[Federal Register Volume 80, Number 44 (Friday, March 6, 2015)]
[Rules and Regulations]
[Pages 12264-12319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-04012]



[[Page 12263]]

Vol. 80

Friday,

No. 44

March 6, 2015

Part II





 Environmental Protection Agency





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40 CFR Parts 50, 51, 52, et al.





Implementation of the 2008 National Ambient Air Quality Standards for 
Ozone: State Implementation Plan Requirements; Final Rule

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

[[Page 12264]]


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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.

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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 [email protected]; 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 [email protected].

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 anti-backsliding 
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

[[Page 12265]]

    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.
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    \1\ See 73 FR 16436.
    \2\ For a detailed explanation of the calculation of the 3-year 
8-hour average, see 40 CFR part 50, Appendix I.
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    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.
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    \3\ See the Phase 1 (69 FR 23951, April 30, 2004) and Phase 2 
(70 FR 71612, November 29, 2005) Rules.
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    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

[[Page 12266]]

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.
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    \4\ The effective date of designations was July 20, 2012. See 77 
FR 30088.
    \5\ See section III.J.2 of this rule for additional information 
on emission statements.
    \6\ Typically submitted in 3-year increments, thus as 9 percent 
RFP plans that produce average reductions of 3 percent per year.
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    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.
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    \7\ See 71 FR 17705, April 7, 2006.
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    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\
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    \8\ See 77 FR 30088, May 21, 2012; and 77 FR 34221, June 11, 
2012.
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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.
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    \9\ The 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).
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    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 large-scale 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

[[Page 12267]]

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 cost-effective 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.
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    \10\ See 70 FR 71612 at 71672 and 71683 (November 29, 2005).
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    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.
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    \11\ Ibid.
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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.
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    \12\ See the proposal (77 FR 8197; February 14, 2012) and the 
final (77 FR 30160; May 21, 2012) Classifications Rule for the 2008 
ozone NAAQS.
    \13\ Except in the case of a leap year, where the year would be 
a rolling 366 day period.
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    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

[[Page 12268]]

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).
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    \14\ We 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.
    \15\ We 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.
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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).
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    \16\ An 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., already-adopted 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.
    \17\ State 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)).
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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.
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    \18\ The 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.
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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

[[Page 12269]]

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.
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    \19\ The modeling guidance can be found at the following Web 
site: http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------

    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

[[Page 12270]]

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.
---------------------------------------------------------------------------

    \20\ http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \21\ The 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 event-influenced 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.
---------------------------------------------------------------------------

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\
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    \22\ Note 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \23\ See section III.D.2 of this proposal for a discussion of 
RACM analysis requirements.
    \24\ See 78 FR 34178 at p. 34191 (June 6, 2013).
---------------------------------------------------------------------------

    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

[[Page 12271]]

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-of-progress (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.
---------------------------------------------------------------------------

    \25\ Similar 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).
---------------------------------------------------------------------------

    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

[[Page 12272]]

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 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.
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

[[Page 12273]]

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 multi-state 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

[[Page 12274]]

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-of-area 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 SIP-approved 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 non-creditable 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 RFP-related 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\
---------------------------------------------------------------------------

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

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 on-road 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

[[Page 12275]]

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.
---------------------------------------------------------------------------

    \28\ See Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. 
Cir. 1979).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \29\ Hereafter 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.''
---------------------------------------------------------------------------

    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.

[[Page 12276]]

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.
---------------------------------------------------------------------------

    \30\ The 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \31\ See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
---------------------------------------------------------------------------

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

[[Page 12277]]

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 
non-ROP 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

[[Page 12278]]

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 VOC-weighted 
approach and the air quality-based 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 VOC-weighted 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.
---------------------------------------------------------------------------

    \32\ The 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.'')
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ The EPA's CTGs and ACTs are located at http://www.epa.gov/air/ozonepollution/SIPToolkit/ctgs.html.
---------------------------------------------------------------------------

    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.

[[Page 12279]]

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.
---------------------------------------------------------------------------

    \34\ See 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 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 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. 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

[[Page 12280]]

RACT determinations as they historically have. Additionally, we do not 
anticipate that any current NOX-limited 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 
RACT-level 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 
area-wide 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 source-
specific 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

[[Page 12281]]

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 cap-and-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.
---------------------------------------------------------------------------

    \35\ 571 F.3d at 1258.
---------------------------------------------------------------------------

    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 NOX-limited, 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 long-standing 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

[[Page 12282]]

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.
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    \36\ We 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.
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    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.
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    \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.
    \39\ Memorandum 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.
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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

