# Response to Comments on the Proposed Rule: Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Marginal for the 2008 Ozone National Ambient Air Quality Standards

April 8 , 201 6

## Table of Contents

1.0 Introduction

................................ ................................ ................................ ................... 2

2.0 Determinations of Attainment

................................ ................................ ..................... 5

3.0 Extension of the Marginal Area Attainment Dates

................................ ................... 5 A. Support for EPA’s proposal to grant certain areas a 1

- year extension of the attainment date

................................ ................................ ................................ ................ 5 B. Opposition to EPA’s proposal to grant certain areas a 1

- year extension of the attainment date

................................ ................................ ................................ .......... 5 1.States’ certification of compliance with all requirements and commitments

................................ ................................ ................................ ..... 5 2.EPA’s proposed extension for Philadelphia multi

- state nonattainment

area.

................................ ................................ ................................ ................... 7 3.EPA’s proposed extension for Sheboygan County, Wisconsin

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

4 .0 Determinations of Failure to Attain and Reclassification

................................ ....... 12

5.0 Moderate Area SIP Revision Submission Due Date

................................ ................ 12

6.0 Other Comments

................................ ................................ ................................ ......... 15 A. Interstate Transport

................................ ................................ ........................... 15 B. Photochemical modeling

................................ ................................ ................... 16 C. Expedite Implementation Policies and Rules Concurrent with NAAQS Standard

................................ ................................ ................................ ........................ 17 D. Prescribed Fire and Natural Ignitions

................................ ............................... 17

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2 

## 1.0 Introduction

The U.S. Env ironmental Protection Agency (EPA) proposed a rule o n August 27, 2015, to determine whether the 36 Marginal ozone nonattainment areas attained the 2 008 ozone NAAQS by the applicable attainment date of July 20, 2015 , pursuant to the agency’s statutory obligation under Clean Air Act (CAA) section 181(b)(2)

. First, the EPA proposed to determine that 17 Marginal nonattainment areas that were listed in the proposed rule 1 attained the 2008 ozone standards by the July 20, 2015, attainment date. Second, the EP A propose d to determine that eight areas , listed in the proposed rule, 2 d id not attain the 2008 ozone standards by the July 20, 2015, attainment date, but qualif ied for a 1

- year attainment date extension based in part on their 2014 monitored air quality da ta. Third, the EPA propose d to determine that the 11 areas listed in the proposed action, 3 did not attain the 2008 ozone standards by the July 20, 2015, attainment date and also did not qualify for a 1

- year attainment date extension, and would be reclassif ied as Moderate based on their 2012

- 2014 air quality data. The EPA also propos ed two options for establishing the due date by which air agencies would be required to submit State Implementation Plan (SIP) revisions to address Moderate nonattainment area re quirements for the areas reclassified as a result of any final EPA action. The proposed due dates were as follows : (1) the beginning of the respective 2017 ozone season for each reclassified area; or (2) January 1, 2017, for all areas. 4 The public comment period for the proposal closed 30 days after publi cation in the Federal Register . The EPA received no requests for a public hearing and no requests for an extension to the comment period

. The comment period ended on September 28, 2015, with seventeen comments submitted.

Included in this document are summaries of the comments received on the proposed rule and the EPA’s responses. Comments are arranged consistent with the relevant sections of the proposed rule.

1 See 80 FR 51996 (August 27, 2015) under section III. A. Determinations of Attainment.

2 See 80 FR 51996 (August 27, 2015) under section III. B. Extension of the Marginal Area Attainment Dates.

3 See 80 FR 51997 (August 27, 2015) under section III. C. Determin ations of Failure to Attain and Reclassification.

4 See 80 FR 51998 (August 27, 2015) under section III. D. Moderate SIP Revision Deadline.

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3 Table 1 . List of Commenters and Associated Docket Numbers

Docket Number Commenter Name EPA

- HQ

- OAR

- 2015

- 0468

- 0 025 Craig Butler, Director, Ohio Environmental Protection Agency , Columbus, Ohio EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 2 6 Karen D. Hays, P.E., Chief, Air Protection Division, Georgia Environmental Protection Division , Atlanta, Georgia EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 27 William C. Allison V, Director, Air Pollution Control Division, Colorado Department of Public Health and Environment , Denver, Colorado EPA

- HQ

- OAR

- 2015

- 0468

- 0 030 Richard A. Hyde, P.E., Executive Director, Texas Commission on Environmental Quality , Austin, Texas EPA

- HQ

- OAR

- 2015

- 0468

- 0 031 Anne R. Gobin, Chief, Bureau of Air Management Connecticut Department of Energy and Environmental Protection , Hartford, Connecticut EPA

- HQ

- OAR

- 2015

- 0468

- 0 03 2 Kenneth J. Lloyd, Executive Director, Regional Air Quality Council , Denver, Colorado EPA

- HQ

- OAR

- 2015

- 0468

- 0 033 Ali Mirzakhalili, P.E., Director, Division of Air Quality, Delaware D epartment of Natural Resources and Environmental Control , Dover, Delaware EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 34 Marc Gerstman, Acting Commissioner, New York State Department of Environmental Conservation , Albany, New York EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 35 Gail Good, Acting Director, Air Management Program, Wisconsin Department of Natural Resources , Madison, Wisconsin EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 36 Joseph C. Stanko, Jr., Counsel, Hunton and Williams, Washington, D.C., on behalf of the NAAQS Implementation Coalition , Washington, D .C. EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 37 Devi Chandrasekaran, Baker Botts, LLP, on behalf of 8

- Hour Ozone SIP Coalition, Houston, Texas EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 3 8 Devi Chandrasekaran, Baker Botts, LLP, on behalf of BBCA Appeal Group, Houston, Texas EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 39 Elizabeth Wheeler, Senior Staff Attorney and Tyson Cook, Director of Science and Research, Clean Wisconsin, Madison, Wisconsin EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 40 David S. Baron, Attorney, Earthjustice, Washington, D.C., on behalf of Earthjustice and Sierra Club EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 41 Craig Thomas, Conservation Director, Sierra Forest Legacy, Garden Valley, California EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 4 2 Anonymous Public Comment EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 43 Duplicate submission from Earthjustice.

