12264 Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50, 51, 52, 70, and 71 

[EPA–HQ–OAR–2010–0885; FRL–9917–29– 

OAR] 

RIN 2060–AR34 

Implementation of the 2008 National 

Ambient Air Quality Standards for 

Ozone: State Implementation Plan 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is establishing 

a final rule for implementing the 2008 

ozone national ambient air quality 

standards (NAAQS) (the ‘‘2008 ozone 

NAAQS’’) that were promulgated on 

March 12, 2008. This final rule 

addresses a range of nonattainment area 

state implementation plan (SIP) 

requirements for the 2008 ozone 

NAAQS, including requirements 

pertaining to attainment 

demonstrations, reasonable further 

progress (RFP), reasonably available 

control technology (RACT), reasonably 

available control measures (RACM), 

major new source review (NSR), 

emission inventories, and the timing of 

SIP submissions and of compliance with 

emission control measures in the SIP. 

Other issues also addressed in this final 

rule are the revocation of the 1997 

ozone NAAQS and anti-backsliding 

requirements that apply when the 1997 

ozone NAAQS are revoked. If the 

primary or secondary ozone NAAQS are 

revised in the future, the EPA expects 

that this rule will help facilitate 

implementation of any new standards. 

DATES: This final rule is effective on 

April 6, 2015. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2011–0885. All 

documents in the docket are listed in 

http://www.regulations.gov. Although 

listed in the index, some information is 

not publicly available, i.e., confidential 

business information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the EPA Docket Center, Room Number 

3334 in the EPA William Jefferson 

Clinton West Building, located at 1301 

Constitution Avenue NW., Washington, 

DC 20004. 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, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

further general information on this 

rulemaking, contact Dr. Karl Pepple, 

Office of Air Quality Planning and 

Standards, U.S. Environmental 

Protection Agency, by phone at (206) 

553–1778, or by email at pepple.karl@

epa.gov; or Mr. Butch Stackhouse, 

Office of Air Quality Planning and 

Standards, U.S. Environmental 

Protection Agency, phone number (919) 

54l-5208, or by email at 

stackhouse.butch@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected directly 

by this final rule include state, local and 

tribal governments. Entities potentially 

affected indirectly by this final rule 

include owners and operators of sources 

of emissions [volatile organic 

compounds (VOCs) and nitrogen oxides 

(NOX)] that contribute to ground-level 

ozone formation. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this notice 

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

air/ozonepollution/actions.html#impl 

under ‘‘recent actions.’’ 

C. 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. Where can I get a copy of this document 

and other related information? 

C. How is this notice organized? 

II. Background 

III. What are the SIP requirements for the 

2008 ozone NAAQS? 

A. What are the applicable deadlines for 

nonattainment areas under the 2008 

ozone NAAQS? 

B. What are the requirements for modeling 

and attainment demonstration SIPs? 

C. What are the RFP requirements for the 

2008 ozone NAAQS? 

D. How do RACT and RACM requirements 

apply for 2008 ozone NAAQS 

nonattainment areas? 

E. Does the 2008 ozone NAAQS result in 

any new vehicle I/M programs? 

F. How does transportation conformity 

apply to the 2008 ozone NAAQS? 

G. What requirements for general 

conformity apply to the 2008 ozone 

NAAQS? 

H. What are the requirements for 

contingency measures in the event of 

failure to meet a milestone or to attain? 

I. How do the NSR requirements apply for 

the 2008 ozone NAAQS? 

J. What are the emission inventory and 

emission statement requirements? 

K. What are the ambient monitoring 

requirements? 

L. How can an area qualify for a 1-year 

attainment deadline extension? 

M. How will the EPA identify whether a 

potential rural transport area is adjacent 

to an urban area? 

N. What are the special requirements for 

multi-state nonattainment areas? 

O. How will the EPA address interstate and 

international ozone transport? 

P. How will the CAA section 182(f) NOX

provisions be handled? 

Q. Emissions Reduction Benefits of Energy 

Efficiency/Renewable Energy Policies 

and Programs, Land Use Planning and 

Travel Efficiency 

R. Efforts to Encourage a Multi-pollutant 

Approach When Developing 2008 Ozone 

SIPs 

S. What are the requirements for the Ozone 

Transport Region (OTR)? 

T. Are there any additional requirements 

related to enforcement and compliance? 

U. What are the requirements for 

addressing emergency episodes? 

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

to the 2008 ozone NAAQS? 

W. How does this final rule apply to tribes? 

X. What collaborative program has the EPA 

implemented for the 2008 ozone 

NAAQS? 

IV. What are the anti-backsliding 

requirements for the revoked 1997 ozone 

NAAQS? 

A. What is the effective date of the 

revocation of the 1997 ozone NAAQS? 

B. What are the applicable requirements for 

anti-backsliding purposes following the 

revocation of the 1997 ozone NAAQS? 

C. Application of Transition Requirements 

to Nonattainment and Attainment Areas 

D. Satisfaction of Anti-backsliding 

Requirements for an Area 

E. How will the EPA’s determination of 

attainment (‘‘Clean Data’’) regulation 

apply for purposes of the antibacksliding requirements? 

F. What is the relationship between 

implementation of the 2008 ozone 

NAAQS and the CAA title V permits 

program? 

V. Environmental Justice Considerations 

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 


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Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Rules and Regulations 12265 

1See 73 FR 16436. 

2For a detailed explanation of the calculation of 

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

Appendix I. 

3See the Phase 1 (69 FR 23951, April 30, 2004) 

and Phase 2 (70 FR 71612, November 29, 2005) 

Rules. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Determination Under CAA Section 

307(d) 

M. Judicial Review 

Appendix A to Preamble—Glossary of Terms 

and Acronyms 

Appendix B to Preamble—List of Areas 

Nonattainment for the 2008 Ozone 

NAAQS in Addition to a Prior Ozone 

NAAQS 

Statutory Authority 

List of Subjects 

II. Background 

On March 12, 2008,1 the EPA 

announced revisions to the primary and 

secondary 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

Since the 2008 primary and secondary 

NAAQS for ozone are identical, for 

convenience, we refer to both as ‘‘the 

2008 ozone NAAQS’’ or ‘‘the 2008 

ozone standards.’’ The 2008 ozone 

NAAQS retains the same general form 

and averaging time as the 0.08 ppm 

NAAQS set in 1997, but is set at a more 

stringent level. 

When the EPA revises a NAAQS for 

a particular criteria pollutant, it 

considers the extent to which existing 

EPA regulations and guidance are 

sufficient to implement the standard 

and whether any revisions or updates to 

those regulations and guidance would 

be helpful or appropriate in facilitating 

the implementation of the revised 

standard by states, tribes, and local 

agencies. The Clean Air Act (CAA or 

Act) does not require that the EPA 

promulgate new implementing 

regulations every time that a NAAQS is 

revised. Likewise, the CAA does not 

require the issuance of additional 

implementing regulations or guidance 

by the EPA before a revised NAAQS 

becomes effective. The plain language of 

the CAA and existing EPA regulations 

may be sufficient in many cases to 

enable the EPA and the states to begin 

working together to implement a revised 

NAAQS. However, where the nature of 

revisions to a NAAQS indicate that 

additional regulations or guidance (or 

revisions to existing regulations or 

guidance) may be helpful, the EPA 

endeavors to provide those regulations 

and guidance to facilitate preparation of 

SIPs. It is important to note, however, 

that the existing EPA regulations in 40 

CFR part 51 applicable to SIPs generally 

and to particular pollutants continue to 

apply even without such updates. This 

rule revises existing regulations and 

guidance as appropriate to aid in the 

implementation of the 2008 ozone 

NAAQS. 

Promulgation of a NAAQS triggers a 

requirement for the EPA to designate 

areas as nonattainment, attainment, or 

unclassifiable, and to classify the areas 

at the time of designation. The EPA has 

already completed area designations 

and associated classifications for the 

2008 NAAQS, and they were effective 

July 20, 2012 (May 21, 2012; 77 FR 

30088). The EPA also issued a 

Classifications Rule at the same time 

which established air quality thresholds 

for each nonattainment classification 

(May 21, 2012; 77 FR 30160). 

The EPA also undertook notice and 

comment rulemaking on the CAA 

nonattainment area provisions as they 

apply to the 2008 ozone NAAQS and 

appropriate rules to implement those 

provisions, which is complete with this 

final rule. The public comment period 

on the June 6, 2013, notice of proposed 

rulemaking (NPRM) (78 FR 34178) for 

the SIP Requirements Rule ran from 

June 6, 2013, to September 4, 2013. The 

EPA received 54 comment submissions 

on the NPRM. The preamble to this final 

rule discusses the comments received 

and how they were considered by the 

EPA in general terms. The Response to 

Comments document provides more 

detailed responses to the comments 

received. The public comments received 

on the NPRM and the EPA’s Response 

to Comment document are posted in the 

docket at www.regulations.gov (Docket 

ID No. EPA–HQ–OAR–2011–0885). 

We are taking multiple actions in this 

rule pertaining to submittal deadlines 

and specific CAA requirements for the 

content of SIPs for the 2008 ozone 

NAAQS. As a general matter, this final 

rule follows the same basic principles 

and approach that the EPA applied to 

interpreting the CAA’s part D, subpart 2 

ozone nonattainment area requirements 

in the EPA’s development of the 

implementation rules for the 1997 ozone 

NAAQS.3 Additionally, we are revoking 

the 1997 ozone NAAQS for all purposes 

and establishing anti-backsliding 

requirements for areas that remain 

designated nonattainment for the 

revoked NAAQS. 

Regarding the format of the following 

sections of this preamble, on topics 

where we proposed an action, we 

include detailed information about what 

we proposed, what we are finalizing and 

our rationale, as well as responses to 

significant comments. With topics 

where we did not propose any action, 

we provide guidance on that topic in the 

preamble. For a comprehensive look at 

all comments received and responses to 

those comments, please refer to the 

Response to Comment document in the 

docket. 

III. What are the SIP requirements for 

the 2008 ozone NAAQS? 

A. What are the applicable deadlines for 

nonattainment areas under the 2008 

ozone NAAQS? 

1. What is the deadline for submitting 

nonattainment area SIP revisions for the 

2008 ozone NAAQS? 

a. Summary of the Proposal 

For purposes of the 2008 ozone 

NAAQS, the EPA proposed two 

alternatives regarding the deadlines for 

submitting the various elements of an 

ozone nonattainment area SIP, 

including emission inventories, RACT 

SIPs and emission statement SIPs, 

Ozone Transport Region (OTR) RACT, 

15 percent rate-of-progress (ROP) plans 

and Moderate area attainment 

demonstrations, and the 3 percent per 

year RFP plans and attainment 

demonstrations for Serious and higher 

areas. The two proposed alternatives for 

SIP due dates were (1) the period of 

time provided by CAA section 182, and 

(2) a state’s choice of either submitting 

all elements in accordance with the 

timeframe provided by CAA section 182 

or submitting all elements under a 

consolidated approach, no later than 30 

months after the effective date of 

designation. The consolidated SIP 

approach would provide more time for 

some SIPs, and less time for others. 

The EPA also proposed a timeframe, 

for Serious and higher areas, of 4 years 

for states to develop their attainment 

demonstrations and 3 percent per year 

RFP plans. This was a proposed change 

from the approach used in the 

implementation of the 1997 ozone 

NAAQS, but is consistent with the 

timeframe allowed under CAA section 

182. 

Additionally, the EPA requested 

comment on its proposal to align the 

due date of the vehicle inspection and 

maintenance (I/M) program SIP with the 


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12266 Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Rules and Regulations 

4The effective date of designations was July 20, 

2012. See 77 FR 30088. 

5See section III.J.2 of this rule for additional 

information on emission statements. 

6Typically submitted in 3-year increments, thus 

as 9 percent RFP plans that produce average 

reductions of 3 percent per year. 

7See 71 FR 17705, April 7, 2006. 

8See 77 FR 30088, May 21, 2012; and 77 FR 

34221, June 11, 2012. 

9The EPA believes that the recent ruling by the 

D.C. Circuit Court on the Classifications Rule (77 FR 

30160, May 21, 2012) impacts the level of flexibility 

EPA is able to provide regarding SIP due dates. See 

NRDC v. EPA (D.C. Cir. No. 12–1321, Dec 23, 2014). 

due date of the attainment 

demonstration SIP so that both are due 

at the same time. This was similarly a 

proposed change from the current I/M 

SIP deadline for ozone nonattainment 

areas (1 year after the effective date of 

designation and classification under a 

revised ozone standard). 

We proposed that states with areas 

initially classified as Severe or Extreme 

for the 2008 ozone NAAQS would be 

required to submit a CAA section 185 

SIP no later than 10 years after the 

effective date of designation and 

classification for the 2008 ozone 

NAAQS. 

Finally, the EPA proposed that all SIP 

due date timeframes would run from the 

effective date of nonattainment 

designations for the 2008 ozone 

NAAQS. 

b. Final Action 

We are finalizing the approach that 

the SIP elements listed in the proposal 

are due based on the timeframes 

provided in CAA section 182. That is, 

states with areas designated 

nonattainment have 2 years from the 

effective date of nonattainment 

designation 4 to submit emission 

inventories (required by CAA section 

182(a)(1)), RACT SIPs (CAA section 

182(b)(2)) and emission statement SIPs 5

(CAA section 182(a)(3)(B)); 3 years to 

submit 15 percent ROP plans (CAA 

section 182(b)(1)) and Moderate area 

attainment demonstrations (CAA 

section 182(b)(1)); and 4 years to submit 

3 percent per year 6 RFP plans (CAA 

section 182(c)(2)) and attainment 

demonstrations (CAA section 182(c)(2)) 

for Serious and higher areas. This 

approach conforms to the manner in 

which the 1997 ozone NAAQS was 

implemented, with the exception of the 

4th year provided to areas classified 

Serious and higher to develop 

attainment demonstration SIPs for the 

2008 ozone NAAQS. Additionally, we 

note that OTR states that owe SIPs due 

to CAA section 184 must meet the same 

SIP due dates listed previously. 

The EPA is also finalizing the 

alignment of the vehicle I/M program 

SIP due date with the due date for the 

attainment demonstration SIP for the 

area. This will be achieved by revising 

40 CFR 51.372(b)(2) of the vehicle I/M 

rule 7 to replace the current 1-year 

deadline for vehicle I/M program SIP 

submissions with a deadline of no later 

than the due date for submitting the 

area’s attainment demonstration SIP. 

The EPA is also finalizing the due 

date of the CAA section 185 penalty fee 

program SIPs from areas initially 

classified as Severe or Extreme for the 

2008 ozone NAAQS as 10 years from the 

effective date of designations. For areas 

that are reclassified to Severe or 

Extreme after the original 2008 

designations and classifications, the 

EPA will establish an appropriate fee 

program SIP submission deadline as 

part of the reclassification action. 

We note that in the proposed SIP 

Requirements Rule, the EPA did not 

include a specific due date for 

nonattainment NSR SIPs for the 2008 

ozone NAAQS. This final rule includes 

a due date of 3 years from the effective 

date of designation for states with 

nonattainment areas for the 2008 ozone 

NAAQS to submit their nonattainment 

NSR SIPs as a logical outgrowth of the 

proposed rule and the comments 

submitted. Additional discussion of this 

due date and our rationale for that date 

are provided in the following Comments 

and Responses section, which discusses 

NSR requirements in greater detail. 

As proposed, the EPA is finalizing 

that these various SIP due dates are 

established based on the effective date 

of designations for the 2008 ozone 

NAAQS. For areas initially designated 

nonattainment, this effective date was 

July 20, 2012.8

c. Rationale 

After considering comments 

questioning the legal supportability of 

the consolidated approach, the EPA has 

concluded that we do not have a 

sufficient statutory basis to provide this 

flexibility.9 Therefore, the EPA is 

finalizing the approach that the various 

SIP elements are due based on the 

timeframes provided in CAA section 

182. 

When implementing the 1997 ozone 

NAAQS, the EPA provided areas 

classified as Serious and higher only 3 

years to develop and submit attainment 

demonstration SIPs. The EPA is now 

providing the maximum of 4 years to 

develop and submit these SIPs, 

consistent with the CAA. The policy 

reasons that existed at the time the 

Phase 2 rule was developed (i.e., the 

need for timing consistency between 

subpart 1 and subpart 2 areas within the 

same region, the timing of the largescale interstate transport modeling 

underway at the time, and the option of 

coordinated planning with the similarly 

timed PM2.5 SIPs) are not generally 

circumstances faced currently by the 

Serious and higher areas. Thus, the EPA 

concludes that it is not appropriate to 

shorten the time period allowed by the 

Act to submit these SIPs. 

Regarding the alignment of due dates 

for attainment demonstration SIPs and 

vehicle I/M program SIPs, the EPA 

believes this allows the best use of state 

resources. Areas need to determine 

together the total amount of emissions 

reductions needed for attainment and 

the amount of emissions reductions to 

achieve from different sectors and 

strategies (including vehicle I/M), before 

designing a vehicle I/M program capable 

of achieving the necessary reductions to 

demonstrate attainment. Requiring 

submittal of a vehicle I/M program in 

advance of an attainment demonstration 

for the current or future ozone standard 

could result in significant unnecessary 

work on modeling and SIP revisions if 

revisions to the vehicle I/M program are 

later deemed necessary to integrate with 

the overall attainment strategy. 

Although no new vehicle I/M programs 

are required under the initial 

designations and classifications for the 

2008 ozone NAAQS, this change will 

apply to any current Marginal areas that 

may be required to adopt vehicle I/M as 

a result of missing an attainment 

deadline and being reclassified to a 

higher nonattainment classification in 

the future. 

We believe the submittal date for the 

CAA section 185 penalty fee program 

SIPs is consistent with section 182(d)(3) 

of the CAA, which provided slightly 

more than 10 years for submission of the 

fee program SIP revision for areas 

designated as nonattainment and 

classified as Severe or Extreme by 

operation of law in 1990 for the 1-hour 

ozone NAAQS. 

The EPA has historically based the 

due date of the SIPs discussed 

previously from the effective date of 

designations and sees no reason to 

depart from that practice here. 

d. Comments and Responses 

Comment: Several commenters 

supported the idea of a consolidated SIP 

submittal, but thought that the 30 

months provided in the proposal for the 

consolidated submittal was not 

sufficient to entice any states to take 

advantage of the option. Many 

commenters expressed a concern that 

the EPA did not have a sufficiently firm 

legal basis to allow states to delay any 

of the required SIP submissions beyond 


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Federal Register / Vol. 80, No. 44 / Friday, March 6, 2015 / Rules and Regulations 12267 

10See 70 FR 71612 at 71672 and 71683 

(November 29, 2005). 

11 Ibid. 

12See the proposal (77 FR 8197; February 14, 

2012) and the final (77 FR 30160; May 21, 2012) 

Classifications Rule for the 2008 ozone NAAQS. 

13Except in the case of a leap year, where the year 

would be a rolling 366 day period. 

the timeframes provided in the statute, 

nor to require early submittal of any 

SIPs. 

Response: The EPA proposed the 

consolidated approach in an attempt to 

provide flexibility and a potential 

burden reduction option to states. After 

considering the comments questioning 

the legal supportability of this approach, 

we concluded that at this time we do 

not have a sufficient basis to support 

this flexibility. Thus, we are not 

finalizing the consolidated approach. 

Comment: One commenter disagreed 

with the EPA’s proposal that the SIP 

submittal due dates in subpart 2 should 

run from the effective date of 

designations. The commenter believed 

that the SIP due dates must run from the 

date the designations are signed. 

Response: We disagree with the 

commenter that the CAA mandates the 

SIP submittal due dates in subpart 2 

must run from the date the designations 

are signed instead of the effective date 

of designations. The EPA believes that 

its historic practice of establishing SIP 

due dates that run from the effective 

dates of designations, as it did for the 

1997 ozone NAAQS, is appropriate and 

legally supportable. Therefore, we are 

not deviating from this practice. 

Comment: Two commenters 

supported the EPA’s proposal to align 

the vehicle I/M program SIP and 

attainment SIP deadlines, while two 

other commenters stated that any 

change to the vehicle I/M program SIP 

deadline needs to be consistent with the 

deadlines prescribed in the CAA and 

not delay implementation of required 

I/M programs. 

Response: The EPA’s decision to align 

the I/M SIP submittal deadline with the 

deadline for submitting the attainment 

demonstration will not impact the 

emission reductions achieved through 

the vehicle I/M program requirement 

because we are not changing the 

deadline by which affected areas must 

begin testing and repairing vehicles. 

Further, the EPA believes that it must, 

of necessity, provide a reasonable 

interpretation of the CAA’s vehicle I/M 

program SIP submission deadline 

because the Act’s basic vehicle I/M 

program SIP submission requirement of 

‘‘immediately upon enactment’’ of the 

CAA is impossible to meet. Lastly, given 

the degree to which the overall 

attainment demonstration will rely on 

emission reductions derived from 

vehicle I/M, it is reasonable and costeffective to allow states to coordinate 

these two planning requirements. 

Comment: One commenter noted that 

the proposal was silent about the due 

date of the nonattainment NSR SIP. The 

commenter stated that the EPA should 

clearly establish the associated due 

dates for nonattainment NSR SIP 

submittals. 

Response: The commenter is correct 

that the discussion of SIP submittal 

deadlines in the proposed SIP 

Requirements Rule did not include the 

date on which states must submit for the 

EPA’s approval the required 

nonattainment NSR SIP applicable to 

the 2008 ozone NAAQS. This final rule 

includes a deadline of 3 years from the 

date of designation for states to submit 

their nonattainment NSR program SIPs 

for the 2008 ozone NAAQS. This date is 

consistent with the submittal date that 

the EPA provided states to develop an 

approvable nonattainment NSR program 

for the 1997 ozone NAAQS in the Phase 

2 Rule, and is consistent with CAA 

section 172(b), which states that the 

EPA shall establish a date no later than 

3 years from the date of the 

nonattainment designation.10

Consequently, the EPA does not believe 

it has discretion to set a date longer than 

3 years, and also concludes that states 

may need up to 3 years to develop and 

submit any necessary SIPs. 

In the Phase 2 Rule, we indicated that 

the 3-year SIP deadline facilitates 

coordination of NSR program changes 

with the submission of the attainment 

plan, which was also due within 3 

years. We recognize that CAA section 

182(a)(2)(C)(i), under the heading 

‘‘Corrections to the State 

implementation plans—Permit 

programs’’ contains a requirement for 

states to submit NSR SIP revisions to 

meet the requirements of CAA sections 

172(c)(5) and 173 within 2 years after 

the date of enactment of the 1990 CAA 

Amendments. As explained in our 

Phase 2 rulemaking, we believe the 

submission of NSR SIPs due on 

November 15, 1992, fulfilled this CAA 

requirement.11 Accordingly, we do not 

believe that the 2-year deadline 

contained in CAA section 182(a)(2)(C)(i) 

applies to subsequent NSR SIPs for 

revised ozone standards, including the 

nonattainment NSR SIPs for 

implementing the 8-hour ozone 

NAAQS. In addition, we note that while 

CAA section 182 specifies the offset 

ratios or major source thresholds to be 

included in the revised NSR SIP, it is 

silent as to the SIP submission deadline 

(see, e.g., CAA section 182(a)(4), CAA 

section 182(b)(5) and CAA section 

182(c)). Given this gap in CAA section 

182, we believe it is reasonable to look 

to CAA section 172(b) in establishing a 

deadline for submission of the 

nonattainment NSR SIP. While the EPA 

did not propose a date on which states 

must submit for the agency’s approval 

the required nonattainment NSR SIP, 

stakeholders could have anticipated that 

we would continue our prior practice 

unless we proposed to take a different 

course. In this rule, we are continuing 

our prior practice, as reflected in the 

Phase 2 rule for the 1997 ozone NAAQS, 

of including a deadline of 3 years from 

the date of designation for states to 

submit their nonattainment NSR 

program SIPs. 

2. What are the attainment dates for the 

2008 ozone NAAQS? 

a. Background 

For purposes of the 2008 ozone 

NAAQS, the EPA proposed two options 

for establishing the maximum 

attainment dates for areas in each 

nonattainment classification in its 

separate Classifications Rule issued on 

May 21, 2012.12 Under the first option, 

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 

dates would be December 31 of the year 

that is the specified number of years in 

Table 1 after designation. The first 

option was the same approach we took 

for the 1997 NAAQS, where we would 

interpret ‘‘year’’ in the subpart 2 

classification table to mean consecutive 

365-day periods,13 and we would 

substitute ‘‘after the effective date of 

designation’’ for the ‘‘after November 

15, 1990’’ language in the subpart 2 

classification table. Under this approach 

the attainment deadline would fall a 

precise number of years after the 

effective date of designation. 

Specifically, the initial area 

designations for the 2008 ozone NAAQS 

became effective on July 20, 2012, and 

the attainment dates would run from 

July 20, 2012, such that the 3-year 

attainment deadline for Marginal areas 

would be July 20, 2015. 

For the second option, which the EPA 

promulgated in the final May 2012 

Classification Rule (77 FR 30160), the 

attainment date would be specified as a 

certain number of years from the end of 

the calendar year in which an area’s 

nonattainment designation is effective. 

In other words, since the effective date 

of designations for the 2008 ozone 

NAAQS is July 20, 2012, the 3-year 


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14We are finalizing this approach without 

additional notice-and-comment. As noted, we took 

comment in the original proposal on two 

approaches: The option we promulgated and which 

the court rejected, and the option we are 

promulgating here. Moreover, the court decision 

strongly indicates that the approach we are 

promulgating here is the only approach that is 

consistent with Congressional intent. In light of the 

need for certainty for the states and regulated 

parties, the fact that we previously solicited 

comment on the approach we are adopting here, 

and the limited discretion the court believes EPA 

has been provided under the Act, we believe 

additional comment is unnecessary and contrary to 

the public interest. 

15We note that during the comment period on the 

May 2012 rule establishing the attainment dates, a 

few commenters claimed that the attainment period 

should run from the time the designations actions 

were signed by the Administrator rather than the 

effective date of designation. In the final May 2012 

rule, we responded to this comment explaining why 

we believed the arguments the commenters raised 

were not supported by the statute. Regardless we 

note that whether the attainment date runs from the 

date of signature or the effective date of designation, 

the attainment year will be the same, as an 

attainment showing is based on the most recent 

three full years of ozone data available. Thus, for 

example, under either approach, the relevant years 

for demonstrating attainment for a Marginal area 

will be 2012–2014 and for a Moderate area, 2015– 

2017. 

16An attainment demonstration consists of: (1) 

Technical analyses, such as base year and future 

year modeling of emissions which identifies 

sources and quantifies emissions from those sources 

that are contributing to nonattainment; (2) analyses 

of future year emissions reductions and air quality 

improvement resulting from existing (i.e., alreadyadopted or ‘‘on the books’’) national, regional and 

local programs, and potential new local measures 

needed for attainment, including RACM and RACT 

for the area; (3) a list of adopted measures 

(including RACT) with schedules for 

implementation and other means and techniques 

necessary and appropriate for demonstrating 

attainment as expeditiously as practicable but no 

later than the outside attainment date for the area’s 

classification; and (4) a RACM analysis to 

determine whether any additional RACM measures 

could advance attainment by 1 year. 

17State plans for single nonattainment areas that 

include more than one state (multi-state 

nonattainment areas) are also required to have 

photochemical modeling (see CAA section 

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

18The modeling guidance can be found in the 

EPA’s ‘‘Guidance on the Use of Models and Other 

Analyses for Demonstrating Attainment of Air 

Quality Goals for Ozone, PM2.5, and Regional 

Haze,’’ at the following Web site: http://

www.epa.gov/scram001/guidance/guide/final-03- 

pm-rh-guidance.pdf. 

attainment deadline for Marginal areas 

would be December 31, 2015. 

The end of calendar year attainment 

date in the May 2012 Classifications 

Rule was challenged in NRDC v. EPA 

(D.C. Cir. No. 12–1321). On December 

23, 2014, the U.S. Court of Appeals for 

the District of Columbia Circuit issued 

an opinion holding that the EPA’s 

decision to run the attainment periods 

from the end of the calendar year in 

which areas were designated was 

unreasonable. While recognizing that 

there is a ‘‘gap’’ in the statute since the 

CAA runs the attainment periods from 

the date of enactment of the CAA 

Amendments of 1990, the Court 

concluded that nothing in the statute or 

congressional intent authorized the EPA 

to establish the attainment dates for 

designated ozone nonattainment areas 

as December 31st of the relevant 

calendar years, but rather that such 

deadlines are more appropriately 

calculated as annual periods running 

from the date of designation and 

classification as the EPA had done in 

past ozone implementation rules. 

b. Action on Attainment Dates 

To provide clarity to states after the 

DC Circuit court decision, the EPA is 

modifying 40 CFR 51.1103 consistent 

with that decision to establish 

attainment dates that run from the 

effective date of designation, i.e., July 

20, 2012.14 This is the same approach 

the EPA used in past ozone 

implementation rules and the approach 

the court indicated was consistent with 

Congressional intent.15 The maximum 

attainment dates for nonattainment 

areas in each classification under the 

2008 NAAQS based on the July 20, 

2012, effective date are as follows: 

Marginal—3 years from effective date of 

designation; Moderate—6 years from 

effective date of designation; Serious— 

9 years from effective date of 

designation; Severe—15 years (or 17 

years) from effective date of designation; 

and Extreme—20 years from effective 

date of designation. In addition to being 

consistent with the court decision, this 

outcome was supported by several 

commenters on the EPA’s February 2012 

proposed Classifications Rule (77 FR 

8197, February 14, 2012). These 

supporting commenters believed this 

outcome to be a plain reading of the 

CAA, and less likely to result in further 

delays in implementing controls in 

nonattainment areas (see 77 FR 30160 at 

30166, May 21, 2012). 

B. What are the requirements for 

modeling and attainment demonstration 

SIPs? 

1. Marginal Areas 

Under CAA section 182(a), Marginal 

areas have up to 3 years from the 

effective date of designation to attain the 

NAAQS, and are not required to submit 

an attainment demonstration SIP. The 

EPA offers assistance to states as they 

consider the most appropriate course of 

action for Marginal areas that may be at 

risk of failing to meet the NAAQS 

within the applicable 3 year timeframe. 

States can choose to adopt additional 

controls for such areas or they can seek 

a voluntary reclassification to a higher 

classification category. The EPA 

believes that voluntary reclassification 

for areas that are not likely to attain by 

their attainment date is an appropriate 

action that will facilitate focus on 

developing the attainment plans 

required of Moderate and above areas. 

2. Moderate Areas 

a. Summary of the Proposal 

The EPA proposed to continue to 

require states with an area classified as 

Moderate to submit an attainment 

demonstration,16 due no later than 3 

years from the effective date of an area’s 

designation, based on photochemical 

modeling or another equivalent 

analytical method that is determined to 

be at least as effective as that which is 

required under the Act for Serious and 

above areas and multi-state 

nonattainment areas.17 This is the same 

approach used in the implementation 

rules for the 1997 ozone NAAQS. 40 

CFR 51.908(c). 

b. Final Action and Rationale 

The EPA is finalizing requirements for 

Moderate areas as proposed. The EPA 

continues to believe the requirements 

for Moderate areas are reasonable, 

primarily because photochemical 

modeling is generally available and 

reasonable to employ. However, this 

requirement also explicitly allows for 

alternative analytical methods to be 

substituted for or used to supplement a 

photochemical modeling-based 

assessment of an emissions control 

strategy. Any alternative analysis should 

be based on technically credible 

methods and provide for the timely 

submittal of the attainment 

demonstration and implementation of 

SIP controls. States should review the 

EPA modeling guidance 18 and consult 

their appropriate EPA Regional Office 

before proceeding with alternative 

analyses. 

c. Comments and Responses 

Comment: Some commenters believed 

that the EPA exceeds its authority to 

require states with Moderate 

nonattainment areas to use 

photochemical modeling and thus, 

undermines states’ discretionary options 

allowed under the statute. 

Response: The EPA disagrees with the 

commenters and believes that we have 

the authority to require states to use 

appropriate modeling to predict the 

effect of emissions on air quality of any 

NAAQS as we did for the 1997 ozone 

NAAQS. CAA section 182(c)(2)(A) 

contains specific requirements for states 

to use photochemical modeling or 

another similarly effective equivalent 

modeling method in their SIPs for 


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19The modeling guidance can be found at the 

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

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

Serious and above nonattainment areas. 

Additionally, CAA section 

182(b)(1)(A)(i) requires RFP plans for 

Moderate areas to provide for such 

specific annual reductions in emissions 

of VOC and NOX as necessary to attain 

the NAAQS by the applicable 

attainment date. The EPA has 

interpreted this as a requirement for 

Moderate areas to submit an attainment 

demonstration. Since photochemical 

modeling is the most scientifically 

rigorous technique to determine NOX

and/or VOC emissions reductions 

needed to show attainment of the 

NAAQS and is readily available, we are 

requiring photochemical modeling (or a 

similarly effective equivalent modeling 

method) for all attainment 

demonstrations (including Moderate 

areas). The authority for this 

requirement for Moderate areas is 

derived from CAA section 110(a)(2)(k), 

which gives the Administrator the 

authority to require air quality modeling 

for the purpose of predicting the effect 

on ambient air quality of emissions of 

any air pollutant for which there is an 

established NAAQS. 

Comment: One commenter stated that 

allowing up to 3 years to submit an 

attainment demonstration is not 

sufficient time to allow for the 

emissions inventory development and 

modeling required for an attainment 

demonstration. The commenter wanted 

the EPA to allow ‘‘the original four year 

timeline’’ to submit attainment 

demonstrations. 

Response: CAA Section 182 contains 

two attainment demonstration submittal 

dates that depend on an area’s 

classification. For Moderate areas, CAA 

section 182(b)(1)(A) requires a plan 

within 3 years of the designation date. 

For Serious and above areas, CAA 

section 182(c)(2) requires a plan within 

4 years of the designation date. In the 

Phase 2 Rule, 70 FR 71612, at 71639, the 

EPA required all attainment 

demonstrations to be submitted within 

3 years of designation. However, for this 

rule, the EPA proposed to allow the 

original CAA deadlines of up to 3 years 

for Moderate areas and up to 4 years for 

Serious areas, 78 FR 34178, at 34183. 

While the EPA agrees that the 

development of emissions inventories 

and modeling for attainment 

demonstrations can be a lengthy 

process, the statute does not allow for 

more than 3 years for a Moderate area 

attainment demonstration. However, 

since the statute does allow up to 4 

years to submit a Serious (and above) 

area attainment demonstration, in this 

rule we are allowing the maximum 

amount of time provided by the statute 

for such areas. Therefore, the EPA is 

finalizing the attainment demonstration 

submittal dates as proposed; up to 3 

years from the effective date of 

designation for Moderate areas and up 

to 4 years from the effective date of 

designation for Serious and above areas. 

Comment: One commenter stated that 

there are now a number of rural areas 

in the country with wintertime ozone 

attainment issues, and recommended 

that the EPA exempt rural wintertime 

ozone nonattainment areas from this 

requirement because a wintertime 

photochemical grid model or proven 

alternative analytical method has not 

been developed. The commenter argued 

that it is the EPA’s responsibility to 

develop and test models that can be 

used consistently across the nation. 

Response: The EPA recognizes that 

the causes of rural wintertime ozone 

exceedances are different than typical 

summer exceedances. However, the 

CAA does not distinguish between 

summer and winter ozone areas. Areas 

with wintertime violations are 

designated as nonattainment based on 

the same classification thresholds as all 

other nonattainment areas. They 

therefore must meet all of the 

appropriate CAA requirements for their 

particular nonattainment classification. 

Nonattainment areas classified as 

Moderate and above, even those that 

may experience wintertime ozone 

problems, are required to submit an 

attainment demonstration. However, 

there is flexibility in determining 

analytical methods to be used in 

developing the demonstration. The EPA 

will consider the nature of the ozone 

problem in reviewing available models 

and potential alternative methods for 

demonstrating attainment. There is also 

ongoing research that has successfully 

identified enhancements in modeling 

science which have improved 

photochemical model performance in 

wintertime ozone situations. Some of 

these science updates may be available 

for states to use in their attainment 

demonstrations by the time modeling is 

needed for areas with wintertime ozone 

problems. 

3. Serious and Above Areas 

For Serious and higher-classified 

areas, CAA section 182(c)(2)(A) states 

that attainment demonstrations must be 

submitted within 4 years of the 

designation date and be based on 

photochemical grid modeling or an 

equivalent effective method. We 

continue to believe that photochemical 

modeling is the most technically 

credible method of estimating future 

year ozone concentrations based on 

projected VOC and NOX precursor 

emissions. Therefore, consistent with 

the CAA and previous implementation 

rules, states with areas classified as 

Serious and higher are required to 

submit attainment demonstrations 

within 4 years of the effective date of 

designation, based on photochemical 

modeling or an alternative analytical 

method determined by the 

Administrator to be at least as effective. 

4. What guidance is there for using 

models to demonstrate attainment? 

The procedures for modeling ozone as 

part of an attainment demonstration are 

well developed and described in the 

EPA’s ‘‘Guidance on the Use of Models 

and Other Analyses for Demonstrating 

Attainment of Air Quality Goals for 

Ozone, PM2.5, and Regional Haze.’’ 19

This guidance document, as it currently 

exists, can be used by states for 

purposes of developing attainment 

demonstration SIPs for the 2008 ozone 

NAAQS. 

Commenters requested that the EPA 

update its modeling guidance pertinent 

to ozone and that it be made available 

in advance of SIP submission deadlines. 

The EPA agrees with this comment and 

is therefore currently updating the 

modeling guidance, and we intend to 

issue the updated guidance prior to the 

attainment demonstration SIP 

deadlines. 

5. Capturing High Emissions Days in 

Inventories 

In the proposed SIP Requirements 

Rule, the EPA did not propose changes 

to modeling requirements for modeling 

high emissions days. The current 

modeling guidance addresses, among 

many other considerations, episode 

selection and accounting for variability 

in emissions and meteorology. 

The EPA recognizes that there are 

time periods with relatively higher NOX

emissions from electric utilities during 

high energy demand periods, i.e., High 

Electricity Demand Days (HEDD). Since 

NOX emissions from electric power 

generation are a significant contributor 

to the total NOX emissions for many 

ozone nonattainment areas, states that 

experience these situations should 

ensure that these emissions are included 

in photochemical modeling of episode 

days on which the HEDD situations 

occurs. In order to properly account for 

HEDD emissions in the modeling, 

careful attention should be paid to the 

temporalization of emissions to the 

specific day and hour of the day when 

these emissions occur. We note that the 


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20http://www.epa.gov/scram001/guidance/guide/

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

21The EPA recommends using ambient design 

values that are consistent with the official design 

values as calculated according to 40 CFR part 50 

Appendix N (PM2.5 NAAQS) and Appendix P (8- 

hour ozone NAAQS). This includes flagging and 

removing event-influenced data that meet the 

requirements set forth in the Exceptional Events 

Rule (40 CFR 50.14). In general, air agencies flag 

data that they believe may qualify for removal as 

an exceptional event and are then responsible for 

developing and providing documentation to the 

EPA to support these requests for exclusion. EPA 

Regional Offices review exceptional events claims 

and decide whether to concur with each individual 

claim. Once the EPA concurs with an air agency’s 

request, the event-influenced data are officially 

noted and removed from the data set used to 

calculate official design values. In some cases, 

historical ambient data may meet the requirements 

of the Exceptional Events Rule, but remain in the 

data set used to calculate official design values. Air 

agencies may not have flagged these data as being 

potentially influenced by exceptional events, or 

may have flagged these data but not submitted the 

required documentation. Air agencies sometimes do 

not closely examine potential event-influenced data 

that do not affect attainment/nonattainment 

decisions. However, the influence of potential 

event-influenced data may affect future year 

projections that are part of the modeled attainment 

demonstration. If potential exceptional eventinfluenced data from the historical record are likely 

to affect the outcome of the modeled attainment 

demonstration, we encourage air agencies to consult 

with their EPA regional office to determine how 

best to handle this situation. 

22Note that for purposes of the 2008 ozone 

NAAQS, a determination of attainment (or failure 

to attain), which the EPA is required to make after 

the attainment date has passed, is based on the most 

recent 3 complete years of ambient data prior to the 

area’s attainment date. Attainment date extensions 

are only available if the 4th maximum 8-hour 

average ozone concentration in the attainment year 

is below the level of the standard. 

23See section III.D.2 of this proposal for a 

discussion of RACM analysis requirements. 

24See 78 FR 34178 at p. 34191 (June 6, 2013). 

EPA’s current modeling guidance 20

already addresses episode selection and 

development of accurate emissions 

input information during peak ozone 

periods. Some commenters urged the 

EPA to update the current modeling 

guidance. The EPA is in the process of 

updating the current modeling guidance 

and intends to more specifically address 

modeling of HEDD in that guidance. 

The EPA did not propose changes in 

this rule to the emission inventory 

requirements for capturing high 

emissions days but received many 

comments on the rule requirements that 

should have been directed to EPA 

guidance documents under 

development for ozone emission 

inventories (see section III.J of this 

preamble). They will be considered 

when these guidance documents are 

reviewed. The EPA does address the 

comments referring to the emission 

inventory guidance in the Response to 

Comments document for this rule. The 

comments do not directly impact the 

outcome of this rule. The EPA responses 

are provided for completeness and to 

provide these commenters with more 

information regarding the EPA’s 

intentions for guidance development 

related to HEDD emissions. 

6. Modeled Attainment Test 

The EPA’s attainment demonstration 

modeling guidance addresses the 

modeled attainment test for ozone, 

which uses a combination of ambient 

ozone data and modeled ozone 

concentrations to estimate future year 

air quality. The attainment test is 

applied at each monitor location within 

or near a designated nonattainment area. 

Models are used in a relative sense to 

estimate the response of measured air 

quality to anticipated future changes in 

emissions. Future air quality is 

estimated by adjusting recent monitored 

values by the modeled relative response 

to projected future changes in 

emissions.21 The EPA additionally 

recommends application of an 

attainment test to be performed in 

unmonitored areas. The recommended 

attainment test methodology for 

unmonitored areas has been used in 8- 

hour ozone SIPs developed for the 1997 

ozone NAAQS. To make it easier for 

states to apply the attainment tests, both 

the monitor-based test and the 

unmonitored area test have been 

incorporated in a software package 

called the ‘‘Modeled Attainment Test 

Software’’ (MATS). The MATS is 

available for no charge at: http://

www.epa.gov/scram001/modelingapps_

mats.htm. 

7. What future year(s) should be 

modeled in attainment demonstrations? 

a. Summary of the Proposal 

The EPA proposed that for the 2008 

ozone NAAQS, control measures relied 

upon to demonstrate attainment should 

be implemented by the beginning of the 

last full ozone season prior to the area’s 

attainment date. Accordingly, the future 

year attainment modeling should not 

extend beyond that time period. 

b. Final Action and Rationale 

The EPA is finalizing this action as 

proposed. The EPA stated in the 

proposal that the future modeling year 

should be selected such that all 

emissions control measures relied on for 

attainment will have been implemented 

by that year. This same approach was 

used for the 1997 ozone NAAQS and we 

continue to believe it is an appropriate 

approach for modeling of control 

measures. To demonstrate attainment, 

the modeling results for the 

nonattainment area must predict that 

emissions reductions implemented by 

the beginning of the last full ozone 

season preceding the attainment date 

will result in ozone concentrations that 

meet the level of the standard.22

Because an area must attain ‘‘as 

expeditiously as practicable,’’ additional 

considerations are necessary before a 

future attainment date can be 

established. For example, although the 

latest attainment date under the CAA for 

a Moderate area designated in 2012 

would be 6 years after the effective date 

of designation, July 20, 2018, under the 

Classifications Rule, see NRDC v. EPA, 

the state would need to conduct an 

analysis of reasonably available control 

measures (RACM) (CAA section 

172(c)(1)) to determine if it can advance 

the area’s attainment date by at least a 

year.23 Results of the RACM analysis 

may indicate attainment can be 

achieved earlier through 

implementation of reasonably available 

control measures prior to July 20 of an 

earlier year. For instance, if emission 

reductions sufficient to demonstrate 

attainment are implemented prior to 

July, 2016, then in this example the 

attainment year and the future 

projection year should be 2016. The 

proposal for this rulemaking also 

stated 24 that, in determining the 

attainment date that is as expeditious as 

practicable, the state should consider 

impacts on the nonattainment area of 

intrastate transport of pollution from 

sources within its jurisdiction, and 

potential reasonable measures to reduce 

emissions from those sources. 

We strongly recommend that the state 

discuss the selection of the future 

year(s) to model with the appropriate 

EPA Regional Office as part of the 

modeling protocol development 

process. 

c. Comments and Responses 

Comment: Many commenters 

supported the EPA’s proposal; however, 

one commenter believed that it should 

not matter when the control measure is 

implemented if the demonstration 

shows attainment by the attainment 

date. The commenter provided a 

specific example of when a large point 

source plans to shut down in the middle 

of an ozone season. 

