area’s designation for the 2008 ozone 

NAAQS. State’s choice: consolidated 

SIP submittal due 30 months after 

designation, or period of time provided 

by the statute. The EPA’s second 

alternative, which is our preferred 

alternative, is for the state to have the 

choice of meeting 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 of the 

required SIP elements for a 

nonattainment area would be submitted 

at one time, no later than 30 months 

after the effective date of the area’s 

designation for the 2008 ozone NAAQS. 

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 of emission inventories and 

RACT SIPs. We are proposing under this 

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 after the 

effective date of designation; or the state 

can choose to submit all SIP elements in 

accordance with the time provided by 

the statute. As part of this alternative 

proposal, a state 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 a more 

coordinated and less burdensome 

planning process, including only having 

one period for public review and 

opportunity for public hearing for all 

the SIP elements involved. (Note that all 

states that include part of a multi-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, we believe that the 30-month 

timeframe would be 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 it may be less burdensome to 

submit all ozone SIP elements 

concurrently within 30 months of 

designation. We note that an added 

benefit of earlier completion of the 

attainment planning process is that it 

provides states and sources with 

additional time to implement the 

measures adopted as part of the 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 would be 

due under this option for most areas by 

January 2015, prior to the beginning 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 

de minimis delay. Implementation of 

the RACT requirements would still 

occur on the schedule established by 

CAA section 182(b)(2)(C). From an 

accountability standpoint, if the 30 

months elapse with no SIP submittal 

from the state, the EPA will assume by 

default that the state has chosen to take 

the amount of time 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. What are the requirements for 

modeling and attainment demonstration 

SIPs? 

An attainment demonstration consists 

of: (1) Technical analyses, such as base 

year and future year modeling, to locate 

and identify sources of emissions that 

are contributing to violations of the 

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 of adopted 

measures (including RACT controls) 

with schedules for implementation and 

other means 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) of the CAA that can be 

implemented without further action by 

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 

or are part of the attainment 

demonstration and are addressed in 

other sections of this proposal. 

1. Marginal Areas 

Under section 182(a), Marginal areas 

have up to 3 years from designation to 

attain the NAAQS, and are not required 

to submit an attainment demonstration. 

When Congress amended the CAA in 

1990, it anticipated that nonattainment 

areas with ozone concentrations close to 

the level of the NAAQS would likely 

come into attainment within 3 years 

after designation as nonattainment 

without any additional local planning. 

Although states are not required to 

develop attainment demonstrations for 

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15State plans for single nonattainment areas that 

include more than one state (multi-state 

nonattainment areas) are also required to have 

photochemical modeling (see CAA section 

182(j)(1)(B)). 

16The modeling guidance can be found at the 

following Web site: http://www.epa.gov/scram001/ 

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 Air Use 

Management. June 5, 2006. Available at: http:// 

www.nescaum.org/. 

Marginal areas, there may be modeling 

completed by the EPA or other state 

organizations which may provide useful 

information regarding whether Marginal 

areas may be expected to attain by their 

attainment dates. For example, 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 of whether a Marginal area 

would attain within 3 years. 

Where such modeling indicates that a 

Marginal area is unlikely to attain the 

standard by its attainment date without 

the implementation of additional 

controls, we strongly encourage states or 

local agencies to work to get the 

necessary emission reduction measures 

in place in order to meet the ozone 

NAAQS within the 3-year timeframe. 

Marginal areas that do not attain the 

standard by the 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. If it is not possible to 

implement sufficient additional controls 

for a Marginal area to attain by the 3- 

year maximum attainment date, states 

may wish to consider voluntarily 

requesting reclassification to the 

Moderate classification. The EPA 

intends to offer assistance to the states 

as they consider the most appropriate 

course of action for Marginal areas that 

may be at risk of failing to meet the 

NAAQS within the applicable 3 year 

timeframe: whether to adopt additional 

controls or seek a voluntary 

reclassification to the next higher 

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 if it is reclassified after it 

fails to attain within 3 years of 

designation. If an area is reclassified 

based on an EPA determination that the 

area failed to attain by its attainment 

date, the state would likely have only 18 

to 24 months to adopt and implement 

controls by the beginning of the 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 of when the 

area is reclassified. 

2. Moderate Areas 

Section 182(b)(1)(A) requires states 

with Moderate (and higher classified) 

ozone nonattainment areas to develop 

an attainment demonstration that 

provides for reductions in VOC and 

NOX emissions ‘‘as necessary to attain 

the national primary ambient air quality 

standard for ozone.’’ Although not 

specifically required by the statute, in 

the Phase 1 Rule for the 1997 ozone 

NAAQS, the EPA 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 to require states 

with an area classified as Moderate to 

submit an attainment demonstration 

based on photochemical modeling or 

another equivalent analytical method 

that is determined to be at least as 

effective, as is required under the Act 

for Serious and above areas and multistate nonattainment areas.15

This requirement explicitly allows for 

alternative analytical methods to be 

substituted for or used to supplement a 

photochemical modeling-based 

assessment of an emissions control 

strategy. Any alternative analysis should 

be based on technically credible 

methods and provide for the timely 

submittal of the attainment 

demonstration and implementation of 

SIP controls. States should review the 

EPA modeling guidance and consult 

their appropriate EPA regional office 

before proceeding with alternative 

analyses. 

3. Serious and Above Areas 

For Serious and higher-classified 

areas, we continue to believe that 

photochemical modeling is the most 

technically credible method of 

estimating future year ozone 

concentrations based on projected VOC 

and NOX precursor emissions. 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 is there for using 

models to demonstrate attainment? 

The procedures for modeling ozone as 

part of an attainment demonstration are 

well developed and described in the 

EPA’s ‘‘Guidance on the Use of Models 

and Other Analyses for Demonstrating 

Attainment of Air Quality Goals for 

Ozone, PM2.5, and Regional Haze.’’ 16

This guidance document, as it currently 

exists, can be used by 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 of an attainment demonstration 

should be consistent with the EPA’s 

ozone modeling guidance. States with 

areas that were nonattainment for the 

1997 ozone NAAQS or are 

nonattainment today have invested 

considerable resources in local and/or 

regional ozone modeling analyses. We 

encourage states to work together to 

leverage the work and resources from 

these existing analyses, as well as to 

develop new analyses for the 2008 

ozone NAAQS as appropriate. The 

application of air quality models 

requires a substantial effort by state 

agencies and the EPA. Therefore, in 

order to maximize efficient use of time 

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 the EPA will be 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 NOX emissions during high 

energy demand periods. A study has 

identified high NOX emissions from 

electric generating units (EGUs) in the 

Northeast Corridor on summer days 

when demand for electricity is high 17

and has labeled these days as ‘‘High 

Electricity Demand Days’’ (HEDD). This 

study indicates that NOX emissions 

from EGUs during periods of high 

electricity demand in the Northeast may 

be significantly greater than emissions 

that occur on an average summer day. 

This spike in NOX emissions is due to 

increased power demand on hot 

summer days to meet air conditioning 

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34186 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 

18See, e.g., Chris James and Jeremy Fisher, Ph.D. 

Reducing Emissions in Connecticut on High 

Electric Demand Days (HEDD): A Report for the CT 

Department of Environmental Protection and the 

U.S. Environmental Protection Agency. July 25, 

2008. Synapse Energy Economics, Inc. 22 Pearl St., 

Cambridge, MA 02139. 

19http://www.epa.gov/scram001/guidance/guide/ 

final-03-pm-rh-guidance.pdf. 

20The EPA’s guidance on attainment 

demonstrations (Guidance on the Use of Models 

and Other Analyses for Demonstrating Attainment 

of Air Quality Goals for Ozone, PM2.5, and Regional 

Haze, April 2007) recommends that states may 

supplement the attainment test with other evidence 

in a ‘‘weight of evidence’’ determination of whether 

the nonattainment area is likely to attain the 

NAAQS by its deadline. The EPA intends to 

recommend in a forthcoming update of this 

guidance that other evidence that can be considered 

includes recent monitored values that have been 

adjusted so that they better represent the air quality 

that would have existed in the absence of any 

unusual natural or anthropogenic events (if any) 

that influenced ozone concentrations on the 

monitored days. The EPA intends to apply certain 

eligibility conditions to this recommendation. 

Specifically, the EPA intends to apply an eligibility 

approach that is like the set of eligibility criteria in 

the Exceptional Events Rule. However, we will not 

apply the ‘‘no exceedance but for’’ concept that is 

part of the 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 of the NAAQS ‘‘but for’’ the event. In this 

way, the EPA guidance will effectively recommend 

that states can apply Exceptional Events Rule-like 

considerations to situations in which an event has 

exacerbated the level of a NAAQS exceedance (but 

that did not cause the exceedance in the ‘‘but for’’ 

sense) on historical days that occur during the 

ambient data base year period that is used in the 

attainment test to project future air quality. 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 with state 

air agencies in the development of the planned 

update to our guidance on this topic. 

21Note that for purposes of the 8-hour ozone 

NAAQS, a determination of attainment (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 of data prior to the area’s 

attainment date. Attainment date extensions are 

only available if the 4th maximum 8-hour average 

ozone concentration in the attainment year is below 

the level of the standard. 

22See section III.D.2 of this proposal for a 

discussion of RACM analysis requirements. 

and other electric power needs. High 

electricity demand days require 

production of additional power from 

load-following EGUs and/or peaking 

unit EGUs, which are less frequently 

used compared to base-load EGUs. In 

the Northeast Corridor, these units have 

tended to be less well controlled than 

base-load EGUs. 

High energy demand summer days 

tend to coincide with ozone episodes, 

which may be in part due to the fact that 

NOX emissions on these days can 

greatly exceed average summer day NOX

emissions from electric power 

generation. There has been some study 

of control measures to reduce NOX

emissions on HEDDs.18

Since NOX emissions from electric 

power generation are a significant 

contributor to the total NOX emissions 

for many ozone nonattainment areas, 

states that experience this phenomenon 

should be 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 to properly account for 

HEDD emissions, careful attention 

should be paid to the temporalization of 

emissions to the specific day and hour 

of the day when these emissions occur. 

We note that the current modeling 

guidance 19 already addresses episode 

selection and development of accurate 

emissions input information during 

peak ozone periods. We will consider 

whether additional updates to the 

modeling guidance are needed to 

address modeling of the HEDD 

phenomenon. 

6. Modeled Attainment Test 

Models are used to test whether 

control measures to be adopted in the 

SIP are likely to result in attainment of 

the standard. The modeled attainment 

test for the ozone NAAQS under the 

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 

or near a designated nonattainment area. 

Models are used in a relative sense to 

estimate the response of measured air 

quality to future changes in emissions. 

Future air quality is estimated by 

multiplying recent monitored values by 

the modeled relative response to 

projected future changes in emissions.20

The EPA additionally recommends 

application of an attainment test to be 

performed in unmonitored areas. The 

recommended attainment test 

methodology for unmonitored areas has 

been used in 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 and the unmonitored area test have 

been incorporated in a software package 

called the ‘‘Modeled Attainment Test 

Software’’ (MATS). The MATS is 

available for no charge at: http:// 

www.epa.gov/scram001/ 

modelingapps_mats.htm. 

7. What future year(s) should be 

modeled in attainment demonstrations? 

The future modeling year should be 

selected such that all emissions control 

measures relied on for attainment will 

have been implemented by that year. 

Note that for purposes of the 1997 ozone 

NAAQS and as we are proposing here 

for the 2008 ozone NAAQS, control 

measures relied upon to demonstrate 

attainment should be implemented by 

the beginning of the last full ozone 

season prior to the area’s attainment 

date. To demonstrate attainment, the 

modeling results for the nonattainment 

area must predict that emissions 

reductions implemented by the 

beginning of the last full ozone season 

preceding the attainment date will 

result in ozone concentrations that meet 

the level of the standard.21 Because an 

area must attain ‘‘as expeditiously as 

practicable,’’ additional considerations 

are necessary before a future modeling 

year can be established. For example, 

although the maximum attainment date 

for a Moderate 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 if it can advance 

the area’s attainment date by at least a 

year.22 Results of the RACM analysis 

may indicate attainment can be 

achieved earlier (e.g., by December 2016 

or December 2017) through 

implementation of reasonably available 

control measures prior to the beginning 

of an earlier ozone season. For instance, 

if emission 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 should be 2016. We 

strongly recommend that the state 

discuss the selection of the future 

year(s) to model with the appropriate 

EPA regional office as part of the 

modeling protocol development 

process. 

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 of a 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 to take all reasonable steps 

to coordinate, substantively and 

procedurally, the development, 

submittal and implementation of SIPs 

applicable to the various states within 

the nonattainment area. The EPA 

interprets CAA section 182(j) to require 

coordination on all aspects of 

nonattainment SIPs, including the 

development of an attainment 

demonstration. 

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23CAA section 182(c)(2)(B) states that Serious 

and above areas must achieve additional reductions 

of at least 3 percent per year ‘‘averaged over each 

consecutive 3-year period.’’ Thus it is equivalent to 

a nine percent additional reduction in baseline 

emissions for each subsequent 3-year period. 

24CAA section 182(b)(1)(D)(ii) states that 

‘‘Regulations concerning Reid vapor pressure 

promulgated by the Administrator by November 15, 

1990, or required to be promulgated under section 

7545(h) of this title’’ are not creditable toward 

required RFP reductions. 

C. What are the RFP requirements for 

the 2008 ozone NAAQS? 

1. Background 

Areas that are designated 

nonattainment for ozone must achieve 

RFP toward attainment of the ozone 

NAAQS. Part D of the CAA contains 

three separate provisions regarding RFP. 

Under subpart 1, section 172(c)(2) 

contains a general requirement that 

nonattainment SIPs must provide for 

reasonable further progress; 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 2 contain 

specific percent reduction targets for 

ozone nonattainment areas classified as 

Moderate and above and Serious and 

above, respectively. For Moderate and 

above areas, section 182(b)(1) requires a 

15 percent reduction in VOC emissions 

from the baseline anthropogenic 

emissions 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 NOX reductions to 

be substituted for VOC reductions under 

certain conditions. Note that the 15 

percent requirement must be met by the 

end of the 6-year period regardless of 

whether the state attains the NAAQS 

prior to that point. The 3 percent per 

year requirement for Serious and above 

areas runs until the attainment date. 

The Phase 2 Rule interpreted the 

requirements of subpart 2 as they would 

apply to areas for the 1997 ozone 

NAAQS. With respect to RFP, the Phase 

2 Rule interpreted the section 182(b)(1) 

15 percent RFP requirement such that 

an area that had already met the 15 

percent RFP requirement for VOC under 

the 1-hour ozone NAAQS (for the first 

6 years after the RFP baseline year for 

the 1-hour ozone NAAQS) would not 

have to fulfill that requirement 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). For the purposes of the 

1997 ozone NAAQS, the EPA 

interpreted section 172(c)(2) to require 

Moderate areas to obtain 15 percent 

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, NOX

emission reductions could be 

substituted for VOC reductions. This 

provision of the Phase 2 Rule was 

upheld in NRDC v. 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 a number of 

provisions to address issues relevant to 

implementing RFP under the 2008 

ozone NAAQS: (1) The timing for the 

submission of RFP plans; (2) restrictions 

on emission reduction measures that 

can be used to fulfill the RFP 

requirements under subpart 2; 3) the 

RFP plan requirements of section 

182(b)(1) of the 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 that under 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 of former 

nonattainment areas that under a prior 

ozone NAAQS fulfilled the 15 percent 

RFP requirement for VOC in section 

182(b)(1); and (6) proposed procedures 

for calculating RFP targets. Hereafter in 

the discussion of RFP requirements 

within this section, when we use the 

term ‘‘2008 nonattainment area’’ we 

mean ‘‘nonattainment area classified as 

Moderate or higher under the 2008 

ozone NAAQS.’’ 

a. What is the deadline for submitting 

RFP plans? 

As detailed in section III.A of this 

preamble, the EPA is proposing two 

options regarding the deadline(s) for 

submittal of the 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 frame provided for such 

elements in section 182, with the 

specified time periods running from the 

effective date of designation for the 2008 

ozone NAAQS. Thus, the RFP plan 

addressing the first 6-year period for 

Moderate and higher classified areas 

would be due 3 years from the effective 

date of designation; and the RFP plan 

addressing the additional 3 percent per 

year requirement for Serious and higher 

classified areas would be due 4 years 

from the effective date of designation. 

The second option is to give states the 

choice to either submit the various SIP 

elements required for an area according 

to the timeframes specified by statute or 

to submit all of the required SIP 

elements within 30 months of the 

effective date of designation 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 

of designation. For the same reasons 

discussed in section III.A of this 

preamble (related to SIP due dates), the 

EPA believes that it may be reasonable, 

and preferred 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 Emission Reduction 

Measures That Can Fulfill the RFP 

Requirement 

The CAA places certain restrictions 

on the emission reductions that are 

creditable toward meeting the RFP 

requirements. To be creditable, the 

reductions must meet the conditions in 

CAA sections 182(b) and 182(c), 

including that reductions: 

• Must be from measures required in 

the SIP, in a title V permit, or from rules 

promulgated by the EPA; 

• Must occur during the RFP period; 

• May not come from the pre-1990 

EPA rules for motor vehicle exhaust and 

evaporative emissions; and 

• May not come from the EPA rules 

limiting the Reid vapor pressure (RVP) 

of gasoline that were implemented by 

1992.24

We are proposing that, except as 

specifically provided in section 

182(b)(1)(D) of the CAA, all SIPapproved or federally promulgated 

emissions reductions that occur after the 

baseline emissions inventory year are 

creditable for purposes of the RFP 

requirements, provided the reductions 

meet the standard requirements for 

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25Note that section III.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 an RFP plan for 

the geographic area as meeting the 15 percent RFP 

plan requirement for VOC specified in section 

182(b)(1) of the CAA under a prior ozone NAAQS, 

whether it is the 1-hour ozone NAAQS or the 1997 

8-hour ozone NAAQS. 

27The EPA’s official on-road emissions model, 

MOVES, currently allows states to model emissions 

in 1990 and 1999 and later years, but not in 1996. 

EPA will evaluate whether the capability of 

modeling emissions in 1996 needs to be added to 

MOVES, or whether some other methodology can 

be used for this analysis. 

creditability.25 That is, to receive 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. 

See 40 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.4 below 

discusses this issue in further detail. 

c. What are the RFP plan requirements 

for 2008 ozone nonattainment areas for 

which no portion of the area has 

previously been required to meet the 15 

percent RFP requirement for VOC in 

section 182(b)(1) of the CAA? 

Section 182(b)(1) of the 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. If the 

area is classified Serious or higher, 

section 182(c)(2)(B) of the CAA requires 

an additional RFP plan to achieve an 

average of 3 percent additional 

emissions reductions per year for each 

subsequent 3-year period after the 

conclusion of the 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 years following the 

baseline emissions inventory year if no 

portion of that 2008 nonattainment area 

has already fulfilled the 15 percent RFP 

plan requirement for VOC.26 If such 

2008 nonattainment area is classified as 

Serious or higher, the RFP plan for that 

2008 nonattainment area must in 

addition achieve an average of three 

percent additional emissions reductions 

per year for each subsequent 3-year 

period after the conclusion of the initial 

6-year period specified by section 

182(b)(1). We promulgated a similar 

regulatory provision adopting this 

interpretation for purposes of 

implementing the 1997 ozone NAAQS. 

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

In the alternative, we are proposing to 

allow an area to meet the 15 percent 

RFP requirement in whole or in part 

with NOX reductions in lieu of VOC 

reductions if that area can demonstrate 

that it has in fact achieved a 15 percent 

reduction in VOC emissions from a 1990 

baseline. There are two reasons that we 

believe it makes sense to allow areas to 

substitute NOX for VOC in the 15 

percent RFP plans. First, our 

understanding of the effects of 

reductions of VOC and NOX on ambient 

ozone levels has greatly improved since 

the 1990 CAA Amendments were 

enacted, and there are technical tools 

more readily available to help states 

predict the combination of VOC and/or 

NOX that will be most effective in 

reducing ozone in a particular area. In 

many areas we now know that NOX

reductions will have a far greater effect 

than VOC reductions on reducing 

ambient ozone concentrations. In fact, 

in some areas background levels of 

naturally-occurring VOC are so high that 

reductions in manmade VOC have 

limited effect on ozone. Since the 

purpose of the RFP provisions in section 

182 is to foster the achievement of 

reasonable further progress toward 

attainment, we believe that it makes the 

most sense to allow states to credit 

toward the RFP requirement those 

reductions that an area most needs to 

reach attainment. Second, the mix of 

emissions across the country and in 

specific areas is very different than it 

was in 1990 because of emission 

controls that have gone into effect over 

the last 20 years. A variety of national 

and local VOC control measures 

affecting mobile and stationary sources 

have already substantially reduced the 

levels of manmade 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 to meet relatively stringent 

standards for hazardous air pollutants. 

The EPA has also promulgated national 

rules limiting the VOC content of the 

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, if we do not 

finalize the proposal above to allow any 

area to substitute NOX reductions for 

VOC reductions where such area can 

demonstrate that it has achieved a 15 

percent reduction in VOC emissions 

from a 1990 baseline, we are proposing 

to allow such substitution only for areas 

located in the Ozone Transport Region 

(OTR) that would 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 in the OTR were not 

required to adopt 15 percent RFP plans 

under section 184 of the 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, and RACT for all sources covered 

by a control technique guideline (CTG). 

At the time of the 1990 Amendments it 

was expected that VOC reductions from 

those measures would account for a 

significant portion of the 15 percent RFP 

requirement for areas designated 

nonattainment. Thus, since attainment 

areas in the OTR were required to adopt 

and implement many of the same 

measures that applied in nonattainment 

areas, we are proposing that such areas 

should be treated as having met the 15 

percent RFP requirement if they can 

demonstrate that they did, in fact, 

achieve a 15 percent reduction in VOC 

emissions between 1990 and 1996 (even 

though they of course would not have 

submitted a 15 percent plan as they 

were not subject to the 15 percent 

requirement at that time). In such a case, 

the area would be treated the same as a 

nonattainment area that previously met 

the 15 percent requirement, as 

discussed below in section III.C.2.d.27

Specifically, these areas would still be 

required to submit a plan to achieve a 

15 percent emission reduction, but 

could substitute NOX reductions for 

VOC in such plan. 

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28 77 FR 30088, May 21, 2012. 

29The following nonattainment areas were 

nonattainment for both the 1-hour and the 1997 

ozone NAAQS, and remained the same size under 

the 2008 ozone NAAQS compared to the 1997 

ozone NAAQS: Baltimore, MD; Los Angeles-San 

Bernardino Counties (West Mojave Desert), CA; Los 

Angeles-South Coast Air Basin, CA; Riverside 

County (Coachella Valley), CA; Sacramento Metro, 

CA; San Joaquin Valley, CA; and Ventura County, 

CA. 

30Memorandum from William T. Harnett re: 

‘‘8-Hour Ozone National Ambient Air Quality 

Standards (NAAQS) Implementation—Reasonable 

Further Progress (RFP),’’ August 15, 2006. See first 

Q & A. 

d. What are the RFP plan requirements 

for 2008 ozone nonattainment areas that 

consist entirely of one or more 

nonattainment areas for a former ozone 

NAAQS or pieces of nonattainment 

areas for a former ozone NAAQS where 

such areas fulfilled the 15 percent RFP 

plan requirement for VOC for that 

former ozone NAAQS? 

This provision covers any 2008 

nonattainment area 28 which consists 

entirely of a nonattainment area or 

portions of nonattainment areas for 

which we previously approved an RFP 

plan as meeting the 15 percent RFP plan 

requirement for VOC in section 

182(b)(1) of the CAA. Such a 2008 

nonattainment area could consist of one 

or more 1-hour nonattainment areas, 

one or more nonattainment areas under 

the 1997 ozone NAAQS, or a 

combination of nonattainment areas for 

either the 1-hour or 1997 ozone 

NAAQS. However, all portions of the 

area that are a part of the 2008 

nonattainment area must have 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 not required 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 NOX emission 

reductions may be substituted for the 

VOC reductions in the manner 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 of 3 percent 

emission reductions per year for each 3- 

year period following the baseline year 

(i.e., a total of 18 percent emissions 

reduction in the first 6 years) and NOX

emission reductions could be 

substituted as provided under section 

182(c)(2)(C). 

e. What are the RFP plan requirements 

for 2008 ozone nonattainment areas that 

include portions consisting of all or a 

piece of one or more nonattainment 

areas for a previous NAAQS and which 

fulfilled the 15 percent RFP plan 

requirement for VOC for that previous 

NAAQS and portions that have never 

been subject to or never have fulfilled 

the 15 percent RFP plan requirement for 

VOC for a previous NAAQS? 

This provision addresses those areas 

that include all or part of a 

nonattainment area under a former 

ozone NAAQS that fulfilled the 15 

percent RFP plan requirement for VOC 

and all or part of an area that was not 

subject to or did not meet the 15 percent 

requirement for a former ozone NAAQS. 

The most common situation in which 

this would arise is when a 2008 

nonattainment area consists of a 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 that the 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 that never 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. For the former non-RFP plan 

portion of the 2008 nonattainment area, 

the plan would establish a separate 15 

percent VOC reduction requirement 

under section 182(b)(1) of subpart 2. 

However, 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 of the area also 

has a VOC reduction target as part of its 

RFP plan for the 2008 ozone NAAQS. If 

the RFP plan for the 2008 ozone 

NAAQS for the former nonattainment 

area relies solely on NOX reductions, 

then the portion of the nonattainment 

area never before subject to 

nonattainment requirements is still 

responsible for the 15 percent VOC 

reductions. 

For the former RFP plan portion of the 

2008 nonattainment area, the RFP 

requirements in section 172(c)(2) will 

apply if the 2008 nonattainment area is 

classified as Moderate as described 

previously in this document in 

subsection III.C.2.d of this section. Also, 

as described in subsection III.C.2.d of 

this section, CAA section 182(c)(2)(B) 

RFP requirements will apply if the 2008 

ozone NAAQS nonattainment area is 

classified as Serious or higher. 

f. How should states account for noncreditable reductions when calculating 

RFP emission reduction targets? 

Section 182(b)(1)(D) specifies four 

categories of control 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 by January 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 of the first category, 

reductions from these measures were 

achieved many years ago, so the 

question of creditability is moot for RFP 

credit for the 2008 ozone NAAQS. For 

the motor vehicle standards, a small 

amount of reduction is still occurring 

due to fleet turnover. In Appendix A to 

the preamble of the Phase 2 Rule (70 FR 

71696, as amended by 71 FR 58498, 

October 4, 2006), we presented 

methodologies for accounting for noncreditable emission reductions 

consistent with requirements of section 

182(b)(1)(D)(i) of the CAA. The 

procedures vary with the types of areas. 

The EPA also issued a memorandum 

that supplements the Appendix.30 We 

are proposing as one alternative to 

eliminate the obligation for states to 

continue to perform this calculation 

because these reductions are now very 

small and will continue to further 

decrease in future years. The calculation 

of non-creditable reductions is based on 

the impact of pre-1990 model year 

vehicles on the total emissions 

inventory. In 2011, pre-1990 model year 

vehicles are estimated to account for 

only 2 percent of vehicle miles traveled 

(VMT), 5 percent of total on-road VOC 

emissions and 3 percent of total on-road 

NOX emissions using national estimates 

of fleet composition, activity and 

emissions from the EPA’s latest 

emissions model. By 2017, the first year 

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 of total VMT, 0.6 percent of 

total on-road VOC emissions and 0.4 

percent of total on-road NOX emissions 

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in 2017, using national estimates of fleet 

composition, activity and emissions 

from the EPA’s latest emissions model. 

Local results may vary, but the noncreditable reductions associated with 

the turnover of these vehicles 

everywhere will be a very small fraction 

of the total on-road VOC emissions 

inventory by 2017 and will continue to 

decrease over future years. Accounting 

for all other emission sources, on-road 

VOC emissions typically constitute less 

than half of the total VOC inventory and 

about half of the total NOX inventory, so 

these percentages would be further 

reduced in the context of the total 

emissions inventory. Calculating noncreditable reductions will continue to be 

a very resource-intensive process 

requiring multiple modeling runs and 

extensive staff time. We are proposing to 

remove the burden of performing this 

calculation for purposes of RFP for the 

2008 ozone NAAQS based on the de 

minimis nature of these non-creditable 

reductions. If the final rule 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 of the Executive Order 

13563 titled, ‘‘Improving Regulation and 

Regulatory Review,’’ signed by 

President Barack Obama on January 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 air quality-based approach that 

would measure RFP in terms of actual 

ambient air quality improvements tied 

to an area’s percent emission reduction 

requirements. Such an approach would 

involve work on the part of the 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 of the pollutant (VOC or NOX) 

which, when reduced, is most effective 

in reducing ozone concentrations in the 

area. Under this approach, RFP 

milestones would be satisfied if the 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 of improvement, namely 

air quality. A similar approach is 

already included in the implementation 

rules that govern SIP development for 

the PM2.5 NAAQS (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 would be 

given more credit toward RFP 

requirements and reductions of VOCs 

with relatively low photochemical 

reactivity would be given less credit 

toward those requirements. For 

example, reducing one ton of a highly 

reactive VOC (i.e., with 1.5 times the 

ozone forming potential of an average 

VOC) could be given a RFP credit of 1.5 

tons, reducing one ton of a low reactive 

VOC (i.e., with 0.5 times the ozone 

forming potential of an average VOC) 

could be given a RFP credit of 0.5 tons, 

and reducing one ton of a 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 have the 

greatest impact on actual ozone 

formation. In order to use this approach, 

the EPA and/or states would need to 

develop more detailed operational 

parameters, guidelines or rules derived 

from scientific assessment. 

For both of these alternative 

approaches, the EPA is seeking 

comment on the usefulness and 

practicality of the approach, and 

specifically on whether there is 

adequate legal basis under the CAA to 

approve SIPs that would employ these 

approaches. 

3. What baseline year may states use for 

the emission inventory for the RFP 

requirement? 

The baseline inventory for RFP is 

used as the starting point for 

determining a target level of emission 

reductions to meet the RFP 

requirement—in other words, it is the 

baseline from which creditable 

reductions are determined. Section 

182(b)(1)(B) of the CAA, as amended in 

1990, states that the term ‘‘baseline 

emissions’’ is defined as the total 

amount of actual VOC (or NOX) 

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 as Moderate 

under the 1-hour NAAQS were required 

to attain that NAAQS. 

For the 2008 ozone NAAQS, the EPA 

is proposing that states should use as 

the baseline year for RFP the calendar 

year for the most recently available 

triennial emission inventory at the time 

RFP plans are developed. We 

promulgated a regulatory provision 

adopting this same interpretation for 

purposes of implementing 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) is required for the year 2011 

and was required to be submitted to the 

EPA by December 31, 2012. For the 

1997 ozone NAAQS, our regulations 

also provided that a state has flexibility 

to use an alternative baseline year if it 

shows that the alternative year is 

appropriate and justifiable. We are 

proposing to allow similar flexibility for 

the 2008 ozone NAAQS. 

A RFP baseline year of 2011 is 

analogous to the approach provided for 

RFP in the CAA as amended in 1990. 

The CAA required 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. For the 2008 ozone NAAQS, 

initial area designations were effective 

in 2012 and the 6-year RFP period from 

a baseline of 2011 (i.e., January 1, 2012– 

December 31, 2017) would line up 

reasonably well with the Moderate area 

attainment date of 2018. As noted 

above, the AERR Rule required states to 

report emissions for calendar year 2011 

to the EPA by 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 is reasonable 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 the RFP requirement 

by December 31, 2017. If a state chooses 

2011 as a baseline 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 a base year would 

thus have to achieve whatever 

additional emissions reductions are 

needed to provide for attainment of the 

standard by December 31, 2018. This 

corresponds to the approach taken in 

the Phase 2 Rule (70 FR 71615–71616). 

