[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Rules and Regulations]
[Pages 62998-63036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25424]
[[Page 62997]]
Vol. 83
Thursday,
No. 234
December 6, 2018
Part III
Environmental Protection Agency
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40 CFR Part 51
Implementation of the 2015 National Ambient Air Quality Standards for
Ozone: Nonattainment Area State Implementation Plan Requirements; Final
Rule
Federal Register / Vol. 83 , No. 234 / Thursday, December 6, 2018 /
Rules and Regulations
[[Page 62998]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2016-0202; FRL-9986-53-OAR]
RIN 2060-AS82
Implementation of the 2015 National Ambient Air Quality Standards
for Ozone: Nonattainment Area State Implementation Plan Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
nonattainment area and ozone transport region (OTR) implementation
requirements for the 2015 ozone national ambient air quality standards
(NAAQS) (2015 ozone NAAQS) that were promulgated on October 1, 2015.
This final rule is largely an update to the implementing regulations
previously promulgated for the 2008 ozone NAAQS, and we are retaining
without significant revision the majority of those provisions to
implement the 2015 ozone NAAQS. This final rule addresses a range of
nonattainment area and OTR state implementation plan (SIP) requirements
for the 2015 ozone NAAQS, including attainment demonstrations,
reasonable further progress (RFP) and associated milestone
demonstrations, reasonably available control technology (RACT),
reasonably available control measures (RACM), major nonattainment new
source review, emissions inventories, the timing of required SIP
submissions and compliance with emission control measures in the SIP.
The EPA is not taking any final action regarding our proposed approach
for revoking a prior ozone NAAQS and establishing anti-backsliding
requirements; the agency intends to address any revocation of the 2008
ozone NAAQS and any potential anti-backsliding requirements in a
separate future rulemaking.
DATES: This final rule is effective on February 4, 2019.
ADDRESSES: The EPA has established a docket for this action, identified
by Docket ID No. EPA-HQ-OAR-2016-0202. All documents in the docket are
listed in the http://www.regulations.gov website. Although listed in
the index, some information may not be publicly available, e.g.,
Confidential Business Information 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. Publicly available docket materials are available
electronically in http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For further general information on
this final rule, contact Mr. Robert Lingard, Office of Air Quality
Planning and Standards (OAQPS), U.S. EPA, at (919) 541-5272 or
[email protected]; or Mr. Butch Stackhouse, OAQPS, U.S. EPA, at
(919) 541-5208 or [email protected]. For information on the
Information Collection Request (ICR), contact Mr. Butch Stackhouse,
OAQPS, U.S. EPA, at (919) 541-5208 or [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Preamble Glossary of Terms and Acronyms
The following are abbreviations of terms used in the preamble.
ACT Alternative Control Techniques
AERR Air Emissions Reporting Requirements
AVERT AVoided Emissions geneRation Tool
BSMP Basic Smoke Management Practices
CAA Clean Air Act
CFR Code of Federal Regulations
CO Carbon Monoxide
CTG Control Techniques Guidelines
DOI Department of the Interior
DOT Department of Transportation
EE/RE Energy Efficiency and Renewable Energy
EMFAC EMission FACtors Model
EPA Environmental Protection Agency
FLM Federal Land Managers
FR Federal Register
ICR Information Collection Request
I/M Inspection and Maintenance
IPT Interprecursor Trade or Interprecursor Trading
MCD Milestone Compliance Demonstration
MOVES Motor Vehicle Emissions Simulator
NAAQS National Ambient Air Quality Standards
NNSR Nonattainment New Source Review
NOX Nitrogen Oxides
O3 Ozone
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
OTR Ozone Transport Region
PAMS Photochemical Assessment Monitoring Station
PM2.5 Fine Particulate Matter
ppm Parts per Million
PRA Paperwork Reduction Act
PTE Potential to Emit
PUC Public Utility Commission
RACM Reasonably Available Control Measures
RACT Reasonably Available Control Technology
RFP Reasonable Further Progress
ROP Rate of Progress
RPS Renewable Portfolio Standard
SIP State Implementation Plan
SO2 Sulfur Dioxide
tpy Tons per Year
TAR Tribal Authority Rule
TAS Treatment as a State
TGD Technical Guidance Document
TIP Tribal Implementation Plan
USB U.S. Background
U.S.C. United States Code
USDA U.S. Department of Agriculture
VOC Volatile Organic Compounds
B. Does this action apply to me?
Entities potentially affected directly by this final rule include
state, local and tribal governments and air pollution control agencies
(``air agencies'') responsible for attainment and maintenance of the
NAAQS. Entities potentially affected indirectly by this final rule as
regulated sources include owners and operators of sources of emissions
of volatile organic compounds (VOCs) and nitrogen oxides
(NOX) that contribute to ground-level ozone formation.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at http://www.epa.gov/ozone-pollution.
D. How is this notice organized?
The information presented in this notice is organized as follows:
I. General Information
A. Preamble Glossary of Terms and Acronyms
B. Does this action apply to me?
C. Where can I get a copy of this document and other related
information?
D. How is this notice organized?
II. Background and Summary of Final Rule
III. Provisions of the 2008 Ozone NAAQS Implementing Regulations To
Be Retained Without Significant Revision
A. Submission Deadlines and Form for Nonattainment Area and OTR
SIP Elements Due Under CAA Sections 182 and 184
B. Redesignation to Nonattainment Following Initial Designations
C. Determining Eligibility for 1-Year Attainment Date Extensions
for the 2015 Ozone NAAQS Under CAA Section 181(a)(5)
D. Modeling and Attainment Demonstration Requirements
E. Requirements for RFP
F. Requirements for RACT and RACM
G. CAA Section 182(f) NOX Exemption Provisions
H. General Nonattainment NSR Requirements
I. Ambient Monitoring Requirements
J. Requirements for an OTR
K. Fee Programs for Severe and Extreme Nonattainment Areas That
Fail To Attain
L. Applicability
[[Page 62999]]
M. International Transport
IV. Provisions of the 2008 Ozone NAAQS Implementing Regulations To
Be Retained With Specific Revisions
A. Requirements for RFP: Milestone Compliance Demonstrations
B. Requirements for RACT: Deadlines for Submittal and
Implementation of RACT SIP Revisions
C. Requirements for RACM: Consideration of Sources of Intrastate
Transport of Pollution
D. Nonattainment NSR Offset Requirement: Interprecursor Trading
for Ozone Offsets
E. Emissions Inventory and Emissions Statement Requirements
V. Additional Considerations
A. Managing Emissions From Wildfire and Wildland Prescribed Fire
B. Transportation Conformity and General Conformity
C. Requirements for Contingency Measures in the Event of Failure
To Meet a Milestone or To Attain
D. Background Ozone
E. Additional Policies and Programs for Achieving Emissions
Reductions
F. Additional Requirements Related to Enforcement and Compliance
G. Applicability of Final Rule to Tribes
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
M. Judicial Review
VIII. Statutory Authority
II. Background and Summary of Final Rule
On October 1, 2015, the EPA promulgated revisions to the primary
and secondary NAAQS for ozone, setting them at a level of 0.070 parts
per million (ppm) \1\ (see 80 FR 65292). Since the 2015 primary and
secondary NAAQS for ozone are identical, for convenience, we refer to
both as ``the 2015 ozone NAAQS'' or ``the 2015 ozone standards.'' The
2015 ozone NAAQS retains the same general form and averaging time as
the 0.075 ppm NAAQS set in 2008.
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\1\ Annual fourth highest daily maximum 8-hour average
concentration, averaged over 3 years. For a detailed explanation of
the calculation of the 3-year 8-hour average, see 40 CFR part 50,
Appendix P.
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Following revisions to a NAAQS, the EPA and air agencies work
together to implement the revised NAAQS. To assist air agencies, the
EPA 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 air agencies and regulated entities. The Clean Air Act (CAA or Act)
does not require that the EPA promulgate new or revised implementing
regulations or guidance when a NAAQS is revised. However, in certain
circumstances, the EPA has determined that revisions to implementing
regulations are necessary to ensure that the CAA's requirements are
clear for both air agencies and regulated entities. Air agencies are
required to submit SIPs, as provided in the CAA and in EPA regulations.
It is important to note that the existing EPA regulations in title 40
part 51 of the Code of Federal Regulations (CFR) applicable to SIPs
generally and to particular pollutants (e.g., ozone and its precursors)
continue to apply even if these regulations are not updated.
The 1990 CAA Amendments contained ozone NAAQS implementation
provisions that were specific to the then-current 1-hour ozone NAAQS,
including regulatory provisions and SIP-related deadlines that do not
directly apply to the revised 8-hour ozone NAAQS. To fill the resulting
statutory gaps and provide other needed regulatory guidance, the EPA
has promulgated several iterations of implementing regulations for the
8-hour ozone NAAQS that was issued by the EPA in 1997 and revised in
2008. For purposes of the 2015 ozone NAAQS, the EPA is generally
applying the overall framework and policy approach of the
implementation provisions associated with the previous 8-hour NAAQS,
with the exception of elements addressed in the adverse portions of the
D.C. Circuit's February 2018 decision in South Coast Air Quality
Management District v. EPA (discussed later in this preamble), to
provide for regulatory certainty and consistent implementation across
time. This overall regulatory framework and policy approach has been
developed over time with input from numerous stakeholders, including
the states responsible for fulfilling the CAA's NAAQS implementation
requirements under the CAA's system of cooperative federalism. The
framework and policy approach have also been significantly informed by
numerous court opinions rendered on specific regulatory provisions,
where the EPA's initial interpretation of the CAA's ozone
implementation requirements was vacated or otherwise restricted.