Response: The EPA continues to 

believe that modeling the emission 

reductions implemented by the 

beginning of the last full ozone season 

preceding the final year of the statutory 

attainment date is reasonable. The effect 

on attainment of the NAAQS of 

emissions reductions that may occur 

sometime after the start of an ozone 

season is necessarily uncertain, and 


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25Similar interpretations were made for the 1997 

ozone NAAQS in the Phase 2 Ozone 

Implementation Rule, (70 FR 71615, November 29, 

2005) and were upheld in NRDC v. EPA, 571 F.3d 

1245 (D.C. Cir. 2009). 

cannot be reliably counted on to ensure 

modeled attainment in that year. 

Information about source shutdowns or 

other emissions reductions that are not 

accounted for in the modeling can be 

used as part of a weight of evidence 

demonstration (i.e., qualitative 

adjustment based on reductions from 

additional measures) if necessary to 

demonstrate timely attainment. 

Comment: One commenter supported 

the proposal to allow modeling of up to 

the last year of the statutory attainment 

date, but disagreed with the RACM 

requirement to evaluate if attainment 

can be advanced. The commenter 

disagreed with anything that would 

require the demonstration of attainment 

to be earlier than is required by statute. 

Response: The EPA disagrees with the 

commenter. A demonstration of 

attainment would not be required earlier 

than is required by statute. The statute 

provides maximum dates by which 

attainment must be achieved, but in all 

cases the statute requires that 

attainment must be achieved as 

expeditiously as practicable but no later 

than the maximum date. Therefore, a 

RACM analysis to examine whether the 

attainment date can be advanced is 

required by the statute as part of all 

attainment demonstrations. Note that a 

RACM analysis is not required for 

Marginal nonattainment areas since an 

attainment demonstration is not 

required for those areas. 

8. Multi-State Nonattainment Areas 

Under CAA section 182(j), each state 

located in a portion of a multi-state 

ozone nonattainment area is required to 

use photochemical grid modeling (or 

any other analytic method determined 

by the Administrator to be at least as 

effective) and to take all reasonable 

steps to coordinate, substantively and 

procedurally, the development, 

submittal and implementation of SIPs 

applicable to the various states within 

the nonattainment area. The EPA 

interprets CAA section 182(j) to require 

coordination on all aspects of 

nonattainment SIPs, including the 

development of an attainment 

demonstration. The EPA did not 

propose any changes to this 

longstanding policy, and we did not 

receive adverse comments on this item. 

C. What are the RFP requirements for 

the 2008 ozone NAAQS? 

1. Overview of RFP Requirements 

Areas that are designated 

nonattainment for ozone must achieve 

RFP toward attainment of the ozone 

NAAQS. Part D of the CAA contains 

three separate provisions regarding RFP. 

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

contains a general requirement that 

nonattainment SIPs must provide for 

reasonable further progress; RFP is 

defined in CAA section 171(1) as ‘‘such 

annual incremental reductions in 

emissions’’ as required by CAA part D 

or as required by the Administrator for 

ensuring attainment of the NAAQS. 

CAA sections 182(b)(1) and 182(c)(2)(B) 

under subpart 2 contain specific percent 

reduction targets for ozone 

nonattainment areas classified as 

Moderate and above and Serious and 

above, respectively. For Moderate and 

above areas, CAA section 182(b)(1) 

requires a 15 percent reduction in VOC 

emissions from the baseline 

anthropogenic emissions within 6 years 

after November 15, 1990. We often refer 

to this RFP requirement as rate-ofprogress (ROP). For Serious and above 

areas, CAA section 182(c)(2)(B) requires 

an additional 3 percent per year 

reduction in VOC emissions, averaged 

over consecutive 3-year periods, starting 

within 6 years after November 15, 1990 

and until the attainment date. CAA 

section 182(c)(2)(B) allows NOX

reductions to be substituted for VOC 

reductions under certain conditions to 

meet this RFP requirement. Note that 

the 15 percent requirement must be met 

by the end of the 6-year period 

regardless of when the nonattainment 

area attains the NAAQS. The 3 percent 

per year RFP requirement for Serious 

and above areas applies each year until 

the attainment date. 

The EPA previously interpreted the 

requirements of subpart 2 as they would 

apply to areas for the 1997 ozone 

NAAQS, and we proposed to follow 

essentially the same interpretation with 

regard to the 2008 ozone NAAQS. With 

respect to RFP requirements, we 

interpret the 15 percent VOC emission 

reduction requirement in CAA section 

182(b)(1) such that an area that has 

already met the 15 percent requirement 

for VOC under either the 1-hour ozone 

NAAQS or the 1997 ozone NAAQS (for 

the first 6 years after the RFP baseline 

year for the prior ozone NAAQS) would 

not have to fulfill that requirement 

again. Instead, such areas would be 

treated like areas covered under CAA 

section 172(c)(2) if they are classified as 

Moderate for the 2008 ozone NAAQS, 

and would need to meet the RFP 

requirements under CAA section 

182(c)(2)(B) if they are classified as 

Serious or above for the 2008 ozone 

NAAQS.25 For the purposes of the 2008 

ozone NAAQS, the EPA is interpreting 

CAA section 172(c)(2) to require such 

Moderate areas to obtain 15 percent 

ozone precursor emission reductions 

over the first 6 years after the baseline 

year for the 2008 ozone NAAQS, and is 

interpreting CAA section 182(c)(2)(B) to 

require such Serious and above areas to 

obtain 18 percent ozone precursor 

emission reductions in that 6 year 

period. Under the CAA section 172(c)(2) 

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

requirements, NOX emission reductions 

could be substituted for VOC 

reductions. 

With the intent of providing direction 

and/or flexibility to states in satisfying 

RFP requirements, we proposed a 

number of provisions to address issues 

relevant to implementing RFP under the 

2008 ozone NAAQS: (1) Allowing states 

the option of selecting either the EPA’s 

recommended baseline year or an 

alternate baseline year, if justifiable and 

appropriate; (2) restricting emission 

reduction measures that can be used to 

fulfill the RFP requirements; (3) 

fulfilling ROP/RFP requirements with 

emission reductions from sources 

located outside the nonattainment area; 

(4) removing RFP creditability 

determination requirements for certain 

pre-1990 control measures that 

currently achieve de minimis 

reductions; (5) requiring 15 percent 

VOC reductions from the nonattainment 

area emissions inventory baseline 

during a 6-year period after designation; 

(6) providing that areas that had 

previously met the 15 percent 

requirement for the 1-hour or 1997 

ozone NAAQS would be subject to the 

RFP requirement of CAA section 

172(c)(2) (if classified as Moderate) or 

182(c)(2)(B) (if classified as Serious or 

above) and consistent with those 

provisions could substitute NOX for 

VOC; and (7) satisfying ROP/RFP 

requirements when a 2008 NAAQS 

nonattainment area is comprised of 

portions that have an EPA-approved 

RFP plan for a previous NAAQS. 

Through this rulemaking, the EPA is 

finalizing actions that address the 

aforementioned issues. 

2. What baseline year may states use for 

the emission inventory for the RFP 

requirement? 

a. Summary of Proposal 

The baseline year inventory for RFP is 

used as the starting point from which 

creditable reductions are determined to 

meet RFP requirements. For the 2008 

ozone NAAQS, the EPA proposed that 

states should use as the baseline year for 


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RFP the calendar year for the most 

recently available triennial emission 

inventory at the time ROP/RFP plans are 

developed. As discussed in section 

III.C.3 of the proposal, ROP plans for 

areas designated nonattainment in 2012 

would be due in 2015, and we proposed 

the baseline year would be 2011 for 

these areas. We explained that this 

approach was analogous to the approach 

provided for RFP in the CAA. 78 FR 

34178, at 34190 (June 6, 2013). The CAA 

required a 1990 baseline for the 15 

percent ROP requirement which lined 

up with the 1996 attainment date for 

Moderate areas under the 1-hour 

NAAQS. For the 2008 ozone NAAQS, 

initial area designations were effective 

in 2012 and the 6-year RFP period from 

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

December 31, 2017) would line up 

reasonably well with the Moderate 

attainment date of 2018. 

However, we also proposed that states 

have the option of selecting an 

appropriate and justifiable alternate year 

as a baseline year for RFP. In the 

proposal, we proposed that if states 

choose a pre-2011 baseline year, the 6- 

year period for achieving the 15 percent 

reduction starts in January of the year 

following the selected baseline year. 

When a year prior to 2011 is chosen as 

the baseline year, the 6-year period thus 

concludes more than 1 year prior to the 

start of the attainment year for the area. 

In this situation, the EPA proposed that 

the area is responsible for an additional 

3 percent emissions reduction each year 

after the initial 6-year period has 

concluded up to the beginning of the 

attainment year. 

The EPA also proposed that for a 

multi-state nonattainment area, all states 

associated with the nonattainment area 

must consult and agree on the same year 

to use as the baseline year for RFP. 

b. Final Action and Rationale 

For the 2008 ozone NAAQS, the EPA 

is providing that states should use as the 

baseline year for RFP, the calendar year 

for the most recently available triennial 

emission inventory at the time ROP/RFP 

plans are developed, which in the case 

of areas designated nonattainment in 

2012 translates to 2011. We finalized 

this same interpretation for purposes of 

implementing the 1997 ozone NAAQS. 

40 CFR 51.910(d). We are also allowing 

an alternate year to be used. In 

determining the appropriate alternate 

years, the EPA recognizes that some 

states may have initiated certain control 

strategies between the year the standard 

was finalized (2008) and the most 

recently available triennial emission 

inventory year (2011), and that it would 

be appropriate to recognize these 

investments in implementing early 

reductions to achieve improved air 

quality. We also believe that allowing 

alternate baseline years prior to 2008 

(e.g., 1990 and 2007) would not be 

appropriate because we believe that it is 

necessary for RFP credit for attainment 

planning to be tied as directly as 

possible to promulgation of the 2008 

ozone NAAQS. Emission reduction 

measures adopted into the SIP prior to 

promulgation of the 2008 NAAQS are 

certainly helpful for improving air 

quality, and consequently may lower 

the nonattainment classification of an 

area and the baseline inventory. 

However, they are not readily tied to 

attainment planning for the specific 

standard and associated nonattainment 

designation that did not yet exist when 

the measures were adopted, and 

therefore are not appropriate to be 

credited for fulfilling nonattainment 

area RFP requirements for the 2008 

ozone NAAQS. We also recognize that 

since we designated most areas on April 

30, 2012, with an effective date 60 days 

after publication in the Federal 

Register, that 2012 (the designation 

year) is an appropriate alternative 

baseline year consistent with the 

subpart 2 structure. With these 

considerations, the EPA is finalizing 

that states may use an alternate year 

(i.e., other than 2011) between the years 

of 2008 to 2012 that the state justifies as 

appropriate. We are also finalizing as 

proposed that states selecting a pre-2011 

alternate baseline year must achieve 3 

percent emission reductions each year 

after the initial 6-year period has 

concluded up to the beginning of the 

attainment year. For example, if 2009 is 

chosen as a baseline year for a Moderate 

area that has an attainment date of July 

20, 2018, the 15 percent reductions 

cover the period from January 1, 2010, 

to December 31, 2015. The state would 

need to generate an additional 3 percent 

emissions reduction per year for the 

area for the years 2016 and 2017. 

We are also finalizing that for a multistate nonattainment area, all states 

associated with the nonattainment area 

must consult and agree on the same year 

to use as the baseline year for RFP. 

c. Comments and Responses 

Comment: We received mixed 

comments regarding the appropriate 

baseline year for RFP. Some 

commenters believed that 2011 would 

be the most suitable year to use as a 

baseline year for ROP/RFP plans and 

others urged the EPA to allow states the 

option of justifying an alternative 

baseline year, including 2012, 2008, 

2007 and 1990. One commenter argued 

that the CAA does not provide 

flexibility in allowing a choice of 

baseline year for RFP and that the EPA 

must set the baseline year as 2012. 

Response: While 2011 may be the 

most suitable year for many areas, we 

believe it is appropriate to provide some 

flexibility to choose an alternate year 

that falls between the year the NAAQS 

was established (2008) and the year of 

designation (2012 for the initial area 

designations). The EPA disagrees with 

the comment suggesting that the CAA 

does not provide the flexibility to allow 

states to choose the appropriate baseline 

year and that the EPA must set the 

baseline year as 2012. While the CAA 

does identify a specific year to use as 

the baseline for purposes of the 1-hour 

NAAQS that was in place when the 

CAA Amendments of 1990 were 

enacted, we believe use of that year 

(1990) as the baseline would produce 

absurd results if used for a revised 

NAAQS that is being implemented more 

than 20 years later. Thus, the EPA has 

discretion in determining how to 

interpret this provision of the statute for 

purposes of implementing the 2008 

ozone NAAQS. Nothing in the statute 

explicitly or implicitly suggests that all 

areas must use the same baseline year. 

The purpose of the RFP requirement is 

to ensure areas achieve percentage 

reductions in emissions that will help 

an area attain the NAAQS and to not 

delay emission reductions until close to 

the attainment date. Thus, we believe a 

baseline year that is reasonably close to 

the designation date and within the 

implementation timeframe of the 

revised NAAQS will ensure that the 

goal of the RFP provisions is met. We 

note also, that regardless of the baseline 

year selected, the final regulations 

provide that areas must continue to 

achieve annual percentage reductions 

up to the attainment year. This will 

further ensure that the purpose of the 

RFP provisions is fulfilled. We do not 

believe it is reasonable to select as a 

baseline year for RFP purposes a year 

that predates both the revisions to the 

NAAQS in 2008 and the nonattainment 

designations in 2012. 

Comment: One commenter noted that 

the EPA’s proposal would require areas 

selecting a pre-2011 baseline, to achieve 

3 percent emission reduction each year 

after the initial 6-year period has 

concluded up to the beginning of the 

attainment year. The commenter urged 

the EPA to apply the same requirement 

to Moderate areas selecting 2011 as a 

baseline year and require an additional 

3 percent emissions reduction for the 

final year before the attainment 

deadline. Comments varied on our 

proposal for areas to achieve 3 percent 

emission reductions when selecting a 


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pre-2011 baseline year. Commenters 

generally supported the alternate 

baseline year proposal, however, 

opposing commenters stated the 

proposed 3 percent reduction 

requirement seemed to penalize states 

selecting a pre-2011 baseline year. 

Response: The first commenter 

correctly identifies that the EPA’s 

selection of the 2011 baseline year 

creates a gap period of up to 12 months 

between the end of the 6 year ROP 

period and the latest attainment date for 

Moderate areas. The final rule specifies 

that RFP for this 1-year gap period is 

whatever additional emissions 

reductions are needed to achieve the 

goal of attainment. We believe that 

requiring Moderate areas using 2011 as 

a base year to obtain an additional 3 

percent per year during the 2018 

attainment year where doing so is not 

necessary to attainment would be more 

than Congress intended to require 

through the RFP requirements under 

Part D of Subchapter 1 of the CAA 

Amendments of 1990. However, because 

a pre-2011 baseline would be 

voluntarily selected by a state and 

would create a larger gap period before 

the attainment date than a 2011 baseline 

(as much as 2 to 4 years), we believe the 

language ‘‘whatever additional 

emissions reductions are needed for 

attainment’’ is not specific enough to 

ensure annual incremental progress 

through the latest attainment date. 

Therefore, we are finalizing as proposed 

an additional 3 percent per year as a 

reasonable RFP reduction requirement 

for a state that chooses to take advantage 

of the regulatory flexibility this 

regulation offers by selecting a pre-2011 

baseline. CAA section 171(1) defines 

reasonable further progress under 

Subpart D to include such annual 

reductions as ‘‘may reasonable be 

required by the Administrator for the 

purpose of ensuring attainment of the 

applicable national ambient air quality 

standard by the applicable date.’’ 

Consistent with that, if a state chooses 

to use an earlier baseline year, its total 

RFP emission reduction obligation 

should be to ensure that additional 

reductions averaging 3 percent per year 

for each year beyond the first 6 years 

until the year before the attainment year 

are provided for in the RFP plan. 

However, the EPA continues to believe 

the 2011 NEI reporting year is the 

preferred baseline year for RFP planning 

purposes. 

Comment: Comments were mixed in 

relation to the proposal that states 

associated with multi-state 

nonattainment areas must consult and 

agree on the same alternate year to use 

as the baseline year for RFP. 

Commenters generally agreed with our 

proposal, however, several commenters 

indicated that RFP demonstrations are 

state specific and do not necessarily rely 

on a regional inventory. 

Response: The EPA believes that the 

CAA requires that RFP be demonstrated 

for a nonattainment area as a whole. 

Thus, in order to effectively analyze 

RFP reductions and ensure that the 

entire nonattainment area achieves the 

RFP requirements, it is critical that the 

same baseline be used for all portions of 

the area. We note that CAA section 

182(j), requires that states in a multistate nonattainment area take all 

reasonable steps to coordinate their 

plan. 

3. Can emission reductions from sources 

located outside the nonattainment area 

boundary apply toward ROP and RFP? 

a. Summary of Proposal 

The EPA proposed that for the 2008 

ozone NAAQS states may not take credit 

for VOC or NOX reductions occurring 

outside the nonattainment area for 

purposes of meeting the 15 percent ROP 

requirement and 3 percent RFP 

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

182(b)(1) and (c)(2)(B). In the preamble 

to the proposal, the EPA noted that it 

would be sound policy to allow areas to 

use reductions coming from outside the 

area to meet ROP/RFP requirements, but 

concluded that in light of the reasoning 

used in Natural Resources Defense 

Council (NRDC) v. EPA, 571 F.3d 1245 

(D.C. 2009), and the language of the 

CAA, there is no legal basis for states to 

credit emissions reductions from 

sources outside the nonattainment area 

for satisfying ROP/RFP requirements. In 

the proposed rule, we also stated that if 

the EPA received comment providing a 

clear legal justification for allowing 

areas to take credit in their RFP plan for 

reductions outside the nonattainment 

area, we would consider adopting that 

approach in the final rule. 

b. Final Action and Rationale 

The EPA is finalizing the 

interpretation that states may not take 

credit for VOC or NOX reductions 

occurring from sources outside the 

nonattainment area for purposes of 

meeting the 15 percent ROP and 3 

percent RFP requirements of CAA 

sections 172(c)(2), 182(b)(1) and 

(c)(2)(B). This approach means that ROP 

credit for meeting the 15 percent VOC 

requirement for Moderate and above 

ozone nonattainment areas in CAA 

section 182(b)(1), and the additional 3 

percent per year RFP requirement for 

Serious and above ozone nonattainment 

areas in CAA section 182(c)(2)(B), or for 

meeting the RFP requirement of CAA 

section 172(c)(2) for Moderate areas that 

met the 15 percent requirement for a 

previous NAAQS, can come only from 

emission reductions from sources 

located within the nonattainment area. 

The ROP/RFP requirements in CAA 

sections 182(b)(1)(A)(i) and 182(c)(2)(B) 

require that nonattainment SIPs provide 

for emission reductions from ‘‘baseline 

emissions.’’ CAA section 182(b)(1)(B) 

defines baseline emissions as ‘‘the total 

amount of actual VOC or NOX emissions 

from all anthropogenic sources in the 

area.’’ (emphasis added) The ROP/RFP 

language in 182(b)(1)(B) and 182(c)(2)(B) 

is almost identical to the language in the 

CAA’s RACT provision that the D.C. 

Circuit Court has interpreted as 

requiring emission reductions to come 

from within the nonattainment area and 

not ‘‘from sources outside the 

nonattainment area.’’ NRDC v. EPA, 571 

F.3d 1245, 1256 (D.C. Cir. 2009). 

Accordingly, for reasons explained more 

fully in the proposal, 78 FR 34178, at 

34191 (June 6, 2013), the EPA has 

concluded that there is no legal basis 

allowing states to credit reductions 

achieved at sources outside the 

nonattainment area toward meeting 

ROP/RFP requirements. 

c. Comments and Responses 

Comment: Several commenters 

suggested that the EPA allow credit 

toward meeting ROP/RFP for emission 

reductions from an area larger than the 

nonattainment area but related to or 

affecting it, such as the same airshed or 

an air quality control region or a 

‘‘transport couple area.’’ These 

comments emphasized the close 

connection between air quality within 

the nonattainment area and emissions 

from outside that area and argued that 

controlling emissions from an area 

outside a nonattainment area may be a 

very effective way to improve air quality 

within the nonattainment area. They 

argued that statutory references to ‘‘the 

area’’ do not necessarily refer only to the 

‘‘nonattainment area.’’ A commenter 

suggested that CAA section 107(c) 

provides the EPA the authority to allow 

outside-the-area reduction credits for 

satisfying RFP requirements. Other 

commenters note that CAA section 

182(b)(1)(B), viewed in isolation, does 

not directly refer to sources in the 

nonattainment area, but rather to 

‘‘sources in the area,’’ and that NRDC v. 

EPA addresses sources in the 

nonattainment area only for purposes of 

meeting RACT nonattainment SIP 

requirements under CAA section 

172(c)(1). Other commenters took the 

opposite view, arguing that the EPA had 

no legal basis for allowing states to use 


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26See 78 FR 34178, at 34190 (June 6, 2013). 27 Ibid. 

out of area reductions to meet RFP 

requirements. 

Response: As explained more fully in 

the Response to Comments document in 

the docket, to some extent, the 

comments in support of allowing out-ofarea credits were either policy 

arguments or suggestions about how 

best to implement a program allowing 

such credits. The EPA agrees that some 

of these are good policy arguments, but 

does not see a legal basis to allow this 

approach. While some commenters did 

provide legal arguments, upon 

examination the EPA does not believe 

they overcome the restrictions in the 

combined language of CAA section 

182(b)(1)(B) with CAA sections 

182(b)(1)(A)(i) and 182(c)(2)(B), and the 

reasoning in NRDC v. EPA concerning 

reductions within the nonattainment 

area. (See the Response to Comments 

document, located in the docket, for 

detailed responses to all of the 

arguments presented and explaining 

why the EPA believes the statutory 

provisions taken as a whole clearly 

support the interpretation that these 

RFP reductions must occur within the 

nonattainment area). 

4. Restrictions on Emission Reduction 

Measures That Can Fulfill the ROP/RFP 

Requirement 

a. Summary of Proposal 

The EPA proposed that, except as 

specifically provided in CAA section 

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

emissions reductions that occur after the 

baseline emissions inventory year are 

creditable for purposes of the ROP/RFP 

requirements, provided that the 

reductions meet the standard 

requirements for creditability. That is, to 

receive SIP credit, the reductions must 

be enforceable, quantifiable, permanent 

and surplus. 

b. Final Action and Rationale 

We are finalizing, as proposed, that all 

SIP-approved or federally promulgated 

emissions reductions that occur after the 

baseline emissions inventory year from 

sources located in the nonattainment 

area are creditable for purposes of the 

ROP/RFP requirements, provided the 

reductions meet the standard 

requirements for creditability and are 

not prohibited by section 182(b)(1)(D) of 

the CAA. 

For the reasons provided in the 

preamble to the proposed rule, 78 FR 

34178, at 34187 (June 6, 2013), the EPA 

believes it is appropriate to credit 

emissions reductions that actually occur 

during the relevant ROP/RFP period and 

after the baseline year. We promulgated 

a regulatory provision adopting this 

same interpretation for purposes of 

implementing the 1997 ozone NAAQS. 

40 CFR 51.910(a)(2). No significant 

comments were received. 

5. How should states account for noncreditable reductions when determining 

compliance with the ROP/RFP emission 

reduction requirements? 

a. Summary of Proposal 

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

four categories of control measures that 

are not creditable toward the 15 percent 

ROP requirement under CAA section 

182(b)(1)(A): (i) Measures related to 

motor vehicle exhaust or evaporative 

emissions promulgated by January 1, 

1990; (ii) regulations concerning Reid 

vapor pressure (RVP) promulgated by 

November 15, 1990; (iii) measures to 

correct previous RACT requirements; 

and (iv) measures required to correct 

I/M programs. As noted in the proposal, 

with the exception of the first category, 

reductions from these measures were 

achieved many years ago, so the 

question of creditability is moot for RFP 

credits for the 2008 ozone NAAQS. 

Citing an assessment that at this point 

in history the ongoing emissions 

reductions from pre-1990 control 

measures in the first category are de 

minimis the EPA proposed that states 

would no longer need to perform the 

complicated calculations for these 

control measures to ensure that they are 

not credited toward the 15 percent ROP 

requirements under CAA section 

182(b)(1)(D). (See 78 FR 34178 at 34189) 

b. Final Action and Rationale 

Consistent with the proposal, the EPA 

is finalizing the approach that 

eliminates any obligation for states to 

continue to perform emissions 

reduction calculations for the pre-1990 

control measures listed under CAA 

section 182(b)(1)(D)(i). 

The CAA section 182(b)(1)(D)(i) 

provides that motor vehicle emission 

reductions resulting from measures 

promulgated ‘‘by January 1, 1990,’’ 

(which can only come from pre-1990 

vehicles), are ‘‘not creditable.’’ The EPA 

is aware that making the calculations 

necessary to ensure a state does not take 

credit for these measures would be ‘‘a 

very resource intensive process 

requiring multiple modeling runs and 

extensive staff time,’’ as we stated in the 

proposal for this rulemaking. 26

Furthermore, the EPA recognizes that 

emissions from pre-1990 vehicles are a 

very small and diminishing part of the 

total emissions inventory for any RFPrelated year associated with 

implementation of the 2008 ozone 

NAAQS (which under the final 

implementation rules could start, at 

earliest, in 2008). This final action will 

relieve states of the burden of doing the 

calculations ‘‘based on the de minimis 

nature’’ of the potential credits.27

c. Comments and Responses 

Comment: A majority of commenters 

supported removing the calculations 

requirement. However, one commenter 

argued that the EPA cannot remove the 

calculation requirement because the 

provision in 182(b)(1)(D) that certain 

emission reductions are ‘‘not creditable’’ 

toward RFP reductions ‘‘is the sort of 

extraordinarily rigid statutory provision 

that does not allow for de minimis 

exceptions.’’ The commenter further 

asserts that the EPA has not 

demonstrated that the non-creditable 

reductions will always be de minimis 

because the EPA failed to review the 

impact of this exception on any specific 

nonattainment areas, relying instead on 

national modeling from which the EPA 

has claimed that local results may vary. 

Response: The EPA thanks the 

commenters that support this approach. 

The EPA disagrees, however, with the 

commenter who argued that the EPA 

cannot relieve states of this burden 

based on the de minimis impact of the 

measures. 

CAA section 182(b)(1)(C) established 

a general rule allowing credit toward 

RFP requirements for emission 

reductions under a SIP that would occur 

within the 6 years following November 

1990. CAA section 182(b)(1)(D) 

established four narrow exceptions to 

that general rule, three of which are 

currently entirely moot because they 

have already occurred and are not 

ongoing reductions for future RFP 

purposes. The comment concerns the 

motor vehicle emission reduction 

measures imposed on pre-1990 motor 

vehicles. The EPA has concluded that 

these reductions are ever diminishing as 

each year the motor vehicle fleet 

continues to replace older vehicles with 

new vehicles. The EPA estimates that by 

2017 the control measures that apply to 

the pre-1990 portion of the nationwide 

vehicle fleet would account for only 

between 0.2 and 0.6 percent of total onroad VOC or NOX emissions, or between 

about 0.1 and 0.3 percent of total VOC 

or NOX emissions inventories. Because 

calculating those emissions reductions 

would be very resource intensive, the 

EPA proposed not to require states to 

calculate them based on the de minimis 

nature of the reductions. Courts 

recognize that agencies generally have 


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28See Alabama Power Co. v. Costle, 636 F.2d 323, 

360 (D.C. Cir. 1979). 

29Hereafter in the discussion of RFP requirements 

within this section, when we use the term ‘‘2008 

nonattainment area’’ we mean ‘‘nonattainment area 

classified as Moderate or higher under the 2008 

ozone NAAQS.’’ 

discretion to overlook circumstances 

that in context can fairly be considered 

de minimis such as requirements whose 

literal application would mandate 

pointless expenditures ‘‘when the 

burdens of regulation yield a gain of 

trivial or no value.’’ 28 The EPA does not 

believe that the creditability exemption 

in 182(b)(1)(D)(i) is so ‘‘extraordinarily 

rigid’’ as to preclude a de minimis 

exception. 

The comment also claims that the 

EPA has not demonstrated that these 

circumstances are de minimis. Without 

disputing the EPA’s conclusions as to 

either the share of the emissions 

inventory or the resource burdens of the 

calculations, the comment nevertheless 

claims that ‘‘local results may vary,’’ 

and the EPA must assess reductions in 

‘‘specific nonattainment areas.’’ The 

comment does not identify any area 

where, or any evidence that, the impact 

of the credits anywhere would be more 

than de minimis. Moreover, the EPA 

implicitly accounted for local variations 

when it concluded in the proposal that 

reductions associated with pre-1990 

vehicles ‘‘everywhere’’ will be ‘‘a very 

small fraction of the total on-road VOC 

emissions inventory by 2017.’’ 

6. What are the RFP plan requirements 

for 2008 ozone nonattainment areas for 

which no portion of the area has 

previously been required to meet the 15 

percent ROP requirement for VOC in 

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

a. Summary of Proposal 

We proposed that newly designated 

2008 nonattainment areas,29 namely 

2008 ozone nonattainment areas for 

which a state has never adopted and 

implemented a SIP providing for the 

CAA section 182(b) 15 percent VOC 

emission reductions, will be subject to 

the 15 percent ROP requirement in CAA 

section 182(b)(1). 

We also proposed that for any 2008 

ozone nonattainment area, a state could 

meet the 15 percent ROP requirement in 

whole or in part with NOX reductions in 

lieu of VOC reductions if that state 

could demonstrate that the area had in 

fact achieved a 15 percent reduction in 

VOC emissions within 6 years from a 

1990 baseline. 

We also proposed that if we did not 

finalize the proposal to allow any area 

to substitute NOX reductions for VOC 

reductions where a state can 

demonstrate that the area achieved a 15 

percent reduction in VOC emissions 

from a 1990 baseline, then we would 

allow such substitution only for new 

2008 nonattainment areas located in the 

OTR that would be subject to the 15 

percent ROP requirement for the first 

time. 

b. Final Action and Rationale 

We are finalizing that the ROP plan 

for a 2008 nonattainment area that has 

not previously adopted and 

implemented a SIP providing for a 15 

percent reduction in VOC emissions 

consistent with CAA section 182(b)(1) 

must provide for a 15 percent reduction 

in VOC emissions from the area’s 

baseline emissions in the 6 years 

following the baseline emissions 

inventory year. This is consistent with 

the CAA section 182(b)(1) requirement 

and the prior approach for the 1997 

ozone NAAQS. 40 CFR 51.910(a)(1)(i). 

The EPA is not finalizing either of the 

additional approaches that would have 

allowed areas to meet the 15 percent 

ROP requirement in whole or in part 

with NOX reductions in lieu of VOC 

reductions. After reviewing all 

comments submitted the EPA does not 

believe that it has the authority under 

the CAA to allow NOX substitution for 

VOC emissions reductions for the 15 

percent ROP requirement in any area 

that has not previously met the 15 

percent reduction requirement, 

including an area in the OTR. 

c. Comments and Responses 

Comment: Several commenters raised 

objections to the EPA’s proposal that 

would allow only areas in the OTR to 

meet the RFP requirements by allowing 

NOX substitutions. The commenters 

argued that it would be better to allow 

all areas to take advantage of this 

alternative. 

Response: Although attainment areas 

in the OTR were not required to adopt 

15 percent RFP plans under section 184 

of the CAA, we discussed certain VOC 

reduction measures in the proposal. We 

expected that the VOC reductions from 

those measures would account for a 

significant portion of the 15 percent 

requirement for areas designated 

nonattainment. We reasoned that since 

attainment areas in the OTR are 

required to adopt and implement many 

of the same measures applied in 

nonattainment areas such areas should 

be treated as having met the 15 percent 

VOC reduction requirement if they can 

demonstrate that they did, in fact, 

achieve a 15 percent reduction in VOC 

emissions during the relevant time 

period, even though they of course 

would not have submitted a 15 percent 

plan as they were not subject to the 15 

percent requirement at that time. The 

EPA has reconsidered its proposal and 

now believes it does not have authority 

under the CAA to allow NOX

substitution for VOC emissions 

reductions for the 15 percent ROP in 

any area, including an area located in 

the OTR, unless the area has previously 

submitted, adopted and implemented a 

SIP providing for a 15 percent VOC 

reduction in emissions from the area’s 

baseline emissions. These emissions 

reductions would have to have been 

produced in the 6 years following the 

baseline emissions inventory year 

consistent with the requirement in CAA 

section 182(b)(1) and the prior approach 

for the 1997 ozone NAAQS. 40 CFR 

51.910(a)(1)(i). 

Comment: One commenter supported 

the proposed alternative that would 

allow areas to substitute NOX for VOC, 

in part or in whole, in the 15 percent 

ROP plans because the scientific 

understanding of the relative roles of 

VOC and NOX control has improved. 

However, numerous commenters stated 

their understanding that new 

nonattainment areas become subject to 

CAA section 182(b)(1) and are therefore 

subject to the 15 percent VOC-only ROP 

emission reduction requirement which 

does not provide for any NOX

substitution. 

Response: The EPA agrees that the 

current understanding of the role of 

NOX reductions in reducing ozone 

would suggest that, in some areas, it 

would be relatively more efficient to 

focus attainment planning efforts on 

achieving reductions in NOX rather than 

VOC emissions. However, for new 

nonattainment areas, CAA section 

182(b)(1) expressly requires the 15 

percent ROP plans to reduce emissions 

of VOC. It does not provide discretion 

to meet these requirements by reducing 

emissions of other pollutants. Where 

Congress intended to allow such a 

substitution, it specifically provided so, 

such as in CAA section 182(c)(2)(C) 

which allows NOX to be substituted for 

VOC in the 3 percent annual RFP plans 

for Serious and above areas. Absent a 

showing of absurd results which the 

record for this action does not support, 

the EPA does not believe it has 

discretion to allow NOX substitution in 

this case. 


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30The following nonattainment areas were 

nonattainment for both the 1-hour and the 1997 

ozone NAAQS, and remained the same size under 

the 2008 ozone NAAQS compared to the 1997 

ozone NAAQS: Baltimore, MD; Los Angeles-San 

Bernardino Counties (West Mojave Desert), CA; Los 

Angeles-South Coast Air Basin, CA; Riverside 

County (Coachella Valley), CA; Sacramento Metro, 

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

CA. 

31See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 

2009). 

7. What are the ROP/RFP plan 

requirements for 2008 ozone NAAQS 

nonattainment areas that consist 

entirely of one or more areas that 

fulfilled the 15 percent ROP plan 

requirement for VOC for a former ozone 

NAAQS? 

a. Summary of Proposal 

We proposed that any 2008 

nonattainment area which consists 

entirely of a nonattainment area, or 

portions of nonattainment areas, for 

which we previously approved an RFP 

plan as meeting the 15 percent ROP 

plan requirement for VOC in section 

182(b)(1) of the CAA would not need to 

submit such an ROP SIP. Such a 2008 

nonattainment area could consist of one 

or more 1-hour nonattainment areas, 

one or more nonattainment areas under 

the 1997 ozone NAAQS, or a 

combination of nonattainment areas for 

either the 1-hour or 1997 ozone 

NAAQS.30 Consistent with our 

approach for the 1997 ozone NAAQS, 

we proposed to interpret the CAA’s RFP 

provisions to mean that a 2008 

nonattainment area that had already 

achieved a 15 percent reduction in VOC 

emissions per an approved 182(b)(1) 

ROP SIP, would instead be subject to 

the RFP requirement of CAA section 

172(c)(2) (which the EPA has 

interpreted to represent 15 percent 

emissions reductions over the first 6- 

year period) if classified as Moderate, or 

the 3 percent per year requirement of 

CAA section 182(c)(2)(B), if classified as 

Serious or above, and under those 

requirements could substitute NOX

emission reductions for VOC emission 

reductions. 

b. Final Action and Rationale 

We are finalizing as proposed, such 

that 2008 nonattainment areas that have 

previously met the CAA requirement for 

a 15 percent ROP VOC reduction plan 

for the entire area are not required to 

fulfill that requirement again. This is 

consistent with the approach we used 

for the 1997 NAAQS, and the D.C. 

Circuit Court’s decision in NRDC v. 

EPA.31 In that case, concerning the 

EPA’s same interpretation for 

implementing the 1997 ozone NAAQS, 

the Court held that CAA section 

182(b)(1) is ambiguous under these 

circumstances and that it was 

reasonable for the EPA to interpret it not 

to require areas that had already met the 

15 percent VOC emission reduction 

requirement to obtain another 15 

percent reduction in VOC emissions. 

Instead, for purposes of the 1997 ozone 

NAAQS and for purposes of the 2008 

ozone NAAQS, the EPA interprets the 

RFP requirement of CAA section 

172(c)(2) to require an area classified as 

Moderate to achieve an average 3 

percent annual reduction in VOC and/ 

or NOX emissions for the first 6 years 

following the baseline year, and the RFP 

requirement in CAA section 182(c)(2)(B) 

to require the same thing for areas 

classified as Serious or higher. Under 

these circumstances, RFP requirements 

may be satisfied with reductions in 

either NOX or VOC emissions. As 

explained in the proposal, we believe 

there are two policy reasons for 

interpreting this ambiguous provision in 

this manner. First, both our 

understanding of the effects of 

reductions of VOC and NOX on ambient 

ozone levels and the technical tools to 

help predict what combinations of 

reductions of ozone precursors will be 

most effective for ozone reduction in 

any area have improved. Since the 

purpose of the RFP provisions in CAA 

sections 172 and 182 is to foster the 

achievement of reasonable further 

progress toward attainment, we believe 

that it makes the most sense to allow 

states to credit toward the RFP 

requirement those reductions that an 

area most needs to reach attainment. 

Second, as explained more fully in the 

proposal, the mix of emissions across 

the country and in specific areas is very 

different than it was in 1990 because of 

various measures and developments 

that have substantially reduced the 

anthropogenic VOC emissions inventory 

such that additional area-specific VOC 

reductions will be increasingly difficult 

to achieve. 

c. Comments and Responses 

Comment: Numerous commenters 

agreed with the EPA’s proposal that 

2008 nonattainment areas that have 

already met the CAA requirement for a 

15 percent VOC reduction plan are not 

required to fulfill that VOC requirement 

again. Two commenters generally 

supported the EPA’s approach but 

argued for reducing the showing a state 

must make or giving states more latitude 

in determining how to treat new 

nonattainment areas. However, one 

commenter stated that although the 

Court in NRDC v. EPA, 571 F.3d 1245 

(D.C. Cir. 2009), held that the EPA could 

permissibly read the statute as requiring 

SIPs to provide for the 15 percent VOC 

reduction only once, the Court did not 

address the question of whether mere 

EPA approval of a prior 15 percent ROP 

SIP would satisfy the 15 percent 

requirement for a subsequent NAAQS, 

or whether the area would have to show 

it actually achieved the 15 percent VOC 

reduction within the 6 years required by 

the statute. The commenter stated that 

to be creditable, the 15 percent 

reduction must have actually occurred 

within 6 years of November 15, 1990, 

due to implementation of measures 

required under the SIP, rules 

promulgated by the EPA, or title V 

permits. Accordingly, the commenter 

believed the EPA cannot treat 

previously approved ROP plans as 

satisfying the 15 percent ROP 

requirement unless the state also shows 

that the required VOC reductions were 

actually achieved as required by CAA 

section 182(b)(1)(C). 

Response: The EPA thanks the 

commenters for their supporting 

comments. The EPA disagrees, however, 

that states must demonstrate that they 

achieved the 15 percent reduction 

within 6 years of the baseline for a 

previous NAAQS. We have consistently 

maintained that if an area has already 

met the requirement to submit for 

approval and to implement a plan for 

reducing VOC emissions by 15 percent 

within 6 years of the baseline year for 

either the 1-hour or the 1997 ozone 

NAAQS, then the area should not be 

required to meet that requirement a 

second time for the 2008 ozone NAAQS 

but instead will be subject to the other 

applicable RFP provisions of the CAA. 

8. What are the RFP plan requirements 

for 2008 ozone NAAQS nonattainment 

areas that include portions consisting of 

all or a piece of one or more 

nonattainment areas for a previous 

NAAQS that fulfilled the 15 percent 

ROP plan requirement for VOC for that 

previous NAAQS and portions that have 

never been subject to or have never 

submitted the 15 percent ROP plan for 

VOC for a previous NAAQS? 

a. Summary of Proposal 

For those areas that include all or part 

of a nonattainment area under a former 

ozone NAAQS that fulfilled the 15 

percent ROP plan requirement for VOC 

and all or part of an area that was not 

subject to or did not meet the 15 percent 

requirement for a former ozone NAAQS, 

we proposed that a state may choose 

between two approaches for addressing 

the 15 percent ROP requirement. First, 

the state could choose to treat the entire 

area as an area that never met the 15 

percent requirement and submit a new 


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15 percent plan for the entire area. 

Second, the state could choose to treat 

the 2008 nonattainment area as divided 

into two portions: The non-ROP plan 

portion and the former ROP plan 

portion. For the non-ROP plan portion 

of the 2008 nonattainment area, the plan 

would establish a separate 15 percent 

ROP VOC reduction requirement under 

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

However, VOC emissions reductions to 

meet the 15 percent requirement could 

come from across the entire 2008 

nonattainment area, provided that the 

former ROP plan portion of the area also 

has a VOC reduction target as part of its 

ROP plan for the 2008 ozone NAAQS. 

If the 2008 ozone NAAQS ROP plan for 

the former ROP plan nonattainment area 

relies solely on NOX reductions, then 

the portion of the nonattainment area 

never before subject to nonattainment 

requirements is still responsible for the 

full 15 percent VOC reductions. We also 

stated in the proposal that for the former 

RFP plan portion of the 2008 

nonattainment area, the RFP 

requirements in CAA section 172(c)(2) 

will apply to Moderate nonattainment 

areas and the RFP requirements of CAA 

section 182(c)(2) apply to areas 

classified as Serious and above. These 

areas may both substitute NOX for the 

VOC reductions in the manner specified 

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

b. Final Action and Rationale 

We are finalizing the two proposed 

approaches that a state may choose 

between for addressing the 15 percent 

ROP requirement where a portion of the 

area submitted and implemented a 15 

percent ROP plan for a previous ozone 

NAAQS and a portion did not. First, the 

state may choose to treat the entire area 

as an area that never met the 15 percent 

ROP VOC reduction requirement in 

CAA section 182(b)(1). Second, the state 

may choose to treat the 2008 

nonattainment area as divided into two 

portions: The non-ROP plan portion and 

the former ROP plan portion. For the 

non-ROP plan portion of the 2008 

nonattainment area, the plan would 

establish a separate 15 percent VOC 

reduction requirement under CAA 

section 182(b)(1) of subpart 2. However, 

divergent from our proposal that would 

have allowed creditable VOC reductions 

to come from across the entire 2008 

nonattainment area, the final rule 

requires that VOC emission reductions 

to satisfy the CAA section 182(b)(1) 15 

percent requirement must come entirely 

from within the non-ROP plan area. 

For the former ROP plan portion of 

the 2008 nonattainment area, the RFP 

requirements in CAA section 172(c)(2) 

apply if the 2008 nonattainment area is 

classified as Moderate. CAA section 

182(c)(2)(B) RFP requirements apply if 

the 2008 ozone NAAQS nonattainment 

area is classified as Serious or higher. 

The EPA believes that nonattainment 

areas with a previously approved 15 

percent plan developed to satisfy 

previous ozone NAAQS standards are 

not required to adopt a second 15 

percent VOC ROP plan under CAA 

section 182(b)(1) for purposes of the 

2008 ozone NAAQS. The EPA believes 

that if a portion of the nonattainment 

area was not subject to an approved 15 

percent plan for previous ozone 

standards, then CAA section 182(b)(1) 

applies to that portion of the 2008 

nonattainment area. We are offering two 

options, as described previously, and 

states can select the appropriate option 

to meet the RFP requirements. However, 

due to significant comments received 

regarding the source of reductions to 

satisfy the 15 percent requirement for 

the non-ROP portion of the area, we are 

requiring that VOC emissions 

reductions to meet the 15 percent 

requirement must come from within the 

boundaries of the non-ROP plan portion 

rather than from across the entire 

nonattainment area as we proposed. 

Additionally, the ROP plan for the 2008 

ozone NAAQS for the new non-ROP 

plan portion must provide for 15 

percent VOC reductions. 

c. Comments and Responses 

Comment: One commenter opposed 

both of the EPA’s proposed options, 

believing that they are not permissible 

under the CAA because a prior ROP 

plan for just part of a 2008 

nonattainment area cannot be deemed to 

satisfy the ROP plan requirement—that 

‘‘area’’ is different from the area 

encompassed by the prior ROP plan. 