[[Page 12283]]

basic smoke management practices and may be considered as potential 
mitigation measures to lessen the impacts of wildfires.\40\
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    \40\ USDA 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.
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    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.
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    \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.
    \42\ Emery, 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.
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    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-by-case 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 ground-level 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

[[Page 12284]]

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.
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    \44\ For 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).
---------------------------------------------------------------------------

    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\
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    \45\ Also, 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.
---------------------------------------------------------------------------

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

[[Page 12285]]

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.
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    \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/.
    \47\ USDA 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.
---------------------------------------------------------------------------

    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.
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    \48\ For areas designated in 2012, the effective date was July 
20, 2013.
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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\
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    \49\ See the April 16, 1992 General Preamble section III.A.3.c 
(57 FR 13498 at 13511).
---------------------------------------------------------------------------

    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\
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    \50\ See Louisiana Environmental Action Network (LEAN) v. EPA, 
382 F.3d 575 (D.C. 2004).
---------------------------------------------------------------------------

    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

[[Page 12286]]

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.
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    \51\ For 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.
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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.
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    \52\ See ``Guidance for Growth Factors, Projections, and Control 
Strategies for the 15 Percent Rate-of-Progress Plans,'' U.S. EPA, 
March 1993, page 83 (EPA-452/R-93/002).
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    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.
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    \53\ As 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).
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    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,

[[Page 12287]]

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).
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    \54\ The 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.
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    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.
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    \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 anti-backsliding requirements that must 
be followed when states issue nonattainment NSR permits under that 
Ruling.
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    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

[[Page 12288]]

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 anti-backsliding 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.
---------------------------------------------------------------------------

    \56\ See 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \57\ See, for example, emission reduction credit banking 
programs in Ohio (OAC Chapter 3745-1111) and California (H&SC 
Section 40709).
---------------------------------------------------------------------------

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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    \58\ For purposes of this rulemaking, we are using the terms 
interprecursor and interpollutant interchangeably.

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[[Page 12289]]

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 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.
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

[[Page 12290]]

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 
non-road 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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    \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.

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[[Page 12291]]

    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 SIP-related 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.

[[Page 12292]]

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.
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    \61\ The 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.
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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.
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    \62\ Nonattainment 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.
    \63\ See http://www.census.gov/population/www/metroareas/metrodef.html.
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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).
---------------------------------------------------------------------------

    \64\ During the designations process for the 2008 ozone NAAQS, 
the EPA did not identify any nonattainment areas as rural transport 
areas.
---------------------------------------------------------------------------

    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

[[Page 12293]]

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.
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    \65\ See http://www.epa.gov/oar/urbanair/sipstatus/infrastructure.html.
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    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.
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    \66\ ``Treatment of Data Influenced by Exceptional Events; Final 
Rule'' (72 FR 13560, March 22, 2007).
---------------------------------------------------------------------------

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

[[Page 12294]]

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.
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    \67\ Memorandum 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.
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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-and-comment 
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 cost-effective 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.
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    \68\ See http://www.epa.gov/airquality/eere.html.
---------------------------------------------------------------------------

    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.
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    \69\ See http://epa.gov/avert/.
    \70\ See http://www.epa.gov/statelocalclimate/state/topics/energy-efficiency.html.
---------------------------------------------------------------------------

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

[[Page 12295]]

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.
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    \71\ See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm.
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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\
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    \72\ See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm.
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R. Efforts To Encourage a Multi-Pollutant 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 multi-pollutant 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 single-pollutant 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.

[[Page 12296]]

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.
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    \73\ On 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 non-reservation 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.
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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\
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    \74\ The 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.
    \75\ The 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 anti-
backsliding measures. South Coast Air Quality Management Dist. v. 
EPA, 472 F.3d 882, 899 (D.C. Cir. 2007).
---------------------------------------------------------------------------

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 anti-backsliding requirements for that NAAQS, as 
detailed in this final rulemaking, become applicable. The

[[Page 12297]]

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 anti-backsliding 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 anti-
backsliding requirements for that NAAQS to take effect, which is 
consistent with past practice under the Phase 1 Rule.
---------------------------------------------------------------------------

    \76\ Although 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.
    \77\ See, 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.
---------------------------------------------------------------------------

    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 anti-backsliding 
requirements.
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    \78\ When 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 anti-backsliding 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 anti-backsliding 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.