An initial step in implementing a revised NAAQS is the process in
which states and some tribes recommend area designations (i.e., as
nonattainment, attainment or unclassifiable) to the EPA. The EPA then
evaluates air quality data and other factors prior to making our
proposed and final determinations regarding area designations. Areas
designated as nonattainment for a revised ozone NAAQS are classified
(i.e., as Marginal, Moderate, Serious, Severe or Extreme) according to
the severity of the nonattainment at the time of designation (as
determined based on the area's ``design value'' (DV)).\2\ The EPA has
already finalized in a separate action the air quality thresholds
corresponding with, and attainment dates for, each level of
nonattainment area classification for the 2015 ozone NAAQS (see 83 FR
10376; March 9, 2018), which were then applied when the EPA promulgated
final nonattainment area designations for that standard (see 83 FR
25766; June 4, 2018 (for most of the U.S.); 83 FR 35136; July 25, 2018
(for the San Antonio, Texas area)).
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\2\ The air quality DV for the 8-hour ozone NAAQS is the 3-year
average of the annual fourth highest daily maximum 8-hour average
concentration for a specific monitor. When an area has multiple
monitors, the area's DV is determined by the individual monitor with
the highest DV.
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On November 17, 2016, the EPA solicited public comment on proposed
revisions to the ozone NAAQS implementing regulations as they apply to
the 2015 ozone NAAQS, including the nonattainment area classification
scheme and SIP requirements, in a notice of proposed rulemaking (NPRM)
(81 FR 81276). The public comment period for the NPRM ran from November
17, 2016, to February 13, 2017. The EPA received a total of 79 comment
submissions on the NPRM. As explained previously, those comments
relating to the nonattainment area classifications scheme were
addressed in a separate action in March 2018 finalizing those
classifications (see generally 83 FR 10376). The preamble to this final
rule discusses significant comments received on the SIP requirements
portion of the NPRM and
[[Page 63000]]
how those comments were considered by the EPA in general terms. The
accompanying 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 Comments document are posted in the
docket at http://www.regulations.gov (Docket ID No. EPA-HQ-OAR-2016-
0202).
We are finalizing submittal deadlines and specific CAA requirements
for the content of nonattainment area and OTR SIPs for the 2015 ozone
NAAQS in this rule. As a general matter, this final rule follows the
same basic principles and approach that the EPA applied to interpret
the CAA's part D ozone nonattainment area requirements in developing
the implementation rule for the 2008 ozone NAAQS.\3\
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\3\ See ``Implementation of the 2008 National Ambient Air
Quality Standards for Ozone: State Implementation Plan
Requirements'' (80 FR 12264; March 6, 2015), hereafter referred to
as the 2008 Ozone NAAQS SIP Requirements Rule.
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In the NPRM, the EPA also proposed and sought comment on two
alternative approaches for revoking the 2008 ozone NAAQS for all
purposes and, where applicable, establishing anti-backsliding
requirements. The first approach to revoking the 2008 ozone NAAQS would
parallel the approach used in revoking the 1-hour and 1997 ozone NAAQS.
Under this first approach, the 2008 ozone NAAQS would be revoked at
essentially the same time for all areas of the U.S., and a set of
protective anti-backsliding requirements would be promulgated for all
areas that are designated nonattainment for the 2008 and 2015 NAAQS as
of 1 year after the effective date of designation for the 2015 ozone
NAAQS. Under the second approach, the 2008 ozone NAAQS would not be
revoked in any area designated nonattainment for the 2008 ozone NAAQS
until that area is redesignated to attainment with an approved CAA
section 175A 10-year maintenance plan; the 2008 ozone NAAQS would in no
case be revoked earlier than 1 year after the effective date of
designation for the 2015 ozone NAAQS. The 2008 ozone NAAQS would be
revoked in all other areas 1 year after the effective date of
designation for the 2015 ozone NAAQS.
The EPA's approach to revoking the 1997 ozone NAAQS was challenged
in South Coast Air Quality Management District v. EPA, 882 F.3d 1138
(D.C. Cir. 2018) (hereinafter referred to as South Coast II). On
February 16, 2018, the D.C. Circuit issued a partially adverse decision
in that case. The EPA is currently assessing the implications of the
decision on those aspects of the proposal regarding revocation of the
2008 ozone NAAQS. Thus, the EPA is not acting today on any of the
proposed revocation options of the 2008 ozone NAAQS or any proposed
anti-backsliding requirements. The EPA intends to address any
revocation of the 2008 ozone NAAQS, and any potential anti-backsliding
requirements in a separate future rulemaking.
Regarding the format of this preamble, on topics where we made a
specific proposal, we include detailed information about what we
proposed, what we are finalizing and our rationale, as well as
responses to significant comments. As stated previously, we are
retaining without significant revision the majority of existing
implementing regulations associated with the 2008 ozone NAAQS for
purposes of implementing the 2015 ozone NAAQS, as discussed in Section
III of this preamble. We discuss those aspects of existing implementing
regulations that we are revising for purposes of implementing the 2015
ozone NAAQS in Section IV of this preamble. Section V of this preamble
addresses several topics, relevant to implementing of the 2015 ozone
NAAQS, on which we solicited public comment in the November 2016
proposal, but for which we are not promulgating any specific revisions
to the agency's implementing regulations at this time.
III. Provisions of the 2008 Ozone NAAQS Implementing Regulations To Be
Retained Without Significant Revision
For purposes of implementing the 2015 ozone NAAQS, we are retaining
without significant revision the majority of regulatory provisions
previously promulgated for purposes of implementing the 2008 ozone
NAAQS. The classification and SIP requirement provisions for the 2008
standards were codified at subpart AA of 40 CFR part 51, and the
corresponding provisions for the 2015 standards will now be codified in
subpart CC of part 51.
A. Submission Deadlines and Form for Nonattainment Area and OTR SIP
Elements Due Under CAA Sections 182 and 184
1. Deadlines for Submitting Nonattainment Area and OTR SIP Elements
a. Summary of Proposal. The EPA proposed to retain our existing
approach to establishing deadlines for submitting ozone nonattainment
area SIP elements. For reference, the final 2008 Ozone NAAQS SIP
Requirements Rule provides an extensive discussion of the EPA's current
approach and rationale for SIP element submittal deadlines (80 FR
12265; March 6, 2015).
b. Final Rule. The EPA is adopting the proposed approach for
establishing deadlines for submitting nonattainment area SIP elements
under CAA section 182 for the 2015 ozone NAAQS, based on the approach
and rationale articulated in the final 2008 Ozone SIP Requirements
Rule. Section 182 of the CAA requires states with ozone nonattainment
areas to submit various SIP elements within specified time periods
after November 15, 1990 (the date of enactment of the 1990 CAA
Amendments). For the 2015 ozone NAAQS, the EPA is retaining the
approach adopted for the 2008 ozone NAAQS: The SIP elements listed will
generally be due, with the limited exceptions discussed later,
according to the timeframes provided for those SIP elements in CAA
section 182, but measured from the effective date of nonattainment
designation rather than from November 15, 1990.
Accordingly, states with areas designated nonattainment have: 2
years from the effective date of a nonattainment designation to submit
SIP revisions addressing emissions inventories (required by CAA section
182(a)(1)), RACT (CAA section 182(b)(2)) and emissions statement
regulations \4\ (CAA section 182(a)(3)(B)); 3 years from the effective
date of nonattainment designation to submit SIP revisions addressing 15
percent rate of progress (ROP) plans (CAA section 182(b)(1)) and
Moderate area attainment demonstrations (CAA section 182(b)(1)); and 4
years from the effective date of nonattainment designation to submit
SIP revisions addressing 3 percent per year \5\ RFP plans (CAA section
182(c)(2)) and attainment demonstrations for Serious and higher
classified areas (CAA section 182(c)(2)), where applicable. If an area
is subject to vehicle inspection and maintenance (I/M) program
requirements based on its classification, the SIP revision due date for
the I/M requirements is already codified in 40 CFR 51.372(b)(2) and is
aligned with the due date for the attainment demonstration SIP for the
area (i.e., either 3 or 4 years from the effective date of
nonattainment designation, depending on the area's
[[Page 63001]]
classification: 3 years for Moderate areas, 4 years for Serious and
higher).
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\4\ See Section IV.E of this preamble for additional information
on emissions statements.
\5\ The 3 percent per year RFP plans are typically submitted in
3-year increments, i.e., as 9 percent RFP plans that produce average
reductions of 3 percent of baseline emissions per year.
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SIP revisions addressing CAA section 185 penalty fee programs in
areas initially classified Severe or Extreme are due 10 years from the
effective date of nonattainment designation. The 10-year submittal
deadline 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.
