# + 2

(,1 1/,1(

Citation: 78 Fed. Reg. 34183 2013

Content downloaded/printed from HeinOnline (http://heinonline.org) Fri May 1 17:00:56 2015

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

### 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 extentthat subsection refers to a nonattainment

area new source reviewpermit program for major sources as required in part D oftitle Iofthe CAA; and (ii) submissions required by section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D oftitleI ofthe CAA. The EPA also notes thatthe D.C. Circuit's recent opinion in EMEHomerCityGeneration

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 ofthe 2008 8-hour ozone NAAQS, the period during which the EPA was making efforts to reconsider the 2008 NAAQS with the expectation ofrevising 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 assistthem in preparing their submissions. Also, states

were given the impression that ifthe NAAQS were revised as a result ofthe 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 thathad not been found complete by March 12, 2011.11

The EPArecognizes that many states

are affected by transported ozone and

ozone precursors from upwind states, andthat 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 ofthe requirements for the "infrastructure" SIPs) and section 126 (requiringnotification to downwind
states ofplanned new or modified

sources and providing a petitionprocess through which downwind jurisdictions

can seek tohave 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 SIPsubmittal dates for the 2008 ozone NAAQS. See section III.A.

11See 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 therequired elements ofthe section 110 infrastructure SIP submittal for the 2008

ozone NAAQS, thatmemorandum also would not contain guidance on howto 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 ofthe NAAQS in a downwind state.

E.Part D Nonattainment Area SIP Requirements

In addition tothe obligation to submit required section 110 infrastructure SIPs within 3years ofpromulgation ofa new
or revised NAAQS, states with designated nonattainment areas also have the obligation to submit SIPs designed tobring those areas into attainment. SIP requirements applicable
to nonattainment areas are found in part D oftitle Iofthe CAA. Subpart 1 ofpart D discusses general requirements for nonattainment areas, including the requirement that states adopt and submit for the EPA's approval detailed SIPs thatbring the area into attainment. Subpart 2ofpart D contains additional provisions specifically applicable to ozone nonattainment

areas. Subpart 2includes 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 oftheir ozone air quality problems. Section 181(a) includes attainment deadlines for each classification category in relation tothe time the area is designated nonattainment: Marginal

areas are required to attain within 3 years ofdesignation; 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 2outlines 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

12Attainment deadlines for the 2008 ozone NAAQS were established inthe 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 2isthe focus of much ofthe discussion ofthis rule. When a topic is discussed that is not covered by subpart 2,reference willbe made to the more general subpart 1 requirements found in CAA sections 171 through 179B, or to other sections ofthe CAA, as appropriate. As discussed in section II.D ofthis proposal, section 110(a) infrastructure SIPs willbe the topic ofa separate guidance document.

III.What arethe state implementation plan requirementsforthe 2008 ozone NAAQS?

A. What isthe deadline forsubmitting nonattainment areaSIPelements due underCAA section 182 forthe2008

ozoneNAAQS?

Section 182 ofthe CAA requires states with ozone nonattainment areas to submitvarious SIP elements within specified time periods after enactment ofthe CAA Amendments of1990: (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 planfor Moderate and above areas within 3years (section 182(b)(1)); (4) an attainment plan for Moderate areas within 3years (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 3percent peryear RFP plan for Serious and above areas within 4 years (section 182(c)(2)).

In the Phase 2Rule, we interpreted the SIP submittal timeperiods in section 182 torun from the effective date ofdesignation and classification for the 1997 ozone NAAQS. See 70 FR 71670. However, with regard to attainment demonstrations for Serious and above areas, we provided 3years, instead of4 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 3years after the area's designation for the 1997 8-hour ozone NAAQS. We explained that at the time ofthe 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