## DRAFT

4 EPA

- HQ

- OAR

- 2015

- 0468

- 0 0 44 Giordano, Assistant Commissioner, New Jersey Department of Environmental Protection, Trenton, New Jersey

Table 2 . Explanation of Acronyms and Frequently Used Abbreviations

Acronym Long Name CAA C lean A ir A ct CFR Code of Federal Regulations DV Design Value EPA United States Environmental Protection Agency FR Federal Register NAAQS National Ambient Air Quality Standards NO x Nitrogen Oxides PPM Parts per Million RACT Reasonably Available Control Technology RFP Reasonable Further Progress ROP Rate of Progress SIP State Implementation Plan

## 2.0 Determination s of Attainment

Comment : Commenter 002 5 supports the EPA’s proposed determination of attainment by the attainment date for both the Columbus and Cincinnati areas. Response: The EPA will finalize as proposed its determinations of attainment by the attainment date for these areas

.
Comment : Commenter 00 34 supports the EPA’s proposed determination of attainment by the attainment date for the Jamestown, New York area. Response: The EPA will finalize as proposed its determinations of attainment by the attainment date for these areas.



## 3.0 Extension of the Marginal Area Attainment Date s

A. Support for EPA’s proposal to grant certain areas a 1

- year extension of the attainment date

Comment : Commenter 002 5 supports the EPA’s proposed action to grant the Cleveland

Akron

- Lorain Marginal nonattainment area a 1

- year extension to the attainment dat e from July 20, 2015 to July 20, 2016. Response: The EPA will finalize as proposed.

Comment : Commenter s 00 30 , 0037 and 0038 support the EPA’s proposed action to grant the Houston

- Galveston

- Brazoria Marginal nonattainment area a 1

- year extension to the attainment date from July 20, 2015 to July 20, 2016. Response: The EPA will finalize as proposed.

Comment : Commenter 00 44 supports the EPA’s proposed action to grant the Philadelphia

- Wilmington

- Atlantic City, PA

- NJ

- MD

- DE Marginal nonattainment area a 1

- year extension to the attainment date from July 20, 2015 to July 20, 2016. Response: The EPA will finalize as proposed.



### B. Opposition to EPA’s proposal to grant certain areas a 1

- year extension of the attainment date

1. States’ c ertification of c ompliance with all requirements and commitments

Comment : Commenter 00 40 maintain ed that the 1

- year extensions under CAA section 181(a )(5)(A) are allowed only if “the State has complied with all requirements and commitments6

pertaining to the area in the applicable implementation plan.” ( See CAA §181 (a)(5)(A). The commenter contend ed that the EPA has made no substantive inquiry into wheth er each of the relevant states has met this SIP compliance requirement: The commenter assert ed that in almost all the relevant states, the EPA has merely relied on states’ self

- certification of compliance, without any evidence that the State is in fact in compliance, or any inquiry by EPA into whether the State is actually in compliance. The commenter alleged that u nder settled principles of adminis t rative law, there must be a factual and rational basis for agency action and further alleged that a bare asse rtion by the State that it is compliance with all requirements and commitments does not provide such a factual or rational basis, particularly where there is no evidence that the assertion of compliance was based on a systematic review of compliance or

non compliance with all the requirements and com m i t ments. Response: The EPA disagrees with the commenter’s assertion. CAA section 181(a)(5) does not specify who must make the demonstration as to whether a state is compl ying with all requirements and commitments to the area in the applicable implementation plan

. Nothing in the provision explicitly prohibits the EPA from relying on certified statements from state officials that the requirement of CAA section 181(a)(5)(A) has b een met, and nothing in the provision supports the commenter’s suggestion that the EPA is independently required to perform a “systematic review of compliance or noncompliance” of the state’s SIP regardless of whether a state official has made a certified statement to that effect in order to grant an attainment date extension. Given the state and federal partnership in implementing the CAA, it is not unreasonable for the EPA to interpret CAA section 181(a)(5)(A) as permitting the agency to rely upon the cer tified statements of its state counterparts, and the EPA has long interpreted the provision to be satisfied by such statements. 5 In practice, in conjunction with a request for an extension, a state air agency’s Executive Officer, or other senior individual with equivalent responsibilities, sign s and affirm s that their state is complying with their applicable federally

approved SIP

. The commenter argues that the certifications lack rational or factual bases, but has not presented any evidence or made any dem onstration that suggests any of the states receiving an attainment date extension are not in compliance with their SIPs. Absent such a showing, the EPA is disinclined to invalidate the certifications made by the states

.

