### Fw: interagency comments interagency comments Karl Pepple Karl Pepple to: Rich Damberg, Scott Mathias, Leila Cook,

Rudolph Kapichak 01/31/2012 11:13 AM Cc: Butch Stackhouse 

### Here is the document Christine just sent me. There are four comment bubbles in the document. 1) On page 8, they ask for clarification between "classification" and "designation" 2) On page 11-12, they ask why the 2008 NAAQS does not automatically supersede the 1997 NAAQS in all aspects, including transportation conformity 3) On page 17, they want text added to make it clear that for future NAAQS all classifications methods will be evaluated (Scott already sent me language for this) 4) On page 19, they want TX removed as an automatic bump-up area. Talk to you soon! KP
Karl Pepple State and Local Programs Group Air Quality Policy Division Office of Air Quality Planning and Standards U. S. EPA 919.541.2683 (ph) 919.541.0824 (fax) pepple.karl@epa.gov ----- Forwarded by Karl Pepple/RTP/USEPA/US on 01/31/2012 11:09 AM ----- From: "Kymn, Christine J." <Christine_J._Kymn@omb.eop.gov> To: Karl Pepple/RTP/USEPA/US@EPA Date: 01/31/2012 11:02 AM Subject: interagency comments



### Karl, For reference on today’s call. Thanks, Christine

Christine, EO1356312866_Interagencycomments1NA_Classifications_Approach_2060-AR32.doc

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 1 of 42 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 50 and 51 [EPA-HQ-OAR-2010-0885, FRL- ] RIN 2060-AR32 Implementation of the 2008 National Ambient Ai r Quality Standards for Ozone: Nonattainment Area Classifications Approach , Attainment Deadlines and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing thresholds for classifying nonattainment areas for the 2008 ozone National Ambient Air Quality Standards (NAAQS) (the “2008 ozone NAAQS”) promulgated by the EPA on March 12, 2008. This proposal also addres ses the timing of attainment dates for each classification. Finally, we are proposing to revoke the 1997 ozone NAAQS 1 year after the effective date of designations for the 2008 ozone NAAQS for transportation conformity purposes only. DATES: Comments

. Comments must be received on or before [INSERT DATE 45 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER]

. Public Hearings

. One public hearing concerning the proposed regulation will be held on January 13, 2012. Please refer to SUPPLEMENTARY INFORMATION for additional information on the comment period and the public hearing. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-0885, by one of the following methods:

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

• Email : a-and-r-docket@epa.gov

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Page 2 of 42 • Mail : Air and Radiation Docket and Information Center, Attention Docket ID No. EPA-HQ-OAR2010-0885, Environmental Protection Agency, 1301 Constitution Ave., NW, Washington, D.C. 20460. Mail Code: 2822T. Please include two copies if possible. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW, Washington, D.C. 20503.

• Hand Delivery : Air and Radiation Docket and Information Center, Attention Docket ID No. EPAHQ-OAR-2010-0885, Environmental Protection Agen cy in the EPA Headquarters Library, Room Number 3334 in the EPA West Building, located at 1301 Constitution Ave., NW, Washington, D.C. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, Air and Ra diation Docket and Information Center. Instructions : Direct your comments to Docket ID No. EPA-HQ-OAR-2010-0885. The EPA's policy is that all comments received will be includ ed in the public docket without change and may be made available on-line at www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be co nfidential business information (CBI) or other information whose disclosure is rest ricted by statute. Do not submit in formation that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov , your email address will be automatically captured and included as part of the comment that is placed in the public doc ket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comme nt and with any disk or CD-ROM you submit. If

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 3 of 42 EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. El ectronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about the EPA’s public docket, visit the EPA Docket Center homepage at http://www.epa.gov/ep ahome/dockets.htm . For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document. Docket: All documents in the docket are listed in www.regulations.gov . Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, su ch as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center in the EPA Headquarters Library, Room Nu mber 3334 in the EPA West Building, located at 1301 Constitution Ave., NW, Washington, D.C. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744. FOR FURTHER INFORMATION CONTACT : For further general information on this rulemaking, contact Dr. Karl Pepple, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency (C539-01), Research Triangle Park, NC 27711, phone number (919) 54l-2683, fax number (919) 54l-0824 or by email at pepple.karl@epa.gov or Mr. Butch Stackhouse, Office of Air Quality Planning and Standards, U.S. Environmental Protec tion Agency (C539-01), Research Triangle Park, NC 27711, phone number (919) 54l-5208, fax number (919) 54l-0824 or by email at stackhouse.butch@epa.gov . For information on the public hearing or to register to speak at the public hearing, contact Ms. Pamela S. Long at (919) 541–0641 or by email at long.pam@epa.gov

.

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 4 of 42 SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? Entities potentially affected directly by the proposed rule for this action include state, local, and tribal governments. Entities potentially affected indirectly by the proposed rule include owners and operators of sources of emissions [volatile organic compounds (VOCs) and nitrogen oxides (NO x )] that contribute to ground-level ozone concentrations. B. What should I consider as I prepare my comments for EPA? 1. Submitting CBI. Do not submit this information to the EPA through www.regulations.gov or email. Clearly mark the part or all of the informati on that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment th at includes information claimed as CBI, a copy of the comment that does not contain the information claimed to be CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments . When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions - The agency may ask you to re spond to specific questions or organize comments by referencing a Code of Federal Regula tions (CFR) part or section number.

• Explain why you agree or disagree; suggest altern atives and substitute language for your requested changes.

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Page 5 of 42 • Describe any assumptions and provide any techni cal information and/or data that you used.

• If you estimate potential costs or burdens, explai n how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

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

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified. C. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of this notice will be posted at http://www.epa.gov/air/ozon epollution/actions.html#impl under “recent actions.” D. What should I know about the public hearing? The public hearing will be held on January 13, 2012 at the [location] at [time.] It will convene at X:XX a.m. and end at X:XX.p.m. or until the last re gistered speaker has spoken. If you would like to speak at this public hearing, pl ease contact Ms. Pamela Long no later than 5:00 p.m. on January 11,
2012. The public hearing will provide interested partie s the opportunity to present data, views, or arguments concerning the proposal. The EPA may ask cl arifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be consider ed with the same weight as any oral comments and supporting information presented at the public hearing. Written comments on the proposed rule must be postmarked by [INSERT DATE 45 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER]

. Commenters should notify Ms. Long if they will need specific equipment, or if there are other special needs related to providing comments at the hearings. The EPA will provide equipment for

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Page 6 of 42 commenters to show overhead slides or make computerized slide pres entations if we receive special requests in advance. Oral testimony will be limited to 5 minutes for each commenter. The EPA encourages commenters to provide EPA with a copy of their oral testimony electronically (via email or CD) or in hard copy form. The hearing schedules, including lists of speake rs, will be posted on the EPA’s website at http://www.epa.gov/air/ozone pollution/actions.html#impl. Verbatim transcripts of the hearings and written statements will be included in the docket for the rulemaking. The EPA will make every effort to follow the schedule as closely as possible on the day of the hearings; however, please plan for the hearing to run either ahead of schedule or behind schedule. For updates and additional information on the public hearing, please ch eck the EPA’s website for this rulemaking at http://www.epa.gov/ozonepollution/actions.html

. E. How is this notice organized? The information presented in this notice is organized as follows: I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for EPA? C. Where can I get a copy of this document and other related information? D. What should I know about the public hearing? E. How is this notice organized? II. Background for Proposal A. Overview B. History of Nonattainment Area Classi fication Systems for the Ozone NAAQS C. Initial Area Designations for the 2008 Ozone NAAQS D. Transportation Conformity and the 1997 Ozone NAAQS III. What are the proposed classification thre sholds for nonattainment areas for the 2008 ozone NAAQS? A. Proposed Classification Thresholds B. Reclassification of Nonattainment Area s That Have Voluntarily Requested Higher Classifications C. What are we proposing as the attainment deadlines for nonattainment areas in each classification of the 2008 ozone NAAQS? IV. What is the EPA proposing regarding revoca tion of the 1997 ozone NAAQS at this time? A. What is the background for our proposal?