SIP submissions addressing nonattainment new source review (NNSR)
permit program requirements applicable to the 2015 ozone NAAQS are due
3 years from the effective date of nonattainment designation (see new
40 CFR 51.1314). This is consistent with the approach articulated in
the 2008 Ozone NAAQS SIP Requirements Rule. This approach is based on
the provision in CAA section 172(b) requiring the submission of plans
or plan revisions ``no later than 3 years from the date of the
nonattainment designation.''
We note also that the EPA's past implementing regulations for
revised ozone NAAQS have required OTR states to submit RACT SIP
revisions based on the timeframe provided in CAA section 184 as
measured from the effective date of designations made pursuant to those
revised NAAQS, rather than from November 15, 1990. This requirement was
first codified in 40 CFR 51.916 for the 1997 ozone NAAQS, and later
codified for the 2008 ozone NAAQS in 40 CFR 51.1116. Under those
provisions, states in the OTR are required to submit SIP revisions
addressing the RACT requirements of CAA section 184 no later than 2
years after the effective date of designations for nonattainment areas
for the revised ozone NAAQS. The EPA is adopting these same general
requirements for the 2015 ozone NAAQS (see Section III.J of this
preamble).
c. Comments and Responses. Comment: The only adverse comment the
EPA received regarding the proposed submittal dates for SIP elements
for the 2015 ozone NAAQS specifically pertained to the proposed 3-year
schedule for submitting new or revised SIP elements addressing NNSR
program requirements. The commenter, objecting to the proposed 3-year
NNSR SIP due date, claimed that such a timeframe is contrary to CAA
section 182(a)(2)(C), which, based on the commenter's interpretation,
affords 2 years for nonattainment areas to submit their NNSR permit
requirements SIP. The EPA received support for the proposed 3-year NNSR
SIP revision deadline from two air agency commenters.
Response: The EPA disagrees with the commenter's argument that a 2-
year maximum deadline for NNSR plans for the 2015 ozone NAAQS is
required by the CAA. The commenter argues that a 2-year deadline is
mandated under provisions contained in CAA section 182. As explained in
the 2008 Ozone NAAQS SIP Requirements Rule (see 80 FR 12267, March 6,
2015), and the 2015 Ozone NAAQS Implementation Rule Proposal (see 80 FR
81278, November 17, 2016), the EPA recognized 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 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. The EPA continues to support the interpretation of
the statute that the submission of NNSR SIPs due on November 15, 1992,
i.e., the date 2 years after enactment of the 1990 CAA Amendments,
fulfilled this statutory ``corrections'' requirement. The plan
submittal schedules set forth in the 1990 CAA Amendments at section
182(a)(2) were applicable to the then existing 1-hour ozone NAAQS, and
Congress intended them to address SIP-related transition issues unique
to the transition from provisions ``as in effect immediately before
November 15, 1990'' to provisions in the newly enacted 1990 CAA
Amendments.
The CAA, in the generally applicable subpart 1 provisions of Part D
of Title I, specifically section 172(b), provides a submittal schedule
for plan revisions following the EPA's promulgation of ``the
designation of an area as nonattainment with respect to a national
ambient air quality standard. . . .'' See 42 U.S.C. 7502(b). At the
time of the 1990 CAA Amendments, designations for the 1-hour ozone
NAAQS were already in existence for all areas of the country--including
nonattainment areas. The 1990 CAA Amendments under Title I Part D
Subpart 2 added increased programmatic controls and a tiered
classification structure on top of the existing ozone nonattainment
designations, imposing still more SIP submission requirements on the
higher classified areas. Given the existing NNSR programs developed
under prior statutory authority, it is reasonable to believe that
Congress thought that the initial NNSR SIP corrections required under
the newly created section 182(a)(2)(C) could be developed and submitted
to the EPA quickly. The EPA continues to support the interpretation of
the statute that the submission of ``corrections to the SIP,''
including NNSR SIPs, due on November 15, 1992, fulfilled the statutory
requirement addressing the SIP revisions associated with the 1-hour
ozone standard. Hence, the EPA continues to support the interpretation
that the general NAAQS implementation provisions in CAA subpart 1 at
section 172(b) govern when the EPA establishes a deadline for the
submittal of NNSR SIP revisions that are triggered by ozone NAAQS
revisions occurring after November 15, 1990.
2. Form and Content of Nonattainment and OTR SIP Element Submissions
Required Under a Revised NAAQS
a. Summary of Proposal. The EPA proposed to retain our existing CAA
interpretation that air agencies are required to submit all
nonattainment SIP elements applicable for an area's classification
following revision of the NAAQS. The EPA also took comment on an option
for air agencies to submit a certification statement for previously
approved SIP elements. When submitting SIP elements, air agencies may
certify that an existing regulation is adequate to meet certain
nonattainment area planning requirements for a revised ozone NAAQS, in
lieu of submitting a new revised regulation.
b. Final Rule. The EPA is finalizing the proposed requirements. We
continue to interpret the general SIP requirements of subpart 1 of part
D of Title I and the specific nonattainment area planning requirements
of CAA section 182 to require air agencies to submit a SIP element to
meet each nonattainment area planning requirement for the 2015 ozone
NAAQS. Many air agencies already have regulations in place to address
certain nonattainment area planning requirements due to nonattainment
designations for a prior ozone NAAQS. Air agencies should review any
existing regulation that was previously approved by the EPA to
determine whether it is sufficient to fulfill obligations triggered by
the revised ozone NAAQS.\6\ For example, a state may have an emissions
statement regulation (per CAA section 182(a)(3)(B)) that has been
previously approved by the EPA for a prior ozone NAAQS that covers all
the state's nonattainment areas and relevant classes and categories of
sources for the 2015 ozone NAAQS, and that is likely to be sufficient
for purposes of meeting
[[Page 63002]]
the emissions statement requirement for the 2015 ozone NAAQS. Where an
air agency determines that an existing regulation is adequate to meet
applicable nonattainment area planning requirements of CAA section 182
(or OTR RACT requirements of CAA section 184) for a revised ozone
NAAQS, that air agency's SIP revision may provide a written statement
certifying that determination in lieu of submitting new revised
regulations. The EPA has acted on similar certifications in the past.
See e.g., 83 FR 26221 (June 6, 2018) (explaining that the EPA is
approving Pennsylvania's certification that the state's previously
approved emissions statement regulation meets the requirements of CAA
section 182(a)(3)(B) for the 2008 ozone standards). Other previously
approved nonattainment SIP elements that may be sufficient for purposes
of an area that has been designated nonattainment for a revised ozone
NAAQS might include (but are not necessarily limited to): NNSR, vehicle
I/M programs and clean fuels requirement for boilers.
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\6\ This review should include determining whether the
nonattainment area boundary for the current ozone NAAQS is
consistent with the boundary for the previous standards.
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An air agency choosing to provide a written certification in lieu
of submitting a new or revised regulation must provide the
certification to the EPA qualifying as a SIP revision in accordance
with CAA section 110 and 40 CFR 51.102, 103 and part 51 Appendix V. An
air agency should identify the related applicable requirements and
explain how each is met for the revised ozone NAAQS by the regulation
previously approved for a prior ozone NAAQS. The purpose of the
statement is to demonstrate compliance with the nonattainment area
planning requirements for the new NAAQS. These written statements must
be treated in the same manner as any other SIP submission and must be
provided to the EPA in accordance with applicable SIP submission
requirements and deadlines.
In cases where a previously approved regulation is modified for any
reason, or where no regulation exists, air agencies must provide the
new or modified regulation as a SIP submission. This would include new
or modified RACT provisions for states with nonattainment areas and
states in an OTR resulting from a new review of major source emission
controls.
c. Comments and Responses. Comment: Several commenters objected to
the EPA's expectation that states certify the adequacy of previously
approved SIP elements for a revised NAAQS with written statements,
through the same process as other SIP revisions. They argue the
certification process is redundant and therefore a waste of resources
because the EPA already has several processes to ensure that states
meet CAA section 110 planning obligations including infrastructure
SIPs. Two commenters supported the EPA's option for SIP certification
statements, citing its benefits in streamlining the SIP development
process.
Response: The EPA disagrees with commenters that SIP certification
statements triggered by a NAAQS revision are redundant and already
accomplished through other SIP processes, including infrastructure
SIPs. As noted previously, we continue to interpret the general SIP
requirements of CAA section 110 and specific nonattainment planning
requirements of CAA section 182 to require an air agency to provide a
SIP submission to meet each nonattainment area planning requirement for
a revised ozone NAAQS. To the extent that commenters suggest the EPA
should adopt a general presumption of adequacy for previously approved
SIP elements, we disagree. We note in particular that the
infrastructure SIP submission triggered by a NAAQS revision provides
the public and the EPA an opportunity to review the basic structure of
a state's air quality management program and is not intended--nor can
it be presumed--to address the adequacy of individual nonattainment SIP
elements for purposes of the revised NAAQS.
The submission of individual nonattainment SIP elements for
purposes of the revised NAAQS provides the public and the EPA an
opportunity to review and comment upon each element of a nonattainment
SIP. If the air agency reviews an existing SIP element and concludes it
does not need to be revised in light of the new NAAQS, submission of a
certification SIP allows the public to review the air agency's
assessment and provide comment on any changes they may think necessary.