Comment : Commenter 0040 stated that because neither Delaware nor New Jersey have made any claim or demonstration that they have complied with all requirements and commitments in the SIP pertaining to the Philadelphia area that the 1

- year extension that the CAA criteria under CAA section 181 (a)(5)(A) has not been met. The commenter added that e ven if the EPA’s acceptance of states’ self

- certification of such compliance were sufficient that it conducted its own analysis of Delaware’s c ompliance with the CAA section 181(a)(5)(A) criteria, 80 Fe d. Reg. at 51997 n.10, which the commenter alleged is devoid of any actual evidence or showing that Delaware has in fact complied with all requirements and commitments

5 See Berry Memorandum

.7

in the SIP pertaining to the Philadelphia nonattainment area. The commenter further adde d that the only specific discussion on this certification shows that Delaware is not in compliance with the Act’s NSR requirements for nonattainment areas. 6 Response: Given the state and federal partnership in implementing the CAA, it is not unreasonable f

or the EPA to interpret CAA section 181(a)(5)(A), in the absence of a state submitting a certification of compliance, for the EPA to exercise discretion and conduct an independent review of the applicable SIP in order to, in this case, determine whether De laware and New Jersey are in compliance with the requirements and commitments of the federally

approved SIP. CAA section 302(q) defines “applicable implementation plan” as the portion (or portions) of the implementation plan, or most recent revision thereo f, which has been approved under CAA section 110, or promulgated under CAA section 110(c), or promulgated or approved pursuant to regulations promulgated under CAA section 201(d) and which implements the relevant requirements of the CAA. The Act does not s pecify what type of review is required in order for the states or the EPA to demonstrate that the condition under CAA section 181(a)(5)(A) has been met; therefore, the EPA reasonably interprets the condition to require a review of the relevant, applicable approved implementation plan provisions, and an application of its own knowledge and expertise with regard to whether the state is meeting those obligations, including a review of whether the Agency or outside parties has identified state noncompliance wit h the obligations. Therefore, in proposing to grant a 1

- year extension of the attainment date for the Philadelphia area, and in conjunction with EPA Headquarters, the EPA Regional Offices, which have particular expertise and knowledge of the contents and i mplementation of SIPs, conducted review s of whether Delaware and New Jersey are in compliance with the ir applicable implementation plan s

. The EPA reviewed New Jersey’s applicable implementation plan found at 40 CFR 52.1570 and the most recent actions related to New Jersey’s applicable ozone implementation plan , which include the following EPA approvals: 74 FR 22837

– “Approval and Promulgation of Implementation plans, New Jersey Reasonable Further Progress Plans, Reasonable Ava ilable Control Technology, Reasonably Available Control Measures and Conformity Budgets; ” 75 FR 45483

– “Approval and Promulgation of Implementation Plans; Implementation Plan Revision; State of New Jersey;” and 75 FR 80340

– “Approval and Promulgation of Implementation Plans; New Jersey; 8

- hour Ozone Control Measure.” Since the adoption of these measures, New Jersey has also amended its SIP to adopt and implement additional emission reductions as part of its SIPs to reduce regional haze and to meet the NAA QS for fine particles. The EPA has reviewed the contents of New Jersey’s applicable SIP and notes that there are no pending enforcement actions by the EPA or outside parties alleging that New Jersey has failed to implement its applicable plan. Similarly, t he EPA reviewed Delaware’s applicable ozone implementation plan found at

6 See “ Technical Support Document Regarding Ozone Monitoring Data

– Determination s of Attai nment, 1

- Year Attainment Date Extensions, and Reclassifications for Marginal Areas under the 2008 8

- Hour Ozone National Ambient Air Quality Standard (NAAQS) ,” page 14, August 25, 2015.8

40 CFR 52.420. In our August 2015 proposal, we noted a recent proposal to disapprove a revision to Delaware’s New Source Review (NSR) preconstruction permitting program regulation, s ee 80 FR 30015 (May 26, 2015)

. Despite this proposed disapproval of a SIP revision, we did not believe this proposal to disapprove a SIP revision was a bar to the EPA granting a 1

- year attainment date extension for the Philadelphia area. The EPA has examin ed its own internal database of the notices required under 40 CFR 51.161(a), (b) and (d) (relating to a notice providing for public and the EPA comment on permit applications) and information posted by the State of Delaware. For the period after September 11, 2013 (the date on which Delaware’s newly expanded offset area provisions under state law were effective), the EPA has identified no permits which triggered the requirement for lowest achievable emission rate (LAER) and offsets under Delaware’s Regulati on 1125 relating to ozone precursors of VOCs and NO x . The EPA found that Delaware had undertaken a number of permitting actions since September 11, 2013 , but none of these were subject to sections 2.5.5 and 2.5.6 of Delaware’s Regulation 1125. The EPA also did not find any incidences of enforcement actions by the agency or outside parties alleging that Delaware is not meeting its SIP obligations. Moreover, the commenter has not presented any evidence or made any demonstration that suggests either New Jersey or Delaware is not in compliance with their applicable SIP and is thus unqualified to receive an attainment date extension. Based on its review of the states’ applica ble implementation plans and its knowledge and expertise of state actions with regard to those plans, the EPA is making a final determination that both New Jersey and Delaware are meeting the conditional requirement of CAA section 181(a)(5)(A).

2. EPA’s p roposed e xtension for Philadelphia m ulti

- state nonattainment area.

Comment : The commenter 0040 claim ed that EPA’s proposed 1

- year extension of the attainment date for the Philadelphia

- Wilmington

- Atlantic, PA

- NJ

- MD

- DE, multistate nonattainment area is arbitrary and unlawful. The commenter indicated that the EPA ackno wledge d that Delaware, which is one of the states with territory in the nonattainment area, never requested a 1

- year extension. 80 FR 51997 n.10. The commenter further claimed that the EPA erroneously exercised its discretion to propose granting the Philadelphia area a 1

- year extensi on of the attainment date. In contrast, the commenter detailed a similar circumstance where the EPA took precisely the opposite tack when New York requested a voluntary bump

- up of the New York City area multistate nonattainment area . Th e commenter indicated that the EPA refused to act and eventually expressed its position that it was interpreting the Clean Air Act, in particular Section 182(j)(1), as requiring all states in a multi

- state nonattainment area to request a voluntary bump

- up before EPA would grant it. 7 The commenter believed i t is arbitrary for EPA to require all states covered by a multistate nonattainment area to agree to request a bump