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Page 7 of 42 B. What is the rationale for our proposal? C. Why is it necessary to revoke the 1997 ozone NAAQS now for transportation conformity purposes? D. Is the EPA proposing to revoke the 1997 ozone NAAQS for other purposes as part of this rulemaking? V. What does this rulemaking not address? VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Re gulations That Significantly Affect Energy Supply, Distribution, or Use. I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Determination under Section 307(d) VII. Statutory Authority
LIST OF SUBJECTS II. Background for Proposal A. Overview On March 12, 2008 1 , the EPA revised the primary National Ambient Air Quality Standards (NAAQS) for ozone to a level of 0.075 parts per million (ppm) (annual fourth-highest daily maximum 8-hour concentration, averaged over 3 years). 2,3 On July 16, 2009, the EPA announced that it would initiate a rulemaking to reconsider the standard for various reasons, including the fact the 0.075 ppm level fell outside of the range recommended by the Clean Air Scientific Advisory Committee. Pending the outcome of that reconsideration, the EPA su spended further work on designating areas, including

1 See 73 FR 16436. 2 The secondary ozone standard, designed to protect public welfare, was set at the same level and with the same averaging time as the primary standard. 3 For a detailed explanation of the calculation of the 3-year 8-hour average, see 40 CFR part 50, Appendix I.

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 8 of 42 developing a classification approach for areas that would be designated nonattainment. In September 2011, the Office of Management and Budget (OMB) returned for further consideration the EPA’s draft rulemaking to reconsider the 2008 ozone NAAQS. 4 The current NAAQS for ozone thus remains at 0.075 ppm, as established in 2008. The 2008 NAAQS reta ins the same general form and averaging time as the 0.08 ppm NAAQS set in 1997 but is set at a more stringent level. 5 While the 2008 NAAQS was being reconsidered, the EPA deferred initial designation of areas as attainment or nonattainment with respect to that standard until March 12, 2011. 6 (See 75 FR 2936.) Since this deadline has passed and the EPA’s draf t rulemaking to reconsider the 2008 ozone NAAQS has been returned by OMB for further consideration, the EPA is now proceeding with certain activities to implement the 2008 ozone NAAQS. In a separate action, the EPA will propose a rule to address the steps states will take to implement the NAAQS and the timing of those steps. In this action, we address the system for classifying nonattainment areas and a limited set of additional implementation issues. A key first step after promulgating a new or revi sed NAAQS is for the EPA to issue initial area designations. Following the schedule provided in Cl ean Air Act (CAA) secti on 107(d), states were required to submit designation re commendations for every area of each state to the EPA by March 12, 2009, which was 1 year after the promulgation date of the 2008 ozone NAAQS. The EPA has received these recommendations and intends to proceed w ith the designations process based on these recommendations. In accordance with CAA section 181(a)(1), the classification for each ozone nonattainment area will be established by operation of law at the same time as the area is designated by the EPA. Therefore,

4 Memorandum from Cass R. Sunstein to Administ rator Lisa Jackson, dated September 2, 2011. 5 Note that the 2008 NAAQS is based on a diffe rent rounding convention than the 1997 NAAQS. 6 The 2008 ozone NAAQS was promulgated on March 12, 2008. By the 2-year designation requirement found in CAA §107(d)(1), the deadline for designating areas was March 12, 2010. The EPA determined that due to the reconsideration there was insufficie nt information to designate areas, and invoked the additional year for designations as allowed under CAA §107(d)(1)(B). Comment [A1]: Please add a few words for the benefit of the lay reader explaining the difference between “classification” and “designation”. Alternatively, place this paragraph at the end of this section.

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Page 9 of 42 the EPA intends to finalize classification thresholds on or before the date that initial area designations are issued by the Administrator. Under Subpart 2 of part D of title I of the CAA, state planning and emissions control requirements for ozone are determined, in part, by a nonattainment area’s classification. In 1990, Congress amended part D of title I of the CAA by adding several new subparts, including subpart 2, which specifies implementation requirements for oz one nonattainment areas. These requirements apply in addition to the general Stat e Implementation Plan (SIP) planni ng requirements applicable to all nonattainment areas under subpart 1 of part D. Under subpart 2, ozone nonattainment areas are classified based on the severity of their oz one levels (as determined based on the area’s “design value,” which represents the most recent 3-year average of the air quality in the area) 7 . Nonattainment areas with a “lower” classification have ozone levels that are closer to the standard than areas with a “higher” classification. The subpart 2 classification section pr ovides an increasing amount of time from the date of designation to attain the standards for the progre ssively higher classifications: Marginal (3 years), Moderate (6 years), Serious (9 years), Severe-15 (15 years), Severe-17 (17 years), and Extreme (20 years). Areas in the lower classification levels have fe wer and/or less stringent mandatory air quality planning and control requirements than those in highe r classifications. For instance, Marginal areas are exempt from the requirement to prepare an attain ment demonstration and associated contingency measures, although such areas are required to adopt an emissions statement rule for stationary sources, submit a baseline emissions inventory, and implem ent a nonattainment area preconstruction permit program. A Moderate area needs to comply with th e Marginal area requirements; in addition the state must submit a demonstration that the area will attain within 6 years after designation, and it must adopt

7 The air quality design value for the 8-hour O3 NAAQS is the 3-year average of the annual 4th highest daily maximum 8-hour average ozone concentrations.”

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Page 10 of 42 (and submit for EPA approval) certain emissions cont rol requirements, such as reasonably available control technology, a basic vehicle inspection and main tenance program if the ar ea meets the applicable population thresholds, and provisions for increased offs ets for new or modified sources under the state’s new source review (NSR) program. The higher classifications similarly require additional emissions controls and stricter NSR offset requirements bey ond those required for a Moderate area. In addition, under the higher classifications, smaller sources are c onsidered “major sources” for permitting and other requirements. B. History of Nonattainment Area Clas sification Systems for the Ozone NAAQS The CAA was amended in 1990 to add specific provisions that apply to ozone nonattainment areas. These include timelines for both planning and implementation, and requirements for specific programs to reduce emissions that vary based on an ar ea’s classification. The ozone standard that was in effect at the time of the 1990 CAA amendments was a 1-hour exceedance-based standard of 0.12 ppm. 8 Accordingly, the classification provisions in Table 1 in section 181 of subpart 2 of the CAA (also referred to herein as the “subpart 2 classification tabl e”) are specific to that 1-hour standard. In 1997, the EPA revised both the form and level of the ozone NAAQS to a 3-year average of daily maximum 8-hour
averages. 9 In a subsequent rulemaking, the EPA adapted the CAA’s 1-hour classification thresholds to the new 8-hour standard 10 and used the new 8-hour threshold values to classify certain areas designated nonattainment for the 1997 8-hour NAAQS. This appr oach for translating the CAA’s 1-hour threshold values to 8-hour threshold values was challenged in litigation and was upheld by the court. See South Coast Air Quality Management District v. Environmental Protection Agenc y, 472 F.3d at 896-898. C. Initial Area Designations for the 2008 Ozone NAAQS

8 For additional detail on the 1-hour ozone NAAQS, see 56 FR 56694. 9 See 40 CFR Appendix I. 10 Referred to as the Phase 1 Rule, see 40 CFR Part 51, Subpart X at 51.903.

