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, 2016
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
DRAFT

2

1.0 Introduction 

The U.S. Environmental Protection Agency (EPA) proposed a rule on August 27, 2015, to 

determine whether the 36 Marginal ozone nonattainment areas attained the 2008 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 rule1attained the 2008 ozone 

standards by the July 20, 2015, attainment date. Second, the EPA proposed to determine that 

eight areas, listed in the proposed rule,2did not attain the 2008 ozone standards by the July 20, 

2015, attainment date, but qualified for a 1-year attainment date extension based in part on their 

2014 monitored air quality data. Third, the EPA proposed to determine that the 11 areas listed in 

the proposed action,3did 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 reclassified as 

Moderate based on their 2012-2014 air quality data. The EPA also proposed 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 requirements 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 

publication 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. Determinations of Failure to Attain 

and Reclassification.

4

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

3

Table 1. List of Commenters and Associated Docket Numbers 

Docket Number Commenter Name

EPA-HQ-OAR-2015-0468-0025 Craig Butler, Director, Ohio Environmental Protection 

Agency, Columbus, Ohio

EPA-HQ-OAR-2015-0468-0026 Karen D. Hays, P.E., Chief, Air Protection Division, 

Georgia Environmental Protection Division, Atlanta, 

Georgia

EPA-HQ-OAR-2015-0468-0027 William C. Allison V, Director, Air Pollution Control 

Division, Colorado Department of Public Health and 

Environment, Denver, Colorado

EPA-HQ-OAR-2015-0468-0030 Richard A. Hyde, P.E., Executive Director, Texas 

Commission on Environmental Quality, Austin, Texas

EPA-HQ-OAR-2015-0468-0031 Anne R. Gobin, Chief, Bureau of Air Management 

Connecticut Department of Energy and Environmental 

Protection, Hartford, Connecticut

EPA-HQ-OAR-2015-0468-0032 Kenneth J. Lloyd, Executive Director, Regional Air 

Quality Council, Denver, Colorado

EPA-HQ-OAR-2015-0468-0033 Ali Mirzakhalili, P.E., Director, Division of Air Quality, 

Delaware Department of Natural Resources and 

Environmental Control, Dover, Delaware

EPA-HQ-OAR-2015-0468-0034 Marc Gerstman, Acting Commissioner, New York State 

Department of Environmental Conservation, Albany, New 

York

EPA-HQ-OAR-2015-0468-0035 Gail Good, Acting Director, Air Management Program, 

Wisconsin Department of Natural Resources, Madison, 

Wisconsin

EPA-HQ-OAR-2015-0468-0036 Joseph C. Stanko, Jr., Counsel, Hunton and Williams, 

Washington, D.C., on behalf of the NAAQS 

Implementation Coalition, Washington, D.C.

EPA-HQ-OAR-2015-0468-0037 Devi Chandrasekaran, Baker Botts, LLP, on behalf of 8-

Hour Ozone SIP Coalition, Houston, Texas

EPA-HQ-OAR-2015-0468-0038 Devi Chandrasekaran, Baker Botts, LLP, on behalf of 

BBCA Appeal Group, Houston, Texas

EPA-HQ-OAR-2015-0468-0039 Elizabeth Wheeler, Senior Staff Attorney and Tyson 

Cook, Director of Science and Research, Clean 

Wisconsin, Madison, Wisconsin

EPA-HQ-OAR-2015-0468-0040 David S. Baron, Attorney, Earthjustice, Washington, D.C., 

on behalf of Earthjustice and Sierra Club

EPA-HQ-OAR-2015-0468-0041 Craig Thomas, Conservation Director, Sierra Forest 

Legacy, Garden Valley, California

EPA-HQ-OAR-2015-0468-0042 Anonymous Public Comment

EPA-HQ-OAR-2015-0468-0043 Duplicate submission from Earthjustice.
DRAFT

4

EPA-HQ-OAR-2015-0468-0044 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 Clean Air Act

CFR Code of Federal Regulations

DV Design Value

EPA United States Environmental Protection Agency

FR Federal Register

NAAQS National Ambient Air Quality Standards

NOx 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 Determinations of Attainment

Comment: Commenter 0025 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 0034 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 Dates

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

extension of the attainment date

Comment: Commenter 0025 supports the EPA’s proposed action to grant the ClevelandAkron-Lorain 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: Commenters 0030, 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 0044 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’ certification of compliance with all requirements and commitments

Comment: Commenter 0040 maintained that the 1-year extensions under CAA section

181(a)(5)(A) are allowed only if “the State has complied with all requirements and commitments 
6

pertaining to the area in the applicable implementation plan.” (See CAA §181(a)(5)(A). The 

commenter contended that the EPA has made no substantive inquiry into whether each of the 

relevant states has met this SIP compliance requirement: The commenter asserted 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 under settled principles of 

administrative law, there must be a factual and rational basis for agency action and further 

alleged that a bare assertion 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 

noncompliance with all the requirements and commitments.

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 complying 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 been 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 certified statements of its state counterparts, and the EPA has long interpreted the 

provision to be satisfied by such statements.5In practice, in conjunction with a request for an 

extension, a state air agency’s Executive Officer, or other senior individual with equivalent 

responsibilities, signs and affirms that their state is complying with their applicable federallyapproved SIP. The commenter argues that the certifications lack rational or factual bases, but has 

not presented any evidence or made any demonstration 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 even 

if the EPA’s acceptance of states’ self-certification of such compliance were sufficient that it 

conducted its own analysis of Delaware’s compliance with the CAA section 181(a)(5)(A) 

criteria, 80 Fed. 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 added 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 for 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 Delaware 

and New Jersey are in compliance with the requirements and commitments of the federallyapproved SIP. CAA section 302(q) defines “applicable implementation plan” as the portion (or 

portions) of the implementation plan, or most recent revision thereof, 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 specify 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 with 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 implementation of SIPs, conducted 

reviews of whether Delaware and New Jersey are in compliance with their applicable 

implementation plans.