- up, but not to require all states covered by a multistate nonattainment area to agree to request an

7 The commenter supported the comment by referencing the following: 79 FR 27830, 27833 n.4 (May 15, 2014); EPA

- HQ

- OAR

- 2008

- 0885

- 0191 at 18 (“In line with CAA §182(j)(1) addressing multi

- state nonattainment areas, the EPA believes that the states should behave in a coordinated manner when working toward attainment ”).9

extension. The commenter asserted that it is further arbitrary and unlawful for EPA to provide no explanation for the inconsistent position, especially when the same provision, Section 182(j)(1), seemingly has equal bearing on each situation, an d EPA has already interpreted it to require coordination and unanimity among the affected states

. Response: The EPA disagrees with commenter that a request for voluntary reclassification under CAA section 181(b)(3) and a request for an extension of the attainment date under CAA section 181(a)(5) both require “unanimity” among the affected states. The EPA also do es not agree that granting an extension of the attainment date to all states with jurisdiction over the Philadelphia multi

- state nonattainment area is inconsistent with its prior reading of CAA section 182(j)(1). The statutory provisions governing voluntar y reclassifications and requests for 1

- year attainment date extensions differ in key respects regarding the question of whether all states in a nonattainment area need to request the action before EPA may grant such request s . CAA section 181(b)(3), which g overns voluntary reclassifications, states that “ t he Administrator shall grant the request of any State to reclassify a nonattainment area in that State [in accordance with the area’s design value (DV) ] to a higher classification.” (emphasis added). The EP A reads that provision, and specifically the words “in that state,” to mean that although any state may request a reclassification, it can only do so on behalf of its own state. The same limiting phrase does not appear in the statutory provision governing 1

- year attainment date extensions. That provision, CAA section 181(a)(5), states, “Upon application by any State, the Administrator may extend for 1 additional year” the attainment date

, provided that the State has complied with all requirements and commit ments pertaining to the area in its applicable implementation plan and the area meets certain air quality criteria. Because the statute grants EPA the discretion to extend an attainment date “upon application by any State” and establishes limiting conditio ns that can be demonstrated as satisfied by either a state or by EPA, CAA section 181(a)(5) by its terms does not require the consent of every state within a multi

- state nonattainment area. The EPA does however interpret that provision as requiring all sta tes with jurisdiction over the nonattainment area to substantively meet the two statutory conditions, although we note that the provision does not specify who must make the demonstration that the conditions have been met. Interpreting these two provisions to permit differing thresholds of state “unanimity” is particularly reasonable given the consequence of EPA’s action in each case. In extending an attainment date, EPA imposes no additional obligation upon any state, but rather grants areas that are close to achieving the air quality standard one additional year to come into compliance, provided that the states governing that area meet certain criteria. A voluntary reclassification, on the other hand, can impose significant new attainment planning and emis sion reduction obligations. Had Congress intended to allow one state to request a reclassification on behalf of another state, and

, therefore

, to impose upon another state, without that state’s consent, all of the

resource

- intensive consequences potentiall y associated with that action, it would have clearly stated so. EPA further disagrees with commenter that its prior interpretation of CAA section 182(j)(1) as requiring all states in a multi

- state ozone nonattainment area to agree to a voluntary reclassif ication is inconsistent with not requiring such consensus in the case of an attainment date extension. Section 182(j)(1)(A) directs states to “take all reasonable steps to coordinate, substantively and procedurally, the revisions and implementation of [SIP s] applicable to the nonattainment area concerned.” This provision on its face does not apply to an attainment date10

extension under CAA section 181(a)(5). Extending the attainment date by one year does not change an area’s SIP submission requirements. Ther efore, CAA section 182(j)(1)(A)’s directive to states governing a multi

- state area to coordinate SIP submissions plainly does not have bearing on a provision that does not alter or affect SIP submissions. By contrast, as the EPA has stated, the coordinatio n required by CAA section 182(j)(1)(A) is relevant to a voluntary reclassification, which establishes upon the states with jurisdiction over the nonattainment area

, new obligations to prepare and submit revisions to SIPs.

3. EPA’s proposed extension for Sheboygan County , Wisconsin

Comment : Commenter 0039 stated their belief that granting a 1

- year extension to the Sheboygan, Wisconsin Marginal ozone nonattainment area at this time is particularly ill

- advised. The commenter asserted that recent data trends in Sheboygan demonstrate that the air quality is not improving and that the area may not be able to meet an attainment DV after the first 1

- year or even the second 1

- year extension would not be justified. The commenter alleged that granting an extension to Sheboygan would hinder the area’s ability to adhere to strict timelines set forth in the Clean Air Act for attainment. T he commenter charged that if Wisconsin is granted a 1

- year extension but “bumped

- up” to moderate nonattainment on July 20, 2016 due to the 2015 ozone monitoring season data, Wisconsin’s inactivity in designing and implementing adequate SIP requirements to address the NAAQS violation will only serve to hinder its ability to achieve compliance by this date

. The commenter believed that even though data for Sheboygan County show that area air quality has significantly improved since the inception of the 1997 oz one NAAQS, a closer look at the data shows that improvements in area air quality have plateaued since 2010. Ozone is highly sensitive to changes in weather patterns, and so a “good” ozone year (such as 2014 for Sheboygan) is not necessarily indicative of a trend of air quality improvement. To account for this, looking at a longer rolling average is more appropriate to evaluate whether ozone air quality is improving or not. The commenter stated that c ombined with the fact that the Sheboygan monitor data show s that the area has consistently read nonattainment for the 2008 NAAQS but has also recently backslid into , a 1