The commenter argued that the prior 

ROP plan could not have provided the 

15 percent baseline emissions reduction 

in an ‘‘area’’ that was not even defined 

at the time of the prior ROP plan. The 

commenter also argued that the statute 

does not allow the EPA to divide up 

‘‘the area’’ into multiple sub-areas with 

separate ROP plans or requirements. 

The commenter also argued that it 

would be illegal and arbitrary to allow 

a sub-area to claim credit for emission 

reductions from outside the sub-area 

without having to also add emissions 

from outside the sub-area to its baseline. 

The commenter stated that unless the 

EPA is proposing to require that the 

non-former ROP sub-area assure a net 15 

percent cut from new baseline 

emissions for the entire 2008 

nonattainment area, it cannot allow the 

sub-area to claim credit for reductions 

outside the sub-area. The commenter 

believed that for sub-areas within the 

nonattainment area, each with its own 

15 percent reduction obligation, that the 

required VOC emission reductions must 

come from inside each sub-area 

respectively. 

Response: The EPA recognizes that a 

prior ROP plan would not necessarily 

encompass the newly designated 

portion of a 2008 nonattainment area 

and that the newly designated portion 

may not have previously been covered 

by an approved 15 percent ROP VOC 

plan. In light of this comment, the EPA 

has reconsidered the proposal and now 

believes that if a portion or portions of 

a nonattainment area for the 2008 ozone 

NAAQS was/were not subject to an 

approved 15 percent ROP VOC-only 

plan for either the 1-hour or the 1997 

ozone NAAQS, then CAA section 

182(b)(1) requirements apply to that 

new portion of the 2008 NAAQS 

nonattainment area. 

The EPA disagrees with the 

commenter’s assertion that the statute 

does not allow areas to be divided into 

former ROP plan areas and new nonROP areas. Consistent with the 

reasoning in the Phase 2 Rule, upheld 

in NRDC v. EPA, we believe that an 

area, or a sub-area that has never met 

the 15 percent requirement must do so, 

but that an area (or sub-area) that has 

previously met the requirement need 

not be subjected to it for a second time. 

Based on similar reasoning, we have 

reconsidered our proposal that would 

have allowed emission reductions from 

across the entire nonattainment area to 

be creditable toward achieving the 15 

percent ROP VOC reductions for the 

non-ROP portion(s) of the area. We now 

believe it is important to recognize that 

VOC emissions reductions to meet the 

15 percent ROP VOC reduction 

requirement must come from within the 

boundaries of the non-ROP plan 

portion. Accordingly, the ROP plan for 

the 2008 ozone NAAQS for the new 

non-ROP plan portion must demonstrate 

achievement of 15 percent VOC 

reductions from that sub-area’s baseline. 

9. Alternative Approaches to Achieving 

RFP 

a. Summary of Proposal 

We requested comment on two 

alternative approaches to achieve RFP: 

(1) An air quality-based approach that 

would measure RFP in terms of ambient 

air quality improvements tied to an 

area’s percent emission reduction; and, 

(2) an approach that would adjust (or 

‘‘weight’’) the amount of RFP credit 

given for reductions of individual 

species (or similar groups) of VOC based 


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32The EPA has defined RACT as the lowest 

emission limitation that a particular source is 

capable of meeting by the application of control 

technology that is reasonably available considering 

technological and economic feasibility (December 9, 

1976 memorandum from Roger Strelow, Assistant 

Administrator for Air and Waste Management, to 

Regional Administrators, ‘‘Guidance for 

Determining Acceptability of SIP Regulations in 

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

September 17, 1979). Availability and feasibility 

may differ across sources in the same category (June 

9, 1985, memorandum from John Calcagni, Chief, 

Economic Analysis Branch, to G.T. Helms, ‘‘Criteria 

for Determining RACT in Region IV.’’) 

33The EPA’s CTGs and ACTs are located at 

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

ctgs.html. 

on their ozone forming potential (i.e., 

photochemical reactivity). 

For each of these alternative 

approaches, the EPA sought comment 

on the usefulness and practicality of the 

approach, and specifically on whether 

there is an adequate legal basis under 

the CAA to approve SIPs that would 

employ it. 

b. Final Action and Rationale 

The EPA is not taking final action on 

these alternative approaches. The EPA 

may further consider such alternatives 

in the future. The EPA believes that 

more time is needed to better 

understand the scientific and legal 

issues involved in allowing and 

implementing these approaches. In the 

meantime, use of these approaches may 

be considered on a case-by-case basis. If 

states wish to pursue either of these 

approaches, then we encourage them to 

work closely on developing such an 

approach with their respective EPA 

Regional Offices. If a state submits an 

alternative approach to achieving RFP, 

then the EPA will address the submittal 

in a separate notice and comment 

rulemaking action. 

c. Comments and Responses 

Comment: Some commenters, while 

supporting the approaches, believed 

that the EPA must provide more 

information on how both the VOCweighted approach and the air qualitybased approach would be implemented, 

a stronger legal justification for allowing 

these alternatives, and more scientific 

support for practical implementation. 

There were commenters that supported 

the air quality-based approach. One 

commenter stated that the air quality 

alternative would better reflect the air 

quality progress being made in areas 

adjacent to an upwind nonattainment 

area, whereby the downwind areas must 

rely on large upwind emission 

reductions to attain the ozone standard. 

The commenter also argued that states 

should have the opportunity to 

demonstrate that such an approach is 

equivalent to or better than an emission 

reduction target and believes it would 

qualify as an equivalent planning 

procedure under CAA section 172(c)(8) 

and should be included in the final rule. 

The commenter indicated a similar 

approach was included in the 

implementation rules that govern SIP 

development for the PM2.5 NAAQS (40 

CFR 51.1009(g) and (h)). Other 

commenters pointed out that the VOCweighted reactivity method has already 

been adopted in other national, state 

and local ozone regulations, such as the 

current national aerosol coatings rule 

and a highly-reactive VOC emissions 

cap-and-trade program and these may 

serve as legal and administrative 

precedents for other reactivity-based 

standards. Commenters also cautioned 

the EPA that such approaches should 

not be mandated, and must be left to the 

state’s discretion. 

There were commenters that did not 

support these alternative approaches, 

stating that the CAA clearly requires a 

percentage reduction from baseline 

emissions for purposes of RFP. 

Response: The EPA appreciates the 

comments it has received on these 

alternative approaches. As noted above, 

the EPA believes more time is needed to 

better understand the scientific and 

legal issues involved before finalizing 

any alternative approaches to achieving 

RFP. We encourage states interested in 

an alternative approach to work closely 

with their respective EPA Regional 

Offices, who may consider these 

approaches on a case-by-case basis. Any 

such actions would be addressed 

through separate notice and comment 

rulemaking including analysis of 

appropriate legal and technical 

justifications. 

D. How do RACT and RACM 

requirements apply for 2008 ozone 

NAAQS nonattainment areas? 

1. Reasonably Available Control 

Technology 

a. Summary of the Proposal 

The EPA indicated in the proposal 

that RACT SIPs must contain adopted 

RACT regulations, certifications where 

appropriate that existing provisions are 

RACT,32 and/or negative declarations 

that there are no sources in the 

nonattainment area covered by a 

specific CTG source category. The EPA 

also indicated that states must provide 

notice and opportunity for public 

comment on their RACT submission 

even where the state determines it is 

appropriate to certify that the existing 

provisions remain RACT or where the 

state submits a negative declaration. 

States must also submit appropriate 

supporting information for their RACT 

submission as described in the Phase 2 

Rule. See 70 FR 71652. 

The EPA proposed a number of items 

regarding RACT submittals. First, the 

EPA proposed that states should use 

current EPA guidance [including 

existing control techniques guidelines 

(CTGs) and alternative control 

techniques (ACTs)] and any other 

information available in making RACT 

determinations.33 The EPA recognized 

in the proposal that existing CTGs and 

ACTs for many source categories have 

not been revised in a number of years. 

However, in many cases, more recent 

technical information is available in 

other forms. The EPA proposed that as 

part of their RACT SIP submission, 

states should provide adequate 

documentation that they have 

considered control technology that is 

economically and technologically 

feasible. The analysis of economic and 

technological feasibility should be based 

on information that is current as of the 

time of development of the RACT SIP 

for the 2008 ozone NAAQS. 

Additionally, the EPA noted that states 

should consider information submitted 

as part of the public comment period 

associated with the RACT SIP. 

The EPA proposed that in some cases, 

states may conclude that sources 

already addressed by RACT 

determinations for the 1-hour and/or 

1997 ozone NAAQS may not need to 

implement additional controls to meet 

the 2008 ozone NAAQS RACT 

requirement. 

The EPA proposed to follow the 

EPA’s existing policy with respect to 

‘‘area wide average emission rates.’’ 

This policy recognizes that states may 

demonstrate as part of their NOX RACT 

SIP submittal that the weighted average 

NOX emission rate from all sources in 

the nonattainment area subject to RACT 

meets NOX RACT requirements. 

The EPA proposed that as part of their 

RACT submissions, states have the 

option of conducting a technical 

analysis for a nonattainment area 

considering the emissions controls 

required by a regional cap-and-trade 

program, and demonstrating that 

compliance by certain sources 

participating in the cap-and-trade 

program results in actual emission 

reductions in the particular 

nonattainment area that are equal to or 

greater than the emission reductions 

that would result if RACT were applied 

to an individual source or source 

category within the nonattainment area. 


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34See existing guidance in RACT Questions and 

Answers 2006 (May 18, 2006, Note from William 

Harnett to Regional Air Division Directors), 

Questions 17 and 18, regarding RACT certifications. 

The EPA provided legal reasoning for 

this approach. 

The EPA proposed to follow its 

current policy that for VOC sources 

subject to MACT standards, states 

would be allowed to streamline their 

RACT analysis by including a 

discussion of the MACT controls and 

considerations relevant to VOC RACT. 

Historically, in many cases, states have 

been able to rely on MACT standards for 

purposes of showing that a source has 

met VOC RACT. 

The EPA also noted that a state has 

discretion to require beyond-RACT 

reductions from any source, and has an 

obligation to demonstrate attainment as 

expeditiously as practicable. Thus, 

states may require VOC and NOX

reductions that are ‘‘beyond RACT’’ if 

such reductions are needed in order to 

provide for timely attainment of the 

ozone NAAQS. 

The EPA solicited comment on 

modifying existing guidance to provide 

additional flexibility in implementing 

the CAA section 182(b)(2) RACT 

requirements. In particular, the EPA 

solicited comments on whether it would 

be appropriate for states, as part of their 

RACT determinations regarding what is 

‘‘reasonable,’’ to consider the effect (or 

lack thereof) of VOC emission 

reductions on reductions in ozone 

concentrations when assessing 

economic feasibility. The EPA solicited 

comments on this approach because in 

some nonattainment areas, additional 

reductions of anthropogenic VOC 

emissions have been scientifically 

demonstrated to have a limited impact 

on reducing ozone concentrations. 

The EPA took comments on the 

following: (1) Whether state RACT 

determinations could take into 

consideration, in the evaluation of what 

is economically feasible, the potential 

air quality benefit (or lack thereof) of 

further VOC controls; (2) the specific 

circumstances and limitations to which 

an air quality benefit factor would 

apply; (3) specific examples of where 

modeling has demonstrated that 

anthropogenic VOC reductions have 

‘‘negligible effect, ’’ (commenters were 

also asked to provide a defensible 

threshold for defining ‘‘ineffective,’’ and 

define a test for concluding that the 

effect of additional VOC reductions 

would be ‘‘negligible.’’); (4) input 

regarding whether this flexibility should 

be provided on an individual source 

basis, or also on a source category basis; 

(5) that any approaches suggested by 

commenters should also address how 

public health and welfare will be 

impacted; and (6) an explanation as to 

the specific legal basis for supporting 

the suggested approach. 

Finally, the EPA proposed a specific 

deadline by which RACT measures are 

to be implemented for the 2008 ozone 

NAAQS, which is consistent with the 

timeline specified in CAA section 

182(b)(2). For the 2008 ozone NAAQS, 

we proposed that areas must implement 

RACT measures as expeditiously as 

practicable, but no later than January 1 

of the 5th year after the effective date of 

a nonattainment designation. 

Nonattainment designations for all areas 

of the country were effective July 20, 

2012. RACT measures for areas 

classified Moderate or above and all 

areas of the OTC would be required to 

be implemented by January 1, 2017. 

This would allow a comparable amount 

of time for sources to meet RACT 

requirements as originally anticipated 

under the 1990 CAA Amendments, 

consistent with the Moderate area 

attainment date of July 20, 2018. 

b. Final Action and Rationale 

The EPA is finalizing the approach 

where states should refer to the existing 

CTGs and ACTs for purposes of meeting 

their RACT requirements, as well as all 

relevant information (including recent 

technical information and information 

received during the public comment 

period) that is available at the time that 

they are developing their RACT SIPs for 

the 2008 ozone NAAQS. We believe that 

there is sufficient information available 

to states to inform their RACT 

determinations. 

The EPA is finalizing the approach 

allowing in some cases for states to 

conclude that sources already addressed 

by RACT determinations for the 1-hour 

and/or 1997 ozone NAAQS do not need 

to implement additional controls to 

meet the 2008 ozone NAAQS RACT 

requirement. We believe that, in some 

cases, a new RACT determination under 

the 2008 standard would result in the 

same or similar control technology as 

the initial RACT determination under 

the 1-hour or 1997 standard because the 

fundamental control techniques, as 

described in the CTGs and ACTs, are 

still applicable.34 In cases where 

controls were applied due to the 1-hour 

or 1997 NAAQS ozone RACT 

requirement, we expect that any 

incremental emissions reductions from 

application of a second round of RACT 

controls may be small and, therefore, 

the cost for advancing that small 

additional increment of reduction may 

not be reasonable. In contrast, a RACT 

analysis for uncontrolled sources would 

be much more likely to find that new 

RACT-level controls are economically 

and technically feasible. 

The EPA is finalizing the proposed 

approach with respect to ‘‘area wide 

average emission rates.’’ This approach 

is consistent with the EPA’s existing 

policy. 

The EPA is finalizing the proposed 

approach, where states have the option 

of conducting a technical analysis for a 

nonattainment area considering the 

emissions controls required by a 

regional cap-and-trade program, and 

demonstrating that compliance by 

certain sources participating in the capand-trade program results in actual 

emission reductions in the particular 

nonattainment area that are equal to or 

greater than the emission reductions 

that would result if RACT were applied 

to an individual source or source 

category within the nonattainment area. 

This approach is consistent with the 

Court’s reasoning in NRDC v. EPA 

regarding the NOX SIP Call. 

Additionally, we note that in August 

2013, the Court granted EPA’s request 

for voluntary vacatur of the CAIR–RACT 

presumption for the 1997 ozone 

NAAQS. The approach we are finalizing 

is not inconsistent with the vacatur 

decision. 

The EPA is finalizing the proposed 

approach for VOC sources subject to 

MACT standards, such that states would 

be allowed to streamline their RACT 

analysis by including an assessment of 

the MACT controls and how they relate 

to VOC RACT considerations. This 

approach is consistent with the EPA’s 

current policy. 

The EPA is finalizing the proposed 

approach to provide states with the 

discretion to require beyond-RACT 

reductions from any source, and that 

states have an obligation to demonstrate 

attainment as expeditiously as 

practicable. We believe it may be 

necessary in some cases for states to 

achieve ‘‘beyond RACT’’ reductions in 

order to demonstrate attainment as 

expeditiously as practicable. 

The EPA is not modifying existing 

guidance for meeting the 182(b)(2) 

RACT requirements for the 2008 ozone 

NAAQS through this action. There is 

scientific information available that 

indicates that in some locations ozone 

formation is NOX-limited, and changes 

in anthropogenic VOC emissions will 

have little effect on ozone 

concentrations. However, the EPA is not 

prepared at this time to establish a 

specific definition of ‘‘negligible effect,’’ 

and believes that legal support for 

modifying the existing RACT guidance 

needs to be further explored. States, 

therefore, will continue to conduct 


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RACT determinations as they 

historically have. Additionally, we do 

not anticipate that any current NOXlimited nonattainment areas will 

immediately need to develop 

substantive new VOC RACT SIP 

submissions. Therefore, we do not 

expect that retaining the current RACT 

guidance will have any near-term 

impact on states or VOC sources in 

current NOX-limited nonattainment 

areas. However, the EPA received 

potentially useful information from 

commenters regarding the definition of 

‘‘negligible effect,’’ which we will 

consider in the future as we further 

assess whether to modify the existing 

RACT guidance. 

The EPA is finalizing the proposed 

approach that areas must implement 

RACT measures as expeditiously as 

practicable, but no later than January 1 

of the 5th year after the effective date of 

a nonattainment designation. For the 

nonattainment designations that were 

effective July 20, 2012, RACT measures 

(for areas where they are required) must 

be implemented by January 1, 2017. 

This allows a comparable amount of 

time for sources to meet RACT 

requirements as originally anticipated 

under the 1990 CAA Amendments, and 

ensures that RACT measures are 

required to be in place no later than the 

last ozone season prior to the Moderate 

area attainment date of July 20, 2018. 

c. Comments and Responses 

Comment: Several commenters 

supported the proposed approach that 

in some cases, states may conclude that 

sources already addressed by RACT 

determinations for the 1-hour and/or 

1997 ozone NAAQS may not need to 

implement additional controls to meet 

the 2008 ozone NAAQS RACT 

requirement. Several other commenters 

generally did not support this 

conclusion. One commenter requested 

clarification regarding situations where 

a state may conclude that existing RACT 

controls meet RACT for the 2008 ozone 

NAAQS. 

Response: The EPA generally agrees 

with the supporting comments. The 

EPA disagrees with the comments 

opposing the proposed approach. In 

areas previously subject to the RACT 

requirement under the 1-hour and/or 

1997 ozone NAAQS, states have 

previously addressed the RACT 

requirement with respect to these 

NAAQS. We believe that, in some cases, 

a new RACT determination under the 

2008 standard would result in the same 

or similar control technology as the 

initial RACT determination under the 

1-hour or 1997 standard because the 

fundamental control techniques, as 

described in the CTGs and ACTs, are 

still applicable. 

We appreciate the commenter’s 

request for more information regarding 

the specific situations where this 

approach may be reasonable. In cases 

where controls were applied due to the 

1-hour or 1997 ozone NAAQS RACT 

requirement, the incremental emissions 

reductions from application of updated 

RACT controls may be small and, 

therefore, the cost for advancing that 

small additional increment of reduction 

may not be reasonable. In contrast, a 

RACT analysis for uncontrolled or 

partially controlled sources would be 

more likely to find that updated RACTlevel controls under the 2008 ozone 

NAAQS are economically and 

technically feasible. 

In portions of 2008 nonattainment 

areas where control technologies for 

major sources or source categories were 

previously reviewed and controls 

applied to meet the RACT requirement 

under the 1-hour or the 1997 ozone 

NAAQS, states should review and, if 

appropriate, accept the initial RACT 

analysis as meeting the RACT 

requirements for the 2008 ozone 

NAAQS. Absent data or public 

comments indicating that the previous 

RACT determination is no longer 

appropriate, the state need not adopt 

additional SIP controls to meet the new 

RACT requirement for these sources. In 

such cases, the state’s SIP revision 

submitted after notice and comment 

should contain a certification, with 

appropriate supporting information 

(including consideration of new data), 

indicating that these sources are already 

subject to SIP-approved requirements 

that still meet the RACT obligation. 

There are cases where the initial RACT 

analysis under the 1-hour standard or 

the 1997 standard for a specific source 

or source category concluded that no 

additional controls were necessary. In 

such cases, a new RACT determination 

is needed to consider whether more cost 

effective control measures have become 

available for sources that were not 

previously regulated. A re-analysis may 

determine that controls are now 

economically and technically feasible 

and are necessary to meet the RACT 

requirement. Please refer to the 

Response to Comments document for 

additional detail on this topic. 

Comment: A commenter expressed 

the concern that a nonattainment areawide weighted NOX averaging 

demonstration would exempt EGUs 

used primarily on high electricity 

demand days from NOX control. The 

commenter also expressed that the 

exemption of HEDD EGUs from NOX

control does not reduce NOX emissions 

when and where such reductions are 

necessary to attain the ozone NAAQS. 

Another commenter asserted that the 

EPA’s definition of RACT plainly 

requires each individual source to apply 

control technology to achieve the lowest 

emission limitation that each particular 

source is capable of meeting considering 

technology and economic feasibility. 

The commenter argued that substitution 

of area-wide averaging for sourcespecific RACT does not meet the 

language of section 182(b)(2) of the Act, 

which requires SIPs for Moderate and 

above areas to require implementation 

of RACT ‘‘with respect to . . . [a]ll VOC 

sources in the area covered by any CTG 

issued before November 15, 1990,’’ and 

‘‘[a]ll other major stationary sources of 

VOCs that are located in the area.’’ 42 

U.S.C. 7511a(b)(2). The commenter 

argued that the EPA is supplanting these 

statutory directives with an area-wide 

averaging program that allows some 

sources to avoid installing RACT 

controls. 

Response: The EPA’s existing policy 

recognizes that states can meet NOX

RACT requirements by submitting as 

part of their NOX RACT SIP submittal a 

demonstration that the weighted average 

NOX emission rate from sources in the 

nonattainment area subject to RACT 

achieves RACT-level reductions. We 

note, however, that this policy does not 

include an exemption for HEDD EGUs 

from NOX control. 

Additionally, the EPA disagrees with 

the comment that ‘‘area-wide averaging 

is not a legally permissible method for 

complying with’’ RACT and that RACT 

requires reductions from ‘‘each and 

every source’’ in an area. The EPA 

believes that the statute, as interpreted 

by the court in NRDC v. EPA, provides 

a state with the option of demonstrating 

that its program achieves RACT level 

reductions by showing emission 

reductions greater than or equal to 

reductions that would be achieved 

through a source-specific application of 

RACT in the nonattainment area. NRDC 

v. EPA interprets the CAA as requiring 

that each nonattainment area must 

achieve ‘‘RACT-level reductions,’’ 

which is to say the reductions that 

would be achieved ‘‘if RACT-level 

controls were installed in the area.’’ 571 

F.3d at 1258. In sum, nothing in the 

CAA or in NRDC v. EPA requires that 

‘‘each and every’’ source in the area 

employ RACT or achieve RACT-level 

reductions. Consistent with previous 

guidance, the EPA continues to believe 

that RACT can be met on average by a 

group of sources within a nonattainment 

area rather than at each individual 

source. Therefore, states can show that 

SIP provisions for these sources meet 


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35 571 F.3d at 1258. 

the ozone RACT requirement using the 

averaging approach. 

Comment: Several commenters 

expressed general support for the 

proposed policy that would allow states 

to demonstrate that compliance with a 

regional trading program by affected 

sources within a nonattainment area 

will satisfy RACT requirements for 

those sources. Several commenters 

additionally expressed that it may be 

appropriate for states to rely on a capand-trade program that is limited to a 

nonattainment area for purposes of 

meeting RACT for sources located in the 

nonattainment area. 

Other commenters did not support the 

proposed approach. A few of these 

commenters expressed concerns that by 

providing states with an option to rely 

on trading programs, the EPA is 

allowing for sources to turn off their 

controls in upwind states. Commenters 

additionally suggested that RACT 

should apply on an individual basis to 

every affected stationary source in a 

nonattainment area. Commenters 

implied that the EPA should specifically 

require controls to be operational at all 

times at these sources. 

Response: The EPA appreciates, and 

generally agrees with, the supporting 

comments pertaining to the proposed 

policy allowing states to rely on a 

regional cap-and-trade program to 

comply with RACT if they provide an 

appropriate technical demonstration. 

The EPA also agrees that states may rely 

on a cap-and-trade program that is 

limited to a nonattainment area for 

purposes of meeting RACT for sources 

located in the nonattainment area. The 

EPA disagrees, however, with those 

commenters that say that states should 

not have the option to demonstrate that 

compliance with a regional trading 

program by sources in a nonattainment 

area achieves RACT-level reductions 

within the nonattainment area. In NRDC 

v. EPA, the Court noted that a 

determination that RACT was satisfied 

by compliance with a regional trading 

program might be permissible for an 

area if accompanied by a technical 

analysis demonstrating that the program 

in fact ‘‘results in greater emissions 

reductions in a nonattainment area than 

would be achieved if RACT-level 

controls were installed in that area.’’ 35

In other words, the Court rejected the 

notion that a regional trading program 

intended to eliminate interstate 

transport of emissions consistent with 

CAA section 110(a)(2)(D)(i) could 

automatically constitute the RACT-level 

of control required by CAA section 

172(c)(1), but held open the possibility 

that an analysis could be conducted to 

determine whether such a program 

would result in the same, or higher level 

of emissions reductions in individual 

nonattainment areas. 

The EPA additionally disagrees with 

any implication by the commenters that 

the proposal should address whether 

controls are required to be operational at 

all times at sources in the 

nonattainment area. The EPA’s NOX

RACT guidance (Nitrogen Oxides 

Supplement to the General Preamble, 57 

FR 55625; November 25, 1992) includes 

a policy where states may develop 

RACT programs that are based on ‘‘area 

wide average emission rates.’’ 

Additional guidance on area-wide 

RACT provisions is provided by the 

EPA’s January 2001 economic incentive 

program guidance titled, ‘‘Improving Air 

Quality with Economic Incentive 

Programs.’’ Thus, the EPA’s existing 

policy recognizes that states may 

demonstrate as part of their NOX RACT 

SIP submittal that the weighted average 

NOX emission rate from a group of 

sources in the nonattainment area 

subject to RACT meets NOX RACT 

requirements. 

Comment: The EPA received several 

supporting and opposing comments 

regarding whether the EPA should 

modify the RACT guidance to allow for 

states to consider the ozone air quality 

benefits of reductions in VOC emissions 

for purposes of RACT determinations. 

Supporting comments provided 

examples where photochemical 

modeling appears to show that in some 

areas VOC reductions have a limited 

effect on reductions in ozone 

concentrations. These commenters also 

provided information that may be useful 

in evaluating the potential definition of 

‘‘negligible effect.’’ Several commenters 

also provided potential legal 

justifications for modifying the RACT 

guidance in this respect. 

Response: The EPA recognizes that 

modification of the existing guidance on 

determining RACT could add flexibility 

that would be beneficial to the 

efficiency of ozone controls in some 

states. In addition, it appears that there 

is available science suggesting that 

ozone formation in some areas is NOXlimited, such that changes in 

anthropogenic VOC emissions will have 

little effect on ozone concentrations. 

However, the EPA does not believe that 

the legal arguments provided by the 

commenters are sufficient to address 

potential statutory restrictions. The 

main legal argument presented by 

commenters in support of flexibility is 

that the EPA has ‘‘discretion’’ to 

determine what constitutes 

‘‘reasonably’’ available control 

technology. However, the EPA may not 

have sufficient discretion to support this 

modification of the existing RACT 

guidance. CAA section 182(b)(2) 

provides that SIPs must ‘‘require the 

implementation of reasonably available 

control technology’’ with respect to 

‘‘VOC sources.’’ It does not clearly 

authorize consideration of whether 

technology that is ‘‘reasonably 

available’’ is also reasonably effective 

with respect to improving air quality or 

reducing ozone formation, and it does 

not specify criteria for discerning a level 

of air quality improvement below which 

available technology does not need to be 

implemented. 

Comment: Some opposing comments 

raised equity concerns with modifying 

the RACT guidance, while other 

comments raised legal concerns. Several 

commenters stated the EPA has issued 

NOX waivers in the past under CAA 

section 182(f) and the proposed 

approach would appear to establish a 

VOC waiver scheme, which the 

commenters do not support and is not 

expressly provided by the statute. 

Several commenters stated that the CAA 

requires RACT on all major sources of 

VOC in nonattainment areas and the 

commenters do not believe that the EPA 

has the authority to eliminate this 

requirement. One commenter also stated 

that not only has Congress made clear 

that CAA section 182(b)(2)’s mandates 

for VOC RACT are not limited by any 

sort of air quality benefit test, but the 

plain meaning of ‘‘economic feasibility’’ 

does not have anything to do with air 

quality benefits, citing several cases. 

Response: Given these concerns about 

whether the CAA authorizes such an 

approach, and as is discussed above, the 

EPA is not at this time revising our longstanding RACT determination guidance. 

However, the EPA may continue to 

explore this option and potential legal 

support for it in the future. 

Comment: The EPA received one 

supporting comment regarding the 

proposed approach that for VOC sources 

subject to MACT standards, states 

would be allowed to streamline their 

RACT analysis by including a 

discussion of the MACT controls and 

considerations relevant to VOC RACT. 

The EPA received one additional 

comment suggesting that, before 

requiring states to apply NOX RACT to 

all combustion sources, the EPA should 

study certain MACT rules and 

specifically recommend the SIP credit 

for federal MACT measures in SIP 

planning. 

Response: The EPA thanks the 

commenter for their support. Regarding 

the issue of whether to specifically 

recommend the SIP credit for federal 


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36We note that the RACT compliance date does 

not change relative to the RACT SIP submission. 

This compliance date is fixed, such that if a state 

submits a RACT SIP past the deadline, then sources 

would still have to comply with the RACT 

requirements by January 1, 2017. 

37 ‘‘State Implementation Plans; General Preamble 

for Proposed Rulemaking on Approval of Plan 

Revisions for Nonattainment Areas’’ 44 FR 20372 at 

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

General Preamble for the Implementation of Title I 

of the Clean Air Act Amendments of 1990; 

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

1992). 

38 ‘‘Guidance on the Reasonably Available 

Control Measures (RACM) Requirement and 

Attainment Demonstration Submissions for Ozone 

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

Office of Air Quality Planning and Standards. 

November 30, 1999. http://www.epa.gov/ttn/oarpg/ 

t1/memoranda/revracm.pdf. 

39Memorandum of December 14, 2000, from John 

S. Seitz, Director, Office of Air Quality Planning 

and Standards, re: ‘‘Additional Submission on 

RACM from States with Severe One-Hour Ozone 

Nonattainment Area SIPs.’’ http://www.epa.gov/ttn/ 

caaa/t1/memoranda/121400_racmmemfin.pdf. 

MACT measures in SIP planning, the 

EPA is not planning at this time to 

develop specific recommendations for 

SIP credit for Federal MACT measures. 

Additionally, the commenter seems to 

imply that the EPA should not require 

compliance with RACT until such a 

study is completed. The EPA disagrees 

with the commenter. Regardless of 

whether or not the EPA conducts such 

a study, the RACT requirements remain 

requirements that must be met under 

the CAA, whether through reliance on 

MACT or otherwise. 

Comment: One commenter expressed 

concern that the EPA’s proposed 

requirement to have RACT in place by 

January 1, 2017, may not provide 

enough time for implementation. The 

commenter noted that if the EPA needs 

to develop additional CTGs for the 

current ozone NAAQS, states may not 

have ample time to develop regulations 

that provide sufficient time for sources 

to implement RACT for sources covered 

by additional CTGs. 

Response: The EPA disagrees with the 

commenter that a requirement for RACT 

to be in place by January 1, 2017, for 

areas designated nonattainment 

effective July 20, 2012, (and all areas of 

the OTR), does not allow enough time 

for implementation. The EPA believes 

that the January 1, 2017, date allows a 

sufficient amount of time for states to 

make RACT determinations and for 

sources to meet RACT requirements on 

the time-table originally anticipated 

under the 1990 CAA Amendments, and 

ensures that RACT measures are 

required to be in place throughout the 

last ozone season prior to the Moderate 

area attainment date of July 20, 2018. 

Given the comment received, we wish 

to provide further clarification regarding 

the RACT implementation deadline. 

The EPA notes that the requirement to 

develop a RACT SIP applies only to 

nonattainment areas that are classified 

as Moderate or above (i.e., Serious, 

Severe, or Extreme). Therefore, for such 

areas that were designated effective July 

20, 2012, RACT SIPs are due within 2 

years of the effective date of 

designation, by July 20, 2014. Sources 

subject to RACT in those areas would 

then need to implement RACT by 

January 1, 2017.36 If an area is 

reclassified from Marginal to Moderate 

at some later date, then that area would 

become subject to a new RACT 

requirement, and the EPA would set 

new SIP submission and RACT 

compliance dates on a reasonable 

schedule that the Administrator will 

establish in the applicable notice and 

comment rulemaking reclassifying the 

area. For areas newly redesignated to 

nonattainment, the RACT SIP is due 2 

years from the effective date of 

designation, and the implementation 

deadline is January 1st of the 5th year 

after the effective date of designation. 

Additionally, the January 1, 2017, 

RACT implementation deadline, would 

not automatically apply to sources 

covered by future CTGs. If a new CTG 

is developed, all current Moderate or 

above areas would be required to revise 

their SIPs for the sources covered by the 

CTG within the period set forth by the 

EPA in issuing the CTG document (see 

section 182(b)(2) of the CAA), which 

would occur through notice and 

comment rulemaking. This will give 

sources lead time to comply with the 

new requirement. 

Comment: With regard to the EPA’s 

proposed requirement to have RACT in 

place by January 1, 2017, one 

commenter asserted that it was not 

Congress’s intention to require another 

round of RACT revisions in the short 

period of time between ozone NAAQS 

revisions. The commenter claims the 

short period of time would not allow a 

facility to recoup the investment in the 

original pollution control before the 

requirement to reconsider if the next 

round RACT determinations requires 

newer controls. The commenter also 

believes that it would be burdensome 

for states to adopt new RACT SIPs and 

resubmit them for EPA approval. 

Response: The EPA disagrees with the 

commenter that Congress did not realize 

the implication that the 5-year NAAQS 

review cycle would potentially require 

new RACT determinations each time a 

NAAQS is revised. The EPA has offered 

flexibilities in applying the RACT 

requirements for areas that have 

previously met requirements for the 1- 

hour or the 1997 8-hour ozone NAAQS. 

2. Reasonably Available Control 

Measures (RACM) 

a. Summary of the Proposal 

The EPA proposed to continue to 

apply to the 2008 ozone NAAQS, 

existing RACM guidance that interprets 

the RACM provision to require a 

demonstration that the state has adopted 

all reasonable measures (including 

RACT) to meet RFP requirements and to 

demonstrate attainment as expeditiously 

as practicable and thus that no 

additional measures that are reasonably 

available will advance the attainment 

date or contribute to RFP for the 

area.37 38 39 The EPA also proposed that 

although states should consider all 

available measures, including those 

being implemented in other areas, a 

state must adopt measures for an area 

only if those measures are economically 

and technologically feasible and will 

advance the attainment date or are 

necessary for RFP. 

b. Final Action and Rationale 

The EPA is finalizing the proposed 

approach of continuing to apply existing 

RACM guidance to the 2008 ozone 

NAAQS, such that we interpret the 

RACM provision to require a 

demonstration that the state has adopted 

all reasonable measures (including 

RACT) to meet RFP requirements and to 

demonstrate attainment as expeditiously 

as practicable and thus that no 

additional measures that are reasonably 

available will advance the attainment 

date or contribute to RFP for the area. 

Additionally the EPA is finalizing the 

interpretation of the CAA requirements 

that states should consider all available 

measures, including those being 

implemented in other areas, and that a 

state must adopt measures for an area 

only if those measures are economically 

and technologically feasible and will 

advance the attainment date or are 

necessary for RFP. This interpretation 

has been upheld by several courts. See, 

e.g., Sierra Club v. EPA, et al., 294 F.3d 

155 (D.C. Circuit, 2002). 

Significant tracts of land under 

federal management may also be 

included in nonattainment area 

boundaries. The role of fire in these 

areas should be assessed and emissions 

budgets developed in concert with those 

federal land management agencies. 

Where appropriate, states may consider 

developing plans for addressing 

wildland fuels in collaboration with 

land managers and owners. Information 

is available from the Department of the 

Interior (DOI) and USDA Forest Service 

on smoke management programs and 


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40USDA Forest Service and Natural Resources 

Conservation Service, Basic Smoke Management 

Practices Tech Note, October 2011, http://

www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/

stelprdb1046311.pdf. 

41 Jaffe, DA; Wigder, NL. (2012). Ozone 

production from wildfires: A critical review. Atmos 

Environ 51: 1–10. http://dx.doi.org/10.1016/

j.atmosenv.2011.11.063. 

42Emery, C; Jung, J; Downey, N; Johnson, J; 

Jimenez, M; Yarwood, G; Morris, R. (2012). Regional 

and global modeling estimates of policy relevant 

background ozone over the United States. Atmos 

Environ 47:206–217. http://dx.doi.org/10.1016/

j.atmosenv.2011.11.012. 

43 Indeed, ‘‘Fire policy that focuses on [wildfire] 

suppression only, delays the inevitable, promising 

more dangerous and destructive future . . . fires.’’ 

Stephens, SL; Agee, JK; Fule, PZ; North, MP; 

Romme, WH; Swetnam, TW. (2013). Managing 

Forests and Fire in Changing Climates. Science 

342:41–42. 

basic smoke management practices and 

may be considered as potential 

mitigation measures to lessen the 

impacts of wildfires.40

Wildfire emissions are a component 

of background ozone 41 and can 

significantly contribute to periodic high 

ozone levels.42 Besides their effect on 

air quality, wildfires pose a direct threat 

to public safety—a threat that can be 

mitigated through management of 

wildland vegetation. Attempts to 

suppress wildfires have resulted in 

unintended consequences, including 

increased risks to both humans and 

ecosystems.43 The use of wildland 

prescribed fire can influence the 

occurrence, behavior and effects of 

catastrophic wildfires which may help 

manage the contribution of wildfires to 

background ozone levels and periodic 

peak ozone events. Additionally 

prescribed fires can have benefits to 

those plant and animal species that 

depend upon natural fires for 

propagation, habitat restoration, and 

reproduction, as well as myriad 

ecosystem functions (e.g., carbon 

sequestration). The EPA understands 

the importance of prescribed fire which 

mimics a natural process necessary to 

manage and maintain fire-adapted 

ecosystems and climate change 

adaptation, while reducing risk of 

uncontrolled emissions from 

catastrophic wildfires, and is committed 

to working with federal land managers, 

tribes, and states to effectively manage 

prescribed fire use to reduce the impact 

of wildfire related emissions on ozone. 

If wildfire impacts are significant, 

contributing to exceedances of the 

standard, states should consider RACM 

for this source. Fires play an important 

ecological role across the globe, 

benefiting those plant and animal 

species that depend upon natural fires 

for propagation, habitat restoration, and 

reproduction. Fires are one tool that can 

be used to reduce fuel load, unnatural 

understory, and tree density, helping to 

reduce the risk of catastrophic wildfires. 

Some wildfires and the use of 

prescribed fire can influence the 

occurrence of catastrophic wildfires 

which may reduce the probability of 

fire-induced ozone impacts and 

subsequent public health effects. RACM 

for wildfire may include addressing the 

wildland fuels through fuels 

management, including the use of 

prescribed fire and possibly allowing 

some wildfire to occur naturally, in 

systems that are ecologically fire 

dependent. Where appropriate, states, 

land managers and land owners may 

consider developing plans to ensure that 

fuel accumulations are addressed and 

fuel management efforts are not delayed. 

RACM for prescribed fires should also 

be considered. Information is available 

from DOI and the USDA Forest Service 

on the ecological role of fire, smoke 

management programs and basic smoke 

management practices, and fuels 

management strategies, and may be 

considered when determining RACM for 

prescribed fires. RACM must be 

determined for each area on a case-bycase basis. 

c. Comments and Responses 

Comment: One commenter suggested 

amending RACM guidance to follow the 

same common-sense approach proposed 

for RACT; i.e., if studies show that 

reducing anthropogenic VOC emissions 

in an area has little effect on groundlevel ozone concentrations, RACM 

analyses should not be required for that 

pollutant. 

Response: We note that existing EPA 

guidance already provides some 

assistance to states with identifying the 

type of measures that might be 

considered for RACM (See General 

Preamble, 57 FR 13549, April 16, 1992). 

If a state demonstrates that 

implementation of VOC emission 

reduction measures will not contribute 

to an area’s reasonable further progress 

or to attainment, then additional control 

of VOC emissions does not need to be 

further considered for RACM purposes. 

Thus, the EPA concludes that it need 

not amend RACM guidance to address 

this comment. 

E. Does the 2008 ozone NAAQS result 

in any new vehicle I/M programs? 

Based on current designations and 

classifications for the 2008 ozone 

NAAQS, no new vehicle I/M programs 

are currently required. In the proposal 

for this rulemaking, the EPA provided 

information on potential ways a state 

could design and implement an I/M 

program, either because it was required 

to implement a program due to a future 

reclassification for the 2008 ozone 

NAAQS, as a result of a nonattainment 

designation and classification under a 

future standard, or because an area 

decided to implement an I/M program 

even though it was not otherwise 

required. That discussion is not 

repeated here; therefore, please refer to 

the proposal (78 FR 34194–34196). 

Although the EPA is finalizing its 

proposal to revise the I/M SIP due date 

to align it with other SIP due dates (see 

section III.A of this preamble), no other 

changes are being made to the EPA’s 

existing regulations and guidance on 

vehicle I/M programs. 

F. How does transportation conformity 

apply to the 2008 ozone NAAQS? 

1. What is transportation conformity? 

Transportation conformity is required 

under CAA section 176(c) to ensure that 

transportation plans, transportation 

improvement programs (TIPs) and 

federally supported highway and transit 

projects are consistent with (‘‘conform 

to’’) the purpose of the SIP. Conformity 

to the purpose of the SIP means that 

transportation activities will not cause 

new air quality violations, worsen 

existing violations, or delay timely 

attainment of the relevant NAAQS or 

interim reductions and milestones. 

Transportation conformity applies to 

areas that are designated nonattainment, 

and to those former nonattainment areas 

that have been redesignated to 

attainment since 1990 and have a CAA 

section 175A maintenance plan 

(‘‘maintenance areas’’) for 

transportation-related criteria 

pollutants: carbon monoxide, ozone, 

nitrogen dioxide and particulate matter. 

The EPA’s Transportation Conformity 

Rule (40 CFR 51.390 and part 93, 

subpart A) establishes the criteria and 

procedures for determining whether 

transportation activities conform to the 

SIP. The EPA first promulgated the 

Transportation Conformity Rule on 

November 24, 1993 (58 FR 62188), and 

subsequently published several 

amendments. For example, the EPA 

published a final rule on July 1, 2004 

(69 FR 40004) that provided 

transportation conformity procedures 

for state and local agencies under the 

1997 ozone NAAQS, among other 

things. Parties involved in 

implementing transportation conformity 

include state and local transportation 

and air quality agencies, metropolitan 

planning organizations (MPOs) and the 

U.S. Department of Transportation (the 

DOT) (40 CFR 93.102). For further 

information on transportation 

conformity rulemakings, policy 

guidance and outreach materials, see the 


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44For the purposes of transportation conformity, 

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

metropolitan planning area boundary, but inside a 

designated nonattainment or maintenance area 

boundary that includes an MPO (40 CFR 93.101). 

45Also, see the EPA’s transportation conformity 

Web site for more information, including EPA’s 

‘‘Transportation Conformity Guidance for 2008 

Ozone NAAQS Nonattainment Areas’’ at: http://

www.epa.gov/otaq/stateresources/transconf/

2008naaqs.htm. 

46 Information on what federal actions are covered 

and how to demonstrate conformity are found in 40 

CFR part 93 subpart B. On March 24, 2010, former 

Administrator Lisa P. Jackson signed the General 

Conformity Final Rule ‘‘Revisions to the General 

Conformity Regulations,’’ which was published 

April 5, 2010 (75 FR 17254–17279). More 

information on the general conformity program is 

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

EPA’s Web site at http://www.epa.gov/

otaq/stateresources/transconf/

index.htm. 

2. When would transportation 

conformity apply to areas designated 

nonattainment for the 2008 ozone 

NAAQS? 

Transportation conformity for the 

2008 ozone NAAQS applied 1 year after 

the effective date of nonattainment 

designations for the NAAQS. CAA 

section 176(c)(6) and 40 CFR 93.102(d) 

provide a 1-year grace period from the 

effective date of an initial designation of 

nonattainment before transportation 

conformity applies in the area for a 

particular pollutant and standard. For 

areas designated nonattainment 

effective July 20, 2012, the 1-year grace 

period ended on July 20, 2013. For any 

area subsequently redesignated to 

nonattainment (from unclassifiable or 

attainment), the 1-year grace period runs 

from the effective date of the 

redesignation. The grace period 

requirements differ depending on 

whether the nonattainment area is a 

metropolitan area or an isolated rural 

area. 

In metropolitan areas, which are 

defined as urbanized areas that have a 

population greater than 50,000 and a 

designated MPO responsible for 

transportation planning per 23 U.S.C. 

134, within 1 year after the effective 

date of the nonattainment designation, 

the area’s MPO and the DOT must make 

a conformity determination with regard 

to the area’s transportation plan and TIP 

for the 2008 ozone NAAQS under the 

transportation conformity regulations 

(40 CFR 51.390 and part 93, subpart A). 