The EPA then also has an opportunity to review the air agency's
assessment and ensure that it is consistent with CAA requirements in
relation to the revised 2015 ozone NAAQS.
As noted by other commenters, the certification statement option is
intended to streamline the SIP submission process, providing air
agencies with the flexibility to address multiple SIP elements in a
single certification statement, and combine the SIP certification
action with other actions subject to public notice and comment. The EPA
does not believe that developing and submitting certification SIP
elements will be a significant and unnecessary drain on state
resources.
B. Redesignation to Nonattainment Following Initial Designations
1. Summary of Proposal
The EPA proposed to retain our existing requirements concerning
SIP-related deadlines for areas initially designated attainment for a
current ozone NAAQS and subsequently redesignated to nonattainment for
the same standards. These requirements are codified for the 2008 ozone
NAAQS at 40 CFR 51.1106.
2. Final Rule
The EPA is finalizing the proposed requirements. The newly adopted
provisions, codified at 40 CFR 51.1306, generally allow an extension of
any absolute, fixed date applicable to SIP requirements under part 51--
excluding attainment dates--equal to the length of time between the
effective date of the initial designation for the NAAQS and the
effective date of the redesignation, unless otherwise provided in the
implementation provisions for the 2015 ozone NAAQS.\7\ The maximum
attainment date for a redesignated area would be based on the area's
classification.
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\7\ For example, the adopted RACT provisions at 40 CFR
51.1312(a)(3)(ii) for reclassified nonattainment areas (which would
include areas redesignated to nonattainment) require that RACT SIP
revisions be implemented as expeditiously as practicable, but no
later than the start of the attainment year ozone season associated
with the area's new attainment deadline, or January 1 of the third
year after the associated SIP revision submittal deadline, whichever
is earlier (see Section IV.B of this preamble).
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3. Comments and Responses
The EPA received no adverse comments on the proposed requirements.
C. Determining Eligibility for 1-Year Attainment Date Extensions for
the 2015 Ozone NAAQS Under CAA Section 181(a)(5)
1. Summary of Proposal
The EPA proposed to retain our existing approach for eligibility
criteria for 1-year attainment date extensions under CAA section
181(a)(5). These criteria are codified for the 1997 ozone NAAQS in 40
CFR 51.907 and for the 2008 ozone NAAQS in 40 CFR 51.1107, and we
proposed to retain the same approach for purposes of the 2015 ozone
NAAQS.
2. Final Rule
The EPA is finalizing the proposed approach. Under the newly
adopted provisions, codified at 40 CFR 51.1307, an area that fails to
attain a specific ozone NAAQS by its attainment date
[[Page 63003]]
would be eligible for the first 1-year extension if, for the attainment
year, the area's fourth highest daily maximum 8-hour average is at or
below the level of the standards. The area would be eligible for the
second 1-year extension if the area's fourth 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 standards. For
the second 1-year extension, the area's fourth highest daily maximum 8-
hour average for each year (the attainment year and the first extension
year) must be determined using the monitor which, for that year, has
the fourth highest daily maximum 8-hour average of all the monitors
that represent that area (i.e., the area's fourth highest daily maximum
8-hour average for each year could be derived from a different
monitor).
In addition to demonstrating that an area meets these general
eligibility criteria, an air agency must demonstrate that it has
complied with all requirements and commitments pertaining to the area
in the applicable SIP, per CAA section 181(a)(5)(A). Given the state
and federal partnership in implementing the CAA, it is reasonable for
the EPA to interpret CAA section 181(a)(5)(A) as permitting the agency
to rely upon the certified statements of our state counterparts, and
the EPA has long interpreted the provision to be satisfied by such
statements.\8\ In practice, in conjunction with a request for an
extension, a state air agency's Executive Officer, or other senior
individual with equivalent responsibilities, signs and affirms that the
state is complying with its applicable federally approved SIP.
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\8\ See ``Procedures for Processing Bump Ups and Extension
Requests for Marginal Ozone Nonattainment Areas,'' Memorandum from
D. Kent Berry, Acting Director, Air Quality Management Division,
U.S. EPA, February 3, 1994.
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3. Comments and Responses
Comment: The EPA received general support for retaining the current
1-year attainment date extension approach. One commenter requested that
either the EPA codify clear and specific instructions on the criteria
that must be met, beyond the monitoring requirements in proposed
section 51.1307, or that the EPA update guidance for ozone to
correspond with the carbon monoxide (CO) attainment date extension
guidance \9\ since the EPA ties consideration of an attainment date
extension for CO to a state's ``substantial'' efforts to reduce
emissions.
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\9\ The CO guidance referenced is contained in the Sally Shaver
memo, ``Criteria for Granting Attainment Date Extensions, Making
Attainment Determinations, and Determinations of Failure to Attain
the NAAQS for Moderate CO Nonattainment Areas'' (10/23/95),
available at: https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19951023_shaver_attainment_extension_co_naa.pdf.
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Response: We disagree with the commenter that the EPA should codify
instructions or develop separate guidance for granting attainment date
extensions under an ozone NAAQS. CAA section 181(a)(5)(A) requires a
state to have complied with all applicable SIP requirements and
commitments to qualify for an attainment date extension. As discussed
previously, the EPA has long interpreted CAA section 181(a)(5)(A) as
permitting the agency to rely upon the certified statements of our
state counterparts that a state has complied with all applicable ozone
SIP requirements and commitments to qualify for an attainment date
extension. In practice, we have found this approach for ozone NAAQS
implementation to be reasonable and sufficient, and do not intend to
develop separate 1-year attainment deadline extension guidance for the
ozone NAAQS at this time.
D. Modeling and Attainment Demonstration Requirements
1. Summary of Proposal
The EPA proposed to retain our existing modeling and attainment
demonstration requirements, which are codified for the 2008 ozone NAAQS
in 40 CFR 51.1108, and to establish criteria and due dates for
attainment demonstrations and implementation of control measures for
the 2015 ozone NAAQS. Due dates for attainment demonstrations are
established relative to the effective date of area designations, and
all control measures in the attainment demonstration must be
implemented no later than the beginning of the attainment year ozone
season, notwithstanding specific RACT and/or RACM implementation
deadline requirements. For reference, the final 2008 Ozone NAAQS SIP
Requirements Rule provides an extensive discussion of attainment
demonstration elements and related modeling protocols (80 FR 12268;
March 6, 2015). The EPA's current procedures for modeling are well
developed and described in the EPA's ``Modeling Guidance for
Demonstrating Attainment of Air Quality Goals for Ozone,
PM2.5, and Regional Haze'' (November 2018).\10\
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\10\ Modeling guidance, tools and supporting documents for SIP
attainment demonstration are available at: http://www3.epa.gov/scram001/guidance_sip.htm.
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2. Final Rule
The EPA is finalizing modeling requirements as outlined in the
proposal, and adopted at 40 CFR 51.1308. The EPA continues to believe
the modeling requirements established in the final 2008 Ozone NAAQS SIP
Requirements Rule are reasonable, primarily because photochemical
modeling is generally available and reasonable to employ. However, this
requirement also explicitly allows for another analytical method,
determined by the Administrator to be at least as effective as
photochemical modeling, 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 that allows for the timely submittal of the attainment
demonstration. States should review the EPA modeling guidance \11\ and
consult their appropriate EPA Regional office before proceeding with
alternative analyses. Under CAA section 182(a), states are not required
to submit an attainment demonstration SIP for Marginal areas. 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. If necessary,
states can choose to adopt additional controls for such areas or they
can request 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 may facilitate
quicker attainment, including through the development of the attainment
plans required of Moderate and higher classified areas.
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\11\ 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,'' available at: https://www3.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
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3. Comments and Responses
Comment: One commenter stated that the EPA should finalize our 2014
draft modeling guidance. Another commenter stated that the use of
photochemical grid modeling (or equivalent) for attainment
demonstrations should be left to a state's discretion.
Response: The EPA acknowledges the need to update modeling guidance
and has recently released an updated (November 2018) version, as
described previously.
[[Page 63004]]
In regard to the use of photochemical grid modeling, the EPA is
retaining the same modeling and attainment demonstration requirements
as established in the final 2008 Ozone NAAQS SIP Requirements Rule. CAA
section 182(c)(2)(A) contains specific requirements for states to use
photochemical modeling or another analytical method determined to be at
least as effective in their SIPs for Serious and higher classified
nonattainment areas. 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 another
analytical method determined to be at least as effective) for all
attainment demonstrations (including Moderate areas). 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.
E. Requirements for RFP
1. Summary of Proposal
The EPA proposed in general to retain our existing approach for RFP
requirements and to add new regulatory provisions codifying statutory
requirements for RFP milestone compliance demonstrations (MCDs) (see
Section IV.A of this preamble). The EPA also sought comment on
requiring states to use the year of an area's designation as
nonattainment as the baseline year for the emissions inventory for the
RFP requirement.