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Page 11 of 42 Under CAA §107(d), initial area designations are required when a NAAQS is revised. The process involves interaction between the EPA and stat es, starting with states preparing recommendations and submitting them to the EPA for review. If the EPA intends to modify a state’s recommendation, the EPA must notify the state of such modification by le tter no later than 120 days (“120 day letters”) prior to making a final decision. 11 For the 2008 ozone NAAQS, most states submitted designation recommendations to the EPA as required under sec tion 107(d) in March 2009, 1 year after the 2008 NAAQS was promulgated. St ates also had the opportunity to update these recommendations in the fall of 2011, based on ambient air quality monitoring data for the years 2008-2010, which were (and still are) the most recent monitoring data available. The EPA plans to consider the state recommendations received in 2009 and any updates provided by the states based on current monitori ng data in deciding whether to modify any recommendations. In the event that the EPA intends to modify a state’s recommendation, the EPA will notify the state 120 days prior to issuing designation s. The EPA’s goal is to finalize designations by mid-2012. D. Transportation Conformity and the 1997 Ozone NAAQS In this rulemaking, the EPA is proposing to revoke the 1997 ozone NAAQS for transportation conformity purposes only. The revocation of the 1997 ozone standard for th is limited purpose would occur 1 year after the effective date of initial area designations for the 2008 ozone NAAQS. We believe this approach is the most logical because it would result in only one ozone NAAQS – the more protective 2008 ozone NAAQS – applying for purposes of transportation conformity, after the end of the

11 While CAA section 107, which governs the process fo r initial area designations, specifically addresses states, the EPA intends to follow the same process for tr ibes to the extent practicable, pursuant to section 301(d) of the CAA regarding tribal authority and the Tribal Authority Rule (63 FR 7254; February 12, 1998). The EPA is working with the tribes and tribal organizations regarding their participation in the designations process.

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 12 of 42 1-year transportation conformity grace period that applies to newly designated nonattainment areas (see CAA section 176(c)(6)). If the 1997 ozone NAAQS were to remain in place after conformity applies for the 2008 ozone NAAQS, areas currently in nonattain ment or maintenance fo r the 1997 ozone NAAQS that are designated nonattainment for the 2008 ozone NAAQS would be required to implement the transportation conformity program for both ozone NAAQS concurrently. The EPA is proposing to revoke the 1997 ozone NAAQS for purposes of transportation conformity in an attempt to avoid this overlap of NAAQS for conformity requirements. The EPA intends to discuss potential revocation of the 1997 NAAQS for other purposes in a future, separate rulemaking. III. What are the proposed classification thresholds for nonattainment areas for the 2008 ozone NAAQS? A. Proposed Classification Thresholds 1. Background The subpart 2 classification table includes the cl assification thresholds for areas designated as nonattainment for the 1-hour ozone NA AQS. The subpart 2 cl assification table is based on 1-hour ozone nonattainment area design values (DVs) (i.e., beginni ng at a level of 0.121 ppm) because it was designed for implementation of the 0.12 ppm 1-hour standard , which was the effective ozone standard when Congress added the table to the CAA in 1990. Because the table is based on DVs for a 0.12 ppm 1-hour standard, we recognized in the rulemaking to impl ement the 1997 NAAQS that it did not make sense to apply the thresholds listed in the table for implementing the 1997 0.08 ppm 8-hour standard. The EPA believed that using 8-hour DVs to classify areas fo r the 8-hour standard would reflect the magnitude of the 8-hour ozone problem more accurately than would using the 1-hour DVs in the subpart 2 classification table. In addition, many of the area s that were nonattainment for the 1997 8-hour NAAQS Comment [A2]: This is confusing. Please explain why the 2008 Ozone NAAQS does not automatically supersede the 1997 NAAQS in all aspects, including transportation conformity.

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Page 13 of 42 had 1-hour DVs less than 0.121 ppm and would not ha ve been covered by the subpart 2 classification table at all. We adopted by regulation a modified version of the subpart 2 classification table for the 1997 8- hour ozone standard which contains 8-hour DV thres holds for each classification, rather than the statutory 1-hour DV thresholds. We tr anslated the classification threshol ds in the subpart 2 classification table from 1-hour DVs to 8-hour DVs based on the pe rcentage by which each classification threshold in the table exceeds the 1-hour ozone NAAQS. We no ted that these percentages, as established by Congress in 1990, set the classification thresholds at certain percentages or fractions above the level of the standard. 12 We refer to this method as the “percent -above-the-standard” method. We are proposing to take the same approach for the 2008 ozone NAAQ S. As we did for the 1997 8-hour NAAQS, we are proposing to establish by regulation a modified version of this classification table to account for the new level of 0.075 ppm as compared to the level of 0.08 ppm used to establish the classification table for the 1997 ozone NAAQS. As we did for the 1997 NAAQS, the EPA analyzed various alternative options for establishing thresholds for classifications for the 2008 ozone NAAQ S. However, we are proposing to use the same “percent-above-the-standard” methodology as was used for the 1997 ozone standard. 13 Options that were evaluated other than the one we are proposing are discussed briefly below and described in more detail in a background information document 14 in the docket to this rulemaking.

12 The upper thresholds of the Marginal, Moderate, Serious, and Severe classifications are precise percentages or fractions above the level of the sta ndard, namely 15 percent (3/20ths more than the standard), 33.33 percent (one-third more than the standard), 50 percent (one-half more than the standard), and 133.3 percent (one and one-third more than the standard). 13 Background Information Document: Hypothetical Nonattainment Areas for Purposes of Understanding the EPA Proposed Rule for Implemen ting a 2008 8-Hour Ozone National Ambient Air Quality Standard--Illustrative Analysis Based on 2010 Design Values. December 2011. 14 Background Information Document: Additional Options Considered for Classification of Nonattainment Areas under the 2008 Ozone NAAQS. December 2011.

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Page 14 of 42 The percent-above-the-standard method is a simple and straightforward me thod for establishing classification thresholds that is based on principles inherent in the subpart 2 classification table itself. The principles include the following:

• Areas are grouped by the severity of their air quali ty problem as characterized by the degree of nonattainment based on their DV.

• Classification would occur “by operation of law” without relying on EPA exercising discretion for individual situations (prior to any application of the 5 percent adjustment provision under section 181(a)(4)). See section III.B of this rule for additiona l details on how EPA intends to address previous requests for voluntary bump-ups for the 1997 ozone NAAQS.

• Classification thresholds are derived from the st ructure or logic of the CAA’s nonattainment area planning and control requirements, including the subpart 2 classifica tion table, and consistent with the overall goal of subpart 2 of attaining the standards as expeditiously as practicable. 2. Proposed Classification Threshold Me thod – Percent-Above-the-Standard Method In this section, we describe the EPA’s pr oposed methodology for establishing classification thresholds for purposes of classifying ozone nona ttainment areas with respect to the 2008 ozone NAAQS. Using this approach for the 2008 NAAQS, th e classification threshol ds in the subpart 2 classification table would be translated into a co rresponding set of 8-hour DVs by setting threshold DVs in the new table at the same percentages above th e 2008 ozone NAAQS as the DV levels in the subpart 2 classification table are above the 1-hour ozone NA AQS. For example, the threshold separating the Marginal and Moderate classifications in the subpa rt 2 classification table (0.138 ppm) is 15 percent above the 1-hour ozone NAAQS (0.12 ppm). Thus, un der this approach, the threshold separating the Marginal and Moderate classifications for the 20 08 ozone NAAQS would be 0.075 ppm plus 15 percent,

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Page 15 of 42 or 0.086 ppm. Table 1, below, depicts this proposed tr anslation for classifications as it would apply for the 2008 ozone NAAQS.