- year extension should not be granted, however, the area should be reclassified to Moderate nonattainment. Response : CAA Section 181(a)(5) of the CAA, as interpreted by EPA in 40 CFR 51.1107, authorizes EPA to grant a 1

- year attainment date extension upon application by a state if: (1) the state has complied with all requirements and commitments in the applicable SIP, and (2 ) all monitors in the area have a fourth highest daily maximum 8

- hour average of 0.075 ppm or less for the last full year of air quality data prior to the attainment date (i.e., 2014 for an attainment date of July 20, 2015). Here, Wisconsin has clearly met both of the conditions as to the Sheboygan area. Wisconsin submitted a request to the EPA for a 1

- year extension of the attainment date for the Sheboygan area, certifying that Wisconsin had complied with all requirements and commitments pertaining to the area in the applicable implementation plan and that all monitors in the area have a fourth highest daily maximum 8

- hour average of 0.075 ppm or less for 2014, the most recent complete year of quality

- assured and certified data preceding11

the July 20, 2015, attainment date. 8 The EPA has also evaluated the quality

- assured and certified air quality monitoring data for 2014 and determined that Sheboygan met the air quality requirements of CAA section 181(a)(5)(B) and the EPA’s interpretation of that statutory
pr ovision in 40 CFR 51.1107 to mean that Sheboygan’s fourth highest daily maximum 8

- hour average in the year preceding the attainment date is equal to or below the 2008 ozone NAAQS ( See 80 FR 12292) of 0.075 ppm. Although EPA agrees with commenter that the Administrator retains the discretion to deny a state’s request for an attainment date extension even if the state has met both criteria in CAA section 181(a)(5), the Agency is declining to exercise that discretio n here. The commenter relies primarily upon preliminary air quality data that has not been quality assured and certified to contend that the Administrator should deny Wisconsin’s request here 9 , and, given that the state meets the extension criteria, the Ad ministrator is disinclined to deny the state’s request based on preliminary data. Moreover, the citation from the Berry memorandum 10 that commenter relies upon is directed at cautioning states to consider whether a 1

- year attainment date extension will be h elpful in achieving the NAAQS, in deciding whether to request an extension, and is not directed at the Administrator’s decision as to granting such request. The EPA does , however, agree with commenter that, given the air quality trends and data presented b y the commenter, it would be prudent for the state to begin preparing for the possibility that the area may not attain in 2016 or meet the requirements to get an additional 1

- year extension. However, the Agency does not believe that those possibilities are reason enough to deny the state’s request for this 1

- year extension, given that Wisconsin has met the two statutory criteria. Therefore, EPA declines to grant the commenter’s request to find that the area failed to attain by July 20, 2015 and to subsequently reclassify the area accordingly. T he Sheboygan nonattainment area will remain classified as Marginal for the 2008 ozone NAAQS

un til the EPA (1) determines

, based on quality assured and certified air quality data for 2013

- 2015, that the area di d not attain the 2008 ozone NAAQS by July 20, 2016, and does not qualify for an additional 1

- year extension 11 and (2) reclassifies the area based on this determination. We expect Wisconsin to be taking the necessary steps to achieve timely attainment and wi ll continue to work with the state toward that end.

8 See Le tter signed by Bart Sponseller, Deputy Division Administrator, Air, Waste and Remediation & Redevelopment Division, Wisconsin Department of Natural Resources addressed to Ms. Susan Hedman, Regional Administrator, US EPA Region 5. RE: Request for 1

- year ext ension to the attainment date for the Sheboygan, WI nonattainment area, May 12, 2015

. Docket EPA

- HQ

- OAR

- 2015

- 0468

- 0022 at www.regulations.gov

9 These data are subject to the EPA’s date certification requirements of 40 CFR 58.15, which require a state to submit its annual data certification letter by May 1.

10 See memorandum signed by D. Kent Berry, Acting Director, Air Quality Management Division, “Procedures for Processing Bump Ups and Extension Requests for Marginal Ozone Nonattainment Areas.” U.S. EPA, February 3, 1994

.
11 The area will qualify for a second 1

- year exten sion if, and only if, the average of annual fourth

- high daily maximum 8

- hour ozone concentrations for 2014 and 2015 is at or below 0.075 ppm at the worst

- case monitor in Sheboygan County.12

. 

## 4

. 0 Determinations of Failure to Attain and Reclassification

Comment : Commenter 0031 agreed the NY

- NJ

- CT and the Greater Connecticut areas should be reclassified as moderate nonattainment areas. Nevertheless, the commenter indicated that both current measured ozone levels and available modeling projections indicate that the Connecticut portion c ontinues to be subject to overwhelming levels of interstate transport that make it impossible to achieve statewide attainment of the 2008 NAAQS by 2017 unless significant and timely reductions of transported emissions are provided by upwind states and EPA. Response : In the preamble of the final rule, Section E: “ Rescission of Clean Data Determination and Final SIP Call,” EPA provides a response to this comment.

Comment : Commenter 003 4 agreed the New York

- N. New Jersey

- Long Island, NY

- NJ

CT nonattainment area should be reclassified as a moderate nonattainment area. The commenter pointed out that in earlier correspondence to the EPA, the State of New York requested that the New York Metropolitan Area be reclassified to Moderate nonattainment status for the 2008 ozone NAAQS. Response : The EPA will finalize as proposed to reclassify the entire 2008 ozone nonattainment area from Marginal to Moderate.