The existing RFP requirements for the 2008 ozone NAAQS are codified
in 40 CFR 51.1110 and are organized by the following major subjects:
Submission deadline for SIP revisions; RFP requirements for affected
areas; \12\ creditability of emission control measures; creditability
of out-of-area emissions reductions; calculation of non-creditable
emissions reductions; and baseline emissions inventories for RFP plans.
For reference, the final 2008 Ozone NAAQS SIP Requirements Rule
provides an extensive discussion of the EPA's rationale and approach
for how air agencies can provide for RFP in their nonattainment SIPs
(80 FR 12271; March 6, 2015).
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\12\ 40 CFR 51.1110(a)(2)-(4) establish three separate sets of
RFP requirements for: (1) Areas with an approved 1-hour or 1997
ozone NAAQS 15 percent VOC ROP plan; (2) 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; and (3) areas without an approved 1-
hour or 1997 ozone NAAQS 15 percent VOC ROP plan.
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In general terms, ozone nonattainment areas must achieve RFP toward
attainment of the ozone NAAQS, as established in the RFP provisions of
subparts 1 and 2 of part D of the CAA. Section 172(c)(2) of subpart 1
requires that nonattainment SIPs must provide for RFP, 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. Subpart 2 establishes specific
percent reduction targets for ozone nonattainment areas. For Moderate
and higher classified 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 (this RFP requirement
is also referred to as ROP). The 15 percent ROP requirement must be met
by the end of the 6-year period regardless of when the nonattainment
area attains the NAAQS. For an area that already has an approved SIP
providing for the 15 percent ROP requirement for VOC under either the
1-hour ozone NAAQS or a prior 8-hour ozone NAAQS, the EPA proposed that
the area would not need to meet 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 2015 ozone NAAQS. The EPA
proposed to retain our existing interpretation of CAA section 172(c)(2)
to require such areas to obtain 15 percent reductions in ozone
precursor emissions over the first 6 years after the baseline year. For
areas classified Serious and higher, the EPA proposed to retain our
existing interpretation of CAA section 182(c)(2)(B) to require such
areas to obtain 18 percent ozone precursor emission reductions in that
6-year period.\13\ For areas classified Serious and higher, CAA section
182(c)(2)(B) requires an additional 3 percent per year reduction from
baseline VOC emissions, averaged over consecutive 3-year periods,
beginning 6 years after November 15, 1990, and applying each year until
the attainment date. CAA section 182(c)(2)(B) also allows
NOX reductions to be substituted for VOC reductions under
certain conditions to meet the 3 percent per year RFP requirement.
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\13\ Similar interpretations were made for the 1997 ozone NAAQS
in the Phase 2 Ozone Implementation Rule (70 FR 71615, November 29,
2005), which were upheld in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir.
2009), and for the 2008 ozone NAAQS in the 2008 Ozone NAAQS SIP
Requirements Rule (80 FR 12271, March 6, 2015), which were upheld in
South Coast II, 882 F.3d 1138 (D.C. Cir. 2018).
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The EPA proposed that the default baseline year for RFP would be
the calendar year for the most recently available triennial emissions
inventory at the time ROP/RFP plans are developed (e.g., 2017 for
initial designations effective in 2018). We further proposed that
states may use an alternative year (i.e., a year other than 2017)
between the year of the revised NAAQS issuance (2015) and the year in
which nonattainment designation is effective. Consistent with our
approach for the 2008 ozone NAAQS, we proposed that all states
associated with a multi-state nonattainment area must consult and agree
on a single RFP baseline year for the area. The EPA also invited
comment on an alternative approach of requiring that states use the
year of the effective date of an area's designation as the baseline
year for the emissions inventory for the RFP requirements.
2. Final Rule
The EPA is finalizing most aspects of our proposals for
implementing the CAA's RFP provisions for purposes of the 2015 ozone
NAAQS, as adopted at 40 CFR 51.1310. In general, the EPA is following
essentially the same interpretation of CAA subpart 2 requirements for
RFP as was applied to areas for the 2008 and 1997 8-hour ozone
standards, with exceptions noted in this section. Areas classified
Moderate for the 2015 ozone NAAQS that had SIPs previously approved to
meet the ROP requirements for the 1-hour, 1997 8-hour or 2008 8-hour
ozone NAAQS would be treated like areas covered under CAA section
172(c)(2), and would need to meet the 3 percent per year RFP
requirements under CAA section 182(c)(2)(B) if they are classified
Serious or higher for the 2015 standards. For the purposes of the 2015
ozone NAAQS, the EPA continues to interpret CAA section 172(c)(2) as
requiring Moderate areas with an approved SIP under the 1-hour ozone
NAAQS or prior 8-hour ozone NAAQS to achieve 15 percent ozone precursor
(NOX and/or VOC) emission reductions over the first 6 years
after the RFP baseline year for the 2015 ozone NAAQS. For areas
classified Serious and higher, the EPA continues to interpret CAA
section 182(c)(2)(B) to require such areas to obtain 18 percent ozone
precursor emission reductions in that 6-year period. This
interpretation was recently upheld in a challenge to the 2008 Ozone
NAAQS SIP Requirements Rule in South Coast II, 882 F.3d at 1153. The
EPA also continues to interpret CAA
[[Page 63005]]
section 182(c)(2)(B) for the 2015 ozone NAAQS as requiring an
additional 3 percent per year reduction from baseline emissions,
averaged over consecutive 3-year periods, beginning 6 years after the
RFP baseline year, and applying each year until the attainment date.
For the RFP baseline year for the 2015 ozone NAAQS, we are
specifying that the baseline year shall be the calendar year for the
most recently available triennial emissions inventory preceding the
year of the area's effective date of designation as a nonattainment
area. This approach was recently upheld by the D.C. Circuit in South
Coast II. Alternatively, states may choose to use the year that
corresponds with the year of the effective date of an area's
nonattainment designation for the RFP baseline year.
For purposes of the 2008 ozone NAAQS, the EPA selected 2011 as a
baseline year because it is tied to the 3-year statutory cycle for
emissions inventories, and preceded the year in which nonattainment
area designations for the 2008 ozone NAAQS were effective (i.e., 2012).
The D.C. Circuit in South Coast II upheld this approach as reasonable,
because the chosen baseline year was tied to the triennial emissions
inventory states must prepare. South Coast II, 882 F.3d at 1152.
Further, we note that the EPA has historically interpreted RFP
``baseline emissions'' (CAA section 182(b)(1)(B)) as corresponding with
the initial emissions inventory in CAA section 182(a) (see, e.g., 80 FR
12290; March 6, 2015).\14\ For an ozone NAAQS revision occurring after
the CAA was amended in 1990, we interpret the periodic triennial
inventory required by CAA section 182(a)(3) as effectively supplanting
the initial emissions inventory required by CAA section 182(a)(1),
because the revised periodic inventory must meet the same requirements
as the initial emissions inventory. We therefore believe it is a
reasonable interpretation of the CAA that RFP baseline year emissions
may correspond with the calendar year and contents of the triennial
inventory required by CAA section 182(a)(3). We are finalizing our
approach that states shall use an RFP baseline year for the 2015 ozone
NAAQS that corresponds with the calendar year for the most recent
triennial emissions inventory preceding the year of the area's
effective date of nonattainment designation. For example, states with
areas designated nonattainment in 2018 would use 2017 as the RFP
baseline year, which would be the year of the most recent triennial
emissions inventory.
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\14\ CAA section 182(b)(1)(B) defines ``baseline emissions'' as
the total amount of actual VOC or NOX emissions from
anthropogenic sources in the area during calendar year 1990, which
we have interpreted as corresponding with the emissions inventory
for the area as of November 15, 1990; the development of an
emissions inventory with that reference date was required under CAA
section 182(a)(1).
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For purposes of the 2015 ozone NAAQS, states may also use an
alternative RFP baseline year that corresponds with the year of the
effective date of an area's designation. This adopted approach for the
2015 ozone NAAQS revises the approach provided in the 2008 Ozone NAAQS
SIP Requirements Rule, which allowed the state to select an alternative
RFP baseline year between the year of the revised NAAQS issuance (i.e.,
2008) and the year in which nonattainment designations were effective
(i.e., 2012), so long as the state could explain why the alternative
year was appropriate. The EPA's creation of the state-selected
alternative RFP baseline year option for the 2008 Ozone NAAQS SIP
Requirements Rule was rejected by the court in South Coast II, because
the court found that the EPA failed to provide a statutory
justification for why alternative baselines were appropriate. South
Coast II, 882 F.3d at 1153. As noted previously, the EPA sought comment
on an alternative approach that would have required states to use the
year of the effective date of an area's designation (designation year)
as the baseline year for the RFP emissions inventory instead of the
triennial emissions inventory year.