However the EPA is also proposing 

that states have the option of selecting 

an appropriate and justifiable alternate 

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31See Final Rule to Implement the 8-Hour Ozone 

National Ambient Air Quality Standard—Phase 2 

(70 FR 71612, November 29, 2005). 32Reasonable Further Progress Requirements for 

the 1997 8-Hour Ozone National Ambient Air 

Quality Standard (75 FR 80420, December 22, 

2010). 

33The EPA has defined RACT as the lowest 

emission limitation that a particular source is 

capable of meeting by the application of control 

technology that is reasonably available considering 

technological and economic feasibility (December 9, 

1976 memorandum from Roger Strelow, Assistant 

Administrator for Air and Waste Management, to 

Regional Administrators, ‘‘Guidance for 

Determining Acceptability of SIP Regulations in 

Non-Attainment Areas’’ and also in 44 FR 53762; 

September 17, 1979). 

year as a baseline year for RFP. If states 

choose a pre-2011 baseline year, the 

EPA is proposing that the 6-year period 

for achieving the 15 percent reduction 

starts in January of the year following 

the selected baseline year. When a year 

prior to 2011 is chosen as the baseline 

year, the 6-year period thus concludes 

more than one year prior to the start of 

the attainment year for the area. In this 

situation, the EPA is proposing that the 

area is responsible for a 3 percent 

emissions reduction each year after the 

initial 6-year period has concluded up 

to the beginning of the attainment year. 

For example, if 2009 is chosen as a 

baseline year for a Moderate area, the 15 

percent reductions cover the period 

from January 1, 2010 to December 31, 

2015. The area would need to generate 

an additional 3 percent emissions 

reduction per year for the years 2016 

and 2017. As in the Phase 2 Rule and 

consistent with CAA section 182(c)(2), 

Serious and higher classified areas 

would need to provide in their SIPs an 

additional average of 3 percent per year 

emission reduction over each 

subsequent year beyond the initial 6- 

year period through the attainment year 

(70 FR 71616). 

We are proposing that for a multi-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 rule 32 to 

revise this provision for the 1997 ozone 

NAAQS, the EPA is proposing 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 for RFP 

purposes (sections 182(b)(1)(B) and 

182(c)(2)(B)) is almost identical to the 

language in the CAA’s RACT provision 

(section 172 (c)(1)). The issue of taking 

credit for reductions from outside the 

nonattainment area was raised in the 

context of the RACT provision and 

decided by the court in NRDC v. EPA, 

571 F.3d 1245 (DC Cir. 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 satisfy the requirement.’’ NRDC 

at 1256. We note the similarity in 

language in the several provisions of the 

CAA, but also the difference between 

RACT, which is a 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 NOX

reductions occurring outside the 

nonattainment area for purposes of 

meeting the 15 percent and 3 percent 

RFP requirements of sections 172(c)(2), 

182(b)(1) and (c)(2)(B). This approach 

would mean that RFP credit for meeting 

the 15 percent VOC requirement for 

Moderate and above ozone 

nonattainment areas in section 182(b)(1) 

and the additional 3 percent per year 

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 3 percent 

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 of the CAA 

that restricts states from considering 

outside-the-area reductions as part of 

the modeled attainment demonstration 

for an area. As EPA has previously said, 

in determining the attainment date that 

is as expeditious as practicable, the state 

should consider impacts on the 

nonattainment area of intrastate 

transport of pollution from sources 

within its jurisdiction, and potential 

reasonable measures to reduce 

emissions from those sources. 

At the same time, the EPA recognizes 

that not allowing credit for reductions 

outside the nonattainment area will 

make it more challenging for some 

areas, such as the areas adjacent to the 

South Coast nonattainment area in 

California, namely, Coachella Valley, 

West Mojave Desert and Ventura County 

in California, to meet their RFP 

requirements and may foreclose some 

cost-effective opportunities for 

emissions reductions. Despite the 

court’s opinion in NRDC, the EPA 

continues to believe that there remain 

valid policy reasons for giving states 

incentive to focus on obtaining emission 

reductions that are the most beneficial 

and cost effective for achieving air 

quality progress and attaining the ozone 

standards. The EPA believes there may 

be cases where the most beneficial and 

cost-effective reductions are from 

sources located outside the 

nonattainment area boundaries. In these 

cases, we believe it would be good 

policy to credit the emission reductions 

toward meeting RFP requirements. To 

this end, the EPA is also taking 

comment on whether there is a clear 

legal rationale for allowing credit for 

reductions outside the nonattainment 

area to satisfy the RFP requirements for 

the 2008 ozone NAAQS. We encourage 

commenters to consider how the 

baseline emission inventory should be 

determined if reductions from outside 

the nonattainment area were able to be 

creditable for RFP requirements. If the 

EPA receives comment that provides a 

clear legal justification for this 

approach, we will seriously consider 

including this approach in the final 

rule. 

The EPA requests comments on the 

proposal and its implications for the 

2008 ozone NAAQS. 

D. How do RACT and RACM 

requirements apply for 2008 ozone 

NAAQS nonattainment areas? 

1. Reasonably Available Control 

Technology 

a. Background 

Subpart 1 of part D of the CAA 

includes a requirement that an 

attainment plan must provide for the 

implementation of all RACM as 

expeditiously as practicable, including 

such reductions that may be obtained 

through RACT.33 Subpart 2 requires 

Marginal ozone nonattainment areas to 

correct pre-1990 RACT requirements 

and requires Moderate and above areas 

to adopt RACT rules for all VOC and 

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34See http://www.epa.gov/air/ozonepollution/ 

SIPToolkit/ctgs.html. 

35CTGs updated from 2006 through 2008: 

Industrial Cleaning Solvents; Offset Lithographic 

Printing and Letterpress Printing; Flexible Package 

Printing; Flat Wood Paneling 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. 

36Note, however, that an area may have 

obligations under anti-backsliding provisions based 

on classification under the 1-hour and/or the 1997 

8-hour ozone NAAQS. Those obligations may result 

in a lower major source threshold for purposes of 

applying RACT than the classification associated 

with the 2008 ozone NAAQS. 

37May 18, 2006 memorandum from William T. 

Harnett, Director, Air Quality Policy Division, to 

Regional Air Division Directors, ‘‘RACT Qs & As— 

Reasonable Available Control Technology (RACT): 

Questions and Answers.’’ 

38EPA’s CTGs and ACTs are located at http:// 

www.epa.gov/air/ozonepollution/SIPToolkit/ 

ctgs.html. 

39http://www.epa.gov/ttn/oarpg/t1/memoranda/ 

eipfin.pdf. 

NOX sources covered by existing or new 

CTGs and for all other major sources of 

VOC and NOX (unless the state has 

received a NOX waiver). Additionally, 

states must adopt RACT for all VOC and 

NOX sources covered by a CTG, and for 

all other major sources of VOC and NOX

in the OTR (CAA section 184(b)(1)). 

Since the 1970s, the EPA has issued 

CTGs that establish presumptive RACTlevel control requirements for various 

source categories. The CTGs usually 

identify a particular control level which 

the EPA recommends as being RACT. In 

some cases, the EPA has issued 

Alternative Control Techniques 

guidelines (ACTs) for source 

categories.34 ACTs differ from CTGs in 

that they present a range for possible 

control options but do not identify any 

particular option as the presumptive 

norm for what is RACT. Section 183(c) 

of the CAA requires the EPA to ‘‘revise 

and update [CTGs and ACTs] as the 

Administrator determines necessary.’’ 

The EPA issued eleven new CTGs 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 of the CTGs specify the 

minimum size of sources to which they 

apply. Where a CTG does not specify 

the minimum size of sources 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 that exceed the size 

threshold corresponding to the statutory 

definition of ‘‘major stationary source.’’ 

Section 302 of the CAA defines major 

stationary source as a source that emits 

100 tons per year (tpy) or more of any 

air pollutant, and for ozone the air 

pollutants of concern are NOX 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 of VOC or NOX; for 

Severe areas as a source that emits more 

than 25 tpy of VOC or NOX; and for 

Extreme areas as a source that emits 

more than 10 tpy of VOC or NOX.36

The CAA required states to submit 

RACT SIPs for Moderate and higher 

classified areas within 2 years after 

enactment of the 1990 CAA 

Amendments and required 

implementation as expeditiously as 

practicable but no later than May 31, 

1995, or 54 and one-half months 

following enactment of the 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,37 the EPA 

believes there are two principles worth 

emphasizing: 

1. The implementation rules should 

conform closely to the clearly 

articulated goal of the CAA that states 

implement measures that provide for 

attainment of the ozone standard as 

expeditiously as practicable. 

2. The implementation rules should 

enable, if not encourage, the adoption of 

emission reduction strategies that will 

be the most effective, and the most cost 

effective, at reducing ozone levels. 

b. Proposal 

i. Substantive Requirements 

RACT SIPs must contain adopted 

RACT regulations, certifications where 

appropriate that existing 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 EPA recognizes 

that existing CTGs and ACTs for many 

source categories have not been revised 

in a number of years. However, in most 

cases, more recent technical information 

is available in other forms, such as the 

BACT/LAER Clearinghouse; SIPs for 

other nonattainment areas, in particular 

those areas with higher classifications; 

the ‘‘Menu of Control Measures’’ for 

NOX and VOC; and emissions standards 

developed under CAA section 111(d) 

and NSR/prevention of significant 

deterioration (PSD) settlement 

agreements. As part of their RACT SIP 

submission, states should provide 

adequate documentation that they have 

considered control technology that is 

economically and technologically 

feasible. The analysis of economic and 

technological feasibility should be based 

on information that is current as of the 

time of development of the RACT SIP 

for the 2008 ozone NAAQS. In other 

words, it is 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 that are alleged to be 

reasonably available in light of 

technological and economic feasibility, 

the state should consider such 

information in developing its RACT SIP. 

The EPA generally considers controls 

that have been achieved in practice by 

other existing sources in the same 

source category to be 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 NOX 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 is provided by 

EPA’s January 2001 economic incentive 

program guidance titled, ‘‘Improving Air 

Quality with Economic Incentive 

Programs.’’ 39 Thus, the EPA’s existing 

policy recognizes the approach of states 

submitting a demonstration as part of 

their NOX RACT SIP submittal showing 

that the weighted average NOX emission 

rate from sources in the nonattainment 

area subject to RACT meets NOX RACT 

requirements. 

As part of their RACT submission, 

states have the option of demonstrating 

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 and cost 

effectiveness information as part of any 

such demonstration, and to show that 

the trading program achieves emission 

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40 In view of its decision in North Carolina v. 

EPA, in which the Court had previously remanded 

the CAIR, the Court deferred consideration of the 

litigant’s challenge insofar as it related to the CAIR 

program. 

41See NRDC v. EPA, 571 F.3d 1245. 

reductions greater than or equal to 

reductions that would be achieved 

through a source-specific application of 

RACT in the nonattainment area. 

In the preamble to the Phase 2 Rule, 

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), have met 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 satisfy NOX RACT requirements for 

EGUs in CAIR states. See 72 FR 31727, 

31730–37. 

On July 10, 2009, in NRDC v. EPA, the 

Court of Appeals for the DC Circuit 

remanded the provision of the Phase 2 

Rule determining that compliance with 

the NOX SIP Call satisfies NOX RACT 

because EPA had failed to show that 

compliance with the NOX SIP Call 

would achieve at least RACT-level 

reductions in each nonattainment 

area.40 The court held that ‘‘[b]ecause 

the EPA has not shown that the 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 the RACT 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 

satisfy the requirement . . . 

Accordingly, participation in the NOX

SIP call would constitute RACT only if 

participation entailed at least RACTlevel reductions in emissions from 

sources within the nonattainment area.’’ 

The EPA believes that the concerns 

expressed by the court about the 

agency’s approach to the NOX RACT 

requirement for sources, including 

EGUs, and the emissions reductions 

required by the NOX SIP Call raise 

significant questions about the EPA’s 

approach to the comparable issues 

related to compliance with the CAIR. 

The EPA has not analyzed whether 

participation in either the NOX SIP call 

or CAIR would achieve reductions at 

least equivalent to what would be 

achieved if RACT requirements were 

applied on a source-specific basis in 

nonattainment areas for the 2008 ozone 

NAAQS. The analysis the EPA prepared 

for the Phase 2 Rule 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 EPA believes states are in a 

better position than EPA to conduct this 

analysis. 

The statute, as interpreted by the 

court in NRDC v. EPA, provides that 

RACT SIPs must demonstrate that 

RACT-level emission reductions are 

achieved within the relevant 

nonattainment area. Thus, and for the 

reasons explained above, it does not 

allow states to, without providing such 

demonstration, rely upon the 

participation of a source in a regional 

cap-and-trade program to satisfy RACT 

requirements. However, as noted above, 

states retain the option of demonstrating 

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 also note that a state 

has discretion to require beyond-RACT 

reductions from any source, and has an 

obligation to demonstrate attainment as 

expeditiously as practicable. Thus, 

states may require VOC and NOX

reductions that are ‘‘beyond RACT’’ if 

such reductions are needed in order to 

provide for timely attainment of the 

ozone NAAQS. 

The EPA 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 on whether such a 

demonstration is an appropriate factor 

to consider in determining what is 

‘‘reasonable’’ in a RACT analysis. This 

modification to existing guidance is 

being explored in the spirit of the 

Executive Order 13563 titled, 

‘‘Improving Regulation and Regulatory 

Review,’’ signed by President Barack 

Obama on January 18, 2011, which 

directs governmental agencies to offer 

and support flexible, common sense 

approaches. The EPA recognizes that 

limited state and federal resources need 

to be used where they will produce the 

best environmental benefit, and that we 

should attempt to accommodate air 

quality management approaches that 

will be a better use of public and private 

resources and lead to more expeditious 

attainment. 

In some areas, additional VOC 

reductions may be of little value in 

further reducing ozone, and may be far 

less effective than NOX reductions 

(which may be 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 of what 

is economically feasible, the potential 

air quality benefit (or lack thereof) of 

further VOC controls. Commenters 

should discuss the specific 

circumstances and limitations to which 

an air quality benefit factor would 

apply. For example, 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 of where modeling has 

demonstrated that anthropogenic VOC 

reductions have ‘‘negligible effect.’’ 

Commenters, if possible, should also 

provide a defensible threshold for 

defining ‘‘ineffective,’’ and define a test 

for concluding that the effect of 

additional VOC reductions would be 

‘‘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 policy is to allow states 

to streamline their RACT analysis by 

including a discussion of the MACT 

controls and considerations relevant to 

VOC RACT. Historically, in many cases, 

states have been able to rely on MACT 

standards for purposes of showing that 

a source has met VOC RACT. States 

need to take care to ensure that any 

MACT controls relied on for RACT 

adequately address all VOCs and not 

just those that are also HAPs. For 

example, if a manufacturer complies 

with MACT by reformulating products 

to remove HAPs but the production 

process still releases non-HAP VOCs, 

the state would need to justify why the 

MACT meets the RACT requirement for 

that source or would need to develop an 

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34194 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 

42 ‘‘State Implementation Plans; General Preamble 

for Proposed Rulemaking on Approval of Plan 

Revisions for Nonattainment Areas’’ 44 FR 20372 at 

20375 (April 4, 1979). ‘‘State Implementation Plans; 

General Preamble for the Implementation of Title I 

of the Clean Air Act Amendments of 1990; 

Proposed Rule.’’ 57 FR 13498 at 13560 (April 16, 

1992). 

43 ‘‘Guidance on the Reasonably Available 

Control Measures (RACM) Requirement and 

Attainment Demonstration Submissions for Ozone 

Nonattainment Areas.’’ John S. Seitz, Director, 

Office of Air Quality Planning and Standards. 

November 30, 1999. www.epa.gov/ttn/oarpg/t1/ 

memoranda/revracm.pdf. 

44Memorandum of December 14, 2000, from John 

S. Seitz, Director, Office of Air Quality Planning 

and Standards, re: ‘‘Additional Submission on 

RACM from States with Severe One-Hour Ozone 

Nonattainment Area SIPs.’’ www.epa.gov/ttn/oarpg/ 

t1/memoranda/121400_racmmemfin.pdf. 

45 Ibid. 

46 ‘‘State Implementation Plans; General Preamble 

for the Implementation of Title I of the Clean Air 

Act Amendments of 1990; Proposed Rule.’’ 57 FR 

13507 (April 16, 1992). The discussion of RACM in 

that document contains other relevant history 

concerning the RACM requirement. 

47 57 FR 13498. 

appropriate RACT rule to address nonHAP VOCs. 

ii. Timing 

We are proposing two alternatives for 

when states would be required to 

submit RACT SIPs. Under the first 

alternative, states with Moderate 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 of an area’s designation for the 

2008 ozone NAAQS (i.e., within 2 years 

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 of a 

consolidated SIP submittal 30 months 

after the effective date of designation, or 

within the period of time provided 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 to relieve states of the added 

burden that can result from processing 

different SIP elements at different times. 

We are also proposing a specific 

deadline by which 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-half months from the date of 

enactment of the 1990 CAA 

Amendments. This date was also near 

the beginning of the ozone season for 

many nonattainment areas at the time of 

enactment, and ensured that RACT 

measures were required to be in place 

during most of the last two ozone 

seasons before the Moderate area 

attainment date of November 15, 1996. 

For the 2008 ozone NAAQS, we are 

proposing that areas must implement 

RACT measures as expeditiously as 

practicable, but no later than January 1 

of the fifth year after the effective date 

of a nonattainment designation. 

Nonattainment designations for all areas 

of the country were effective July 20, 

2012. RACT measures for these areas 

would be required to be implemented 

by January 1, 2017. This allows a 

comparable amount of time for sources 

to meet RACT requirements as 

originally anticipated under the 1990 

CAA Amendments, and ensures that 

RACT measures are required to be in 

place throughout the last two ozone 

seasons prior to the Moderate area 

attainment date of December 31, 2018. 

If we 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 of designation would have a 

little longer to develop and submit their 

RACT SIPs, but affected sources would 

have a little less lead time to implement 

the adopted requirements. Thus, any 

emission reductions due to RACT 

would not be delayed due to the slightly 

later RACT SIP submission date. The 

EPA believes this is a reasonable 

interpretation of the statute in this case. 

2. Reasonably Available Control 

Measures (RACM) 

The RACM requirement, which is set 

forth in section 172(c)(1) of the CAA, 

applies to all nonattainment areas that 

are required to submit an attainment 

demonstration. The EPA has issued 

policies and procedures related to 

RACM. Specifically, the EPA has issued 

guidance that interprets the RACM 

provision to require a demonstration 

that the state has adopted all reasonable 

measures (including RACT) to meet RFP 

requirements and to demonstrate 

attainment as expeditiously as 

practicable and thus that no additional 

measures that are reasonably available 

will advance the attainment date or 

contribute to RFP for the area.42 43 44 We 

believe that this guidance should 

continue to apply for purposes of the 

2008 ozone NAAQS. 

The determination of whether a SIP 

contains all RACM requires an areaspecific analysis that there are no 

additional economically and 

technologically feasible control 

measures (alone or cumulatively) that 

will advance the attainment date.45 The 

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 that could advance 

the attainment date by 1 year.46 The 

April 16, 1992, General Preamble 47 also 

provides that ‘‘any measure that a 

commenter indicates during a public 

comment period is reasonably available 

should be closely reviewed by the 

planning agency to determine if it is 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, a state must adopt measures 

for an area only if those measures are 

economically and technologically 

feasible and will advance the attainment 

date or are necessary for RFP. This 

interpretation of the section 172 

requirements has been upheld by 

several courts. See, e.g., Sierra Club v. 

EPA, et al., 294 F.3d 155 (D.C. Circuit, 

2002). 

E. Does the 2008 ozone NAAQS result 

in any new inspection and maintenance 

(I/M) programs? 

No new I/M programs are currently 

required as a result of areas being 

designated and classified nonattainment 

for the 2008 ozone NAAQS. The 

applicable requirements for ozone 

nonattainment areas that are required to 

adopt I/M programs are described in 

sections 182(a)(2)(B), 182(b)(4), 

182(c)(3), and 184(b)(1)(A) of the CAA 

and further defined in section 51.350 

(‘‘Applicability’’) of the I/M rule (40 

CFR part 51, subpart S). Under these 

cumulative requirements, Moderate 

ozone nonattainment areas in urbanized 

areas with 1990 Census populations of 

200,000 or more are required to adopt 

basic I/M programs, while Serious and 

higher classified ozone nonattainment 

areas outside of the northeast OTR with 

1980 Census-defined urbanized 

populations of 200,000 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 of attainment 

status. Currently, all the nonattainment 

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. If a Marginal 

2008 ozone nonattainment area meeting 

the population cutoff for mandatory I/M 

is ever in the future reclassified to 

Moderate or a higher classification, then 

an I/M program meeting the SIP 

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48As discussed in section III.A of today’s 

proposal, the EPA is soliciting comment on 

alternative deadlines for attainment SIP 

submissions. The EPA is here soliciting comment 

on aligning the deadline for I/M submittal with 

those alternative deadlines. 

submittal and program implementation 

requirements of the I/M rule would be 

required at that time. 

1. If new I/M programs are required in 

the future, what are the SIP and 

implementation requirements? 

On April 7, 2006, the EPA finalized a 

suite of revisions 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-hour nonattainment areas that were 

tied to the effective date of a given area’s 

designation and classification under the 

8-hour ozone NAAQS. Specifically, the 

April 2006 rulemaking established a 

deadline for submission of an I/M SIP 

no later than one year after the effective 

date of the area’s nonattainment 

designation and classification for the 8- 

hour ozone standard. This rule was 

originally applied for purposes of the 

1997 8-hour NAAQS, but it remains 

applicable to the 2008 8-hour NAAQS. 

In addition to establishing the I/M SIP 

submittal schedule, the April 2006 

rulemaking also set a deadline of no 

later than 4 years after the effective date 

of designation and classification by 

which the I/M program in question 

would actually begin testing vehicles. 

2. Should the EPA allow more time for 

states to submit future I/M SIPs? 

Since the 2006 I/M rulemaking, the 

EPA has revisited the question of how 

much time it takes to submit an I/M SIP 

based upon the degree to which the 

modeling work needed to demonstrate 

attainment is closely linked to the 

modeling work required to design an 

I/M program that meets the area’s 

attainment needs. Put simply, areas 

need to determine together the amount 

of emissions reductions needed for 

attainment and the amount of emissions 

reductions to get from different sectors 

and strategies (including I/M), before 

designing an I/M program capable of 

achieving the necessary reductions to 

demonstrate attainment. Requiring 

submittal of an I/M program in advance 

of an attainment demonstration for the 

current or future ozone standard could 

result in significant unnecessary work 

on modeling, SIP revisions, and 

implementation, if revisions to the I/M 

program are later deemed necessary. 

Because control strategy decisions 

and the 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 is requesting comment on its 

proposal to align deadlines for the 

attainment SIP and the I/M SIP so that 

both are due at the same time.48

Commenters are asked to take the 

following factors into consideration 

when providing comments on this 

portion of the proposed rulemaking: 

Areas’ need to analyze various I/M 

program designs to determine which 

combination of program parameters is 

capable of meeting the emission 

reduction needs of the attainment SIP; 

the need to secure legal authority when 

some of the potentially 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 

of other, potentially competing resource 

demands that will be placed on states as 

a result of the need to meet current and/ 

or future ozone standards. 

3. How is modern I/M different from the 

last time new I/M programs were 

required? 

It is important to note that much has 

changed since I/M programs were 

required under the original, November 

5, 1992, I/M Rule. At that time, an I/M 

program would have included testing a 

vehicle’s tailpipe emissions, in some 

cases using a treadmill-like device 

(dynamometer), so that the emissions 

were measured under more realistic 

driving conditions rather than at rest 

(idle). Dynamometer-based tests also 

allowed for measurement of NOX

emissions, which was not possible at 

idle. The equipment needed for these 

types of programs was expensive 

compared to today’s next-generation 

alternatives and the test itself was time 

consuming as the vehicle needed to be 

secured to the dynamometer and then 

driven through the test cycle. 

Beginning with the 1996 model year, 

vehicles have been 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 if a problem is detected. The 

vehicle’s computer stores information 

on the type of malfunction detected, and 

is therefore able to provide repair shops 

with information on the type of repair 

that is needed. The EPA estimates that 

about 80 percent of the national vehicle 

fleet is already equipped with an OBD 

system and that by the time any 

potential new I/M programs would be 

required to begin operation, about 90 

percent of the national vehicle fleet will 

be OBD equipped. As a result, the EPA 

believes that I/M programs will no 

longer need to use tailpipe testing, and 

can instead rely on a simple, fast and 

inexpensive interrogation of the OBD 

system. 

There are many ways to conduct OBD 

system checks but all involve a 

relatively inexpensive scanner. The 

scanner is connected to a port in the 

vehicle and the tool downloads 

information from the vehicle’s 

computer. This type of testing can be 

done either in a centralized testing 

facility, directly at a repair shop, or even 

remotely using telematics technology. 

Compared to earlier vehicle test 

methods, next-generation I/M testing 

through OBD system checks is 

substantially quicker, less invasive, less 

costly to 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 of which were practical under the 

previous generation of tailpipe tests and 

all of which are available for use in 

today’s and future I/M programs. 

The EPA believes that OBD 

technology can change not only the way 

vehicles are tested but also whether 

vehicles need to be independently 

tested at all. This is because OBD offers 

vehicle owners all the information they 

need regarding whether or not their 

vehicle will pass or fail an I/M 

inspection. Simply put, if the ‘‘Check 

Engine’’ light is on, the vehicle will fail. 

This capability of OBD to provide 

immediate driver feedback suggests 

some as-yet untested but nevertheless 

intriguing alternatives to traditional I/M. 

One such alternative—the EPA 

believes—would include programs that 

offer some vehicle owners free or 

subsidized repairs of vehicles with lit 

‘‘Check Engine’’ lights. Should such a 

program result in the same number of 

vehicles being repaired as would be the 

case in a traditional I/M program, then 

the program in question would be 

considered functionally equivalent to 

I/M. The choice of how to fund these 

repairs would rest with the state but 

could include collecting a fee equivalent 

to what would otherwise be charged for 

testing from all registrants, requiring 

vehicle insurance providers or a state to 

cover the cost of repairing 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 (similar to driving 

without a seat belt or working 

headlights in some states), etc. 

Ultimately, program equivalency would 

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49For the purposes of transportation conformity, 

a ‘‘donut’’ area is the geographic area outside a 

metropolitan planning area boundary, but inside a 

designated nonattainment or maintenance area 

boundary that includes an MPO (40 CFR 93.101). 

50Also, 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. 

not depend upon how repairs are 

funded but rather on the number of 

relevant repairs accomplished by the 

program. Similarly, programs that 

accelerate the retirement of vehicles in 

need of emission-related repairs or that 

significantly prompt older vehicles to be 

replaced by cleaner technology could be 

considered equivalent to I/M if the 

amount of emission reductions achieved 

equals or exceeds what would be 

achieved by 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 meet the 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. How does transportation conformity 

apply to the 2008 ozone NAAQS? 

1. What is transportation conformity? 

Transportation conformity is required 

under CAA section 176(c) to ensure that 

transportation plans, transportation 

improvement programs (TIPs) and 

federally supported highway and transit 

projects are consistent with (‘‘conform 

to’’) the purpose of the SIP. Conformity 

to the purpose of the SIP means that 

transportation activities will not cause 

new air quality violations, worsen 

existing violations, or delay timely 

attainment of the relevant NAAQS or 

interim reductions and milestones. 

Transportation conformity applies to 

areas that are designated nonattainment, 

and to those former nonattainment areas 

that have been redesignated to 

attainment since 1990 and have a CAA 

section 175A maintenance plan 

(‘‘maintenance areas’’) for 

transportation-related criteria 

pollutants: Carbon monoxide, ozone, 

nitrogen dioxide, and particulate matter. 

The EPA’s Transportation Conformity 

Rule (40 CFR 51.390 and Part 93, 

subpart A) establishes the criteria and 

procedures for determining whether 

transportation activities conform to the 

SIP. The EPA first promulgated the 

Transportation Conformity Rule on 

November 24, 1993 (58 FR 62188), and 

subsequently published several 

amendments. For example, the EPA 

published a final rule on July 1, 2004 

(69 FR 40004) that provided 

transportation conformity procedures 

for state and local agencies under the 

1997 ozone NAAQS, among other 

things. For further information on 

transportation conformity rulemakings, 

policy guidance and outreach materials, 

see the EPA’s Web site at http:// 

www.epa.gov/otaq/stateresources/ 

transconf/index.htm. 

2. Why is the EPA 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 to transportation 

conformity. Affected parties would 

include state and local transportation 

and air quality agencies, metropolitan 

planning organizations (MPOs) and the 

U.S. Department of Transportation (the 

DOT) (40 CFR 93.102). 

3. When would transportation 

conformity apply to areas designated 

nonattainment for the 2008 ozone 

NAAQS? 

Transportation conformity for the 

2008 ozone NAAQS applies 1 year 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 of initial 

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 that have a population 

greater than 50,000 and a designated 

MPO responsible for transportation 

planning per 23 U.S.C. 134. In general, 

within 1 year after the 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,49 including the application of the 

1-year conformity grace period, are 

generally the same as those for 

metropolitan areas. MPOs and any 

adjacent donut areas must continue to 

meet conformity requirements in 

nonattainment and maintenance areas 

for the 1997 ozone NAAQS during the 

grace period, in addition to any other 

applicable standards. If, at the end of 

the grace period, the MPO and the DOT 

have not made a transportation plan and 

TIP conformity determination for the 

relevant pollutant and standard, the area 

would be in a conformity ‘‘lapse.’’ 

During a conformity lapse, only certain 

projects can receive additional federal 

funding or approvals to proceed. The 

practical impact of a conformity lapse 

will vary from area to area. 

Isolated rural nonattainment and 

maintenance areas are areas that do not 

contain or are not part of an 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 to make a conformity 

determination only at the point when a 

new transportation project needs 

funding or approval. This point may 

occur significantly after the 1-year grace 

period has ended. See the EPA’s July 1, 

2004, final rule for further background 

on how the EPA has 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 

and maintenance areas are areas that do 

not contain or are not part of an MPO 

(40 CFR 93.101). In general, ozone 

nonattainment and maintenance areas 

with populations of less than 50,000 

would be considered to be isolated rural 

areas for transportation conformity 

purposes because the DOT only requires 

an MPO to be established when an 

area’s population exceeds 50,000. 

The Transportation Conformity Rule 

contains a number of flexibilities that 

apply to isolated rural areas. As 

discussed previously, they are not 

required to determine conformity by the 

end of the 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 a periodic basis. Isolated rural areas 

are only required to demonstrate 

conformity when a non-exempt Federal 

Highway Administration or Federal 

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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 a transportation conformity 

determination. Another available 

flexibility is that isolated rural areas 

may choose from several alternative 

conformity tests that may be used for 

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 not have 

transportation plans or TIPs, they would 

never experience a conformity lapse. 

6. Does transportation conformity apply 

for the 1997 ozone NAAQS once that 

standard is revoked? 

The CAA only requires transportation 

conformity in areas that are designated 

nonattainment or maintenance for a 

given pollutant and standard. Therefore, 

transportation conformity would no 

longer apply for purposes of the 1997 

ozone NAAQS as of the time that 

standard (and thus an area’s designation 

for that standard) is revoked. In other 

words, existing 1997 ozone NAAQS 

nonattainment and maintenance areas, 

regardless of their designation for the 

2008 ozone NAAQS, would no longer be 

required to demonstrate transportation 

conformity for the 1997 ozone NAAQS 

after the 1997 ozone NAAQS is revoked. 