The conformity requirements for ‘‘donut 

areas,’’ 44 including the application of 

the 1-year conformity grace period, are 

generally the same as those for 

metropolitan areas. If, at the end of the 

grace period, the MPO and the DOT 

have not made a transportation plan and 

TIP conformity determination for the 

relevant pollutant and standard, the area 

would be in a conformity ‘‘lapse.’’ 

During a conformity lapse, only certain 

projects can receive additional federal 

funding or approvals to proceed. The 

practical impact of a conformity lapse 

will vary from area to area. 

Isolated rural nonattainment areas are 

areas that do not contain or are not part 

of an MPO (40 CFR 93.101). Conformity 

requirements for isolated rural 

nonattainment areas can be found at 40 

CFR 93.109(g). An isolated rural area 

would be required to make a conformity 

determination only at the point when a 

new transportation project needs 

funding or approval. This point may 

occur significantly after the 1-year grace 

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

2004, final rule for further background 

on how the EPA has implemented this 

conformity grace period for the 1997 

ozone NAAQS in metropolitan, donut 

and isolated rural areas (69 FR 40008– 

40014).45

3. Does transportation conformity apply 

for the 1997 ozone NAAQS once that 

NAAQS is revoked? 

The CAA only requires transportation 

conformity in areas that are designated 

nonattainment or maintenance for a 

given pollutant and standard. Therefore, 

transportation conformity would no 

longer apply for purposes of the 1997 

ozone NAAQS as of the time that 

standard (and thus an area’s designation 

for that standard) is revoked. 

Accordingly, existing 1997 ozone 

NAAQS nonattainment and 

maintenance areas, regardless of their 

designation for the 2008 ozone NAAQS, 

would no longer be required to 

demonstrate transportation conformity 

for the 1997 ozone NAAQS after the 

1997 ozone NAAQS is revoked. The 

D.C. Circuit ruled that the EPA violated 

the CAA when it partially revoked the 

1997 ozone NAAQS for transportation 

conformity purposes only in the 

Classifications Rule for the 2008 ozone 

NAAQS (NRDC v. EPA, D.C. Cir. No. 

12–1321, December 23, 2014). The 

partial revocation had been in effect 

since July 20, 2013, 1 year after the 

effective date of designations for the 

2008 ozone NAAQS. (77 FR 30160). The 

D.C. Circuit Court of Appeals vacated 

this aspect of the Classifications Rule 

but said nothing to suggest that the EPA 

could not revoke the standard for all 

purposes, as it is doing today. See South 

Coast, (upholding revocation of 

standard so long as anti-backsliding 

measures are introduced). Under our 

current Transportation Conformity Rule, 

the latest approved or adequate 

emission budgets for a previous ozone 

NAAQS (i.e., the 1997 or the 1-hour 

ozone NAAQS) would continue to be 

used in conformity determinations for 

the 2008 ozone NAAQS until emission 

budgets are established and found 

adequate or are approved for the 2008 

ozone NAAQS. (77 FR 14981–2). 

4. What impact will the implementation 

of the 2008 ozone NAAQS have on a 

state’s Transportation Conformity SIP? 

States with previously approved 

Transportation Conformity SIPs should 

not need to revise those SIPs, unless 

they need to do so to ensure that 

existing state regulations apply in areas 

newly designated nonattainment for the 

2008 ozone NAAQS. However, if this is 

the first time that transportation 

conformity will apply in a state, such a 

state is required to submit a SIP revision 

within 12 months of the effective date 

of the nonattainment designation that 

covers the three specific transportation 

conformity requirements that are 

delineated in CAA section 176(c)(4)(E). 

These specific requirements are 

consultation procedures and written 

commitments to control or mitigation 

measures associated with conformity 

determinations for transportation plans, 

TIPs or projects. 40 CFR 51.390. 

Additional information and guidance 

can be found in EPA’s ‘‘Guidance for 

Developing Transportation Conformity 

State Implementation Plans’’ (http://

www.epa.gov/otaq/stateresources/

transconf/policy/420b09001.pdf). 

G. What requirements for general 

conformity apply to the 2008 ozone 

NAAQS?? 

1. Summary of the Proposal 

The EPA did not propose to make 

revisions to the General Conformity 

Regulations.46 However, we did 

recommend that as areas develop their 

SIPs for the 2008 ozone NAAQS, state 

and local air quality agencies work with 

federal agencies with major facilities 

that are subject to the General 

Conformity Regulations to establish an 

emissions budget for those facilities in 

order to facilitate future conformity 

determinations. Significant tracts of 

land under federal management may 

also be included in nonattainment area 

boundaries. The role of fire in these 

areas should be assessed and emissions 

budgets developed in concert with those 

federal land management agencies. 

Where appropriate, states may consider 

developing plans for addressing 

wildland fuels in collaboration with 

land managers and owners. Information 

is available from DOI and USDA Forest 

Service on the ecological role of fire, 

smoke management programs and basic 


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47USDA Forest Service and Natural Resources 

Conservation Service, Basic Smoke Management 

Practices Tech Note, October 2011, http://

www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/

stelprdb1046311.pdf. 

48For areas designated in 2012, the effective date 

was July 20, 2013. 

49See the April 16, 1992 General Preamble 

section III.A.3.c (57 FR 13498 at 13511). 

50See Louisiana Environmental Action Network 

(LEAN) v. EPA, 382 F.3d 575 (D.C. 2004). 

smoke management practices, and fuels 

management strategies (including 

prescribed fire), and may be considered 

as potential mitigation measures to 

lessen the impacts of wildfires.47 We 

also stated in the proposal that for the 

ozone precursors VOC and NOX, the 

existing de minimis emission levels 

contained in 40 CFR 93.153(b)(1) will 

continue to apply to the 2008 ozone 

NAAQS. We also stated in the proposal 

that general conformity for the 2008 

ozone NAAQS would apply 1 year after 

the effective date of nonattainment 

designations for that NAAQS because 

section 176(c)(6) provides a 1-year grace 

period from the effective date of initial 

designations before general conformity 

determinations are required in areas 

newly designated nonattainment for a 

particular pollutant and standard. In 

such areas, we encourage states to 

consider in any baseline inventory used 

and/or submitted to include emissions 

expected from projects subject to 

general conformity, including emissions 

from wildland fire that may be 

reasonably expected in the area. 

Since we proposed to revoke the 1997 

ozone NAAQS at the time the final SIP 

Requirements Rule is published in the 

Federal Register, we stated in the 

proposal that general conformity 

requirements under the 1997 ozone 

NAAQS would end after the 2008 ozone 

NAAQS general conformity 

requirements begin. 

2. Final Action and Rationale 

The EPA is taking no action to revise 

General Conformity Regulations. For 

reasons explained in section IV of this 

rule, we are revoking the 1997 ozone 

NAAQS 30 days after publication of this 

final rule. Accordingly, the general 

conformity requirements for the 1997 

ozone NAAQS will end when the 

NAAQS is revoked, and the general 

conformity requirements for the 2008 

ozone NAAQS are applicable 1 year 

after the effective date of nonattainment 

designations for the 2008 NAAQS.48

The EPA believes the existing General 

Conformity Regulations (40 CFR part 93) 

remain appropriate for the 2008 ozone 

NAAQS. States with approved general 

conformity SIPs should not need to 

revise their SIPs unless they need to do 

so to ensure they are consistent with the 

April 5, 2010, revisions to the general 

conformity regulations or to ensure the 

existing regulations apply in the 

appropriate newly designated areas. 

H. What are the requirements for 

contingency measures in the event of 

failure to meet a milestone or to attain? 

1. Summary of Proposal 

The EPA proposed that the 

contingency measures required for 

Moderate and above areas under CAA 

sections 172(c)(9) and 182(c)(9) must 

provide for the implementation of 

specific measures if the area fails to 

attain or to meet any applicable 

milestone. These measures must be 

submitted for approval into the SIP as 

adopted measures that would take effect 

without further rulemaking action by 

the state or the Administrator upon a 

determination that an area failed to 

attain or to meet the applicable 

milestone. Per the EPA guidance, 

contingency measures should represent 

1-year’s worth of progress, amounting to 

reductions of 3 percent of the baseline 

emissions inventory for the 

nonattainment area, which would be 

achieved while the state is revising its 

plans for the area.49

Regarding the content of the 

contingency measures, the EPA’s prior 

guidance specifies that some portion of 

the contingency measures must include 

VOC reductions. As explained in the 

proposal, this previous limitation is no 

longer necessary in all cases. In 

particular, Moderate and above areas 

that have completed the initial 15 

percent VOC reduction required by CAA 

section 182(b)(1)(A)(i), can meet the 

contingency measures requirement 

based entirely on NOX controls if that is 

what the state’s analyses have 

demonstrated would be most effective 

in bringing the area into attainment. 

There would be no minimum VOC 

requirement. Also, the EPA proposed 

continuing its long-standing policy that 

allows promulgated federal measures to 

be used as contingency measures as long 

as they provide emission reductions in 

the relevant years in excess of those 

needed for attainment or RFP.50

The EPA also proposed an 

implementation approach for Extreme 

nonattainment areas whereby plan 

provisions meeting the requirements of 

CAA section 182(e)(5) (referred to as the 

‘‘black box’’), including the 

requirements concerning contingency 

measures, therein, may satisfy the CAA 

section 172(c)(9) and 182(c)(9) 

contingency measure requirements for 

the area provided the state has already 

adopted all reasonable candidate 

measures in the applicable SIP to satisfy 

RACM, RFP, and all other requirements 

necessary for attainment in the area. 

2. Final Action and Rationale 

The EPA is finalizing the proposed 

requirements that contingency measures 

must be submitted for approval into the 

SIP as required by the CAA and must 

provide for the implementation of 

specific measures without any further 

rulemaking action if the area fails to 

attain or meet any applicable milestone, 

with limited exceptions for Extreme 

nonattainment areas relying on plan 

provisions approved under CAA section 

182(e)(5), as discussed below. Regarding 

content of the 1-year’s worth of 

emissions covered by the contingency 

measures, the EPA is finalizing its 

proposal to allow the 3 percent 

emissions reductions of the contingency 

measures, to be based entirely on NOX

controls if the area has completed the 

initial 15 percent ROP VOC reduction 

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

and the state’s analyses have 

demonstrated that NOX substitution 

would be most effective in bringing the 

area into attainment. 

The EPA will continue to allow the 

use of federal measures providing 

ongoing reductions into the future to be 

used meet contingency measure 

requirements for the 2008 ozone 

NAAQS, consistent with the EPA’s 

longstanding policy. The EPA has 

previously approved the use of federal 

measures to meet contingency measure 

requirements in actions approving 1- 

hour and 8-hour ozone SIPs. 

With respect to Extreme ozone 

nonattainment areas, CAA section 

182(e)(5) allows the agency to exercise 

discretion in approving Extreme area 

attainment plans that rely, in part, on 

the future development of new control 

technologies or improvements of 

existing control technologies, where 

certain conditions are met. This 

discretion can be applied as long as the 

state has demonstrated that: All 

reasonably available control measures, 

including RACT, have been included in 

the plan; the area’s RFP demonstration 

during the first 10 years after 

designation does not rely on anticipated 

future technologies; and the state has 

submitted enforceable commitments to 

timely develop and adopt contingency 

measures to be implemented if the 

anticipated future technologies do not 

achieve planned reductions. The EPA is 

finalizing its proposal to allow states to 

submit, for Extreme nonattainment 

areas, enforceable commitments to 

develop and adopt contingency 

measures meeting the requirements of 


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51For example, where a state intends to rely on 

CAA section 182(e)(5) commitments to satisfy the 

CAA section 182(c)(9) contingency measure 

requirement for an RFP milestone in year 2022, the 

commitments must obligate the state to submit 

adopted contingency measures to the EPA no later 

than 2019. (i.e., 3 years before RFP contingency 

measures for 2022 would be implemented. 

52See ‘‘Guidance for Growth Factors, Projections, 

and Control Strategies for the 15 Percent Rate-ofProgress Plans,’’ U.S. EPA, March 1993, page 83 

(EPA–452/R–93/002). 

53As appropriate, certain nonattainment NSR 

requirements under 40 CFR 51.165 or Appendix S 

can also apply to sources and modifications located 

in areas that are designated attainment or 

unclassifiable in the Ozone Transport Region. See, 

e.g., CAA 184(b)(2), 40 CFR 52.24(k). 

182(e)(5) to satisfy the requirements for 

both attainment contingency measures 

in CAA sections 172(c)(9) and 182(c)(9). 

These enforceable commitments must 

obligate the state to submit the required 

contingency measures to the EPA no 

later than three years before any 

applicable implementation date, in 

accordance with CAA section 

182(e)(5).51 We note that this does not, 

however, relieve states from obligations 

to submit contingency plans as required 

by CAA sections 172(c)(9) and 182(c)(9) 

for periods in the first 10 years after 

designation. 

3. Comments and Responses 

Comment: Commenters urged the EPA 

to provide flexibility to states when 

adopting, subject to the EPA approval, 

contingency measures into the SIP that 

are ready for implementation should the 

area fail to either meet milestones or 

attain. Commenters requested that the 

EPA allow air quality improvement 

measurements to be taken into 

consideration for purposes of evaluating 

the level of emission reductions 

necessary to meet the contingency 

measure requirements when providing 

‘‘approximately’’ 1 year’s worth of 

progress for contingency measures. 

Commenters indicated that a similar air 

quality improvements approach has 

been used in approving PM2.5

contingency measures. 

Response: The EPA’s long-standing 

interpretation is that a 3 percent 

emissions reduction from the RFP 

baseline, rather than a specific ozone 

concentration improvement, is the 

minimum contingency measure 

adoption requirement under subpart 2. 

The EPA did not propose to alter this 

guidance. However, we note that if the 

contingency measures are ever triggered 

for an area, states may take air quality 

considerations into account in 

determining whether a subset of 

measures amounting to less than 3 

percent emissions reduction are all that 

is necessary to be implemented to cure 

the identified failure.52 The 

implementation of PM2.5 NAAQS is 

governed by statutory and regulatory 

requirements that are separate from, and 

not identical to, ozone implementation 

and provide flexibility for states to 

consider the degree of air quality 

improvement that may be needed in 

developing RFP plans and contingency 

measures. 

Comment: Several commenters 

supported, and no commenters objected 

to using CAA section 182(e)(5) authority 

to approve contingency measure plans 

for Extreme nonattainment areas where 

the attainment plan is based on 

development of new or improved 

control measures. 

Response: We appreciate the 

supportive comments. We recognize 

that all areas must meet the contingency 

plan requirements of CAA sections 

172(c)(9) and 182(c)(9). We agree that 

CAA section 182(e)(5) provides the 

agency with discretion to approve an 

Extreme area attainment plan that relies, 

in part, on the future development of 

new control technologies or 

improvements of existing control 

technologies. This authority can be 

exercised as long as the state has 

demonstrated that: All reasonably 

available control measures, including 

RACT, have been included in the plan; 

the area’s RFP demonstration during the 

first 10 years after designation does not 

rely on anticipated future technologies; 

and the state has submitted enforceable 

commitments to timely develop and 

adopt contingency measures in the 

event that anticipated future 

technologies do not achieve planned 

reductions. 

Comment: One commenter argued 

that an Extreme nonattainment area 

seeking to rely on the CAA section 

182(e)(5) ‘‘black box’’ should be 

required to demonstrate that it has 

adopted all feasible controls, even if 

they do not advance attainment by a 

year and regardless of whether they 

constitute ‘‘reasonably available control 

measures,’’ and that the EPA should 

‘‘change its interpretation of RACT and 

RACM, which currently allows areas to 

avoid adopting and implementing 

feasible measures.’’ 

Response: The EPA believes that both 

its long-standing interpretation of 

RACM and its focus on whether control 

measures are ‘‘reasonably available’’ 

provide an appropriate framework for 

determining when to exercise the 

discretion provided by CAA section 

182(e)(5). As noted in the proposal, the 

determination of whether a SIP contains 

all RACM requires an area-specific 

analysis establishing that there are no 

additional economically and technically 

feasible control measures (alone or 

cumulatively) that will advance the 

attainment date by 1 year. This requires 

close review of any measure that a 

commenter identifies as reasonably 

available for implementation in the area 

in light of local circumstances, and of 

measures being implemented in other 

states. 78 FR 34187, at 34194 (June 6, 

2013). This interpretation of RACM has 

been upheld in court (e.g., Sierra Club 

v. EPA, 294 F.3d 155, 162–163 (D.C. Cir. 

2002)). Thus, the EPA believes that it is 

appropriate to require that an area 

seeking to rely on the anticipated 

development of new technology 

demonstrate that its plan includes all 

control measures that come within this 

definition of ‘‘reasonably available.’’ 

The EPA does not believe it is necessary 

for an area to demonstrate the use of 

measures that go beyond that definition 

in order to meet contingency measure 

requirements. 

I. How do the NSR requirements apply 

for the 2008 ozone NAAQS? 

1. Major NSR Requirements for the 2008 

Ozone NAAQS 

The NSR programs established in 

parts C and D of title I of the CAA 

contain specific requirements for the 

preconstruction review and permitting 

of new or modified major stationary 

sources of air pollutants. In attainment 

and unclassifiable areas, the 

requirements under part C apply for the 

prevention of significant deterioration 

(PSD) program. In nonattainment areas, 

the requirements under part D apply for 

the nonattainment NSR program. We 

commonly refer to the PSD and 

nonattainment NSR programs together 

as the ‘‘major NSR programs.’’ 

The regulations for the major NSR 

programs are contained in 40 CFR 

51.166 and 52.21 for PSD, and 51.165, 

52.24 and part 51, Appendix S for 

nonattainment NSR.53 Among other 

things, in unclassifiable and attainment 

areas, the PSD program requires a new 

major source, or a major modification to 

an existing major source, to obtain a 

permit that satisfies PSD requirements, 

including the application of best 

available control technology (BACT) for 

‘‘each pollutant subject to regulation 

under [the CAA],’’ conducting an air 

quality impact analysis, and complying 

with requirements related to the 

protection of Class I areas. 

As part of the required air quality 

impact analyses, section 165(a)(3) of the 

CAA provides that the owner or 

operator of a proposed facility must, 

among other things, demonstrate that 

‘‘emissions from construction or 

operation of such facility will not cause, 


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54The EPA received comments relating to 

statements in the proposal about its discretion to 

grandfather permit applications in appropriate 

circumstances. Since this NAAQS has been in effect 

since 2008, the EPA is not adding a grandfathering 

provision in this final rule and those comments are 

discussed further in the Response to Comments 

document. 

55 In this final rule, the anti-backsliding 

requirements for nonattainment NSR are codified in 

40 CFR 51.1105, and are described in Section IV.B 

of this preamble. The nonattainment NSR 

regulations at 40 CFR 51.165 have been amended 

in this final rule to add new paragraph (a)(12), 

which references those anti-backsliding 

requirements. Also, as proposed, a new section VII 

has been added to Appendix S to set forth the antibacksliding requirements that must be followed 

when states issue nonattainment NSR permits 

under that Ruling. 

or contribute to, air pollution in excess 

of any . . . national ambient air quality 

standard in any air control region.’’ The 

EPA has generally interpreted this 

statutory requirement, and the 

corresponding regulations 

implementing EPA’s federal PSD 

permitting program at 40 CFR 52.21(k) 

and establishing minimum requirements 

for PSD programs approved into SIPs at 

40 CFR 51.166(k), to include a 

demonstration for any NAAQS that is in 

effect at the time a final permit decision 

is issued.54 See, e.g., 73 FR 28321, 

28324, 28340 (May 16, 2008); 78 FR 

3253 (Jan. 15, 2013); Memorandum from 

Stephen D. Page, Director, Office of Air 

Quality Planning & Standards, entitled 

‘‘Applicability of the Federal Prevention 

of Significant Deterioration Permit 

Requirements to New and Revised 

National Ambient Air Quality 

Standards,’’ to the EPA Regional Air 

Division Directors and Deputies (April 

1, 2010). 

In the proposal, the EPA indicated 

that, since the May 27, 2008, effective 

date of the 2008 ozone NAAQS, permit 

applications for new major stationary 

sources and major modifications have 

been subject to the PSD program 

requirements for ozone under two sets 

of circumstances: (1) Prior to the 

designation of areas for the 2008 ozone 

NAAQS, sources locating in areas 

designated attainment or unclassifiable 

for the 1997 ozone NAAQS; and (2) on 

and after the July 20, 2012, effective 

date of area designations for the 2008 

ozone NAAQS, sources locating in areas 

designated as attainment or 

unclassifiable for both the 1997 and 

2008 ozone NAAQS. If, however, an 

area was designated attainment or 

unclassifiable for the 2008 ozone 

NAAQS on and after July 20, 2012, but 

was designated nonattainment for the 

1997 ozone NAAQS, consistent with the 

PSD regulations at 40 CFR 51.166(i)(2) 

and 52.21(i)(2), the nonattainment 

designation would require application 

of nonattainment NSR for permits 

issued to new and modified sources 

locating in that area that trigger major 

NSR requirements for ozone until the 

revocation of the 1997 ozone NAAQS is 

effective. In this rulemaking, the EPA is 

revoking the 1997 ozone NAAQS for all 

purposes. Accordingly, as explained in 

section IV.A of this preamble, as of 30 

days after the publication of this rule in 

the Federal Register, the area 

designations for the 1997 ozone NAAQS 

will no longer be considered current 

designations; thus, all areas designated 

attainment for the 2008 ozone NAAQS 

will be subject to PSD requirements. In 

the proposal, the EPA explained that 

this result was based on its 

interpretation of the PSD regulations at 

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

recognized that those provisions did not 

expressly say that a nonattainment 

designation for a revoked standard does 

not trigger the exemption from PSD 

requirements contained in those 

provisions. 78 FR 34216–17. 

Accordingly, the EPA requested 

comment on whether amendment of 40 

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

necessary to achieve that outcome and 

on how such an amendment, if any, 

should be worded. After additional 

consideration, we believe there is a need 

for us to amend these provisions to 

further clarify the application of the 

exemption they contain. Therefore, the 

EPA is amending its PSD regulations at 

40 CFR 51.166(i)(2) and 52.21(i)(2) as a 

logical outgrowth of the proposal and 

the submitted comments to clarify that 

historical designations for a revoked 

NAAQS should not be considered in 

determining whether PSD requirements 

apply for that pollutant once the 

revocation becomes effective in an area. 

For any area that is designated 

nonattainment for the 2008 ozone 

NAAQS, the historical designations and 

classifications resulting from the 

revoked 1997 ozone NAAQS will 

continue to serve to identify 

nonattainment NSR anti-backsliding 

requirements (i.e., major source 

thresholds and emissions offset ratios) 

that need to be taken into account in 

issuing nonattainment NSR permits to 

major stationary sources and major 

modifications.55 As indicated 

previously, the designations and 

classifications for the revoked standard 

should not be regarded as current 

designations and classifications once 

the revocation takes effect. For example, 

in implementing the emissions offset 

requirements for nonattainment NSR, 

offset ratios based on the classification 

for the revoked standard, to the extent 

more stringent than the ratios for the 

2008 ozone NAAQS classification, must 

be used for anti-backsliding purposes. 

However, for purposes of determining 

whether a prospective offset can be 

obtained from a nonattainment area 

other than the one in which a new or 

modified source would be located, the 

requirements under section 173(c)(1) of 

the CAA must be satisfied. CAA section 

173(c)(1) requires, in part, that the 

nonattainment area from which the 

offset is obtained must have ‘‘an equal 

or higher nonattainment classification 

than the area in which the [new or 

modified] source is located. . . .’’ After 

the revocation takes effect, the historical 

classification for the revoked NAAQS, 

to the extent that it is lower than the 

classification in the nonattainment area 

where a new or modified source would 

be located, would not preclude 

obtaining the offset from that area, so 

long as (1) the current classification for 

the ozone NAAQS for that area is equal 

to or higher than the current 

classification of the nonattainment area 

where the new or modified source is 

locating and (2) the other requirements 

under section 173(c)(1) of the CAA are 

satisfied. 

Some states may have already in their 

SIP a nonattainment NSR program 

consistent with part D of the CAA that 

can be applied to new nonattainment 

areas. In such situations, permitting 

authorities should have begun applying 

the nonattainment NSR requirements in 

permitting actions for new and modified 

major sources that trigger major source 

permitting requirements for ozone in 

new nonattainment areas starting from 

the effective date of the 2008 ozone 

designations (July 20, 2012). 

For a newly designated (or 

redesignated) nonattainment area for the 

2008 ozone NAAQS in a state with a SIP 

that specifically lists the areas in which 

nonattainment NSR requirements under 

part D apply, or in a state that currently 

has no approved nonattainment NSR 

program, there will be an interim period 

between the July 20, 2012, designation 

date and the date when the EPA 

approves the state’s amended SIP, 

which must be revised to adequately 

address the nonattainment NSR 

requirements for the 2008 ozone 

NAAQS contained in this final rule. In 

the proposal, we explained that during 

this interim period, nonattainment NSR 

requirements for the 2008 NAAQS are 

governed by the EPA’s Emission Offset 

Interpretative Ruling codified in 

Appendix S to 40 CFR part 51. Among 

other things, in general, Appendix S 

requires new or modified major sources 

in nonattainment areas to meet the 

lowest achievable emission rate (LAER) 

and obtain sufficient offsetting 


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56See also, the EPA’s ‘‘Improving Air Quality 

with Economic Incentive Programs’’ document at 

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

eipfin.pdf. For additional memoranda and guidance 

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

nsr/nsrindex.htm. 

57See, for example, emission reduction credit 

banking programs in Ohio (OAC Chapter 3745– 

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

58For purposes of this rulemaking, we are using 

the terms interprecursor and interpollutant 

interchangeably. 

emissions reductions to assure that the 

new or modified major sources will not 

interfere with the area’s progress toward 

attainment. In addition, a new section 

VII of Appendix S has been added as 

part of this final rule to set forth the 

anti-backsliding requirements that must 

be addressed in order to issue a 

nonattainment NSR permit under 

Appendix S. That language for section 

VII is being finalized with only minor 

modifications to what was proposed. 

Readers should refer to 40 CFR part 51, 

Appendix S for a better understanding 

of the Appendix S permitting 

requirements. 

In the proposal, the EPA explained 

that the time period for the NSR waiver 

provision contained in section VI of 

Appendix S, enabling permitting 

authorities in specified circumstances to 

issue nonattainment NSR permits that 

do not require LAER or emissions 

offsets as are otherwise required under 

section IV of appendix S, was limited by 

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

F.3d 1245 (D.C. Cir. 2009). The court’s 

ruling was the result of a petition filed 

in response to the EPA’s Phase 2 Rule 

for the 1997 ozone NAAQS in which the 

EPA revised 40 CFR 52.24(k). The 

revision to paragraph (k) eliminated 

language stating that if a nonattainment 

area did not have an approved 

nonattainment NSR program within 18 

months after designation, Appendix S 

would no longer apply and a 

construction ban would apply instead. 

70 FR 71612 (November 29, 2005). The 

effect of the revision was to extend the 

applicability of Appendix S, including 

the section VI waiver provision, to cover 

the full period from the date of 

designation to the date on which the 

EPA approved the nonattainment NSR 

SIP for a new NAAQS. 

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

Cir. 2009)), the court vacated ‘‘the 

elimination of the 18-month time limit 

for NSR waivers under Appendix S’’ on 

the grounds that it violated section 

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

a result of the court’s vacatur of the 

extension of the 18-month time limit for 

section VI of Appendix S, no section VI 

waivers may be granted beyond 18 

months from the date of designation for 

any NAAQS. 

Several commenters requested that 

the EPA clarify how the court’s decision 

affects the implementation of Appendix 

S as an interim nonattainment NSR 

program. While most commenters 

understood that the vacatur applied 

only to the removal of the 18-month 

deadline for the section VI waiver, one 

commenter seemed to interpret the 

vacatur to apply to appendix S in its 

entirety. 

To clarify, there is now a distinction 

between the length of time during 

which waivers may be granted under 

section VI of Appendix S and the length 

of time the remainder of Appendix S 

applies as an interim nonattainment 

NSR program. No section VI waivers 

may be granted beyond 18 months from 

the date of designation. The remainder 

of Appendix S, however, is not subject 

to an 18-month time limitation. It will 

remain as the basis for air agencies to 

issue nonattainment NSR permits in 

new ozone nonattainment areas until 

the EPA approves a state’s 

nonattainment NSR program for the 

2008 ozone NAAQS under the SIP for 

the area. Specifically, section IV of 

Appendix S contains preconstruction 

requirements for proposed sources and 

modifications, which reflect the 

requirements contained in part D of the 

CAA for ozone nonattainment areas. 

The requirements in section IV should 

be met consistent with the antibacksliding requirements contained in 

new section VII of Appendix S. 

2. Offset Requirements and Policy 

To satisfy requirements under section 

173 of the Act, new and modified major 

sources in nonattainment areas must 

secure emissions reductions (i.e., 

‘‘offsets’’) to compensate for a proposed 

emissions increase. Offsets are 

generated by emissions reductions that 

meet specific creditability criteria set 

forth by the SIP consistent with EPA 

regulations. See, 40 CFR 

51.165(a)(3)(ii)(A)–(J) and part 51 

Appendix S section IV.C.56 One 

commenter suggested that 

nonattainment NSR major source 

construction and major modification 

offsets should be available outside the 

nonattainment area (from attainment 

areas) due to the possibility that new 

sources would develop in attainment 

areas in close proximity to the boundary 

of the ozone nonattainment area with 

subsequent impact on the 

nonattainment area. Further, the 

commenter seemed to suggest that 

emissions reductions from these close 

proximity sources should also be 

allowed to be used as offsets within the 

adjacent nonattainment area. The 

commenter’s suggestion fails to address 

the statutory requirements for offsets 

and, more specifically, does not 

confront the statutory provisions 

restricting where offsets can be obtained 

from. In accordance with the 

requirements under section 173(c)(1) of 

the CAA, emissions offsets must be 

obtained from the same nonattainment 

area, except that the state may allow a 

source to obtain offsets from another 

nonattainment area if (1) that area has 

an equal or higher nonattainment 

classification than the nonattainment 

area in which the source requiring the 

offsets is located, and (2) emissions from 

that other area contribute to a violation 

of the NAAQS in the nonattainment 

area in which the source requiring the 

offsets is located. Accordingly, the EPA 

does not intend to revise the existing 

requirements as to where emissions 

offsets may be obtained to allow use of 

offsets from attainment areas. 

3. Facilitating New Source Growth in 

Nonattainment Areas 

a. Offset Banks 

States can help facilitate continued 

economic development in a 

nonattainment area by establishing 

offset banks or registries. Such banks or 

registries can help new or modified 

major stationary source owners meet 

offset requirements by streamlining 

identification and access to available 

emissions reductions. Some states have 

established offset banks to help ensure 

a consistent method for generating and 

transferring NOX and VOC offsets.57

Offsets in these areas are generated by 

emissions reductions that meet specific 

creditability criteria set forth by the SIP 

consistent with EPA regulations. See 

existing 40 CFR 51.165(a)(3)(ii)(A)–(J) 

and part 51 Appendix S section IV.C. 

b. Interprecursor Offset Substitution 

In the proposal, the EPA recognized 

that states could establish 

interprecursor 58 offset substitution 

provisions, which would create 

additional flexibility in meeting offset 

requirements by allowing NOX

emissions reductions to satisfy VOC 

offset requirements and vice versa. See 

78 FR at 34201. The EPA received no 

adverse comments on whether to allow 

such interprecursor trading for ozone 

and no comment suggested that such 

trading is not or should not be allowed 

for ozone. In fact, all comments 

addressing the EPA’s statements in the 

proposal concerning interprecursor 

trades for ozone for nonattainment NSR 

permitting were in support of allowing 

NOX emissions reductions to satisfy 

VOC offset requirements and vice versa. 


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59 ‘‘Improving Air Quality with Economic 

Incentive Programs’’ document at http://

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

eipfin.pdf. In this document, the EPA stated: 

‘‘[o]zone interprecursor trading can be used to meet 

NSR offset requirements, regardless of whether the 

NSR offset emission reductions are generated 

through an EIP.’’ Id. at 244. For additional 

memoranda and guidance documents, see http://

www.epa.gov/region7/air/nsr/nsrindex.htm. 

Although there were no adverse 

comments relating to the EPA’s ability 

to allow interprecursor trading for 

ozone, the EPA recognizes that the 

current language of 40 CFR 

51.165(a)(11) and part 51 Appendix S 

IV.G.5 could be read to limit 

interprecursor trading to PM2.5, and thus 

to preclude this kind of interprecursor 

trading for ozone precursors (NOX and 

VOC). However, the EPA has issued 

previous guidance that clearly allows 

for such interprecursor trading for ozone 

precursors.59 While the EPA did not 

specifically propose to amend the 

nonattainment NSR regulations to 

address interprecursor trading for 

ozone, the proposal indicated the EPA’s 

intent to continue to allow states to 

establish provisions that allow for such 

interprecursor trading for ozone 

precursors. 

As noted previously, the EPA 

received no adverse comments on the 

interprecursor aspect of the proposal. 

Commenters did, however, indicate 

support for ensuring in the final 

rulemaking that interpollutant trading 

would continue to be allowed, and one 

commenter indicated support for 

measures similar to what was 

authorized in the final 2008 PM2.5

NAAQS implementation rule, see 73 FR 

28321, which revised the regulations 

and Appendix S to allow for 

interprecursor trading for PM2.5

precursors. 

Accordingly, the EPA is taking action 

in this final rulemaking to amend the 

regulatory text in both 40 CFR 51.165 

and Appendix S as a logical outgrowth 

of the proposal and the submitted 

comments to ensure that the offset 

provisions of both rules are consistent 

with our proposal and our ongoing 

position to allow such trades for the 

ozone precursors (VOC and NOX). See 

revised 40 CFR 51.165(a)(11) and part 

51 Appendix S IV.G.5. These changes in 

the regulatory text are intended to 

clarify that interprecursor trading 

continues to be an option for the ozone 

precursors VOC and NOX, as long as 

such trades are consistent with existing 

policy and legal requirements; these 

revisions are not intended to change the 

underlying requirements for such 

trades. Please refer to the Response to 

Comments document in the docket for 

this rulemaking for more detailed 

information and responses to comments 

with respect to interprecursor trading 

concerns. 

c. Economic Development Zones (EDZs) 

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

authorizes the Administrator, in 

consultation with the Secretary of 

Housing and Urban Development 

(HUD), to identify areas within 

nonattainment areas as ‘‘zone[s] to 

which economic development should be 

targeted.’’ Under this section, new or 

modified major stationary sources that 

locate in such a zone are relieved of the 

NSR requirement to obtain emission 

offsets if (1) the relevant SIP includes an 

NSR nonattainment program that has 

established emission levels for new and 

modified major sources in the zone 

(‘‘growth allowance’’), and (2) the 

emissions from new or modified 

stationary sources in the zone will not 

cause or contribute to emission levels 

that exceed such growth allowance. 

CAA section 172(c)(4) of the CAA 

requires that the growth allowance be 

consistent with the achievement of 

reasonable further progress, and that it 

will not interfere with attainment of the 

applicable NAAQS by the applicable 

attainment date for the nonattainment 

area. The EPA is willing to work with 

HUD and states to identify potential 

areas that could be identified as EDZs. 

4. Deadline for Submitting 

Nonattainment NSR Program SIPs for 

2008 Ozone NAAQS 

As explained in section III.A of this 

preamble, several commenters noted 

that the EPA’s proposed rulemaking did 

not address the SIP submittal deadline 

for the nonattainment NSR program for 

the 2008 ozone NAAQS. As explained 

in section III.A, the final rule includes 

a deadline of 3 years from the effective 

date of designation for states to submit 

their nonattainment NSR program SIPs 

for the 2008 ozone NAAQS. The 

rationale for this deadline appears in 

section III.A of this preamble. 

J. What are the emission inventory and 

emission statement requirements? 

1. Emission Inventory Requirements 

a. Summary of the Proposal 

We proposed that states should rely 

on their 3-year cycle inventory as 

described by the Air Emissions 

Reporting Requirements (AERR) to meet 

182(a)(3)(A) periodic inventory 

obligations and that the emissions 

reporting requirements of the AERR be 

applied to determine all of the data 

elements required for such inventories 

(see, e.g., Tables 2A, 2B, 2C and 2D of 

40 CFR part 51, subpart A, Appendix 

A). We also proposed to follow our 

existing guidance, titled ‘‘Public 

Hearing Requirements for 1990 BaseYear Emissions Inventories for Ozone 

and Carbon Monoxide Nonattainment 

Areas’’ in implementing certain SIP 

adoption and submission procedures for 

the emissions inventory requirements 

under CAA sections 182(a)(1) and 

182(a)(3)(A) for purposes of the 2008 

ozone NAAQS. 

b. Final Action and Rationale 

We are generally finalizing as 

proposed, although in light of comments 

received we made small changes to 

address reporting of ozone season day 

and partial county emissions not 

currently addressed in the AERR, as 

explained below. CAA section 

182(a)(3)(A) requires that states submit 

periodic emission inventories no later 

than the end of each 3-year period after 

submission of the base year inventory 

for the nonattainment area. This 

requirement applies to Marginal and 

above ozone nonattainment areas. Thus, 

states must submit this periodic 

inventory no later than the end of each 

3-year period after submission of the 

base year inventory for the 

nonattainment area. The periodic 

inventory required by this final rule 

must include ozone season day 

emissions of VOC and NOX for point, 

nonpoint and mobile sources (on-road 

and non-road) and fire-related event 

emissions. On December 4, 2008, the 

EPA promulgated the AERR rule (40 

CFR 51, subpart A). The AERR requires 

states to submit comprehensive 

statewide 3-year cycle annual emission 

inventories (2008, 2011, 2014, etc.) for 

a number of pollutants (see list provided 

at 40 CFR 51.15(a)) regardless of an 

area’s attainment status. During the 

submission of the 3-year cycle 

inventories in accordance with the 

AERR, states may also submit ozone 

season day emissions to meet the 

periodic inventory requirement of this 

rule. If the periodic inventory required 

by this rule is not included in the AERR 

submission, then it must be submitted 

to the EPA through other mechanisms in 

coordination with the Regional Office. 

Emission inventory elements submitted 

per the AERR that are relied on in the 

SIP also need to be adopted through the 

SIP submittal requirements per 40 CFR 

51.100 et seq. 

We are finalizing the requirement that 

states use the reporting requirements of 

the AERR to determine the data 

elements required for such inventories, 

while including an additional 

requirement to report ozone season day 

emissions, as defined in this final rule, 

rather than the AERR requirement for 


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60 In comparison, the AERR emissions data are 

submitted by the states to the EPA, electronically 

via the Emission Inventory System to the National 

Emissions Inventory (NEI), and public review is not 

required for NEI purposes. The states submit data 

to the NEI inventory 12 months after the NEI 

inventory year (i.e., calendar year 2011 NEI 

inventory data were to be submitted by December 

31, 2012). The NEI process provides for the states 

to review the data as collected by the EPA before 

the EPA officially publishes the data. Under the 

current process, the EPA intends to publish the data 

6 months after the AERR data are required to be 

submitted to the EPA. 

annual emissions for both the base year 

inventory for the nonattainment area 

and the periodic inventory. 

Additionally, the EPA has included 

within 40 CFR 51.1100(bb) and (cc) of 

this final rule definitions pertaining to 

base year inventory and the ozone 

season day emissions, in response to 

several significant comments as 

explained in section III.J.1.c of this rule. 

Accordingly, a base year inventory for 

the nonattainment area is due no later 

than 2 years after the effective date of 

designations, and the emissions 

included in this inventory must be 

ozone season day emissions as defined 

in CAA section 51.1100(cc) of this rule. 

A periodic inventory must be submitted 

on intervals no later than the end of 

each 3-year period after submission of 

the base year inventory for the 

nonattainment area. 

The EPA has concluded that ozone 

season day emissions are the most 

appropriate temporal basis for 

developing the emissions to be included 

in this inventory, rather than summer 

day emissions as required by past 

implementation rules or the AERR. The 

EPA believes that summer day 

emissions required previously are an 

insufficient nomenclature, since in 

some areas nonattainment may be due 

to ozone exceedances in months other 

than summer months (e.g., wintertime), 

and necessitate focusing planning 

efforts on emissions occurring during 

the most relevant time period. Other 

than changing the name to be more 

inclusive, the definition of the 

emissions to be included is essentially 

the same as the previous definition. 

Ozone season day emissions means an 

average day’s emissions for a typical 

ozone season work weekday as defined 

in CAA section 51.1100(cc). The state 

will select, subject to EPA approval, the 

particular month(s) in the ozone season 

and the day(s) in the work week to be 

represented. The selection of days 

should be coordinated with the 

conditions assumed in the development 

of RFP plans and/or emissions budgets 

for transportation conformity to allow 

comparability of daily emissions 

estimates. The days should represent 

the conditions that contribute to high 

ozone that led to a nonattainment 

designation. 

For all inventories submitted to the 

EPA for this rule, states must use the 

reporting requirements of the AERR to 

determine which sources are reported as 

point sources as well as the detail (i.e., 

data elements) required for such 

inventories, with the exception of the 

emissions values. The emissions values 

must be ozone season day emissions 

rather than the AERR requirement for 

annual emissions for both the base year 

inventory for the nonattainment area 

and the periodic inventory. 

Inventories of partial-county 

nonattainment areas must match the 

spatial extent of the nonattainment area 

to include only emissions within the 

nonattainment area. The EPA 

acknowledges the challenges associated 

with partial county inventories and has 

prepared an updated draft of the 

emissions inventory guidance (see 

below) to provide additional 

information for air agencies to use in 

preparing partial county emissions. The 

base year inventory for the 

nonattainment area is used as the 

baseline for RFP plans to achieve 

emissions reductions within the 

nonattainment area. As explained more 

fully in section III.C of this preamble, 

the EPA has determined that emissions 

reductions in areas outside the 

nonattainment area cannot be included 

in the area’s RFP demonstration. Thus, 

the EPA has concluded that for 

nonattainment areas with partial county 

boundaries, all inventories must be 

developed to reflect the partial county 

boundaries. This requirement partly 

supersedes the requirement to use the 

AERR data elements, such that for 

nonpoint and mobile sources, the 

county field required by the AERR 

should be replaced by a separate 

identifier to indicate the partial county 

nonattainment area. Because of this 

partial difference in requirements, 

periodic inventories for partial county 

nonattainment areas cannot be reported 

to the EPA as part of a state’s AERR/NEI 

triennial inventory submission. Instead, 

states must make available the inventory 

data to the EPA as electronic files in 

some other electronic media, such as 

FTP, zip drives, or DVDs. 

For all inventories that are used in 

developing RFP plans or attainment 

demonstrations, mobile source 

emissions should be estimated using the 

latest emissions models, data and 

planning assumptions available at the 

time the SIP is developed. The latest 

approved models should be used to 

estimate emissions from on-road and 

non-road sources, in combination with 

the latest available estimates of vehicle 

miles traveled (VMT), vehicle 

population, and/or equipment activity. 

States are advised to check the EPA Web 

pages for the currently approved mobile 

source models and to consult with the 

EPA Office of Transportation and Air 

Quality and their Regional Office to 

determine the versions of models to use 

for their SIPs for the 2008 ozone 

NAAQS. For on-road mobile emissions 

in states other than California, the 

current approved version of MOVES, as 

well as links to the Federal Register 

Notice approving that version, and links 

to guidance documents with much more 

detail on when and how MOVES should 

be used can be found at: http://

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

index.htm. For California, consult with 

the EPA Region 9 Office for the 

information on the latest approved 

version of the EMFAC (EMissions 

FACtors) model. Emissions from nonroad equipment should be estimated 

with the latest official version of the 

EPA’s NONROAD model, and other 

appropriate methods for estimating 

emissions from sources not covered by 

these models. Links to Federal Register 

notices and policy guidance memos on 

the latest approved versions of MOVES 

and NONROAD can be found at 

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

Additional information is available to 

states for all emissions sources and 

quality assurance in the form of 

guidance. States should consult the 

latest version of the guidance document 

‘‘Emission Inventory Guidance for 

Implementation of Ozone and 

Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and 

Regional Haze Regulations,’’ EPA–454/

R–05–001 (latest final November 2005; 

revised draft April 2014) and any 

subsequent updates to that guidance 

that the EPA makes available (which 

can be found at http://www.epa.gov/ttn/ 

chief/eidocs/eiguid/index.html). States 

should submit inventories that are 

appropriate for each nonattainment area 

and consistent with the EPA’s guidance. 