TABLE 1 SUBPART 2 1-HOUR OZONE DESIGN VALUE CLASSIFICATION TABLE TRANSLATION TO 8-HOUR DESIGN VALUES FOR THE 2008 OZONE NAAQS of 0.075 PPM Area class 1-hour design value (ppm) Percent above 1-hour ozone NAAQS 8-hr ozone design value (ppm) Marginal From 0.121 0.833 0.076 up to 1 0.138 15 0.086 Moderate From 0.138 15 0.086 up to 1 0.160 33.333 0.100 Serious From 0.160 33.333 0.100 up to 1 0.180 50 0.113 Severe-15 From 0.180 50 0.113 up to 1 0.190 58.333 0.119 Severe-17 From 0.190 58.333 0.119 up to 1 0.280 133.333 0.175 Extreme equal to or above 0.280 133.333 0.175

Note 1: But not including. Based on our analysis of air quality information from 2008-2010, we estimate that approximately 52 areas had ambient ozone concentrations exce eding the 2008 ozone NAAQS. We use these 52 “hypothetical nonattainment areas” for purposes of the following discussion. 15 These hypothetical areas

15 Background Information Document: Hypotheti cal Nonattainment Areas for Purposes of Understanding The EPA Proposed Rule for Implem enting a 2008 8-Hour Ozone National Ambient Air Quality Standard--Illustrative Analysis Based on 2010 Design Values. December 2011. Most hypothetical nonattainment areas include multiple counties, based on the existing 1997 8-hour ozone nonattainment areas, Combined Statistical Area, or Core Based Statistical Area boundary associated with a violating monitor. Note that these areas are used for analytical purposes only. Actual nonattainment areas and boundaries will be determined through the designations process.

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Page 16 of 42 are intended to illustrate the distribution of areas in to the proposed classifications. The actual number of total nonattainment areas and the classification of each area will depend on decisions made in the separate designations process under se ction 107(d). If we were to use the proposed thresholds in Table 1, above, as the basis for classifying nonattainment areas with respect to the 2008 ozone NAAQS, the 52 hypothetical nonattainment areas based on 2008-2010 air quality data would be distributed in each classification as shown in Table 2.
TABLE 2 NUMBER OF HYPOTHETICAL NONATTAINMENT AREAS IN EACH CLASSIFICATION UNDER THE 2008 OZONE NAAQS: PERCENT-ABOVE-THE-STANDARD METHOD Classification 2008 O3 NAAQS (hypothetical areas) Marginal 43 Moderate 6 Serious 3 Severe 0 Extreme 0 Total 52

The proposed classification method would result in the vast majority of nonattainment areas being classified as Marginal. It is possible that a few areas would have a later maximum statutory attainment date for their existing classification under the 1997 ozone NAAQS than they would have for their new classification under the 2008 NAAQS. For exam ple, an area that would be classified Marginal for the more stringent 2008 ozone NAAQS (with an an ticipated maximum statutory attainment date in 2015), may have been classified as Severe for the less-stringent 1997 ozone NAAQS (with a later maximum statutory attainment date in 2019). 16 This issue did not arise when we promulgated the classification structure for the 1997 NAAQS. (See section III.B of this rule for additional details on how EPA intends to address previous requests fo r voluntary bump-ups for the 1997 ozone NAAQS.)

16 As indicated elsewhere in this preamble, the EPA intends to designate areas for the 2008 standard by mid-2012. Thus, a 3-year attainment deadline would be in 2015.

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Page 17 of 42 Many Marginal areas are expected to attain th e 2008 NAAQS within 3 years of designation (e.g., in 2015) due to reductions of ozone precursors resulting from a number of federal and state emission reduction programs that have already been adopted. Such programs include more stringent emission standards for onroad and nonroad vehicles and equipm ent (with associated fleet turnover), regional reductions in power plant emissions to address interstate transport, 17 and potential future programs such as the boiler maximum achievable c ontrol technology standards. The EPA estimates that in about half of the Marginal areas, these reductions in conjunction with other ongoing state and federal controls should be sufficient to bring about attainment. 18 In other areas, additional cont rol measures may be needed for timely attainment. 3. Other Classification Methods Considered A number of interested parties have recommended to the EPA other options for classification of ozone nonattainment areas. The EPA evaluated many ot her methods but we are not proposing them or soliciting comment on them because we did not find th em as compelling as the option discussed in this proposal. We have included in the docket all written recommendations we have received in recent years regarding classification approaches. Other options that we considered but are not proposing are also summarized in the docket. 19
B. Reclassification of Nonattainment Areas that Have Voluntarily Requested Higher Classifications The CAA provides three mechanisms for addressing nonattainment areas that may not be able to attain by the attainment date provided for their cl assification. First, section 181(a)(4) provides that within 90 days of designation and classification, the Administrator may exercise discretion to reclassify

17 Federal Implementation Plans: Interstate Tran sport of Fine Particulate Matter and Ozone and Correction of SIP Approvals. August 8, 2011; 76 FR 48208. 18 [Add footnote with EPA’s analysis citation] 19 Additional Options Considered for Classificati on of Nonattainment Areas under the Proposed 2008 Ozone NAAQS. U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards. Research Triangle Park, NC. December 2011[verify future date]. Comment [A3]: Suggest adding language here to indicate the method proposed herein does not foreclose EPA’s discretion to propose an alternate method in the future.

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Page 18 of 42 an area to a higher (or lower) classification if its DV is within 5 percent of the DV range of the higher (or lower) classification. 20 Any state interested in taking advant age of this flexibility should submit a request to the EPA in sufficient time for the Admini strator to make a determination within the 90 days provided. The second mechanism, provided in section 181(b)(2), requires that an area be reclassified to the next higher classification (i.e., “bumped-up”) if EPA determines that the area has failed to attain the standard by the attainment date and does not qualify fo r the first of two possible 1-year attainment date extensions allowed under the CAA (excluding Severe to Extreme reclassification). The third mechanism, provided in section 181(b)(3), allows a state to voluntarily request that the EPA reclassify the area to a higher classification. The EPA has no discretion to deny such requests. Once an area is reclassified to a higher classifica tion, it becomes subject to the associated additional planning and control requirements for that higher cla ssification as well and must attain the standard no later than the later maximum attainment date for that classification. There are seven areas for which states requested a voluntary reclassification with respect to the 1997 NAAQS. If these areas were classified base d on 2008-1010 air quality data and pursuant to the classification structure proposed here, it is likely th at they would have a lo wer classification and an earlier maximum attainment date for the 2008 N AAQS than such areas have for the 1997 ozone NAAQS. EPA has granted voluntary reclassification reque sts for six of these areas; the request for one area is still pending. 21 These areas are shown in Table 3.

20 This CAA provision also provides the same authority for reclassifying areas to a lower classification, an approach that may not be relevant where the area in question is unlikely to attain by the attainment date for the classification it receives at the time of designation. 21 Ventura County, CA was reclassified from Moderate to Serious (Approved 05/20/2008, 73 FR Page 29073, Effective: 06/19/2008). Houston-Galveston-Braz oria, TX was reclassified from Moderate to Severe-15 (Approved 10/01/2008, 73 FR Page 56983, Effective: 10/31/2008). Reclassification of the Los Angeles-South Coast, San Joaquin Valley, Rive rside County, and Sacramento Metro areas (May 5,

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Page 19 of 42

Table 3 Areas for which the State Requested a Vol untary Reclassification Under the 1997 NAAQS
Nonattainment Area State Original 1997 NAAQS Classification Voluntary Reclassification Potential Classification Under 2008 NAAQS 1 Los Angeles-South Coast Air Basin CA Severe Extreme Serious San Joaquin Valley CA Serious Extreme SeriousHouston-GalvestonBrazoria TX Moderate Severe Marginal Riverside County (Coachella Valley) CA Serious Severe Moderate Sacramento Metro CA Serious Severe Serious Ventura County CA Moderate Serious Moderate Western Mojave 2 CA Moderate Severe Moderate Note 1: Based on thresholds proposed in this notice and 2008-2010 design values. Note 2: This request for a bump-up is still pending.