The EPA revoked the 1997 ozone 

NAAQS for transportation conformity 

purposes in the Classifications Rule for 

the 2008 ozone NAAQS. The revocation 

will become effective on July 20, 2013, 

1 year 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 or the 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 will the implementation 

of the 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 to revise those SIPs, unless 

they need to do so to ensure that 

existing state regulations apply in the 

appropriate newly designated areas. 

However, if this is the first time that 

transportation conformity will apply in 

a state, such a state is required to submit 

a SIP revision that covers the three 

specific transportation conformity 

requirements that are delineated in CAA 

section 176(c)(4)(E). These specific 

requirements are consultation 

procedures and written commitments to 

control or mitigation measures 

associated with conformity 

determinations for transportation plans, 

TIPs or projects. 40 CFR 51.390. 

Additional information and guidance 

can be found in EPA’s ‘‘Guidance for 

Developing Transportation Conformity 

State Implementation Plans’’ (http:// 

www.epa.gov/otaq/stateresources/ 

transconf/policy/420b09001.pdf). 

G. What requirements for general 

conformity apply to the 2008 ozone 

NAAQS? 

1. What is the purpose of the general 

conformity regulations? 

Section 176(c) of the CAA requires 

that before a federal entity takes an 

action affecting air quality in a state, it 

must make a determination that the 

proposed action will not interfere with 

the SIP or the state’s ability to attain and 

maintain the NAAQS. In November 

1993, the EPA promulgated 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 of highway and mass 

transit projects. The other set, known as 

the General Conformity Regulations, 

deals with all other federal activities. 

Besides ensuring that federal 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 of and access to federal 

agency conformity determinations and 

allows for air quality 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 of any standard in 

respective nonattainment and 

maintenance areas; (2) interfere with 

provisions in the applicable SIP for 

maintenance of any standard; (3) 

increase the frequency or severity of any 

existing violation of any standard; or (4) 

delay timely attainment of any standard 

or any 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 to the 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 de minimis emission 

levels that are set forth in the EPA’s 

General Conformity Regulations at 40 

CFR 93.153(b)(1) continue to apply to 

the 2008 ozone NAAQS. Those levels 

were based on the definition of a major 

stationary source for NSR programs as 

established by sections 182, 183 and 302 

of the CAA. Federal actions estimated to 

have an annual net emissions increase 

less than the de minimis levels are not 

required to demonstrate conformity 

under the General Conformity 

Regulations. The current de minimis 

levels are identified in Table 1. 

TABLE 1—De Minimis EMISSION LEVELS FOR VOC AND NOX

Type of ozone area VOC 

tons/year 

NOX

tons/year 

Extreme Nonattainment ................................................................................................................................................... 10 10 

Severe Nonattainment ..................................................................................................................................................... 25 25 

Serious Nonattainment .................................................................................................................................................... 50 50 

Other ozone Nonattainment areas outside an ozone transport region ........................................................................... 100 100 

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51August 23, 1993 memorandum from Michael H. 

Shapiro, Acting Assistant Administrator for Air and 

Radiation, to Regional Air Directors, ‘‘Guidance on 

Issues Related to 15 Percent Rate-of-Progress 

Plans.’’ 

TABLE 1—De Minimis EMISSION LEVELS FOR VOC AND NOX—Continued 

Type of ozone area VOC 

tons/year 

NOX

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 need to 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 of the 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 for the 2008 ozone 

NAAQS, we recommend that state 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 and large 

military bases) to establish an emission 

budget for those facilities in order to 

facilitate future conformity 

determinations. Such a budget could be 

used by federal agencies in determining 

conformity or identifying mitigation 

measures if the budget level is included 

and identified 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 

or control of wildfires. 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 its natural role in 

maintaining healthy wildland 

ecosystems; and (2) to protect public 

health and welfare by mitigating the 

impacts of air pollutant emissions on air 

quality. The EPA encourages states and 

tribes to work with federal agencies to 

develop Smoke Management Programs 

(SMPs) and use Basic Smoke 

Management Practices (BSMPs) that 

identify the responsibilities of Federal 

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 of burners and those 

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 1 year after the effective 

date of nonattainment designations for 

that standard. This is because 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 

of initial 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 to its the General 

Conformity Regulations (see 75 FR 

17277, April 5, 2010) apply the grace 

period for the purposes of general 

conformity in the same manner as for 

transportation conformity. 

6. How would the revocation of the 

1997 ozone NAAQS affect general 

conformity requirements? 

Our proposal to revoke the 1997 

ozone NAAQS at the time the final SIP 

Requirements Rule is published in the 

Federal Register means that general 

conformity requirements under the 1997 

ozone NAAQS would end after the 2008 

ozone NAAQS general conformity 

requirements begin. 

H. What are the requirements for 

contingency measures in the event of 

failure to meet a milestone or to 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 attain by its attainment date. 

Under the CAA, nonattainment areas 

that are classified under subpart 2 of 

part D of title I as Moderate, Serious, 

Severe or Extreme must include in their 

SIPs contingency measures consistent 

with section 172(c)(9), and those 

classified as Severe or higher 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 to meet milestones or attain. Per 

EPA guidance,51 these measures should 

represent 1 year’s worth of reductions, 

or approximately 3 percent of the 

baseline emissions inventory. For 

additional background information on 

contingency measures, see 68 FR 32802 

(June 3, 2003) and 70 FR 71650 

(November 29, 2005) (the proposed and 

final Phase 2 Rule). 

Guidance developed by the EPA in 

1993 specified the content of the 

contingency measures. This guidance 

indicated that for areas classified 

Moderate and higher that had 

completed the initial 15 percent VOC 

reductions, contingency measures could 

be a mixture of VOC and NOX

reductions. The guidance indicated that 

of the 3 percent emissions reductions 

required, 0.3 percent had to be VOC 

emissions reductions, allowing the 

remaining 2.7 percent of emissions 

reductions to be 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 of the contingency 

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52Fleet turnover is the change in model year 

composition of the local motor vehicle fleet. The 

composition of the 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 are replaced 

by newer vehicles certified to more stringent 

standards. The emission impacts of fleet turnover 

outside of California are currently calculated using 

EPA’s MOVES emission factor model. 75 FR 9411, 

March 2, 2010. In California these emissions 

impacts are currently calculated using EMFAC2007. 

measures, as discussed below. The EPA 

is proposing that the contingency 

measures required for Moderate and 

above areas under CAA sections 

172(c)(9) and 182(c)(9) must provide for 

the implementation of specific measures 

if the area fails to meet any applicable 

milestone. These measures must be 

submitted for approval into the SIP as 

adopted measures that would take effect 

without further rulemaking action by 

the state or the Administrator upon a 

determination that an area failed to 

attain or meet the applicable milestone. 

Contingency measures should represent 

1 year’s worth of progress for the 

nonattainment area, which would be 

achieved while the area is revising 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 meet the requirements of CAA 

section 172(c)(9), as well as section 

182(c)(9) for areas classified as Serious 

or higher, can also be used as 

contingency measures. 

Regarding content of the 1 year’s 

worth of emissions covered by the 

contingency measures, the EPA believes 

that prior contingency measure 

guidance specifying a minimum of 0.3 

percent of the emission reductions (i.e., 

one-tenth of the total 3 percent emission 

reduction requirement) must be from 

VOCs is no longer necessary. The EPA 

is proposing that for Moderate and 

above areas that have completed the 

initial 15 percent VOC reduction 

required by CAA section 182(b)(1)(A)(i), 

the 3 percent emissions reductions of 

the contingency measures may be based 

entirely on NOX controls if that is what 

the state’s analyses have demonstrated 

would be most effective in bringing the 

area into attainment. There 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 the EPA to approve an Extreme 

area attainment plan that relies, in part, 

on the future development of new 

control technologies or improvements of 

existing control technologies. This 

discretion is available as long as the 

state has demonstrated that: all 

reasonably available control measures, 

including RACT, have been included in 

the plan; the area’s RFP demonstration 

during the first 10 years after 

designation does not rely on anticipated 

future technologies; and the state has 

submitted enforceable commitments to 

develop and adopt contingency 

measures in the event that anticipated 

future technologies do not achieve 

planned reductions. 

If an Extreme area qualifies for the 

discretion authorized by section 

182(e)(5), it could be argued that it is 

unreasonable to expect the state to 

provide for the contingency measures 

required by sections 172(c)(9) and 

182(c)(9). Indeed, it is hard to know 

how an area whose attainment SIP can 

include measures that are not fully 

developed would be 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 should be required to adopt 

unreasonable or draconian measures 

when all reasonable candidate 

contingency measures will already have 

been employed in the plan to meet the 

RACM and RFP requirements. In this 

case it could be argued that the 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 they have 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 EPA has a long-standing practice 

of allowing federal measures to be used 

as contingency measures as long as they 

provide emissions reductions in the 

relevant years in excess of those needed 

for attainment or RFP. The EPA has 

interpreted this policy as applying to 

federal measures that have already been 

adopted, which would include 

emissions reductions from fleet turnover 

to lower emitting on-road vehicles and 

non-road equipment such as on-road 

vehicles certified to Tier 2 light-duty 

vehicle emission standards.52 The EPA 

has approved the use of federal 

measures to meet contingency measure 

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 for both the 1-hour and 1997 

ozone NAAQS. 

States using on-road motor vehicle 

fleet turnover as a contingency measure 

should establish and submit, as part of 

the SIP containing the contingency 

measure, motor vehicle emissions 

budgets (MVEBs) consistent with the 

use of on-road fleet turnover as a 

contingency measure. Such budgets 

would help to ensure that the emissions 

reductions attributed to the on-road fleet 

turnover contingency measure are 

actually available in the event that the 

contingency measure is triggered and 

would be available to serve the purpose 

intended by the SIP. For example, if an 

area is required to attain the 2008 ozone 

NAAQS in 2018 and the SIP includes 

VOC and NOX emissions reductions 

resulting from on-road fleet turnover as 

a contingency measure in the event that 

the area fails to attain by 2018, the SIP 

for that area should include VOC and 

NOX MVEBs for 2019 (the year after the 

attainment date) that are consistent with 

the use of the on-road fleet turnover 

contingency measure. Having such 

budgets would help to ensure that 

reductions from a fleet turnover 

contingency measure would be surplus 

and available for the SIP in the event 

that contingency measures are triggered. 

I. How do the NSR requirements apply 

for the 2008 ozone NAAQS? 

1. NSR Requirements for the 2008 

Ozone NAAQS 

The NSR programs contained in parts 

C and D of title I of the CAA are 

preconstruction review and permitting 

programs applicable to new or modified 

major stationary sources of air 

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 the requirements 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 

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53However, the EPA has also recognized 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 of a new or revised 

NAAQS. Since the NAAQS has been in effect since 

2008, the EPA does not believe any grandfathering 

is necessary and proposes no such action here. 

51.166 and 52.21 for PSD, and 51.165, 

52.24 and part 51, Appendix S for 

nonattainment NSR. Among other 

things, in unclassifiable and attainment 

areas outside of the OTR, the PSD 

program requires a new major source, or 

a major modification to an existing 

source, to install best available control 

technology (BACT) and conduct an air 

quality impact analysis, including an 

analysis of potential 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) of the CAA provides 

that in order to obtain a PSD permit the 

owner or operator of a proposed facility 

must, among other things, demonstrate 

that ‘‘emissions from construction or 

operation of such facility will not cause, 

or contribute to, air pollution in excess 

of any . . . national ambient air quality 

standard in any air control region.’’ The 

EPA has generally interpreted this 

requirement to include any NAAQS that 

is in effect at the time a permit is 

issued.53 See, e.g., 73 FR 28321, 28324, 

28340 (May 16, 2008); Memorandum 

from Stephen D. Page, Director, Office of 

Air Quality Planning & Standards, 

‘‘Applicability of the Federal Prevention 

of Significant Deterioration Permit 

Requirements to New 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 

of circumstances: first, prior to the 

designation of areas based on the 2008 

ozone NAAQS, sources locating in areas 

designated attainment or unclassifiable 

for the 1997 ozone NAAQS; and second, 

on and after the July 20, 2012 effective 

date of area designations for the 2008 

ozone NAAQS, sources locating in areas 

designated as attainment or 

unclassifiable for both the 1997 and 

2008 ozone NAAQS. In all cases, the 

permit applicants must, among other 

things, demonstrate that the proposed 

project’s emissions increase will not 

cause or contribute to a violation of the 

2008 ozone NAAQS. 

For purposes of determining 

individual source impacts with respect 

to the 2008 ozone NAAQS, PSD permit 

applicants and permitting authorities 

should continue to follow the current 

practice described in Appendix W to 40 

CFR part 51, which is to consult with 

the applicable EPA regional office to 

determine the appropriate means of 

addressing such impacts. 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 also 40 CFR 

part 51, App. W, § 5.2.1(c) (explaining 

that the choice of methods to assess the 

impact of an individual source on the 

ozone NAAQS depends on the nature of 

the source and its emissions, and that 

appropriate methods are determined in 

consultation with the EPA regional 

office on a case-by-case basis). As 

appropriate, after consultation with the 

applicable EPA regional office, the 

demonstration can be made using 

modeling performed previously for air 

quality planning purposes or with other 

forms of qualitative or quantitative 

analysis, as has generally been the case 

in past permits. The adoption of the 

2008 ozone NAAQS does not change 

that approach. 

Following the July 20, 2012, effective 

date of area designations and 

classifications for the 2008 ozone 

NAAQS, and in keeping with the 

general policy that the permit issued to 

a major new source or major 

modification must satisfy the applicable 

permit requirements in effect as of the 

date of permit issuance, the 

requirements to be satisfied by the 

permit applicant in an area designated 

nonattainment for the 2008 ozone 

NAAQS will have depended on the 

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 of this 

proposal for a more detailed description 

of anti-backsliding requirements. 

Accordingly, some pending permits that 

were originally being reviewed under 

the PSD requirements but not yet issued 

were to have been (or may need to be) 

revised to adequately reflect the area’s 

new status as nonattainment for the 

2008 ozone NAAQS. For example, if an 

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 of the 

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 it was designated 

nonattainment for the 2008 ozone 

NAAQS, the source would need to 

ensure that its permit 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 of the Act that can be 

directly applied to areas designated 

nonattainment for the 2008 ozone 

NAAQS and that were not designated 

nonattainment for the 1997 ozone 

NAAQS as of the July 20, 2012, effective 

date of the designations for the 2008 

ozone NAAQS. For nonattainment 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 the July 

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. During this 

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 

or modified major sources in 

nonattainment areas to meet the lowest 

achievable emission rate (LAER) and 

obtain sufficient offsetting emissions 

reductions to assure that the new or 

modified major sources will not 

interfere with the area’s progress toward 

attainment. Readers should refer to 40 

CFR part 51, appendix S for a complete 

understanding of these and other 

appendix S permitting requirements. 

Section 110(a)(2)(C) of the CAA 

establishes a general duty on the state to 

include a program in its SIP that 

regulates the modification and 

construction of any stationary source as 

necessary to assure that NAAQS are 

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54See, for example, emission reduction credit 

banking programs in Ohio (OAC Chapter 3745– 

1111) and California (H&SC Section 40709). 

55See the EPA’s ‘‘Improving Air Quality with 

Economic Incentive Programs’’ document at 

http://www.epa.gov/region07/air/nsr/nsrmemos/ 

eipfin.pdf. For additional memoranda and guidance 

documents, see http://www.epa.gov/region7/air/ 

nsr/nsrindex.htm. 

achieved. This general duty exists 

during all periods, including the period 

between the effective date of a 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 interim period, 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 of the waiver provision in 

section VI of appendix S is limited by 

the court’s ruling in NRDC v. EPA, 571 

F.3d 1245 (D.C. Cir. 2009). In the EPA’s 

Phase 2 Rule for the 1997 ozone 

NAAQS, the EPA revised section 

52.24(k) to eliminate language stating 

that if a 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 of appendix S, including 

the section VI waiver provision, to cover 

the full period from the date of 

designation to the date on which the 

EPA approved the nonattainment NSR 

SIP. 

In NRDC v. EPA (571 F.3d 1245 (D.C. 

Cir. 2009)), the court considered the 

petitioners’ general objections to the 

NSR waiver provision in section VI of 

appendix S, as well as the EPA’s 

elimination of the 18-month limit on the 

applicability of that section. The court 

dismissed the petitioners’ general 

objections as ‘‘untimely’’ but vacated 

‘‘the elimination of the 18-month time 

limit for NSR waivers under Appendix 

S’’ on the ground that it violated section 

172(e) of the CAA (571 F.3d at 1276). 

The EPA intends to revise section 

52.24(k) to reflect the court’s vacatur of 

the extension of the 18-month time limit 

for section VI of appendix S. In the 

meantime, as a result of the vacatur, no 

section VI waivers may be 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. 

Such banks or registries can help new 

or modified major stationary source 

owners meet offset requirements by 

streamlining identification and access to 

available emissions reductions. Several 

states have established offset banks to 

help ensure a consistent method for 

generating and transferring NOX and 

VOC offsets.54 Offsets are generated by 

emissions reductions that meet specific 

creditability criteria set forth by EPA 

regulations.55 40 CFR 51.165(3)(ii)(A)– 

(J). 

b. Interpollutant Offset Substitution 

States can make it easier for new 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 of the area and must 

be approved by the EPA. 

c. Economic Development Zones 

Section 173(a)(1)(B) of the CAA 

authorizes the Administrator, in 

consultation with the Secretary of 

Housing and Urban Development 

(HUD), to identify areas within 

nonattainment areas as ‘‘zone(s) to 

which economic development should be 

targeted.’’ In these zones, states are able 

to assist new or modified major sources 

in meeting the nonattainment area offset 

requirement by setting aside growth 

‘‘allowances’’ that serve as a pool of 

offsets to be tapped by such sources. 

The advantage of creating an offset pool 

specifically for a CAA economic 

development zone (EDZ) relative to 

relying on a traditional offset bank is 

that the offsets can be fully owned and 

controlled by the state, and the offsets 

do not need to be obtained from facilityspecific emissions reductions or 

shutdowns in the nonattainment area. 

Accordingly, this provision is especially 

well suited to address the needs of the 

manufacturing sector and small 

businesses. The EPA is willing to work 

with HUD and states to identify 

potential areas. 

In the context of the 1997 ozone 

NAAQS, the EPA previously worked 

with Arkansas officials to create a CAA 

EDZ in Crittenden County, which is part 

of the Memphis ozone nonattainment 

area (see 71 FR 8857, February 21, 

2006). The EPA identified Crittenden 

County as a CAA EDZ after consultation 

with the Secretary of HUD to 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 of the Memphis 

nonattainment area provided by the 

Arkansas Department of Environmental 

Quality demonstrating that a specified 

growth allowance pool was consistent 

with timely attainment of the 1997 

ozone NAAQS. After reviewing this 

information, the Administrator 

determined that the EDZ designation 

would help the citizens of Crittenden 

County without jeopardizing the clean 

air goals of the Greater Memphis area. 

The Memphis area has since attained 

the 1997 ozone NAAQS and the 

Arkansas portion of the Memphis 

nonattainment area was redesignated to 

attainment on March 24, 2010. 

J. What are the emission inventory and 

emission statement requirements? 

1. Emission Inventory Requirements 

Emission inventories are critical for 

the efforts of state, local and federal 

agencies to attain and maintain the 

NAAQS that the EPA has established for 

criteria pollutants, including ozone. 

Pursuant to section 110(a)(2)(F)(ii) of the 

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 to certain areas 

that were designated nonattainment for 

certain pollutants. First, CAA section 

182(a)(1) requires that Marginal and 

above ozone nonattainment areas 

submit a 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 2 years 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 of this preamble. 

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56MOVES2010 refers to the initial version of the 

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 of the model that has been approved for SIP 

and conformity purposes is EMFAC2011. See 78 FR 

14533 (March 6, 2013). 

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

59 In comparison, the AERR emissions data are 

submitted by the states to the EPA, electronically 

via the Emission Inventory System to the National 

Emissions Inventory (NEI), 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 the EPA officially 

publishes the data. (Under the current process, the 

EPA would intend to publish the data for the 2014 

NEI in June of 2016, 6 months after the AERR data 

is required to be submitted to the EPA.) 

60CAA section 110(k) lists the actions that the 

EPA may take on SIP submissions, including 

approval and disapproval of the SIP. 

Second, CAA section 182(a)(3)(A) 

requires that states submit periodic 

emission inventories every 3 years after 

the initial base year inventory for 

Marginal and above ozone 

nonattainment areas. The periodic 

inventory must include emissions of 

VOC and NOX for point, nonpoint and 

mobile sources (on-road and non-road). 

On December 4, 2008, the EPA 

promulgated the AERR rule (40 CFR 51, 

subpart A). The AERR requires states to 

submit comprehensive statewide 3-year 

cycle emission inventories (2008, 2011, 

2014, etc.) regardless of an 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 AERR to 

satisfy their 182(a)(3)(A) periodic 

inventory obligation. In cases where a 

state will use its 3-year cycle inventory 

to meet its 182(a)(3)(A) inventory 

obligation, we are further proposing that 

the emissions reporting requirements of 

the AERR be applied to determine all of 

the data elements required for such 

inventories. (see, e.g. Tables 2A, 2B, 2C 

and 2D of 40 CFR part 51, subpart A, 

Appendix A). 

For all inventories that are used in 

developing RFP plans or attainment 

demonstrations, mobile source 

emissions should be estimated using the 

latest emissions models, data and 

planning assumptions. The latest 

approved models should be used to 

estimate emissions from on-road and 

non-road sources, in combination with 

the latest available estimates of VMT, 

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 of Transportation and Air Quality 

and their regional office to determine 

the versions of models to use for their 

SIPs for the 2008 ozone NAAQS. 

Currently, the most recently approved 

model for estimating on-road emissions 

in states outside of California is 

MOVES2010 56 which initially was 

approved for use in SIPs on March 2, 

2010 (75 FR 9411).57 The EPA has 

subsequently released two minor 

updates to MOVES2010, MOVES2010a 

and MOVES2010b that are also 

approved for use in SIPs. The on-road 

emissions can be generated either 

through inventory mode (via MOVES) or 

through emission rates mode (via 

SMOKE–MOVES 58). Guidance on using 

MOVES as well as information on the 

current version of MOVES that has been 

approved for use in SIPs and 

transportation conformity is available at: 

http://www.epa.gov/otaq/models/ 

moves/index.htm. 

Emissions from non-road equipment 

should be estimated with the latest 

official version of the EPA’s NONROAD 

model, and other appropriate methods 

for estimating emissions from sources 

not covered by these models. Links to 

Federal Register notices and policy 

guidance memos on the latest approved 

versions of MOVES and NONROAD can 

be found at http://www.epa.gov/otaq/ 

models.htm. States should consult the 

guidance document ‘‘Emission 

Inventory Guidance for Implementation 

of Ozone and Particulate Matter 

National Ambient Air Quality Standards 

(NAAQS) and Regional Haze 

Regulations,’’ EPA–454/R–05–001 

(updated November 2005) and submit 

inventories that are appropriate for each 

nonattainment area and consistent with 

this guidance. 

As indicated above, some inventories 

submitted to meet the requirements of 

section 182(a)(1) and 182(a)(3)(A) may 

be used in the development of RFP 

plans and/or attainment 

demonstrations. 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.59

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 its interpretation of a ‘‘de 

minimis’’ deferral of the public hearing 

requirement and the requirement for the 

EPA to approve or disapprove certain 

emissions inventories under section 

110(k).60 The EPA is proposing to follow 

this guidance in implementing the 

emissions inventory requirements under 

CAA sections 182(a)(1) and 182(a)(3)(A) 

for purposes of the 2008 ozone NAAQS. 

Under this approach, where emission 

inventories are used in the development 

of an RFP plan or attainment 

demonstration, states can defer the 

public hearing on these inventories 

until the time the areas adopt and 

submit their RFP plans and/or 

attainment demonstrations that rely on 

such inventories. The EPA would not 

take action to approve or disapprove 

such inventories until the state 

completes the state public participation 

process. If a state opts to submit a 

consolidated SIP submittal, this should 

not be an issue. 

2. Source Emission Statements 

Section 182(a)(3)(B) of the CAA 

requires Marginal and above areas to 

submit an emissions statement within 2 

years of enactment of the CAA 

Amendments of 1990. Specifically it 

provides that the emission statement 

must: ‘‘. . . require that the owner or 

operator of each stationary source of 

oxides of nitrogen 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 of nitrogen and volatile organic 

compounds from that source. The first 

such statement shall be submitted 

within 3 years after the date of the 

enactment of the CAA Amendments of 

1990. Subsequent statements shall be 

submitted at least every year thereafter. 

The statement shall contain a 

certification that the information 

contained in the statement is accurate to 

the best knowledge of the individual 

certifying the statement.’’ 

We published guidance on source 

emission statements in a July 1992 

memorandum titled, ‘‘Guidance on the 

Implementation of an Emission 

Statement Program.’’ A memorandum 

titled, ‘‘Emission Statement 

Requirements Under 8-hour Ozone 

NAAQS Implementation,’’ dated March 

14, 2006, clarified that the source 

emission statement requirement under 

the CAA was applicable to all areas 

designated nonattainment for the 1997 

ozone NAAQS and classified as 

Marginal or higher under subpart 2, part 

D, title I of the CAA. This requirement 

similarly applies to all areas designated 

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61The exceedance based standard basically 

allowed the NAAQS level to be exceeded an 

average of only once a year over a 3-year period. 

(This is a generalization of how attainment is 

determined; the actual method considers other 

factors such as completeness of the data.) See 40 

CFR, appendix H. In contrast, the concentration 

based standard allows the level of the 8-hour ozone 

NAAQS to be ‘‘exceeded’’ more than once a year 

on average because the form (concentration-based) 

of that NAAQS is determined by averaging the 4th 

highest reading for each year over a 3-year period. 

nonattainment for the 2008 ozone 

NAAQS and classified as Marginal 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 

of designations as part of a consolidated 

SIP submission as described previously 

in this proposal. Most areas that need an 

emission statement program already 

have one in place due to a 

nonattainment designation for an earlier 

ozone NAAQS. If an area has a 

previously approved emission statement 

rule in force for the 1997 ozone NAAQS 

or the 1-hour ozone NAAQS that covers 

all portions of the nonattainment area 

for the 2008 ozone NAAQS, such rule 

should be sufficient for purposes of the 

emissions statement requirement for the 

2008 ozone NAAQS. The state should 

review the existing rule to ensure it is 

adequate and, if it is, may rely on it to 

meet the emission statement 

requirement for the 2008 ozone NAAQS. 

We note that regardless of whether 

states submit their emissions inventory 

statements within 2 years of the 

effective date of designations, or within 

30 months of the effective date of 

designations as part of a 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 3 years following the effective date 

of designations for the 2008 NAAQS. 

We are soliciting comments on our 

interpretation of the emission statement 

requirements under section 182(a)(3)(B) 

as they would apply to areas designated 

nonattainment for the 2008 ozone 

NAAQS. 

K. What are the ambient monitoring 

requirements? 

Ozone monitoring data play an 

important role in designations, 

classifications, control strategy 

development and related 

implementation activities. The EPA’s 

ambient monitoring requirements are 

contained in 40 CFR part 58. On July 16, 

2009, the EPA proposed revised rules 

for monitoring ambient ozone (74 FR 

34525). The EPA proposed to modify 

minimum monitoring requirements in 

urban areas, add new minimum 

monitoring requirements in non-urban 

areas and extend the length of the 

required ozone monitoring season in 

some states. The schedule for finalizing 

any or all aspects of the 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 target list of volatile 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 to require the retention of the 

minimum common PAMS network 

elements necessary to meet the 

objectives of every PAMS program, 

while freeing up resources for states to 

tailor other features of their own PAMS 

networks to suit their specific data 

needs. 

L. How can states qualify for a 1-year 

attainment deadline extension? 

Section 181(a)(5) of the CAA 

addresses the conditions under which 

an area may be eligible for a 1-year 

extension of its attainment date. 

Because that statutory provision was 

written for an exceedance-based 

standard, such as the 1-hour ozone 

NAAQS, the EPA established through 

the Phase 1 Rule (40 CFR 51.907) an 

interpretation that would apply to a 

concentration-based standard, such as 

the 1997 ozone NAAQS.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 of the 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 is at or 

below the level of the standard. The area 

would be eligible for the second 1-year 

extension if the area’s 4th highest daily 

8-hour value, averaged over both the 

original attainment year and the first 

extension year, is at or below the level 

of the standard. Thus, to be eligible for 

the first 1-year extension, the 4th 

highest daily 8-hour value for an area 

would need to be at or below 0.075 

ppm. The area would be eligible for the 

second extension if the area’s 4th 

highest daily 8-hour value, averaged 

over both the original attainment year 

and the first extension year, is less than 

or equal to 0.075 ppm. 

M. How will the EPA address transport 

of ozone and its precursors for rural 

nonattainment areas, multi-state 

nonattainment areas and international 

transport? 

1. Rural Transport Areas (RTAs) 

Section 182(h) of the 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 section provides 

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 if the 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 of the level of ozone air 

quality, would be nonattainment NSR, 

at the 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 of the area, 

the consequences of failure to attain by 

the Marginal area deadline would not 

apply. 

The EPA may determine an area is a 

rural transport area if it meets two 

statutory criteria. First, a nonattainment 

area may only be a rural transport area 

if it ‘‘. . . does not include, and is not 

adjacent to, any part of a Metropolitan 

Statistical Area or, where one exists, a 

Consolidated Metropolitan Statistical 

Area . . .’’ In addition, the EPA must 

determine that ‘‘sources of VOC 

emissions (and, where the 

Administrator determines relevant, NOX

emissions) within the area do not 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 with population cores of 50,000 or 

more. 

In 2000, OMB issued new standards 

for defining statistical areas (65 FR 

82228; December 27, 2000). The new 

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62 ‘‘Global Sources of Local Pollution: An 

Assessment of Long-Range Transport of Key Air 

Pollutants to and from the United States.’’ http:// 

www.nap.edu/catalog.php?record_id=12743. 

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 to facilitate comparison of data for 

MSAs over time, OMB retained the 

conceptual approach to defining 

metropolitan statistical areas based 

around population cores of 50,000 or 

more. These core areas are not 

necessarily confined to city limits, and 

may include multiple counties or parts 

of counties. Because of the usefulness of 

the metropolitan area standards and 

data products, OMB received requests 

that the new standards take into account 

more territory of the United States. In 

response, OMB established a new 

category called micropolitan statistical 

areas, which are defined as areas with 

an urban core population of at 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 of two or more adjacent 

CBSAs that are linked by commuting 

patterns. (See http://www.census.gov/ 

population/www/metroareas/ 

metrodef.html.) 

In light of the changed OMB 

definitions, the EPA has 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 of MSA. In 

other words, to qualify for a rural 

transport classification, the 

nonattainment area’s boundary could 

not include or be adjacent to an OMBdefined MSA based on the Census 

Bureau’s latest population estimates. 

Under this approach, any nonattainment 

area associated with a micropolitan area 

or area too sparsely populated to be 

included in a census-defined statistical 

area, based on Census Bureau 

population estimates, may be able to 

qualify for a rural transport 

classification. 

The EPA believes this interpretation 

of CAA section 182(h) is consistent with 

the scope of section 182(h) as 

promulgated in 1990 and provides 

maximum flexibility for areas to qualify 

for this classification where appropriate. 