As explained earlier, for purposes of the 2015 ozone NAAQS, we are
specifying that the baseline year shall be the calendar year for the
most recently available triennial emissions inventory preceding the
year of the area's effective date of designation as a nonattainment
area, but also allowing an alternative approach that provides states
the option to use an area's designation year as the baseline year for
RFP. This alternative option is grounded in our interpretation of the
RFP requirement in CAA section 182(b)(1)(B), which defines ``baseline
emissions'' in terms of total VOC and NOX emissions in the
area ``during the calendar year 1990.'' There is clear ambiguity in the
statutory language at issue, since we do not believe Congress intended
1990 to be the baseline year for RFP requirements for all future ozone
NAAQS. Therefore, the EPA must develop a reasonable interpretation of
the baseline year provisions at issue. Note that section 93.119(e)(4)
of the EPA's transportation conformity rule requires that for any NAAQS
promulgated after 1997 the baseline year is the ``most recent year for
which the EPA's Air Emissions Reporting Requirements (AERR) (40 CFR
part 51, subpart A) requires submission of on-road mobile source
emissions inventories as of the effective date of designations.'' For
nonattainment areas for the 2015 ozone NAAQS, 2017 is the baseline year
for transportation conformity purposes.
The calendar year 1990 is tied to the November 15, 1990, date of
passage of the 1990 CAA Amendments, which ``is the date on which
Congress specified that the initial designations/classifications . . .
under the 1990 amendments would take effect.'' NRDC v. EPA, 777 F.3d
456 (D.C. Cir. 2014) (citing 42 U.S.C. 7407(d)(1)(C), 7511(a)(1)).
Thus, for the 1-hour standard, the RFP baseline year was ``calendar
year 1990,'' which was both the year of the initial emissions inventory
required by CAA section 182(a)(1) and the year of designations.
However, for future promulgations and revisions of NAAQS, the year of
designations and the year of the most recent triennial emissions
inventory may not coincide--and for the 2015 ozone NAAQS, they do not.
Where they do not coincide, no single year can be selected that
presents both the attributes that 1990 did in the context of the
Amendments and the subsequent implementation process. Accordingly, we
believe that in the context of implementing a NAAQS for which these 2
years do not coincide, the textual reference in the RFP requirement's
``baseline emissions'' provision reference to the ``calendar year
1990'' (CAA section 182(a)(1)) can be reasonably read to refer to that
year either as an area's year of initial designation or as the year of
the relevant emissions inventory. We therefore believe it is a
reasonable interpretation of the statute that states should be able to
use an area's designation year for the 2015 ozone NAAQS as the RFP
baseline year, as an alternative to the calendar year for the most
recent triennial emissions inventory. All states associated with a
multi-state nonattainment area must consult and agree on using the
alternative baseline year.
3. Comments and Responses
Comment: The EPA received broad support for our proposal to retain
the existing flexible approach to establishing an RFP baseline year.
Commenters noted that an RFP baseline year fixed to an area's
designation may not synchronize with the most recently available
triennial emissions inventory at the time ROP/RFP plans are
[[Page 63006]]
developed, may not be representative of ozone-producing conditions for
the area, and/or would not account for early actions to reduce ozone
precursor emissions. A fixed RFP baseline year could necessitate
preparing separate emissions inventories, e.g., for attainment
demonstration modeling and RFP, at additional time and cost for air
agencies with limited resources.
Response: As discussed previously, the EPA's creation of the state-
selected alternative RFP baseline year option for the 2008 Ozone NAAQS
SIP Requirements Rule was rejected by the court in South Coast II,
because the court found that the EPA failed to provide a statutory
justification for why alternative baselines were appropriate. We agree
with the commenter that under certain circumstances a single fixed RFP
baseline year could increase resource burden for air agencies. Thus, we
are adopting an approach for the 2015 ozone NAAQS that syncs the RFP
baseline with triennial emissions inventory reporting years, but
permits states to alternatively choose the year of designation.
Comment: One commenter argued that the EPA's existing RFP baseline
year approach is illegal because the Act plainly specifies the RFP
baseline year in CAA section 182(b)(1)(B) (i.e., calendar year 1990),
and that RFP requirements would therefore be triggered--and the RFP
baseline year would be set--by the date an area is designated for the
revised NAAQS. The commenter claimed that where Congress wanted to
authorize variation in implementing the ozone NAAQS, it did so
expressly (e.g., allowing the Administrator to adjust SIP deadlines for
reclassified areas under CAA section 182(i)).
Response: As discussed previously, the court in South Coast II
upheld the EPA's selection of 2011, i.e., the most recent year from the
3-year statutory cycle for emissions inventories, as the default RFP
baseline year for the 2008 ozone NAAQS as reasonable. We are adopting
this same approach for the 2015 ozone NAAQS, while also allowing states
to choose an alternative RFP baseline year corresponding with an area's
designation year. For the reasons cited previously, we believe both
options are reasonable interpretations of the CAA's RFP provisions in
adapting those provisions to revised ozone NAAQS.
Comment: A commenter objected to the EPA's proposed interpretation
of CAA section 182(b)(1) that would consider areas with an approved 15
percent ROP plan under a prior ozone NAAQS to have satisfied the 15
percent ROP requirement for the 2015 ozone NAAQS. The EPA applied this
interpretation previously for purposes of the 1997 and 2008 8-hour
ozone standards. The commenter claimed that the proposed 15 percent ROP
requirement illegally allows ``paper-only'' reductions to substitute
for the actual emission reductions intended by Congress and articulated
in the general rule for creditability of ROP reductions in CAA section
182(b)(1)(C) (i.e., the required reductions are creditable ``to the
extent they have actually occurred'').
Another commenter objected to the 15 percent ROP requirement in
general, describing it as outdated, not necessitated under the current
ozone standards, and increasingly difficult to achieve given the
decreases in ozone precursor emissions that have occurred since the CAA
was amended in 1990. If the EPA continues to implement the 15 percent
ROP requirement, the commenter argues that required emission reductions
should be measured against the 1990 baseline in all cases, and that
states should have discretion to apply NOX or VOC reductions
toward the initial 15 percent (VOC) ROP increment.
Response: The EPA disagrees that a state must demonstrate that an
area actually achieved the 15 percent ROP within 6 years of the
baseline year for a prior NAAQS. Consistent with the decision in NRDC
v. EPA, 571 F.3d 1235 (D.C. Cir. 2009), we continue to maintain that if
a state has already met the requirement to submit for approval and to
implement a nonattainment area ROP/RFP emissions reduction plan to meet
the requirements of CAA section 182(b)(1)(A) for either the 1-hour
standard or a prior 8-hour standard, the state will not have to meet it
again for the 2015 ozone NAAQS. As noted previously, the court in South
Coast II affirmed this approach for purposes of the 2008 Ozone NAAQS
SIP Requirements Rule.
We also disagree with the comment that the 15 percent ROP is not
necessary under current ozone standards and that, if required by the
EPA, it should be measured against the 1990 baseline in all cases. The
RFP regulation must comply with the CAA, and section 182(b)(1) of the
CAA explicitly requires that ozone nonattainment areas classified as
Moderate or higher submit an ROP plan to achieve a 15 percent reduction
in VOC baseline emissions over a 6-year period following the baseline
year. We continue to believe it is reasonable to interpret that
baseline year as the one associated with the revised ozone NAAQS and
not the year 1990 associated with the then-current 1-hour NAAQS. A 1990
baseline year for areas designated in 2018 would be impractical and an
absurd result, especially for areas that were not nonattainment for the
ozone NAAQS in 1990 and thus never subject to a past requirement to
develop and use a 1990 nonattainment area emissions inventory for
purposes of RFP. Assessing 15 percent ROP only during the period 1990-
1996 would be meaningless for a nonattainment area that must in 2018
begin achieving emissions reductions to meet an ozone NAAQS with an
attainment date in a year after 2018.
Comment: A number of commenters disagreed with the EPA's proposed
requirement that creditable emission reductions for 15 percent ROP and
3 percent RFP must be obtained from sources within the nonattainment
area. Several of the commenters referenced our proposed requirement
regarding control measures for out-of-area sources in a state's
jurisdiction (see Section IV.C of this preamble), and questioned
whether it was reasonable that the EPA could require out-of-area
emission reductions for attainment purposes, while not crediting those
reductions toward RFP.
Response: The EPA disagrees with the commenters. The proposed
requirement that emission reductions must be obtained from within the
nonattainment area to be creditable for ROP and RFP is the same as that
adopted in the 2008 Ozone NAAQS SIP Requirements Rule, which was
challenged and upheld in South Coast II. The court in South Coast II
declared that the related statutory text is unambiguous, noting that
RFP is measured from ``baseline emissions,'' which is defined in the
CAA as ``the total amount of actual VOC or NOX emissions
from all anthropogenic sources in the area during the'' baseline
year.\15\ The court noted the singular term ``the area'' appears in a
CAA section titled ``Moderate Areas,'' and not a greater area (CAA
section 182(b); see also CAA section 182(c)). The court concluded, in
considering the grammar and context of the CAA's RFP provisions, that
``in the area'' unambiguously refers to baseline emissions within the
nonattainment area. South Coast II, 882 F.3d at 1146-47. Accordingly,
the EPA concludes, as we did in the 2008 Ozone NAAQS SIP Requirements
Rule, that we have no legal basis for allowing RFP credits for
reductions outside the nonattainment area.
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\15\ See CAA sections 182(b)(1)(A), (b)(1)(B), (c)(2)(B), (d)
and (e).