The EPA is proposing that the approved prior volun tary reclassification re quests for the 1997 ozone NAAQS would also apply for the more stringent 2 008 ozone NAAQS unless the state explicitly requests otherwise. We believe this is an appropriate mechanism to address the limited situation where an area that was voluntarily reclassified for the 1997 ozone N AAQS would have an attainment date for the more stringent 2008 ozone NAAQS that is earlier than the area’s attainment date for the less stringent 1997 NAAQS. Based on discussions with states , we also believe it is reasonable to expect that most, if not all, of the areas that requested a voluntary recla ssification under the less stringent 1997 NAAQS would make the same request for the 2008 NAAQS. The EPA is proposing this approach in order to minimize burden on states and obviate the need to go throu gh the voluntary reclassification process again. C. What are we proposing as the attainment deadline s for nonattainment areas in each classification of the 2008 ozone NAAQS? 1. Background

2010, 75 FR 24409) became effective June 4, 2010. West Mojave Desert, CA requested voluntary reclassification from Moderate to Severe-17 that is still pending with the EPA. Comment [A4]: The EPA is in receipt of a letter, dated January 10, 2012, from TX CEQ indicating it does not want voluntary reclassification. Suggest removing with the presumption this request is rescinded for 2008 per the 1/10/12 letter.

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Page 20 of 42 The CAA provides that the primary NAAQS attainment dates for areas subject to subpart 2 must be as expeditious as practicable but no later than the deadlines provided in the subpart 2 classification table. The deadlines for attainment in the subpart 2 cl assification table are specif ied in terms of a certain number of years from the date of enactment of the 1990 Amendments to the CAA (i.e., November 15, 1990). For instance, the attainment date for Moderate areas is expressed as “6 years after November 15, 1990.” Because these time periods are clearly inapprop riate for a new standard promulgated in 2008, we must interpret the attainment deadlines in the subpart 2 classification table as they would apply to the 2008 NAAQS. In the Phase 1 rule for implementation of the 1997 ozone NAAQS, 22 we interpreted these timeframes to run from the date that area designati ons and nonattainment classi fications (by operation of law) became effective. We explained in the propos ed and final rules for implementation of the 1997 ozone NAAQS that it was reasonable for these dates to run from the date of designation because other provisions of the CAA established the attainment da te as a set period of time after designation. See 69 FR 23966-67; 68 FR 32817. As discussed below, we are proposing this same approach for the 2008 NAAQS and also proposing an alternate approach where the attainment dates would be at the end of the calendar year. We are proposing an alternate approach because we anticipate that designations for the 2008 NAAQS will be effective some time after the start of the 2012 ozone season 23 for most areas and possibly well into the summer. As explained in more detail below, the alternative approach would allow Marginal areas 3 full years to attain, Moderate areas 6 full years to attain, etc. 2. Proposal

22 69 FR 23951 23 The ozone season for each state is defined in 40 CFR part 58, Appendix D, and, for most areas, runs from April to October. See also the July 16, 2009, Proposed Monitoring Rule (74 FR 34525).

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Page 21 of 42 The EPA is proposing two options for establishing the maximum attainment dates for areas in each nonattainment classification. Under the first opt ion, the attainment dates would be the precise number of years specified in Table 1 with such time period running from the effective date of designation. Under the second option, the attainment da tes would be December 31 of the year that is the specified number of years in Table 1 after designati on. In order to fully evaluate the two options, we note that the EPA intends to complete initial area designations for the 2008 ozone NAAQS no later than May 31, 2012. We anticipate the designations will be effective 60 days following publication in the Federal Register and that it will take approximately 2 week s for the designations notice to be published. Under this scenario, designations would be effective by approximately mid-August 2012. For the first option, we are proposing that the deadlines in the subpart 2 classification table would be specified in terms of a certain number of years from the effective date of designation for the 2008 standard. This is the same approach we took fo r the 1997 NAAQS. In this case, we would interpret “year” in the subpart 2 classification ta ble to mean consecutive 365-day periods, 24 and we would substitute “after the effective date of designation” for the CAA’s “after November 15, 1990” language in the subpart 2 classification table. Under this appr oach the attainment deadline would fall a precise number of years after the effective date of designati on. As an example, if the Administrator issued designations for the 2008 NAAQS on May 31, 2012, and the designations became effective on August 15, 2012, the attainment dates would run from Augus t 15, 2012, such that a Marginal area would be required to attain the 2008 ozone standard by August 15, 2015. For the second and the EPA’s preferred option, the attainment date would be specified as a certain number of years from the end of the calenda r year in which an area’s nonattainment designation

24 Except in the case of a leap year, where the year would be a rolling 366 day period.

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Page 22 of 42 is effective. In other words, if the effective da te of designations for the 2008 ozone NAAQS is August 15, 2012, the 3-year attainment deadline for Marginal areas would be December 31, 2015. We are proposing this option as our preferred option for the 2008 ozone NAAQS because, as explained above, we believe it is likely that designatio ns will be effective in August 2012, which is late in the ozone season. Where the designation is effectiv e late in the ozone seas on, under the first option a Marginal area effectively would have only two oz one seasons following designation to improve its air quality in order to attain by its attainment date. This is because compliance with the standard is based on air quality during the most recent three full consec utive ozone seasons, and the most recent 3 full ozone seasons preceding the attainment deadline in this cas e would run through the end of the previous year’s ozone season. Because attainment is based on three fu ll ozone seasons of air quality data, in order to attain “by” its attainment date, the area could not consider air quality for an ozone season during which the attainment date falls. For example, in the case of the 1997 ozone NAAQS, designations became effective on June 15, 2004 and areas had an attainment da te of June 15 of the year falling 3, 6, etc. years after designation. Thus, in order for a Marginal area to attain by June 15, 2007, it could not consider air quality data from the 2007 ozone season, but instead was required to demonstrate attainment based on the 3 years of air quality data from 2004-2006. In this situation, the area’s attainment date effectively was December 31, 2006. Because we anticipate designations will be e ffective late in the ozone season for the 2008 NAAQS, we are concerned that if a Marginal area is required to attain in August 2015, the area would effectively have only two ozone se asons (the 2013 and 2014 ozone season s) from the date of designation to improve its air quality for the purpose of showi ng attainment. Accordingly, the state would need to both plan for and achieve all emissi on reductions necessary for the area to attain by the beginning of the 2014 ozone season, so that those reduc tions would be reflected in the air quality data considered for

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Page 23 of 42 determining whether the area attained by its attain ment date (i.e., attainment would be based on air quality data from 2012-2014). Similarly, a Moderate area would need to implement measures to attain by the beginning of the 2017 ozone season in order for those reductions to be reflected in the air quality data considered for purposes of determining whether the area attained (data from 2015-2017) by August
2018. We believe this second option is consistent w ith the time periods provided for attainment of the 1-hour ozone NAAQS at the time the CAA was ame nded. The CAA Amendments were enacted on November 15, 1990, after the end of the ozone season for virtually all areas, and for the few areas that had year-round ozone seasons, EPA interpreted the Act to allow consideration of air quality in the attainment year even though the attainment da te fell on November 15. Thus, when the CAA was amended in mid-November 1990, 1-hour Marginal areas had three full ozone seasons to achieve any reductions necessary for attainment, and Moderate areas had six full ozone seasons, because the attainment deadline was the anniversary of the enactment of the 1990 CAA (November 15). Thus we believe this approach reasonably reflects Congres sional intent by providing areas the full period specified in Table 1 to achieve reductions necess ary for attainment. Table 4 summarizes for each proposed option how we would interpret the maximum attainment dates for areas in each classification under the 2008 NAAQS, using an example where the eff ective date of designations is August 15, 2012.
TABLE 4 EXAMPLE OF PROPOSED ATTAINMENT DATES FOR THE 2008 STANDARD IF NONATTAINMENT DESIGNATIONS ARE EFFECTIVE August 15, 2012 Classification Option 1 Option 2 Marginal August 15, 2015 December 31, 2015 Moderate August 15, 2018 December 31, 2018 Serious August 15, 2021 December 31, 2021