During the designations process for the 

2008 ozone NAAQS, no states identified 

any rural transport areas. 

2. Multi-State Nonattainment Areas 

Each state within a multi-state ozone 

nonattainment area is responsible 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 to be at least as effective. 

Section 182(j)(2) recognizes that in 

certain instances, one or more states 

within a multi-state nonattainment area 

may not submit an attainment plan by 

the required date, and thus interfering 

with the ability of the area as a whole 

to demonstrate attainment. In such case, 

section 182(j) provides that even though 

the area as a whole would not be able 

to demonstrate attainment, the sanction 

provisions of section 179 shall not apply 

in the portion of the nonattainment area 

located in a state that submitted all 

other provisions of an attainment plan 

and demonstrated that it could have 

demonstrated attainment but for the 

failure of the other state to cooperate. 

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 also be affected by sources 

of emissions located across United 

States borders in Canada and Mexico, 

and from other continents. These 

contributions to U.S. ozone 

concentrations from sources outside 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 larger role in 

ozone attainment demonstrations for 

future NAAQS. 

There is strong evidence that baseline 

levels of tropospheric ozone have risen 

above pre-industrial levels in the 

northern hemisphere, and much of this 

increase can be directly attributed to 

human-caused emissions of ozone 

precursors. Our ability to fully 

characterize and quantify the impact of 

sources of air pollution from other parts 

of North America (Canada and Mexico) 

has been steadily improving; however, 

our ability to assess the impacts of air 

pollution from other continents on air 

quality in the U.S. is still developing. 

Some factors that affect our current 

ability to fully characterize international 

transboundary transport of air pollution 

from other continents are uncertainties 

in foreign emissions inventories, 

incomplete understanding of 

atmospheric chemistry during transport 

and the inability to distinguish longrange pollutant contributions from local 

and regional sources of air pollution. 

In order to address the challenging 

and complex problem of the impact of 

foreign emissions on air quality in the 

U.S., the EPA has been engaged in a 

number of different 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 

and its precursors—NOX and VOCs. 

Under this agreement, significant 

progress has been made in reducing 

transport of ozone and its precursors 

across the U.S.-Canada border. 

Similarly, the U.S. has been working 

with Mexico in addressing the 

transboundary transport of air pollution 

under the La Paz Agreement 

(Cooperation for the Protection and 

Improvement of the Environment in the 

Border Area) established in 1983. 

In addition, the EPA, along with 

several other federal agencies, 

sponsored a National Academy of 

Sciences study to summarize the state of 

knowledge regarding the international 

flows of air 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.62 The study, completed in 2009, 

recommended a variety of research 

initiatives, such as advanced 

‘‘fingerprinting’’ techniques to better 

identify source-specific pollutant 

characteristics in order to enhance the 

understanding of long-range transport of 

pollution. Moreover, the EPA co-chairs 

the Task Force on Hemispheric 

Transport of Air Pollution under the 

Convention on Long-range 

Transboundary Air Pollution of the 

United Nations Economic Commission 

for Europe. The task force was 

established to develop a fuller 

understanding of intercontinental 

transport of air pollution in the northern 

hemisphere, and serves as a forum for 

international scientific communication 

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63See 57 FR 55622, November 25, 1992, 

‘‘Nitrogen Oxides Supplement to the General 

Preamble.’’ 

64As stated in the 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 NOX requirements 

in those rules do not apply where the EPA grants 

an area-wide exemption under section 182(f). 

65 In 1993 the EPA issued a guidance document 

for application of the section 182(f) provisions with 

respect to the 1-hour ozone NAAQS. The document 

was titled ‘‘Guideline for Determining the 

Applicability of Nitrogen Oxides Requirements 

under Section 182(f), from John S. Seitz, Director, 

Office of Air Quality Planning and Standards, to the 

Regional Division Directors, December 16, 1993. 

The NOX exemption guidance was revised later in 

‘‘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, 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 dated January 14, 2005, 

‘‘Guidance on Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation’’ from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, to Air 

Directors, Regions I–X. 

and collaboration and as a bridge 

between the international research 

community and the international air 

quality policy community. This task 

force concluded that methane is an 

important precursor to tropospheric 

ozone on global scales and that 

decreasing methane emissions will, over 

several decades, decrease background 

ozone levels and help mitigate climate 

change. 

Methane has not been addressed as 

part of ozone attainment planning in the 

past because of the limited effect that 

local measures to control methane 

would have on local or regional ozone 

concentrations in the immediate time 

frame. Given the temporal and spatial 

characteristics associated with methane 

and ozone, we continue to believe that 

it is inappropriate to require or rely on 

local methane emission reductions in 

ozone SIPs. Through voluntary 

partnership programs focused on 

greenhouse gas reduction, the EPA has 

worked with U.S. industries and state 

and local 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 of methane 

emissions globally. These domestic and 

international efforts will help mitigate 

climate change and decrease 

background ozone levels over the next 

several years and decades. 

The EPA will continue to work with 

our domestic and international partners 

to better understand the extent and 

implications of transboundary flows of 

air pollutants and, where possible, to 

mitigate their impact on U.S. domestic 

air quality. 

b. The SIP Approval Process Under 

Section 179B for International Border 

Areas 

Emissions from sources outside the 

United States that may contribute to 

violations of the 2008 ozone NAAQS in 

an area designated as nonattainment 

may be addressed by section 179B of the 

CAA. This section allows the EPA to 

approve an attainment demonstration 

for a nonattainment area if: (1) The 

attainment demonstration meets all 

other applicable requirements of the 

CAA; and (2) the submitting state can 

satisfactorily demonstrate that ‘‘but for 

emissions emanating from outside of the 

United States,’’ the area would attain 

and maintain the ozone standard. The 

EPA is proposing that this could include 

consideration of any emissions from 

North American or intercontinental 

sources. The EPA has historically 

evaluated these ‘‘but for’’ 

demonstrations on a case-by-case basis, 

based on the individual circumstances, 

the classification of the 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 of the 

attainment demonstration must show 

timely attainment of the NAAQS but for 

the emissions from outside of the 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 if the 

EPA approves a section 179B ‘‘but for’’ 

demonstration for an area, the area 

would continue to be designated as 

nonattainment and subject to the 

applicable requirements, including 

nonattainment new source review, 

conformity and other measures 

prescribed for nonattainment areas by 

the CAA. However, if the EPA approves 

a ‘‘but for’’ demonstration for an area, 

the area would not be subject to 

reclassification for failure to attain by its 

attainment deadline and, if such areas 

were classified as Severe or Extreme, the 

section 185 fee program would not 

apply based on a failure to attain by the 

attainment date. 

Although monitored data cannot be 

excluded for a determination of whether 

an area has attained based solely on the 

fact the data are affected by emissions 

from outside the U.S., such data may be 

excluded from consideration if they 

were significantly influenced by 

exceptional events. CAA section 

319(b)(3). Where international transport 

meets the criteria contained in the 

EPA’s Exceptional Events Rule (40 CFR 

50.14), it can be addressed by that rule. 

The EPA believes that the best 

approach for addressing the potential 

impacts of international transport on 

nonattainment is for states to work with 

the EPA on a case-by-case basis to 

determine the most appropriate 

information and analytical methods for 

each area’s unique situation. We will 

work with states that are developing 

plans pursuant to section 179B, and 

ensure the states have the benefit of the 

EPA’s developing understanding of 

international transport of ozone and its 

precursors. 

N. How will the section 182(f) NOX

provisions be handled? 

1. Background 

Section 182(f) of the CAA applies to 

areas designated nonattainment for 

ozone and classified as Serious and 

above under subpart 2 of part D of title 

1, and to areas in the OTR. It requires 

states to apply the same requirements to 

major stationary sources of NOX as 

apply to major stationary sources of 

VOC under subpart 2. Specifically, this 

requirement applies to RACT and 

nonattainment NSR for major stationary 

sources of NOX in these areas.63

However, while NOX emissions are 

necessary for the formation of ozone in 

the lower atmosphere, a local decrease 

in NOX 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 of the 

specified NOX requirements if specific 

circumstances are met (‘‘NOX

exemption’’). Areas granted a NOX

exemption under section 182(f) may 

also be granted an exemption from 

certain requirements of the EPA’s motor 

vehicle I/M regulations and from certain 

federal requirements of General and 

Transportation Conformity.64 The EPA 

initially issued guidance on the section 

182(f) NOX requirements in 1993.65 On 

January 14, 2005, the EPA issued an 

update to that guidance to address 

implementation of the 1997 ozone 

NAAQS.66

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67Memorandum dated January 14, 2005, 

‘‘Guidance on Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation’’ from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, to Air 

Directors, Regions I–X. 

68For more information, see presentations from 

the 2011 National Summit on RPS at http:// 

www.cleanenergystates.org/assets/Uploads/2011- 

RPS-Summit-Combined-Presentations-File.pdf. 

69See Database of CHP Policies and Incentives 

(dCHPP) at http://www.epa.gov/chp/policies/ 

database.html. 

70http://www.dpuc.state.ct.us/electric.nsf/ 

$FormRenewableEnergyView?OpenForm&. 

71For more information, go to: http:// 

www.recovery.gov/Pages/default.aspx. 

72For more information, go to: http:// 

www.rggi.org/. 73See http://www.epa.gov/airquality/eere.html. 

2. Proposal 

We are not proposing any 

modifications to our previous 

interpretation of the NOX RACT 

requirement for purposes of 

implementing the 2008 ozone NAAQS. 

Consistent with the approach taken in 

the 2005 updated guidance and the 

Phase 2 Rule, we are proposing that a 

previously granted NOX exemption (or 

waiver) under the 1-hour or 1997 ozone 

NAAQS would not apply for purposes 

of implementing the 2008 ozone 

NAAQS. A state would need to submit 

a new request for an exemption that is 

supported by analyses 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 NOX waiver, the EPA 

encourages them to include 

consideration of air quality effects that 

may extend beyond the designated 

nonattainment area. See, for example, 

the discussion in the Phase 2 Rule, 

November 29, 2005, on page 71661 (70 

FR at 71661–71662). 

A SIP revision requesting a NOX

exemption for the 2008 ozone NAAQS 

must contain adequate documentation 

that the provisions 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.67 The EPA believes this 

guidance is sufficient to cover the 2008 

ozone NAAQS. 

O. Emissions Reduction Benefits of 

Energy Efficiency/Renewable Energy 

Policies and Programs, Land Use 

Planning and Travel Efficiency 

1. Energy Efficiency/Renewable Energy 

Policies and Programs 

Governments at all levels—local, 

state, tribal and federal—have been 

developing energy efficiency/renewable 

energy (EE/RE) policies and programs 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 of retail demand with 

renewable resources, more than double 

the number of states in 2000.68 69

Although the details of each RPS policy 

vary, generally they are structured such 

that, initially, a relatively small 

percentage of a 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 of Connecticut 

requires that 4.5 percent of electricity 

come from renewable sources beginning 

in 2005, and the target increases to 27 

percent by 2020.70

Energy efficiency policies refer to a 

range of laws, regulations, and public 

utility commission (PUC) orders aimed 

at reducing energy demand through the 

use of more energy efficient equipment, 

technologies, and practices. These 

policies can be funded through 

ratepayer surcharges, federal funds (e.g., 

American Recovery and Reinvestment 

Act 71), state general funds, proceeds 

from pollution auctions such as the 

Regional Greenhouse Gas Initiative 72

and/or any combination of the above. 

Examples of energy efficiency policies 

include: 

• Minimum efficiency requirements 

for new homes and buildings (building 

energy codes) or appliances (appliance 

standards). 

• Requirements for utilities (or other 

program administrators) to deliver a 

specified amount of energy savings by 

developing energy efficiency programs 

to increase market adoption of energy 

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 of their 

RPS. 

• Specified funding levels collected 

via ratepayer electric bills or other 

sources and dedicated to implementing 

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 of NOX (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 NOX

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 NOX

emissions than coal-fired EGUs. Energy 

efficiency is achieving the same or 

better level of service or performance 

with lower energy consumption. 

Examples include high-efficiency 

appliances; efficient lighting; highefficiency heating, ventilating and air 

conditioning systems or control 

modifications; efficient building design; 

advanced electric motor drives; 

combined heat and power; and heat 

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 of ozone transport on downwind 

states. In July 2012, the EPA made 

available the first version of clarifying 

guidance on the incorporation of EE/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’’ to encourage 

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 can be included in 

the attainment year projected baseline, 

factored into a ‘‘weight of evidence’’ 

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, it is important to 

consider how the EE/RE policies and 

programs and their associated emission 

reductions best fit within one or more 

of the four SIP pathways. Valid EE/RE 

policies and programs that meet the 

applicable requirements of section 

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 of EE/RE policies 

and programs, training and technical 

assistance, and energy savings 

information for state-level EE policies 

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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.gov/ 

smartgrowth/partnership/index.html. 

75 ‘‘Our Built and Natural Environments’’ (EPA 

231–R–01–002, January 2001). ‘‘Measuring the Air 

Quality and Transportation Impacts of Infill 

Development’’ (EPA 231–R–07–001, November 

2007). 

76Cambridge Systematics, Inc. (2009). Moving 

Cooler: An Analysis of Transportation Strategies for 

Reducing Greenhouse Gas Emissions. Urban Land 

Institute: Washington, DC (http://www.uli.org/). 

77EPA–420–R–11–003, March 2011, http:// 

epa.gov/otaq/stateresources/policy/420r11003.pdf. 

78EPA–430–R–09–040, March 2011, http:// 

www.epa.gov/otaq/stateresources/policy/ 

430r09040.pdf. 

and programs. The EPA is also working 

with states on developing examples to 

illustrate how reductions from specific 

EE/RE policies and programs could be 

quantified and considered in their SIPs. 

The EPA encourages states to continue 

to work with 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 of transportation 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 mixed use 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 that enable 

people to live 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. 

The EPA has issued guidance on how 

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/otaq/ 

stateresources/policy/transp/landuse/ 

r01001.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 land use 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 of their 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 of programs 

into their SIPs. 

3. Travel Efficiency 

In addition to land 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 of Transportation 

Strategies for Reducing Greenhouse Gas 

Emissions,76 which the EPA and the 

DOT helped to fund. The report 

analyzed the potential levels of 

emissions reductions achievable from 

light-duty travel efficiency strategies. 

Moving Cooler included six different 

bundles of strategies to reflect different 

potential groups of strategies that could 

be implemented. 

We believe that the ‘‘Low Cost’’ 

bundle of measures represents the most 

appropriate combination of strategies for 

states to consider 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 using the data in the 

report and estimate that between 2010 

and 2020 the low cost bundle of 

measures could reduce NOX and VOC 

emissions between approximately 2 and 

5 percent depending on how 

aggressively the strategies are 

implemented. Additional reductions are 

possible in later years. 

The Moving Cooler report makes 

assumptions about the geographic scope 

for which each strategy could be 

implemented. For example, certain 

strategies like increased transit are 

dependent on high population density, 

while other strategies like 

telecommuting could be 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 EPA believes that states should 

consider these types of strategies as they 

develop SIPs for the 2008 ozone 

NAAQS. 

In March of 2011, the EPA released 

two documents that we believe will 

prove to be useful to states that want to 

evaluate emissions reductions that may 

be available from travel efficiency 

strategies. The first document is titled, 

‘‘Potential Changes in Emissions Due To 

Improvements In Travel Efficiency.’’ 77

This report provides information on the 

effectiveness of travel efficiency 

measures for reducing emissions of 

NOX, VOCs and PM2.5 at the national 

scale. The report describes an approach 

that uses regionally derived travel 

model data and other travel activity 

information, and sketch-planning 

analysis to estimate potential emission 

reductions from urban areas of varying 

size and characteristics. The results are 

applied to other urban areas in the U.S. 

of similar characteristic to estimate 

potential national emission reductions. 

The second document is titled, 

‘‘Transportation Control Measures: An 

Information Document for Developing 

and Implementing Emission Reduction 

Programs.’’ 78 This document provides 

information on transportation control 

measures that have been implemented 

across the country for a variety of 

purposes, including reducing emissions 

related to criteria pollutants. The 

document describes the processes used 

to develop and implement the strategies 

and, where available, their effectiveness. 

P. Efforts To Encourage a MultiPollutant Approach When Developing 

2008 Ozone SIPs 

1. In General 

From a planning and resource 

perspective, the EPA believes that it can 

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79For a list of potential control measures for 

PM2.5 precursors, see http://www.epa.gov/ 

airquality/particlepollution/measures/ 

pm_control_measures_tables_ver1.pdf. 

80Recommendations to the Clean Air Act 

Advisory Committee: Phase II, June 2007, http:// 

epa.gov/air/caaac/aqm/phase2finalrept2007.pdf. 

81Memo from Stephen D. Page to Regional Air 

Division Directors, Aug. 10, 2005, ‘‘Consideration of 

Multiple Pollutants in Control Strategy 

Development.’’ http://epa.gov/air/caaac/aqm/aqmpage-memo.pdf. 82http://www.epa.gov/air/aqmp/. 

83 Depending on the context, ‘‘multi-pollutant’’ 

can be defined in different ways. In this context we 

are defining multi-pollutant modeling as 

simultaneous modeling of ozone, PM2.5, key air 

toxics, and regional haze. Future multi-pollutant 

models may include the ability to model a broader 

array of air toxics as well as greenhouse gases. 

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 know that certain control 

measures that reduce emissions of the 

ozone precursors NOX and VOC, and 

thus reduce ambient ozone levels, can 

also result in reduced emissions and 

ambient concentrations of PM2.5 79 and 

also can improve visibility. Many VOCs 

are also HAP, so an ozone control 

strategy may provide the additional 

benefit of reducing air toxics. We also 

know that many sources of PM2.5 also 

emit toxic metals as particulates, so 

controlling directly emitted PM2.5

emissions from these sources would 

also reduce the emissions of toxic 

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 of climate change in 

their multi-pollutant planning efforts. 

In June 2007, the EPA’s CAA 

Advisory Committee (CAAAC) 

recommended that the agency allow 

states to integrate SIP requirements and 

other air quality goals into a 

comprehensive plan.80 The 

recommended plan would demonstrate 

attainment/maintenance of multiple 

NAAQS, accomplish sector-based 

reductions, realize risk reductions of 

HAPs and make improvements in 

visibility. It could also be structured to 

integrate programs addressing land use, 

transportation, energy and climate. 

The EPA has encouraged states to take 

a multi-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 local jurisdiction(s) 

could address air pollutants in an 

integrated manner. 

While the agency encourages states to 

develop multi-pollutant plans, we 

recognize that the requirement for the 

EPA to review and, as necessary, revise 

NAAQS every 5 years, which can trigger 

new statutory SIP submission and 

attainment dates, as well as the everevolving understanding of pollutants 

and the myriad control programs that 

may be available to reduce 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 PM2.5

NAAQS is more than 2 years before the 

proposed submittal date for attainment 

demonstrations for the 2008 ozone 

NAAQS. Although it is thus not feasible 

to integrate fully the planning 

requirements for regional haze, the 2006 

PM2.5 NAAQS and the 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 to note that all the CAA 

mandated planning and program 

elements for individual standards must 

continue to be met. We are specifically 

requesting comments on other 

approaches to integrating the planning 

requirements for multiple NAAQS and 

other CAA programs that are 

promulgated at different times. 

2. What is the EPA doing beyond 

encouraging states to integrate their air 

quality planning activities to the extent 

feasible? 

Ideally, an air quality management 

plan (AQMP) is a set of pollution 

reduction strategies/planning activities 

for an area demonstrating: attainment/ 

maintenance of one or more NAAQS; 

risk reductions 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 York and the city of St. Louis 

(involving both 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

Implementation of the 2008 ozone 

NAAQS provides an opportunity for 

states to consider how to use a multipollutant approach from the beginning 

of their planning process. We 

recommend that states and tribes 

wishing to take a comprehensive 

approach consider the following 

activities. 

• Develop models for the attainment 

demonstration that include 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 

of the impact controls have on ambient 

levels of ozone, PM2.5, regional haze 

and, where applicable, air toxics, 

greenhouse gases, ecosystem protection 

and environmental justice. 

• Use common data bases and 

analytical tools, where possible. 

EPA is requesting comment on what 

incentives or assistance we might be 

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 that is 

capable of simulating transport and 

formation of multiple pollutants 

simultaneously.83 For example, this 

type of model 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 of model could also include 

the formation and deposition of key air 

toxics and the chemical interactions that 

occur with these individual toxic 

species to produce ozone and PM2.5. 

Multi-pollutant assessments are 

recommended for ozone attainment 

demonstrations because the formation 

and transport of ozone is closely related 

to the formation of both PM2.5 and 

regional haze. There is often a positive 

correlation between measured ozone 

and secondary particulate matter. Many 

of the same factors affecting 

concentrations of ozone also affect 

concentrations of secondary particulate 

matter because similarities exist in 

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84Not to be confused with Transportation 

Improvement Programs (also abbreviated ‘‘TIPs’’); 

the context will determine the meaning. 

85 70 FR 71666 (November 29, 2005). 86See 40 CFR 49.4(a). 

87For a copy of this 2011 policy, see http:// 

www.epa.gov/tribal/pdf/cons-and-coord-withindian-tribes-policy.pdf. 

sources of precursors for both 

pollutants. For example, emissions of 

NOX may lead to formation of nitrates, 

which affect both ambient ozone and 

PM2.5 levels and impair visibility. Many 

VOCs (such as toluene) are air toxics 

and may also be sources or precursors 

for both ozone and organic particles. In 

addition, the presence of ozone itself 

may be an important factor affecting 

secondary particle formation. 

Because of these relationships, 

models and data analysis intended to 

address ozone could be beneficial for 

use in addressing PM2.5 and visibility 

impairment. When performing a multipollutant assessment, the modeling 

should take into account previously 

implemented or planned measures to 

reduce ozone, PM2.5 and regional haze. 

States that undertake multi-pollutant 

assessments as part of their attainment 

demonstration should consider 

assessing the impact of their ozone 

strategies on PM2.5 and visibility 

impairment to ensure that optimal 

emission reduction strategies are 

developed for the three programs to the 

extent possible. This could facilitate 

addressing all of these pollutants in a 

more cost effective manner. 

States may also find it desirable to 

assess the impact of ozone, PM2.5 and/ 

or regional haze control strategies on 

toxic air pollutants regulated under the 

CAA or under state air 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 air toxic 

programs. 

Q. How does this proposed rule apply to 

tribes? 

Section 301(d) of the CAA authorizes 

the EPA to approve eligible Indian tribes 

to implement provisions of the 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) of the 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 the EPA for approval. 

However, unlike states, tribes are not 

required to develop implementation 

plans.85 Under the TAR, the EPA 

determined that tribes are not required 

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, the TAR 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 EPA has 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 find it 

necessary and appropriate to develop a 

FIP to reduce emissions from sources in 

Indian country where the tribe has 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 in these 

areas will help ensure that the planning 

decisions made by the states and tribes 

complement each other and that the 

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 if together they are consistent 

with the overall air quality needs of an 

area. 

States have an obligation to notify 

other states in advance of any public 

hearing(s) on their state plans if such 

plans will significantly impact such 

other states. 40 CFR 51.102(d)(5). Under 

section 301(d) of the CAA and the TAR, 

tribes may become eligible to be treated 

in a manner similar to states (TAS) for 

this purpose. Affected tribes with this 

status must also be informed of the 

contents of such state plans and given 

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 of their TAS status. 

Executive Orders and the EPA’s 

Indian policies generally call for the 

EPA to coordinate and consult with 

tribes on matters that affect tribes. 

Executive Order 13175, titled, 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ requires 

the EPA to develop a process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have Tribal 

implications.’’ In addition, the EPA’s 

policies include the agency’s 1984 

Indian Policy relating to Indian tribes 

and implementation of federal 

environmental programs, the April 10, 

2009, Office of Air 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 of the 2008 

ozone NAAQS in Indian country, 

including our actions on SIPs. As such, 

it would be helpful for states to work 

with tribes with land that is part of the 

same air quality area during the SIP 

development process and to coordinate 

with tribes as they develop their SIPs. 

R. What are the requirements for the 

Ozone Transport Region (OTR)? 

The Phase 2 Rule codified the 

requirements applicable to the OTR for 

the 1997 ozone NAAQS in 40 CFR 

51.916. The EPA is proposing 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 of this preamble for 

nonattainment areas. That is, we are 

proposing to require that states 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 section III.A of 

today’s proposal. (See section III.D of 

this preamble for additional information 

on RACT timeframes.) 

S. Are there any additional 

requirements related to compliance and 

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 of developing 

appropriate enforceable nonattainment 

plan provisions under section 172(c)(6). 

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88See http://www.epa.gov/ttn/oarpg/t1/ 

memoranda/o3flexguidelines.pdf. 

89Areas 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 may be reclassified to a higher 

classification. Participation in the Ozone Advance 

program does not remove any nonattainment area 

requirements from these areas. The current 

Marginal areas in the Ozone Advance program are 

Baton Rouge, LA; DeSoto County, MS (part of 

Memphis, TN–AR–MS); and Upper Green River 

Basin, WY. The Uinta Basin, UT area, which was 

designated ‘‘Unclassifiable,’’ is also taking part in 

the program. 

T. What are the requirements for 

addressing emergency episodes? 

The EPA proposes that the existing 

requirements for emergency episodes 

(40 CFR part 51, subpart H) would also 

apply to 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 harm to the 

health of persons. The significant harm 

level for ozone had been established as 

0.6 ppm, 2-hour average (40 CFR 

51.151). This level remains appropriate 

for the 2008 ozone NAAQS. 

U. How does the ‘‘Clean Data Policy’’ 

apply to the 2008 ozone NAAQS? 

The EPA, in its Phase 1 Rule, codified 

its long-standing interpretation under 

the Clean Data Policy in a regulation. 

Under 40 CFR 51.918, a determination 

of attainment suspends the obligation to 

submit attainment planning SIP 

elements for the 1997 ozone NAAQS. 

An EPA determination that the 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 of the Clean 

Data Policy and to consolidate in one 

regulation a comprehensive provision 

applicable to determinations of 

attainment for the current and former 

ozone NAAQS, the EPA proposes, after 

revocation of the 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. 

If finalized, 40 CFR 51.1118 will apply 

to a determination of attainment that is 

made with respect to any revoked or 

current ozone NAAQS—the 1-hour, the 

1997 or the 2008 ozone NAAQS. The 

new section 51.1118, like section 

51.918, will set forth the regulatory 

consequences of an EPA determination, 

made after notice-and-comment 

rulemaking, that an area designated 

nonattainment for an ozone standard 

has air quality attaining that standard. 

Upon such a determination by the EPA, 

the requirements for the area to submit 

an attainment demonstration, associated 

reasonably available control measures, 

reasonable further progress plans, 

contingency measures and other 

attainment-related SIP elements for that 

NAAQS, shall be suspended until such 

time as the area is redesignated to 

attainment, at which time the 

requirements no longer apply, or until 

the EPA determines that the area has 

again violated that ozone NAAQS, in 

which case the requirements are again 

applicable. The EPA intends to apply 

the provision for the 2008 ozone 

NAAQS in a similar manner as it did for 

the 1997 ozone NAAQS. Because the 

proposed section 51.1118 merely 

incorporates the continuation of the 

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, it is appropriate to apply it in 

the context of the 2008 ozone NAAQS 

as well as the 1997 and 1-hour ozone 

NAAQS. On July 10, 2009, the U.S. 

Court of Appeals for the District of 

Columbia upheld the section 51.918 

regulatory provision. (NRDC v. EPA, 571 

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

V. What assistance programs is the EPA 

considering for implementation of the 

2008 ozone NAAQS? 

For purposes of the 1997 ozone 

NAAQS, the EPA established the Early 

Action Compact (EAC) program. Under 

the EAC program, certain areas that 

were violating the 1997 ozone NAAQS 

at the time of designation 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 of the 

agreement. The EPA does not have 

plans to proceed with an EAC program 

for the 2008 ozone NAAQS. 

Nevertheless, the EPA believes 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 a nonattainment 

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 can help 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 would be less resourceintensive than actions taken once a 

nonattainment designation has been 

made, since at that point the 

implementation of controls would need 

to occur in conjunction with actions to 

comply with other requirements such as 

nonattainment NSR and transportation 

conformity. 

If an area uses 2011 as the baseline 

year for its RFP plan, as we are 

proposing as the default approach in 

this rule, any reductions that were made 

before 2011 can be 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 

(begun in 2006), the EPA worked with 

interested attainment areas to take 

proactive steps that would 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.89 The EPA 

initiated the Ozone Advance program in 

April 2012. Additional information on 

the Ozone Advance program for the 

2008 ozone NAAQS is provided in a 

separate guidance document that is 

available at www.epa.gov/ 

ozonepmadvance. 

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? 

Under section 185, major stationary 

sources of VOC and NOX in a Severe or 

Extreme ozone nonattainment area are 

subject to penalty fees for emissions in 

excess of 80 percent of the source’s 

baseline amount of emissions if such an 

area fails to attain the NAAQS by its 

attainment date. The baseline amount 

for a source is based on its applicable 

emission limit(s) or actual emissions in 

the attainment year, whichever is lower. 

Section 182(d)(3) provides that by 

December 31, 2000, the state shall 

submit a 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 of the fee program 

SIP revision for areas designated as 

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90Nonattainment areas that were redesignated to 

attainment with an approved section 175A 

maintenance plan are referred to throughout this 

document as ‘‘maintenance’’ areas. CAA section 

175A(a) requires an area to develop a ten-year 

maintenance plan in order to be redesignated to 

attainment. CAA section 175A(b) requires an area 

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 upon redesignation. ‘‘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 of the Ozone and 

Carbon Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) On or After 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 be removed from 

the SIP completely, and need not be retained as a 

contingency measure after redesignation to 

attainment. (See discussion in text below.) 

92See section IV.G of this proposal for a 

discussion of the timing of the 1997 ozone NAAQS 

revocation and related anti-backsliding 

requirements. 

93While there was the possibility of an area 

meeting the 1997 ozone NAAQS while exceeding 

the 1-hour ozone NAAQS, in almost all instances 

the 1997 ozone NAAQS was the more stringent of 

the two. 

94See 40 CFR 51.900(f). 

nonattainment and classified as Severe 

or Extreme by operation of law in 1990 

for the 1-hour ozone NAAQS. We are 

proposing that states with areas initially 

classified as Severe or Extreme for the 

2008 ozone NAAQS would be required 

to submit a section 185 SIP no later than 

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 of the reclassification 

action. 

IV. What is the EPA proposing to 

address anti-backsliding issues related 

to transition from the 1997 ozone 

NAAQS to the 2008 ozone NAAQS? 

A. General Background 

This section sets forth background 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, 

and the requirements that will apply to 

these areas after revocation of the 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 is protection against 

degradation of air quality (e.g., the areas 

do not ‘‘backslide’’), (2) the areas 

continue to make progress toward 

attainment of the new, more stringent 

NAAQS, and (3) there is consistency 

with the ozone NAAQS implementation 

framework outlined in subpart 2 of Part 

D of the CAA. 

The CAA contains several provisions 

indicating Congressional intent not to 

allow a state to alter or remove 

provisions from an approved 

implementation plan if the revision 

would reduce air quality protection. 