As indicated previously, some 

inventories submitted to meet the 

requirements of CAA sections 182(a)(1) 

and 182(a)(3)(A) may be used in the 

development of RFP plans and/or 

attainment demonstrations. The EPA 

expects that the base year inventory for 

the nonattainment area will serve as the 

RFP plan baseline. As such, the EPA 

requires the methodologies used to 

develop these inventories to be clearly 

documented and the inventories 

themselves to be subject to public 

participation requirements and formal 

approval/disapproval by the EPA.60


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The EPA is not finalizing the 

proposed approach, where we advised 

that states could follow our existing 

September 29, 1992, guidance, titled, 

‘‘Public Hearing Requirements for 1990 

Base-Year Emissions Inventories for 

Ozone and Carbon Monoxide 

Nonattainment Areas’’ in implementing 

certain SIP adoption and submission 

procedures for the emissions inventory 

requirements under CAA sections 

182(a)(1) and 182(a)(3)(A) for purposes 

of the 2008 ozone NAAQS. In that 

guidance, the EPA indicated it could 

provide states with a time-limited ‘‘de 

minimis’’ deferral of the CAA’s state 

public hearing requirement for the 

emissions inventory SIP revision 

required to be submitted for each 

nonattainment area within 2 years of the 

date of designation. The EPA continues 

to believe that there are valid policy 

reasons to provide such a deferral since 

the inventories alone do not have 

significant regulatory context without 

the accompanying area-specific RFP 

plans or attainment plans, which are not 

required to be submitted until the 3rd 

year after designations at the earliest. 

However, as a general matter the CAA 

clearly requires that SIP submittals, 

including emissions inventories (see 

CAA sections 182(a)(1) and 

182(a)(3)(A)), must meet the 

requirements of CAA section 110(a)(2), 

which includes the requirement that the 

state provide reasonable notice and 

public hearing for SIP submittals. As 

there is nothing in these CAA 

provisions that provides for waiver or 

delay of the public notification and 

hearing requirements specified in CAA 

section 110(a) de minimis or otherwise, 

we no longer believe it is appropriate to 

advise states to follow the 1992 

guidance. We instead remind states that 

the EPA’s implementing regulations at 

40 CFR part 51 (Requirements for 

Preparation, Adoption, and Submittal of 

Implementation Plans) provide 

flexibility for states to streamline SIPrelated public notification and hearing 

procedures (for example, only holding a 

public hearing if one is requested, per 

40 CFR 51.102), and we encourage states 

to take advantage of those provisions in 

meeting the emissions inventory 

requirements under CAA sections 

182(a)(1) and 182(a)(3)(A). 

c. Comments and Responses 

Commenters provided a variety of 

comments on issues relating to 

emissions inventories. A full accounting 

of those comments and the EPA’s 

detailed responses are further explained 

in the Response to Comments document 

contained in the docket. Significant 

comments were made that resulted in 

small changes from the proposed rule. 

In particular, commenters noted that the 

proposed rule failed to clearly indicate 

the need for seasonal or summer day 

emissions values in the required 

inventories and for use in the RFP plan. 

Different commenters suggested 

different terms, time periods, and 

emissions bases to use in the inventories 

and plans, including summer day, 

typical summer day, high ozone season 

day, and maximum daily. These 

comments and others noted the 

discrepancy with this rule and proposed 

changes to the AERR, in that seasonal 

emissions were not expressly required 

by either the proposed ozone 

requirements rule or the proposed AERR 

changes. As a result of these comments, 

the EPA has included the requirement 

in this rule as a logical outgrowth for 

ozone season day emissions, as defined 

in this final rule, to be used in emission 

inventories submitted for ozone SIPs. 

One commenter noted that partial 

county areas are not expressly 

addressed in the emissions inventory 

requirements and pointed out that it 

will be burdensome for states to create 

partial county inventories. The EPA 

addresses partial county emissions in 

this final rule by specifically defining 

the emissions to be included as ‘‘within 

the boundaries of the nonattainment 

area’’ and clarifies in this preamble that 

such partial county estimates are still 

needed to comply with the CAA 

requirements for inventories and RFP 

plans. 

2. Source Emission Statements 

States must develop emission 

reporting programs, called emission 

statement programs, for VOC and NOX

sources in accordance with CAA section 

182(a)(3)(B). The required state program 

and associated regulation defines how 

states obtain emissions data directly 

from facilities and report it to the EPA. 

States should coordinate their emission 

statement regulations with the 

requirements laid out in this rule, which 

includes coordination with 

requirements of the AERR. 

The EPA published guidance on 

source emission statements in a July 

1992 memorandum titled, ‘‘Guidance on 

the Implementation of an Emission 

Statement Program.’’ A memorandum 

titled, ‘‘Emission Statement 

Requirements Under 8-hour Ozone 

NAAQS Implementation,’’ dated March 

14, 2006, clarified that the source 

emission statement requirement under 

the CAA was applicable to all areas 

designated nonattainment for the 1997 

ozone NAAQS and classified as 

Marginal or higher under subpart 2, part 

D, title I of the CAA. This requirement 

similarly applies to all areas designated 

nonattainment for the 2008 ozone 

NAAQS. Most areas that need an 

emission statement program already 

have one in place due to a 

nonattainment designation for an earlier 

ozone NAAQS. If an area has a 

previously approved emission statement 

rule in force for the 1997 ozone NAAQS 

or the 1-hour ozone NAAQS that covers 

all portions of the nonattainment area 

for the 2008 ozone NAAQS, such rule 

should be sufficient for purposes of the 

emissions statement requirement for the 

2008 ozone NAAQS. The state should 

review the existing rule to ensure it is 

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

meet the emission statement 

requirement for the 2008 ozone NAAQS. 

In cases when an existing emission 

statement requirement is still adequate 

to meet the requirements of this rule, 

states can provide the rationale for that 

determination to the EPA in a written 

statement in the SIP to meet this 

requirement. States should identify the 

various requirements and how each is 

met by the existing emission statement 

program. In cases when an emission 

statement requirement is modified for 

any reason, states must provide the 

revisions to the emission statement as 

part of their SIP. 

K. What are the ambient monitoring 

requirements? 

The EPA’s ambient monitoring 

requirements are contained in 40 CFR 

part 58. Monitoring rule amendments 

published on October 17, 2006, (71 FR 

61236) established minimum ozone 

monitoring requirements based on 

population and levels of ozone in an 

area to better prioritize monitoring 

resources. The minimum monitoring 

requirements are contained in Table D– 

2 of Appendix D to part 58. The 

Photochemical Assessment Monitoring 

Station (PAMS) program, required by 

CAA section 182(c)(1), collects 

enhanced ambient air measurements in 

ozone nonattainment areas classified as 

Serious, Severe, or Extreme. The 

monitoring rule amendments published 

on October 17, 2006, reduced the 

minimum PAMS requirements. The 

revisions were intended to require the 

retention of the minimum common 

PAMS network elements necessary to 

meet the objectives of every PAMS 

program, while freeing up resources for 

states to tailor other features of their 

own PAMS networks to suit their 

specific data needs. This final rule 

makes no changes to these existing 

requirements. 


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61The exceedance based standard basically 

allowed the NAAQS level to be exceeded an 

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

(This is a generalization of how attainment is 

determined; the actual method considers other 

factors such as completeness of the data.) See 40 

CFR, appendix H. In contrast, the concentration 

based standard allows the level of the 8-hour ozone 

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

on average because the form (concentration-based) 

of that NAAQS is determined by averaging the 4th 

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

62Nonattainment area boundaries are determined 

by the Administrator during the area designations 

process governed by CAA section 107(d), and must 

encompass the area that does not meet the NAAQS 

as well as any nearby area that contributes to poor 

air quality in the area that does not meet the 

NAAQS. While the lack of emissions sources in a 

rural transport nonattainment area foreshadows a 

relatively small area boundary, it may also signal 

special challenges in complying with certain 

nonattainment area requirements, including 

conformity for federal projects and new source 

emissions offsets. States may wish to consider these 

challenges in making nonattainment boundary 

recommendations to the EPA for rural areas during 

the designations process. 

63See http://www.census.gov/population/www/

metroareas/metrodef.html. 

64 During the designations process for the 2008 

ozone NAAQS, the EPA did not identify any 

nonattainment areas as rural transport areas. 

L. How can an area qualify for a 1-year 

attainment deadline extension? 

1. Summary of the Proposal 

Section 181(a)(5) of the CAA 

addresses the conditions under which 

an area may be eligible for a 1-year 

extension of its attainment date. 

Because that statutory provision was 

written for an exceedance-based 

standard, such as the 1-hour ozone 

NAAQS, the EPA established through 

the Phase 1 Rule (40 CFR 51.907) an 

interpretation that would apply to a 

concentration-based standard, such as 

the 1997 ozone NAAQS.61 We proposed 

the same approach as set forth in 40 

CFR 51.907 for purposes of the 2008 

ozone NAAQS, which like the 1997 

ozone NAAQS is a concentration-based 

standard. 

2. Final Action 

The EPA is finalizing the proposed 

approach. An area that fails to attain the 

2008 ozone NAAQS by its attainment 

date would be eligible for the first 1-year 

extension if, for the attainment year, the 

area’s 4th highest daily maximum 8- 

hour average is at or below the level of 

the standard. The area would be eligible 

for the second 1-year extension if the 

area’s 4th highest daily maximum 8- 

hour value, averaged over both the 

original attainment year and the first 

extension year, is at or below the level 

of the standard. Thus, to be eligible for 

the first 1-year extension, the 4th 

highest daily maximum 8-hour value for 

an area would need to be at or below 

0.075 ppm. The area would be eligible 

for the second extension if the area’s 4th 

highest daily maximum 8-hour value, 

averaged over both the original 

attainment year and the first extension 

year, is less than or equal to 0.075 ppm. 

3. Rationale 

This approach is the same approach 

used for implementing the 1997 ozone 

NAAQS. The EPA believes this 

approach makes sense for the 2008 

ozone NAAQS as well. 

4. Comments and Responses 

The EPA received no adverse 

comments on the proposed action. 

M. How will the EPA identify whether a 

potential rural transport nonattainment 

area is adjacent to an urban area? 

1. Summary of Proposal 

The CAA Amendments of 1990 

contained section 182(h) that provides a 

‘‘rural transport’’ determination for 

ozone nonattainment areas that are rural 

in nature and can demonstrate that 

sources in the area do not make a 

significant contribution to ozone 

concentrations measured in the area or 

in other areas. These areas are subject to 

Marginal nonattainment area 

requirements, regardless of the area’s 

classification under CAA section 181(a). 

This distinction was created for rural 

nonattainment areas whose ozone 

problem is the result of ozone and/or 

precursors transport into the area that is 

so overwhelming that the contribution 

of local emissions to ozone 

concentrations above the level of the 

NAAQS is relatively minor and that 

emissions within the area do not 

significantly contribute to ozone 

measured in other areas. 

One qualifying consideration for a 

rural transport area determination is the 

lack of adjacency of the candidate 

nonattainment area’s boundary to 

potentially nearby urban areas. In 

general, we would expect a rural 

nonattainment area that has few or 

insignificant sources of ozone 

precursors, yet has a monitor indicating 

a violation of the NAAQS, to encompass 

a relatively small geographic area due to 

the relative lack of emissions sources.62

The rural transport area criteria in CAA 

section 182(h) restrict rural transport 

areas to those nonattainment areas that 

do not include and are not adjacent to 

any part of a ‘‘Metropolitan Statistical 

Area’’ (MSA) or ‘‘Consolidated 

Metropolitan Statistical Area’’ (CMSA) 

as defined by the U.S. Bureau of the 

Census. In 2000, OMB issued new 

standards 63 for defining statistical areas 

to replace the pre-existing MSA and 

CMSA definitions (65 FR 82228; 

December 27, 2000). Under the 2000 

standards, MSAs are defined as having 

a central county or counties with an 

urbanized area of at least 50,000 people, 

plus adjacent outlying counties having a 

high degree of economic integration 

with the central county, as measured 

through worker commuting ties. 

Multiple counties are included in a 

MSA if at least 25 percent of employed 

residents in the central county commute 

to work in one or more adjacent 

counties. The term CMSA was retired in 

2003 with the introduction of Core 

Based Statistical Area concepts. We 

proposed to interpret the references to 

both MSA and CMSA in CAA section 

182(h) to refer to the new Census 

Bureau definition for the term MSA. 

2. Final Action and Rationale 

We are finalizing, as proposed, the 

interpretation of the references to both 

MSA and CMSA in CAA section 182(h) 

to refer to OMB’s current definition of 

MSA. Accordingly, to qualify as a rural 

transport nonattainment area, the 

nonattainment area’s boundary could 

not include or be adjacent to a current 

OMB-defined MSA. Under this 

approach, any nonattainment area 

associated with a Census-defined 

micropolitan area (areas with central 

county or counties containing an urban 

cluster of 10,000–49,999 people plus 

adjacent counties having a high degree 

of economic and social integration as 

measured through worker commuting) 

or an area too sparsely populated to be 

included in a census-defined statistical 

area, may be able to qualify as a rural 

transport nonattainment area.64 An area 

seeking to be classified as a rural 

transport nonattainment area would also 

need to meet the other criteria specified 

in CAA section 182(h). 

The EPA believes this interpretation 

of CAA section 182(h) is consistent with 

the original scope of CAA section 182(h) 

as promulgated in 1990 and provides 

maximum flexibility for areas to qualify 

for this determination where 

appropriate. We did not receive any 

adverse comments on our proposed 

interpretation. 

N. What are the special requirements for 

multi-state nonattainment areas? 

Each state within a multi-state ozone 

nonattainment area is responsible for 

meeting all the requirements relevant to 

that area. CAA section 182(j)(1)(A) 

requires that states should ‘‘take all 

reasonable steps to coordinate 

substantively and procedurally’’ on SIP 

development. States should coordinate 


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65See http://www.epa.gov/oar/urbanair/

sipstatus/infrastructure.html. 

66 ‘‘Treatment of Data Influenced by Exceptional 

Events; Final Rule’’ (72 FR 13560, March 22, 2007). 

on topics such as determining the 

appropriate modeling domain, baseline 

year, projection years and 

meteorological episodes. In addition, 

they should coordinate modeling efforts 

and, as required by CAA section 

182(j)(1)(B), the attainment 

demonstration must be based on 

photochemical grid modeling or another 

method determined by the EPA to be at 

least as effective. 

CAA section 182(j)(2) recognizes that 

in certain instances, one or more states 

within a multi-state nonattainment area 

may not submit an attainment plan by 

the required date, thus interfering with 

the ability of the area as a whole to 

demonstrate attainment. In such case, 

CAA section 182(j) provides that even 

though the area as a whole would not 

be able to demonstrate attainment, the 

sanction provisions of CAA section 179 

shall not apply in the portion of the 

nonattainment area located in a state 

that submitted all other provisions of an 

attainment plan and demonstrated that 

it could have demonstrated attainment 

but for the failure of the other state to 

cooperate. The EPA did not propose any 

changes to its prior interpretations of 

these sections of the CAA (See 70 FR 

71612), and no comments were received 

on these provisions. Therefore, these 

interpretations will continue to apply 

for purposes of the 2008 ozone NAAQS. 

O. How will the EPA address interstate 

and international ozone transport? 

1. Interstate Transport 

The EPA recognizes that many states 

are affected by transported ozone and 

ozone precursors from upwind states, 

and that transported pollution may 

contribute significantly to air pollution 

that exceeds the NAAQS in those states. 

The CAA establishes states’ 

responsibilities to address interstate 

transport through two provisions. First, 

CAA section 110(a)(2)(D)(i) obligates 

states to include provisions in their 

infrastructure SIPs to prohibit any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment, or 

interfering with maintenance, of the 

NAAQS in another state, from 

interfering with required provisions 

preventing significant deterioration of 

air quality or from interfering with 

measures to protect visibility in another 

state. Second, CAA section 126 directs 

states to include provisions to establish 

a notification process in their 

infrastructure SIPs through which 

downwind jurisdictions can be alerted 

to specific sources of transported 

pollution. The EPA issued its 

‘‘Guidance on Infrastructure State 

Implementation Plan Elements Under 

the Clean Air Act Sections 110(a)(1) and 

110(a)(2),’’ on September 13, 2013,65 on 

the required elements of the CAA 

section 110 infrastructure SIP submittal 

for the 2008 ozone NAAQS. This 

guidance does not, however, address the 

requirements of CAA section 

110(a)(2)(D)(i). The proposal for this 

rulemaking, and this final rule, also do 

not address these requirements relating 

to transport. The EPA will address the 

transport requirements in a separate 

action. 

Where interstate transported 

emissions contribute to an exceedance 

or violation and come from prescribed 

fire, wildfires or other natural sources, 

air agencies may be able to use the 

provisions in the EPA’s Exceptional 

Events Rule (40 CFR 50.14) to request 

exclusion of affected data. Once EPA 

concurs with an air agency’s request, the 

event-influenced data are officially 

noted and removed from the data set 

used to calculate official design values. 

Because of previously expressed 

stakeholder feedback regarding 

implementation of the Exceptional 

Events Rule and specific stakeholder 

concerns regarding the analyses that can 

be used to support ozone-related 

exceptional event demonstrations, the 

EPA intends to propose revisions to the 

Exceptional Events Rule in a future 

notice and comment rulemaking effort 

and will solicit public comment at that 

time. Additionally, the EPA intends to 

develop guidance to address 

implementing the Exceptional Events 

Rule criteria for wildfires that could 

affect ambient ozone concentrations. 

Depending on the nature and scope of 

interstate emission events affecting 

downward air quality, the EPA may be 

able to assist states in developing 

approvable exceptional events 

demonstrations. 

2. International Transport 

Most ozone air quality problems in 

the United States are due primarily to 

emission sources within the United 

States. However, domestic ozone air 

quality can also be affected by sources 

of emissions located across United 

States borders in Canada and Mexico, 

and from other continents. These 

contributions to U.S. ozone 

concentrations from sources outside of 

the United States can affect to varying 

degrees the ability of some areas to 

attain and maintain the 2008 ozone 

NAAQS. The EPA will continue to work 

with our domestic and international 

partners to better understand the extent 

and implications of transboundary flows 

of air pollutants and, where possible, to 

mitigate their impact on U.S. domestic 

air quality. 

a. Summary of the Proposal 

Section 179B of the CAA allows the 

EPA to approve an attainment 

demonstration for a nonattainment area 

if: (1) The attainment demonstration 

meets all other applicable requirements 

of the CAA; and (2) the submitting state 

can satisfactorily demonstrate that ‘‘but 

for emissions emanating from outside of 

the United States,’’ the area would 

attain and maintain the ozone standard. 

The EPA proposed that this could 

include consideration of any emissions 

from North American or 

intercontinental sources. 

b. Final Action and Rationale 

The EPA is finalizing this action as 

proposed. The EPA believes that the 

best approach for addressing the 

potential impacts of international 

transport on nonattainment is for states 

to work with the relevant EPA Regional 

Office on a case-by-case basis to 

determine the most appropriate 

information and analytical methods for 

each area’s unique situation. We will 

work with states that are developing 

plans pursuant to CAA section 179B, 

and ensure the states have the benefit of 

the EPA’s developing understanding of 

international transport of ozone and its 

precursors. 

Although monitored data cannot be 

excluded for a determination of whether 

an area has attained a NAAQS based 

solely on the fact the data are affected 

by emissions from outside the U.S., 

such data may be excluded from 

consideration if they were significantly 

influenced by exceptional events as 

described in CAA section 319(b). Where 

international transport meets the criteria 

and procedural requirements contained 

in the EPA’s Exceptional Events Rule 

(40 CFR 50.14), it may be addressed by 

that rule.66 Depending on the nature and 

scope of international emission events 

affecting air quality in the U.S., the EPA 

may be able to assist states in 

developing approvable exceptional 

events demonstrations. 

c. Comments and Responses 

Comment: One commenter supported 

the EPA’s interpretation of CAA section 

179B to include consideration of any 

emissions from any non-United States 

source and requested confirmation that 

the EPA’s interpretation may be applied 

to areas other than those adjoining 


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67Memorandum dated January 14, 2005, 

‘‘Guidance on Limiting Nitrogen Oxides (NOX) 

Requirements Related to 8-Hour Ozone 

Implementation’’ from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards, to Air 

Directors, Regions I–X. 

68See http://www.epa.gov/airquality/eere.html. 69See http://epa.gov/avert/. 70See http://www.epa.gov/statelocalclimate/

state/topics/energy-efficiency.html. 71See http://www.epa.gov/otaq/stateresources/

policy/pag_transp.htm. 

international borders. The commenter 

believed that CAA section 179B does 

not limit this option to areas, regardless 

of classification and believed that the 

EPA did not provide an explanation for 

why it proposed limiting the availability 

of a determination under CAA section 

179B for Marginal classified areas. 

Response: The EPA appreciates the 

commenter’s support. The EPA has 

interpreted the Act such that CAA 

section 179B allows the EPA to approve 

an attainment demonstration if the state 

can satisfactorily demonstrate that ‘‘but 

for emissions emanating from outside of 

the United States,’’ the area would 

attain and maintain the ozone standard. 

The EPA has historically evaluated 

these demonstrations on a case-by-case 

basis, based on the individual 

circumstances. The EPA does not 

believe this provision is restricted to 

areas adjoining international borders. 

Also, in the proposal the EPA indicated 

that for areas classified as Moderate and 

above, the modeling and other elements 

of the attainment demonstration must 

show timely attainment of the NAAQS 

but for the emissions from outside of the 

U.S. However, if a Marginal area (which 

is not otherwise required to submit an 

attainment demonstration) were to 

submit to the EPA a demonstration that 

they could attain the standard but for 

international emissions, the EPA would 

be able to evaluate that demonstration 

similarly to demonstrations submitted 

by higher classified areas. 

P. How will the CAA section 182(f) NOX

provisions be handled? 

1. Summary of the Proposal 

We proposed, consistent with the 

approach taken in the Phase 2 Rule for 

the 1997 ozone NAAQS and the 2005 

updated guidance, that a previously 

granted NOX exemption (or waiver) 

under the 1-hour or 1997 ozone NAAQS 

would not automatically apply for 

purposes of implementing the 2008 

ozone NAAQS. 

2. Final Action and Rationale 

We are finalizing this approach as 

proposed. A state with a previously 

approved NOX waiver for the 1-hour or 

1997 ozone NAAQS would need to 

submit a new request for an exemption 

that is supported by analyses specific to 

the 2008 ozone NAAQS. The new 

request should consider any relevant 

information developed after the 1-hour 

or 1997 8-hour ozone NAAQS waivers 

were granted. 

The EPA believes that while it may be 

appropriate in certain circumstances to 

grant NOX waivers, these waivers 

should be based upon applications and 

analyses specifically focused on the 

circumstances relevant for attainment of 

the 2008 ozone NAAQS, rather than a 

previous ozone NAAQS, since the 

standards for granting a waiver relate to 

attainment of the relevant NAAQS. 

As states evaluate whether to seek a 

NOX waiver, the EPA encourages them 

to include consideration of air quality 

effects that may extend beyond the 

designated nonattainment area. A 

petition requesting a NOX exemption for 

the 2008 ozone NAAQS must contain 

adequate documentation that the 

provisions of CAA section 182(f), some 

of which relate to attainment impacts in 

other areas, are met. The January 14, 

2005 memo 67 provides guidance on 

appropriate documentation for a waiver 

request for application to the 8-hour 

ozone program. The EPA believes this 

guidance is sufficient to cover the 2008 

ozone NAAQS. 

3. Comments and Responses 

Comment: One commenter stated that 

the EPA should avoid granting NOX

exemptions for nonattainment areas that 

use NOX controls from other programs 

to demonstrate attainment and/or to 

address other provisions of the CAA. 

Response: In order to request a NOX

exemption, a state must submit a 

petition specific to the 2008 ozone 

NAAQS. This petition must specifically 

address the provisions of CAA section 

182(f). The EPA will grant NOX

exemptions only through notice-andcomment rulemaking where the public 

will have an opportunity to address 

whether the petition complies with the 

provisions of CAA section 182(f). In 

granting waivers, the EPA will take into 

consideration existing NOX controls in 

an area. 

Q. Emissions Reduction Benefits of 

Energy Efficiency/Renewable Energy 

Policies and Programs, Land Use 

Planning and Travel Efficiency 

1. Energy Efficiency/Renewable Energy 

Policies and Programs 

Energy efficiency and renewable 

energy (EE/RE) policies and programs 

are adopted by federal, state and local 

governments to lower energy demand 

through the use of more energy efficient 

equipment, technologies and practices 

and to transition to cleaner energy. 

These policies help reduce electricity 

generation from fossil-fueled sources, 

which, in turn, can result in lower 

emissions of NOX (as well as other 

criteria pollutants, hazardous air 

pollutants and greenhouse gases). 

Energy efficiency policies offer cost 

savings benefits, and can be a costeffective strategy to help achieve air 

quality goals. The EPA encourages state 

adoption of these policies and programs 

to benefit nonattainment areas and to 

reduce the impact of ozone transport on 

downwind areas. 

In July 2012, the EPA released the 

‘‘Roadmap for Incorporating Energy 

Efficiency/Renewable Energy Policies 

and Programs into State and Tribal 

Implementation Plans (SIPs/TIPs)’’ 68 to 

clarify guidance on the incorporation of 

EE/RE measures in SIPs/TIPs. The 

Roadmap is a ‘‘living’’ document that 

will be updated periodically as new 

information becomes available. The 

Roadmap describes four pathways that 

states can use for considering air 

pollution reductions from EE/RE 

policies and programs in SIPs and TIPs. 

Valid EE/RE policies and programs that 

meet the applicable requirements of 

CAA section 182(c)(9) can also be used 

as contingency measures. 

In addition to the Roadmap, the EPA 

is providing training and technical 

assistance to state, tribal and local 

agencies, as well as tools for quantifying 

the emissions impacts of EE/RE policies 

and programs (i.e., the AVoided 

Emissions genERation Tool, AVERT),69

and energy savings information for 

state-level EE policies and programs.70

The EPA is also working with states to 

develop examples that illustrate how 

reductions from specific EE/RE policies 

and programs could be quantified and 

considered in SIPs. 

2. Land Use Planning 

States may also wish to consider 

strategies that foster more efficient 

urban and regional development 

patterns as a long-term air pollution 

control measure. Resources include the 

HUD DOT EPA Sustainable 

Communities Partnership, as well as the 

policy and technical guidance 

documents on land use available on the 

EPA’s Office of Transportation and Air 

Quality Web site.71 These documents 

provide communities with the 

information they need to better 

understand the link between air quality, 

transportation and land use activities, 

and how certain land use activities have 

the potential to help local areas achieve 

and maintain healthy air quality. The 


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72See http://www.epa.gov/otaq/stateresources/

policy/pag_transp.htm. 

documents also include methods to help 

communities account for the air quality 

benefits of their local land use activities 

in their air quality plans. If wildfire 

impacts are significant in a particular 

area, air agencies and communities may 

be able to lessen the impacts of wildfires 

by working collaboratively with land 

managers and land owners to employ 

various mitigation measures including 

taking steps to minimize fuel loading in 

areas vulnerable to fire. The EPA will 

provide additional guidance as needed, 

and will continue to work with states on 

incorporating these types of programs 

into their SIPs. 

3. Travel Efficiency 

Areas may also consider incorporating 

travel efficiency strategies, such as new 

or expanded mass transit options, 

commuter strategies, system operations 

(e.g., eco-driving, ramp metering), 

pricing (e.g., parking taxes, congestion 

pricing, intercity tolls), speed limit 

restrictions and multimodal freight 

strategies in their SIPs. In March of 

2011, the EPA released two documents 

that we believe will prove to be useful 

to states that want to evaluate emissions 

reductions that may be available from 

travel efficiency strategies. The first 

document is titled, ‘‘Potential Changes 

in Emissions Due To Improvements in 

Travel Efficiency.’’ This report provides 

information on the effectiveness of 

travel efficiency measures for reducing 

emissions of NOX, VOC and PM2.5 at the 

national scale. The second document is 

titled, ‘‘Transportation Control 

Measures: An Information Document for 

Developing and Implementing Emission 

Reduction Programs.’’ This document 

provides information on transportation 

control measures that have been 

implemented across the country for a 

variety of purposes, including reducing 

emissions related to criteria pollutants. 

These documents are available on the 

EPA’s Office of Transportation and Air 

Quality Web site.72

R. Efforts To Encourage a MultiPollutant Approach When Developing 

2008 Ozone SIPs 

1. Summary of the Proposal 

The EPA stated in the proposal that 

from a planning and resource 

perspective, we believe it can be 

efficient for states to develop integrated 

control strategies that address multiple 

pollutants rather than separate strategies 

for each pollutant or NAAQS 

individually. The EPA also provided 

states with recommendations and 

considerations to take into account 

when developing a comprehensive 

approach. The EPA requested comment 

on what incentives or assistance we 

might be able to provide to encourage 

states to integrate their planning 

activities. 

2. Final Action and Rationale 

From a planning and resource 

perspective, the EPA continues to 

believe that multi-pollutant control 

strategy planning can be efficient for 

states. An integrated air quality control 

strategy that reduces multiple pollutants 

can help ensure that reductions are 

efficiently achieved and produce the 

greatest overall air quality benefits. 

However, multi-pollutant approaches 

are not required as part of this rule. 

States may also find it desirable to 

assess the impact of ozone, PM2.5 and/ 

or regional haze control strategies on 

toxic air pollutants regulated under the 

CAA or under state air toxics initiatives. 

Given the relationships that exist 

between toxic air pollutants and the 

formation of ozone and PM2.5, states and 

sources may find that controls can be 

selected to meet goals for ozone and/or 

PM2.5 attainment as well as those of 

specific toxic air pollutant programs. 

We recommend that states and tribes 

wishing to take a comprehensive 

approach consider the following 

activities: 

• Choose or develop models for use 

in the attainment demonstration that 

can assess the air quality and ecosystem 

impacts of measures to reduce ozone 

precursors, secondary fine particles, 

pollutants that contribute to regional 

haze and, where appropriate, toxic air 

pollutants and other related pollutants 

that can impact ecosystems. 

• Conduct an integrated assessment 

of the impact controls have on ambient 

levels of ozone, PM2.5, regional haze 

and, where applicable, toxic air 

pollutants, greenhouse gases, ecosystem 

protection and environmental justice 

considerations. 

• Use common data bases and 

analytical tools, where possible. 

3. Comments and Responses 

Comment: Several commenters 

supported the use of a multi-pollutant 

approach. One commenter encouraged 

the EPA to allow states to take credit for 

programs that may not yet have been 

fully implemented. Another commenter 

noted the constraints in the CAA, which 

focuses on a pollutant-by-pollutant 

approach, and another commenter 

stated that they prefer a single pollutant 

approach. 

Response: The EPA supports multipollutant planning, where possible. 

Regarding the comment encouraging the 

EPA to allow states to take credit for 

programs that may not yet have been 

fully implemented, please see Section 

III.B in the preamble for details 

regarding the EPA’s final policy on this 

subject. 

The EPA also supports considering 

the co-benefits of emissions reductions 

on multiple pollutants. We acknowledge 

that there are CAA constraints that may 

limit the incentive for multi-pollutant 

planning, and clarify that singlepollutant planning is acceptable under 

the Act. 

S. What are the requirements for the 

OTR? 

The EPA proposed to adopt for the 

2008 ozone NAAQS the same 

requirements applicable to the OTR that 

were codified in 40 CFR 51.916 for the 

1997 ozone NAAQS, except that the 

submission date for OTR RACT SIPs 

required under CAA section 182(b)(2) 

would be the same as provided under 

the RACT section of this regulation for 

nonattainment areas. (See Section III.A 

of this preamble for additional 

information on SIP submittal 

timeframes.) We are finalizing adoption 

of the requirements as proposed along 

with the OTR RACT SIP submittal due 

date. 

T. Are there any additional 

requirements related to enforcement 

and compliance? 

The EPA did not propose any specific 

regulatory provisions related to 

compliance and enforcement. CAA 

section 172(c)(6) requires nonattainment 

SIPs to ‘‘include enforceable emission 

limitations, and such other control 

measures, means or techniques . . . as 

well as schedules and timetables for 

compliance, as may be necessary or 

appropriate to provide for attainment 

. . .’’ The EPA’s current guidance, 

‘‘Guidance on Preparing Enforceable 

Regulations and Compliance Programs 

for the 15 Percent Rate-of-Progress Plans 

(EPA–452/R–93–005, June 1993)’’ is still 

relevant to rules adopted for SIPs under 

the 2008 ozone NAAQS and should be 

consulted for purposes of developing 

appropriate enforceable nonattainment 

plan provisions under CAA section 

172(c)(6). The EPA did not solicit 

comment on this section and thus, none 

were received. 

U. What are the requirements for 

addressing emergency episodes? 

1. Summary of the Proposal 

The EPA proposed that the existing 

requirements for emergency episodes 

(40 CFR part 51, subpart H) would also 

apply to the 2008 ozone NAAQS. 


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73On January 17, 2014, the United States Court 

of Appeals for the District of Columbia Circuit 

issued a decision vacating the EPA’s 2011 rule 

titled ‘‘Review of New Sources and Modifications 

in Indian Country’’ (76 FR 38748) with respect to 

non-reservation areas of Indian country (See, 

Oklahoma Department of Environmental Quality v. 

EPA, 740 F.3d 185 (D.C. Cir. 2014)). Under the 

court’s reasoning, with respect to CAA SIPs, a state 

has primary regulatory jurisdiction in nonreservation areas of Indian country (i.e., Indian 

allotments located outside of reservations and 

dependent Indian communities) within its 

geographic boundaries unless the EPA or a tribe has 

demonstrated that a tribe has jurisdiction over a 

particular area of non-reservation Indian country 

within the state. 

74The EPA’s Classifications Rule for the 2008 

ozone NAAQS also provided that the 1997 ozone 

NAAQS would be revoked 1 year after the effective 

date of initial area designations for the 2008 ozone 

NAAQS for purposes of transportation conformity. 

The D.C. Circuit held that the EPA lacked authority 

for such a partial revocation, but did not question 

its authority to revoke a standard in total. NRDC v. 

EPA (D.C. Cir. No. 12–1321, Dec 23, 2014). Today’s 

revocation of the standard is for all purposes, 

including transportation conformity. 

75The 1-hour ozone NAAQS was revoked in the 

Phase 1 Rule. See 69 FR 23951, April 30, 2004. The 

D.C. Circuit upheld EPA’s authority to revoke that 

standard so long as it introduces adequate antibacksliding measures. South Coast Air Quality 

Management Dist. v. EPA, 472 F.3d 882, 899 (D.C. 

Cir. 2007). 

2. Final Action and Rationale 

The EPA did not receive any adverse 

comments on the proposal. The EPA is 

finalizing the requirements for 

emergency episodes as proposed. The 

EPA believes the existing requirements 

for emergency episodes (40 CFR part 51, 

subpart H) remain appropriate for the 

2008 ozone NAAQS and/or any current 

ozone NAAQS. If wildfire is a potential 

contributor to these episodes, the EPA 

urges implementing state and local 

agencies to coordinate with the land 

management agencies, as appropriate, in 

developing plans and appropriate 

public communications regarding 

public safety and reducing exposure. 

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

apply to the 2008 ozone NAAQS? 

1. Summary of the Proposal 

The EPA proposed to apply the same 

approach with respect to the Clean Data 

Policy for the 2008 ozone NAAQS as it 

applied in the Phase 1 Rule for the 1997 

ozone NAAQS. That is, a determination 

of attainment would suspend the 

obligation to submit attainment 

planning SIP elements for the 2008 

ozone NAAQS. Such a determination 

would suspend the obligation to submit 

any attainment-related SIP elements not 

yet approved in the SIP, for so long as 

the area continues to attain the 2008 

ozone NAAQS. 

2. Final Action 

The EPA is finalizing this action as 

proposed. The EPA is replacing 40 CFR 

51.918 with 40 CFR 51.1118 to 

consolidate in one regulation a 

comprehensive provision applicable to 

determinations of attainment for the 

current and former ozone NAAQS. 

Thus, 40 CFR 51.1118 will apply to a 

determination of attainment that is 

made with respect to any revoked or 

current ozone NAAQS—the 1-hour, the 

1997 or the 2008 ozone NAAQS. 

3. Rationale 

The EPA continues to believe that it 

is appropriate for an area that has met 

an ozone NAAQS to suspend further 

attainment planning efforts for that 

ozone NAAQS. The new 40 CFR 

51.1118 sets forth the regulatory 

consequences of an EPA determination, 

made after notice-and-comment 

rulemaking, that an area designated 

nonattainment for an ozone standard 

has air quality attaining that standard. 

Upon such a determination by the EPA, 

the requirements for the area to submit 

an attainment demonstration, associated 

reasonably available control measures, 

RFP plans, contingency measures and 

other attainment-related planning 

requirements for that NAAQS, shall be 

suspended until such time as the area is 

redesignated to attainment, at which 

time the requirements no longer apply, 

or until the EPA determines that the 

area has again violated that ozone 

NAAQS, in which case the requirements 

are again applicable. 

4. Comments and Responses 

Comment: Several commenters 

supported the continued use of the 

Clean Data Policy. One of these 

commenters requested that the EPA 

expeditiously redesignate areas using its 

CAA section 107(d)(3) authority for 

states that have submitted ‘‘clean data’’ 

certification and redesignation/

maintenance SIPs. 

Response: As stated in the policy, the 

requirements for an attainment 

demonstration, RFP and contingency 

measures are designed to bring an area 

into attainment. Once this goal has been 

achieved, we believe the statute no 

longer requires submission of plans 

designed to bring the area into 

attainment and thus it is appropriate to 

suspend the obligation that states 

submit plans to meet that goal, so long 

as the area continues to attain the 

relevant standard. The EPA Regional 

Offices will act on redesignating areas 

based on any CAA section 175A 

submittals that were received in as 

expeditious a manner as possible. 

W. How does this final rule apply to 

tribes? 

As we mentioned in the proposal, 

tribes are generally not required to 

submit tribal implementation plans 

(TIPs).73 However, should a tribe choose 

to develop a TIP, this final rule is 

intended to serve as a guide for 

addressing key implementation issues 

for their area of Indian country. This 

rule will likely be especially useful to 

those tribes whose areas of Indian 

country were designated as separate 

nonattainment areas from surrounding 

state areas. 

X. What collaborative program has the 

EPA implemented for the 2008 ozone 

NAAQS? 

The EPA stands ready to assist states 

in implementing the 2008 ozone 

NAAQS. The Ozone Advance program, 

which began in April 2012, is an 

opportunity for 2008 ozone NAAQS 

attainment areas to work collaboratively 

with EPA to improve local air quality. 

Information on the Ozone Advance 

program for the 2008 ozone NAAQS is 

provided in a separate guidance 

document that is available at http://

www.epa.gov/ozonepmadvance. 

IV. What are the anti-backsliding 

requirements for the revoked 1997 

ozone NAAQS? 

A. What is the effective date of the 

revocation of the 1997 ozone NAAQS? 

1. Summary of the Proposal 

The EPA proposed to exercise its 

authority to revoke the 1997 ozone 

NAAQS for all purposes upon the 

publication of the final SIP 

Requirements Rule in the Federal 

Register.74 The EPA also proposed that 

anti-backsliding provisions would apply 

to an area in accordance with its 

designation and, as applicable, its 

classification, for the 1997 (and, if 

applicable, 1-hour) ozone NAAQS at the 

time of revocation of the 1997 ozone 

NAAQS. The following sections discuss 

in detail the applicable anti-backsliding 

requirements and how they apply to 

areas with various designations and 

classifications for the 2008 and the soon 

to be revoked 1997 and the already 

revoked 1-hour ozone NAAQS.75

2. Final Action 

The EPA is revoking the 1997 ozone 

NAAQS for all purposes upon the 

effective date of this final rule, which 

will be 30 days after publication of this 

rule in the Federal Register. When the 

1997 ozone NAAQS is revoked, the antibacksliding requirements for that 

NAAQS, as detailed in this final 

rulemaking, become applicable. The 


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76Although 40 CFR 51.905(a) specified that the 

anti-backsliding requirements ‘‘attached’’ at the 

time of designation for the 1997 ozone NAAQS, 

areas were still able to redesignate to attainment for 

the 1-hour ozone NAAQS up to the date of 

revocation of that standard. 

77See, for example, the redesignations to 1-hour 

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

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

occurred right up until the June 15, 2005 effective 

date of revocation of the 1-hour ozone NAAQS. 

78When the EPA revises a NAAQS, the prior 

NAAQS is not automatically revoked. Accordingly, 

both the 1997 ozone NAAQS and the more stringent 

2008 ozone NAAQS are active standards unless and 

until the EPA takes action to revoke the previous 

1997 ozone NAAQS, subject to appropriate antibacksliding requirements. 

extent of continued implementation 

efforts for a revoked standard derives 

from administration of anti-backsliding 

requirements for the revoked standard. 

After the revocation of the 1997 ozone 

NAAQS, the EPA will no longer be able 

to take action to reclassify or to 

redesignate areas for that standard. 

After revocation of the 1997 standard, 

the designations (and the classifications 

associated with those designations) for 

that standard are no longer in effect, and 

the sole designations that remain in 

effect are those for the 2008 ozone 

NAAQS. However, the EPA is retaining 

the listing of the designated areas for the 

revoked 1997 ozone NAAQS in 40 CFR 

part 81, for the sole purpose of 

identifying the anti-backsliding 

requirements that may apply to the 

areas at the time of revocation. 

Accordingly, such references to 

historical designations for the revoked 

standard should not be viewed as 

current designations under CAA section 

107(d). 

3. Rationale 

This approach of establishing antibacksliding requirements is consistent 

with the EPA’s practice in the transition 

from the 1-hour to the 1997 ozone 

NAAQS. It is not logical to attach to an 

area any anti-backsliding requirements 

for the revoked 1997 NAAQS until that 

NAAQS is revoked because up until 

revocation, implementation of the 1997 

NAAQS is still adequately governed by 

the relevant CAA and regulatory 

provisions, and the EPA can still take 

actions to redesignate or reclassify areas 

for that standard.76 77 In fact, the status 

of many areas with respect to 

designation and classification for the 

1997 ozone NAAQS has already 

changed since promulgation of the 2008 

ozone NAAQS. Thus, the EPA 

concludes that it is reasonable to 

establish the date of revocation of the 

1997 ozone NAAQS as the time for antibacksliding requirements for that 

NAAQS to take effect, which is 

consistent with past practice under the 

Phase 1 Rule. 

The EPA believes it is appropriate to 

revoke rather than retain the 1997 ozone 

NAAQS for all purposes.78 This final 

action ensures that only one ozone 

NAAQS—the more protective 2008 

ozone NAAQS—directly applies, rather 

than having two standards apply 

concurrently. In revoking any standard, 

the EPA provides adequate antibacksliding requirements. 

We believe that revoking the 1997 

ozone NAAQS is appropriate for all 

purposes. The EPA believes that the 

permanent retention of two standards, 

differing only in the ozone 

concentrations they allow, creates 

unnecessary complexity and is not 

necessary to provide for attainment of 

the more stringent NAAQS. The EPA’s 

reason for establishing the new 

standards of 0.075 ppm as requisite to 

protect public health and welfare was 

its conclusion that the old standard of 

0.08 ppm was not adequate. Revoking 

(with appropriate anti-backsliding 

measures) rather than retaining that 

1997 ozone NAAQS will facilitate a 

more seamless transition to 

demonstrating compliance with the 

more health and welfare protective 2008 

ozone NAAQS, and will ensure the most 

efficient use of state and local resources 

in working toward attainment of that 

standard. Moreover, we believe that by 

requiring adequate anti-backsliding 

measures we will ensure continued 

momentum in states’ efforts toward 

achieving cleaner air. 

4. Comments and Responses 

Comment: One commenter recognized 

the EPA’s authority to revoke the 1997 

ozone NAAQS, but opposed the 

revocation because attainment of the 

1997 NAAQS would advance progress 

toward the 2008 standard and ensures 

that such progress would be made 

sooner rather than later. The commenter 

indicated that the EPA’s proposal to 

revoke the 1997 ozone NAAQS would 

waive key requirements for Extreme 

nonattainment areas under the 1997 

standard before the deadline comes due. 

The commenter also stated that the EPA 

must explain the specific problems 

caused by retaining the 1997 (and 1- 

hour) ozone NAAQS and tailor the 

solutions to address those specific 

problems, citing several rulings that the 

commenter believed that the EPA must 

provide a rational basis for their action. 

Response: The anti-backsliding 

approach that the EPA proposed retains 

all applicable control requirements for 

the 1997 ozone NAAQS, while enabling 

areas, where possible, to focus planning 

efforts on meeting the more protective 

2008 ozone NAAQS. We believe the 

strong anti-backsliding provisions in 40 

CFR 51.1105 will ensure that controls 

already adopted to attain the previous 

NAAQS continue to be implemented 

until an area attains the 2008 ozone 

NAAQS, and will also ensure that there 

will be no delay in attaining the 1997 

ozone NAAQS. Since it is impossible to 

attain the 2008 ozone NAAQS without 

also attaining the 1997 ozone NAAQS, 

retaining the 1997 ozone NAAQS would 

be largely superfluous from a health 

protection standpoint. 