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Page 24 of 42 Severe August 15, 2027 or 2029 December 31, 2027 or 2029 Extreme August 15, 2032 December 31, 2032

IV. What is the EPA proposing regarding revocation of the 1997 ozone NAAQS at this time? At this time, the EPA is proposing to revoke the 1997 ozone NAAQS 1 year after the effective date of designations for the 2008 ozone NAAQS for transportation conformity purposes only. 25 Revoking the 1997 ozone NAAQS for transportation conformity purposes, as described below, will bring certainty to the transportation planning proc ess in ozone nonattainment and maintenance areas. It will also ensure that backsliding does not occur fo r purposes of transportation conformity as areas designated nonattainment for the 2008 ozone NAAQS will be required to use adequate or approved SIP motor vehicle emissions budgets for the 1997 ozone NAAQS or 1-hour ozone NAAQS, if the area has such SIP budgets for one of these ozone NAAQS, until SIP budgets are found adequate or are approved for the 2008 ozone NAAQS as required by recent cour t decisions discussed below and as required by CAA 176(c)(1). 26 Specifically, CAA section 176(c)(1) stat es, in part, “No metropolitan planning organization designated under section 134 of Title 23 shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 7410 of

25 Transportation conformity is required under CAA sec tion 176(c) to ensure that transportation plans, transportation improvement programs (TIPs) and fe derally supported highway and transit projects are consistent with (“conform to”) the purpose of the SIP. Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS or interim reductions and milestones. The EPA’s Transportation Conformity Rule (40 CFR 51.390 and Part 93, subpart A) establishes the criteria and procedures for determining whether trans portation activities conform to the SIP. 26 A motor vehicle emissions budget is that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further pr ogress milestones or demons trating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocate d to highway and transit vehicle use and emissions.

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Page 25 of 42 this title.” In other words, adequate or approve d motor vehicle emissions budgets for a prior NAAQS must be used in transportation conformity dete rminations for a revised NAAQS until such time that budgets for the revised NAAQS are either found adequa te or are approved. The EPA is proposing this limited revocation of the 1997 ozone NAAQS at this time to provide certainty to the transportation planning process. In a s ubsequent rulemaking, the EPA will cons ider whether to also revoke the 1997 NAAQS for other purposes. A. What is the background for our proposal? At the time the EPA promulgated the 2008 NAAQS, the Administrator determined that the 1997 ozone NAAQS was no longer sufficient to protect public health and th e environment with an adequate margin of safety and that it was therefore necessar y to establish a more stringent standard. 73 FR 16436 (Mar. 27, 2008). In determining how to transition from the 1997 NAAQS to the more stringent 2008 NAAQS, the EPA is now presented with the same situat ion that we faced with the transition from the 1- hour ozone NAAQS to the more stringent 1997 ozone NAAQS. For that transition, our Phase 1 implementation rule for the 1997 ozone NAAQS re voked the 1-hour ozone NAAQS for all purposes 1 year after the effective date of the initial area designations for the 1997 ozone NAAQS. (See 69 FR 23954). The Phase 1 rule also established comprehensive anti-backsliding provisions to ensure that requirements for the 1-hour ozone NAAQS would co ntinue in place as areas transitioned to implementing the more stringent 1997 ozone standard. The revocation of the 1-hour standard and the as sociated anti-backsliding provisions were the subject of litigation. In its December 2006 decision on that challenge, as modified following rehearing, the Court held with respect to the anti-backsliding approach for transportation conformity, that 1-hour motor vehicle emissions budgets must be used wher e such budgets have been found adequate or approved, as part of 8-hour conformity determinat ions until 8-hour motor vehicle emissions budgets are

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Page 26 of 42 available. (South Coast Air Quality Management District v. EPA , XX F.3d at YYY). In addition, the Court affirmed more broadly that in order for tran sportation conformity determinations to fulfill the requirements of CAA section 176(c)(1), motor vehi cle emissions budgets for a prior NAAQS must be used in transportation conformity determinations under a revised NAAQS until emissions budgets for the revised NAAQS are either found adequate or are approved. Therefore, areas designated nonattainment for the 2008 ozone NAAQS that have ad equate or approved SIP budgets for either the 1997 ozone NAAQS or the 1-hour ozone NAAQS must c ontinue to use such budgets in transportation conformity determinations until budgets for the 2008 ozone NAAQS are found adequate or are approved. 27 B. What is the rationale for our proposal? At this time, we are proposing to revoke the 1997 ozone NAAQS for transportation conformity purposes only. The revocation of the 1997 ozone NA AQS for this limited purpose would occur 1 year after the effective date of initial area designations for the 2008 ozone NAAQS. Similar to our rationale in the Phase 1 rule for implementation of the 1997 ozone NAAQS, we believe this approach makes the most sense because it would result in only one ozone NAAQS – the 2008 ozone NAAQS – applying for purposes of transportation conformity, after the e nd of the one-year transportation conformity grace period that applies to newly designated nonattain ment areas. (CAA section 176(c)(6)). If the 1997 ozone NAAQS were to remain in place after conformity applies for the 2008 ozone NAAQS, metropolitan planning organizations and other state, local, and federal transportation and air quality agencies in areas that are currently nonattainment or maintenance for the 1997 ozone NAAQS and will be designated nonattainment for the 2008 ozone NAAQS would be required to implement the transportation

27 Areas without adequate or approved SIP budgets for either the 1997 ozone NAAQS or the 1-hour ozone NAAQS are required to demonstrate conformity using one or both of the interim emissions tests depending on their classification as required by 40 CFR 93.119.

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Page 27 of 42 conformity program for both ozone NAAQS concurre ntly. This could lead to unnecessary complexity for conformity determinations, especially if an area’s boundaries for the two ozone NAAQS differ from one another and the same test of conformity cannot be used for both ozone NAAQS. Even where an area’s boundaries are unchanged, different analysis ye ars under the conformity rules may be required for each ozone NAAQS. Furthermore, we believe that it is more important to determine conformity for the new 2008 ozone NAAQS that is more protective of health and welfare. For transportation conformity purposes, this proposal would provide a seamless transition from demonstrating conformity for the 1997 ozone NAAQ S to demonstrating conformity for the 2008 ozone NAAQS. Revoking the 1997 ozone NAAQS 1 year after the effective date of designations for the limited purpose of transportation conformity would le ave no gap in conformity’s application in any 2008 ozone nonattainment areas. C. Why is it necessary to revoke the 1997 ozone NAAQS now for transportation conformity purposes? The EPA has determined that it is necessary to establish the date for the revocation of the 1997 ozone NAAQS as it applies for transportation confor mity purposes now in order to provide state and local transportation and air quality agencies with cert ainty as to what conformity requirements will apply after designations are finalized for the 2008 oz one NAAQS. Areas designated nonattainment for the 2008 ozone NAAQS will have 1 year after the effective date of the designation to complete a conformity determination for the 2008 ozone NAAQS. If an ar ea does not complete the required conformity determination by the end of the 1-year grace period, the area will enter a conformity lapse until the required determination is completed. 28 Based on 2008 – 2010 air quality monitoring data, and as discussed elsewhere in today’s notice, we anticipat e that 52 areas would be designated as nonattainment

28 During a lapse, an area can proceed with only a limited amount of transportation projects including projects that are exempt from conformity, projects and project phases that had previously been approved and transportation control measures included in an approved SIP.