Section 193 of the CAA prohibits 

modification of a control requirement in 

effect or required to be adopted as of 

November 15, 1990 (the date of 

enactment of the 1990 CAA 

Amendments), unless such a 

modification would ensure equivalent 

or greater emissions reductions. CAA 

section 172(e), which addresses 

relaxations of a NAAQS, requires 

protections for areas that have not 

attained a NAAQS prior to a relaxation, 

by requiring controls which are at least 

as stringent as the controls applicable in 

nonattainment areas prior to any such 

relaxation. Section 110(l) provides that 

a SIP revision cannot be approved if it 

will interfere with attainment or other 

CAA requirements. Under section 

175A(d), an area that is redesignated to 

attainment 90 may, with an appropriate 

showing, cease to implement a measure 

that is contained in the SIP at the time 

of redesignation, but only if that 

measure is retained as a contingency 

measure in the area’s maintenance 

plan.91

B. Background on Transition From the 

1-Hour to the 1997 Ozone NAAQS 

The following discussion addresses 

the transition policies the EPA adopted 

in the 2004 Phase 1 Rule for 

implementation of the 1997 ozone 

NAAQS; the legal challenges to that 

rule; and the resulting court decision in 

South Coast, which directed the EPA to 

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 of that standard. 

In its Phase 1 Rule, the EPA stated 

that the 1-hour ozone NAAQS would be 

revoked (i.e., no longer apply) 1 year 

after the effective date of initial area 

designations for the 1997 ozone 

NAAQS.92 The EPA also included antibacksliding requirements in the Phase 1 

Rule to address the transition between 

the two standards. 

In developing the Phase 1 Rule, 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 

when the EPA replaced the 1-hour 

ozone NAAQS with the 1997 ozone 

NAAQS.93 However, in section 172(e), 

Congress did address anti-backsliding 

requirements for when the EPA replaces 

a NAAQS with a less stringent NAAQS. 

In the absence of any express 

Congressional direction regarding antibacksliding where a NAAQS is replaced 

with a more stringent NAAQS, the EPA 

concluded that it was reasonable to look 

to the principles set forth in section 

172(e) for purposes of the transition 

from the 1-hour ozone NAAQS to the 

1997 ozone NAAQS. 

The Phase 1 Rule 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 of the CAA, 

as those 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 of the date that 

NAAQS was revoked, and that were also 

designated nonattainment for the 1997 

ozone NAAQS as of that same date. The 

1-hour ozone NAAQS requirements that 

the EPA retained as applicable 

requirements were the following: (1) 

RACT; (2) I/M programs; (3) Major 

source applicability cut-offs for 

purposes of RACT; (4) Rate of progress 

(ROP) reductions; (5) Stage II vapor 

recovery; (6) the Clean fuels fleet 

program under section 183(c)(4) of the 

CAA; (7) Clean fuels for boilers under 

section 182(e)(3) of the CAA; (8) 

Transportation control measures (TCMs) 

during heavy traffic hours as provided 

under section 182(e)(4) of the CAA; (9) 

Enhanced (ambient) monitoring under 

section 182(c)(1) of the CAA; (10) 

Transportation controls under section 

182(c)(5) of the CAA; (11) Vehicle miles 

traveled provisions under section 

182(d)(1)(A) of the CAA; (12) NOX

requirements under section 182(f) of the 

CAA; and (13) Attainment 

demonstration (or an alternative as 

provided for under 40 CFR section 

51.905(a)(1)(ii)). 

Under the Phase 1 Rule, those 1-hour 

nonattainment areas would remain 

subject to the anti-backsliding 

provisions until they were redesignated 

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95States may adjust control strategies in the SIP 

or maintenance plan if they can demonstrate that 

the revision will not interfere with attainment or 

maintenance of the NAAQS, or any other CAA 

requirements. See CAA sections 175A and 110(l). 

Section 175A(d) of the CAA requires that 

contingency measures in the maintenance plan 

include all measures in the area’s SIP before 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 in section 185. 

97Memorandum from Robert J. Meyers, Principal 

Deputy Administrator, Office of Air and Radiation, 

to EPA Regional Administrators, October 3, 2007, 

‘‘New Source Review (NSR) Aspects of the Decision 

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

Columbia on the Phase 1 Rule to Implement the 8- 

Hour Ozone National Ambient Air Quality 

Standards (NAAQS).’’ 

98Under the 1990 CAA Amendments, 

nonattainment areas had until November 15 of the 

indicated year to attain: Marginal—1993; 

Moderate—1996; Serious—1999; Severe–15—2005, 

Severe–17—2007, Extreme—2010. 

99While section 185 expressly mentions only 

VOC, section 182(f) extends the application of this 

provision to NOX, by providing that ‘‘plan 

provisions required under [subpart D] for major 

stationary sources of [VOC] shall also apply to 

major stationary sources . . . of [NOX].’’ 

100See section III.W of this proposal for a 

discussion of baseline amount. See also CAA 

section 185(b)(2) for the definition of baseline 

amount. 

101Memo from Stephen D. Page to Regional Air 

Division Directors, Jan. 5, 2010, ‘‘Guidance on 

Developing Fee Programs Required by Clean Air 

Act Section 185 for the 1-Hour Ozone NAAQS.’’ 

The EPA had previously issued guidance on 

baseline emissions under section 185. 

Memorandum from William T. Harnett, Director, 

Air Quality Policy Division, to EPA Regional Air 

Division Directors, March 21, 2008. 

to attainment for the 1997 ozone 

NAAQS. In order for an area to be 

redesignated for the 1997 ozone 

NAAQS, the state would need to 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 

SIP be shifted to the contingency 

measures portion of the SIP, based on a 

showing that active implementation of 

these measures was not necessary for 

attainment or maintenance of the 

NAAQS and that such a revision would 

be consistent with section 110(l). 40 

CFR 51.905(b). (Provisions in the 

contingency measures portion of the 

maintenance SIP are not actively 

implemented, but are measures the state 

may implement if the area were to 

violate the standard again.95) The court 

in South Coast did not vacate the EPA’s 

regulations concerning these thirteen 

‘‘applicable requirements.’’ 

The Phase 1 Rule also provided that 

three requirements applicable under the 

1-hour ozone NAAQS would no longer 

apply after revocation of that NAAQS: 

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 or to make reasonable further 

progress toward attainment of the 

standard. See 40 CFR 51.905(e).96 As a 

result of the South Coast challenge to 

the Phase 1 Rule, the court vacated the 

regulatory provisions which had stated 

that these three obligations would no 

longer apply for purposes of the 1-hour 

ozone NAAQS upon revocation of that 

standard. See South Coast, 900–904. 

The following sections discuss how the 

EPA has addressed these three 

provisions since the South Coast 

decision. 

C. Background on Nonattainment NSR 

On October 3, 2007, the EPA issued 

a memorandum indicating that the 

vacatur of the nonattainment NSR 

provisions in the Phase 1 Rule by the 

South Coast court meant that states with 

1-hour nonattainment areas that were 

subject to the 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 for the 

1997 ozone NAAQS, whichever is 

higher, as of the effective date of 

designation as nonattainment for the 

1997 ozone NAAQS.97

Thereafter, in a separate proposed 

rulemaking action in 2010, the EPA 

proposed revised regulations regarding 

treatment of major source thresholds 

and offset ratios for areas that were 

designated nonattainment for the 1-hour 

ozone NAAQS at the time of designation 

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 

1 Rule. 

The NSR Anti-Backsliding Proposed 

Rule further proposed that in situations 

where an area’s classification under the 

1-hour ozone NAAQS was higher than 

its classification under the 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 after the 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 on an alternate proposal that, 

if certain conditions were met, would 

allow a state to request removal of the 

1-hour nonattainment NSR 

requirements prior to redesignation of 

the area to attainment for the 1997 

ozone NAAQS. 

The EPA has not finalized the 

proposed NSR Anti-Backsliding Rule, 

and does not intend to do so. This 

proposal replaces and supersedes that 

proposal, and the final rule will address 

all outstanding NSR anti-backsliding 

issues for both the 1-hour and 1997 

ozone NAAQS. These include how 

ongoing obligations to implement antibacksliding requirements pertaining to 

NSR thresholds and offset ratios under 

the 1-hour and 1997 ozone NAAQS can 

be terminated, in light of revocation of 

the 1-hour ozone NAAQS and the 

impending revocation of the 1997 ozone 

NAAQS. 

D. Background on Section 185 Fees 

Section 185 of the CAA applies to 

areas classified as Severe or Extreme for 

the 1-hour ozone NAAQS. This section 

states that if such an area fails to attain 

the 1-hour ozone NAAQS by the 

applicable attainment deadline,98 each 

major stationary source of VOC and 

NOX 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.100 If 

the EPA determines that an area 

attained the standard as of the 

applicable attainment date, then the 

program does not take effect, even if the 

area subsequently violates that standard 

in a later year. 

On January 5, 2010, the EPA issued a 

memorandum 101 that addressed the 

obligation of states 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 

of SIPs that included an equivalent 

alternative program to the section 185 

fee program specified in the CAA under 

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102These nonattainment area contingency 

measures are not to be confused with maintenance 

plan contingency measures for areas redesignated to 

attainment under CAA section 175A(d). 

103The January 16, 2009, proposal (74 FR 2936) 

did not address when section 185 and NSR antibacksliding requirements would be removed, 

indicating that the EPA would issue a separate 

Federal Register notice providing guidance on 

those issues. As discussed elsewhere, the EPA 

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. 

104When the EPA revises a NAAQS, the prior 

NAAQS is not automatically revoked. Accordingly, 

both the 1997 ozone NAAQS and the more stringent 

2008 ozone NAAQS are active standards unless and 

until the EPA takes action to revoke the previous 

1997 ozone NAAQS. 

105 77 FR 30160, 30162, May 21, 2012. 

106The 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 would revoke that 

standard for all purposes for which it has not yet 

been revoked. 

107 77 FR 8197, 8205, February 14, 2012. 

the principles of section 172(e), 

including an ‘‘attainment alternative.’’ 

The EPA stated that it would use federal 

notice-and-comment rulemaking 

procedures and seek public comment on 

any future approval of such alternative 

plans. 

On March 5, 2010, the Natural 

Resources Defense Council (NRDC) 

petitioned the U.S. Court of Appeals for 

the District of Columbia Circuit to 

review the 2010 Stephen D. Page 

guidance memorandum on section 185 

fee programs. NRDC argued that the 

EPA violated the Administrative 

Procedures Act by issuing the guidance 

without notice-and-comment 

rulemaking, and that both the section 

185 alternate fee program and the 

‘‘attainment alternative’’ in the guidance 

violated the CAA. Despite the fact that 

the EPA stated that approval of an 

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 court thus 

vacated and remanded the EPA’s 

guidance. NRDC v. EPA, 643 F.3d 311 

(D.C. Cir. July 2011). 

Although the court vacated the 2010 

guidance memorandum on procedural 

grounds, it did not prohibit alternative 

programs, stating that ‘‘neither the 

statute nor our case law obviously 

precludes that alternative.’’ Id at 332. 

However, the court did express its 

disapproval of one alternative that was 

based in part on attainment of the 1997 

ozone NAAQS. The court concluded 

that it would be impermissible to 

terminate an area’s obligations under 

section 185 for the revoked 1-hour 

ozone NAAQS based solely on 

attainment of the 1997 ozone NAAQS. 

NRDC, 643 F.3d at 313. The EPA has 

taken into account the NRDC court’s 

decision in developing the EPA’s 

current approach to terminating 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 

of areas 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 have become due. 

In sum, the EPA’s proposed approach 

to section 185 anti-backsliding 

requirements for the 1997 ozone 

NAAQS (which will be described below 

in section IV.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 that for 1997 ozone 

NAAQS Severe and Extreme areas, no 

fees can be triggered until 2020 (the 

calendar year after 2019). 

E. Background on the Contingency 

Measures Requirement 

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 attain the 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 the EPA proposing regarding 

anti-backsliding requirements for the 1- 

hour and 1997 ozone NAAQS? 

We discuss here the EPA’s proposed 

anti-backsliding requirements for the 1- 

hour and the 1997 ozone NAAQS in the 

context of implementing the 2008 ozone 

NAAQS. With the 2008 ozone NAAQS, 

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 of the level 

with no change in the form of the 

standard, so it is unambiguous that the 

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 look therefore to the principles but 

not to the letter of CAA section 172(e). 

G. Timing of 1997 Ozone NAAQS 

Revocation and Related Antibacksliding Requirements 

This section discusses the revocation 

of the 1997 ozone NAAQS and the 

application of anti-backsliding 

requirements for that NAAQS and for 

the previously-revoked 1-hour NAAQS. 

The EPA is proposing to revoke the 

1997 ozone NAAQS on the date the 

final SIP Requirements Rule for the 

2008 ozone NAAQS is published in the 

Federal Register for all purposes other 

than transportation conformity, where it 

has already been revoked. See proposed 

revision to 40 CFR 50.10(c). 

The EPA believes it is appropriate to 

revoke rather than retain the 1997 

standard for all remaining purposes.104

The EPA has already taken final action 

revoking the 1997 primary and 

secondary ozone NAAQS for 

transportation conformity purposes 

only.105 106 The EPA explained its 

rationale for this action in the notice 

proposing revocation of the 1997 ozone 

NAAQS in the context of conformity.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 EPA relies on similar 

reasoning to support today’s proposal to 

revoke the 1997 ozone NAAQS for all 

purposes. 

At the time the EPA promulgated the 

2008 ozone NAAQS, the Administrator 

determined that the 1997 ozone NAAQS 

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108 73 FR 16436, March 27, 2008. 

109See 69 FR 23954. 

110South Coast Air Quality Management District 

v. EPA, 472 F.3d at 899. 

111 77 FR 30160, May 21, 2012. 

112As a practical matter, where a 2008 ozone 

nonattainment area is subject to anti-backsliding 

requirements for both the 1997 ozone NAAQS and 

the 1-hour ozone NAAQS, the anti-backsliding 

requirements that will apply to the area for NSR 

and Title V will be those corresponding to the 

higher of the two nonattainment classifications that 

the area possessed with regard to the 1997 and 1- 

hour ozone NAAQS at the time of revocation of the 

respective ozone NAAQS. 

was no longer sufficient to protect 

public health and the environment with 

an adequate margin of safety and that it 

was therefore necessary to establish a 

more stringent standard.108 In 

determining how to transition from the 

1997 ozone NAAQS to the more 

stringent 2008 ozone NAAQS, the EPA 

is now presented with the same 

situation that we faced with the 

transition from the 1-hour ozone 

NAAQS to the more stringent 1997 

ozone NAAQS. For that transition, our 

Phase 1 Rule for the 1997 ozone NAAQS 

revoked the 1-hour ozone NAAQS for 

all purposes.109 The Phase 1 Rule also 

established comprehensive antibacksliding provisions to ensure that the 

level of protection 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 that the permanent 

retention of two conflicting standards, 

differing only in the ozone 

concentrations they allow, could lead to 

unnecessary complexity and that it is 

inappropriate to retain the 1997 

standard of .08 ppm, which is less 

protective of human health than the 

2008 standard of .075 ppm. The EPA’s 

reason for establishing the new standard 

as requisite to protect public health was 

its conclusion that the 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 of the 

standard that EPA has determined is 

requisite to protect public health. 

Moreover, we believe that following the 

same course we followed in revoking 

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, 

in parallel with the 2008 ozone NAAQS, 

and continues to apply independently 

and by its own terms. Similarly, prior to 

its revocation, implementation of the 

1997 ozone NAAQS continues under 

the Phase 2 Rule (Subpart X, 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 the revocation of a standard the 

EPA no longer intends to take action to 

designate or to redesignate areas for that 

standard. The extent of continued 

implementation of a revoked standard 

derives from administration of antibacksliding requirements for that 

standard. After revocation of the 1997 

ozone NAAQS, and because the 1-hour 

ozone NAAQS has already been 

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 of the 1997 ozone 

NAAQS, the EPA proposes that antibacksliding provisions would apply to 

an area in accordance with its 

designations and, as applicable, its 

nonattainment classifications, for the 

1997 (and, if applicable, 1-hour) ozone 

NAAQS at the time of revocation of the 

1997 ozone NAAQS. The sections below 

discuss in detail the applicable 

requirements and how they would 

apply to areas with various designations 

and classifications for the 2008 and the 

revoked 1997 and 1-hour ozone 

NAAQS. 

After revocation of the 1997 standard, 

the designations for that standard are no 

longer in effect, and the sole 

designations that remain in effect are 

those for the 2008 ozone NAAQS. 

However, the EPA is retaining the 

listing of the designations of areas for 

the revoked 1997 ozone NAAQS in 40 

CFR part 81, for the sole purpose of 

identifying the anti-backsliding 

requirements that may apply to the 

areas as a result of these designations at 

the time of revocation. Accordingly, 

such references to historical 

designations for the revoked standard 

should not be viewed as current 

designations under CAA section 107. 

The Phase 1 Rule revoked the 1-hour 

ozone NAAQS for all purposes 1 year 

after the effective date of initial area 

designations for the 1997 ozone 

NAAQS. The South Coast court rejected 

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 all remaining purposes upon the 

publication of the final SIP 

Requirements Rule in the Federal 

Register. The EPA’s Classifications 

Rule 111 for the 2008 ozone NAAQS 

provides that the 1997 ozone NAAQS 

will be revoked 1 year after the effective 

date of initial area designations for the 

2008 ozone NAAQS for purposes of 

transportation conformity. Therefore, 

the 1997 ozone NAAQS will be revoked 

for all purposes upon the publication of 

the final SIP Requirements Rule in the 

Federal Register. However, the EPA is 

taking comment on alternate dates for 

revocation of the 1997 ozone NAAQS 

for all purposes other than 

transportation conformity. Alternate 

suggestions should explain the basis for 

the suggested date and be accompanied 

by technical and legal justifications. 

We are proposing, for purposes of the 

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 for the 

1997 ozone NAAQS prior to the 

effective date of revocation of that 

NAAQS, will be 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 the time 

the 1997 ozone NAAQS is revoked, we 

are proposing that those requirements 

will also remain applicable.112

The timing that EPA is proposing 

means that any 2008 ozone NAAQS 

nonattainment area that was previously 

a 1997 ozone NAAQS nonattainment 

area, but has been redesignated to 

attainment for the 1997 ozone NAAQS 

by the time of revocation of that 

NAAQS, will not be subject to the antibacksliding requirements for the 1997 or 

the 1-hour ozone NAAQS. This is 

because when an area has been 

redesignated to attainment for an ozone 

NAAQS while that NAAQS is in effect, 

it has fulfilled all applicable 

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113Although section 51.905(a) specified that the 

anti-backsliding requirements ‘‘attached’’ at the 

time of designation for the 1997 ozone NAAQS, 

areas were still able to redesignate to attainment for 

the 1-hour ozone NAAQS up to the date of 

revocation of that standard. 

114See, for example, the redesignations to 1-hour 

attainment for Phoenix (70 FR 34362, June 14, 2005) 

and Atlanta (70 FR 34660, June 15, 2005). 

115Under CAA section 202(a)(6), the EPA found 

that onboard refueling vapor recovery (ORVR) 

systems are in widespread use in the motor vehicle 

fleet and waived the section 182(b)(3) Stage II vapor 

recovery requirement for Serious and higher ozone 

nonattainment areas on May 16, 2012 (77 FR 

28772). Thus, in this proposal, the section 182(b)(3) 

Stage II requirement is omitted from the list of 

applicable requirements in 51.1100(o). 116 77 FR 28772, May 16, 2012. 

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 

of the 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 of that standard. 

This approach of establishing antibacksliding requirements is consistent 

with the EPA’s actual practice in the 

transition from the 1-hour to the 1997 

ozone NAAQS.113 It would not make 

sense to select a point prior to 

revocation of the 1997 ozone NAAQS 

for the anti-backsliding requirements 

associated with that standard to take 

effect, since prior to revocation of the 

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 of many areas with respect to 

designation and classification for the 

1997 ozone NAAQS has already 

changed since promulgation of the 2008 

ozone NAAQS. Thus, the EPA 

concludes that establishing the date of 

revocation of the 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 1 Rule. 

H. What are the applicable requirements 

for anti-backsliding purposes during the 

transition to the 2008 ozone NAAQS? 

The EPA in this rulemaking is 

proposing to establish subpart AA, 40 

CFR 51.1100 et seq., which will provide 

comprehensive anti-backsliding 

requirements for transition to the 2008 

ozone NAAQS. The EPA is proposing 

that, upon revocation of the 1997 ozone 

NAAQS, subpart X, 40 CFR 51.900 et 

seq., be effectively replaced by the 

proposed subpart AA. 

The proposed subpart AA addresses 

anti-backsliding requirements for both 

the previously revoked 1-hour ozone 

NAAQS and the 1997 ozone NAAQS in 

a consolidated and streamlined fashion. 

Areas designated nonattainment for the 

2008 ozone NAAQS and also designated 

nonattainment for either or both the 1- 

hour or 1997 ozone NAAQS at the time 

of revocation of the 1997 ozone NAAQS 

will be subject to section 51.1100(o). 

This provision specifies the list of 

‘‘applicable requirements’’ that will 

apply as anti-backsliding requirements 

for the transition from the 1997 ozone 

NAAQS to the 2008 ozone NAAQS. At 

the time of revocation of the 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),115 as well as 

the three anti-backsliding requirements 

that were included as a result of the 

South Coast decision: nonattainment 

NSR thresholds and offset ratios, 

nonattainment contingency measures 

for failure to attain by the applicable 

deadline or to meet RFP milestones, and 

section 185 fee program requirements. 

Since the South Coast decision, the EPA 

has been including these three 

requirements as anti-backsliding 

requirements for the 1-hour ozone 

NAAQS for the purpose of discharging 

its obligations to effectuate antibacksliding for that standard. Proposed 

section 51.1100(o) contains definitions 

of the 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 for purposes of 

RACT; (4) ROP and/or RFP reductions; 

(5) the Clean fuels fleet program under 

section 183(c)(4) of the CAA; (6) Clean 

fuels for boilers under section 182(e)(3) 

of the CAA; (7) Transportation control 

measures during heavy traffic hours as 

provided under section 182(e)(4) of the 

CAA; (8) Enhanced (ambient) 

monitoring under section 182(c)(1) of 

the CAA; (9) Transportation controls 

under section 182(c)(5) of the CAA; (10) 

Vehicle miles traveled provisions under 

section 182(d)(1)(A) of the CAA; (11) 

NOX requirements under section 182(f) 

of the CAA; (12) Attainment 

demonstrations; (13) Nonattainment 

contingency measures, (14) 

Nonattainment NSR requirements, and 

(15) Section 185 requirements for Severe 

and Extreme areas. 

A number of areas designated 

nonattainment for the 2008 ozone 

NAAQS may retain residual attainmentrelated SIP obligations for the 1997 

ozone NAAQS. It is 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. For areas 

with residual attainment-linked 

requirements for the revoked 1997 

ozone NAAQS, the EPA has taken into 

account the close relationship in timing 

and nature of attainment-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 EPA believes it is 

critical to avoid the duplication of effort 

that requiring separate SIP submissions 

for the 1997 and 2008 ozone NAAQS 

would create. The best course would be 

to integrate, wherever possible, the 

attainment planning requirements for 

the revoked and current ozone NAAQS. 

At this time of scarce resources the 

states and the EPA should strive to 

develop SIP submissions that achieve 

the goals of both the 1997 and the 2008 

ozone NAAQS. For example, 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 

as practicable may find it more efficient 

to develop plans and controls that 

achieve the goals of both the 1997 and 

the 2008 ozone NAAQS. The need for 

an approach similar to the one EPA took 

in the transition from the 1-hour ozone 

NAAQS to the 1997 ozone NAAQS is 

heightened as we move on to a third 

more stringent ozone NAAQS. In the 

Phase 1 Rule (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. At this time it is even more 

important than in the previous 

transition to coordinate efforts and 

avoid overlapping and redundant 

planning efforts. 

In this proposal, the EPA is also 

proposing a different approach to the 

Stage II Vapor Recovery requirement 

than was contained in 51.900(f)(5) in the 

Phase 1 Rule. In May 2012,116 the EPA 

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117See U.S. EPA Office of Air Quality Planning 

and Standards, ‘‘Guidance on Removing Stage II 

Gasoline Vapor Control Programs from State 

Implementation Plans and Assessing Comparable 

Measures,’’ August 7, 2012 (EPA–457/B–12–001). 

118Applies to areas designated either 

‘‘unclassifiable/attainment’’ (hereafter referred to as 

‘‘attainment’’ areas) or ‘‘unclassifiable,’’ as defined 

in CAA § 107(d)(1)(A). 

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 

submit programs 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 of this waiver, 

states may seek EPA approval to 

discontinue implementing an existing 

Stage II Control Program for GDFs in 

Serious and above ozone nonattainment 

areas, subject to (1) the submittal of an 

approvable demonstration showing that 

removing the program from the SIP 

would not interfere with attainment and 

maintenance of the NAAQS pursuant to 

section 110(l), 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, the EPA is proposing 

a revision to the existing antibacksliding rules and not including the 

Stage II vapor recovery program 

previously required by CAA section 

182(b)(3) in the list of measures that 

need to be retained for anti-backsliding 

purposes. Areas that already have Stage 

II programs in their SIPs could remove 

these programs if they make the 

appropriate showings as detailed in 

CAA sections 110(l) and 193, following 

EPA approval of such SIP revisions.117

These revisions would not need to move 

Stage II requirements to contingency 

measures when Stage II is 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) of the 

rule. 

1. NSR 

a. NSR for Areas Designated 

Nonattainment for the 2008 Ozone 

NAAQS 

In response to the South Coast case, 

the EPA has been requiring areas 

designated nonattainment for the 1997 

ozone NAAQS that are subject to antibacksliding requirements for the 1-hour 

NAAQS to implement the 

nonattainment NSR requirements that 

applied at the time of revocation of the 

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 its practice following the South 

Coast decision, the EPA is proposing 

that nonattainment NSR be added to the 

list of applicable 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 at the time 

of its revocation, but were subsequently 

redesignated to attainment for the 1997 

ozone NAAQS, would not be 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 the thresholds and 

offset ratios associated with the highest 

nonattainment classification. In the 

section on termination of antibacksliding requirements below, the 

EPA is proposing two options for lifting 

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 the NSR 

requirements for the 2008 ozone 

NAAQS. The EPA asks that commenters 

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 of nonattainment 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 to be 

implemented in areas initially 

designated attainment 118 for the 2008 

ozone NAAQS, but that were still 

designated nonattainment for the 1997 

ozone NAAQS as of the effective date of 

their attainment designations under the 

2008 ozone NAAQS. Some of the areas 

that have been 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 if the 

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 for the 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 of 40 

CFR 51.166(i)(2) and 52.21(i)(2) and, 

therefore, do not trigger the exemption 

from PSD requirements otherwise 

resulting from those provisions. 

While the EPA 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 

say that a nonattainment designation for 

a revoked standard does not trigger the 

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119 ‘‘It would make little sense for [nonattainment 

NSR] to be included in the post-attainment SIP, as 

the Clean Air Act . . . explicitly states that 

attainment area SIPs must include a PSD program.’’ 

120Under the 1997 ozone NAAQS, areas 

classified Severe-15 must attain by 2019, Severe-17 

areas by 2021, and Extreme areas by 2024. 

121One area, the Uintah Basin, UT, was 

designated as ‘‘unclassifiable,’’ and for purposes 

here would be treated like an area designated 

‘‘attainment.’’ 

122Section IV.J details the proposed routes to 

satisfy the anti-backsliding requirements listed in 

Table 2. 

123 If the nonattainment area was initially 

designated attainment for the 1997 ozone NAAQS 

or was redesignated to attainment (‘‘Maintenance’’) 

for the 1997 ozone NAAQS prior to the date of 

revocation of the 1997 NAAQS, then the area has 

already fulfilled any applicable 1-hour antibacksliding requirements. For ease of reference, we 

refer to these areas as ‘‘Maintenance’’ areas. 

exemption. To avoid confusion in the 

regulatory text and to clarify 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 it clear that a nonattainment 

designation for a revoked NAAQS, once 

the revocation becomes effective in an 

area, would not trigger the PSD 

exemption in those provisions and 

would not prevent application of PSD 

requirements for that pollutant. We 

request comment on whether such an 

amendment to 40 CFR 51.166(i)(2) and 

52.21(i)(2) is necessary or whether it is 

sufficient for the EPA to articulate the 

interpretation of these 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 EPA took a similar approach in 

rules governing the transition 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 to remain subject to 

Moderate area nonattainment NSR 

requirements. As explained more fully 

in the NSR Anti-Backsliding Proposed 

Rule, the EPA is proposing this 

approach because the EPA does not 

interpret the South Coast decision as 

requiring that NSR 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 Coast involved the substitution of 

one set of nonattainment NSR 

requirements for another, not the 

replacement of nonattainment 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 

Greenbaum v. EPA, 370 F.3d at 536.119

2. Section 185 Fee Programs 

States with nonattainment areas 

classified as Severe or Extreme for a 

prior NAAQS at the time that NAAQS 

is revoked remain subject to the 

requirements of section 185 with respect 

to that NAAQS. This approach is 

consistent with the July 2011 NRDC 

court decision on the EPA’s previouslyissued section 185 guidance. As 

previously discussed, EPA has been 

working with states to address the 

section 185 requirements for the 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 of NSR, 

the section below on termination of 

anti-backsliding requirements proposes 

two alternative approaches to 

terminating section 185 anti-backsliding 

requirements for both the 1-hour and 

1997 ozone NAAQS. Section IV.J goes 

into detail on the two proposed 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 final rulemaking 

(May 14, 2012, 77 FR 28424) set forth 

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 to that NAAQS. 

The EPA is proposing to adopt the same 

contingency requirements for failure to 

attain the 1997 ozone NAAQS by the 

applicable deadlines or to meet RFP 

milestones with respect to that NAAQS, 

based on the same rationale that the 

agency articulated in its May 14, 2012 

rulemaking. 

I. Application of Transition 

Requirements to Nonattainment and 

Attainment Areas 

1. Introduction 

This section discusses how the EPA’s 

proposed transition requirements will 

apply to various types of areas. The 

general principle is to apply transition 

requirements depending on how the 

area is designated—attainment or 

nonattainment—for the 2008 ozone 

NAAQS, while taking into account the 

area’s status with respect to prior 

standards.121 Table 2 provides a 

summary of the four transition 

scenarios, and the proposed 

requirements that would apply for each 

of those scenarios.122 The following 

sections describe each scenario in 

detail. In Table 2 and in the subsequent 

sections, for purposes of determining an 

area’s transition requirements, we first 

look to the area’s designation and 

classification for the 2008 ozone 

NAAQS. We then determine the area’s 

designation and classification status for 

the 1997 ozone NAAQS as of the 

effective date the 1997 ozone NAAQS is 

revoked. Finally, where appropriate, we 

determine whether anti-backsliding 

requirements for the 1-hour ozone 

NAAQS apply in the area and, if so, we 

determine the area’s designation and 

classification status for the 1-hour ozone 

NAAQS as of the date the 1-hour 

NAAQS was revoked.123 For ease of 

reference, throughout the remainder of 

this preamble, we refer to an area’s 

designation and classification for the 

1997 ozone NAAQS at the time of 

revocation of that NAAQS, 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 of that NAAQS (June 15, 

2005 for most areas), simply as the 

area’s ‘‘designation’’ and 

‘‘classification’’ for the 1-hour ozone 

NAAQS. 

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124This maintenance plan was required to cover 

a 10-year period starting at the effective date of 

designation and to include contingency measures. 

125Mobile source regulations that have begun to 

reduce emissions since 2004 include the Tier 2 

emissions standards for light-duty vehicles, the 

2007 emissions standards for heavy-duty on-road 

vehicles, the clean air non-road diesel rule that 

covers a wide variety of non-road equipment and 

engines, and the locomotive and marine rule that 

establishes more stringent emissions standards for 

TABLE 2—2008 OZONE NAAQS TRANSITION OBLIGATIONS

Designation for 2008 

NAAQS 

Designation for previous 

NAAQS (at time of 

revocation) 

Proposed NSR/PSD 

obligations Other proposed transition 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 

ozone NAAQS only; or 

nonattainment for 1997 

and 1-hour NAAQS.