The EPA agrees with the commenter 

that the adopted revocation approach 

means that the 1997 NAAQS would be 

revoked before the statutory maximum 

attainment date for areas classified as 

Severe and Extreme for the 1997 ozone 

NAAQS. We believe that Congress 

understood this possibility when it 

amended the CAA in 1990 to require the 

EPA to review each NAAQS every 5 

years. Similarly, Congress also 

recognized that areas with more 

significant ozone problems would need 

more time to attain the standard, and 

gave these areas more time to attain the 

standard, with timeframes for 

attainment largely beyond the 5-year 

timeframe required for review of the 

NAAQS. The EPA does not agree with 

the commenter’s characterization of 

revoking the NAAQS, while retaining a 

retinue of anti-backsliding 

requirements, as creating perpetual 

extensions for attaining old standards. 

The commenter’s argument ignores the 

fact that the old standard has been 

supplanted by a more protective 

standard, and that the EPA’s antibacksliding requirements, combined 

with the CAA’s new obligations to 

achieve the more stringent 2008 ozone 

NAAQS as expeditiously as practicable, 

effectively fulfill the function of the 

prior attainment date. In addition the 

EPA notes that the attainment 

demonstration for the prior standard is 

retained as an anti-backsliding measure. 

The EPA believes that integrating 

prior requirements with new goals 

facilitates coherent, effective and timely 

planning and controls, and minimizes 

the separate potentially duplicative 

submittal of requirements left over from 

obsolete standards. In this time of 

diminished resources, the states and the 

EPA need to move forward efficiently 

without being overburdened by 

unnecessary paperwork requirements 

arising from former standards that can 

detract from efficient movement 

towards more stringent standards. 

For these reasons, and consistent with 

the anti-backsliding regime previously 

endorsed by the D.C. Circuit, South 

Coast Air Quality Management Dist. v. 


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79Under CAA section 202(a)(6), the EPA found 

that onboard refueling vapor recovery (ORVR) 

systems are in widespread use in the motor vehicle 

fleet and waived the CAA section 182(b)(3) Stage 

II vapor recovery requirement for Serious and 

higher ozone nonattainment areas on May 16, 2012 

(77 FR 28772). Thus, in the proposal, the section 

182(b)(3) Stage II requirement is omitted from the 

list of applicable requirements in 40 CFR 

51.1100(o). 

80South Coast Air Quality Management District v. 

EPA, 472 F.3d at 899. 

81 Greenbaum v. EPA, 370 F.3d 527, 536 (6th Cir. 

2004). ‘‘It would make little sense for 

[nonattainment NSR] to be included in the postattainment SIP, as the Clean Air Act . . . explicitly 

states that attainment area SIPs must include a PSD 

program.’’ 

EPA, 472 F.3d 882 for the transition 

from the 1-hour to the 1997 ozone 

NAAQS, the EPA believes that the 

revocation and associated antibacksliding measures for the 2008 ozone 

NAAQS provide the appropriate way to 

move toward attaining the more 

protective standards in a timely and 

effective manner, while ensuring that 

progress made under previous ozone 

NAAQS is not lost. For additional 

details, please refer to the Response to 

Comments document. 

Comment: A number of commenters 

in favor of revocation of the 1997 ozone 

NAAQS suggested alternate dates for 

revocation. Several commenters wanted 

an earlier date for revocation, such as 

the promulgation date of the 2008 ozone 

NAAQS or the effective date of 

designations for the 2008 ozone 

NAAQS. One of these commenters 

questioned whether the revocation 

would occur on the date of publication 

of the rule in the Federal Register or on 

the effective date of the rule. 

Response: We disagree with 

commenters that recommended that the 

EPA revoke the 1997 ozone NAAQS at 

an earlier date. We believe that revoking 

the 1997 ozone NAAQS prior to the 

establishment of clear anti-backsliding 

requirements would create a gap in air 

quality protection and that South Coast 

v. EPA, 472 F.3d 882 indicates that 

backstops to prevent relaxation of 

measures implemented for a previous 

NAAQS must be in place before the EPA 

can revoke that NAAQS. The EPA, upon 

considering the comment on the 

effective date of revocation, clarifies 

here that the 1997 ozone NAAQS will 

be revoked on the rule’s effective date 

as set forth in the Federal Register. That 

is, the 1997 ozone NAAQS will be 

revoked 30 days after publication of the 

final rule in the Federal Register. 

B. What are the applicable requirements 

for anti-backsliding purposes following 

the revocation of the 1997 ozone 

NAAQS? 

1. Summary of the Proposal 

The EPA proposal stated that subpart 

AA, 40 CFR 51.1100 et seq., would 

provide comprehensive anti-backsliding 

requirements for transition to the 2008 

ozone NAAQS. The EPA proposed that, 

upon revocation of the 1997 ozone 

NAAQS, subpart X, 40 CFR 51.900 et 

seq., would be effectively replaced by 

the proposed subpart AA. 

In proposed subpart AA, 40 CFR 

51.1100(o) specified the list of 

‘‘applicable requirements’’ that would 

apply as anti-backsliding requirements 

for the transition from the 1997 ozone 

NAAQS to the 2008 ozone NAAQS. The 

EPA proposed as ‘‘applicable 

requirements’’ the requirements that 

were previously listed in 40 CFR 

51.900(f) (except for Stage II vapor 

recovery),79 as well as the addition of 

three anti-backsliding requirements that 

were included as a result of the South 

Coast v. EPA 80 decision: Nonattainment 

NSR thresholds and offset ratios, 

nonattainment contingency measures 

for failure to attain by the applicable 

deadline or to meet RFP milestones, and 

CAA section 185 fee program 

requirements. Since the South Coast v. 

EPA decision, the EPA has been 

including these three requirements as 

anti-backsliding requirements for the 1- 

hour ozone NAAQS for the purpose of 

discharging its obligations to effectuate 

anti-backsliding for that standard. The 

proposed action would formally list 

them with the other applicable 

requirements. 

The applicable requirements 

discussed previously apply to areas that 

are designated nonattainment for the 

2008 ozone NAAQS and remain 

nonattainment for a previous ozone 

NAAQS on the date the 1997 ozone 

NAAQS is revoked. For areas designated 

attainment for the 2008 ozone NAAQS 

but nonattainment for the 1997 ozone 

NAAQS, the EPA proposed that after the 

1997 ozone NAAQS is revoked, these 

areas would not be required to retain in 

their SIPs nonattainment NSR programs 

for ozone. Instead, such areas would be 

required to implement PSD 

requirements for ozone. The EPA’s 

determination that after revocation of 

the 1997 ozone NAAQS nonattainment 

NSR requirements do not apply to areas 

designated attainment for the 2008 

ozone NAAQS is consistent with the 

Greenbaum v. EPA decision.81

Based on requirements in the Phase 1 

rule for the 1997 ozone NAAQS, as 

modified in light of South Coast v. EPA, 

the definition of applicable 

requirements proposed in 40 CFR 

51.1100(o) included the following: (1) 

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

Major source applicability cut-offs for 

purposes of RACT; (4) ROP and/or RFP 

reductions; (5) the Clean fuels fleet 

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

CAA; (6) Clean fuels for boilers under 

section 182(e)(3) of the CAA; (7) 

Transportation control measures during 

heavy traffic hours as provided under 

section 182(e)(4) of the CAA; (8) 

Enhanced (ambient) monitoring under 

section 182(c)(1) of the CAA; (9) 

Transportation controls under section 

182(c)(5) of the CAA; (10) Vehicle miles 

traveled provisions under section 

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

requirements under section 182(f) of the 

CAA; (12) Attainment demonstrations; 

(13) Nonattainment contingency 

measures; (14) Nonattainment NSR 

requirements; and (15) CAA section 185 

enforcement requirements for Severe 

and Extreme nonattainment areas for 

failure to attain. 

As part of the proposal, the EPA 

indicated that upon revocation of the 

1997 ozone NAAQS, the designations 

for that NAAQS would have no further 

effect except as references for antibacksliding purposes. References to the 

designations for the revoked standard in 

40 CFR part 81 would be retained solely 

for anti-backsliding purposes for areas 

designated nonattainment for the 2008 

ozone NAAQS, and should not be 

viewed as current nonattainment 

designations under CAA § 107 within 

the meaning of 40 CFR 51.166(i)(2) and 

52.21(i)(2) and, therefore, would not 

trigger the exemption from PSD 

requirements otherwise resulting from 

those provisions. The proposal also 

requested comment as to whether or not 

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

and 52.21(i)(2) would be appropriate to 

make it clear that a nonattainment 

designation for a revoked NAAQS, once 

the revocation becomes effective in an 

area, would not trigger the PSD 

exemption in those provisions and 

would not prevent application of PSD 

requirements for that pollutant and how 

to word such an amendment. 

Alternatively, the EPA sought comment 

as to whether it would be sufficient for 

the EPA to articulate the interpretation 

of these provisions as described earlier 

in this paragraph. 

2. Final Action 

The EPA is finalizing the antibacksliding requirements as proposed, 

including amendments to 51.166(i)(2) 

and 52.21(i)(2) which address 

classifications for revoked NAAQS. The 

amended subpart AA addresses antibacksliding requirements for both the 

previously revoked 1-hour ozone 

NAAQS and the 1997 ozone NAAQS in 

a consolidated and streamlined fashion. 

Areas designated nonattainment for the 


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82Note that some areas designated as 

nonattainment for the 1997 NAAQS might also 

retain anti-backsliding requirements for the already 

revoked 1-hour ozone NAAQS. 

83 It should be noted that replacement of 

nonattainment NSR SIP provisions with PSD upon 

successful redesignation to attainment does not 

relieve sources of their obligations under previously 

established permit conditions. 

84See 78 FR 34178, June 6, 2013. 

85See 77 FR 28772. 

2008 ozone NAAQS and also designated 

nonattainment for the 1997 ozone 

NAAQS 82 at the time of revocation of 

the 1997 ozone NAAQS will be subject 

to 40 CFR 51.1100(o). As proposed, 

areas designated attainment for the 2008 

ozone NAAQS and nonattainment for 

the 1997 ozone NAAQS when the 1997 

ozone NAAQS is revoked will become 

subject to PSD requirements rather than 

nonattainment NSR requirements once 

the revocation is effective. 

Also as proposed, three items are 

being added to the list of applicable 

requirements: Nonattainment 

contingency measures, nonattainment 

NSR requirements (clarified to refer to 

major source thresholds and offset 

ratios), and CAA section 185 

requirements for Severe and Extreme 

areas. As proposed, Stage II vapor 

recovery is not being included in the list 

of applicable requirements for the 

reasons described above. 

Based on feedback received during 

the comment period, the EPA is 

specifically including two additional 

items in the list of applicable 

requirements: RACM and CAA section 

182(e)(5) contingency measures. These 

provisions were implicitly included in 

the attainment demonstration but are 

listed separately for clarification. As 

such, the complete list of applicable 

requirements in 40 CFR 51.1100(o) is: 

(1) RACT; (2) Vehicle I/M programs; (3) 

Major source applicability cut-offs for 

purposes of RACT; (4) ROP and/or RFP 

reductions; (5) the Clean fuels fleet 

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

CAA; (6) Clean fuels for boilers under 

section 182(e)(3) of the CAA; (7) 

Transportation control measures during 

heavy traffic hours as provided under 

section 182(e)(4) of the CAA; (8) 

Enhanced (ambient) monitoring under 

section 182(c)(1) of the CAA; (9) 

Transportation controls under section 

182(c)(5) of the CAA; (10) Vehicle miles 

traveled provisions under section 

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

requirements under section 182(f) of the 

CAA; (12) Attainment demonstrations; 

(13) Nonattainment contingency 

measures; (14) Nonattainment NSR 

major source thresholds and offset 

ratios; 83 (15) CAA section 185 

requirements for Severe and Extreme 

areas for failure to attain; (16) RACM; 

and (17) Contingency measures for SIPs 

invoking section 182(e)(5) of the CAA. 

3. Rationale 

As detailed in the proposal,84 the EPA 

already treats nonattainment 

contingency measures, nonattainment 

NSR major source thresholds and offset 

ratios, and CAA section 185 

requirements for Severe and Extreme 

areas as being included in the list of 

applicable requirements that apply to 

areas for anti-backsliding purposes 

under the revoked 1-hour NAAQS, 

consistent with the South Coast v. EPA 

decision. Their explicit inclusion in this 

list is to formalize their place in the list 

of applicable requirements. Similarly, 

Stage II vapor recovery is not included 

in this list due to the May 16, 2012 

determination 85 that the requirement is 

waived, and that an area currently 

implementing a Stage II control program 

can, under certain circumstances, 

remove it from the SIP. These changes 

to the list of applicable requirements 

reflect policies already being 

implemented by the EPA. 

Similarly, areas designated attainment 

for the 2008 ozone NAAQS and 

nonattainment for the 1997 ozone 

NAAQS when the 1997 ozone NAAQS 

is revoked will become subject to PSD 

rather than nonattainment NSR once the 

revocation takes effect. An area that is 

attainment for the 2008 ozone NAAQS 

is attaining the most current and health 

protective ozone standard. The EPA 

believes that Congress did not intend to 

hold such an area to the requirements 

for an old standard when the area has 

met a newer, more stringent standard of 

the same form. Such areas will 

implement PSD for the 2008 ozone 

NAAQS once the revocation of the 1997 

ozone NAAQS takes effect, 

notwithstanding any remaining 

references to nonattainment 

designations for the 1997 ozone NAAQS 

in 40 CFR part 81. The references to the 

designations for the revoked standard in 

40 CFR part 81 are retained solely for 

anti-backsliding purposes for areas 

designated nonattainment for the 2008 

ozone NAAQS. Accordingly, such 

references to historical nonattainment 

designations for the revoked standard 

should not be viewed as current 

nonattainment designations under CAA 

§ 107 within the meaning of 40 CFR 

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

therefore, do not trigger the exemption 

from PSD requirements otherwise 

resulting from those provisions. 

Upon reviewing comments, the EPA 

decided that sufficient arguments were 

provided to append two additional 

items to the list of applicable 

requirements in 51.1100(o). Those two 

items are RACM and 182(e)(5) 

contingency measures. The EPA views 

this as a clarification, rather than as an 

addition of control elements. 

Attainment demonstration SIPs are 

already listed as an applicable 

requirement. RACM is an integral part 

of an approvable attainment 

demonstration. Similarly, contingency 

measures will become a required 

element of 51.1100(o) consistent with 

the South Coast v. EPA decision. 

Adding contingency measures 

associated with CAA section 182(e)(5) to 

the list is a clarification, rather than an 

imposition of an additional 

requirement. 

4. Comments and Responses 

Comment: A commenter pointed out 

that, with regard to applicable 

requirements, federal measures and 

locally implemented measures are held 

to two separate standards. The 

commenter used the example of Stage II 

vapor recovery. The EPA removed Stage 

II vapor recovery from the list of 

applicable requirements. However, 

locally implemented control measures 

included in a SIP for a previous NAAQS 

must be retained in perpetuity. 

Response: The EPA disagrees with the 

commenter. SIP-approved control 

measures, whether federal programs or 

locally implemented measures, may not 

be modified unless the modification 

meets the requirements of CAA section 

110(l) and, if applicable, CAA section 

193. For purposes of anti-backsliding, 

Stage II control programs are no longer 

mandatory because the EPA has 

determined under the statutory 

provisions of CAA section 202(a)(6) that 

another federal program, onboard 

refueling vapor recovery (ORVR) 

technology, is in widespread use, 

rendering Stage II controls largely 

redundant. However, in an area where 

a Stage II control program is already 

adopted into the SIP, it cannot be 

removed from the SIP unless the 

conditions of CAA sections 110(l) and 

193 are met. Therefore, it is subject to 

the same treatment as any locally 

implemented SIP-adopted control 

measure. 

Comment: A commenter stated that 

no planning requirements from the 1997 

ozone NAAQS should apply once that 

NAAQS is revoked. The commenter 

based this on two arguments. First, CAA 

section 172(e) applies to control 

requirements and not state planning 

requirements. Second, the commenter 

argued that the decision in South Coast 

v. EPA has limited applicability because 


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86An attainment demonstration includes 

technical analyses of base year emissions and future 

year emissions, including the impact of RACM and 

RACT; a list of adopted control measures with 

schedules for implementation; and a RACM 

analysis. 

87The EPA revoked the 1997 ozone NAAQS for 

transportation conformity on May 21, 2012. (77 FR 

30160) The revocation of the 1997 ozone NAAQS 

for transportation conformity purposes was 

effective on July 20, 2013. In this final rule, the EPA 

is revoking the 1997 ozone NAAQS for all 

remaining purposes. 

the court was faced with two ozone 

standards that differed in form and 

level, and in this situation the two 

standards are of the same form. 

Response: The EPA agrees that the 

transition from the 1997 ozone NAAQS 

to the 2008 ozone NAAQS calls for a reevaluation of the provisions necessary 

to protect against backsliding and 

ensure continued progress toward 

achieving healthy air quality. However, 

we do not agree that South Coast v. EPA 

has limited application to informing 

appropriate anti-backsliding 

requirements for a revoked 1997 

NAAQS simply because the 2008 

NAAQS has the same form as the 1997 

NAAQS. With only one exception, the 

seventeen ‘‘applicable requirements’’ 

that will be listed in new 40 CFR 

51.1100(o) are all control requirements, 

consistent with South Coast v. EPA. To 

the extent that any of these control 

requirements have not been 

implemented in a 1997 nonattainment 

area by the time the 1997 NAAQS is 

revoked, consistent with South Coast v. 

EPA the state must ensure these controls 

are adopted into the SIP and 

implemented, if applicable. The one 

applicable requirement that involves 

both planning and control elements is 

the attainment demonstration 

requirement.86 Since the attainment 

demonstration is part of the basis for 

establishing that the RACM requirement 

(a control requirement consistent with 

South Coast) is satisfied, the EPA 

believes it is appropriate to retain this 

as an applicable anti-backsliding 

requirement to ensure timely progress 

toward attainment of the 1997 NAAQS, 

especially for areas classified in the 

highest classifications where the 

statutory attainment dates for the 1997 

NAAQS extend well into the future 

(e.g., 2019 for Severe and 2024 for 

Extreme areas). The EPA encourages 

states to synchronize their planning and 

emissions control efforts for attainment 

of the 2008 ozone NAAQS with any 

unfulfilled anti-backsliding 

requirements associated with the 

revoked 1997 ozone NAAQS. As a 

reminder, a Clean Data Determination 

for the 1997 ozone NAAQS can suspend 

the associated attainment demonstration 

requirement for as long as the area 

continues to attain the 1997 NAAQS. 

Comment: A commenter pointed out 

that there are several control measures 

that continue to apply to areas after a 

standard is revoked. The commenter 

argued that, for consistency, the EPA 

should include these items in the list of 

applicable requirements. For example, 

RACT is listed as an applicable 

requirement, but not RACM. The 

commenter argued that RACM should 

be listed as an applicable requirement. 

Similarly, transportation conformity, 

‘‘other control measures’’ as necessary 

for attainment under CAA section 

172(c)(6), and contingency measures for 

CAA section 182(e)(5) measures should 

be retained as applicable requirements, 

according to the commenter. 

Response: The EPA agrees in part 

with the commenter, that it is 

appropriate to list both RACM and CAA 

section 182(e)(5) contingency measures 

as ‘‘applicable requirements’’ in the 

final rule in 40 CFR 51.1100(o). RACM 

is a component of the attainment 

demonstration and is a requirement of 

the CAA. The EPA reviews each SIP 

submission from a state to ensure that 

sufficient information is provided for 

the EPA to determine whether the state 

has adopted all RACM necessary for 

attainment as expeditiously as 

practicable and provided for 

implementation of those measures as 

expeditiously as practicable. For areas 

remaining in nonattainment for the 1997 

ozone NAAQS and designated 

nonattainment for the 2008 ozone 

NAAQS, the EPA does not believe that 

revocation of the NAAQS should halt or 

delay the planned implementation of 

control measures. These measures, 

while adopted pursuant to the 1997 

ozone NAAQS, will also assist the areas 

in attaining the 2008 ozone NAAQS. 

Similarly, for Extreme areas relying 

on CAA section 182(e)(5), the EPA 

agrees that the contingency measures 

required for that program should be 

held to the same requirements as 

contingency measures for sections 

172(c) and 182(c) of the CAA. Thus the 

EPA is adding 182(e)(5) contingency 

measures to the list of applicable 

requirements in 51.1100(o). 

However, the EPA does not agree with 

the commenter that conformity needs to 

be retained as an applicable 

requirement. Transportation and general 

conformity are retained as requirements 

for all areas designated nonattainment 

for the 2008 ozone NAAQS. For areas 

designated attainment for the 2008 

ozone NAAQS, these areas are meeting 

the most stringent, health-protective 

NAAQS and thus have no remaining 

conformity requirements because they 

are designated attainment for the 2008 

ozone NAAQS and the designations for 

the 1997 ozone NAAQS which trigger 

conformity requirements are revoked. 

Transportation and general conformity 

apply only in areas designated as 

nonattainment or redesignated to 

attainment with an approved CAA 

section 175A maintenance plan. (CAA 

section 176(c)(5)). Upon the effective 

date of the revocation of the 1997 ozone 

NAAQS the only relevant designation 

for ozone for conformity purposes will 

be an area’s designation for the 2008 

ozone NAAQS.87 Areas that are 

designated attainment for the 2008 

ozone NAAQS are not subject to 

transportation or general conformity 

requirements regardless of their 

designation for the 1997 ozone NAAQS 

at the time of revocation of that NAAQS. 

(CAA section 176(c)(5)). Similarly, 

‘‘other control measures’’ necessary for 

attainment are already covered by the 

attainment demonstration, and cannot 

be removed without satisfying CAA 

section 110(l). 

Comment: A commenter disagreed 

with what it described as the EPA’s 

proposal to allow areas that were 

designated nonattainment for the 1997 

ozone NAAQS or the 1-hour NAAQS 

before those standards were revoked to 

terminate any nonattainment NSR or 

185 fee requirements once the 1997 

ozone NAAQS is revoked and the area 

has been designated or redesignated 

attainment for the 2008 ozone NAAQS 

or a redesignation substitute has been 

approved for the revoked standard. The 

commenter argues that allowing such an 

area to remove nonattainment NSR or 

185 fee requirements from the SIP is 

contrary to the NRDC v. EPA (2011) 

ruling. 

Response: The court ruled in NRDC v. 

EPA that it would be improper for the 

EPA to relieve an area that has not 

attained a standard from requirements 

imposed for failure to attain that 

standard. The EPA’s ‘‘redesignation 

substitute’’ proposal does not do that. It 

relieves areas that demonstrate that they 

are in fact attaining a standard from 

obligations arising from failure to attain 

that standard as well as all antibacksliding requirements applicable for 

any prior revoked standard without the 

need for a formal redesignation. Nothing 

in the 2011 NRDC v. EPA decision 

forecloses that approach. The EPA also 

rejects any suggestion that an area 

would remain subject to NSR or 185 fees 

after it is designated as an attainment 

area and any prior standards for which 

it was designated nonattainment have 

been revoked. Areas cannot be 

redesignated to attainment for ozone 


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88One area, the Uintah Basin, UT, was designated 

as ‘‘unclassifiable,’’ and for purposes here would be 

treated like an area designated ‘‘attainment.’’ 

89 If the nonattainment area was initially 

designated attainment for the 1997 ozone NAAQS 

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

for the 1997 ozone NAAQS prior to the date of 

revocation of the 1997 NAAQS, then the area has 

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

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

unless they have attained all current 

standards and met all anti-backsliding 

requirements applicable for prior 

revoked standards. Moreover, 

nonattainment NSR is not a requirement 

in attainment areas and 185 by its own 

terms does not apply to an area that has 

been designated ‘‘an attainment area for 

ozone.’’ 

C. Application of Transition 

Requirements to Nonattainment and 

Attainment Areas 

This section discusses how the 

transition requirements apply to various 

types of areas. The general principle is 

to apply transition requirements 

depending on how the area is 

designated—attainment or 

nonattainment—for the 2008 ozone 

NAAQS, while taking into account the 

area’s status with respect to prior 

standards.88 In the subsequent sections, 

for purposes of determining an area’s 

transition requirements, we first look to 

the area’s designation and classification 

for the 2008 ozone NAAQS. We then 

determine the area’s designation and 

classification status for the 1997 ozone 

NAAQS as of the effective date the 1997 

ozone NAAQS is revoked. Finally, 

where appropriate, we determine 

whether anti-backsliding requirements 

for the 1-hour ozone NAAQS apply in 

the area and, if so, we determine the 

area’s designation and classification 

status for the 1-hour ozone NAAQS as 

of the date the 1-hour NAAQS was 

revoked.89 Appendix B of this rule 

contains a list of areas subject to antibacksliding requirements. 

1. Requirements for Areas Designated 

Attainment for the 2008 Ozone NAAQS 

and Maintenance for the 1997 Ozone 

NAAQS 

a. Summary of the Proposal 

For this category, the EPA proposed 

that an area’s approved CAA section 

175A maintenance plan for the revoked 

1997 ozone NAAQS satisfies both its 

obligations for maintenance under 

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

NAAQS and its obligation to submit a 

second approvable maintenance plan 

under CAA section 175A for the 

revoked 1997 ozone NAAQS. 

b. Final Action 

The EPA is finalizing this as 

proposed. For areas designated 

attainment for the 2008 ozone NAAQS 

and maintenance for the 1997 ozone 

NAAQS (as of the date of revocation of 

the 1997 ozone NAAQS), the area’s 

approved CAA section 175A 

maintenance plan for the revoked 1997 

ozone NAAQS satisfies both its 

obligations for maintenance under CAA 

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

NAAQS and its obligation to submit a 

second approvable maintenance plan 

under CAA section 175A for the 

revoked 1997 ozone NAAQS. 

c. Rationale 

All areas in this category were already 

subject to a CAA section 175A 

maintenance plan for the revoked 1997 

ozone NAAQS, and have been both 

redesignated to attainment for the 1997 

ozone NAAQS (as well as any other 

revoked ozone NAAQS) and designated 

attainment for the more stringent 2008 

ozone NAAQS. The approved CAA 

section 175A maintenance plan for the 

1997 ozone NAAQS satisfied the antibacksliding requirements of these areas 

for the prior 1-hour NAAQS. Any 

further 110(a)(1) maintenance plan 

requirement under the 2008 ozone 

NAAQS would be unnecessarily 

burdensome. No revision to the CAA 

section 175A maintenance plans for 

these areas can be approved unless it 

complies with the anti-backsliding 

checks in CAA sections 110(l) and 193. 

The EPA believes that there is no 

justification for additional maintenance 

plan demonstration burdens to be 

imposed on these areas solely because at 

one time they were designated 

nonattainment under the revoked 1997 

ozone NAAQS. This approach 

recognizes and reflects that these areas 

were redesignated to attainment for the 

1997 ozone NAAQS prior to its 

revocation, and have been designated 

attainment for the 2008 ozone NAAQS. 

d. Comments and Responses 

Comment: One commenter opposed 

this action for several reasons. First, the 

commenter stated that the EPA cannot 

dispense with the statutory 

responsibility of areas by excusing 

compliance with CAA section 110(a)(1). 

Second, the commenter believes that 

demonstrating long-term compliance via 

an approved 175A maintenance plan for 

the 1997 ozone NAAQS is not sufficient 

to demonstrate continued compliance 

with the 2008 ozone NAAQS. The 

commenter maintained that even with 

an approved 175A plan for the 1997 

ozone NAAQS, emissions can continue 

to increase. There is nothing in the 

approved 175A plan that will be 

activated should the area start to violate 

the 2008 ozone NAAQS. 

Response: The EPA disagrees with the 

commenter. The EPA is not ignoring the 

maintenance provision of CAA section 

110(a)(1), but rather evaluating what is 

sufficient to address that provision 

under the circumstances of transition to 

a new more stringent NAAQS for an 

area designated attainment for that more 

stringent NAAQS. With the control 

measures included in their SIPs and in 

approved CAA section 175A 

maintenance plans, those areas have 

already achieved sufficient emissions 

reductions to bring them into attainment 

for both the 1997 ozone NAAQS and the 

more stringent 2008 ozone NAAQS. 

These SIP control measures cannot be 

weakened without satisfying CAA 

section 110(l) and in some cases also 

CAA section 193, which effectively 

serve as anti-backsliding provisions. 

The EPA is not relieving areas 

designated attainment of the 

requirement under CAA section 

110(a)(1) to maintain the more stringent 

2008 ozone NAAQS, but rather, the EPA 

is allowing the approved PSD plan for 

the 2008 ozone NAAQS to suffice as a 

maintenance showing for these areas. 

These are areas that already have many 

controls in place, including approved 

CAA section 175A maintenance plans 

ensuring that the areas can maintain the 

level of the prior standard. 

While these approved CAA section 

175A maintenance plans were 

established for maintenance of the 1997 

ozone NAAQS, and accordingly help 

prevent backsliding for that revoked 

NAAQS, they also provide a foundation 

for maintenance of the 2008 ozone 

NAAQS, which, in combination with 

other active requirements for the 2008 

ozone NAAQS, contribute to 

maintenance of the new standard. The 

emissions reductions for one NAAQS 

build upon the emissions reductions 

from previous NAAQS. The EPA 

concludes that no additional measures 

beyond the prior CAA section 175A 

maintenance plans and the PSD plans 

for the 2008 standard should be 

necessary to provide for maintenance in 

these areas. The EPA will work with 

states as necessary to address any future 

air quality concerns and maintenance 

needs for these areas. 

2. Areas Designated Attainment for the 

2008 Ozone NAAQS and Nonattainment 

for the 1997 Ozone NAAQS 

a. Summary of the Proposal 

The EPA proposed two approaches for 

this category. The EPA proposed as its 


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preferred approach for areas designated 

attainment for the 2008 ozone NAAQS 

and nonattainment for the 1997 ozone 

NAAQS (as of revocation of the 1997 

ozone NAAQS) that the state not be 

required to adopt any outstanding 

applicable requirements for the area for 

the revoked 1997 standard. This 

approach was similar to the approach 

followed in the Phase 1 Rule. The EPA 

also proposed, in a departure from the 

Phase 1 Rule, that the approved PSD 

SIPs for these areas satisfy the obligation 

to submit an approvable maintenance 

plan for the 2008 ozone NAAQS under 

CAA section 110(a)(1). 

The second, and less preferred, 

alternative proposed by the EPA for 

these areas was that the state be 

required to demonstrate maintenance 

for the 2008 ozone NAAQS via a 

‘‘maintenance showing.’’ This 

maintenance showing would be due 3 

years after the effective date of 

designations for the 2008 ozone NAAQS 

and would be in a form other than a 

formal SIP revision. The maintenance 

showing would contain a demonstration 

of continued maintenance of the 2008 

ozone NAAQS in the area for 10 years 

from the effective date of the area’s 

designation as attainment for the 2008 

ozone NAAQS. The EPA committed to 

providing guidance regarding the 

specific elements of the maintenance 

showing if this route were chosen. 

b. Final Action 

The EPA is finalizing the preferred 

option: For areas designated attainment 

for the 2008 ozone NAAQS and 

nonattainment for the 1997 ozone 

NAAQS (as of revocation of the 1997 

ozone NAAQS) states are not required to 

adopt any outstanding applicable 

requirements for the revoked 1997 

standard. Approved PSD SIPs for these 

areas satisfy the obligation to submit an 

approvable maintenance plan for the 

2008 ozone NAAQS under CAA section 

110(a)(1). 

c. Rationale 

Areas designated attainment for the 

2008 ozone NAAQS and nonattainment 

for the 1997 ozone NAAQS (as of 

revocation of the 1997 ozone NAAQS) 

have already attained the most stringent 

existing standard, notwithstanding any 

existing nonattainment designation. 

These areas thus have developed 

nonattainment SIPs that in combination 

with federal measures and emissions 

controls in upwind areas have produced 

sufficient emissions reductions to 

achieve air quality that attained both the 

1997 ozone NAAQS and resulted in an 

attainment designation for the more 

protective 2008 ozone NAAQS. They 

remain subject to the 1997 

nonattainment area requirements 

already approved into the SIP, which 

can be revised only upon a showing that 

such revision complies with the antibacksliding checks in CAA sections 

110(l) and 193. Given the succession of 

NAAQS of increasing stringency that 

has occurred, the EPA believes that the 

burden of developing an approvable 

110(a)(1) maintenance plan for the 2008 

ozone NAAQS would outweigh any 

compensating benefit for an area that is 

already attaining that NAAQS and that 

is subject to prior nonattainment 

requirements which are already 

incorporated into the SIP and have been 

sufficient to bring the area into 

attainment of both the 1997 and 2008 

standards. 

d. Comments and Responses 

Comment: A commenter believed that 

the EPA should adopt the alternative 

approach. The commenter stated that an 

inequity arises from the fact that areas 

designated maintenance for the 1997 

ozone NAAQS prior to revocation of the 

NAAQS have contingency measures that 

are activated should the area begin to reviolate the 1997 ozone NAAQS. These 

areas designated attainment for the 2008 

ozone NAAQS and nonattainment for 

the 1997 ozone NAAQS would not be 

subject to any maintenance plans or 

contingency measures. Implementing 

the alternative approach would address 

this inequity. 

Response: The EPA disagrees with the 

commenter. The control measures 

implemented by these areas and 

included in their SIPs have already 

produced sufficient emissions 

reductions to achieve air quality that not 

only attained the 1997 ozone NAAQS, 

but also resulted in an attainment 

designation for the more stringent 2008 

ozone NAAQS. These control measures 

cannot be modified or removed without 

a demonstration satisfying CAA section 

110(l) and in some cases both CAA 

sections 110(l) and 193. These 

demonstrations must address not only 

the 1997 ozone NAAQS but also the 

2008 ozone NAAQS as well as any 

future NAAQS. 

Comment: One commenter believed 

both proposed approaches violate the 

plain language of the CAA by not 

requiring the area to submit a CAA 

section 175A maintenance plan, and 

thus opposed both options. A second 

commenter believed that the EPA 

should continue to require formal 10- 

year maintenance plan submittals for 

the 1997 ozone NAAQS from these areas 

in an attempt to guarantee that controls 

are not relaxed, thus impacting 

downwind areas. 

Response: We believe that an 

approved PSD SIP, in conjunction with 

the other already-existing statutory and 

regulatory provisions that govern 

implementation of ozone standards, and 

the historical safeguards in place for the 

area adopted for prior NAAQS, are 

generally sufficient to prevent 

backsliding, and to satisfy the 

requirement for maintenance under 

CAA section 110(a)(1). The control 

measures implemented by these areas 

and included in their SIPs have already 

produced sufficient emissions 

reductions to achieve air quality that 

attained the 1997 ozone NAAQS, and 

resulted in an attainment designation 

for the more stringent 2008 ozone 

NAAQS . These control measures 

cannot be modified or removed without 

a CAA section 110(l) showing and in 

some cases both a CAA section 110(l) 

and a CAA section 193 showing. Areas 

designated attainment for the 2008 

standard remain subject to the 

attainment and maintenance 

requirements of that standard. These 

include continued implementation of 

the control measures that brought the 

area into attainment. For these areas, 

and for any area designated attainment 

for the 2008 NAAQS, the CAA’s general 

NAAQS air quality management 

framework and associated regulatory 

provisions continue to apply, and serve 

as the foundation for handling any 

potential future issues with maintaining 

the 2008 NAAQS. 

3. Areas Designated Nonattainment for 

the 2008 Ozone NAAQS and 

Maintenance for the 1997 Ozone 

NAAQS 

a. Summary of the Proposal 

The EPA proposed that for these 

areas, the area’s approved CAA section 

175A maintenance plan for the revoked 

1997 ozone NAAQS would satisfy the 

obligation to submit a second 

approvable maintenance plan under 

CAA section 175A for the revoked 1997 

ozone NAAQS. 

b. Final Action 

The EPA is finalizing this as 

proposed. 

c. Rationale 

All areas in this group are already 

subject to an approved CAA section 

175A maintenance plan for the revoked 

1997 ozone NAAQS and have been 

redesignated to attainment for the 1997 

ozone NAAQS. As explained elsewhere, 

the approval of the redesignation 

request and of the CAA section 175A 

maintenance plan for the 1997 ozone 

NAAQS required the EPA to determine 

that any anti-backsliding requirements 


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90We do not include in these groups any areas 

that were redesignated to attainment for the 1997 

ozone NAAQS prior to revocation of that NAAQS. 

In order to be redesignated for the 1997 ozone 

NAAQS, the area had to satisfy all applicable antibacksliding requirements for the 1-hour ozone 

NAAQS. Any 1997 ozone NAAQS nonattainment 

area that was designated nonattainment for the 

1-hour ozone NAAQS at time of revocation of the 

1-hour NAAQS had to meet applicable 1-hour 

ozone NAAQS anti-backsliding requirements in 

order to be redesignated to attainment for the 1997 

ozone NAAQS. 

of these areas for the 1997 standard, as 

well as any requirements that might be 

applicable for the 1-hour standard, have 

been met. Thus the EPA’s approvals of 

the redesignation request and the 

maintenance plan for the 1997 standard 

signify not only that all applicable 

requirements for the 1997 ozone 

NAAQS have been met, but also that all 

applicable anti-backsliding measures for 

the 1-hour standard have been adopted 

and approved into the SIP. No revision 

to the CAA section 175A maintenance 

plans for these areas can be approved 

unless it complies with the antibacksliding checks in CAA sections 

110(l) and 193. 

These areas are also designated 

nonattainment for the more stringent 

2008 ozone NAAQS and therefore are 

subject to nonattainment NSR and other 

nonattainment requirements for their 

classification under the more stringent 

2008 ozone NAAQS. Thus, the EPA 

believes that there is no justification for 

a second CAA section 175A 

maintenance plan to be imposed on 

these areas solely because at one time 

they were designated nonattainment 

under a revoked ozone NAAQS. 

d. Comments and Responses 

Comment: A commenter that 

supported the EPA’s approach indicated 

that the proposed regulatory text for 

areas designated nonattainment for the 

2008 ozone NAAQS and maintenance 

for the 1997 ozone NAAQS, located in 

40 CFR 51.1105(a)(2), should be 

modified in line with text in 40 CFR 

51.1105(a)(4) to allow maintenance 

plans to be modified consistent with 

CAA sections 110(l) and 193. 

Response: The EPA agrees that the 

text regarding areas designated 

maintenance for the 1997 ozone NAAQS 

should be modified. The regulatory text 

has been adjusted to reflect that 

maintenance plans can be modified 

pursuant to CAA sections 110(l) and 

193. 

Comment: One commenter indicated 

that a second 10-year 175A maintenance 

plan was needed by these areas. The 

commenter maintained that the EPA’s 

proposed approach does not 

demonstrate continued maintenance. 

The commenter stated that an area 

designated nonattainment for the 2008 

ozone NAAQS should prepare a second 

maintenance plan to assure 

maintenance and set conformity 

budgets. Another commenter opposed 

the proposal because the CAA clearly 

requires two 10-year maintenance plans. 

The fact that the area is designated 

nonattainment under the 2008 ozone 

NAAQS is no guarantee that there will 

be no increase in ozone violations. The 

commenter suggested that the EPA 

review the record for areas violating a 

NAAQS for which it had been 

redesignated to attainment with an 

approved maintenance plan. Waiving 

the requirements of a second 10-year 

maintenance plan as described in CAA 

section 175A(b) without support is 

arbitrary and undermines the 

protections of the Act. 

Response: The EPA recognizes that 

the approved 175A maintenance plan 

for the 1997 ozone NAAQS can only be 

modified via a CAA section 110(l) and, 

where appropriate, a CAA section 193 

showing. These analyses would have to 

demonstrate that any revisions to the 

maintenance plan would not interfere 

with the ability to demonstrate timely 

attainment for the new standard. The 

removal of the requirement for the 

second 10-year plan for maintenance of 

a revoked, less stringent standard that 

the areas previously attained allows 

states to focus planning and control 

efforts on attaining and maintaining the 

more stringent and currently applicable 

2008 ozone NAAQS in these areas, for 

the already attained 1997 ozone 

NAAQS. The areas will remain subject 

to the MVEBs established in the 

approved 175A maintenance plan until 

such time that MVEBs for the more 

stringent 2008 ozone NAAQS are 

submitted and are found adequate or are 

approved, which must be used for 

transportation conformity 

determinations under the 2008 ozone 

NAAQS pursuant to the conformity 

regulations. 

4. 2008 Nonattainment Areas Also 

Designated Nonattainment for a Prior 

Revoked Ozone NAAQS 

a. Summary of the Proposal 

The EPA proposed that areas 

designated nonattainment for the 2008 

ozone NAAQS and also designated 

nonattainment for the 1997 ozone 

NAAQS as of the revocation of the 1997 

NAAQS 90 will be subject to applicable 

anti-backsliding requirements for the 

applicable prior NAAQS as set forth in 

51.1100(o), as well as the pertinent 

requirements for the current 2008 ozone 

NAAQS. In addition, if a state seeks to 

revise any measure already approved 

into its SIP for any prior standard, the 

revision must comply with the antibacksliding checks in CAA sections 

110(l) and 193. 

b. Final Action 

The EPA is finalizing this as 

proposed. In an area designated 

nonattainment for the 2008 ozone 

NAAQS and nonattainment for the 1997 

ozone NAAQS at the time of revocation 

of the 1997 ozone NAAQS the state will 

be obligated to implement the 

applicable requirements set forth in 

51.1100(o) for the 1997 ozone NAAQS. 

This could include, as applicable, antibacksliding requirements associated 

with the revoked 1-hour NAAQS if the 

area was also designated nonattainment 

for the 1-hour ozone NAAQS when that 

NAAQS was revoked. Nonattainment 

NSR applies in these areas in 

accordance with their highest 

nonattainment classification under any 

ozone standard for which they are (or 

were at the time of revocation) 

designated nonattainment. Also, if these 

areas are classified Severe or Extreme at 

the time of revocation for a prior 

standard, the requirements of CAA 

section 185 in relation to that prior 

standard continue to apply. 

c. Rationale 

The EPA believes that the application 

of anti-backsliding principles is very 

clear cut for this category of areas. These 

areas remain subject to the applicable 

requirements for the 2008 ozone 

NAAQS, as well as for any of the 

revoked ozone NAAQS for which the 

areas remained nonattainment, until the 

requirements are satisfied or suspended 

as detailed in sections IV.D and IV.E. 

The EPA received no adverse comments 

on this approach. 

D. Satisfaction of Anti-Backsliding 

Requirements for an Area 

1. Summary of the Proposal 

The EPA proposed two acceptable 

procedures through which a state may 

demonstrate that it is no longer required 

to adopt any additional applicable 

requirements for an area which have not 

already been approved into the SIP for 

a revoked ozone NAAQS. Both 

procedures allow a state to remove or 

revise the nonattainment NSR 

provisions in the SIP and, upon a 

showing of consistency with the antibacksliding checks in CAA sections 

110(l) and 193 (if applicable), shift 

requirements which are contained in the 

active portion of the SIP to the 


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91Nonattainment NSR is not required to be 

retained in the SIP as a contingency measure. In 

areas designated attainment, the PSD permitting 

program applies rather than nonattainment NSR. 

Replacement or removal of an area’s NSR SIP 

provisions does not relieve sources in the area of 

their obligations under previously established 

permit conditions. 

92States in the OTR may not use this flexibility 

because the CAA requires all areas of the OTR 

including attainment areas to implement, at a 

minimum, the nonattainment NSR requirements 

prescribed for Moderate areas. 

93Likewise, to the extent that a SIP revision 

seeking to remove anti-backsliding measures 

modifies control requirements subject to CAA 

section 193, the revision would also have to satisfy 

the requirements of that provision. 

94See 40 CFR 51.905(a)(3), the comparable 

provision for transition from the 1-hour NAAQS to 

the 1997 ozone NAAQS, which allows states with 

such areas to request that the 1-hour nonattainment 

NSR provisions be removed from the SIP. 

95This showing may be submitted to the EPA at 

the same time as the maintenance plan, and may 

be approved by the EPA in a single action. Subject 

to this process, anti-backsliding requirements 

contained in the SIP could be shifted to the 

contingency measures portion of a CAA section 

175A maintenance plan, or, in limited 

circumstances (such as nonattainment NSR) 

removed from the SIP. 

contingency measures portion of the 

SIP.91

The first of the proposed procedures 

is formal redesignation of the area to 

attainment for the 2008 ozone NAAQS. 

For areas subject to anti-backsliding 

requirements for revoked standards, 

approval of a request for redesignation 

to attainment for the 2008 ozone 

NAAQS signifies that the state has 

satisfied its obligations to adopt antibacksliding requirements for the 

revoked standards. This is an extension 

of the approach that the EPA adopted in 

the Phase 1 Rule. The EPA proposed 

that once the area is redesignated and 

the requirement(s) for nonattainment 

NSR for the 2008 ozone NAAQS and for 

any prior ozone NAAQS cease to apply, 

the state may request that the 

corresponding nonattainment NSR 

requirements be removed from the SIP 

rather than be retained as a maintenance 

plan contingency measure.92 The state 

would instead implement the PSD 

program. 