## 5.0 Moderate Area SIP Revision Submission Due Date

Comment : Commenters 0026

, 0027 and 0032 expressed their support for the first option

, which proposed to set the deadline for SIP revision submittals to coincide with individual state’s start of the ozone season which for these commenters would be March 2017. The commenters stated that the first option would ali gn the SIP submittal deadline with the deadline for implementing applicable controls. The commenters pointed out that t here are no air quality benefits as a result of requiring the earlier submittal date since the attainment date for moderate
ozone nonatta inment areas (July 20, 2018) is the same regardless of when the SIP revision is submitted. The commenters further stated that b y allowing the use of the start of each area’s ozone nonattainment area as the submittal deadline, this allows each area addition al time to properly prepare their air quality pla ns. Commenter 0035 suggested that the EPA should establish a deadline at the beginning of the 2017 ozone season and assure that the date is no earlier than April 15, 2017. The commenter stated that changing the start of a state’s (Wisconsin) ozone monitoring season to a date earlier than April 15, 2017 is unsupported by data and fails to appreciate the logistical challenges to starting up monitoring sites in mid

- winter in the upper Midwest. Commenter 0036 supported setting the alternate SIP revision deadline at the beginning of the ozone season in 2017 for each state as opposed to a standard January 1, 2017 deadline. Commenter 0044 charged that neither proposed date allows sufficient time for states to
prom ulgate and implement additional strategies before the 2017 ozone season.13

Response : As we’ve stated in the final rule preamble, of the 11 areas being reclassified to Moderate, there are only four areas located in states with ozone seasons that begin later t han January 1 that could potentially benefit from an extra 2 months to submit their SIP revisions. While the EPA recognizes the value to certain states of additional time (beyond January 1, 2017) to develop an attainment demonstration, an ROP/ RFP plan, and contingency measures

, the EPA also recognizes the value in establishing a single due date for Moderate area SIP submissions

– including RACT

– that does not extend beyond the deadline for implementing such controls. Thus the EPA is finaliz ing its second p roposed option

, which requires that states submit the required Moderate area SIP revisions as expeditiously as practicable, but no later than January 1, 2017. This approach aligns the SIP submittal deadline with the deadline for implementing RACT pursuant to 40 CFR 51.1112(a)(3), for each area, and would also ensure that SIPs requiring control measures needed for attainment, including RACM, would be submitted c oncurrent to when those controls are required to be implemented. This option also treat s states consistently , in keeping with CAA section 182(i). The EPA recognizes the challenges posed by these very short deadline and is committed to working closely with all states to help them prepare their SIP revisions, including parallel processing, in a timely manner.

Comment : Commenter 0040 claims that the EPA ’s proposal to extend SIP submission deadlin e is arbitrary and illegal. The commenter believes that the EPA has failed to articulate a legally sufficient basis for extending the SIP submittal deadlines at all. The commenter argued
t hat under 42 U.S.C. 7511a(i), the EPA may adjust deadlines for reclassified areas (other than
at tainment dates) only “to the extent ....necessary or appropriate to assure consistency among the required submissions.” The commenter maintains that the EPA has made no claim that the proposed 2017 submittal dates is necessary or appropriate to assure consis tency among the required submissions. The commenter claims that EPA’s rationale for the extensions is merely that the original deadlines for the moderate area SIP submittals have all passed and that a reasonable alternative would purportedly be to reset th e deadlines to the beginning of the ozone season immediately preceding the attainment deadline. This rationale has nothing to do with assuring consistency among the required submissions. Rather, it merely reflects a policy preference by EPA to give states more time than the statute allows. Further, giving states until 2017 to submit these SIPs interferes with the above

- specified SIP requirements, and the attainment date, in contravention of CAA §110(l). Even if EPA adopts the earliest SIP submittal deadline option it has proposed

– January 1, 2017

– EPA will have up to 18 months to approve or disapprove those submittals: that is, as late as July 1, 2018

– only a few weeks before the attainment deadline

- and far too late for EPA to require timely For example , if the SIP submittal contains deficient RACT provisions, EPA’s proposed approach allows those deficiencies to go without remedy until long after the deadline for implementing RACT, and long after the beginning of ozone season when the RACT measures are n eeded to help assure timely attainment. Moreover, in the interim, the provisions of these SIPs (even those that are approvable) will not be federally enforceable, and states will not be subject to the remedies that Congress designed to assure timely adopti on of adequate nonattainment area plans, and correction of deficient ones. The commenter claimed that EPA’s proposed approach also illegally interferes with the Act’s requirement that RACT measures be implemented as expeditiously as practicable, but no14

lat er than January 1 of the 5 th year after the date of nonattainment designation (here, no later than January 1, 2017). 42 U.S.C. 7511a(b)(2); 80 Fed. Reg. at 12280. It also illegally interferes with EPA’s own rules requiring that all controls required to pro vide for timely attainment be implemented no later than the beginning of the ozone season in which attainment must be achieved. If the state is not required to even submit its proposed SIP to EPA until January 1, 2017 or later, then actual implementation o f federally enforceable RACT by January 1, 2017 is not assured. Moreover, states may claim that setting the SIP submittal date and the implementation date so close

— even on top of each other

-- means that as a practical matter they cannot adopt RACT requireme nts more stringent than operation of existing controls. Such a result would flout the Act’s mandates for RACT, which has long been defined as “the lowest emission limitation that a particular source is capable of meeting by the application of control techn ology that is reasonably available

, considering technological and economic feasibility.” 78 Fed. Reg. at 34191

. The commenter further argued that the re is, in fact, no lawful or rational reason to extend the moderate area submittal deadlines at all for the reclassified areas. That the deadlines have already passed hardly justifies extending them. Although failure to meet those deadlines will require EPA to make non