Nonattainment NSR in effect until revocation of the 

1997 ozone NAAQS; 

then PSD applies.

—Area remains subject to measures to meet nonattainment requirements already in its adopted 

SIP. Removable only with a section 110(l) demonstration 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 

based on 2008 ozone 

NAAQS classification.

—Area remains subject to existing section 175A 

maintenance plan for the previous NAAQS and requirements already in the SIP, subject to revision 

consistent with sections 110(l) and 193. 

4. Nonattainment .................. Nonattainment for 1997 

ozone NAAQS only; or 

nonattainment for 1997 

and 1-hour ozone 

NAAQS.

Nonattainment NSR applies 

based on highest applicable classification.

—Area subject to all applicable anti-backsliding requirements for 1-hr and/or 1997 NAAQS. 

—Anti-backsliding obligations lifted when the area 

either is redesignated to attainment for the 2008 

ozone NAAQS, or the EPA approves a redesignation substitute for the revoked 1-hour or 1997 

NAAQS 

—EPA solicits comment on additional options for lifting anti-backsliding obligations. 

2. Requirements for Areas Designated 

Attainment for the 2008 Ozone NAAQS 

and (i) Maintenance for the 1997 Ozone 

NAAQS or (ii) Nonattainment for the 

1997 Ozone NAAQS 

In this section the EPA considers the 

requirements applicable after revocation 

of the 1997 ozone NAAQS, to (i) areas 

that are designated attainment for the 

2008 ozone NAAQS and attainment for 

the 1997 ozone NAAQS with an 

approved 175A maintenance plan 

(hereafter ‘‘maintenance for the 1997 

ozone NAAQS’’), as of the date of 

revocation of the 1997 ozone NAAQS, 

and to (ii) areas that are designated as 

attainment for the 2008 ozone NAAQS 

and nonattainment for the 1997 ozone 

NAAQS. The EPA is proposing 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 list of these areas. 

a. Background and Overview 

The Phase 1 Rule for implementation 

of the 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, that these areas 

submit, within 3 years of the effective 

date of designation 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 that have occurred since 2004, 

the EPA is now proposing as its 

preferred approach for an area 

designated attainment for the 2008 

ozone NAAQS and redesignated to 

attainment for the 1997 ozone NAAQS 

(as of revocation of the 1997 ozone 

NAAQS), that the area’s approved 175A 

maintenance plan will satisfy its 

maintenance plan obligation for the 

2008 ozone NAAQS under section 

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 (as of 

revocation of the 1997 ozone NAAQS), 

that the area’s approved PSD SIP will 

satisfy its maintenance plan obligation 

for the 2008 ozone NAAQS under 

section 110(a)(1). 

The EPA believes this is appropriate 

for several reasons. First, many of these 

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 of the 

provisions of any 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 

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engines used in locomotives and in marine 

applications. 126 It should be noted that transportation 

conformity requirements no longer apply in these 

areas after the effective date of the revocation of the 

1997 ozone NAAQS. (77 FR 30160, May 21, 2012). 

these areas have also reduced emissions 

in order to attain the 1997 and/or 2006 

PM2.5 NAAQS. These PM2.5-related 

emissions reductions also help reduce 

and limit growth in ozone precursor 

emissions. Some of these measures will 

produce large reductions during the 10- 

year period over which a maintenance 

plan could be required. Third, the EPA 

anticipates that it will complete the next 

review of the 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 in form 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(l) and 193.126 These 

sections prevent any SIP revisions that 

would increase emissions of any 

pollutant related to a NAAQS unless a 

demonstration of continued 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 is no possibility that an area 

attaining the 2008 ozone NAAQS could 

be violating the 1997 ozone NAAQS, 

which is unlike the relationship that 

existed between the 1-hour ozone 

NAAQS and the 1997 8-hour ozone 

NAAQS. Thus, the EPA believes that 

designation as attainment for the 2008 

ozone NAAQS should result in no 

additional new obligations beyond PSD 

for this large group of areas, regardless 

of their status for prior standards. 

As a result of these considerations, 

the EPA is proposing an approach more 

suited to areas designated attainment for 

the 2008 ozone NAAQS than the 

approach contained in the Phase 1 Rule. 

Below we describe our proposals 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 for the 

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 

(as of the date of revocation of the 1997 

ozone NAAQS), the EPA is proposing 

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 in this 

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 of these 

areas for all prior standards. Any further 

110(a)(1) maintenance plan requirement 

under the 2008 ozone NAAQS would be 

unnecessarily burdensome. No revision 

to the section 175A maintenance plans 

for these areas can be approved unless 

it complies with the anti-backsliding 

checks in CAA sections 110(l) and 193. 

Thus, the EPA believes strongly that 

there is no justification for additional 

maintenance plan burdens to be 

imposed on these areas solely because 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 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 its preferred 

approach that areas designated 

attainment for the 2008 ozone NAAQS 

and nonattainment for the 1997 ozone 

NAAQS (as of revocation of the 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 1 Rule. 

The EPA also proposes, in a departure 

from the Phase 1 Rule, that the 

approved PSD SIPs for these areas 

satisfy the obligation to submit an 

approvable maintenance plan for the 

2008 ozone NAAQS under section 

110(a)(1). The EPA’s rationale for this 

approach is as follows: areas designated 

attainment for the 2008 ozone NAAQS 

and nonattainment for the 1997 ozone 

NAAQS (as of revocation of the 1997 

ozone NAAQS) have already attained 

the most stringent existing standard. 

These areas thus have developed 

nonattainment SIPs that in combination 

with federal measures and emissions 

controls in upwind areas have produced 

sufficient emissions reductions to 

achieve the more protective 2008 ozone 

NAAQS. They remain subject to the 

1997 nonattainment area requirements 

already approved into the SIP, which 

can be revised only upon a showing that 

such revision complies with the antibacksliding checks in CAA sections 

110(l) and 193. At this time, and given 

the succession of NAAQS of increasing 

stringency that has occurred, the EPA 

believes that the burden of developing 

an approvable 110(a)(1) maintenance 

plan for the 2008 ozone NAAQS would 

outweigh any compensating benefit for 

an area that is already attaining that 

NAAQS and that is subject to prior 

nonattainment requirements which are 

already incorporated into the SIP. 

The EPA is proposing a second, and 

less preferred, alternative for areas 

designated attainment for the 2008 

ozone NAAQS and nonattainment for 

the 1997 ozone NAAQS as of revocation 

of the 1997 ozone NAAQS. Similar to 

the approach taken in the Phase 1 Rule, 

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 would be due 3 years after the 

effective date of designations for the 

2008 ozone NAAQS. The maintenance 

showing would contain a demonstration 

of continued maintenance of the 2008 

ozone NAAQS in the area for ten years 

from the effective date of the 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. If the EPA 

were to adopt this option, the EPA 

would provide guidance regarding the 

specific elements of the maintenance 

showing. The EPA seeks comment on 

this option. 

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127We do not include in these two groups any 

areas that were redesignated to attainment for the 

1997 ozone NAAQS prior to revocation of that 

NAAQS. In order to be redesignated for the 1997 

ozone NAAQS, the area had to satisfy all applicable 

anti-backsliding requirements for the 1-hour ozone 

NAAQS. Any 1997 ozone NAAQS nonattainment 

area that was designated nonattainment for the 1- 

hour ozone NAAQS at time of revocation of the 1- 

hour NAAQS had to meet applicable 1-hour ozone 

NAAQS anti-backsliding requirements in order to 

be redesignated to attainment for the 1997 ozone 

NAAQS. 

128The status of some areas listed in Table 1 with 

respect to the 1997 ozone NAAQS may change 

between today and the date that NAAQS is revoked. 

129 Depending on the area’s classification for the 

1997 ozone NAAQS and the SIP elements already 

approved, the area may still have outstanding 1997 

anti-backsliding submission requirements that are 

not suspended by 51.918 (e.g., nonattainment NSR, 

Subpart 2 RACT requirements). 

3. Areas Designated Nonattainment for 

the 2008 Ozone NAAQS 

In the next sections the EPA addresses 

the transition requirements for three 

distinct groups of areas designated 

nonattainment for the 2008 ozone 

NAAQS: those which are also 

designated nonattainment for the 1997 

ozone NAAQS as of the time of 

revocation of that NAAQS; those which 

are designated maintenance for the 1997 

ozone NAAQS as of the time of 

revocation of that NAAQS; and those 

which are also designated 

nonattainment for both the 1997 and the 

previously revoked 1-hour ozone 

NAAQS as of the time of revocation of 

the 1997 NAAQS. See Appendix D for 

a list of these areas. 

The EPA is proposing that areas 

designated nonattainment for the 2008 

ozone NAAQS and also designated 

nonattainment for the 1997 ozone 

NAAQS, or for both the 1997 and the 1- 

hour ozone NAAQS, be subject to antibacksliding provisions as interpreted by 

51.1105. In particular, we are proposing 

that these areas be subject to applicable 

requirements for any prior standard for 

which they remain designated 

nonattainment at the time of revocation 

of the 1997 ozone NAAQS.127 As was 

also the case in the proposed NSR AntiBacksliding Rule, 75 FR 51965, neither 

of the EPA’s current proposed 

approaches to allowing removal of NSR 

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 

a previous NAAQS was applied. The 

NSR regulations do not provide a 

mechanism for major NSR permit 

conditions to be removed from a permit 

or modified when a SIP is later revised 

so as to remove or change NSR 

thresholds and/or offset requirements 

for purposes of future permitting. 

Replacement or removal of NSR 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 

designated nonattainment for a prior 

ozone NAAQS (as of the revocation of 

the 1997 NAAQS) will be subject to 

applicable requirements for that prior 

NAAQS, as well as the pertinent 

requirements for the current 2008 ozone 

NAAQS. In addition, if a state seeks to 

revise any measure already approved 

into its SIP for any prior standard, the 

revision must comply with the antibacksliding checks in CAA sections 

110(l) and 193. 

a. Areas Designated Nonattainment for 

the 2008 Ozone NAAQS and 

Maintenance for the 1997 Ozone 

NAAQS 

The EPA is proposing that for these 

areas, the area’s approved section 175A 

maintenance plan for the revoked 1997 

ozone NAAQS would satisfy the 

obligation to submit a second 

approvable maintenance plan under 

section 175A for the revoked 1997 

ozone NAAQS. The EPA’s reasoning is 

as follows. All areas in this group are 

already subject to an approved section 

175A maintenance plan for the revoked 

1997 ozone NAAQS and have been 

redesignated to attainment for the 1997 

ozone NAAQS. As explained elsewhere, 

the approval of the redesignation and of 

the section 175A maintenance plan for 

the 1997 ozone NAAQS required the 

EPA to determine that the antibacksliding requirements of these areas 

for the 1-hour standard, as well as those 

requirements applicable for the 1997 

standard, have been met. Thus EPA’s 

approvals of the redesignation request 

and the maintenance plan for the 1997 

standard signify not only that all 

applicable requirements for the 1997 

ozone standard have been met, but also 

that all applicable anti-backsliding 

measures for the 1-hour standard have 

been adopted and approved into the 

SIP. No revision to the section 175A 

maintenance plans for these areas can 

be approved unless it complies with the 

anti-backsliding checks in CAA sections 

110(l) and 193. 

These areas are also designated 

nonattainment for the more stringent 

2008 ozone NAAQS and therefore are 

subject to nonattainment NSR and other 

nonattainment requirements for their 

classification under the more stringent 

2008 ozone NAAQS. Thus, the EPA 

believes strongly that there is no 

justification for a second 175A 

maintenance plan to be imposed on 

these areas solely because at one time 

they were designated nonattainment 

under the revoked 1997 ozone NAAQS. 

Since these areas were redesignated to 

attainment for the 1997 ozone NAAQS 

prior to its revocation, 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 

To better understand how the antibacksliding requirements will affect 

these areas, it is helpful to review which 

areas are included in this group and 

their status with respect to attainment of 

the 1997 ozone NAAQS. Table 1 in 

Appendix D lists the fifteen areas that 

are designated nonattainment for the 

2008 ozone NAAQS and which, at the 

time of proposal of this 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 that more than half 

of these areas have attained the 1997 

ozone NAAQS prior to the date of 

revocation of the 1997 ozone NAAQS 

pursuant to the EPA’s ‘‘Clean Data’’ 

regulation, 40 CFR 51.918, and 

anticipates that several of these will 

have been redesignated to maintenance 

for that standard. A determination 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 that two 

areas in this group are located in the 

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 to certain 

nonattainment requirements such as 

nonattainment NSR even if they 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 1 of 

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130See 40 CFR 51.905(a)(3), the comparable 

provision for transitions from the 1-hour NAAQS to 

the 1997 ozone NAAQS, which allows states to 

request that the 1-hour nonattainment NSR 

provisions be removed from the SIP for such areas. 

131This approach would not apply to areas 

located in the OTR and designated attainment, 

since the CAA requires these areas remain subject 

to Moderate nonattainment NSR requirements 

notwithstanding designation. 

Appendix D will be subject to antibacksliding requirements for the 1997 

ozone NAAQS, unless they are 

redesignated to attainment for that 

standard prior to its revocation. 

The EPA believes that Table 1 in 

Appendix D illustrates that many of the 

areas in this category will have already 

met the 1997 ozone NAAQS and will 

have been redesignated to attainment by 

the time it is revoked, and thus after 

revocation of that NAAQS, the number 

of areas with 1997 anti-backsliding 

requirements will be correspondingly 

reduced. For other areas which remain 

designated nonattainment for the 1997 

ozone NAAQS, under the EPA’s Clean 

Data Regulation, a determination of 

attainment suspends the obligation to 

submit certain attainment-related 

requirements. For those areas which 

have already incorporated measures into 

their approved SIPs that satisfy the 

nonattainment requirements for that 

standard, section 110(l) functions as an 

anti-backsliding check to require 

continued implementation of such 

measures unless revised in accordance 

with its provisions. 

The 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 2 in 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 half of these areas are located in 

either California (9) or Texas (2). The 

remaining 7 areas are located in the 

East. The EPA has already made final 

determinations that all 7 eastern areas 

(five large metropolitan areas and two 

smaller areas), have attained the 1-hour 

ozone NAAQS. A number of the eastern 

areas—including Washington, DC, 

Philadelphia and Boston—have met 

their attainment deadlines for both 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 

that, upon revocation of the 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 (to the extent those 

requirements have not been suspended 

by a Clean Data Determination), unless 

they have been redesignated to 

attainment for the 1997 ozone NAAQS 

prior to its revocation. Implementation 

of measures previously approved into a 

SIP for either the 1-hour ozone NAAQS 

or the 1997 ozone NAAQS must 

continue unless the SIP is revised in 

accordance with the anti-backsliding 

checks in CAA sections 110(l) 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(l) functions as an antibacksliding provision to assure that the 

state may not revise any previously 

approved SIP provision without a 

showing that the revision will not 

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 of revocation of the 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 from the 

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 for the 1997 

Ozone NAAQS 

In the case of areas designated 

attainment for the 2008 ozone NAAQS 

and nonattainment for the 1997 ozone 

NAAQS (as of revocation of the 1997 

ozone NAAQS), a state 131 may, upon 

revocation of the 1997 ozone NAAQS, 

request that any requirements for 

nonattainment NSR included in the SIP 

for that revoked NAAQS be removed. In 

place of nonattainment NSR, these areas 

would be required to implement PSD 

requirements after the revocation of the 

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 its preferred alternative that 

the SIP-approved PSD program that 

would apply to the area satisfies the 

maintenance plan obligation under CAA 

section 110(a)(1) for the 2008 ozone 

NAAQS; or as a less-preferred 

alternative, the EPA is proposing 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 (or will be) 

redesignated to attainment for the 1997 

ozone NAAQS prior to its revocation. 

Thus, they are subject to section 175A 

maintenance plans for the 1997 ozone 

NAAQS. Having attained and been 

redesignated to attainment with a 

maintenance plan for the 1997 ozone 

NAAQS assures that the EPA has 

reviewed the area’s approved 

maintenance SIP and has determined 

that it addresses all applicable antibacksliding requirements for both the 

1997 and 1-hour ozone NAAQS. The 

EPA believes that the 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 to integrate requirements from 

existing NAAQS with those of new 

NAAQS so as to prevent their 

interaction from draining resources 

rather than protecting air quality. The 

EPA will consider suggestions for 

mitigating the cumulative effect of antibacksliding requirements when they 

would frustrate, rather than further 

efforts to preserve and improve air 

quality. The EPA seeks ways to 

synthesize and reconcile antibacksliding obligations with current 

planning and control efforts, so as to 

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132Nonattainment NSR is not required to be 

retained in the SIP as a contingency measure. This 

is because for attainment areas, PSD replaces 

nonattainment NSR. 

133See 40 CFR 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 be removed from the SIP. 

134As explained in the text above, nonattainment 

NSR requirements can be removed from the SIP 

entirely. 

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 of the 1997 ozone NAAQS 

will be obligated to implement the 

applicable requirements set forth in 

51.1100(o) for the 1997 ozone NAAQS. 

If the area is also designated 

nonattainment for the 1-hour ozone 

NAAQS and subject to applicable 

requirements for that NAAQS at the 

time of revocation of the 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 (or were at the time 

of revocation) designated 

nonattainment, as well as any section 

185 requirements for areas classified 

Severe or Extreme at the time of 

revocation for a prior standard. 

J. Satisfaction of Anti-backsliding 

Requirements for an Area 

The EPA is proposing two acceptable 

procedures through which a state may 

demonstrate that it is no longer required 

to adopt any applicable requirements for 

an area which have not already been 

approved into the SIP for a revoked 

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(l) and 193 

(if applicable), it may shift to the 

contingency measures portion of the SIP 

requirements which are already 

contained in the SIP.132

Procedure 1: Redesignation to 

Attainment for the 2008 Ozone NAAQS 

The first of these procedures is formal 

redesignation of the area to attainment 

for the 2008 ozone NAAQS. This 

process is an extension of the approach 

EPA adopted in the Phase 1 Rule. 

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 

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 is redesignated and 

the requirement(s) for nonattainment 

NSR for the 2008 ozone NAAQS and for 

any prior ozone NAAQS cease to apply, 

the state may request that the 

corresponding NSR requirements be 

removed from the SIP rather than be 

retained as a maintenance plan 

contingency measure. This approach is 

consistent with the EPA’s longstanding 

interpretation of NSR requirements for 

areas that are redesignated to 

attainment.133 Redesignation 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 to the express terms 

of CAA section 185. 

For areas subject to anti-backsliding 

requirements for revoked standards, 

approval of redesignation to attainment 

for the 2008 ozone NAAQS signifies that 

the state has satisfied its obligations to 

adopt anti-backsliding requirements for 

the revoked standards. This same 

approach was used in the Phase 1 Rule 

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 of the 2008 

ozone NAAQS, which is the most 

stringent of the NAAQS. Therefore, 

upon redesignation to attainment and 

approval of its plan for maintenance of 

the 2008 ozone NAAQS, an area has 

satisfied its obligations to adopt antibacksliding requirements. All of the 

anti-backsliding measures that have 

been approved into the SIP must 

continue to be implemented unless or 

until the state can show that such 

implementation is not necessary for 

maintenance, consistent with section 

110(l) and section 193 if applicable. 

This showing may be submitted to the 

EPA at the same time as the 

maintenance plan, and may be approved 

by the EPA in a single action. Subject 

to this process, anti-backsliding 

requirements contained in the SIP could 

be shifted to the contingency measures 

portion of a section 175A maintenance 

plan, or, in limited circumstances 134

removed from the SIP. 

Procedure 2: Providing a Redesignation 

Substitute for Revoked NAAQS 

In addition to the redesignation of an 

area to attainment for the 2008 ozone 

NAAQS, the EPA is proposing 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 1 Rule has taught that the EPA 

should provide an additional 

mechanism to allow for satisfaction of 

anti-backsliding requirements for a 

revoked standard. 

Under the Phase 1 Rule, 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 is revoked, 

the only relief the Phase 1 Rule 

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 

of another avenue of relief created 

hardship and confusion, particularly 

with respect to terminating 1-hour 

ozone nonattainment NSR and section 

185 program fee requirements. 

As we confront the issue again, this 

time for areas which, in some cases, are 

subject to anti-backsliding requirements 

for two revoked ozone standards, the 

EPA now recognizes 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 and meet 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 that would otherwise 

have qualified for redesignation to 

attainment for the 1997 or 1-hour ozone 

NAAQS, were it not for their revocation, 

would have to wait to be relieved of 

outdated requirements until they also 

qualify for redesignation to attainment 

for the more stringent 2008 ozone 

NAAQS. The EPA believes that, under 

any view of anti-backsliding for a 

revoked standard, it should not mean 

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135Likewise to the extent a SIP revision seeking 

to remove anti-backsliding measures modifies 

control requirements subject to section 193, the 

revision would also have to satisfy the requirements 

of that provision. 

136The EPA initially issued the Clean Data Policy 

in 1995, ‘‘Reasonable Further Progress, Attainment 

Demonstration, and Related Requirements for 

Ozone Nonattainment Areas Meeting the Ozone 

National Ambient Air Quality Standard.’’ 

Continued 

imposing more onerous terms than 

those that would apply if the standard 

had not been revoked. 

Therefore, in addition to formal 

redesignation to attainment for the 2008 

ozone NAAQS, the EPA is proposing 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 would be 

eligible to qualify for satisfaction of 

applicable requirements for the revoked 

1-hour or 1997 ozone NAAQS by 

submitting a showing that functions as 

a substitute for redesignation to 

attainment for that revoked standard, 

and insures that the substance of the 

redesignation requirements are met. For 

a revoked standard, this second 

mechanism would serve as a successor 

to redesignation to attainment, for 

which the area would have been eligible 

were it not 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 

if it were still possible would have 

clearly relieved the area of this 

obligation with respect to that standard. 

For an area to show that it 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 of the 

showing would have the same effect on 

the area’s nonattainment antibacksliding obligations as would a 

redesignation to attainment for the 

revoked standard. 

The EPA proposes that the showing, 

based on the CAA’s criteria for 

redesignation to attainment (CAA 

section 107(d)(3)(E)), would include: 

Attainment of the relevant revoked 1- 

hour or 1997 ozone NAAQS; a showing 

that attainment was due to permanent 

and enforceable emissions reductions; 

and a demonstration that the area can 

continue to maintain the standard over 

the next 10 years. Redesignation criteria 

in section 107(d)(3)(E)(ii) and (v) would 

be met by the existing approved SIP, 

under which the area has attained the 

revoked standard, in the context of (and 

reinforced by) the requirements for the 

new 2008 ozone NAAQS. We believe 

that, for a revoked standard, this 

approach results in a notice-andcomment process that fulfills the 

function of redesignation to attainment 

for the purpose of satisfying 

requirements for anti-backsliding 

requirements for a revoked standard. 

See CAA 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 

EPA believes that requiring 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 of these 

SIP revisions takes time, and can 

impose costs to both industry and the 

public. Under these circumstances, it is 

consistent with the requirements of antibacksliding for areas under pressure 

from multiple environmental 

obligations to be relieved of procedural 

burdens once the area has attained the 

revoked standard. As in the case of a 

redesignation to attainment for the 2008 

ozone NAAQS, at the time of submitting 

a redesignation substitute or at any time 

thereafter, a state may request to revise 

its SIP so as to cease implementing a 

specific nonattainment SIP requirement. 

However, this request could not be 

granted, and the SIP revised, until the 

EPA approves the redesignation 

substitute and a demonstration that the 

SIP revision meets the requirements of 

section 110(l). The EPA is not providing 

this mechanism for the purpose of 

allowing areas to avoid requirements 

needed for attainment and maintenance 

of the NAAQS. The showings required, 

the provisions of section 110(l), and the 

fact that the area remains subject to the 

more stringent 2008 ozone NAAQS, 

assure that is not the case. It is, 

however, important to relieve areas of 

requirements that are no longer 

necessary, or that can be replaced by 

other forms of protection that might 

better meet local needs and 

circumstances. 

The EPA notes that this proposed 

option, a redesignation substitute 

procedure for the revoked 1-hour or 

1997 ozone NAAQS, is more stringent 

than an option previously adopted in 

the EPA’s Phase 1 Rule (69 FR 23982). 

It requires a more extensive showing 

than mere attainment of the revoked 

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 is proposing a 

mechanism that demands more than a 

determination of attainment of the prior 

standard, and calls 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 meet the new more stringent 

standard. In this context, the proposed 

option is clearly sufficient for its limited 

anti-backsliding purpose: It recognizes 

and supports the area’s progress in 

having attained the prior standard due 

to permanent and enforceable emissions 

reductions, and reinforces continued 

attainment by calling for a 

demonstration that the area can 

maintain the revoked standard. 

Under both of the EPA’s proposed 

procedures, a state seeking to revise its 

SIP to remove anti-backsliding measures 

from the active portion of its SIP must 

demonstrate, pursuant to section 110(l), 

that such revision would not interfere 

with attainment or maintenance of any 

applicable NAAQS, or any other 

requirement of the CAA.135

The EPA seeks comments on its 

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 tied to 

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 is proposing, 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 that commenters 

provide supporting legal rationales for 

any additional option, taking into 

account the D.C. Circuit’s decision in 

South Coast. 

K. How will the EPA’s determination of 

attainment (‘‘Clean Data’’) regulation 

apply for purposes of the antibacksliding requirements? 

The EPA, in its Phase 1 Rule, codified 

its long-standing interpretation under 

the Clean Data Policy in 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 of that NAAQS.136 The EPA 

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Memorandum from John S. Seitz, Director, Office of 

Air Quality Planning and Standards, May 10, 1995. 

For purposes of the 1997 ozone NAAQS, we 

codified that policy at 40 CFR 51.918. This codified 

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

EPA 571 F.3d 1245 (DC 2009). 

137The EPA notes that sources can become 

subject to title V permitting for other reasons, and 

nothing in this discussion is intended to suggest 

that changes in an area’s classification would affect 

those other provisions of title V. Accordingly, 

sources subject to title V under other provisions 

would remain subject to title V for those 

independent reasons. 

138 It should be noted that, pursuant to CAA 

section 503(a), a source is subject to a permit 

program on the later of the date that it becomes a 

major source and the effective date of a permit 

program applicable to the source. Thus, if a 

permitting authority with an approved title V 

program lacks any authority to permit certain 

sources that are major sources subject to title V as 

a result of ozone precursor emissions and an area 

classification for ozone that has a major source 

threshold lower than 100 tpy (e.g., ‘‘Serious’’) then 

there is no title V permit program ‘‘applicable to the 

source’’ and those sources have no obligation to 

apply for a title V permit until after such time as 

a permit program becomes applicable to them. The 

EPA will work with States to ensure that all 

approved title V programs are adequate under the 

CAA. 

139 It should be noted that the major source 

threshold associated with an area’s 1-hour ozone 

NAAQS classification may be the applicable 

threshold for at least some purposes where antibacksliding requirements for the 1-hour ozone 

NAAQS apply in the area. 

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 of 

the Clean Data Policy and to consolidate 

in one regulation a comprehensive 

provision applicable to determinations 

of attainment for the current and former 

ozone NAAQS, the EPA proposes, after 

revocation of the 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 of the 1997 ozone 

NAAQS, this section would be 

applicable to determinations of 

attainment for all ozone NAAQS: the 

2008, 1997 and the already revoked 1- 

hour ozone NAAQS. If section 51.1118 

is finalized, the EPA’s long-standing 

Clean Data Policy, which has been 

upheld by the D.C. Circuit and all other 

courts that have considered it, will be 

embodied in a regulation applicable, 

after revocation of the 1997 ozone 

NAAQS, for the purpose of all existing 

and prior 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. For a Severe or 

Extreme area, a section 185 fee program 

is by its express terms linked to an 

attainment demonstration; therefore 

suspension of the obligation to submit 

the attainment demonstration also 

suspends the obligation to submit the 

fee program which is part of the 

attainment demonstration (provided 

that the EPA has not already determined 

that the area failed to attain by its 

attainment deadline). The EPA notes 

that a determination of attainment 

would not, however, suspend 

obligations to submit NSR, subpart 2 

RACT or emission inventories under 

section 182(a)(1). 

L. What is the relationship between 

implementation of the 2008 ozone 

NAAQS and the CAA title V permits 

program? 

We are proposing, and soliciting 

comment on, two alternative approaches 

for implementing the title V permit 

program for sources in areas designated 

nonattainment for the 2008 ozone 

NAAQS and subject to anti-backsliding 

requirements for a prior ozone NAAQS. 

One of the ways a source can become 

subject to title V is as a ‘‘major source.’’ 

See CAA section 502(a); 40 CFR 70.3; 

71.3. Furthermore, the definition of 

‘‘major source’’ for purposes of title V 

includes, but is not limited to, a ‘‘major 

stationary source as defined . . . in part 

D’’ of title I.137 See CAA 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 of a relevant pollutant) 

can result in changes in title V 

applicability for a source.138

Between the effective date of area 

classifications for the 2008 ozone 

NAAQS and the revocation date of the 

1997 ozone NAAQS, the major source 

thresholds for both the 1997 ozone 

NAAQS classifications and the 2008 

ozone NAAQS classifications are in 

effect under part D of title I,139 and 

therefore under title V as well. However, 

after revocation of the 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 of title 

V. 

As discussed below, the EPA is coproposing and soliciting comments on 

the following two alternative 

approaches for determining whether a 

source is a ‘‘major stationary source as 

defined in . . . part D’’ for purposes of 

title V after the revocation of the 1997 

ozone NAAQS: (1) The major source 

threshold for title V in an area is the 

same as the major source threshold for 

purposes of requirements such as NSR 

and RACT (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 

extent that 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 on the 

area’s classification for the 2008 ozone 

NAAQS. 

In the Phase 2 Rule for implementing 

the 1997 ozone NAAQS, the EPA 

discussed, in response to comments, its 

approach to implementing title V during 

the transition to implementation of the 

1997 ozone NAAQS. See 70 FR 71689– 

71691. Specifically, the EPA recognized 

that the Phase 1 Implementation Rule 

retained the major source applicability 

cut-offs associated with the prior 1-hour 

ozone NAAQS for purposes of RACT as 

an anti-backsliding requirement. In 

other words, an area classified as 

Moderate for the 1997 ozone NAAQS, 

but Serious for the 1-hour ozone 

NAAQS, would be treated as a Serious 

area and required to apply major source 

RACT to sources above the major source 

threshold for Serious areas (i.e., 50 tpy 

or more of VOC or NOX). In the Phase 

2 Rule, the EPA concluded that the antibacksliding provisions of the Phase 1 

Implementation Rule were not relevant 

to the definition of major source for 

purposes of title V. 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 the EPA’s promulgation of 

the Phase 2 Rule, the U.S. Court of 

Appeals for the D.C. Circuit issued its 

ruling on challenges to the Phase 1 Rule, 

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 Coast Air 

Quality Management District v. 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 

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140 77 FR 30088, May 21, 2012. 

applicable to areas under their 

classifications for the 2008 NAAQS), but 

also includes the requirement for these 

areas to continue to implement NSR 

using the major source thresholds that 

applied under the 1997 ozone NAAQS 

or the 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 light of the D.C. Circuit’s 

decision in South Coast, and the current 

approach of this proposed rule to 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 title V 

applicability during the transition to the 

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 should be 

the same as the major source thresholds 

applicable for purposes of other 

requirements such as RACT and NSR; 

and (2) major source thresholds for title 

V depend solely on the area’s 

classification for the 2008 ozone 

NAAQS. 