[[Page 12298]]

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 anti-
backsliding 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.
---------------------------------------------------------------------------

    \79\ Under 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).
    \80\ South Coast Air Quality Management District v. EPA, 472 
F.3d at 899.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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 post-attainment SIP, as the Clean Air Act . . . explicitly 
states that attainment area SIPs must include a PSD program.''
---------------------------------------------------------------------------

    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 anti-backsliding 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 Sec.  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 anti-backsliding 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 anti-backsliding 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

[[Page 12299]]

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.
---------------------------------------------------------------------------

    \82\ Note that some areas designated as nonattainment for the 
1997 NAAQS might also retain anti-backsliding requirements for the 
already revoked 1-hour ozone NAAQS.
---------------------------------------------------------------------------

    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.
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    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \84\ See 78 FR 34178, June 6, 2013.
    \85\ See 77 FR 28772.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 12300]]

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 re-evaluation 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.
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    \86\ An 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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \87\ The 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.
---------------------------------------------------------------------------

    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 
anti-backsliding 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

[[Page 12301]]

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 anti-backsliding requirements.
---------------------------------------------------------------------------

    \88\ One 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 anti-backsliding requirements. For 
ease of reference, we refer to these areas as ``Maintenance'' areas.
---------------------------------------------------------------------------

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 anti-backsliding 
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

[[Page 12302]]

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 
anti-backsliding 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 re-violate 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

[[Page 12303]]

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 anti-
backsliding 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 anti-backsliding checks in CAA sections 
110(l) and 193.
---------------------------------------------------------------------------

    \90\ We 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 anti-backsliding 
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.
---------------------------------------------------------------------------

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, 
anti-backsliding 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 anti-backsliding checks in 
CAA sections 110(l) and 193 (if applicable), shift requirements which 
are contained in the active portion of the SIP to the

[[Page 12304]]

contingency measures portion of the SIP.\91\
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    \91\ Nonattainment 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.
---------------------------------------------------------------------------

    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 anti-backsliding 
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.
---------------------------------------------------------------------------

    \92\ States 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.
---------------------------------------------------------------------------

    The second of the proposed procedures for satisfying anti-
backsliding 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 anti-backsliding 
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 anti-backsliding 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 
anti-backsliding 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 anti-backsliding 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\
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    \93\ Likewise, 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.
---------------------------------------------------------------------------

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 anti-backsliding 
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.
---------------------------------------------------------------------------

    \94\ See 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.
---------------------------------------------------------------------------

    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 anti-backsliding 
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\
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    \95\ This 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.
---------------------------------------------------------------------------

    Experience has shown the EPA that a second mechanism for areas to 
address the requirements imposed by anti-backsliding 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 anti-backsliding 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

[[Page 12305]]

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 anti-backsliding 
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 
anti-backsliding 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.

[[Page 12306]]

    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 anti-backsliding 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.
---------------------------------------------------------------------------

    \96\ Memo 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.''
---------------------------------------------------------------------------

E. How will the EPA's determination of attainment (``Clean Data'') 
regulation apply for purposes of the anti-backsliding 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 attainment-related 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.
---------------------------------------------------------------------------

    \97\ The 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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \98\ Depending on the area's classification for the 1997 ozone 
NAAQS and the SIP elements already approved, the area may still have 
outstanding non-planning 1997 anti-backsliding submission 
requirements that are not suspended by 51.918 (e.g., emissions 
inventories, nonattainment NSR, Subpart 2 RACT requirements).
---------------------------------------------------------------------------

    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 non-planning 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 long-standing 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.

[[Page 12307]]

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 anti-backsliding requirements 
for the 1997 and/or 1-hour ozone NAAQS apply in the area).\100\
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    \99\ One 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.
---------------------------------------------------------------------------

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 anti-backsliding 
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.
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    \101\ The 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.
    \102\ See, 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).
---------------------------------------------------------------------------

    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

[[Page 12308]]

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 anti-backsliding 
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).
---------------------------------------------------------------------------

    \103\ May 21, 2012, 77 FR 30088.
---------------------------------------------------------------------------

    States should already have information from many emission

[[Page 12309]]

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.

[[Page 12310]]

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\
---------------------------------------------------------------------------

    \104\ See, 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)).
---------------------------------------------------------------------------

    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).