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[[Page 63007]]
F. Requirements for RACT and RACM
1. RACT
a. Summary of Proposal. The EPA proposed to retain our existing
general RACT requirements, which are codified for the 2008 ozone NAAQS
at 40 CFR 51.1112, and to add new deadline requirements for certain
RACT SIP submissions (see Section IV.B of this preamble). For
reference, the final 2008 Ozone NAAQS SIP Requirements Rule provides an
extensive discussion of the EPA's rationale and approach for how air
agencies can provide for RACT in their nonattainment SIPs (80 FR 12278;
March 6, 2015).
b. Final Rule. The EPA is retaining our existing general RACT
requirements for purposes of the 2015 ozone NAAQS. These requirements,
which are being codified at 40 CFR 51.1312(a) and (b), address the
content and timing of RACT SIP submittals and implementation, as well
as major source criteria for RACT applicability.\16\ Underlying these
general RACT requirements are well-established EPA policies and
guidance, including existing control techniques guidelines (CTGs) and
alternative control techniques (ACTs).\17\ Consistent with the EPA's
prior guidance (80 FR 12279; March 6, 2015), when determining what is
RACT for a particular source or source category, air agencies should
also consider all other relevant information (including recent
technical information and information received during the state's
public comment period) that is available at the time they develop their
RACT SIPs. The EPA's adopted RACT approach includes our longstanding
policy with respect to ``area wide average emission rates.'' This
policy recognizes that states may demonstrate as part of their
NOX RACT SIP submission that the weighted average
NOX emission rate of all sources in the nonattainment area
subject to RACT meets NOX RACT requirements; states are not
required to demonstrate RACT-level controls on a source-by-source
basis. This approach for demonstrating RACT through area-wide average
emissions rates was recently upheld in South Coast II, 882 F.3d at
1154. The EPA is also finalizing new submittal and implementation
deadlines for certain RACT SIP revisions, as discussed in Section IV.B
of this preamble.
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\16\ The EPA has defined RACT as the most stringent 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. See related
discussion in ``Guidance for Determining Acceptability of SIP
Regulations in Non-Attainment Areas,'' Memorandum from Roger
Strelow, Assistant Administrator for Air and Waste Management, to
Regional Administrators (December 9, 1976) (Strelow Memorandum) and
the proposed General Preamble Supplement in 44 FR 53762 (September
17, 1979). Availability and feasibility may differ across sources in
the same category. See ``Criteria for Determining RACT in Region
IV,'' Memorandum from John Calcagni, Chief, Economic Analysis
Branch, to G.T. Helms, Jr., Chief, Control Programs Operations
Branch (June 19, 1985).
\17\ The EPA's CTGs and ACTs are available at: https://www.epa.gov/ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques-documents-reducing.
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c. Comments and Responses. Comment: Two commenters stated that the
EPA should extend the submittal deadline for RACT SIPs from 24 months
to 36 months following the effective date of a nonattainment area's
designation.
Response: The EPA has considered the comments regarding an extended
submittal deadline for RACT SIP revisions, but, given the uncertainty
regarding the statutory basis for providing such flexibility, does not
interpret CAA section 182(b)(2) to allow extending the deadline for
RACT SIP submissions triggered by initial nonattainment area
designations. We are instead adopting an interpretation consistent with
the requirement in the 2008 Ozone NAAQS SIP Requirements Rule that RACT
SIP submissions triggered by initial nonattainment area designations
must be submitted based on the timeframe provided in CAA section
182(b)(2), i.e., no later than 24 months after the effective date of
nonattainment designation for a specific ozone NAAQS. As discussed in
Section IV.B of this preamble, the EPA is adopting an alternative
approach for RACT SIP revisions triggered by nonattainment area
reclassifications or the issuance of a new CTG.
Comment: Several commenters objected to the EPA proposing to retain
our ``area wide average emission rates'' approach for RACT. They
contend that the emissions averaging policy violates the clear terms of
the CAA, which they argue requires each individual source to meet the
NOX RACT requirement. One commenter provided a legal
analysis of statutory language and legislative history as confirming
the source-specific basis of RACT requirements. The same commenter also
pointed to the EPA's previous RACT guidance \18\ and the NOX
RACT exemption provisions of CAA section 182(f)(1) and (2) as further
evidence of RACT's source-specific basis.
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\18\ See Strelow Memorandum.
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Response: The EPA disagrees with the commenters. As mentioned
previously, the D.C. Circuit recently upheld the RACT emissions
averaging policy with respect to the 2008 ozone NAAQS, and we are
retaining it for purposes of the 2015 ozone NAAQS. The court held that
``the plain language [of the CAA]--in the context of the
interrelationship between [42 U.S.C. sections] 7511a(b)(2) and
7502(c)(1)--does not mandate RACT for each individual source.'' South
Coast II, 882 F.3d at 1154. In addition to holding that the CAA does
not require the approach advanced by the commenters, the court further
held that the EPA's area-wide emissions averaging approach for the 2008
ozone NAAQS, which is adopted again here for the 2015 ozone standards,
is reasonable. Id. (``The EPA's interpretation reasonably allows
nonattainment areas to meet RACT-level emissions requirements through
averaging within a nonattainment area.'').
2. RACM
a. Summary of Proposal. The EPA proposed to retain our existing
RACM requirements, which are codified for the 2008 ozone NAAQS at 40
CFR 51.1112. The EPA also proposed to codify the existing requirement
under CAA section 172(c)(6) that, in addition to impacts of emissions
from sources inside an ozone nonattainment area, air agencies must also
consider the impacts of emissions from sources outside an ozone
nonattainment area but within a state's boundaries, and to require such
other measures for emissions reductions from these intrastate sources
as needed to attain the ozone NAAQS by the applicable attainment date
(see Section IV.C of this preamble). For reference, the final 2008
Ozone NAAQS SIP Requirements Rule describes the EPA's current rationale
and approach for how air agencies can provide for RACM in their
nonattainment SIPs (80 FR 12282; March 6, 2015).
b. Final Rule. The EPA is retaining our existing general RACM
requirements for purposes of the 2015 ozone NAAQS, as codified at 40
CFR 51.1312(c). The EPA interprets the RACM provision to require a
demonstration that an air agency 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.19 20 21
[[Page 63008]]
Further, the EPA requires that air agencies consider all available
measures, including those being implemented in other areas, but must
adopt measures for an area only if those measures are economically and
technologically feasible and will advance the attainment date, or if
those measures are necessary for RFP. The EPA is retaining our existing
general RACM requirements for the 2015 ozone NAAQS based on the current
rationale and approach articulated in the final 2008 Ozone NAAQS SIP
Requirements Rule, and the requirements of CAA section 172(c)(6).
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\19\ ``State Implementation Plans; General Preamble for Proposed
Rulemaking on Approval of Plan Revisions for Nonattainment Areas''
44 FR 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 13560 (April 16, 1992).
\20\ ``Guidance on the Reasonably Available Control Measures
(RACM) Requirement and Attainment Demonstration Submissions for
Ozone Nonattainment Areas,'' Memorandum from John S. Seitz,
Director, OAQPS. November 30, 1999. Available at: https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19991130_seitz_racm_guide_ozone.pdf.
\21\ ``Additional Submission on RACM from States with Severe
One-Hour Ozone Nonattainment Area SIPs,'' Memorandum from John S.
Seitz, Director, OAQPS, December 14, 2000, available at: https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20001214_seitz_additional_racm_submissions.pdf.
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c. Comments and Responses. The EPA received no adverse comments on
our proposal to retain our existing general RACM requirements for
purposes of the 2015 ozone NAAQS. Our responses to comments regarding
consideration of other measures for emissions reductions from
intrastate sources under CAA section 172(c)(6) are provided in Section
IV.C of this preamble.
G. CAA Section 182(f) NOX Exemption Provisions
1. Summary of Proposal
The EPA proposed to retain our existing NOX exemption
provisions under CAA section 182(f), which are codified for the 2008
ozone NAAQS at 40 CFR 51.1113. These provisions would allow a person or
an air agency to petition the Administrator for an exemption from
NOX obligations for the 2015 ozone NAAQS under CAA section
182(f) for any area designated nonattainment and for any area in an
OTR. The EPA proposed that NOX exemptions granted for a
previous ozone NAAQS would not apply to relieve an area from CAA
section 182(f) NOX obligations under the 2015 standards.
2. Final Rule
The EPA is finalizing our proposal to retain the existing
NOX exemption provisions under CAA section 182(f) for
purposes of the 2015 ozone NAAQS, as codified at 40 CFR 51.1313.
NOX exemptions granted for any prior ozone NAAQS do not
relieve an area from CAA section 182(f) NOX obligations
under the 2015 ozone NAAQS. Consistent with current EPA policy,
existing NOX exemptions for prior ozone standards remain
valid for purposes of determining applicable requirements for
implementing those prior standards.\22\
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\22\ ``Guidance on Limiting Nitrogen Oxides (NOX)
Requirements Related to 8-Hour Ozone Implementation,'' Memorandum
from Stephen D. Page, Director, OAQPS, to Air Directors, Regions I-X
(January 14, 2005), available at: https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20050114_page_guidance_8-hr_ozone_nox_exemptions.pdf.
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3. Comments and Responses
The EPA received no significant adverse comments regarding our
proposal to retain our existing NOX exemption provisions
under CAA section 182(f) for purposes of the 2015 ozone NAAQS.