In particular, the EPA solicits 

comments on whether title V should (or 

should not) be considered a’’control,’’ 

within the meaning of section 172(e) in 

light of the fact that title V generally 

does not impose new substantive air 

quality control requirements but is 

intended to assure compliance with all 

such existing requirements. The EPA 

also solicits comments on the 

consistency of the two proposed 

approaches with the language and 

purposes of the Act, in light of the major 

source thresholds under the revoked 

standard being retained for 

requirements such as RACT and NSR. 

The EPA generally solicits comment on 

other legal or policy issues relevant 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 final rule. As part 

of the proposal to retain major source 

applicability thresholds for the 1997 

and/or 1-hour classifications, the EPA is 

also proposing to make minor 

conforming amendments to the 

definition of ‘‘major source’’ in 40 CFR 

70.2 and 71.2 by inserting after each 

occurrence of the 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 of title 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, would be necessary, if the 

EPA concluded that the thresholds 

under the 1997 and/or 1-hour 

classifications should be retained for 

purposes of title V. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the OMB 

under the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. The Information 

Collection Request (ICR) document 

prepared by the EPA has been 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 of the SIP Requirements Rule—in 

conjunction with the rule on other 

aspects of implementation—is to 

provide certainty to states regarding 

their planning obligations such that 

states may begin SIP development. For 

purposes of analysis of the estimated 

paperwork burden, the EPA assumed 

46 140 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 

implements CAA subsections 172(c)(1) 

182(b)(2),(c),(d) and (e). 

States should already have 

information from emission sources, as 

facilities should have provided this 

information to meet 1-hour and 1997 

ozone NAAQS SIP requirements, 

operating permits and/or emissions 

reporting requirements. Such 

information does not generally reveal 

the details of production processes. But, 

to the extent it may, confidential 

business information for the affected 

facilities is protected. Specifically, 

submissions of emissions and control 

efficiency information that is 

confidential, proprietary and trade 

secret is protected from disclosure 

under the requirements of subsections 

503(e) and 114(c) of the CAA. 

The annual burden for this 

information collection averaged over the 

first 3 years of this ICR is estimated to 

be a total of 120,000 labor hours per 

year at an annual labor cost of $2.4 

million (present value) over the 3-year 

period or approximately $91,000 per 

state for the 26 state respondents, 

including the District of Columbia. The 

average annual reporting burden is 690 

hours per response, with approximately 

2 responses per state for 58 state 

respondents. There are no capital or 

operating and maintenance costs 

associated with the proposed rule 

requirements. Burden is defined at 5 

CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the agency’s need for 

this information, the accuracy of the 

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, under Docket 

ID number EPA–HQ–OAR–2010–0885. 

Commenters should submit any 

comments related to the ICR to both the 

EPA and OMB. See the ADDRESSES

section at the beginning of this notice 

for where to submit comments to the 

EPA. Send comments to OMB at the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, 725 17th Street NW., 

Washington, DC 20503, Attention: Desk 

Office for EPA. Since OMB is required 

to make a decision concerning the ICR 

between 30 and 60 days after June 6, 

2013, a comment to OMB is best assured 

of having its full effect if OMB receives 

it by July 8, 2013. The final rule will 

respond to any OMB or public 

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34226 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice and 

comment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined in the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201;) (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements directly on 

small entities. Entities potentially 

affected directly by this proposal 

include state, local and tribal 

governments and none of these 

governments are small governments. 

Other types of small entities are not 

directly subject to the requirements of 

this rule because this action only 

addresses 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 of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandate under the provisions of title II 

of the Unfunded Mandates Reform Act 

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

state, local 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 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of the 

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 to implement the 2008 

ozone NAAQS; in this rule, the EPA is 

merely explaining those requirements. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, 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, if made 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 of Executive Order 13132 

and consistent with the EPA policy 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 to meet with organizations 

representing state and local officials 

during the comment period for this 

action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian 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 of power 

and responsibilities between the federal 

government and Indian tribes. The CAA 

and the Tribal Air Rule establish the 

relationship of the federal government 

and tribes in developing plans to attain 

the NAAQS, and these revisions to the 

regulations do nothing to modify that 

relationship. Thus, Executive Order 

13175 does not apply to this action. 

Although Executive Order 13175 does 

not apply to 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 Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. These 

proposed revisions address whether a 

SIP will be adequate to attain and 

maintain the NAAQS and will meet the 

obligations of the CAA. The NAAQS are 

promulgated to protect the health and 

welfare of sensitive population, 

including children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, section 12(d) (15 U.S.C. 272 note) 

directs the EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs the 

EPA to provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the EPA is not considering the use of 

any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 34227 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The proposed 

revisions to the regulations would, if 

promulgated, revise the substantive 

requirements for SIPs to attain the 

NAAQS, which are designed to protect 

all segments of the general populations. 

As such, they do not adversely affect the 

health or safety of minority or lowincome populations and are designed to 

protect and enhance the health and 

safety of these and other populations. 

K. Determination Under Section 307(d) 

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

307(d)(1)(V) of the 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 of Terms and Acronyms 

ACT Alternative Control Techniques 

(document) 

AERR Air Emissions Reporting 

Requirements Rule 

BACT Best Available Control Technology 

CAA Clean Air Act 

CAAAC Clean Air Act Advisory Committee 

CAIR Clean Air Interstate Rule 

CERR Consolidated Emissions Reporting 

Rule 

CFR Code of Federal Regulations 

CO Carbon Monoxide 

CSAPR Cross-State Air Pollution Rule 

CTG Control Technique Guideline 

DOT Department of Transportation 

DV Design Value 

EMFAC EMissions FACtors (a mobile 

emissions model) 

ESRP Emissions Statement Reporting 

Program 

EGU Electricity Generating Unit 

EO Executive Order 

EPA Environmental Protection Agency 

FIP Federal Implementation Plan 

GDF Gasoline dispensing facilities 

HEDD High Electric Demand Day 

ICR Information Collection Requirement 

I/M Inspection and Maintenance (i.e., smog 

check) 

km Kilometers 

LAER Lowest Achievable Emission Rate 

MACT Maximum Achievable Control 

Technology 

MCR Mid-course Review 

MPO Metropolitan Planning Organization 

NAAQS National Ambient Air Quality 

Standards 

NOX Nitrogen Oxides 

NPRM Notice of Proposed Rulemaking 

NSR New Source Review 

NTTAA National Technology Transfer and 

Advancement Act of 1995 

OMB Office of Management and Budget 

OTR Ozone Transport Region 

ORVR Onboard refueling vapor recovery 

PM Particulate Matter 

PM2.5 Fine Particulate Matter 

ppb Parts per Billion 

ppm Parts per Million 

PSD Prevention of Significant Deterioration 

RACM Reasonably Available Control 

Measures 

RACT Reasonably Available Control 

Technology 

RFA Regulatory Flexibility Act 

RFG Reformulated Gasoline 

RFP Reasonable Further Progress 

ROP Rate of Progress 

RPO Regional Planning Organization 

SBA Small Business Administration 

SIP State Implementation Plan 

TAR Tribal Authority Rule 

TAS Treatment in the Same Manner as a 

State (‘‘Treatment as State’’) 

TIP Tribal Implementation Plan; also 

Transportation Improvement Program 

(depending on context) 

tpd Tons Per Day 

tpy Tons Per Year 

TSP Total Suspended Particulate 

UMRA Unfunded Mandates Reform Act of 

1995 

VCS Voluntary Consensus Standards 

VOC Volatile Organic Compound 

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 .............. 06/02/2003 ................. Proposed Rule to Implement the 8-Hour 

Ozone National Ambient Air Quality Standards (MR).

Proposed Rulemaking 

68 FR 46536 .............. 08/06/2003 ................. Draft Regulatory Text for Proposed Rule to 

Implement the 8-Hour Ozone National Ambient Air Quality Standards (OT).

Notice of Availability .. Draft regulatory text. 

68 FR 60054 .............. 10/21/2003 ................. Proposed Rule to Implement the 8-Hour 

Ozone National Ambient Air Quality Standards (OT).

Reopening of public 

comment period.

Classification system. 

69 FR 23858 .............. 04/30/2004 ................. 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 ...................

69 FR 23951 .............. 04/30/2004 ................. Final Rule to Implement the 8-Hour Ozone 

National Ambient Air Quality Standards— 

Phase 1 (MR).

Final Rule ................... Classification; Revocation of 1-hour 

std, anti-backsliding. 

69 FR 35526 .............. 06/25/2004 ................. Revision to the Preamble of the Final Rule to 

Implement the 8-Hour Ozone National Ambient Air Quality Standards—Phase 1; 

Correction (CO).

Final rule; correction .. Filing of petitions for 

review. 

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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 ................. Implementation of the 8-Hour Ozone National Ambient Air Quality Standards— 

Phase 1: Reconsideration (RE).

Proposed rule; notice 

of public hearing.

Waiver from anti-backsliding of 1-hour 

ozone Sec. 185 

penalty fees and 

contingency measures; listing of 1- 

hour attainment 

demos as applicable requirement. 

70 FR 17018 .............. 04/04/2005 ................. Nonattainment Major New Source Review 

Implementation Under 8-Hour Ozone National Ambient Air Quality Standards: Reconsideration (RE).

Proposed rule; notice 

of public hearing.

NSR under 8-hour 

NAAQS. 

70 FR 30592 .............. 05/26/2005 ................. Implementation of the 8-Hour Ozone National Ambient Air Quality Standards— 

Phase 1: Reconsideration (RE).

Final rule .................... Waiver from Antibacksliding of 1- 

hour ozone Sec. 

185 penalty fees 

and contingency 

measures; listing of 

1-hour attainment 

demos as applicable requirement. 

70 FR 39413 .............. 07/08/2005 ................. Nonattainment Major New Source Review 

Implementation Under 8-Hour Ozone National Ambient Air Quality Standards: Reconsideration (RE).

Final rule; notice of 

final action on reconsideration.

NSR under 8-hour 

NAAQS. 

70 FR 44470 .............. 08/03/2005 ................. Identification of Ozone Areas for Which the 

1-Hour Standard Has Been Revoked and 

Technical Correction to Phase 1 Rule (RE).

Final Rule ................... Part 81 change to reflect revocation of 1- 

hour standard; correction to 40 CFR 

51.905(c). 

70 FR 71612 .............. 11/29/2005 ................. Final Rule To Implement the 8-Hour Ozone 

National Ambient Air Quality Standards— 

Phase 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).

Final Rule ................... All other 8-hour ozone 

SIP requirements, 

including attainment 

demo, RFP, RACT/ 

RACM. 

71 FR 15098 .............. 03/27/2006 ................. Implementation of the 8-Hour Ozone National Ambient Air Quality Standards— 

Phase 1: Reconsideration (RE).

Proposed rule; notice 

of public hearing; 

reopening comment 

period.

Overwhelming transport classification. 

71 FR 58498 .............. 10/04/2006 ................. Final Rule To Implement the 8-Hour Ozone 

National Ambient Air Quality Standards— 

Phase 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).

Final rule; correction .. Corrections to methods for calculating 

RFP targets. 

71 FR 75902 .............. 12/19/2006 ................. Phase 2 of the Final Rule To Implement the 

8-Hour Ozone National Ambient Air Quality Standards—Notice of Reconsideration 

(RE).

Proposed Rule ........... CAIR/RACT issue & 

two NSR issues. 

72 FR 31727 .............. 06/08/2007 ................. Phase 2 of the Final Rule To Implement the 

8-Hour Ozone National Ambient Air Quality Standards—Notice of Reconsideration 

(RE).

Final notice of reconsideration.CAIR/RACT issue & 

two NSR issues. 

73 FR 42294 .............. 07/21/2008 ................. 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 ........... Phase 2 rule addressing partial vacatur 

on RFP Credit from 

outside nonattainment area. 

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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 34229 

1These methods assume the use of EPA’s on-road 

motor vehicle emissions model in all states other 

than California. All of the methods given here 

require the user to turn off all post-1990 CAA 

measures as part of the calculation. In EPA’s current 

motor vehicle emissions model, MOVES, this is 

accomplished by selecting ‘‘Rate of Progress’’ in the 

‘‘Strategies’’ section of the MOVES Navigation 

Panel. This is described in the MOVES2010 User’s 

Guide and in the MOVES Technical Guidance (both 

found at www.epa.gov/otaq/models/moves/ 

index.htm). Users of future versions of EPA’s motor 

vehicle emissions model should consult the 

appropriate User’s Guide for the version of the 

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 in that model and in future 

versions. 

2These sections of the Clean Air Act list four 

types of measures that are not creditable in these 

calculations: motor vehicle exhaust or evaporative 

standards promulgated by January 1, 1990; certain 

fuel RVP requirements 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 in this appendix address the 

first two types of non-creditable reductions. 

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 ................ 01/16/2009 ................. 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.

Proposed Rule ........... Phase 1 Rule—response to vacatur— 

Subpart 1 areas, 1- 

hour contingency 

measures, rule text 

revision on 1-hour 

Anti-backsliding exemptions. 

74 FR 34525 .............. 07/16/2009 ................. Ambient Ozone Monitoring Regulations: Revisions to Network Design Requirements.Proposed Rule ........... Proposing to modify 

monitoring requirements and extend 

the length of the required ozone monitoring season in 

some states. 

74 FR 40074 .............. 08/11/2009 ................. 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.

Final Rule ................... Phase 2 rule addressing partial vacatur 

on RFP Credit from 

outside nonattainment area. 

75 FR 51960 .............. 08/24/2010 ................. 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.

Proposed Rule ........... Proposing to address 

New Source Review 

anti-backsliding requirements for the 

revoked 1-hour 

ozone NAAQS. 

75 FR 80420 .............. 12/22/2010 ................. Reasonable Further Progress Requirements 

for the 1997 8-Hour Ozone National Ambient Air Quality Standards.

Proposed Rule ........... 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. 

76 FR 41731 .............. 07/15/2011 ................. Air Quality: Widespread Use for Onboard 

Refueling Vapor Recovery and Stage II 

Waiver.

Proposed Rule ........... 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 C to Preamble Methods To 

Account for Non-Creditable Reductions 

When Calculating RFP Targets for the 

2008 Ozone NAAQS 

The following methods properly account 

for the non-creditable emissions reductions 

when calculating RFP targets.1 They are 

consistent with requirements of sections 

182(b)(1)(C) and (D) and 182(c)(2)(B) of the 

CAA.2

(1) Method 1 applies to areas (or portions 

thereof) that must meet a 15 percent VOC 

reduction requirement without NOX

substitution: 

(A) Estimate the actual anthropogenic 

baseline year VOC inventory for the baseline 

year with all control programs that were in 

the baseline year. 

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3NOX Substitution Guidance (December 15, 1993; 

available at http://www.epa.gov/ttn/oarpg/ 

t1pgm.html). 

4NOX Substitution Guidance (December 15, 1993; 

available at http://www.epa.gov/ttn/oarpg/ 

t1pgm.html). 

(B) Using the same highway vehicle 

activity inputs used to calculate the actual 

baseline year inventory, run the appropriate 

motor vehicle emissions model for the 

baseline year and the 15 percent milestone 

year (i.e., the sixth year following the 

baseline year) with all post-1990 CAA 

measures turned off. Any other local inputs 

for vehicle inspection and maintenance (I/M) 

programs should be set according to the 

program that was required to be in place in 

1990. Fuel vapor pressure (RVP) should be 

set at 9.0 or 7.8 depending on the RVP 

required in the local area as a result of the 

RVP regulations promulgated in June 1990. 

(C) Calculate the difference between the 

baseline and 15 percent milestone year VOC 

emission factors calculated in Step B and 

multiply by vehicle miles traveled (VMT) for 

the baseline year. The result is the VOC 

emissions reduction that will occur between 

the baseline year and the 15 percent 

milestone year without the benefits of any 

post-1990 CAA measures. This is the noncreditable reduction that will occur over this 

period. 

(D) Subtract the non-creditable reduction 

calculated in Step C from the actual 

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 D by 15 percent. The result 

is the level of VOC emissions in the 15 

percent milestone year necessary to meet the 

15 percent VOC reduction requirement. The 

actual projected 15 percent milestone year 

inventory for all sources with all control 

measures in place in the milestone year and 

including projected growth in activity 

through the 15 percent milestone year must 

be at or lower than this target level of 

emissions. 

(2) Method 2 applies to areas initially 

classified as Moderate for the 2008 ozone 

NAAQS and portions thereof and for areas or 

those portions thereof that had already met 

the 15 percent RFP requirement for VOC in 

section 182(b)(1) of the CAA for the 1-hour 

ozone NAAQS or the 1997 ozone NAAQS, or, 

that met this 15 percent RFP requirement 

based upon a combination of SIPs for both 

the 1-hour ozone NAAQS and the 1997 ozone 

NAAQS. These areas or the portions thereof 

are covered by subpart 1 RFP requirements 

and must meet a 15 percent VOC emission 

reduction requirement by the 15 percent 

milestone year but with NOX substitution 

allowed, following EPA’s NOX Substitution 

Guidance 3: 

(A) Estimate the actual anthropogenic 

baseline year inventory for both VOC and 

NOX with all control programs in place in the 

baseline year. 

(B) Using the same highway vehicle 

activity inputs used to calculate the baseline 

year inventory, run the appropriate motor 

vehicle emissions model for the baseline year 

and the 15 percent milestone year with all 

post-1990 CAA measures turned off. Any 

other local inputs for I/M programs 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 on the 

RVP required in the local area as a result 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 the baseline year VMT. The 

result is the VOC emissions reduction that 

will occur between the baseline year and the 

15 percent milestone year without the 

benefits of any post-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 

15 percent milestone year NOX emissions 

factors calculated in Step B and multiply by 

the baseline year VMT. This result is the NOX

emissions reduction that will occur between 

the baseline year and the 15 percent 

milestone year without the benefits of any 

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 from the 

actual anthropogenic baseline year VOC 

inventory estimated in Step A. Subtract the 

non-creditable NOX reduction calculated in 

Step C from the actual anthropogenic 

baseline year NOX inventory estimated in 

Step A. These adjusted VOC and NOX

inventories are the basis for calculating the 

target level of emissions in the 15 percent 

milestone year. 

(E) The target for VOC and NOX emissions 

in the 15 percent milestone year needed to 

meet the 15 percent milestone year RFP 

requirement is any combination of VOC and 

NOX emissions which result in a combined 

total of 15 percent reductions when 

compared to the adjusted VOC and NOX

inventories calculated in Step D. For 

example, the target level of VOC emissions in 

the 15 percent milestone year could be 90 

percent of the adjusted VOC inventory 

calculated in Step D, which would be a 10 

percent reduction, and similarly the target 

level of NOX emissions could be 95 percent 

of the 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 of the milestone year and including 

projected 15 percent milestone year growth 

in activity must be at or lower than the target 

levels of VOC and NOX emissions. 

(3) Method 3 applies to Serious and higher 

classified areas for the 2008 ozone NAAQS 

or portions thereof that have met a 15 percent 

reduction requirement for a 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 year inventory for both VOC and 

NOX with all source control programs in 

place during the baseline year. 

(B) Using the same highway vehicle 

activity inputs used to calculate the baseline 

year inventory, run the appropriate motor 

vehicle emissions model for the baseline year 

and the 18 percent milestone year (i.e., the 

sixth year following the baseline year) with 

all post-1990 CAA measures turned off. Any 

other local inputs for I/M programs 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 on the 

RVP required in the local area as a result of 

RVP regulations promulgated in June 1990. 

(C) Calculate the difference between the 

baseline year and the 18 percent milestone 

year VOC emissions factors calculated in 

Step B and multiply this difference by the 

baseline year VMT. The result is the VOC 

emissions reduction that will occur between 

the baseline year and the milestone year 

without the benefits of any post-1990 CAA 

measures. This is 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 by the 

baseline year VMT. This result is the NOX

emissions reduction that will occur between 

the baseline year and the milestone year 

without the benefits of any post-1990 CAA 

measures. This is the non-creditable NOX

reduction that will occur over this period. 

(D) Subtract the non-creditable VOC 

reduction calculated in Step C from the 

actual anthropogenic baseline year VOC 

inventory estimated in Step A. Subtract the 

non-creditable NOX reduction calculated in 

Step C from the actual anthropogenic 

baseline year NOX inventory estimated in 

Step A. These adjusted VOC and NOX

inventories are the basis for calculating the 

target level of emissions in the milestone 

year. 

(E) The target for VOC and NOX emissions 

in the 18 percent milestone year needed to 

meet the 18 percent milestone year RFP 

requirement is any combination of VOC and 

NOX emissions that result in a combined 

total of 18 percent reductions when 

compared to the adjusted VOC and NOX

inventories calculated in Step D. For 

example, the target level of VOC emissions in 

the 18 percent milestone year could be 92 

percent of the adjusted VOC inventory in 

Step D (and 8 percent reduction in VOC) and 

90 percent of the adjusted NOX inventory in 

Step D (a 10 percent reduction in NOX). The 

actual projected 18 percent milestone year 

VOC and NOX inventories for all sources 

with all control measures in place in the 

milestone year and including projected 18 

percent milestone year growth in activity 

must be at or lower than the target levels of 

VOC and NOX emissions. 

(4) Method 4 applies to all Serious and 

higher classified areas that have used Method 

1 (and therefore do not have a NOX target 

level of emissions for the 15 percent 

milestone year) and must meet an additional 

reduction VOC requirement of 9 percent 

every 3 years after the 15 percent milestone 

year with NOX substitution allowed, 

following EPA’s NOX Substitution Guidance. 

Each subsequent target level of emissions 

should be calculated as an emission 

reduction from the previous target. 

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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 34231 

(A) Estimate the actual anthropogenic 

baseline year NOX inventory in the baseline 

year with all control programs in place in the 

baseline year. 

(B) Using the same highway vehicle 

activity inputs used to calculate the actual 

baseline year inventory, run the appropriate 

emissions model for VOC and NOX in the 

baseline year and the 15 percent milestone 

year (previously done in Step B in Method 

1 for VOC but not necessarily for NOX) and 

the first 9 percent milestone year with all 

post-1990 CAA measures turned off. Any 

other local inputs for I/M programs 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 on the 

RVP required in the local area as a result of 

fuel RVP regulations promulgated in June, 

1990. 

(C) Calculate the difference between the 15 

percent milestone year and the first 9 percent 

milestone year VOC emission factors 

calculated in Step B and multiply by the 

baseline year VMT. 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 any post-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 first 9 

percent milestone year NOX emission factors 

calculated in Step B 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 of any 

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 from the 15 

percent milestone year VOC target level of 

emissions calculated previously. Subtract the 

non-creditable NOX reduction calculated in 

Step C from the 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 for the first 9 percent milestone 

year. 

(E) The target for VOC and NOX emissions 

in the 9 percent milestone year needed to 

meet the first 9 percent milestone year RFP 

requirement is any combination of VOC and 

NOX emissions that result in a combined 

total of 9 percent reductions when compared 

to the adjusted VOC and NOX inventories 

calculated in Step D that total 9 percent. For 

example, the target level of VOC emissions in 

the first 9 percent milestone year could be 96 

percent of the adjusted VOC inventory in 

Step D (a 4 percent reduction in VOC 

emissions) and 95 percent of the adjusted 

NOX inventory in Step D (a 5 percent 

reduction in NOX emissions). The actual 

projected first 9 percent milestone year VOC 

and NOX inventories for all sources with all 

control measures in place in the milestone 

year and including projected first 9 percent 

milestone year growth in activity must be at 

or lower than the target levels of VOC and 

NOX emissions. 

(F) For subsequent 3-year periods until the 

attainment date, the adjusted VOC inventory 

should be based on the difference in VOC 

emissions during that 3-year period when all 

post-1990 CAA measures are turned off, 

subtracted from the previous VOC target level 

of emissions. For subsequent 3-year periods, 

the adjusted NOX inventory should be based 

on the difference in NOX emissions during 

that 3-year period when all post-1990 CAA 

measures are turned off, subtracted from the 

previous NOX target level of emissions. For 

example, for the subsequent 9 percent 

milestone year, take the VOC and NOX

emissions reductions that will occur between 

the 9 percent milestone year and the 

subsequent 9 percent milestone year without 

the benefits of any post-1990 CAA measures 

and with consistent vehicle activity. These 

reductions are subtracted from the 9 percent 

milestone year target level of VOC and NOX

emissions calculated in Step E to get the 

adjusted VOC and NOX inventories to be 

used as the basis for calculating the target 

levels of VOC and NOX emissions in the 

subsequent 9 percent milestone year. 

(5) Method 5 applies to all Moderate areas 

that are subsequently reclassified as Serious 

(or higher) pursuant to section 181(b) of the 

CAA, that used Method 2 (and therefore do 

have a NOX target level of emissions for the 

15 percent milestone year) and that must 

meet an additional reduction VOC 

requirement of 9 percent every 3 years after 

the 15 percent milestone year with NOX

substitution allowed, following EPA’s NOX

Substitution Guidance. Each subsequent 

target level of emissions should be calculated 

as an emissions reduction from the previous 

target. 

(A) Using the same highway vehicle 

activity inputs used to calculate the actual 

baseline year inventory, run the appropriate 

emissions model for VOC and NOX in the 15 

percent milestone year (previously done in 

Step B in Method 2) and the 9 percent 

milestone year with all post-1990 CAA 

measures turned off. Any other local inputs 

for I/M programs 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 on the RVP required in the local 

area as a result of fuel 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 by the 

baseline year VMT. 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 any post-1990 CAA control measures. This 

is the non-creditable VOC reduction 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 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 of any 

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 from the 15 

percent milestone year VOC target level of 

emissions calculated previously. Subtract the 

non-creditable NOX reduction calculated in 

Step B from the 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 of emissions for the 9 percent 

milestone year. 

(D) The target for VOC and NOX emissions 

in the 9 percent milestone year needed to 

meet the first 9 percent milestone year RFP 

requirement is any combination of VOC and 

NOX emissions that result in a combined 

total of 9 percent reductions when compared 

to the adjusted VOC and NOX inventories 

calculated in Step D For example, the target 

level of VOC emissions in the first 9 percent 

milestone year could be 96 percent of the 

adjusted VOC inventory in Step C (a 4 

percent reduction in VOC emissions) and 95 

percent of the 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 activity must be at or lower 

than the target levels of VOC and NOX

emissions. 

(E) For subsequent 3-year periods until the 

attainment date, the adjusted VOC inventory 

should be based on the difference in VOC 

emissions during that 3-year period when all 

post-1990 CAA measures are turned off using 

the same VMT used in the baseline year, 

subtracted from the previous VOC target level 

of emissions. For subsequent 3-year periods, 

the adjusted NOX inventory should be based 

on the difference in NOX emissions during 

that 3-year period when all post-1990 CAA 

measures are turned off using the same VMT 

used in the baseline year, subtracted from the 

previous NOX target level of emissions. For 

example, for the subsequent 9 percent 

milestone year, take the VOC and NOX

emissions reductions that will occur between 

the 9 percent milestone year and the 

subsequent 9 percent milestone year without 

the benefits of any post-1990 CAA measures. 

These reductions are subtracted from the 9 

percent milestone year target level of VOC 

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 of VOC and NOX emissions in the 

subsequent 9 percent milestone year. 

(6) Method 6 applies to all Serious and 

higher classified areas that have used Method 

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 of 9 percent every 3 years 

after the 18 percent milestone year with NOX

substitution allowed, following the EPA’s 

NOX Substitution Guidance. Each subsequent 

target level of emissions should be calculated 

as an emissions reduction from the previous 

target. 

(A) Using the same highway vehicle 

activity inputs used to calculate the actual 

baseline year inventory, run the appropriate 

emissions model for VOC and NOX in the 18 

percent milestone year (previously done in 

Step B in Method 3) and the 9 percent 

milestone year with all post-1990 CAA 

measures turned off. Any other local inputs 

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34232 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 

for I/M programs 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 on the RVP required in the local 

area as a result of fuel RVP regulations 

promulgated in June 1990. 

(B) Calculate the difference between the 18 

percent milestone year and the 9 percent 

milestone year VOC emission factors 

calculated in Step A and multiply by the 

baseline year VMT. The result is the VOC 

emissions reduction that will occur between 

the 18 percent milestone year and the 9 

percent milestone year without the benefits 

of any post-1990 CAA control measures. This 

is the non-creditable VOC reduction 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 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 of any 

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 from the 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 of emissions for 9 percent 

milestone year. 

(D) The target for VOC and NOX emissions 

in the 9 percent milestone year needed to 

meet the first 9 percent milestone year RFP 

requirement is any combination of VOC and 

NOX emissions that result in a combined 

total of 9 percent reductions when compared 

to the adjusted VOC and NOX inventories 

calculated in Step D For example, the target 

level of VOC emissions in the first 9 percent 

milestone year could be 96 percent of the 

adjusted VOC inventory in Step C (a 4 

percent reduction in VOC emissions) and 95 

percent of the 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 activity must be at or lower 

than the target levels of VOC and NOX

emissions. 

(E) For subsequent 3-year periods until the 

attainment date, the adjusted VOC inventory 

should be based on the difference in VOC 

emissions during that 3-year period when all 

post-1990 CAA measures are turned off using 

the same VMT used in the baseline year, 

subtracted from the previous VOC target level 

of emissions. For subsequent 3-year periods, 

the adjusted NOX inventory should be based 

on the difference in NOX emissions during 

that 3-year period when all post-1990 CAA 

measures are turned off using the same VMT 

used in the baseline year, subtracted from the 

previous NOX target level of emissions. For 

example, for the subsequent 9 percent 

milestone year, take the difference in VOC 

and NOX emissions reductions that will 

occur between the 9 percent milestone year 

and the subsequent 9 percent milestone year 

without the benefits of any post-1990 CAA 

measures. These values are subtracted from 

the 9 percent milestone year target level of 

VOC 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 of VOC and NOX

emissions in the subsequent 9 percent 

milestone year. 

Appendix D to Preamble—List of Areas 

Nonattainment for the 2008 Ozone 

NAAQS In Addition to a Prior Ozone 

NAAQS 

TABLE 1—AREAS NONATTAINMENT FOR BOTH THE 2008 AND 1997 OZONE NAAQS 

2008 Nonattainment area name 1997 8-hour ozone classification 1997 Ozone attainment determination 

Atlanta Area, GA * ................................................... Moderate ............................................... 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 ........................................................ Marginal ................................................. Attainment Deadline Determination Clean Data 

Determination. 

Denver-Boulder-Greeley-Ft. Collins-Loveland Area, 

CO.

Marginal .................................................

Imperial County Area, CA ........................................ Moderate ............................................... Clean Data Determination. 

Jamestown Area, NY ............................................... Moderate ............................................... 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 * ........................................ Marginal .................................................

Pittsburgh-Beaver Valley Area, PA ......................... Moderate ............................................... Clean Data Determination **** 

San Diego Area, CA ................................................ Moderate ............................................... ** 

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 1997 ozone 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 1997 ozone 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 1997 ozone NAAQS. The state of MO submitted a redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS. 

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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 34233 

TABLE 2—AREAS NONATTAINMENT FOR THE 2008, 1997, AND 1-HOUR OZONE NAAQS 

2008 Nonattainment area 

name 

2008 8-Hour ozone 

classification 

1-Hour ozone 

classification 

1-Hour ozone 

attainment 

determination 

1997 8-Hour ozone 

classification 

1997 Ozone attainment 

determination 

Baltimore Area, MD ............ Moderate ............... Severe 15 .............. Clean Data Determination.Serious ..................

Dallas-Fort Worth Area, 

TX *.

Moderate ............... Serious .................. Clean Data Determination.Serious ..................