[[Page 12311]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      1997 8-hour ozone                                1-hour ozone
    2008 Nonattainment area name       2008 8-hour ozone      1997 8-hour ozone          attainment             1-hour ozone            attainment
                                         classification         classification          determination          classification          determination
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baltimore Area, MD.................  Moderate.............  Serious..............  No Action.............  Severe-15............  Clean Data
                                                                                                                                   Determination.
Calaveras County, CA \1\...........  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination,
                                                                                    Attainment Deadline
                                                                                    Determination.
Chico Area, CA.....................  Marginal.............  Marginal.............  Clean Data              n/a..................  n/a.
                                                                                    Determination,
                                                                                    Attainment Deadline
                                                                                    Determination.
Dallas-Fort Worth Area, TX \1\.....  Moderate.............  Serious..............  No Action.............  Serious..............  Clean Data
                                                                                                                                   Determination.
Denver-Boulder-Greeley-Ft. Collins-  Marginal.............  Marginal.............  No Action.............  n/a..................  n/a.
 Loveland Area, CO.
Dukes County, MA \1\...............  Marginal.............  Moderate.............  Clean Data              Serious..............  Clean Data
                                                                                    Determination,                                 Determination,
                                                                                    Attainment Deadline                            Attainment Deadline
                                                                                    Determination.                                 Determination.
Greater Connecticut Area, CT.......  Marginal.............  Moderate.............  Clean Data              Serious..............  Clean Data
                                                                                    Determination,                                 Determination.
                                                                                    Attainment Deadline
                                                                                    Determination.
Houston-Galveston-Brazoria Area, TX  Marginal.............  Severe-15............  No Action.............  Severe-17............  No Action.
Imperial County Area, CA...........  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination.
Jamestown Area, NY.................  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination \2\.
Kern County (Eastern Kern) Area, CA  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination,
                                                                                    Attainment Deadline
                                                                                    Determination.
Los Angeles and San Bernardino       Severe-15............  Severe-15............  No Action.............  Severe-17............  No Action.
 Counties (W Mojave Desert) Area,
 CA.
Los Angeles-South Coast Air Basin    Extreme..............  Extreme..............  No Action.............  Extreme..............  No Action.
 Area, CA.
Mariposa County, CA \1\............  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination,
                                                                                    Attainment Deadline
                                                                                    Determination.
Morongo Areas of Indian Country      Serious..............  Severe-17............  No Action.............  Severe-17............  No Action.
 (Morongo Band of Mission Indians)
 \3\.
Nevada County (Western part) Area,   Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
 CA.                                                                                Determination,
                                                                                    Attainment Deadline
                                                                                    Determination.
New York-N. New Jersey-Long Island   Marginal.............  Moderate.............  Clean Data              Severe-17............  Clean Data
 Area, NY-NJ-CT.                                                                    Determination,                                 Determination.
                                                                                    Attainment Deadline
                                                                                    Determination.
Pechanga Areas of Indian Country     Moderate.............  Severe-17............  No Action.............  Extreme..............  No Action.
 (Pechanga Band of Luiseno Mission
 Indians of the Pechanga
 Reservation) \4\.
Philadelphia-Wilmington-Atlantic     Marginal.............  Moderate.............  Clean Data              Severe-15............  Clean Data
 City Area, PA-NJ-MD-DE \1\.                                                        Determination,                                 Determination,
                                                                                    Attainment Deadline                            Attainment Deadline
                                                                                    Determination.                                 Determination.
Pittsburgh-Beaver Valley Area, PA..  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination \2\.
Riverside County (Coachella Valley)  Severe-15............  Severe-15............  No Action.............  Severe-17............  No Action.
 Area (1-hr Southeast Desert), CA.
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, DE \5\....................  Marginal.............  Moderate.............  Clean Data              Marginal.............  Clean Data
                                                                                    Determination,                                 Determination,
                                                                                    Attainment Deadline                            Attainment Deadline
                                                                                    Determination.                                 Determination.
Sheboygan County, WI...............  Marginal.............  Moderate.............  Clean Data              n/a..................  n/a.
                                                                                    Determination.
Ventura County (part) Area, CA.....  Serious..............  Serious..............  Clean Data              Severe-15............  Clean Data
                                                                                    Determination.                                 Determination,
                                                                                                                                   Attainment Deadline
                                                                                                                                   Determination.

[[Page 12312]]

 
Washington Area, DC-MD-VA..........  Marginal.............  Moderate.............  Clean Data              Severe-15............  Clean Data
                                                                                    Determination,                                 Determination,
                                                                                    Attainment Deadline                            Attainment Deadline
                                                                                    Determination.                                 Determination.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 2008 ozone NAAQS nonattainment area boundary differs from 1997 and (where applicable) 1-hr ozone NAAQS nonattainment area boundary.
\2\ Former 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.
\3\ Part 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).
\4\ Part 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).
\5\ Part 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

0
1. The authority citation for part 50 continues to read as follows:

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


0
2. In Sec.  50.10, revise paragraph (c) to read as follows:


Sec.  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 Sec.  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 Sec.  51.1105, Sec.  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

0
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

0
4. Add Sec.  51.919 to read as follows:


Sec.  51.919  Applicability.