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Page 28 of 42 areas and 44 of these areas are either nonattai nment or maintenance for the 1997 ozone NAAQS. Areas designated nonattainment for the 2008 NAAQS will likely need the full 1-year grace period provided in CAA section 176(c)(6) to complete the required initial conformity determination. Those areas that are designated as either nonattainment or maintenance for the 1997 ozone NAAQS at the time they are designated as nonattainment for the 2008 ozone NAAQS, will need certainty as to the specific requirements for that conformity determination. For example they need to know what analysis years must be addressed and, if the boundaries for the tw o ozone NAAQS are different, they need to know whether to address conformity for both area s and which test or tests would apply. By determining conformity for the 2008 standard, which is the more health and welfare protective standard, the EPA is both:

• Fulfilling the CAA’s requirements for transportation conformity which include preventing new air quality violations, not making existing vi olations worse and not delaying any interim milestones; and

• making the most efficient use of state and local resources in fulfilling those requirements.

In addition, a large number of areas that are currently required to determine conformity for the 1997 ozone NAAQS are attaining the 2008 ozone NAAQ S based on 2008-2010 air quality data. If these areas are designated as attainment areas for th e 2008 ozone NAAQS they would not be required to demonstrate conformity for either the 1997 ozone NAAQS, as of the effective date of the revocation of the 2008 ozone NAAQS. These areas would no longer ha ve to expend resources to make conformity determinations for the 1997 ozone NAAQS. D. Is the EPA proposing to revoke the 1997 oz one NAAQS for other purposes as part of this rulemaking?

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Page 29 of 42 As part of this rule, the EPA is not proposi ng to revoke the 1997 ozone NAAQS for purposes other than transportation conformity. Because of th e necessity to quickly finalize a rule addressing nonattainment area classifications, we are not includi ng a broad proposal here regarding revocation of the 1997 NAAQS and how anti-backsliding requirement s might apply if the 1997 standard is revoked for purposes other than transportation conformity. We are developing a separate proposed rule that will address those issues and we expect to issue that propos ed rule in the spring of 2012. We plan to address any comments on the issue of revocation and anti- backsliding for all requirements other than transportation conformity in the context of that future, separate rulemaking. V. What does this rulemaking not address? This proposed rulemaking does not propose to establish attainment or nonattainment designations for specific areas nor does it address the principles that will be considered in the designation process. Because the designations are not th e subject of this proposed rule, we do not intend to respond to comments concerning designations in the context of this rulemaking. In addition, this proposed rule does not addres s any specific SIP requirements associated with different classification categories. This proposed ru le also does not address revocation of the 1997 ozone NAAQS for purposes other than transportation confor mity. Similarly, anti-backsliding issues are not addressed in this rule. The remaining implementation requirements for the 2008 NAAQS will be addressed in a separate rulemaking. We do not inte nd to respond in the context of this rulemaking to comments pertaining to implementation issues th at will be addressed by a future rulemaking. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

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Page 30 of 42 Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it rais es novel legal or policy issues arising out of legal mandates. Accordingly, EPA submitted this action to OMB for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act , 44 U.S.C. 3501 et seq . Burden is defined at 5 CFR 1320.3(b). The EPA is proposing this Classifications Rule for the 2008 ozone NAAQS so that areas may be classified by operation of law at the time of design ation as provided in section 181(a) of the CAA. This proposed rule would also revoke the 1997 ozone NAAQ S for transportation conformity purposes only. The EPA is proposing this limited revocation in order to bring certainty to the transportation conformity process consistent with prior court decisions and CAA section 176(c). This rule, in conjunction with another implementation rule we plan to propose in the future will help states identify planning requirements that apply for purposes of attain ing and maintaining the 2008 ozone NAAQS. No new information needs to be collected from the states as a result of this proposed rule. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any regulation subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies the rule will not have a significant economic impact on a substantial numb er of small entities. Small entities include small businesses, small organizations, an d small governmental jurisdictions.

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Page 31 of 42 For purposes of assessing the impacts of these proposed regulations on small entities, small entity is defined as: (1) a small business as defi ned in the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district wi th a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise wh ich is independently owned and operated and is not dominant in its field. The CAA requires the EPA to designate areas and provides for nonattainment areas to be classified by operation of law at the time of design ation. This rule provides a method for establishing these classifications and interpreting the associated attainment deadlines. The CAA also requires that nonattainment and maintenance area s make transportation conformity determinations . This rule proposes to revoke the 1997 ozone NAAQS 1 year after the effective date of designations so that areas designated nonattainment for the 2008 ozone NAAQS are required to address conformity requirements for only the more protective 2008 ozone NAAQS. After considering the economic impacts of this pr oposed rule on small entities, the EPA certifies that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, and tribal governments, in the aggregate, or the private sector. This action impos es no enforceable duty on any state, local or tribal

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Page 32 of 42 governments or the private sector. Therefore, this ac tion is not subject to the requirements of section 202 and 205 of the UMRA. This action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significan tly or uniquely affect small governments. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The requirement to designate and classify nonattainment areas is imposed by the CAA as are the requirements for nonattainment and maintenance areas to make transportation conformity determinations. This proposed rule, if made final, would interpret how the classification provisions in section 181(a) will apply for pur poses of the 2008 8-hour ozone NAAQ S that was finalized on March 27, 2008. (See 73 FR 16436 ]. It also proposes to revoke the 1997 ozone NAAQS 1 year after the effective date of designations for the 2008 ozone NA AQS for transportation conformity purposes only. Thus, Executive Order 13132 does not ap ply to these proposed regulations. Although this action does not have federalism im plications as defined in Executive Order 13132, the EPA recognizes that the adoption in 2008 of the more health-protective ozone standards will result in additional effort by state agencies responsible fo r managing air quality programs. Under the CAA, achieving these health benefits requires the comb ined efforts of the federal, state, and local governments, each accomplishing the tasks for which they are best suited. In the spirit of Executive Order 13121 and consistent with EPA policy to promote communications between the EPA and state and local governments, the EPA is soliciting comments on this proposal from state and local officials. F. Executive Order 13175: Consultation and Co ordination with Indian Tribal Governments

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Page 33 of 42 This action does not have trib al implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The proposed rules do not ha ve a substantial direct effect on one or more Indian tribes, since no tribe has to develop classification recommendati ons under these proposed regulatory revisions. This propos al revokes the 1997 ozone NAAQS for transportation and does not significantly or uniquely affect the communities of Indian tribal governments, as the CAA requires transportation conformity to apply in any area that is designated nonattainment or maintenance by the EPA. Furthermore, these proposed regulation revisions do not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the Tribal Air Rule establish the relationship of the federal gover nment and tribes in developing plans to attain the NAAQS, and these revisions to the regulations do not hing to modify that relationship. These proposed regulations revisions do not have tribal implications . Thus, Executive Order 13175 does not apply to this action. The EPA specifically solicits additional comme nt on this proposed action from tribal officials. G. Executive Order 13045: Protection of Childr en from Environmental Health and Safety Risks The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions Concerning Regul ations That Significantly Affect Energy Supply, Distribution, or Use This action is not a “significant energy acti on” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply,

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 34 of 42 distribution, or use of energy. This action would esta blish classifications for areas that do not attain the 2008 ozone standard. I. National Technology Transf er and Advancement Act Section 12(d) of the National Technology Transf er Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 not e) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The voluntary consensus stan dards are technical standards (e.g., materials specifications, test methods, sampling procedures, a nd business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA di rects EPA to provide Congress, through OMB, explanations when the agency decides not to use av ailable and applicable voluntary consensus standards. These proposed revisions to the regulations do no t involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions to Addr ess Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority popula tions and low-income populations in the United
States. The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The proposed regulations

### Summary of Interagency Working Co mments on Draft Language under EO12866/13563 Interagency Review.  Subject to Further Policy Re view.