The second of the proposed 

procedures for satisfying antibacksliding requirements was a new 

separate route referred to as a 

‘‘redesignation substitute’’ for a revoked 

standard. This redesignation substitute 

showing would serve as a successor to 

redesignation to attainment, for which 

the area would have been eligible were 

it not for revocation. The showing is 

based on the CAA’s criteria for 

redesignation to attainment [CAA 

section 107(d)(3)(E)]. States would have 

to demonstrate that the area has attained 

the relevant standard and met all of the 

requirements for redesignation. After 

notice-and-comment rulemaking on this 

showing, the EPA approval of the 

showing would have the same effect on 

the area’s nonattainment antibacksliding obligations as would a 

redesignation to attainment for the 

revoked standard. The EPA did not 

propose to require states to go through 

formal SIP submission procedures to 

submit a request for approval of a 

redesignation substitute because it is not 

a redesignation. The EPA proposed that 

such an area would no longer be subject 

to any remaining applicable antibacksliding requirements and the 

nonattainment NSR requirements 

associated with the revoked NAAQS for 

which the area completed a 

redesignation substitute would be lifted, 

leaving the remaining NSR requirements 

to be determined by the highest 

remaining classification the area is 

subject to, whether for the 2008 ozone 

NAAQS or another revoked NAAQS for 

which the EPA had not approved a 

redesignation showing. 

2. Final Action 

The EPA is finalizing both routes as 

acceptable ways to address antibacksliding requirements. That is, states 

can choose either to submit a request to 

redesignate to attainment for the most 

current NAAQS with an approved 175A 

maintenance plan that addresses the 

current and revoked NAAQS, or to 

submit a redesignation substitute 

request for a revoked NAAQS. Under 

both of the these procedures, a state 

seeking to revise its SIP to remove antibacksliding measures from the active 

portion of its SIP must demonstrate, 

pursuant to CAA section 110(l), that 

such revision would not interfere with 

attainment or maintenance of any 

applicable NAAQS, or any other 

requirement of the CAA.93

3. Rationale 

The first of the procedures, formal 

redesignation of the area to attainment 

for the 2008 ozone NAAQS, is an 

extension of the approach that the EPA 

adopted in the Phase 1 Rule. 

Redesignation to attainment for the 2008 

ozone NAAQS would allow a state to 

terminate and remove from the active 

portion of its SIP any applicable antibacksliding requirements, including 

nonattainment NSR requirements 

associated with its classifications under 

the 2008 ozone NAAQS, or under the 

1997 or 1-hour ozone NAAQS, except 

for areas in the OTR. The area would 

instead need, at a minimum, to 

implement the PSD program. This 

approach is consistent with the EPA’s 

longstanding interpretation of 

nonattainment NSR requirements for 

areas that are redesignated to 

attainment.94 Redesignation to 

attainment would also terminate any 

obligations to implement CAA section 

185 fee programs in a Severe or Extreme 

area for the 2008 or prior revoked 1997 

or 1-hour ozone NAAQS pursuant to the 

express terms of CAA section 185. 

Approval of a redesignation to 

attainment for the 2008 ozone NAAQS 

signifies that the state has satisfied its 

obligations to adopt anti-backsliding 

requirements for the current and 

revoked standards for that area. This 

same approach was used in the Phase 1 

Rule in requiring redesignations for the 

1997 ozone NAAQS to address antibacksliding requirements for the 

revoked 1-hour standard. Approval of 

the CAA section 175A maintenance 

plan for the 2008 ozone NAAQS assures 

that the area’s SIP includes the 

provisions necessary for maintenance of 

the 2008 ozone NAAQS, which is the 

most stringent of the NAAQS. 

Therefore, upon redesignation to 

attainment and approval of its plan for 

maintenance of the 2008 ozone NAAQS, 

an area will have satisfied its obligations 

to adopt anti-backsliding requirements. 

All of the anti-backsliding measures that 

have been approved into the SIP must 

continue to be implemented unless or 

until the state can show that such 

implementation is not necessary for 

maintenance, consistent with CAA 

sections 110(l) and 193 if applicable.95

Experience has shown the EPA that a 

second mechanism for areas to address 

the requirements imposed by antibacksliding requirements is also 

appropriate. After revocation of the 

1997 ozone NAAQS, areas that attain 

and meet requirements for the revoked 

1997 or 1-hour ozone NAAQS would be 

disadvantaged relative to areas that were 

redesignated to attainment for those 

standards prior to their revocation. 

Absent this second mechanism, areas 

that would otherwise have qualified for 

redesignation to attainment for the 1997 

or 1-hour ozone NAAQS, were it not for 

revocation of those NAAQS, would 

need to continue implementing 

potentially outdated and onerous 

requirements for a NAAQS they have 

attained until they also qualify for 

redesignation to attainment for the more 

stringent 2008 ozone NAAQS. The EPA 

believes that, under any view of antibacksliding for a revoked standard, it 

should not mean imposing requirements 

greater than those that would apply if 

the standard had not been revoked. 

The EPA has no mechanism for 

formally redesignating areas for a 


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revoked standard. However, by 

establishing the redesignation 

substitute, the EPA is providing a 

pathway for states to demonstrate and 

for the EPA to acknowledge that they 

have satisfied the applicable 

requirements for the revoked 1-hour or 

1997 ozone NAAQS by submitting a 

showing that functions as a substitute 

for redesignation to attainment for that 

revoked standard, and ensures that the 

substance of the redesignation 

requirements are met. For a revoked 

standard, this second mechanism will 

serve as a successor to redesignation to 

attainment, for which the area would 

have been eligible were it not for 

revocation. 

The EPA believes this is an acceptable 

approach because it is based on the 

CAA’s criteria for redesignation to 

attainment [CAA section 107(d)(3)(E)]. 

A showing would include: Attainment 

of the relevant revoked 1-hour or 1997 

ozone NAAQS; a showing that 

attainment was due to permanent and 

enforceable emissions reductions; and a 

demonstration that the area can 

continue to maintain the standard over 

the next 10 years. Redesignation criteria 

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

would be met by the existing approved 

SIP, under which the area has attained 

the revoked standard, in the context of 

(and reinforced by) the requirements for 

the new 2008 ozone NAAQS. The EPA 

will conduct notice-and-comment 

rulemaking on the state’s showings. We 

believe a notice-and-comment process 

fulfills the function of redesignation to 

attainment for the purpose of satisfying 

anti-backsliding requirements for a 

revoked standard. 

The EPA believes that requiring more 

elaborate administrative procedures for 

purposes of approving a state’s request 

for a redesignation substitute for a 

revoked NAAQS (for example, requiring 

states to use the formal SIP adoption 

process) would needlessly impose 

burdens because the area will remain 

subject to all the formal requirements 

for redesignation to attainment for the 

2008 ozone NAAQS. Development of 

SIP revisions takes time and imposes 

administrative costs on states, industry 

and the public. As in the case of a 

redesignation to attainment for the 2008 

ozone NAAQS, at the time of submitting 

a redesignation substitute request or at 

any time thereafter, a state may request 

to revise its SIP so as to cease 

implementing a specific nonattainment 

SIP requirement. However, this request 

could not be granted, and the SIP 

revised, until the EPA approves the 

redesignation substitute and a 

demonstration that the SIP revision 

meets the requirements of CAA section 

110(l). The EPA is not providing this 

mechanism for the purpose of allowing 

states to relax or avoid air quality 

management measures that are needed 

for attainment and maintenance of the 

2008 ozone NAAQS. The showings 

required, the provisions of CAA section 

110(l), and the fact that the area remains 

subject to CAA requirements for the 

more stringent 2008 ozone NAAQS, 

assure that is not the case. It is, 

however, important to relieve states of 

requirements that are no longer 

necessary, or that can be replaced by 

other forms of protection that might 

better meet the local needs and 

circumstances of an area. 

The EPA is providing in the 

redesignation substitute option a 

mechanism that demands more than a 

determination of attainment of the prior 

NAAQS, and calls for a showing that 

addresses redesignation criteria for that 

NAAQS. Moreover, the process under 

this option occurs while the state 

remains subject to ongoing requirements 

to meet the new more stringent standard 

in that area. In this context, this final 

action is clearly sufficient for its limited 

anti-backsliding purpose—it recognizes 

and supports the state’s progress in 

having attained the prior standard in 

that area due to permanent and 

enforceable emissions reductions, and 

reinforces continued attainment by 

calling for a demonstration that the area 

can maintain the revoked standard. 

4. Comments and Responses 

Comment: Several commenters 

requested that the EPA preserve the 

statutory mechanism as described in 42 

U.S.C 7407(d)(3) that would allow the 

EPA to redesignate areas for a revoked 

NAAQS. 

Response: After the revocation of a 

standard, the EPA believes that it can no 

longer take action to reclassify or to 

redesignate areas for that standard. 

Revocation of the standard removes 

both classifications and designations for 

the revoked standard. The EPA believes 

the two mechanisms provided in the 

final rule accomplish the goals of 42 

U.S.C 7407(d)(3) [CAA section 

107(d)(3)] in a manner consistent with 

anti-backsliding principles and 

appropriate for the circumstance where 

a more stringent NAAQS with the same 

form and averaging time exists and is 

being actively implemented. 

Comment: A commenter argued that 

redesignation to attainment for the 2008 

ozone NAAQS is not sufficient to turn 

off anti-backsliding obligations triggered 

under the revoked 1-hour or the 1997 

ozone NAAQS. 

Response: The EPA disagrees with the 

commenter. When the EPA approves a 

redesignation request for the current 

2008 ozone NAAQS, we assess whether 

the area is in attainment for the current 

and previous NAAQS. The maintenance 

plan submitted by the state 

demonstrates that the area being 

considered for redesignation will 

continue for the next 10 years to attain 

the standard that is requisite to protect 

public health, and that attainment is 

due to permanent and enforceable 

emissions reductions. A redesignation 

to attainment signifies that the area has 

met the requirements of the 2008, as 

well as any revoked, NAAQS. CAA 

section 185 specifically indicates 

redesignation ‘‘as an attainment area for 

ozone’’ as a basis for terminating fee 

requirements. Also, redesignation to 

attainment historically has terminated 

nonattainment NSR requirements, 

which are not required to be kept in the 

SIP as contingency measures. See 

Greenbaum v. EPA (370 F.3d at 536). 

Moreover, redesignation for the current 

standard was the unchallenged basis for 

demonstrating satisfaction of antibacksliding requirements in the EPA’s 

previous Phase 1 anti-backsliding 

regime (69 FR 23951). We believe the 

application of the same principle when 

transitioning from the 1997 to the 2008 

ozone NAAQS is an even better fit: It is 

impossible to attain the 2008 ozone 

NAAQS without first achieving air 

quality that would attain the 1997 ozone 

NAAQS due to the identical form of the 

two standards. 

Comment: A number of commenters 

supported the concept of the 

redesignation substitute, but requested 

that a more streamlined process be 

developed. Several commenters 

suggested that a clean data 

determination would be sufficient to 

terminate anti-backsliding requirements 

for a revoked NAAQS. 

Response: The EPA recognizes that a 

clean data determination alone is less 

burdensome for states than a CAA 

section 107(d)(3) redesignation or a 

redesignation substitute. A clean data 

determination only suspends planning 

requirements associated with the 

NAAQS for which the determination 

was granted. However, we believe that 

the redesignation and redesignation 

substitute mechanisms represent the 

minimum set of requirements sufficient 

to demonstrate satisfaction of antibacksliding requirements under the 

EPA’s application of the principles of 

CAA section 172(e). These mechanisms 

provide a way for states to demonstrate 

that they have attained these standards, 

they have met all the requirements for 

redesignations, and no longer need any 

anti-backsliding requirements beyond 

those already approved in their SIPs. 


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96Memo from Stephen D. Page to Regional Air 

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

Developing Fee Programs Required by Clean Air 

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

97The EPA initially issued the Clean Data Policy 

in 1995, ‘‘Reasonable Further Progress, Attainment 

Demonstration, and Related Requirements for 

Ozone Nonattainment Areas Meeting the Ozone 

National Ambient Air Quality Standard.’’ 

Memorandum from John S. Seitz, Director, Office of 

Air Quality Planning and Standards, May 10, 1995. 

For purposes of the 1997 ozone NAAQS, we 

codified that policy at 40 CFR 51.918. This codified 

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

EPA, 571 F.3d 1245 (D.C. 2009). 

98 Depending on the area’s classification for the 

1997 ozone NAAQS and the SIP elements already 

approved, the area may still have outstanding nonplanning 1997 anti-backsliding submission 

requirements that are not suspended by 51.918 (e.g., 

emissions inventories, nonattainment NSR, Subpart 

2 RACT requirements). 

Comment: Two commenters asked the 

EPA to reconsider the use of CAA 

section 172(e). One of these commenters 

asked that the use of 172(e) be applied 

to all applicable requirements required 

of areas subject to anti-backsliding 

allowing them to substitute measures at 

least as stringent as the controls listed. 

The other commenter believed no 

application of 172(e) is justified, even to 

CAA section 185 fees where the EPA 

has historically applied this principle. 

Response: CAA section 172(e), which 

addresses relaxations of a NAAQS, 

requires protections for areas that have 

not attained a NAAQS prior to a 

relaxation, by requiring controls that are 

‘‘not less stringent’’ than the controls 

applicable in nonattainment areas prior 

to any such relaxation. The EPA applied 

these principles in developing previous 

guidance on satisfying the antibacksliding approach for CAA section 

185 requirements. As stated in previous 

EPA guidance, we interpret the 

principles of 172(e) as authorizing, but 

not requiring, the Administrator to 

approve on a case-by-case basis ‘‘not 

less stringent’’ alternatives to the 

applicable CAA section 185 fee program 

requirements associated with a revoked 

ozone NAAQS.96 The NRDC challenged 

this guidance in 2010. Although the 

court vacated the 2010 guidance 

memorandum on procedural grounds, it 

did not prohibit alternative programs, 

stating that ‘‘neither the statute nor our 

case law obviously precludes that 

alternative.’’ See NRDC v. EPA, 643 F.3d 

332 (D.C. Cir. July 2011). We believe the 

application of CAA section 172(e) 

principles to applicable CAA section 

185 anti-backsliding requirements is an 

appropriate and reasonable use of the 

Administrator’s discretion to approve 

‘‘not less stringent’’ controls. However, 

we did not propose and do not intend 

at this time to promulgate regulatory 

language to apply principles of CAA 

section 172(e) to other anti-backsliding 

requirements. 

E. How will the EPA’s determination of 

attainment (‘‘Clean Data’’) regulation 

apply for purposes of the antibacksliding requirements? 

1. Summary of the Proposal 

The EPA proposed to apply the same 

approach with respect to determinations 

of attainment for the 2008 ozone 

NAAQS as applied under the 1997 

ozone NAAQS under 40 CFR 51.918. 

Under 40 CFR 51.918, an EPA 

determination that an area attained the 

1997 ozone NAAQS suspended the 

obligation to submit any attainmentrelated SIP planning elements for the 

1997 ozone NAAQS not yet approved in 

the SIP, for so long as the area 

continued to be in attainment of that 

NAAQS.97 In order to reflect the 

ongoing status of the Clean Data Policy 

and to consolidate in one regulation a 

comprehensive provision applicable to 

determinations of attainment for all 

current and former ozone NAAQS, the 

EPA proposed to replace 40 CFR 51.918 

with proposed 40 CFR 51.1118 after 

revocation of the 1997 ozone NAAQS. 

2. Final Action 

The EPA is finalizing its proposed 

approach to implementing the Clean 

Data Policy with respect to the 2008 

ozone NAAQS and all prior ozone 

NAAQS. Under the EPA’s Clean Data 

Regulation, a determination of 

attainment suspends the obligation to 

submit certain attainment-related 

planning requirements for the 

associated NAAQS for an area as long as 

the area continues to attain that 

standard.98 For those areas that have 

already incorporated measures into their 

approved SIPs that satisfy the 

nonattainment requirements for that 

standard, CAA section 110(l) functions 

as an anti-backsliding check to require 

continued implementation of such 

measures unless revised in accordance 

with its provisions. 

The planning elements that may be 

suspended under 40 CFR 51.1118 are 

the same as those suspended under 

existing 40 CFR 51.918: RFP 

requirements, attainment 

demonstrations, RACM, contingency 

measures and other state planning 

requirements related to attainment of 

the relevant standard. For a Severe or 

Extreme area, a CAA section 185 fee 

program is expressly linked by the 

statute itself to an attainment plan; 

therefore suspension of the obligation to 

submit the attainment plan also 

necessarily suspends the obligation to 

submit the fee program which is part of 

the attainment plan (provided that the 

EPA has not already determined that the 

area failed to attain by its attainment 

deadline and thus triggered the 

obligation to implement a fee program). 

The EPA notes that a determination of 

attainment would not, however, 

suspend obligations to submit nonplanning requirements such as 

nonattainment NSR, subpart 2 RACT or 

emission inventories under CAA section 

182(a)(1). 

3. Rationale 

40 CFR 51.1118 applies essentially 

the same language as 40 CFR 51.918. 

Upon revocation of the 1997 ozone 

NAAQS, this section would be 

applicable to determinations of 

attainment for all ozone NAAQS: The 

2008, 1997 and the already revoked 1- 

hour ozone NAAQS. With the 

finalization of 51.1118, the EPA’s longstanding Clean Data Policy, which has 

been upheld by the D.C. Circuit and all 

other courts that have considered it, is 

embodied in a regulation applicable for 

the purpose of all existing and prior 

ozone NAAQS. The EPA believes that 

continuation of this approach makes the 

most sense for implementing the 2008 

ozone NAAQS. 

4. Comments and Responses 

Comment: Two commenters indicated 

that a determination that an area has 

‘‘clean data’’ for the more-stringent 2008 

ozone NAAQS should be sufficient to 

lift anti-backsliding requirements for the 

1997 and the 1-hour ozone NAAQS. 

Response: A clean data determination 

only suspends specific planning 

requirements, not mandatory control 

requirements, which could include, as 

applicable, anti-backsliding 

requirements associated with revoked 

NAAQS. As explained previously, the 

EPA believes that an approved 

redesignation to attainment or a 

redesignation substitute is necessary to 

lift anti-backsliding requirements. 40 

CFR 51.1118 clarifies that a clean data 

determination for a specific standard 

only affects attainment-related planning 

requirements for that standard. 

Comment: A commenter requested 

that the EPA clarify language in the 

proposed 40 CFR 51.1118 to indicate 

more specifically which NAAQS must 

be attained to suspend planning 

requirements. 

Response: The EPA will revise the 

language in 40 CFR 51.1118 to make it 

clear that a clean data determination for 

the 2008 NAAQS acts to suspend 

planning requirements associated with 

the 2008 and less stringent 1997 ozone 

NAAQS, which have an identical form. 


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99One of the ways a source can become subject 

to title V is as a ‘‘major source.’’ See CAA section 

502(a); 40 CFR 70.3; 71.3. Furthermore, the 

definition of ‘‘major source’’ for purposes of title V 

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

source as defined . . . in part D’’ of title I. See CAA 

section 501(2)(B) and 502(a); 40 CFR 70.2; 71.2. 

Thus, changes in an area’s classification (e.g., from 

‘‘Serious’’ to ‘‘Severe’’) by changing the emissions 

threshold for being deemed a major source (e.g., 

from 100 tpy to 50 tpy of a relevant pollutant) can 

result in changes in title V applicability for a 

source. (The EPA notes that sources can become 

subject to title V permitting for other reasons, and 

nothing in this discussion is intended to suggest 

that changes in an area’s classification would affect 

those other provisions of title V. Accordingly, 

sources subject to title V under other provisions 

would remain subject to title V for those 

independent reasons.) 

100 It should be noted that, pursuant to CAA 

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

program on the later of the date that it becomes a 

major source and the effective date of a permit 

program applicable to the source. Thus, if a 

permitting authority with an approved title V 

program lacks any authority to permit certain 

sources that are major sources subject to title V as 

a result of ozone precursor emissions and an area 

classification for ozone that has a major source 

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

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

source’’ and those sources have no obligation to 

apply for a title V permit until after such time as 

a permit program becomes applicable to them. The 

EPA will work with states to ensure that all 

approved title V programs are adequate under the 

CAA. 

101The EPA recognizes that there are statutory 

and regulatory differences between title V and NSR, 

but for purposes of the discussion we are focusing 

on the commonalities. 

102See, e.g., Memorandum from Lydia N. 

Wegman, Deputy Director, Office of Air Quality 

Planning and Standards, U.S. EPA, ‘‘Definition of 

Regulated Air Pollutant for Purposes of Title V’’ 

(April 26, 1993). 

F. What is the relationship between 

implementation of the 2008 ozone 

NAAQS and the CAA title V permits 

program? 

1. Summary of the Proposal 

We proposed, and solicited comment 

on, two alternative approaches for 

implementing the title V permit 

program for sources in areas designated 

nonattainment for the 2008 ozone 

NAAQS and subject to anti-backsliding 

requirements for a prior ozone NAAQS. 

The EPA co-proposed two approaches to 

interpreting title V applicability 

requirements following revocation of 

the 1997 ozone NAAQS: (1) Major 

source thresholds for title V should be 

the same as the major source thresholds 

applicable for purposes of other 

requirements such as RACT and NSR; 

and (2) major source thresholds for title 

V depend solely on the area’s 

classification for the 2008 ozone 

NAAQS. The EPA specifically solicited 

comments on whether title V should (or 

should not) be considered a ‘‘control’’ 

within the meaning of CAA section 

172(e) in light of the fact that title V 

generally does not impose new 

substantive air quality control 

requirements but is intended to assure 

compliance with all such existing 

requirements. 

2. Final Action 

We are finalizing the first option and 

the associated proposed revisions to 

parts 70 and 71. Following revocation of 

the 1997 ozone NAAQS, major source 

thresholds for title V will be the same 

as the major source 99 thresholds 

applicable for purposes of other 

requirements, such as RACT and NSR 

(i.e., the major source threshold 

associated with the more stringent of the 

area’s classification for the 2008, 1997 

and/or 1-hour ozone NAAQS will be the 

applicable threshold for title V 

purposes, to the extent that antibacksliding requirements for the 1997 

and/or 1-hour ozone NAAQS apply in 

the area).100

3. Rationale 

The EPA received a wide range of 

comments on the question of whether 

the major source thresholds for title V 

permitting should be considered a 

‘‘control’’ for purposes of the antibacksliding requirements of CAA 

section 172(e). The EPA recognizes that 

many of these comments raise valid 

perspectives. It is true that title V 

generally does not impose new 

substantive pollution control 

requirements on sources, and thus 

ordinarily the EPA would not describe 

title V permitting itself as a ‘‘control.’’ 

At the same time, the EPA does believe 

that one of the underlying purposes of 

title V is to assure compliance with the 

pollution control requirements 

applicable to a source. Thus, it may well 

be true that title V provides air quality 

benefits, and should be considered a 

‘‘control’’ under the broad, functional 

analysis used by the court in the South 

Coast v. EPA decision. The EPA 

believes it is unnecessary to resolve this 

precise question at this time, because 

the EPA believes that regardless of 

whether title V should be considered a 

‘‘control’’ for purposes of CAA section 

172(e), it fulfils the purposes and 

requirements of the Act for title V 

permitting thresholds to be the same as 

the permitting thresholds for underlying 

applicable requirements, particularly 

NSR which was considered a control by 

the South Coast court. 

Title V and NSR have long shared a 

common approach to the definition of 

major source.101 102 The EPA concurs 

with the commenters, such as Texas and 

New York, who believe that we should 

maintain clarity and uniformity in major 

source threshold determinations for 

both NSR and title V. 

In addition, the EPA notes that, under 

CAA section 502, sources are required 

to operate in accordance with the terms 

of a title V permit if, inter alia, the 

source is a major source or the source 

is required to have a permit under part 

D of Title I. Thus, even if a source is not 

a major source for purposes of title V, 

it is still required to get a title V permit 

if it is required to have a permit under 

part D of title I. This provides additional 

support to the EPA’s conclusion that the 

major source permitting threshold for 

NSR and RACT should be the same as 

for title V because otherwise, a source 

that is not a ‘‘major source’’ for purposes 

of title V might not understand it is still 

covered by the applicability provisions 

of parts 70 and 71, if it is required to 

have a permit under part D of title I. 

Maintaining consistency between the 

NSR and title V thresholds in this regard 

will promote compliance with CAA 

requirements by providing a simpler 

permitting regime, ensuring that sources 

subject to major source NSR understand 

they are also subject to title V, and 

enabling permitting authorities to 

identify sources that are potentially 

subject to major source NSR. The EPA 

believes a contrary approach would 

introduce not only complexity, but 

anomalies, into the permitting program 

that would be contrary to the purposes 

and requirements of the Act. To 

promote effective program 

implementation and ensure consistency 

with the CAA, this final rule will amend 

the relevant provisions of parts 70 and 

71 related to application of title V 

thresholds. 

4. Comments and Responses 

Comment: Several commenters 

supported the first option, which sets 

major source title V thresholds equal to 

those applied for RACT and NSR. One 

of these commenters supported the first 

option with the minor conforming 

amendments to the definition of major 

source in 40 CFR 70.2 and 71.2 as 

detailed on page 34225 of the proposal. 

Commenters stated that this approach 

would provide applicants with clarity 

and uniformity regarding applicable 

major source thresholds, and that this 

approach maintains the consistency 

which will ultimately simplify 

permitting and enforcement. A 

commenter indicated that option 1 is 

supported by the fact that these 

thresholds emanate from the same 

provisions of the CAA (part D of title I), 

therefore, the intent of the CAA was to 

keep the thresholds the same. Several 

commenters noted that the first 

approach is consistent with past 


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103May 21, 2012, 77 FR 30088. 

precedent and compelled by the Act’s 

anti-backsliding requirements as well as 

court precedent. 

Response: As discussed previously, 

the EPA agrees with these commenters 

that the major source threshold for title 

V should be the same as the major 

source threshold for NSR and RACT, 

and the EPA is finalizing the proposed 

revisions to parts 70 and 71 to make that 

clear. 

Comment: Several commenters 

supported the second approach, in 

which the major source thresholds for 

title V permitting are based solely on an 

area’s classification for the 2008 ozone 

NAAQS. Commenters cited a number of 

reasons for this, including: This 

approach would provide relief to small 

operators, and that this approach makes 

good sense in a time of resource 

constraints. Several commenters 

questioned the utility of setting title V 

levels based on a revoked NAAQS. 

Several commenters also commented 

that EPA’s understanding of the impacts 

of the South Coast v. EPA decision is 

not correct. These commenters agreed 

that the classifications of revoked 

NAAQS can impact the NSR level, but 

disagreed with the EPA that the title V 

levels are controlled by anything other 

than the current 2008 ozone NAAQS. 

Response: The EPA recognizes that 

the approach being adopted does not 

solely rely on the area’s current 

classification for purposes of 

determining major source thresholds for 

title V. The EPA believes there is 

ambiguity in the intersection between 

title V and part D as to whether title V 

should apply the major source threshold 

of the area’s current classification, or the 

area’s classification for purposes of NSR 

and other underlying applicable 

requirements, when that threshold 

would be lower. As discussed 

previously, the EPA believes that it is 

appropriate under the CAA, and 

consistent with the EPA’s longstanding 

approach to these programs, for a source 

which is considered to be ‘‘major’’ for 

purposes of NSR to also be considered 

‘‘major’’ for purposes of title V. For the 

reasons stated previously, the EPA 

believes maintaining consistency in the 

major source applicability of the two 

programs in the context of today’s 

rulemaking is the best approach to 

promote consistency and compliance 

with the purposes and requirements of 

the CAA. Additional information can be 

found in the Response to Comments 

document. 

Comment: The EPA received a wide 

range of comments on the question of 

whether the major source thresholds for 

title V permitting should be considered 

a ‘‘control’’ for purposes of the antibacksliding requirements of CAA 

section 172(e). Several commenters 

believed that title V should be 

considered as a control within the 

meaning of CAA section 172(e). One 

commenter stated that title V permits 

represent ‘‘controls’’ for purposes of the 

Act’s anti-backsliding requirements and, 

as such, the EPA should abide by South 

Coast v. EPA and use the same major 

source thresholds for administering the 

title V permit program as the agency 

proposes to for the NSR and RACT 

programs. The commenter stated that 

title V permits serve as independently 

enforceable compliance assurance 

mechanisms that constrain emissions by 

sources and accordingly should be seen 

as control measures. Since title V 

permits collect multiple control 

requirements in one document, there is 

no reason for the agency to depart from 

South Coast v. EPA and treat title V 

permitting classifications differently 

than, for example, NSR permitting. 

A number of commenters stated that 

the title V program is not a control in 

and of itself. One commenter stated that 

the EPA has consistently stated that title 

V is a separate program when compared 

to the requirements of title I. Several 

commenters stated that the history of 

title V rulemaking is clear on this point, 

indicating that the EPA has stated 

repeatedly that no substantive controls 

are imposed simply by having a title V 

permit. Title V should not be considered 

a ‘‘control’’ in light of the fact that title 

V is not intended to impose new 

substantive air quality control 

requirements but is instead intended to 

assure compliance with all existing 

applicable requirements. 

Response: The EPA believes it is 

unnecessary to resolve this precise 

question at this time, because the EPA 

believes that regardless of whether title 

V should be considered a ‘‘control’’ for 

purposes of CAA section 172(e), it 

fulfills the purposes and requirements 

of the CAA for title V permitting 

thresholds to be the same as the 

permitting thresholds for underlying 

applicable requirements, particularly 

NSR. Thus, the EPA is taking final 

action adopting the interpretation that 

major source definitions should be the 

same for both programs. 

V. Environmental Justice 

Considerations 

The CAA requires that states with 

areas designated as nonattainment 

submit to the Administrator the 

appropriate SIP revisions and 

implement specified control measures 

by certain dates applicable to the area’s 

classification. By addressing the 

planning and implementation 

requirements for all areas designated 

nonattainment under the 2008 ozone 

NAAQS, this action protects all those 

residing, working, attending school, or 

otherwise present in those areas 

regardless of minority or economic 

status. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review. This action raises novel policy 

issues. Any changes made in response 

to OMB recommendations have been 

documented in the docket. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this final rule have been submitted 

for approval to the Office of 

Management and Budget under the 

PRA. The Information Collection 

Request (ICR) document that the EPA 

prepared has been assigned the EPA ICR 

number 2347.02 and OMB Reference 

number 2060–0695. You can find a copy 

of the ICR in the docket for this rule, 

and it is briefly summarized here. The 

information collection requirements are 

not enforceable until OMB approves 

them. 

The EPA is finalizing this 2008 ozone 

NAAQS SIP Requirements Rule so that 

states will know what CAA 

requirements apply to their 

nonattainment areas when the states 

develop their SIPs for attaining and 

maintaining the NAAQS. The intended 

effect of the SIP Requirements Rule is to 

provide certainty to states regarding 

their planning obligations such that 

states may begin SIP development. For 

purposes of analysis of the estimated 

paperwork burden, the EPA assumed 46 

nonattainment areas,103 some of which 

must prepare an attainment 

demonstration as well as submit an RFP 

and RACT SIP. The attainment 

demonstration requirement would 

appear in 40 CFR 51.1108 which 

implements CAA subsections 172(c)(1), 

182(b)(1)(A) and 182(c)(2)(B). The RFP 

SIP submission requirement would 

appear in 40 CFR 51.1110, and the 

RACT SIP submission requirement 

would appear in 40 CFR 51.1112, which 

implements CAA subsections 172(c)(1) 

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

States should already have 

information from many emission 


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sources, as facilities should have 

provided this information to meet 1- 

hour and 1997 ozone NAAQS SIP 

requirements, operating permits and/or 

emissions reporting requirements. Such 

information does not generally reveal 

the details of production processes. But, 

to the extent it may, confidential 

business information for the affected 

facilities is protected. Specifically, 

submissions of emissions and control 

efficiency information that is 

confidential, proprietary and trade 

secret is protected from disclosure 

under the requirements of subsections 

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

The annual burden for this 

information collection averaged over the 

first 3 years of this ICR is estimated to 

be a total of 120,000 labor hours per 

year at an annual labor cost of $2.4 

million (present value) over the 3-year 

period or approximately $91,000 per 

state for the 26 state air agency 

respondents, including the District of 

Columbia. The Information Collection 

Request Supporting Statement for the 

2008 8-hour Ozone National Ambient 

Air Quality Standard Implementation 

Rule EPA ICR #2347.02 in the docket 

provides the details for the 26 state air 

agencies that are required to provide the 

58 SIP revisions for the 46 areas 

designated nonattainment for the 2008 

ozone standard. The average annual 

reporting burden is 690 hours per 

response, with approximately 2 

responses per state for 58 state 

responses from the state air agencies. 

There are no capital or operating and 

maintenance costs associated with the 

proposed rule requirements. Burden is 

defined at 5 CFR 1320.3(b). 

Respondents/affected entities: States 

with 46 nonattainment areas. 

Respondent’s obligation to respond: 

Mandatory (CAA, sections 172 and 182). 

Estimated number of respondents: 26 

state respondents. 

Frequency of response: Once. 

Total estimated burden: 40,000 hours 

(per year). Burden is defined at 5 CFR 

1320.3(b). 

Total estimated cost: $2.4 million (per 

year), includes $0 annualized capital or 

operation & maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the agency will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. Entities potentially affected 

directly by this rule include state, local 

and tribal governments and none of 

these governments are small 

governments. Other types of small 

entities are not directly subject to the 

requirements of this rule because this 

action only addresses how a SIP will 

provide for adequate attainment and 

maintenance of the NAAQS and meet 

the obligations of the CAA. Although 

some states may ultimately decide to 

impose economic impacts on small 

entities, that is not required by this rule 

and would only occur at the discretion 

of the state. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action implements 

mandates specifically and explicitly set 

forth in the CAA without the exercise of 

any policy discretion by the EPA. 

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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. It would not have a 

substantial direct effect on one or more 

Indian tribes, since no tribe has to 

develop a TIP under these regulatory 

revisions. Furthermore, these regulation 

revisions do not affect the relationship 

or distribution of power and 

responsibilities between the federal 

government and Indian tribes. The CAA 

and the Tribal Air Rule establish the 

relationship of the federal government 

and tribes in developing plans to attain 

the NAAQS, and these revisions to the 

regulations do nothing to modify that 

relationship. Thus, Executive Order 

13175 does not apply to this action. 

Although Executive Order 13175 does 

not apply to this action, the EPA met 

with tribal officials in developing the 

proposal. Meeting summaries are 

contained in the docket for this 

rulemaking. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution or use of energy. 

This final rule addresses the substantive 

requirements for states with 

nonattainment areas to develop 

planning SIPs and attain the NAAQS. 

I. National Technology Transfer and 

Advancement Act (NTTA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations because it does not affect 

the level of protection provided to 

human health or the environment. 

The final revisions to the regulations 

address the substantive requirements for 

SIPs to attain the NAAQS, which are 

designed to protect all segments of the 

general populations. As such, they do 

not adversely affect the health or safety 

of minority or low-income populations 

and are designed to protect and enhance 

the health and safety of these and other 

populations. The EPA encourages states 

to consider any potential impacts on 

these populations in developing SIPs to 

attain the NAAQS. 


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104See, e.g., State of Texas, et al. v. EPA, 2011 

U.S. App. LEXIS 5654 (5th Cir. 2011) (finding SIP 

call to 13 states to be of nationwide scope and effect 

and thus transferring the case to the U.S. Court of 

Appeals for the D.C. Circuit in accordance with 

CAA section 307(b)(1)). 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

L. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(V), 

the Administrator determines that this 

action is subject to the provisions of 

CAA section 307(d). Section 307(d) 

establishes procedural requirements 

specific to rulemaking under the CAA. 

CAA section 307(d)(1)(V) provides that 

the provisions of CAA section 307(d) 

apply to ‘‘such other actions as the 

Administrator may determine.’’ 

M. Judicial Review 

Section 307(b)(1) of the CAA indicates 

which Federal Courts of Appeal have 

venue for petitions of review of final 

agency actions by the EPA under the 

CAA. This section provides, in part, that 

petitions for review must be filed in the 

U.S. Court of Appeals for the District of 

Columbia Circuit (i) when the agency 

action consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ 

This rule implementing the 2008 

ozone NAAQS is ‘‘nationally 

applicable’’ within the meaning of CAA 

section 307(b)(1). First, the rulemaking 

addresses a NAAQS that applies to all 

states and territories in the U.S. Second, 

the rulemaking addresses issues 

relevant to specific existing SIP 

provisions in states across the U.S. that 

are located in each of the 10 EPA 

Regions, numerous federal circuits and 

multiple time zones. Third, the 

rulemaking addresses a common core of 

knowledge and analysis involved in 

formulating the decision and a common 

interpretation of the requirements of the 

CAA being applied to SIPs in states 

across the country. Fourth, the 

rulemaking, by addressing issues 

relevant to appropriate SIP provisions in 

one state, may have precedential 

impacts upon the SIPs of other states 

nationwide. Courts have found similar 

rulemaking actions to be of nationwide 

scope and effect.104

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by May 4, 2015. Any 

such judicial review is limited to only 

those objections that are raised with 

reasonable specificity in timely 

comments. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed and shall not 

postpone the effectiveness of such rule 

or action. Under section 307(b)(2) of the 

Act, the requirements of this final action 

may not be challenged later in civil or 

criminal proceedings brought by us to 

enforce these requirements. 

Appendix A to Preamble Glossary of 

Terms and Acronyms 

ACT Alternative Control Techniques 

(document) 

AERR Air Emissions Reporting 

Requirements Rule 

BACT Best Available Control Technology 

CAA Clean Air Act 

CAAAC Clean Air Act Advisory Committee 

CAIR Clean Air Interstate Rule 

CERR Consolidated Emissions Reporting 

Rule 

CFR Code of Federal Regulations 

CO Carbon Monoxide 

CSAPR Cross-State Air Pollution Rule 

CTG Control Technique Guideline 

DOT Department of Transportation 

DV Design Value 

EMFAC EMissions FACtors (a mobile 

emissions model) 

EO Executive Order 

ESRP Emissions Statement Reporting 

Program 

EGU Electricity Generating Unit 

EPA Environmental Protection Agency 

FIP Federal Implementation Plan 

GDF Gasoline dispensing facilities 

HEDD High Electric Demand Day 

ICR Information Collection Requirement 

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

check) 

km Kilometers 

LAER Lowest Achievable Emission Rate 

MACT Maximum Achievable Control 

Technology 

MCR Mid-course Review 

MPO Metropolitan Planning Organization 

NAAQS National Ambient Air Quality 

Standards 

NOX Nitrogen Oxides 

NPRM Notice of Proposed Rulemaking 

NSR New Source Review 

NTTAA National Technology Transfer and 

Advancement Act of 1995 

OMB Office of Management and Budget 

ORVR Onboard refueling vapor recovery 

OTR Ozone Transport Region 

PM Particulate Matter 

PM2.5 Fine Particulate Matter 

ppb Parts per Billion 

ppm Parts per Million 

PSD Prevention of Significant Deterioration 

RACM Reasonably Available Control 

Measures 

RACT Reasonably Available Control 

Technology 

RFA Regulatory Flexibility Act 

RFG Reformulated Gasoline 

RFP Reasonable Further Progress 

ROP Rate-of-Progress 

RPO Regional Planning Organization 

SBA Small Business Administration 

SIP State Implementation Plan 

TAR Tribal Authority Rule 

TAS Treatment in the Same Manner as a 

State (‘‘Treatment as State’’) 

TIP Tribal Implementation Plan; also 

Transportation Improvement Program 

(depending on context) 

tpd Tons Per Day 

tpy Tons Per Year 

TSP Total Suspended Particulate 

UMRA Unfunded Mandates Reform Act of 

1995 

VCS Voluntary Consensus Standards 

VOC Volatile Organic Compound 

Appendix B—List of Areas 

Nonattainment for the 2008 Ozone 

NAAQS in Addition to a Prior Ozone 

NAAQS as of April 6, 2015 

This table lists the areas that were 

designated nonattainment for the 2008 ozone 

NAAQS effective July 20, 2012 that were also 

nonattainment for a prior ozone NAAQS 

(1997 NAAQS and/or 1-hour NAAQS) as of 

the date the prior NAAQS was revoked. The 

table also indicates the attainment-related 

status of each area with respect to each of the 

ozone standards, which is relevant to 

understanding which obligations associated 

with the standards applies to each area, as 

detailed in this final rule. Clean Data 

Determination means the area received a 

determination from the EPA that suspends 

the obligation to submit to the EPA certain 

planning requirements associated with a 

standard. Attainment Deadline 

Determination means the EPA determined 

that the area attained a standard by the 

applicable attainment date. No Action means 

the EPA did not determine that the area 

qualified for either a Clean Data 

Determination or a determination of 

attainment by the applicable attainment date. 

The term ‘‘n/a’’ means not applicable for this 

area because the area was not nonattainment 

for the 1-hour ozone NAAQS at the time the 

1-hour NAAQS was revoked (June 15, 2005). 


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2008 Nonattainment area 

name 

2008 8-hour 

ozone 

classification 

1997 8-hour 

ozone 

classification 

1997 8-hour ozone 

attainment determination 

1-hour ozone 

classification 

1-hour ozone 

attainment determination 

Baltimore Area, MD ........... Moderate ........... Serious .............. No Action ........................... Severe-15 ......... Clean Data Determination. 

Calaveras County, CA1 ..... Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

n/a ..................... n/a. 

Chico Area, CA .................. Marginal ............ Marginal ............ Clean Data Determination, 

Attainment Deadline Determination.

n/a ..................... n/a. 

Dallas-Fort Worth Area, 

TX1.

Moderate ........... Serious .............. No Action ........................... Serious .............. Clean Data Determination. 

Denver-Boulder-Greeley-Ft. 

Collins-Loveland Area, 

CO.

Marginal ............ Marginal ............ No Action ........................... n/a ..................... n/a. 

Dukes County, MA1 .......... Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

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

Attainment Deadline Determination. 

Greater Connecticut Area, 

CT.

Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

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

Houston-GalvestonBrazoria Area, TX.Marginal ............ Severe-15 ......... No Action ........................... Severe-17 ......... No Action. 

Imperial County Area, CA .. Marginal ............ Moderate ........... Clean Data Determination n/a ..................... n/a. 

Jamestown Area, NY ......... Marginal ............ Moderate ........... Clean Data Determination 2 n/a ..................... n/a. 

Kern County (Eastern 

Kern) Area, CA.

Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

n/a ..................... n/a. 

Los Angeles and San 

Bernardino Counties (W 

Mojave Desert) Area, CA.

Severe-15 ......... Severe-15 ......... No Action ........................... Severe-17 ......... No Action. 

Los Angeles-South Coast 

Air Basin Area, CA.

Extreme ............. Extreme ............. No Action ........................... Extreme ............. No Action. 

Mariposa County, CA1 ...... Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

n/a ..................... n/a. 

Morongo Areas of Indian 

Country (Morongo Band 

of Mission Indians) 3.

Serious .............. Severe-17 ......... No Action ........................... Severe-17 ......... No Action. 

Nevada County (Western 

part) Area, CA.

Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

n/a ..................... n/a. 

New York-N. New JerseyLong Island Area, NYNJ-CT.Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

Severe-17 ......... Clean Data Determination. 

Pechanga Areas of Indian 

Country (Pechanga Band 

of Luiseno Mission Indians of the Pechanga 

Reservation) 4.

Moderate ........... Severe-17 ......... No Action ........................... Extreme ............. No Action. 

Philadelphia-Wilmington-Atlantic City Area, PA-NJMD-DE1.Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

Severe-15 ......... Clean Data Determination, 

Attainment Deadline Determination. 

Pittsburgh-Beaver Valley 

Area, PA.

Marginal ............ Moderate ........... Clean Data Determination 2 n/a ..................... n/a. 

Riverside County 

(Coachella Valley) Area 

(1-hr Southeast Desert), 

CA.

Severe-15 ......... Severe-15 ......... No Action ........................... Severe-17 ......... No Action. 

Sacramento Metro Area, 

CA.

Severe-15 ......... Severe-15 ......... No Action ........................... Severe-15 ......... Clean Data Determination. 

San Francisco Bay Area, 

CA.

Marginal ............ Marginal ............ No Action ........................... Other ................. Clean Data Determination, 

Attainment Deadline Determination. 

San Joaquin Valley Area, 

CA.

Extreme ............. Extreme ............. No Action ........................... Extreme ............. No Action. 

Seaford, DE5 ..................... Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

Marginal ............ Clean Data Determination, 

Attainment Deadline Determination. 

Sheboygan County, WI ...... Marginal ............ Moderate ........... Clean Data Determination n/a ..................... n/a. 

Ventura County (part) 

Area, CA.

Serious .............. Serious .............. Clean Data Determination Severe-15 ......... Clean Data Determination, 

Attainment Deadline Determination. 


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2008 Nonattainment area 

name 

2008 8-hour 

ozone 

classification 

1997 8-hour 

ozone 

classification 

1997 8-hour ozone 

attainment determination 

1-hour ozone 

classification 

1-hour ozone 

attainment determination 

Washington Area, DC-MDVA.Marginal ............ Moderate ........... Clean Data Determination, 

Attainment Deadline Determination.