    As of April 6, 2015, the provisions of subpart AA shall replace the 
provisions of subpart X, Sec. Sec.  51.900 to 51.918, which will cease 
to apply, with the exception of the attainment date extension 
provisions of Sec.  51.907 for the anti-backsliding purposes of Sec.  
51.1105(d)(2).

Subpart AA--Provisions for Implementation of the 2008 Ozone 
National Ambient Air Quality Standards

0
5. In Sec.  51.1100, add paragraphs (o) through (cc) to read as 
follows:


Sec.  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).

[[Page 12313]]

    (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 Sec.  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 anti-backsliding 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.

0
6. In Sec.  51.1103, revise the section heading and Table 1 in 
paragraph (a) to read as follows:


Sec.  51.1103  Application of classification and attainment date 
provisions in CAA section 181 to areas subject to Sec.  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
----------------------------------------------------------------------------------------------------------------
                                                                                                Primary standard
                                                                                                attainment date
                                                                                8-hour design   (years after the
                 Area class                                                      value (ppm    effective date of
                                                                                   ozone)       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


[[Page 12314]]

* * * * *

0
7. Add Sec. Sec.  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 anti-backsliding.


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.

* * * * *


Sec.  51.1104  [Reserved]


Sec.  51.1105  Transition from the 1997 ozone NAAQS to the 2008 ozone 
NAAQS and anti-backsliding.

    (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 Sec.  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 Sec.  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 Sec.  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 Sec.  51.1100(o) for 
purposes of the 1-hour or 1997 ozone NAAQS is subject to the 
obligations

[[Page 12315]]

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 anti-backsliding 
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 Sec. Sec.  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 Sec.  51.1103 for 
the 2008 ozone NAAQS. Upon removal of nonattainment NSR obligations for 
a revoked NAAQS under Sec.  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.


Sec.  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 Sec.  
51.1103.


Sec.  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.


Sec.  51.1108  Modeling and attainment demonstration requirements.

    (a) An area classified as Moderate under Sec.  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 Sec.  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 Sec.  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.


Sec.  51.1109  [Reserved]


Sec.  51.1110  Requirements for reasonable further progress (RFP).

    (a) RFP for nonattainment areas classified pursuant to Sec.  
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 Sec.  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

[[Page 12316]]

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 SIP-approved 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 Sec.  51.1103, in 
addition to the restrictions on the creditability of emission control 
measures listed in Sec.  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 Sec.  51.1100(cc).


Sec.  51.1111  [Reserved]


Sec.  51.1112  Requirements for reasonably available control technology 
(RACT) and reasonably available control measures (RACM).

    (a) RACT requirement for areas classified pursuant to Sec.  
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

[[Page 12317]]

Sec.  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.


Sec.  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.


Sec.  51.1114  New source review requirements.

    The requirements for nonattainment NSR for the ozone NAAQS are 
located in Sec.  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.


Sec.  51.1115  Emissions inventory requirements.

    (a) For each nonattainment area, the state shall submit a base year 
inventory as defined by Sec.  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 Sec.  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 Sec.  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 Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  51.1119  Applicability.

    As of revocation of the 1997 ozone NAAQS on April 6, 2015, as set 
forth in Sec.  50.10(c), the provisions of subpart AA shall replace the 
provisions of subpart X, Sec. Sec.  51.900 to 51.918, which cease to 
apply except for Sec.  51.907 for the anti-backsliding purposes of 
Sec.  51.1105(c)(2). See subpart X Sec.  51.919.


0
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

[[Page 12318]]

the effective date of revocation of that NAAQS; (ii) the area's 
classification under Sec.  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 Sec.  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 Sec.  51.1105(b). 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. 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 Sec.  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.


0
9. In Sec.  51.165, revise paragraph (a)(11) and add paragraph (a)(12) 
to read as follows:


Sec.  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 Sec.  
51.1105.
* * * * *

0
10. In Sec.  51.166, revise paragraph (i)(2) to read as follows:


Sec.  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.
* * * * *

0
11. In Sec.  51.372, revise paragraph (b)(2) to read as follows:


Sec.  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

0
12. The authority citation for part 52 continues to read as follows:

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


0
13. In Sec.  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

0
14. The authority citation for part 70 continues to read as follows:

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


0
15. In Sec.  70.2, under the definition of ``Major source,'' revise 
paragraphs (3)(i), (3)(iii)(A), and (3)(iv) to read as follows:


Sec.  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) * * *

[[Page 12319]]

    (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

0
16. The authority citation for part 71 continues to read as follows:

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


0
17. In Sec.  71.2, under the definition of ``Major source,'' revise 
paragraphs (3)(i), (3)(iii)(A), and (3)(iv) to read as follows:


Sec.  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