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Citation: 78 Fed. Reg. 34183 2013 

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

two section 110 SIP elements not

governed by the 3-year submission

deadline are: (i) Submissions required

by section 110(a)(2)(C) to the extent that

subsection refers to a nonattainment

area new source review permit program

for major sources as required in part D

of title I of the CAA; and (ii)

submissions required by section

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

nonattainment planning requirements of

part D of title I of the CAA. The EPA

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

opinion in EME Homer City Generation

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

concluded that a SIP cannot be deemed

to lack a required submission or deemed

deficient for failure to meet the

110(a)(2)(D)(i)(I) obligation until after

the EPA quantifies that obligation.

In the case of the 2008 8-hour ozone

NAAQS, the period during which the

EPA was making efforts to reconsider

the 2008 NAAQS with the expectation

of revising it in the near term extended

about 6 months beyond March 12, 2011,

the normal deadline for submission of

infrastructure SIPs. The EPA therefore

did not prepare and issue timely

guidance for the states to assist them in

preparing their submissions. Also, states

were given the impression that if the

NAAQS were revised as a result of the

reconsideration, the 3-year deadline

would reset. However, despite the

reconsideration process, March 12,

2011, remained the legally applicable

deadline for infrastructure SIPs for the

2008 8-hour ozone NAAQS. The EPA

recently responded to a court order

requiring the EPA to make findings of

failure to submit for certain

infrastructure SIPs that had not been

found complete by March 12, 2011.11

The EPA recognizes that many states

are affected by transported ozone and

ozone precursors from upwind states,

and that transported pollution may

contribute significantly to air pollution

that exceeds the NAAQS in those states.

The CAA establishes states'

responsibilities to address interstate

transport through two provisions:

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

of the requirements for the

"infrastructure" SIPs) and section 126

(requiring notification to downwind

states of planned new or modified

sources and providing a petition process

through which downwind jurisdictions

can seek to have specific sources of

transported pollution addressed). This

proposed implementation rule, which

deals with the required SIP elements for

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

proposing two options for SIP submittal dates for

the 2008 ozone NAAQS. See section III.A.

11 See 78 FR 2882, January 15, 2013.

areas designated as nonattainment for

the 2008 ozone NAAQS, does not

address states' obligations under the

CAA to reduce transported pollution.

Although, as noted elsewhere in this

notice, the EPA intends to issue a

guidance memorandum on the required

elements of the section 110

infrastructure SIP submittal for the 2008

ozone NAAQS, that memorandum also

would not contain guidance on how to

meet the requirements of section

110(a)(2)(D)(i)(I), which deals with air

pollutant emissions within a state that

significantly contribute to

nonattainment or interfere with

maintenance of the NAAQS in a

downwind state.

E. Part D Nonattainment Area SIP

Requirements

In addition to the obligation to submit

required section 110 infrastructure SIPs

within 3 years of promulgation of a new

or revised NAAQS, states with

designated nonattainment areas also

have the obligation to submit SIPs

designed to bring those areas into

attainment. SIP requirements applicable

to nonattainment areas are found in part

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

D discusses general requirements for

nonattainment areas, including the

requirement that states adopt and

submit for the EPA's approval detailed

SIPs that bring the area into attainment.

Subpart 2 of part D contains

additional provisions specifically

applicable to ozone nonattainment

areas. Subpart 2 includes CAA sections

181 through 185B. Section 181 of

subpart 2 creates a framework for

classifying ozone nonattainment areas

into five classification categories based

on the severity of their ozone air quality

problems.

Section 181(a) includes attainment

deadlines for each classification

category in relation to the time the area

is designated nonattainment: Marginal

areas are required to attain within 3

years of designation; Moderate areaswithin 6 years; Serious areas-within 9

years; Severe-15 areas-within 15 years;

Severe- 7 areas-within 17 years; and

Extreme areas-within 20 years. 12

Section 182 of subpart 2 outlines SIP

requirements applicable to ozone

nonattainment areas in each

classification category. In general, under

the framework established by subpart 2,

areas classified in higher nonattainment

categories are provided with more time

to attain the ozone NAAQS but are also

12 Attainment deadlines for the 2008 ozone

NAAQS were established in the Classifications

Rule, 77 FR 30160, May 21, 2012.

subject to more extensive planning and

control obligations.

Where the Classifications Rule

primarily dealt with issues related to

CAA section 181, this rule addresses

issues related to CAA sections 182

through 185B. Subpart 2 is the focus of

much of the discussion of this rule.

When a topic is discussed that is not

covered by subpart 2, reference will be

made to the more general subpart 1

requirements found in CAA sections

171 through 179B, or to other sections

of the CAA, as appropriate. As

discussed in section II.D of this

proposal, section 110(a) infrastructure

SIPs will be the topic of a separate

guidance document.

III. What are the state implementation

plan requirements for the 2008 ozone

NAAQS?

A. What is the deadline for submitting

nonattainment area SIP elements due

under CAA section 182 for the 2008

ozone NAAQS?

Section 182 of the CAA requires states

with ozone nonattainment areas to

submit various SIP elements within

specified time periods after enactment

of the CAA Amendments of 1990: (1) An

emission inventory for the

nonattainment area within 24 months

(section 182(a)(1)); (2) a RACT SIP

within 24 months (section 182(b)(2)); (3)

a 15 percent RFP plan for Moderate and

above areas within 3 years (section

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

Moderate areas within 3 years (section

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

demonstration for Serious and above

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

and (6) a 3 percent per year RFP plan

for Serious and above areas within 4

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

In the Phase 2 Rule, we interpreted

the SIP submittal time periods in

section 182 to run from the effective

date of designation and classification for

the 1997 ozone NAAQS. See 70 FR

71670. However, with regard to

attainment demonstrations for Serious

and above areas, we provided 3 years,

instead of 4 years, to submit an

attainment demonstration. Specifically,

we promulgated 40 CFR 51.908(a)

which required all areas classified

Moderate or higher to submit attainment

demonstrations based on photochemical

grid modeling no later than 3 years after

the area's designation for the 1997

8-hour ozone NAAQS. We explained

that at the time of the 1990

Amendments, Congress required

Serious and above areas to base their

attainment demonstrations on

photochemical grid modeling, which at

that time was a relatively new modeling

34183