Page 35 of 42 would, if promulgated, establish classification th resholds for designated nonattainment areas for the 2008 ozone NAAQS, which are designed to protect all segments of the general populations. As such, they do not adversely affect the health or safety of minority or low-income populations and are designed to protect and enhance the health and safety of th ese and other populations. Toda y’s action also proposes to revoke the 1997 ozone NAAQS for transportation conformity purposes only. Such a revocation would not lead to disproportionately high and adverse huma n health or environmental effects on minority or low-income populations as the CAA requires transporta tion conformity to apply in any area that is designated nonattainment or maintenance by the EPA. This proposed rule ensures that transportation conformity is demonstrated in all areas that are designated nonattainment for the more protective 2008 ozone NAAQS. K. Determination Under Section 307(d) Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V ) of the CAA, the Administrator proposes to determine that this action is subject to the provisi ons of section 307(d). Section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “suc h other actions as the Administrator may determine.” VII. Statutory Authority The statutory authority for this action is provide d by sections 110; 176; 181; and 301(a)(1) of the CAA, as amended (42 U.S.C. 7409; 42 U.S.C. 7506; 42 U.S.C. 7511; 42 U.S.C. 7601(a)(1)). This notice is also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).

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Page 36 of 42 Page 35 of 40- Implementation of the 2008 National Ambient Air Quality Standards for Ozone: Nonattainment Area Classificati ons Approach, Attainment Deadlines and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes

LIST OF SUBJECTS 40 CFR Part 50 Environmental protection, Air pollution cont rol, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides. 40 CFR Part 51 Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Transportation, Volatile organic compounds.

________________________________ Dated:

________________________________ Lisa P. Jackson, Administrator.

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Page 37 of 42 For the reasons stated in the preamble, Title 40, Chapter I of the Code of Federal Regulations is proposed to be amended as follows: Part 50–National Primary and Secondary Ambient Air Quality Standards 1. The authority citation for Part 50 continues to read as follows: Authority: 42 U.S.C. 7401, et seq. 2. Section 50.10 is amended by adding a paragraph (c) to read as follows: §50.10 National 8-hour primary and secondary ambient air quality standards for ozone

. (c) The 1997 ozone NAAQS set forth in paragraph (a) of this section will no longer apply to an area for transportation conformity purposes 1 year after the effective date of the designation of the area for the 2008 ozone NAAQS pursuant to section 107 of the CAA. The 1997 ozone NAAQS set forth in this section will continue to remain applicable to all areas for all other purposes notwithstanding the promulgation of the 2008 ozone NAAQS under §50.15 or the designation of areas for the 2008 ozone NAAQS. Area designations and classi fications with respect to the 1997 ozone NAAQS are codified in 40 CFR part 81.

Part 51–Requirements for Preparation, Adopti on, and Submittal of Implementation Plans 3. The authority citation for Part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

* * * * * 4. Part 51 is amended by adding a new subpart AA to read as follows: Subpart AA–Provisions for Implementation of the 2008 Ozone National Ambient Air Quality Standards

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Page 38 of 42 Sec. 51.1100 Definitions. 51.1101 Applicability of Part 51. 51.1102 Classification and nonattainment area planning provisions. 51.1103 Application of classification and attainment date provisions in section 181 of subpart 2 of the CAA to areas subject to §51.1102(a).

Subpart AA–Provisions for Implementation of the 2008 Ozone National Ambient Air Quality Standards. §51.1100 Definitions. The following definitions apply for purposes of this subpart. Any term not defined herein shall have the meaning as defined in 40 CFR 51.100. (a) 1-hour NAAQS means the 1-hour primary and secondary ozone national ambient air quality standards codified at 40 CFR 50.9. (b) 1997 NAAQS means the 8-hour primary and secondary ozone national ambient air quality standards codified at 40 CFR 50.10. (c) 2008 NAAQS means the 2008 primary and secondary ozone NAAQS codified at 40 CFR 50.15. (d) 1-hour ozone design value is the 1-hour ozone concentration calculated according to 40 CFR part 50, Appendix H and the interpretation methodology issu ed by the Administrator most recently before the date of the enactment of the CAA Amendments of 1990. (e) 8-hour ozone design value is the 8-hour ozone concentration cal culated according to 40 CFR part 50, Appendix P. (f) CAA means the Clean Air Act as codified at 42 U.S.C. 7401 - 7671q (2010).

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Page 39 of 42 (g) Attainment area means, unless otherwise indicated, an area designated as either attainment, unclassifiable, or attainment/unclassifiable. (h) Attainment year ozone season shall mean the ozone season im mediately preceding a nonattainment area’s maximum attainment date. (i) Designation for the 2008 NAAQS shall mean the effective date of the designation for an area for the 2008 NAAQS. (j) Higher classification/lower classification . For purposes of determining whether a classification is higher or lower, classifications under subpart 2 are ra nked from lowest to highest as follows: Marginal; Moderate; Serious; Se vere; and Extreme. (k) Initially designated means the first designation that becomes effective for an area for the 2008 NAAQS and does not include a redesignation to attainment or nonattainment for the 2008 NAAQS. (l) Maintenance area means an area that was designated non attainment for a specific NAAQS and was redesignated to attainment for that NAAQS subject to a maintenance plan as required by CAA section
175A. (m) Nitrogen Oxides (NO x ) means the sum of nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide. (n) Ozone season means for each state, the ozone monitori ng season as defined in 40 CFR Part 58, Appendix D, section 2.5 for that state.

§51.1101 Applicability of Part 51. The provisions in subparts A-X of part 51 apply to areas for purposes of the 2008 NAAQS to the extent they are not inconsistent with the provisions of this subpart.

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Page 40 of 42 §51.1102 Classification. An area designated nonattainment for the 2008 NAAQS will be classified in accordance with CAA section 181, as interpreted in §51.1103(a), and will be subject to the requirements of subpart 2 that apply for that classification.

§51.1103 Application of classification and attainment date provisions in CAA section 181 of subpart 2 to areas subject to §51.1102. (a) In accordance with CAA section 181(a)(1), each area designated nonattainment for the 2008 ozone NAAQS shall be classified by operation of law at th e time of designation. Th e classification shall be based on the 8-hour design value fo r the area at the time of designa tion, in accordance with Table 1 below. A state may request a higher or lower classifica tion as provided in paragraphs (b) and (c) of this section. For each area classified under this section, the attainment date for the 2008 NAAQS shall be as expeditious as practicable but not later than the date provided in Table 1 as follows:

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41 TABLE 1 CLASSIFICATION FOR 2008 8-HOUR OZONE NAAQS (0.075 ppm) FOR AREAS SUBJECT TO SECTION 51.1102(a) Area class 8-hour design value (ppm ozone) Primary Standard Attainment Date (years after designation for 2008 primary NAAQS)** Marginal from 0.076 3 up to* 0.086 Moderate from 0.086 6 up to* 0.100 Serious from 0.100 9 up to* 0.113 Severe-15 from 0.113 15 up to* 0.119 Severe-17 from 0.119 17 up to* 0.175 Extreme equal to or above 0.175 20 * but not including ** The attainment date is [Option 1: the date that is the specified number of years after the effective date of designations for the primary NAAQS.Option 2: December 31 of the calendar year]

(b) A state may request, and the Administrato r must approve, a higher classification for any reason in accordance with CAA section 181(b)(3). (c) A state may request, and the Administrator ma y in the Administrator’s discretion approve, a higher or lower classification in accordance with CAA section 181(a)(4). (d) Any area designated nonattain ment that includes in whole or in part the following areas will be classified by operation of law for the 2008 ozone NAAQS in accordan ce with the voluntary classification request submitted for each area for the 1997 ozone NAAQS, unless the state submits a letter to EPA requesting otherwise: Ventura Co, CA; Houston-Galveston-Brazoria,

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42 TX; Los Angeles-South Coast, CA; San Joaq uin Valley, CA; Riverside County, CA; and Sacramento Metro, CA.