- submittal findings under CAA §110(k)(1)(B), states will still have ample time to avoid FIP s and sanctions by moving swiftly to submit approvable plans. The only thing that will be accomplished by extending the submittal deadlines is more delay. Nor are extensions justified to assure consistency among the submissions: At this stage, there is not hing to prevent states from submitting the required SIPs together (or in a logical sequence) at the earliest possible date. Even if EPA had a lawful basis for extending the deadlines, there is no basis for giving these states until January 1, 2017 or later to submit the required plans. As a practical matter, these states have known since at least the end of the 2014 ozone season that they were facing the likelihood of bump up to moderate. 2 January 2017 is more than 2 years past then. And even if a state was just starting work today on the SIP revisions, there is no reason the job cannot be done in six months or less. See, e.g., Delaney v. EPA , 898 F.2d 687, 695 (9 th Cir. 1990) (ordering promulgation of a FIP for the Phoenix nonattainment area within 6 months )

. Response : The EPA disagrees with the commenter on all aspects of these comments. First, we believe that CAA section 182(i) clearly provides the Administrator the discretion to adjust any applicable deadline for reclassified areas (other than attainmen t dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions. The EPA disagrees with the implication of the comment that the default assumption upon reclassification is that the EPA would not adj ust the Moderate SIP submission deadlines. The fact that Congress included CAA section 182(i) in the statute indicates that it envisioned that upon reclassification, deadlines would be adjusted by the Administrator in a reasonable fashion. This is a partic ularly reasonable interpretation under the facts at issue here: the attainment date for Marginal areas under the statute and regulations is July 20, 2015, and the Moderate area SIP submission date for areas initially classified as Moderate for the 2008 ozo ne NAAQS is also July 20, 2015. Under CAA section 181(b)(2)(A), the EPA must make determinations of attainment and necessary reclassifications within 6 months of the statutory attainment date. Therefore, under the commenter’s interpretation of the CAA, upo n reclassification 6 months after July 20, 2015, states would immediately be found to be in default of the obligation to submit a Moderate area plan, a deadline that had passed 6 months prior, even though that obligation did not apply until15

the moment of r eclassification. We do not agree that Congress would have intended the draconian and absurd result of providing states initial notice of an obligation and in the same action finding them at fault for already failing to have met that obligation. Therefore, the EPA believes that it is reasonable to read CAA section 182(i) in the context of the 11 reclassified 2008 Marginal ozone areas to provide the Administrator the authority to adjust the applicable deadline for Moderate area attainment plans “as necessary or appropriate to assure consistency among the required submissions.” Moreover, failing to establish new Moderate area SIP submission deadlines for the 11 areas that we are reclassifying in this notice would lead to potential inconsistency in required sub missions among those areas. Under the commenter’s interpretation, these areas would all have missed their deadline to submit a Moderate area plan on July 20, 2015. The c ommenter would

, therefore

, have the EPA begin issuing findings of failure to submit und er CAA section 110(k), which are required by statute 6 months following the statutory deadline to submit a SIP, simultaneously with this action, that is, the EPA’s determination that the areas failed to attain and reclassification of those areas. Following the EPA’s issuance of findings of failure to submit for the 11 areas, there would be no defined statutory or regulatory deadline by which to remedy the states’ failures to make submittals, except the outside limit of 2 years, the deadline for EPA’s obliga tion to implement a Federal Implementation Plan (FIP). Additionally, if the EPA had not affirmatively determined that a state had made a complete SIP submittal for an area within 18 months from the issuance of a finding of failure to submit, the offset san ction identified in CAA section 179(b)(2) would apply to the affected nonattainment area. The EPA also disagrees with the commenter that establishing a new SIP submittal deadline for the reclassified areas is in contravention of CAA section 110(l). CAA sec tion 110(l) requires that plan revisions must go through notice and public hearing at the state level before submission to the EPA, and that “the Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requi rement concerning attainment and reasonable further progress . . . or any other applicable requirement of this chapter.” In order for the EPA’s proposed SIP submittal date to be in contravention of CAA section 110(l), one has to assume that the states will submit deficient SIPs and that the EPA will not take any kind of corrective action on those SIPs until the maximum possible time period permitted under the statute to take action on such submittals ( 18 months ) has passed . Only then could a SIP submittal d ate for more than 18 months prior to the attainment date be interpreted as interfering with the attainment of the NAAQS. The EPA does not believe this is a reasonable reading of CAA section 110(l) or the circumstances of these reclassifications and SIP dea dline adjustments. While the EPA

a cknowledges that the timeline for preparation and submittal of SIPs must be compressed in order for measures to be in place to ensure areas attain by their new Moderate area attainment date, in establishing the new SIP sub mittal deadlines for these reclassified areas, the agency is also taking into account the necessary time required for states to identify measures, complete the public notice and hearing process at the state level, and prepare SIP submissions.


## 6

. 0 Other Com ments

A. Interstate Transport16

Comment : Commenter 0031 claimed that Connecticut’s coastal ozone monitors sited along land adjacent to Long Island Sound, which are generally upwind of significant emission
sources, have been the epicenter for the vast majority of ozone season exceedances in the Northeastern United States during 2015. The commenter interpreted that the EPA’s latest modeling to support this notion that the exceedances are caused by non

- Connecticut sou rces . T he commenter claimed that EPA’s modeling project ion s show that Connecticut will continue to violate the 2008 ozone NAAQS in 2017

. The commenter believed that this is an unfair burden and alleged that while the state has developed an attainment demon stration, contrary to that effort, extensive modeling within the Ozone Transport Region concludes that Connecticut will not achieve attainment.