Severe-15 ......... Clean Data Determination, 

Attainment Deadline Determination. 

1 2008 ozone NAAQS nonattainment area boundary differs from 1997 and (where applicable) 1-hr ozone NAAQS nonattainment area boundary. 2Former subpart 1 areas with Determinations of Attainment prior to subpart 2 classification on May 14, 2012 (77 FR 28424). An Attainment 

Deadline Determination for these areas for the 1997 ozone NAAQS attainment dates is pending with the EPA. 3Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries. The EPA published a correction of the classification for the 1997 ozone and 1-hr ozone NAAQS on September 23, 2013 (78 FR 58189). 4Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries. The EPA published a correction of the classification for the 1997 ozone NAAQS on May 5, 2010 (75 FR 24409). 5Part of the Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE for 1997 ozone nonattainment area boundary, and part of the Sussex 

County, DE ozone nonattainment area boundary for the 1-hour ozone NAAQS. 

Statutory Authority 

The statutory authority for this action 

is provided by sections 109; 110; 172; 

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

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

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

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

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

List of Subjects 

40 CFR Part 50 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

40 CFR Part 51 

Air pollution control, 

Intergovernmental relations, Ozone, 

Particulate matter, Transportation, 

Volatile organic compounds. 

40 CFR Part 52 

Air pollution control, Incorporation 

by reference, Intergovernmental 

relations, Ozone, Particulate matter. 

40 CFR Part 70 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen oxides, Operating 

permits, Ozone, Particulate matter, 

Reporting and record keeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 71 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Nitrogen oxides, Operating 

permits, Ozone, Particulate matter, 

Reporting and record keeping 

requirements, Volatile organic 

compounds. 

Dated: February 13, 2015. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, Chapter I of the Code 

of Federal Regulations is 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. In § 50.10, revise paragraph (c) to 

read as follows: 

§ 50.10 National 8-hour primary and 

secondary ambient air quality standards for 

ozone. 

* * * * * 

(c) Until the effective date of the final 

Implementation of the 2008 National 

Ambient Air Quality Standards for 

Ozone: State Implementation Plan 

Requirements Rule (final SIP 

Requirements Rule) to be codified at 40 

CFR 51.1100 et seq., the 1997 ozone 

NAAQS set forth in this section will 

continue in effect, notwithstanding the 

promulgation of the 2008 ozone NAAQS 

under § 50.15. The 1997 ozone NAAQS 

set forth in this section will no longer 

apply upon the effective date of the final 

SIP Requirements Rule. For purposes of 

the anti-backsliding requirements of 

§ 51.1105, § 51.165 and Appendix S to 

part 51, the area designations and 

classifications with respect to the 

revoked 1997 ozone NAAQS are 

codified in 40 CFR part 81. 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

■ 3. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

Subpart X—Provisions for 

Implementation of 8-Hour Ozone 

National Ambient Air Quality 

Standards 

■ 4. Add § 51.919 to read as follows: 

§ 51.919 Applicability. 

As of April 6, 2015, the provisions of 

subpart AA shall replace the provisions 

of subpart X, §§ 51.900 to 51.918, which 

will cease to apply, with the exception 

of the attainment date extension 

provisions of § 51.907 for the antibacksliding purposes of § 51.1105(d)(2). 

Subpart AA—Provisions for 

Implementation of the 2008 Ozone 

National Ambient Air Quality 

Standards 

■ 5. In § 51.1100, add paragraphs (o) 

through (cc) to read as follows: 

§ 51.1100 Definitions. 

* * * * * 

(o) Applicable requirements for an 

area for anti-backsliding purposes 

means the following requirements, to 

the extent such requirements apply to 

the area pursuant to its classification 

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

hour NAAQS or 40 CFR 51.902 for the 

1997 ozone NAAQS at the time of 

revocation of the 1997 ozone NAAQS: 

(1) Reasonably available control 

technology (RACT) under CAA sections 

172(c)(1) and 182(b)(2). 

(2) Vehicle inspection and 

maintenance programs (I/M) under CAA 

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

(3) Major source applicability 

thresholds for purposes of RACT under 

CAA sections 172(c)(2), 182(b), 182(c), 

182(d), and 182(e). 

(4) Reductions to achieve Reasonable 

Further Progress (RFP) under CAA 

sections172(c)(2), 182(b)(1)(A), and 

182(c)(2)(B). 

(5) Clean fuels fleet program under 

CAA section183(c)(4). 

(6) Clean fuels for boilers under CAA 

section 182(e)(3). 


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(7) Transportation Control Measures 

(TCMs) during heavy traffic hours as 

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

(8) Enhanced (ambient) monitoring 

under CAA section 182(c)(1). 

(9) Transportation controls under 

CAA section 182(c)(5). 

(10) Vehicle miles traveled provisions 

of CAA section 182(d)(1). 

(11) NOX requirements under CAA 

section 182(f). 

(12) Attainment demonstration 

requirements under CAA sections 

172(c)(4), 182(b)(1)(A), and 182(c)(2). 

(13) Nonattainment contingency 

measures required under CAA sections 

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

attain the 1-hour or 1997 ozone NAAQS 

by the applicable attainment date or to 

make reasonable further progress toward 

attainment of the 1-hour or 1997 ozone 

NAAQS. 

(14) Nonattainment NSR major source 

thresholds and offset ratios under CAA 

sections 172(a)(5) and 182(a)(2). 

(15) Penalty fee program requirements 

for Severe and Extreme Areas under 

CAA section 185. 

(16) Contingency measures associated 

with areas utilizing CAA section 

182(e)(5). 

(17) Reasonably available control 

measures (RACM) requirements under 

CAA section 172(c)(1). 

(p) CSAPR means the Cross State Air 

Pollution Rule codified at 40 CFR 52.38 

and part 97. 

(q) CAIR means the Clean Air 

Interstate Rule codified at 40 CFR 

51.123, 52.35 and part 95. 

(r) NOX SIP Call means the rules 

codified at 40 CFR 51.121 and 51.122. 

(s) Ozone transport region (OTR) 

means the area established by CAA 

section 184(a) or any other area 

established by the Administrator 

pursuant to CAA section 176A for 

purposes of ozone. 

(t) Reasonable further progress (RFP) 

means both the emissions reductions 

required under CAA section 172(c)(2) 

which EPA interprets to be an average 

3 percent per year emissions reductions 

of either VOC or NOX and CAA sections 

182(c)(2)(B) and (c)(2)(C) and the 15 

percent reductions over the first six 

years of the plan and the following three 

percent per year average under 

§ 51.1110. 

(u) Rate-of-progress (ROP) means the 

15 percent progress reductions in VOC 

emissions over the first 6 years required 

under CAA section 182(b)(1). 

(v) Revocation of the 1-hour NAAQS 

means the time at which the 1-hour 

NAAQS no longer apply to an area 

pursuant to 40 CFR 50.9(b). 

(w) Revocation of the 1997 ozone 

NAAQS means the time at which the 

1997 8-hour NAAQS no longer apply to 

an area pursuant to 40 CFR 50.10(c). 

(x) Subpart 1 means subpart 1 of part 

D of title I of the CAA. 

(y) Subpart 2 means subpart 2 of part 

D of title I of the CAA. 

(z) I/M refers to the inspection and 

maintenance programs for in-use 

vehicles required under the 1990 CAA 

Amendments and defined by subpart S 

of 40 CFR part 51. 

(aa) An area ‘‘Designated 

nonattainment for the 1-hour ozone 

NAAQS’’ means, for purposes of 40 CFR 

51.1105, an area that is subject to 

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

revocation of the 1997 ozone NAAQS. 

(bb) Base year inventory for the 

nonattainment area means a 

comprehensive, accurate, current 

inventory of actual emissions from 

sources of VOC and NOX emitted within 

the boundaries of the nonattainment 

area as required by CAA section 

182(a)(1). 

(cc) Ozone season day emissions 

means an average day’s emissions for a 

typical ozone season work weekday. 

The state shall select, subject to EPA 

approval, the particular month(s) in the 

ozone season and the day(s) in the work 

week to be represented, considering the 

conditions assumed in the development 

of RFP plans and/or emissions budgets 

for transportation conformity. 

■ 6. In § 51.1103, revise the section 

heading and Table 1 in paragraph (a) to 

read as follows: 

§ 51.1103 Application of classification and 

attainment date provisions in CAA section 

181 to areas subject to § 51.1102. 

(a) * * * 

TABLE 1—CLASSIFICATIONS AND ATTAINMENT DATES FOR 2008 8-HOUR OZONE NAAQS (0.075 PPM) FOR AREAS

SUBJECT TO CFR SECTION 51.1102 

Area class 

8-hour design 

value (ppm 

ozone) 

Primary standard 

attainment date 

(years after the 

effective date of 

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 


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* * * * * 

■ 7. Add §§ 51.1104 through 51.1119 to 

read as follows: 

* * * * * 

51.1104 [Reserved] 

51.1105 Transition from the 1997 ozone 

NAAQS to the 2008 ozone NAAQS and antibacksliding. 

51.1106 Redesignation to nonattainment 

following initial designations. 

51.1107 Determining eligibility for 1-year 

attainment date extensions for the 2008 

ozone NAAQS under CAA section 181(a)(5). 

51.1108 Modeling and attainment 

demonstration requirements. 

51.1109 [Reserved]. 

51.1110 Requirements for reasonable 

further progress (RFP). 

51.1111 [Reserved]. 

51.1112 Requirements for reasonably 

available control technology (RACT) and 

reasonably available control measures 

(RACM). 

51.1113 Section 182(f) NOX exemption 

provisions. 

51.1114 New source review requirements. 

51.1115 Emissions inventory 

requirements. 

51.1116 Requirements for an Ozone 

Transport Region. 

51.1117 Fee programs for Severe and 

Extreme nonattainment areas that fail to 

attain. 

51.1118 Suspension of SIP planning 

requirements in nonattainment areas that 

have air quality data that meet an ozone 

NAAQS. 

51.1119 Applicability. 

* * * * * 

§ 51.1104 [Reserved] 

§ 51.1105 Transition from the 1997 ozone 

NAAQS to the 2008 ozone NAAQS and antibacksliding. 

(a) Requirements that continue to 

apply after revocation of the 1997 ozone 

NAAQS—(1) 2008 ozone NAAQS 

nonattainment and 1997 ozone NAAQS 

nonattainment. The following 

requirements apply to an area 

designated nonattainment for the 2008 

ozone NAAQS and also designated 

nonattainment for the 1997 ozone 

NAAQS, or nonattainment for both the 

1997 and 1-hour ozone NAAQS, at the 

time of revocation of the respective 

ozone NAAQS: The area remains subject 

to the obligation to adopt and 

implement the applicable requirements 

of § 51.1100(o), for any ozone NAAQS 

for which it was designated 

nonattainment at the time of revocation, 

in accordance with its classification for 

that NAAQS at the time of that 

revocation, except as provided in 

paragraph (b) of this section. 

(2) 2008 ozone NAAQS 

nonattainment and 1997 ozone NAAQS 

maintenance. For an area designated 

nonattainment for the 2008 ozone 

NAAQS that was redesignated to 

attainment for the 1997 ozone NAAQS 

prior to April 6, 2015 (hereinafter a 

‘‘maintenance area’’) the SIP, including 

the maintenance plan, is considered to 

satisfy the applicable requirements of 40 

CFR 51.1100(o) for the revoked NAAQS. 

The measures in the SIP and 

maintenance plan shall continue to be 

implemented in accordance with the 

terms in the SIP. Any measures 

associated with applicable requirements 

that were shifted to contingency 

measures prior to April 6, 2015 may 

remain in that form. After April 6, 2015, 

and to the extent consistent with any 

SIP for the 2008 ozone NAAQS and 

with CAA sections 110(l) and 193, the 

state may request that obligations under 

the applicable requirements of 

§ 51.1100(o) be shifted to the SIP’s list 

of maintenance plan contingency 

measures for the area. 

(3) 2008 ozone NAAQS attainment 

and 1997 ozone NAAQS nonattainment. 

For an area designated attainment for 

the 2008 ozone NAAQS, and designated 

nonattainment for the 1997 ozone 

NAAQS as of April 6, 2015 or for both 

the 1997 and the 1-hour ozone NAAQS 

as of the respective dates of their 

revocations, the area is no longer subject 

to nonattainment NSR and the state may 

at any time request that the 

nonattainment NSR provisions 

applicable to the area be removed from 

the SIP. The state may request, 

consistent with CAA sections 110(l) and 

193, that SIP measures adopted to 

satisfy other applicable requirements of 

§ 51.1100(o) be shifted to the SIP’s list 

of maintenance plan contingency 

measures for the area. The area’s 

approved PSD SIP shall be considered 

to satisfy the state’s obligations with 

respect to the area’s maintenance of the 

2008 ozone NAAQS pursuant to CAA 

section 110(a)(1). 

(4) 2008 ozone NAAQS attainment 

and 1997 ozone NAAQS maintenance. 

An area designated attainment for the 

2008 ozone NAAQS with an approved 

CAA section 175A maintenance plan for 

the 1997 ozone NAAQS is considered to 

satisfy the applicable requirements of 40 

CFR 51.1100(o) through implementation 

of the SIP and maintenance plan 

provisions for the area. After April 6, 

2015, and to the extent consistent with 

CAA sections 110(l) and 193, the state 

may request that obligations under the 

applicable requirements of 40 CFR 

51.1100(o) be shifted to the list of 

maintenance plan contingency measures 

for the area. For an area that is initially 

designated attainment for the 2008 

ozone NAAQS and which has been 

redesignated to attainment for the 1997 

ozone NAAQS with an approved CAA 

section 175A maintenance plan and an 

approved PSD SIP, the area’s approved 

maintenance plan and the state’s 

approved PSD SIP for the area are 

considered to satisfy the state’s 

obligations with respect to the area’s 

maintenance of the 2008 ozone NAAQS 

pursuant to CAA section 110(a)(1). 

(b) Effect of Redesignation or 

Redesignation Substitute. (1) An area 

remains subject to the anti-backsliding 

obligations for a revoked NAAQS under 

paragraphs (a)(1) and (2) of this section 

until either EPA approves a 

redesignation to attainment for the area 

for the 2008 ozone NAAQS; or EPA 

approves a demonstration for the area in 

a redesignation substitute procedure for 

a revoked NAAQS. Under this 

redesignation substitute procedure for a 

revoked NAAQS, and for this limited 

anti-backsliding purpose, the 

demonstration must show that the area 

has attained that revoked NAAQS due 

to permanent and enforceable emission 

reductions and that the area will 

maintain that revoked NAAQS for 10 

years from the date of EPA’s approval of 

this showing. 

(2) If EPA, after notice-and-comment 

rulemaking, approves a redesignation to 

attainment, the state may request that 

provisions for nonattainment NSR be 

removed from the SIP, and that other 

anti-backsliding obligations be shifted to 

contingency measures provided that 

such action is consistent with CAA 

sections 110(l) and 193. If EPA, after 

notice and comment rulemaking, 

approves a redesignation substitute for a 

revoked NAAQS, the state may request 

that provisions for nonattainment NSR 

for that revoked NAAQS be removed, 

and that other anti-backsliding 

obligations for that revoked NAAQS be 

shifted to contingency measures 

provided that such action is consistent 

with CAA sections 110(l) and 193. 

(c) Portions of an area designated 

nonattainment or attainment for the 

2008 ozone NAAQS that remain subject 

to the obligations identified in 

paragraph (a) of this section. Only that 

portion of the designated nonattainment 

or attainment area for the 2008 ozone 

NAAQS that was required to adopt the 

applicable requirements in § 51.1100(o) 

for purposes of the 1-hour or 1997 ozone 

NAAQS is subject to the obligations 


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identified in paragraph (a) of this 

section. Subpart C of 40 CFR part 81 

identifies the areas designated 

nonattainment and associated area 

boundaries for the 1997 ozone NAAQS 

at the time of revocation. Areas that are 

designated nonattainment for the 1997 

ozone NAAQS at the time of designation 

for the 2008 ozone NAAQS may be 

redesignated to attainment prior to the 

effective date of revocation of that ozone 

NAAQS. 

(d) Obligations under the 1997 ozone 

NAAQS that no longer apply after 

revocation of the 1997 ozone NAAQS— 

(1) Second 10-year Maintenance plans. 

As of April 6, 2015, an area with an 

approved 1997 ozone NAAQS 

maintenance plan under CAA section 

175A is not required to submit a second 

10-year maintenance plan for the 1997 

ozone NAAQS 8 years after approval of 

the initial 1997 ozone NAAQS 

maintenance plan. 

(2) Determinations of failure to attain 

the 1997 and/or 1-hour NAAQS. (i) As 

of April 6, 2015, the EPA is no longer 

obligated to determine pursuant to CAA 

section 181(b)(2) or section 179(c) 

whether an area attained the 1997 ozone 

NAAQS by that area’s attainment date 

for the 1997 ozone NAAQS. 

(ii) As of April 6, 2015, the EPA is no 

longer obligated to reclassify an area to 

a higher classification for the 1997 

ozone NAAQS based upon a 

determination that the area failed to 

attain the 1997 ozone NAAQS by the 

area’s attainment date for the 1997 

ozone NAAQS. 

(iii) For the revoked 1-hour and 1997 

ozone NAAQS, the EPA is required to 

determine whether an area attained the 

1-hour or 1997 ozone NAAQS by the 

area’s attainment date solely for antibacksliding purposes to address an 

applicable requirement for 

nonattainment contingency measures 

and CAA section 185 fee programs. In 

making such a determination, the EPA 

may consider and apply the provisions 

of CAA section 181(a)(5) and former 40 

CFR 51.907 in interpreting whether a 1- 

year extension of the attainment date is 

applicable under CAA section 

172(a)(2)(C). 

(e) Continued applicability of the FIP 

and SIP requirements pertaining to 

interstate transport under CAA section 

110(a)(2)(D)(i) and (ii) after revocation 

of the 1997 ozone NAAQS. All control 

requirements associated with a FIP or 

approved SIP in effect for an area as of 

April 6, 2015, such as the NOX SIP Call, 

the CAIR, or the CSAPR shall continue 

to apply after revocation of the 1997 

ozone NAAQS. Control requirements 

approved into the SIP pursuant to 

obligations arising from CAA section 

110(a)(2)(D)(i) and (ii), including 40 CFR 

51.121, 51.122, 51.123 and 51.124, may 

be modified by the state only if the 

requirements of §§ 51.121, 51.122, 

51.123 and 51.124, including statewide 

NOX emission budgets continue to be in 

effect. Any such modification must meet 

the requirements of CAA section 110(l). 

(f) New source review. An area 

designated nonattainment for the 2008 

ozone NAAQS and designated 

nonattainment for the 1997 ozone 

NAAQS on April 6, 2015 remains 

subject to the obligation to adopt and 

implement the major source threshold 

and offset requirements for 

nonattainment NSR that apply or 

applied to the area pursuant to CAA 

sections 172(c)(5), 173 and 182 based on 

the highest of: (i) The area’s 

classification under CAA section 

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

the effective date of revocation of the 1- 

hour ozone NAAQS; (ii) the area’s 

classification under 40 CFR 51.903 for 

the 1997 ozone NAAQS as of the date 

a permit is issued or as of April 6, 2015, 

whichever is earlier; and (iii) the area’s 

classification under § 51.1103 for the 

2008 ozone NAAQS. Upon removal of 

nonattainment NSR obligations for a 

revoked NAAQS under § 51.1105(b), the 

state remains subject to the obligation to 

adopt and implement the major source 

threshold and offset requirements for 

nonattainment NSR that apply or 

applied to the area for the remaining 

applicable NAAQS consistent with this 

paragraph. 

§ 51.1106 Redesignation to nonattainment 

following initial designations. 

For any area that is initially 

designated attainment for the 2008 

ozone NAAQS and that is subsequently 

redesignated to nonattainment for the 

2008 ozone NAAQS, any absolute, fixed 

date applicable in connection with the 

requirements of this part other than an 

attainment date is extended by a period 

of time equal to the length of time 

between the effective date of the initial 

designation for the 2008 ozone NAAQS 

and the effective date of redesignation, 

except as otherwise provided in this 

subpart. The maximum attainment date 

for a redesignated area would be based 

on the area’s classification, consistent 

with Table 1 in § 51.1103. 

§ 51.1107 Determining eligibility for 1-year 

attainment date extensions for the 2008 

ozone NAAQS under CAA section 181(a)(5). 

(a) A nonattainment area will meet 

the requirement of CAA section 

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

extensions of the attainment date if: 

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

area’s 4th highest daily maximum 8 

hour average in the attainment year is 

0.075 ppm or less. 

(2) For the second 1-year extension, 

the area’s 4th highest daily maximum 8 

hour value, averaged over both the 

original attainment year and the first 

extension year, is 0.075 ppm or less. 

(b) For purposes of paragraph (a) of 

this section, the area’s 4th highest daily 

maximum 8 hour average for a year 

shall be from the monitor with the 

highest 4th highest daily maximum 8 

hour average for that year of all the 

monitors that represent that area. 

§ 51.1108 Modeling and attainment 

demonstration requirements. 

(a) An area classified as Moderate 

under § 51.1103(a) shall be subject to 

the attainment demonstration 

requirement applicable for that 

classification under CAA section 182(b), 

and such demonstration is due no later 

than 36 months after the effective date 

of the area’s designation for the 2008 

ozone NAAQS. 

(b) An area classified as Serious or 

higher under § 51.1103(a) shall be 

subject to the attainment demonstration 

requirement applicable for that 

classification under CAA section 182(c), 

and such demonstration is due no later 

than 48 months after the effective date 

of the area’s designation for the 2008 

ozone NAAQS. 

(c) Attainment demonstration criteria. 

An attainment demonstration due 

pursuant to paragraph (a) or (b) of this 

section must meet the requirements of 

§ 51.112; the adequacy of an attainment 

demonstration shall be demonstrated by 

means of a photochemical grid model or 

any other analytical method determined 

by the Administrator, in the 

Administrator’s discretion, to be at least 

as effective. 

(d) Implementation of control 

measures. For each nonattainment area, 

the state must provide for 

implementation of all control measures 

needed for attainment no later than the 

beginning of the attainment year ozone 

season. 

§ 51.1109 [Reserved] 

§ 51.1110 Requirements for reasonable 

further progress (RFP). 

(a) RFP for nonattainment areas 

classified pursuant to § 51.1103. The 

RFP requirements specified in CAA 

section 182 for that area’s classification 

shall apply. 

(1) Submission deadline. For each 

area classified as Moderate or higher 

pursuant to § 51.1103, the state shall 

submit a SIP revision no later than 36 

months after the effective date of 

designation as nonattainment for the 

2008 ozone NAAQS that provides for 


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RFP as described in paragraphs (a)(2) 

through (4) of this section. 

(2) RFP requirements for areas with 

an approved 1-hour or 1997 ozone 

NAAQS 15 percent VOC ROP plan. An 

area classified as Moderate or higher 

that has the same boundaries as an area, 

or is entirely composed of several areas 

or portions of areas, for which EPA fully 

approved a 15 percent plan for the 1- 

hour or 1997 ozone NAAQS is 

considered to have met the 

requirements of CAA section 182(b)(1) 

for the 2008 ozone NAAQS and instead: 

(i) If classified as Moderate or higher, 

the area is subject to the RFP 

requirements under CAA section 

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

that: 

(A) Provides for a 15 percent emission 

reduction from the baseline year within 

6 years after the baseline year; 

(B) Provides for an additional 

emissions reduction of 3 percent per 

year from the end of the first 6 years up 

to the beginning of the attainment year 

if a baseline year earlier than 2011 is 

used; and 

(C) Relies on either NOX or VOC 

emissions reductions (or a combination) 

to meet the requirements of paragraphs 

(a)(2)(i)(A) and (B) of this section. Use 

of NOX emissions reductions must meet 

the criteria in CAA section 182(c)(2)(C). 

(ii) If classified as Serious or higher, 

the area is also subject to RFP under 

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

submit a SIP revision no later than 48 

months after the effective date of 

designation providing for an average 

emissions reduction of 3 percent per 

year: 

(A) For all remaining 3-year periods 

after the first 6-year period until the 

year of the area’s attainment date; and 

(B) That relies on either NOX or VOC 

emissions reductions (or a combination) 

to meet the requirements of paragraphs 

(a)(2)(ii)(A) and (B) of this section. Use 

of NOX emissions reductions must meet 

the criteria in CAA section 182(c)(2)(C). 

(3) RFP requirements for areas for 

which an approved 15 percent VOC 

ROP plan for the 1-hour or 1997 ozone 

NAAQS exists for only a portion of the 

area. An area that contains one or more 

portions for which EPA fully approved 

a 15 percent VOC ROP plan for the 1- 

hour or 1997 ozone NAAQS (as well as 

areas for which EPA has not fully 

approved a 15 percent plan for either 

the 1-hour or 1997 ozone NAAQS) shall 

meet the requirements of either 

paragraph (a)(3)(i) or (ii) of this section. 

(i) The state shall not distinguish 

between the portion of the area with a 

previously approved 15 percent ROP 

plan and the portion of the area without 

such a plan, and shall meet the 

requirements of (a)(4) of this section for 

the entire nonattainment area. 

(ii) The state shall treat the area as 

two parts, each with a separate RFP 

target as follows: 

(A) For the portion of the area without 

an approved 15 percent VOC ROP plan 

for the 1-hour or 1997 ozone NAAQS, 

the state shall submit a SIP revision as 

required under paragraph (a)(4) of this 

section. 

(B) For the portion of the area with an 

approved 15 percent VOC ROP plan for 

the 1-hour or 1997 ozone NAAQS, the 

state shall submit a SIP as required 

under paragraph (a)(2) of this section. 

(4) ROP Requirements for areas 

without an approved 1-hour or 1997 

ozone NAAQS 15 percent VOC ROP 

plan. (i) For each area, the state shall 

submit a SIP revision consistent with 

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

period referenced in CAA section 

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

year following the year used for the 

baseline emissions inventory. 

(ii) For Moderate areas, the plan must 

provide for an additional 3 percent per 

year reduction from the end of the first 

6 years up to the beginning of the 

attainment year if a baseline year from 

2008 to 2010 is used. 

(iii) For each area classified as Serious 

or higher, the state shall submit a SIP 

revision consistent with CAA section 

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

progress must be achieved no later than 

the attainment date for the area. 

(5) Creditability of emission control 

measures for RFP plans. Except as 

specifically provided in CAA section 

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

182(c)(2)(B), and 40 CFR 51.1110(a)(6), 

all emission reductions from SIPapproved or federally promulgated 

measures that occur after the baseline 

emissions inventory year are creditable 

for purposes of the RFP requirements in 

this section, provided the reductions 

meet the requirements for creditability, 

including the need to be enforceable, 

permanent, quantifiable, and surplus. 

(6) Creditability of out-of-area 

emissions reductions. For each area 

classified as Moderate or higher 

pursuant to § 51.1103, in addition to the 

restrictions on the creditability of 

emission control measures listed in 

§ 51.1110(a)(5), creditable emission 

reductions for fixed percentage 

reduction RFP must be obtained from 

sources within the nonattainment area. 

(7) Calculation of non-creditable 

emissions reductions. The following 

four categories of control measures 

listed in CAA section 182(b)(1)(D) are 

no longer required to be calculated for 

exclusion in RFP analyses because the 

Administrator has determined that due 

to the passage of time the effect of these 

exclusions would be de minimis: 

(i) Measures related to motor vehicle 

exhaust or evaporative emissions 

promulgated by January 1, 1990; 

(ii) Regulations concerning Reid vapor 

pressure promulgated by November 15, 

1990; 

(iii) Measures to correct previous 

RACT requirements; and 

(iv) Measures required to correct 

previous I/M programs. 

(b) Baseline emissions inventory for 

RFP plans. For the RFP plans required 

under this section, at the time of 

designation for the 2008 ozone NAAQS 

the baseline emissions inventory shall 

be the emissions inventory for the most 

recent calendar year for which a 

complete triennial inventory is required 

to be submitted to EPA under the 

provisions of subpart A of this part. 

States may use an alternative baseline 

emissions inventory provided the state 

demonstrates why it is appropriate to 

use the alternative baseline year, and 

provided that the year selected is 

between the years 2008 to 2012. All 

states associated with a multi-state 

nonattainment area must consult and 

agree on a single alternative baseline 

year. The emissions values included in 

the inventory required by this section 

shall be actual ozone season day 

emissions as defined by § 51.1100(cc). 

§ 51.1111 [Reserved] 

§ 51.1112 Requirements for reasonably 

available control technology (RACT) and 

reasonably available control measures 

(RACM). 

(a) RACT requirement for areas 

classified pursuant to § 51.1103. (1) For 

each nonattainment area classified 

Moderate or higher, the state shall 

submit a SIP revision that meets the 

VOC and NOX RACT requirements in 

CAA sections 182(b)(2) and 182(f). 

(2) The state shall submit the RACT 

SIP for each area no later than 24 

months after the effective date of 

designation for the 2008 ozone NAAQS. 

(3) The state shall provide for 

implementation of RACT as 

expeditiously as practicable but no later 

than January 1 of the 5th year after the 

effective date of designation for the 2008 

ozone NAAQS. 

(b) Determination of major stationary 

sources for applicability of RACT 

provisions. The amount of VOC and 

NOX emissions are to be considered 

separately for purposes of determining 

whether a source is a major stationary 

source as defined in CAA section 302. 

(c) Reasonably Available Control 

Measures (RACM) requirement. For each 

nonattainment area required to submit 

an attainment demonstration under 


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§ 51.1108(a) and (b), the state shall 

submit with the attainment 

demonstration a SIP revision 

demonstrating that it has adopted all 

RACM necessary to demonstrate 

attainment as expeditiously as 

practicable and to meet any RFP 

requirements. 

§ 51.1113 Section 182(f) NOX exemption 

provisions. 

(a) A person or a state may petition 

the Administrator for an exemption 

from NOX obligations under CAA 

section 182(f) for any area designated 

nonattainment for the 2008 ozone 

NAAQS and for any area in a CAA 

section 184 ozone transport region. 

(b) The petition must contain 

adequate documentation that the criteria 

in CAA section 182(f) are met. 

(c) A CAA section 182(f) NOX

exemption granted for the 1-hour or 

1997 ozone NAAQS does not relieve the 

area from any NOX obligations under 

CAA section 182(f) for the 2008 ozone 

NAAQS. 

§ 51.1114 New source review 

requirements. 

The requirements for nonattainment 

NSR for the ozone NAAQS are located 

in § 51.165. For each nonattainment 

area, the state shall submit a 

nonattainment NSR plan or plan 

revision for the 2008 ozone NAAQS no 

later than 36 months after the effective 

date of the area’s designation for the 

2008 ozone NAAQS. 

§ 51.1115 Emissions inventory 

requirements. 

(a) For each nonattainment area, the 

state shall submit a base year inventory 

as defined by § 51.1100(bb) to meet the 

emissions inventory requirement of 

CAA section 182(a)(1). This inventory 

shall be submitted no later than 24 

months after the effective date of 

designation. The inventory year shall be 

selected consistent with the baseline 

year for the RFP plan as required by 

§ 51.1110(b). 

(b) For each nonattainment area, the 

state shall submit a periodic emission 

inventory of emissions sources in the 

area to meet the requirement in CAA 

section 182(a)(3)(A). With the exception 

of the inventory year and timing of 

submittal, this inventory shall be 

consistent with the requirements of 

paragraph (a) of this section. Each 

periodic inventory shall be submitted 

no later than the end of each 3-year 

period after the required submission of 

the base year inventory for the 

nonattainment area. This requirement 

shall apply until the area is redesignated 

to attainment. 

(c) The emissions values included in 

the inventories required by paragraphs 

(a) and (b) of this section shall be actual 

ozone season day emissions as defined 

by § 51.1100(cc). 

(d) The state shall report emissions 

from point sources according to the 

point source emissions thresholds of the 

Air Emissions Reporting Requirements 

(AERR), 40 CFR part 51, subpart A. 

(e) The data elements in the emissions 

inventory shall be consistent with the 

detail required by 40 CFR part 51, 

subpart A. Since only emissions within 

the boundaries of the nonattainment 

area shall be included as defined by 

§ 51.1100(cc), this requirement shall 

apply to the emissions inventories 

required in this section instead of any 

total county requirements contained in 

40 CFR part 51, subpart A. 

§ 51.1116 Requirements for an Ozone 

Transport Region. 

(a) In general. CAA sections 176A and 

184 apply for purposes of the 2008 

ozone NAAQS. 

(b) RACT requirements for certain 

portions of an Ozone Transport Region. 

(1) The state shall submit a SIP revision 

that meets the RACT requirements of 

CAA section 184(b)(2) for all portions of 

the state located in an ozone transport 

region. 

(2) The state shall submit the RACT 

revision no later than 24 months after 

designation for the 2008 ozone NAAQS 

and shall provide for implementation of 

RACT as expeditiously as practicable 

but no later than January 1 of the 5th 

year after designation for the 2008 ozone 

NAAQS. 

§ 51.1117 Fee programs for Severe and 

Extreme nonattainment areas that fail to 

attain. 

For each area classified as Severe or 

Extreme for the 2008 ozone NAAQS, the 

state shall submit a SIP revision within 

10 years of the effective date of 

designation that meets the requirements 

of CAA section 185. 

§ 51.1118 Suspension of SIP planning 

requirements in nonattainment areas that 

have air quality data that meet an ozone 

NAAQS. 

Upon a determination by EPA that an 

area designated nonattainment for the 

2008 ozone NAAQS, or for any prior 

ozone NAAQS, has attained the relevant 

standard, the requirements for such area 

to submit attainment demonstrations 

and associated reasonably available 

control measures, reasonable further 

progress plans, contingency measures 

for failure to attain or make reasonable 

progress and other planning SIPs related 

to attainment of the 2008 ozone 

NAAQS, or for any prior NAAQS for 

which the determination has been 

made, shall be suspended until such 

time as: The area is redesignated to 

attainment for that NAAQS or a 

redesignation substitute is approved as 

appropriate, at which time the 

requirements no longer apply; or EPA 

determines that the area has violated 

that NAAQS, at which time the area is 

again required to submit such plans. 

§ 51.1119 Applicability. 

As of revocation of the 1997 ozone 

NAAQS on April 6, 2015, as set forth in 

§ 50.10(c), the provisions of subpart AA 

shall replace the provisions of subpart 

X, §§ 51.900 to 51.918, which cease to 

apply except for § 51.907 for the antibacksliding purposes of § 51.1105(c)(2). 

See subpart X § 51.919. 

■ 8. In Appendix S to part 51, revise 

section IV.G.5 and add section VII to 

read as follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

IV. * * * 

G. * * * 

5. Interpollutant offsetting. In meeting the 

emissions offset requirements of paragraph 

IV.A, Condition 3 of this Ruling, the 

emissions offsets obtained shall be for the 

same regulated NSR pollutant unless 

interpollutant offsetting is permitted for a 

particular pollutant as specified in this 

paragraph IV.G.5. 

(i) The offset requirements of paragraph 

IV.A, Condition 3 of this Ruling for emissions 

of the ozone precursors NOX and VOC may 

be satisfied by offsetting reductions of 

emissions of either of those precursors, if all 

other requirements for such offsets are also 

satisfied. 

(ii) The offset requirements of paragraph 

IV.A, Condition 3 of this Ruling for direct 

PM2.5 emissions or emissions of precursors of 

PM2.5 may be satisfied by offsetting 

reductions of direct PM2.5 emissions or 

emissions of any PM2.5 precursor identified 

under paragraph II.A.31 (iii) of this Ruling if 

such offsets comply with an interprecursor 

trading hierarchy and ratio approved by the 

Administrator. 

* * * * * 

VII. Anti-Backsliding Measures for Revoked 

Ozone NAAQS 

Nonattainment area new source review 

obligations for prior ozone NAAQS. 

A. Except as provided in paragraph VII.B 

of this Ruling, an area designated 

nonattainment for the 2008 ozone NAAQS 

and designated nonattainment for the 1997 

ozone NAAQS on April 6, 2015 remains 

subject to the obligation to adopt and 

implement the major source threshold and 

offset ratio requirements for nonattainment 

NSR that apply or applied to the area 

pursuant to sections 172(c)(5), 173 and 182 

of the Act based on the highest of: (i) The 

area’s classification under section 181(a)(1) of 

the Act for the 1-hour ozone NAAQS as of 


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the effective date of revocation of that 

NAAQS; (ii) the area’s classification under 

§ 51.903 for the 1997 ozone NAAQS as of the 

date a permit is issued or as of April 6, 2015, 

whichever is earlier; and (iii) the area’s 

classification under § 51.1103 for the 2008 

ozone NAAQS. 

B.1. An area remains subject to the 

obligations for a revoked NAAQS under 

paragraph (a) until either (i) the area is 

redesignated to attainment for the 2008 ozone 

NAAQS; or (ii) the EPA approves a 

demonstration for the area in a redesignation 

substitute procedure for a revoked NAAQS 

per the provisions of § 51.1105(b). Under this 

redesignation substitute procedure for a 

revoked NAAQS, and for this limited antibacksliding purpose, the demonstration must 

show that the area has attained that revoked 

NAAQS due to permanent and enforceable 

emission reductions and that the area will 

maintain that revoked NAAQS for 10 years 

from the date of EPA’s approval of this 

showing. 

2. Effect of redesignation to attainment for 

2008 ozone NAAQS or approval of a 

redesignation substitute for a revoked ozone 

NAAQS. After redesignation to attainment 

for the 2008 ozone NAAQS, the state may 

request that provisions for nonattainment 

NSR be removed from the SIP. After EPA 

approval of a redesignation substitute for a 

revoked NAAQS under the provisions of 

§ 51.1105(b), the state may request that 

provisions for nonattainment NSR for that 

revoked NAAQS be removed from the SIP. 

Upon removal of nonattainment NSR 

provisions for a revoked NAAQS, the state 

remains subject to the obligation to adopt and 

implement the major source threshold and 

offset ratio requirements for nonattainment 

NSR that apply or applied to the area for the 

remaining applicable NAAQS consistent 

with paragraph VII.A of this Ruling. 

■ 9. In § 51.165, revise paragraph (a)(11) 

and add paragraph (a)(12) to read as 

follows: 

§ 51.165 Permit requirements. 

(a) * * * 

(11) The plan shall require that in 

meeting the emissions offset 

requirements of paragraph (a)(3) of this 

section, the emissions offsets obtained 

shall be for the same regulated NSR 

pollutant unless interprecursor 

offsetting is permitted for a particular 

pollutant as specified in this paragraph. 

(i) The plan may allow the offset 

requirement in paragraph (a)(3) of this 

section for emissions of the ozone 

precursors NOX and VOC to be satisfied 

by offsetting reductions in emissions of 

either of those precursors, if all other 

requirements for such offsets are also 

satisfied. 

(ii) The plan may allow the offset 

requirements in paragraph (a)(3) of this 

section for direct PM2.5 emissions or 

emissions of precursors of PM2.5 to be 

satisfied by offsetting reductions in 

direct PM2.5 emissions or emissions of 

any PM2.5 precursor identified under 

paragraph (a)(1)(xxxvii)(C) of this 

section if such offsets comply with the 

interprecursor trading hierarchy and 

ratio established in the approved plan 

for a particular nonattainment area. 

(12) The plan shall require that in any 

area designated nonattainment for the 

2008 ozone NAAQS and designated 

nonattainment for the 1997 ozone 

NAAQS on April 6, 2015 the 

requirements of this section applicable 

to major stationary sources and major 

modifications of ozone shall include the 

anti-backsliding requirements contained 

at § 51.1105. 

* * * * * 

■ 10. In § 51.166, revise paragraph (i)(2) 

to read as follows: 

§ 51.166 Prevention of significant 

deterioration of air quality. 

* * * * * 

(i) * * * 

(2) The plan may provide that 

requirements equivalent to those 

contained in paragraphs (j) through (r) 

of this section do not apply to a major 

stationary source or major modification 

with respect to a particular pollutant if 

the owner or operator demonstrates that, 

as to that pollutant, the source or 

modification is located in an area 

designated as nonattainment under 

section 107 of the Act. Nonattainment 

designations for revoked NAAQS, as 

contained in part 81 of this chapter, 

shall not be viewed as current 

designations under section 107 of the 

Act for purposes of determining the 

applicability of requirements equivalent 

to those contained in paragraphs (j) 

through (r) of this section to a major 

stationary source or major modification 

after the revocation of that NAAQS is 

effective. 

* * * * * 

■ 11. In § 51.372, revise paragraph (b)(2) 

to read as follows: 

§ 51.372 State Implementation Plan 

submissions. 

* * * * * 

(b) * * * 

(2) A SIP revision required as a result 

of a change in an area’s designation or 

classification under a NAAQS for ozone, 

including all necessary legal authority 

and the items specified in paragraphs 

(a)(1) through (8) of this section, shall be 

submitted no later than the deadline for 

submitting the area’s attainment SIP for 

the NAAQS in question. 

* * * * * 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 12. The authority citation for part 52 

continues to read as follows: 

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

■ 13. In § 52.21, revise paragraph (i)(2) 

to read as follows: 

* * * * * 

(i). * * * 

(2) The requirements of paragraphs (j) 

through (r) of this section shall not 

apply to a major stationary source or 

major modification with respect to a 

particular pollutant if the owner or 

operator demonstrates that, as to that 

pollutant, the source or modification is 

located in an area designated as 

nonattainment under section 107 of the 

Act. Nonattainment designations for 

revoked NAAQS, as contained in 40 

CFR part 81, shall not be viewed as 

current designations under section 107 

of the Act for purposes of determining 

the applicability of paragraphs (j) 

through (r) of this section to a major 

stationary source or major modification 

after the revocation of that NAAQS is 

effective. 

* * * * * 

PART 70—STATE OPERATING PERMIT 

PROGRAMS 

■ 14. The authority citation for part 70 

continues to read as follows: 

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

■ 15. In § 70.2, under the definition of 

‘‘Major source,’’ revise paragraphs (3)(i), 

(3)(iii)(A), and (3)(iv) to read as follows: 

§ 70.2 Definitions. 

* * * * * 

Major source * * * 

(3) * * * 

(i) For ozone nonattainment areas, 

sources with the potential to emit 100 

tpy or more of volatile organic 

compounds or oxides of nitrogen in 

areas classified or treated as classified as 

‘‘Marginal’’ or ‘‘Moderate,’’ 50 tpy or 

more in areas classified or treated as 

classified as ‘‘Serious,’’ 25 tpy or more 

in areas classified or treated as classified 

as ‘‘Severe,’’ and 10 tpy or more in areas 

classified or treated as classified as 

‘‘Extreme’’; except that the references in 

this paragraph to 100, 50, 25 and 10 tpy 

of nitrogen oxides shall not apply with 

respect to any source for which the 

Administrator has made a finding, 

under section 182(f)(1) or (2) of the Act, 

that requirements under section 182(f) 

of the Act do not apply; 

* * * * * 

(iii) * * * 


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(A) That are classified or treated as 

classified as ‘‘Serious,’’ and 

* * * * * 

(iv) For particulate matter (PM–10) 

nonattainment areas classified or treated 

as classified as ‘‘Serious,’’ sources with 

the potential to emit 70 tpy or more of 

PM–10. 

* * * * * 

PART 71—FEDERAL OPERATING 

PERMIT PROGRAMS 

■ 16. The authority citation for part 71 

continues to read as follows: 

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

■ 17. In § 71.2, under the definition of 

‘‘Major source,’’ revise paragraphs (3)(i), 

(3)(iii)(A), and (3)(iv) to read as follows: 

§ 71.2 Definitions. 

* * * * * 

Major source * * * 

(3) * * * 

(i) For ozone nonattainment areas, 

sources with the potential to emit 100 

tpy or more of volatile organic 

compounds or oxides of nitrogen in 

areas classified or treated as classified as 

‘‘Marginal’’ or ‘‘Moderate,’’ 50 tpy or 

more in areas classified or treated as 

classified as ‘‘Serious,’’ 25 tpy or more 

in areas classified or treated as classified 

as ‘‘Severe,’’ and 10 tpy or more in areas 

classified or treated as classified as 

‘‘Extreme’’; except that the references in 

this paragraph to 100, 50, 25 and 10 tpy 

of nitrogen oxides shall not apply with 

respect to any source for which the 

Administrator has made a finding, 

under section 182(f)(1) or (2) of the Act, 

that requirements under section 182(f) 

of the Act do not apply; 

* * * * * 

(iii) * * * 

(A) That are classified or treated as 

classified as ‘‘Serious,’’ and 

* * * * * 

(iv) For particulate matter (PM–10) 

nonattainment areas classified or treated 

as classified as ‘‘Serious,’’ sources with 

the potential to emit 70 tpy or more of 

PM–10. 

* * * * * 

[FR Doc. 2015–04012 Filed 3–5–15; 8:45 am] 

BILLING CODE 6560–50–P 


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