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 Available 

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 NAAQS 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, the EPA reviewed Delaware’s applicable ozone implementation plan found at 

 

6

See “Technical Support Document Regarding Ozone Monitoring Data – Determinations of 

Attainment, 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, see 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 examined 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 Regulation 1125 relating to ozone precursors of VOCs 

and NOx. 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’ 

applicable 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 proposed extension for Philadelphia multi-state nonattainment area.

Comment: The commenter 0040 claimed 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 

acknowledged 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 

extension 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. The 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 it 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, and 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 does 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 voluntary 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 requests. CAA section 

181(b)(3), which governs voluntary reclassifications, states that “the 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 EPA 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 commitments 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 conditions 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 states 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 emission 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 potentially 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 

reclassification 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 [SIPs] applicable to the 

nonattainment area concerned.” This provision on its face does not apply to an attainment date 
10

extension under CAA section 181(a)(5). Extending the attainment date by one year does not 

change an area’s SIP submission requirements. Therefore, 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 coordination 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. The 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 ozone 

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 combined with the fact that the 

Sheboygan monitor data shows 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 preceding 
11

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 

provision 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 

discretion 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 here9, and, given that the state meets the extension criteria, the Administrator is 

disinclined to deny the state’s request based on preliminary data. Moreover, the citation from the 

Berry memorandum10 that commenter relies upon is directed at cautioning states to consider 

whether a 1-year attainment date extension will be helpful 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 by 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. The 

Sheboygan nonattainment area will remain classified as Marginal for the 2008 ozone NAAQS 

until the EPA (1) determines, based on quality assured and certified air quality data for 2013-

2015, that the area did not attain the 2008 ozone NAAQS by July 20, 2016, and does not qualify 

for an additional 1-year extension11 and (2) reclassifies the area based on this determination. We 

expect Wisconsin to be taking the necessary steps to achieve timely attainment and will continue 

to work with the state toward that end.

 

8

See Letter 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 

extension 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 extension 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 continues 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 0034 agreed the New York-N. New Jersey-Long Island, NY-NJCT 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 align the SIP submittal deadline with the deadline for 

implementing applicable controls. The commenters pointed out that there are no air quality 

benefits as a result of requiring the earlier submittal date since the attainment date for moderate 

ozone nonattainment areas (July 20, 2018) is the same regardless of when the SIP revision is 

submitted. The commenters further stated that by allowing the use of the start of each area’s 

ozone nonattainment area as the submittal deadline, this allows each area additional time to 

properly prepare their air quality plans. 

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 

promulgate 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 than 

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 finalizing its second proposed 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 concurrent to 

when those controls are required to be implemented. This option also treats 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 

deadline 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

that under 42 U.S.C. 7511a(i), the EPA may adjust deadlines for reclassified areas (other than 

attainment 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 consistency 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 the 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 needed 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 adoption 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 no 
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later than January 1 of the 5th 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 provide 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 of 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 requirements 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 

technology that is reasonably available, considering technological and economic feasibility.” 78 

Fed. Reg. at 34191.

The commenter further argued that there 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 FIPs 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 nothing 

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 (9th 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 attainment 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 adjust 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 particularly 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 ozone 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, upon 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 until 
15

the moment of reclassification. 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 

submissions 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 commenter 

would, therefore, have the EPA begin issuing findings of failure to submit under 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 

obligation 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 sanction 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 section 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 requirement 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 date 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 deadline adjustments. While the EPA 

acknowledges 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 submittal 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 Comments

A. Interstate Transport
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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 sources. The 

commenter claimed that EPA’s modeling projections 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 demonstration, 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 

should not be the case when upwind emissions are the cause of an area’s nonattainment status. 

The commenter 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 commenter 

purported that a “bump-up” is not warranted because all non-trivial VOC and NOx 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 

extension 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 section 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 

required 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, the 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 NOx SIP 

Call, the Clean Air Interstate Rule, and the Cross-State Air Pollution Rule (CSAPR). Most 

recently, the EPA has proposed to update CSAPR specifically to address the 2008 ozone 

NAAQS with tightened oz1-season NOx budgets designed to achieve emission reductions in 

upwind states before the Moderate area attainment date of July 2018.

Comment: Commenters 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 

their “Good Neighbor” SIPs. At this time, there are a number of states that have not submitted 

“Good Neighbor” SIPs for the 2008 ozone NAAQS, which were due in 2011, and the EPA has 

issued findings of failure to submit for a number of those states. In addition, there are a number 

of pending “Good Neighbor” SIPs for the 2008 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 develop 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 there 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 this rulemaking. 

C. Expedite Implementation Policies and Rules Concurrent with 

NAAQS Standard

Comment: Commenter 0036 encouraged the EPA 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 implementation flexibility necessary for a coherent regulatory 

process.

Response: These comments are outside the scope of today’s rulemaking, which does not 
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propose any schedules for expediting issuance of implementation rules. 

D. Prescribed Fire and Natural Ignitions

Comment: Commenter 0041 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-associated 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 as a contributing ozone precursor chemical element. The

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 and 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 for 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.