Commenter 0033 generally agreed that the EPA has a mandatory duty to determine if nonattainment areas attained the applicable ozone NAAQS by the attainment date based on an

area ’ s design value for the most recent 3 year period, however, the commenter claimed this

s hould not be the case when upwind emissions are the cause of an area’s nonattainment status. The comm enter indicated a desire to support EPA’s proposal to grant a 1

- year extension of the Philadelphia area but , on the other hand, the commenter contended that a “bump

- up” to a Moderate nonattainment classification may be the only alternative. However, the co mmenter purported that a “bump

- up” is not warranted because all non

- trivial VOC and NO x emitting sources in Delaware are well controlled. The commenter declared that Delaware has satisfied all applicable CAA requirements with the 2008 ozone NAAQS and that the remainder of the state’s nonattainment problem is due to controllable emissions from upwind states. The commenter alleged that if the EPA had compelled upwind states to meet their good neighbor obligations in a timely manner, Delaware would be fully in attainment. The commenter argued that Delaware suffers from, but does not own

, this problem and that the EPA proposal to grant a 1

- year

e xtension would burden the state. The commenter asked that the EPA clarify in the final rule that neither a 1

- year extension nor a finding of attainment impacts any state’s obligations to comply with the requirements of CAA 110(a)(2)( D ). Response : CAA secti on 110(a)(2)(D(i)(I) requires each state in its SIP to prohibit emissions that will significantly contribute to nonattainment of a NAAQS, or interfere with maintenance of a NAAQS, in a downwind state. Under section 110(a)(2)(D)(i)(I), each state is require d to submit to the EPA new or revised SIPs that “contain adequate provisions

– prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will ... contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.” In response to both commenters, t he EPA has a mandatory duty to make determinations of attainment or failure to attain the NAAQS exists regardless of the nature or effect of transported emissions on monitored air quality data in a given nonattainment area. 12 Nonetheless,

12 See Sierra Club v. EPA , 294 F.3d 155, 160

- 62 (D.C. Cir. 2002) (holding that the EPA is not permitted to relax mandatory statutory requirements for downwind areas on the basis of interstate transport).17

the EPA readily acknowledges the role interstate transport of precursors to ozone pollution plays in the efforts of downwind areas to attain and maintain the NAAQS. To that end, as commenters have alluded to, the agency has taken a number of steps to fulfil its statutory obligation to enforce CAA section 110(a)(2)(D), or the “good neighbor” provision, including the NO x SIP Call, the Clean Air Interstate Rule, and the Cross

- State Air Pollution Rule (CSAPR). M ost recently, the EPA has proposed to update CSAPR specifically to address the 2008 ozone NAAQS wit h tightened oz 1

- season NO x budgets designed to achieve emission reductions in upwind states before the Moderate area attainment date of July 2018.

Comment : Commenter s 0031, 0033 and 0044 urged the EPA to assure the upwind states fully meet their good neighbor obligations in time for particular states to meet its 2008 ozone NAAQS obligations by 2017. Response : The EPA’s goal, where appropriate, is to facilitate state efforts to implement
t heir “Good Neighbor” SIPs. At this time, there are a number of st ates that have not submitted “Good Neighbor” SIPs for the 2008 ozone NA AQS , which were due in 2011, and the EPA has issued findings of failure to submit for a number of those states

. In addition, th e re are a number of pending “Good Neighbor” SIPs for the 2 008 ozone NAAQS that the EPA will review and take action on. While our goal is to facilitate SIP development, the EPA also recognizes its backstop role in the SIP development process

— that is, our obligation to dev elop and promulgate federal implementation plans, as required

. As noted above, the EPA has already proposed an update to CSAPR in order to address this obligation, and plans to finalize that update in time to achieve emission reductions by the attainment date.



### B. Photochemical modeling

Comment : Commenter 0031 urged the EPA to make it a priority to supplement its photochemical modeling effort with in

- depth scientific research to better understand and characterize the nature of the ozone problem over Long Island Sound. The commenter believes that t here is insufficient research being done to accurately reflect the transport dynamics associated with the confluence of emissions from major urban corridors over Long Island Sound and its impact on Connecticut’s coastal population. Response : These comments are outside the scope of today’s rulemaking, which does not
propose any approaches for researching ozone transport in th is rulemaking

.



### C. Expedite Implementation Policies and Rules Concurrent with NAAQS Standard

Comment : Commenter 0036 encouraged the E PA to concurrently address implementation policies, guidance and rules when revising the ozone standard. The commenter asserted their belief that expediting issuance of implementation rules will allow states, localities and the regulated community the impl ementation flexibility necessary for a coherent regulatory
process. Response : These comments are outside the scope of today’s rulemaking, which does not18

propose any schedules for expediting issuance of implementation rules.



### D. Prescribed Fire and Natura l Ignitions

Comment : Commenter 00 41 asked that the EPA consider the impacts of natural emissions from prescribed fire and natural ignitions and the smoke produced by such activities as necessary for proper management of native vegetation in fire

- associate d landscapes such as the Sierra Nevada. The commenter asserted that it is appropriate and scientifically sound to carve out emissions from fires used for resource management since smoke (as a part of appropriate natural resource management) is identified a s a contributing ozone precursor chemical element. Th e commenter added that the “carve out” or separation from non

- natural resource related chemical precursors is important to promote regulation of stationary and mobile sources and avoid restrictions on fire use and its role at minimizing emissions and human health impacts from
mega

- fires. The commenter also requested that mega

- fire emissions (uncharacteristic wildfire emissions as defined by the best available science) be analyzed in areas of non

- attainment such as Eastern Kern County, Western Nevada County a nd Mariposa County ( See Table 4, 80 FR 51998) to determine the degree that wildfire emissions influence the marginal nonattainment status in the 2008 NAAQS leading to 2014 non

- attainment. The commenter contended that prescribed fire and wildland fire use f or natural resource benefit are two key tools land managers must use, as needed when opportunity presents itself, and when accompanied by current smoke management plans, to build forest resilience, stabilize carbon and to minimize impacts to public health. Response: These comments are outside the scope of today’s rulemaking, which does not
propose any methods to account for emissions from prescribed fires and natural ignitions

.