Dukes County, MA * ........... Marginal ................. Serious .................. Clean Data Determination, Attainment Deadline 

Determination.

Moderate ............... Clean Data Determination, Attainment Deadline Determination. 

Greater Connecticut Area, 

CT.

Marginal ................. Serious .................. Clean Data Determination.Moderate ............... Clean Data Determination, Attainment Deadline Determination. 

Houston-GalvestonBrazoria Area, TX.Marginal ................. Severe 17 .............. ................................ Severe 15 ..............

Los Angeles and San 

Bernardino Counties (W 

Mojave Desert) Area, CA.

Severe 15 .............. Severe 17 .............. ................................ Severe ...................

Los Angeles-South Coast 

Air Basin Area, CA.

Extreme ................. Extreme ................. ................................ Extreme .................

Morongo Areas of Indian 

Country (Morongo Band 

of Mission Indians) **.

Moderate ............... Extreme ................. ................................ Severe-17 ..............

New York-N. New JerseyLong Island Area, NY, 

NJ, CT.

Marginal ................. Severe 17 .............. Clean Data Determination.Moderate ............... Clean Data Determination, Attainment Deadline Determination. 

Pechanga Areas of Indian 

Country (Pechanga Band 

of Luiseno Mission Indians of the Pechanga 

Reservation) **.

Moderate ............... Extreme ................. ................................ Severe-17 ..............

Philadelphia-Wilmington-Atlantic City Area, PA, NJ, 

MD, DE *.

Marginal ................. Severe 15 .............. Clean Data Determination, Attainment Deadline 

Determination.

Moderate ............... Clean Data Determination, Attainment Deadline Determination. 

Riverside County 

(Coachella Valley) Area 

(1-hr Southeast Desert), 

CA.

Severe 15 .............. Severe 17 .............. ................................ Severe 15 ..............

Sacramento Metro Area, 

CA.

Severe 15 .............. Severe 15 .............. Clean Data Determination.Severe 15 ..............

San Francisco Bay Area, 

CA.

Marginal ................. Other ..................... Clean Data Determination, Attainment Deadline 

Determination.

Marginal .................

San Joaquin Valley Area, 

CA.

Extreme ................. Extreme ................. ................................ Extreme .................

Seaford, DE *** ................... Marginal ................. Marginal ................. Clean Data Determination, Attainment Deadline 

Determination.

Moderate ............... Clean Data Determination, Attainment Deadline Determination. 

Ventura County (part) Area, 

CA.

Serious .................. Severe 15 .............. Clean Data Determination, Attainment Deadline 

Determination.

Serious .................. Clean Data Determination. 

Washington Area, DC, MD, 

VA.

Marginal ................. Severe 15 .............. Clean Data Determination, Attainment Deadline 

Determination.

Moderate ............... Clean Data Determination, Attainment Deadline Determination. 

* 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 1997 ozone NAAQS was the classification based on the DV for 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. 

Statutory Authority 

The statutory authority for this action 

is provided by sections 109; 110; 172; 

181 through 185B; 301(a)(1) and 

501(2)(B) of the CAA, as amended (42 

U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 

7502; 42 U.S.C. 7511–7511f; 42 U.S.C. 

7601(a)(1); 42 U.S.C. 7661(2)(B)). This 

notice is also subject to section 307(d) 

of the CAA (42 U.S.C. 7407(d)). 

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34234 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Particulate matter, Transportation, 

Volatile organic compounds. 

40 CFR Part 70 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen oxides, Operating 

permits, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 71 

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, 

Acting Administrator. 

For the reasons stated in the 

preamble, Title 40, Chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 50—NATIONAL PRIMARY AND 

SECONDARY AXVYGH9 

■ 1. The authority citation for part 50 

continues to read as follows: 

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

■ 2. Section 50.10 is amended by 

revising paragraph (c) to read as follows: 

§ 50.10 National 8-hour primary and 

secondary ambient air quality standards for 

ozone. 

* * * * * 

(c) Until date of publication of the 

final SIP Requirements Rule in the 

Federal Register, the 1997 ozone 

NAAQS set forth in this section will 

continue in effect, notwithstanding the 

promulgation of the 2008 ozone NAAQS 

under § 50.15. The 1997 ozone NAAQS 

set forth in this section will no longer 

apply to an area upon the date of 

publication of the 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—Provisions for 

Implementation of 8-Hour Ozone 

National Ambient Air Quality Standard 

■ 4. Section 51.919 is added to read as 

follows: 

§ 51.919 Applicability 

As of one year after the effective date 

of designations for the 2008 ozone 

NAAQS, as set forth in 50.10(c), the 

provisions of Subpart AA shall replace 

the provisions of Subpart X, 51.900 to 

51.918, which cease to apply. 

Subpart AA—Provisions for 

Implementation of the 2008 Ozone 

National Ambient Air Quality 

Standards 

■ 5. Amend part 51, subpart AA by: 

■ a. Revising § 51.1100 by adding 

paragraphs (o) through (aa): and 

■ b. Adding §§ 51.1104 through 

51.1119. 

The revisions and additions read as 

follows 

Subpart AA—Provisions for Implementation 

of the 2008 Ozone National Ambient Air 

Quality Standards 

Sec. 

51.1100 Definitions. 

51.1101 Applicability of part 51. 

51.1102 Classification and nonattainment 

area planning provisions. 

51.1103 Application of classification and 

attainment date provisions in CAA 

section 181 of subpart 2 to areas subject 

to § 51.1102(a). 

51.1104 [Reserved]. 

51.1105 Transition from the 1997 and 1- 

hour NAAQS to the 2008 ozone NAAQS 

and anti-backsliding. 

51.1106 Redesignation to nonattainment 

following initial designations. 

51.1107 Applicability of CAA section 

181(a)(5)(B) for an area that fails to attain 

the 2008 ozone NAAQS by its attainment 

date. 

51.1108 Modeling and attainment 

demonstration requirements. 

51.1109 [Reserved]. 

51.1110 Requirements for reasonable 

further progress (RFP). 

51.1111 [Reserved]. 

51.1112 Requirements for reasonably 

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 of attainment SIP 

planning requirements in a 

nonattainment area upon a 

determination that the area has attained 

the ozone NAAQS. 

51.1119 Applicability. 

Appendixes A–K to Part 51 [Reserved] 

Appendix L to Part 51—Example Regulations 

for Prevention of Air Pollution 

Emergency Episodes 

Appendix M to Part 51—Recommended Test 

Methods for State Implementation Plans 

Appendixes N–O 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 for BART 

Determinations Under the Regional Haze 

Rule 

Subpart AA—Provisions for 

Implementation of the 2008 Ozone 

National Ambient Air Quality 

Standards. 

§ 51.1100 Definitions. 

* * * * * 

(o) Applicable requirements for an 

area means the following requirements, 

to the extent such requirements apply to 

the area pursuant to its classification 

under CAA section 181(a)(1) for the 1- 

hour NAAQS or the 1997 ozone NAAQS 

at the time of revocation of the 1997 

ozone NAAQS: 

(1) Reasonably available control 

technology (RACT). 

(2) Vehicle inspection and 

maintenance programs (I/M) under CAA 

section 182(b)(4) and 182(c)(3). 

(3) Major source applicability cut offs 

for purposes of RACT. 

(4) Reductions to achieve Reasonable 

Further Progress (RFP). 

(5) Clean fuels fleet program under 

CAA section 183(c)(4). 

(6) Clean fuels for boilers under CAA 

section 182(e)(3). 

(7) Transportation Control Measures 

(TCMs) during heavy traffic hours as 

specified under CAA section 182(e)(4). 

(8) Enhanced (ambient) monitoring 

under CAA section 182(c)(1). 

(9) Transportation controls under 

CAA section 182(c)(5). 

(10) Vehicle miles traveled provisions 

of CAA section 182(d)(1). 

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(11) NOX requirements under CAA 

section 182(f). 

(12) Attainment demonstration. 

(13) Nonattainment contingency 

measures required under CAA sections 

172(c)(9) and 182(c)(9) for failure to 

attain the 1-hour or 1997 ozone NAAQS 

by the applicable attainment date or to 

make reasonable further progress toward 

attainment of the 1-hour or 1997 ozone 

NAAQS. 

(14) Nonattainment New Source 

Review (NSR) requirements. 

(15) Penalty fee program requirements 

for Severe and Extreme Areas under 

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 by CAA section 184(a) 

or any other area established by the 

Administrator pursuant to CAA section 

176A for purposes of ozone. 

(s) Reasonable further progress (RFP) 

means for the purposes of the 2008 

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). 

(t) Rate of progress (ROP) means for 

the purposes of the 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 of the 1-hour NAAQS 

means the time at which the 1-hour 

NAAQS no longer apply to an area 

pursuant to 40 CFR 50.9(b). 

(v) Revocation of the 1997 ozone 

NAAQS means the time at which the 

1997 8-hour NAAQS no longer apply to 

an area pursuant to 40 CFR 50.10(c). 

(w) Subpart 1 means subpart 1 of part 

D of title I of the CAA. 

(x) Subpart 2 means subpart 2 of part 

D of title I of the CAA. 

(y) [Reserved] 

(z) Consolidated submittal means a 

joint submittal of the 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 of section 

51.1105, an area that is subject to 

applicable 1-hour ozone NAAQS antibacksliding requirements at the time of 

revocation of the 1997 ozone NAAQS. 

* * * * * 

§ 51.1104 [Reserved] 

§ 51.1105 Transition from the 1997 ozone 

NAAQS to the 2008 ozone NAAQS and antibacksliding. 

(a) Requirements that continue to 

apply after revocation of the 1997 ozone 

NAAQS. 

(1) 2008 ozone NAAQS 

nonattainment and 1997 ozone NAAQS 

nonattainment. 

The following requirements apply to 

an area designated nonattainment for 

the 2008 ozone NAAQS and also 

designated nonattainment for the 1997 

ozone NAAQS, or nonattainment for 

both the 1997 and 1-hour ozone 

NAAQS, at the time of revocation of the 

1997 ozone NAAQS: 

(i) The area remains subject to the 

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 of revocation, in accordance with 

its classification for that NAAQS at the 

time of that revocation; except as 

provided in paragraph (b) of this 

section. 

(2) 2008 ozone NAAQS 

nonattainment and 1997 ozone NAAQS 

maintenance. 

For an area designated nonattainment 

for the 2008 ozone NAAQS that was 

redesignated to attainment prior to the 

date of revocation (hereinafter a 

‘‘maintenance area’’) for the 1997 ozone 

NAAQS at the time of revocation of that 

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 the measures included in the area’s 

SIP, including the maintenance plan. 

Any applicable requirements that were 

shifted to contingency measures prior to 

revocation of the 1997 ozone NAAQS 

may remain in that form. 

(3) 2008 ozone NAAQS attainment 

and 1997 ozone NAAQS nonattainment. 

(i) Obligations in an approved SIP. 

An area that is designated attainment 

for the 2008 ozone NAAQS, and 

designated nonattainment for the 1997 

ozone NAAQS or for both the 1997 and 

the 1-hour ozone NAAQS is no longer 

subject to nonattainment NSR as of 

revocation of the 1997 ozone NAAQS: 

the state may at any time request that 

the nonattainment NSR provisions 

applicable to the area be removed from 

the SIP as of that date. The state may 

also request, consistent with CAA 

section 110(l) and 193, that SIP 

measures adopted to satisfy other 

applicable requirements of § 51.1100(o) 

be shifted to 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 for both the 1997 and 1-hour 

ozone NAAQS at the time of revocation 

of the 1997 ozone NAAQS, an area’s 

approved PSD SIP shall satisfy the 

state’s obligations with respect to the 

area’s maintenance of the 2008 ozone 

NAAQS pursuant to CAA section 

110(a)(1). 

[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 for both the 1997 and 1-hour 

ozone NAAQS at the time of revocation 

of the 1997 ozone NAAQS, the state 

shall provide a showing of maintenance 

for the 2008 ozone NAAQS, which shall 

be due no later than three years after the 

effective date of designations for the 

2008 ozone NAAQS. This maintenance 

showing shall demonstrate that the area 

can continue 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 that is designated attainment 

of the 2008 ozone NAAQS and which 

has been redesignated to attainment for 

the 1997 ozone NAAQS with an 

approved section 175A maintenance 

plan, satisfies the applicable 

requirements set forth in section 

51.1100(o) through implementation of 

the provisions of its SIP and 

maintenance plan. After revocation of 

the 1997 ozone NAAQS, and to the 

extent consistent with sections 110(l) 

and 193, the state may request that 

obligations under the applicable 

requirements of section 51.1100(o) be 

shifted to its list of maintenance plan 

contingency measures. 

(ii) No additional obligation for the 

2008 ozone NAAQS. 

For an area that is initially designated 

attainment for the 2008 ozone NAAQS 

and which has been redesignated to 

attainment for the 1997 ozone NAAQS 

with an approved section 175A 

maintenance plan, the area’s approved 

section 175A plan shall satisfy the 

state’s obligations under CAA section 

110(a)(1) with respect to maintenance of 

the 2008 ozone NAAQS. 

(b) For how long does an area 

designated nonattainment for the 2008 

ozone NAAQS remain subject to the 

applicable requirements as provided 

under paragraph (a)? 

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(1) Redesignation for 2008 ozone 

NAAQS or approval of a 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) of this 

section until either (1) EPA approves the 

area’s redesignation 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 of ending anti-backsliding 

requirements as would redesignation, 

were the NAAQS in effect. Under this 

redesignation substitute procedure for a 

revoked NAAQS, and for this limited 

anti-backsliding purpose, the area must 

show that it has attained that revoked 

NAAQS due to permanent and 

enforceable emission reductions, and it 

must demonstrate that it will maintain 

that NAAQS for ten years from the date 

of EPA’s approval of this showing. If 

EPA, after notice-and-comment 

rulemaking, approves this showing, it 

will have the effect set forth in 

paragraph (b)(2) below. 

(2) Effect of redesignation to 

attainment for the 2008 ozone NAAQS 

or approval of a redesignation substitute 

for a revoked ozone NAAQS. After 

redesignation to attainment for the 2008 

ozone NAAQS, the state may request 

that provisions for nonattainment NSR 

be removed from the SIP, and that other 

anti-backsliding obligations be shifted to 

contingency measures provided that 

such action is consistent with CAA 

sections 110(l) and 193. After approval 

of a redesignation substitute for a 

revoked NAAQS, the state may request 

to remove from the SIP provisions for 

nonattainment NSR for that revoked 

NAAQS. The State may also request to 

shift other anti-backsliding obligations 

for the relevant revoked standard to 

contingency measures provided that 

such action is consistent with CAA 

sections 110(l) and 193. 

(c) Portions of an area designated 

nonattainment or attainment for the 

2008 ozone NAAQS that remain subject 

to the obligations identified in 

paragraph (a) of this section. 

Only that portion of the designated 

nonattainment or attainment area for the 

2008 ozone NAAQS that was required to 

adopt the applicable requirements in 

§ 51.1100(o) for purposes of the 1-hour 

or 1997 ozone NAAQS is subject to the 

obligations identified in paragraph (a) of 

this section. 40 CFR part 81, subpart C 

identifies the areas designated 

nonattainment and associated area 

boundaries for the 1997 ozone NAAQS. 

Areas that are designated nonattainment 

for the 1997 ozone NAAQS at the time 

of designation for the 2008 ozone 

NAAQS may be redesignated to 

attainment prior to the effective date of 

revocation of that ozone NAAQS. 

(d) Obligations under the 1997 ozone 

NAAQS that no longer apply after 

revocation of the 1997 ozone NAAQS. 

(1) Maintenance plans. 

Upon revocation of the 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 of the initial 1997 ozone 

NAAQS maintenance plan; and (b) to 

remove the obligation to implement 

contingency measures upon a violation 

of the 1997 ozone NAAQS. However, 

such requirements will remain 

enforceable as part of the approved SIP 

until such time as EPA approves a SIP 

revision removing such obligations. 

(2) Determinations of failure to attain 

the 1997 and/or 1-hour NAAQS. 

(i) After revocation of the 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 of the 1997 ozone 

NAAQS for an area, under no 

circumstances is EPA obligated to 

reclassify an area to a higher 

classification for the 1997 ozone 

NAAQS based upon a determination 

that the area failed to attain the 1997 

ozone NAAQS by the area’s attainment 

date for the 1997 ozone NAAQS. 

(iii) For the revoked 1-hour and 1997 

ozone NAAQS, 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 of addressing 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 of the 

attainment date is applicable under 

section 172(a)(2)(C) or 181(a)(5) of the 

CAA. 

(e) What is the continued 

applicability of the 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 time the 1997 ozone 

NAAQS is revoked, such as the NOX SIP 

Call or the CAIR shall continue to apply 

after revocation of the 1997 ozone 

NAAQS. Control requirements approved 

into the SIP pursuant to obligations 

arising from section 110(a)(2)(D)(i) and 

(ii), including 40 CFR 51.121, 51.122 

and 51.123, may be modified by the 

state only if the requirements of 

§§ 51.121, 51.122 and 51.123, including 

statewide NOX emission budgets 

continue to be in effect. Any such 

modification must meet the 

requirements of CAA section 110(l). 

(f) New source review. 

An area designated nonattainment for 

the 2008 ozone NAAQS and designated 

nonattainment for the 1997 ozone 

NAAQS at the time of revocation of the 

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 182 based on the highest of: (i) The 

area’s classification under CAA section 

181(a)(1) for the 1-hour NAAQS as of 

the effective date of revocation of the 1- 

hour ozone NAAQS; (ii) the area’s 

classification under 40 CFR 51.903 for 

the 1997 ozone NAAQS as of the date 

a permit is issued or as of the effective 

date of revocation of the 1997 ozone 

NAAQS, whichever is earlier; and (iii) 

the area’s classification under 40 CFR 

51.1103 for the 2008 ozone NAAQS. 

Upon removal of nonattainment NSR 

obligations for a revoked NAAQS under 

section 51.1105(b)(ii), the state remains 

subject to the obligation to adopt and 

implement the requirements for 

nonattainment NSR that apply or 

applied to the area for the remaining 

applicable NAAQS consistent with this 

paragraph. 

§ 51.1106 Redesignation to nonattainment 

following initial designations. 

For any area that is initially 

designated attainment for the 2008 

ozone NAAQS and that is subsequently 

redesignated to nonattainment for the 

2008 ozone NAAQS, any absolute, fixed 

date applicable in connection with the 

requirements of this part other than an 

attainment date is extended by a period 

of time equal to the length of time 

between the effective date of the initial 

designation for the 2008 ozone NAAQS 

and the effective date of redesignation, 

except as otherwise provided in this 

subpart. The number of years such an 

area would have to attain would be 

based on the area’s classification, 

consistent with Table 1 in section 

51.1103. 

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§ 51.1107 Applicability of CAA section 

181(a)(5)(B) for an area that fails to attain 

the 2008 ozone NAAQS by its attainment 

date. 

(a) A nonattainment area will meet 

the requirement of CAA section 

181(a)(5)(B) pertaining to 1-year 

extensions of the attainment date if: 

(1) For the first 1-year extension, the 

area’s 4th highest daily 8 hour average 

in the attainment year is 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) For purposes of paragraph (a) of 

this section, the area’s 4th highest daily 

8 hour average for a year shall be from 

the monitor with the highest 4th highest 

daily 8 hour average for that 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 due no 

later than [option 1: 36 months] [option 

2: The state’s choice of either 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 due no 

later than [option 1: 48 months] [option 

2: The state’s choice of either 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) of this section 

must meet the requirements of § 51.112; 

the adequacy of an attainment 

demonstration shall be demonstrated by 

means of a photochemical grid model or 

any other analytical method determined 

by the Administrator, in the 

Administrator’s discretion, to be at least 

as effective. 

(c) Implementation of control 

measures. 

For each nonattainment area, the state 

must provide for implementation of all 

control measures needed for attainment 

no later than the beginning of the 

attainment year ozone season. 

§ 51.1109 [Reserved] 

§ 51.1110 Requirements for reasonable 

further progress (RFP). 

(a) RFP for nonattainment areas 

classified pursuant to § 51.1103. 

The RFP requirements specified in 

CAA section 182 for that area’s 

classification shall apply. 

(1) Submission deadline. For each 

area classified as Moderate or higher 

pursuant to § 51.1103, the state shall 

submit a SIP revision no later than 

[option 1: 36 months] [option 2: The 

state’s choice of either 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) of this 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 of Attainment for those 

NAAQS. 

An area classified as Moderate or 

higher that has the same boundaries as 

an area, or is entirely composed of 

several areas or portions of areas, for 

which EPA fully approved a 15 percent 

plan for the 1-hour or 1997 ozone 

NAAQS or which has been determined 

to be attaining those NAAQS is 

considered to have met the 

requirements of CAA section 182(b)(1) 

for the 2008 ozone NAAQS and instead: 

(i) If classified as Moderate or higher, 

the area is subject to the RFP 

requirements under CAA section 

172(c)(2) and shall submit a SIP revision 

that: 

(A) Provides for a 15 percent emission 

reduction from the baseline year within 

6 years after the baseline year; 

(B) provides for an additional 3 

percent per year reduction from the end 

of the first 6 years up to the beginning 

of the attainment year if a baseline year 

earlier than 2011 is used; and 

(C) relies on either NOX or VOC 

emissions reductions (or a combination) 

to meet the requirements of (a)(2)(i)(A) 

and (B). Use of NOX emissions 

reductions must meet the criteria in 

CAA section 182(c)(2)(C). 

(ii) If classified as Serious or higher, 

the area is also subject to RFP under 

CAA section 182(c)(2)(B) and shall 

submit an RFP SIP no later than [option 

1: 48 months] [option 2: The state’s 

choice of either 48 months or 30 months 

for a consolidated submission] 

providing for an average of 3 percent per 

year of reduction for: 

(A) All remaining 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 (or a combination) 

to meet the requirements of (a)(2)(ii)(A) 

and (B). Use of NOX emissions 

reductions must meet the criteria in 

CAA section 182(c)(2)(C). 

(3) RFP requirements for 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, 

or portions of areas, for which EPA fully 

approved a 15 percent plan for the 1- 

hour or 1997 ozone NAAQS as well as 

areas for which EPA has not fully 

approved a 15 percent plan for either 

the 1-hour or 1997 ozone NAAQS shall 

meet the requirements of either 

paragraph (a)(3)(i) or (ii) below. 

(i) The state shall not distinguish 

between the portion of the area that 

previously met the 15 percent VOC 

reduction requirement and the portion 

of the area that did not, and shall meet 

the requirements of (a)(4) of this 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) For the portion of the 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) of this 

section. Emissions reductions to meet 

this requirement may come from 

anywhere within the 2008 ozone 

NAAQS nonattainment area. 

(B) For the portion of the area with an 

approved 15 percent VOC plan for the 

1-hour or 1997 ozone NAAQS, the state 

shall submit a SIP as required under 

paragraph (a)(2) of this section. 

(4) 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 

submit a SIP revision consistent with 

CAA section 182(b)(1). The 6-year 

period referenced in CAA section 

182(b)(1) shall begin January 1 of the 

year following the year used for the 

baseline emissions inventory. 

(ii) For Moderate areas, the plan must 

provide for an additional 3 percent per 

year reduction from the end of the first 

6 years up to the beginning of the 

attainment year if a baseline year earlier 

than 2011 is used. 

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(iii) For each area classified as Serious 

or higher, the state shall submit a SIP 

revision consistent with CAA section 

182(c)(2)(B). The final increment of 

progress must be achieved no later than 

the attainment date for the area. 

(5) Creditability of emission control 

measures for RFP plans. 

Except as specifically provided in 

CAA section 182(b)(1)(C) and (D), 

section 182(c)(2)(B), and 51.1110(e) 

below, all emission reductions from SIPapproved or federally promulgated 

measures that occur after the baseline 

emissions inventory year are creditable 

for purposes of the RFP requirements in 

this section, provided the reductions 

meet the requirements for creditability, 

including the need to be enforceable, 

permanent, quantifiable, and surplus. 

(a) Baseline emissions inventory for 

RFP plans. 

For the RFP plans required under this 

section, at the time of designation for 

the 2008 ozone NAAQS the baseline 

emissions inventory shall be the 

emissions inventory for the most recent 

calendar year for which a complete 

triennial inventory is required to be 

submitted to EPA under the provisions 

of subpart A of this part. States may use 

an alternative baseline emissions 

inventory provided the state 

demonstrates why it is appropriate to 

use the alternative baseline year. All 

states associated with a multi-state 

nonattainment area must consult and 

agree on a single alternative baseline 

year. 

(b) NOX Substitution. 

[Alternative 1 for the final rule] 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 15 percent. 

[Alternative 2 for the final rule] 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 a baseline emission 

year of 1990. 

[Alternative 3 for the final rule] For 

areas in the OTR that are subject to the 

requirements of CAA 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 that the 

area achieved a 15 percent reduction in 

VOC emissions in the 6-year period 

from a baseline emission year of 1990. 

(c) Creditability of out-of-area 

emissions reductions. For each area 

classified as Moderate or higher 

pursuant to § 51.1103, in addition to the 

restrictions on the 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 of non-creditable 

emissions reductions. 

[Alternative 1 for the final rule] The 

following four categories of control 

measures listed in CAA section 

182(b)(1)(D) are no longer required to be 

calculated for exclusion in RFP analyses 

because the Administrator has 

determined that due to the passage of 

time the effect of these exclusions 

would be de minimis: (i) Measures 

related to motor vehicle exhaust or 

evaporative emissions promulgated by 

January 1, 1990; (ii) regulations 

concerning Reid vapor pressure 

promulgated by November 15, 1990; (iii) 

measures to correct previous RACT 

requirements; and (iv) measures 

required to correct I/M programs. 

[Alternative 2 for the final rule] The 

non-creditable emissions reductions for 

RFP targets must be calculated using the 

methodology in Appendix C of the 

preamble to the 2008 SIP Requirements 

Rule. 

§ 51.1111 [Reserved] 

§ 51.1112 Requirements for reasonably 

available control technology (RACT) and 

reasonably available control measures 

(RACM). 

(a) RACT requirement for areas 

classified pursuant to § 51.1103. 

(1) For each 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 no later than [option 

1: 24 months] [option 2: State’s choice 

of either 24 months or 30 months for a 

consolidated submittal] after the 

effective date of designation for the 2008 

ozone NAAQS. 

(3) The state shall provide for 

implementation of RACT as 

expeditiously as practicable but no later 

than January 1 of the fifth year after the 

effective date of designation for the 2008 

ozone NAAQS. 

(b) Determination of major stationary 

sources for applicability of RACT 

provisions. 

VOCs and NOX are to be considered 

separately for purposes of determining 

whether a source is a major stationary 

source as defined in CAA section 302. 

(c) Reasonably Available Control 

Measures (RACM) requirement for 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 it has adopted all 

RACM necessary to demonstrate 

attainment as expeditiously as 

practicable and to meet any RFP 

requirements. 

§ 51.1113 Section 182(f) NOX exemption 

provisions. 

(a) A person or a state may petition 

the Administrator for an exemption 

from NOX obligations under section 

182(f) for any area designated 

nonattainment for the 2008 ozone 

NAAQS and for any area in a section 

184 ozone transport region. 

(b) The petition must contain 

adequate documentation that the criteria 

in section 182(f) are met. 

(c) A section 182(f) NOX exemption 

granted for the 1-hour or 1997 ozone 

NAAQS does not relieve the area from 

any NOX obligations under section 

182(f) for the 2008 ozone standard. 

§ 51.1114 New source review 

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 of 30 

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 for an Ozone 

Transport Region. 

(a) In general. 

CAA sections 176A and 184 apply for 

purposes of the 2008 ozone NAAQS. 

(b) RACT requirements for certain 

portions of an Ozone Transport Region. 

(1) The state shall submit a SIP 

revision that meets the RACT 

requirements of CAA section 184(b)(2) 

for each area that is located in an ozone 

transport region. 

(2) The state is required to submit the 

RACT revision no later than [option 1: 

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24 months] [option 2: State’s choice of 

24 months or 30 months 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 of the fifth 

year after designation for the 2008 ozone 

NAAQS. 

§ 51.1117 Fee programs for Severe and 

Extreme nonattainment areas that fail to 

attain. 

For each area classified as Severe or 

Extreme for the 2008 ozone NAAQS, the 

state shall submit a SIP revision within 

10 years of the effective date of 

designation that meets the requirements 

of CAA section 185. 

§ 51.1118 Suspension of attainment SIP 

planning requirements in a nonattainment 

area upon a determination that the area has 

attained the ozone NAAQS. 

Upon a determination by EPA that an 

area designated nonattainment for the 

2008 ozone NAAQS, or for any prior 

ozone NAAQS, has attained the 

standard, the requirements for such area 

to submit attainment demonstrations 

and associated reasonably available 

control measures, reasonable further 

progress plans, contingency measures 

for failure to attain or make reasonable 

progress and other planning SIPs related 

to attainment of the 2008 ozone 

NAAQS, or for any prior NAAQS for 

which the determination has been 

made, shall be suspended until such 

time as: the area is 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 time the 

area is again required to submit such 

plans. 

§ 51.1119 Applicability. 

As of revocation of the 1997 ozone 

NAAQS, as set forth in 50.10(c), the 

provisions of Subpart AA shall replace 

the provisions of Subpart X, 51.900 to 

51.918, which cease to apply. See 

Subpart X section 51.919. 

■ 6. Appendix S to Part 51 is amended 

by adding section VII. to read as follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

VII. Anti-Backsliding Measures 

Nonattainment area new source review 

obligations for prior ozone NAAQS. 

(a) Except as provided in paragraph (b) of 

this section, an area designated 

nonattainment for the 2008 ozone NAAQS 

and designated nonattainment for the 1997 

ozone NAAQS at the time of revocation of 

the 1997 ozone NAAQS remains subject to 

the obligation to adopt and implement the 

requirements for nonattainment new source 

review that apply or applied to the area 

pursuant to CAA sections 172(c)(5), 173 and 

182 based on the highest of: (i) The area’s 

classification under CAA section 181(a)(1) for 

the 1-hour ozone NAAQS as of the effective 

date of revocation of that NAAQS; (ii) the 

area’s classification under 40 CFR § 51.903 

for the 1997 ozone NAAQS as of the date a 

permit is issued or as of the effective date of 

revocation of that 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-andcomment rulemaking, approves a showing for 

the area in a procedure that succeeds the 

redesignation process for a revoked NAAQS, 

and which serves the same purpose of ending 

anti-backsliding requirements as would 

redesignation, were the NAAQS in effect. 

Under this redesignation substitute 

procedure for a revoked NAAQS, and for this 

limited anti-backsliding purpose, the area 

must show that it has attained that revoked 

NAAQS due to permanent and enforceable 

emission reductions, and it must demonstrate 

that it will maintain that NAAQS for ten 

years from the date of EPA’s approval of this 

showing. 

(ii) Effect of redesignation to attainment for 

2008 ozone NAAQS or approval of a 

redesignation substitute for a revoked ozone 

NAAQS. After redesignation to attainment 

for the 2008 ozone NAAQS, the state may 

request that provisions for nonattainment 

NSR be removed from the SIP. After EPA 

approval of a redesignation substitute for a 

revoked NAAQS, the state may request that 

provisions for nonattainment NSR for the 

revoked NAAQS be removed from the SIP. 

Upon removal of nonattainment new source 

review obligations for a revoked NAAQS, the 

state remains subject to the obligation to 

adopt and implement the requirements for 

nonattainment new source review that apply 

or applied to the area for the remaining 

applicable NAAQS consistent with paragraph 

(a). 

[FR Doc. 2013–13233 Filed 6–5–13; 8:45 am] 

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