H. General Nonattainment NSR Requirements
1. Summary of the Proposed Rule
With one significant exception, the EPA proposed to retain our NNSR
requirements contained at 40 CFR 51.165 and part 51 Appendix S, which
include provisions for the preconstruction review and issuance of
permits to proposed new major stationary sources and major
modifications locating in ozone nonattainment areas. The one exception
pertained to a proposal to address interprecursor trading (IPT) for
meeting the offset requirement for ozone, which is discussed further in
Section IV.D of this preamble.
2. Final Rule
The EPA is adopting general NNSR requirements for the 2015 ozone
NAAQS at 40 CFR 51.1314, as proposed. As explained in Section IV.D of
this preamble, the EPA is restating our existing policy on ozone IPT,
which is currently codified at 40 CFR 51.165(a)(11) and part 51
Appendix S, section IV.G.5, in response to a petition for
reconsideration. A basic understanding of how the NNSR requirements
would otherwise apply to the 2015 ozone NAAQS can be obtained from the
preamble discussion at Section VIII.C in the final rule establishing
the 2015 ozone NAAQS. See 80 FR 65442 (October 26, 2015).
3. Comments and Responses
The EPA received no significant adverse comments regarding our
proposed general NNSR requirements. Please see Section IV.D of this
preamble for comments related to the EPA restating our existing policy
on ozone IPT.
I. Ambient Monitoring Requirements
The EPA did not propose any changes to the existing ozone ambient
monitoring requirements that are codified 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 collects ambient air measurements in accordance
with the enhanced monitoring requirements of CAA section 182(c)(1). The
rulemaking for the final 2015 ozone NAAQS included revisions to the
PAMS requirements at 40 CFR part 58 (80 FR 65416; October 26, 2015).
The revisions were intended to provide a more spatially dispersed
monitoring network, reduce potential redundancy and improve data value
while providing monitoring agencies flexibility in collecting
additional information needed to understand their specific ozone
issues. The EPA received no adverse comments on the existing part 58
ozone ambient monitoring requirements, and makes no changes to these
existing requirements in this final rule.
J. Requirements for an OTR
1. Summary of Proposal
The EPA proposed to retain our existing OTR requirements, and to
add new deadline requirements for certain RACT SIP revisions (see
Section IV.B of this preamble). The OTR requirements for the 2008 ozone
NAAQS, which are codified in 40 CFR 51.1116, establish the general
applicability of CAA sections 176A (interstate transport commissions)
and 184 (control of interstate ozone air pollution), and stipulate the
criteria and timing for RACT SIP submittals and RACT implementation for
those portions of states located in an OTR (see 80 FR 12295; March 6,
2015). With the exception of additional submission and implementation
deadlines for certain RACT SIP revisions (see Section IV.B of this
preamble), the EPA proposed to retain the same requirements for the
2015 ozone NAAQS, without revision.
[[Page 63009]]
2. Final Rule
The EPA is finalizing the proposed OTR requirements. The adopted
requirements for purposes of the 2015 ozone NAAQS are codified at 40
CFR 51.1316.
3. Comments and Responses
The EPA received no adverse comments specific to the proposed OTR
requirements.
K. Fee Programs for Severe and Extreme Nonattainment Areas That Fail To
Attain
1. Summary of Proposal
For the 2015 ozone NAAQS the EPA proposed to retain without
revision our existing fee program SIP submission requirements for ozone
nonattainment areas classified Severe or Extreme, which are codified
for the 2008 ozone NAAQS in 40 CFR 51.1117.
2. Final Rule
The EPA is finalizing the proposed requirements. The adopted fee
program provisions, codified for the 2015 ozone NAAQS at 40 CFR
51.1317, require states with ozone nonattainment areas classified
Severe or Extreme to submit a SIP revision that meets the requirements
of CAA section 185 (Enforcement for Severe and Extreme ozone
nonattainment areas for failure to attain) within 10 years of the
effective date of an area's nonattainment designation. For
nonattainment areas reclassified to Severe or Extreme from a lower
classification after the date of their initial nonattainment
designation, the EPA retains the ability to set an alternative deadline
for the section 185 SIP submission, if appropriate, in the final action
reclassifying the area. We anticipate that adjusting the section 185
SIP submission deadline could be appropriate in situations where the
reclassification action occurs on a date that is unreasonably near to
or past the 10-year deadline applicable to areas initially designed
Severe or Extreme.
3. Comments and Responses
The EPA received no adverse comments on the proposed requirements.
L. Applicability
The EPA proposed to retain the provision that establishes
applicability of the current ozone NAAQS implementation provisions with
respect to the prior ozone NAAQS, which is codified for the 2008 ozone
NAAQS at 40 CFR 51.1119. This applicability provision states that the
implementation provisions for the 2008 ozone standards (subpart AA of
part 51) shall replace the implementation provisions for the previous
1997 standards (subpart X of part 51) after revocation of the 1997
NAAQS, except for anti-backsliding purposes. The EPA proposed to retain
the same applicability provision for purposes of the 2015 ozone NAAQS,
except that the proposed new implementation provisions (to be codified
in subpart CC of part 51) would replace those for the 2008 ozone NAAQS
(subpart AA) if the 2008 standards are revoked for all purposes, except
for anti-backsliding purposes.
As discussed in Section II of this preamble, the EPA is not taking
any final action regarding our approach for revoking a prior ozone
NAAQS and establishing anti-backsliding requirements; the agency
intends to address any revocation of the 2008 ozone NAAQS and any
potential anti-backsliding requirements in a separate future
rulemaking. As a result, we are not finalizing the proposed
applicability provision discussed in this section at this time, which
would be dependent on the particular approach that we take to any
revocation action for 2008 ozone NAAQS that we may issue in the future.
M. International Transport
Domestic ozone air quality can be influenced by emissions sources
located outside of the U.S. These contributions to U.S. ozone
concentrations from sources outside of the U.S., which can be from
nearby sources in a bordering country or from sources many thousands of
miles away,\23\ can affect to varying degrees the ability of some areas
to attain and maintain the 2015 ozone NAAQS. The EPA continues to work
with air agencies and other countries 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.
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\23\ Observational and modeling studies have shown that
international ozone precursor emissions can lead to ozone formation
within the atmospheric boundary layer over far-upwind areas. When
meteorological conditions are favorable, this ozone can be
transported within the mid- and upper troposphere where ozone
lifetimes can exceed one week. Eventually, these ozone plumes can
mix down to the surface and contribute to local ozone concentrations
within the U.S. Task Force on Hemispheric Transport of Air
Pollution, 2010.
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In most areas in the U.S. with monitors that exceed the NAAQS,
modeling studies demonstrate that the exceedances are due primarily to
anthropogenic emissions sources within the U.S. However, Congress
recognized the possibility that in some nonattainment areas the ability
to attain the NAAQS may be impacted by emissions sources outside of the
U.S., and through CAA section 179B (``International Border Areas''),
Congress provided the EPA with the authority to address the impact of
international emissions in areas designated nonattainment.
Specifically, Congress provided that the EPA could approve attainment
plans for areas that could attain the relevant NAAQS by the statutory
attainment date ``but for'' emissions emanating from outside the U.S.
When applicable, this CAA provision relieves states from imposing
control measures on emissions sources in the state's jurisdiction
beyond those required to address reasonably controllable emissions from
within the U.S. Specifically, CAA section 179B(a) provides that the EPA
shall approve an attainment plan for such an area if: (i) The
attainment plan meets all other applicable requirements of the CAA, and
(ii) the submitting state can satisfactorily demonstrate that, ``but
for emissions emanating from outside the United States,'' the area
would attain and maintain the relevant NAAQS. In addition, CAA section
179B(b) applies specifically to the ozone NAAQS and provides that if a
state demonstrates that an ozone nonattainment area would have timely
attained the NAAQS by the applicable attainment date ``but for
emissions emanating from outside of the United States,'' then the area
need not apply for an extension of the ozone attainment dates pursuant
to CAA section 181(a)(5), and is not subject to the stationary source
fee program provisions of CAA section 185 and the mandatory
reclassification provisions under CAA section 181(b)(2) \24\ for areas
that fail to attain the ozone NAAQS by the applicable attainment date.
Section 179B, thus, can be an important tool that provides states
relief from the requirement to demonstrate attainment--and from the
more stringent planning requirements that would result from failure to
attain--in areas where, even though the air agency has taken
appropriate measures to address air quality in the affected area,
emissions from outside of the U.S. prevent attainment.
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\24\ The EPA's longstanding view is that CAA section 179B(b)
contains an erroneous reference to section 181(a)(2), and that
Congress actually intended to refer here to section 181(b)(2). See
``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498, 13569 n. 41 (April 16, 1992).
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1. Summary of Proposal
The EPA proposed a requirement that all demonstrations under CAA
section 179B(b), regardless of an area's
[[Page 63010]]
classification (including nonattainment areas classified as Marginal),
must include a showing that the air agency has adopted all RACM,
including RACT, for the area in accordance with CAA section 172(c)(1),
42 U.S.C. 7502(c)(1). We also asked for comment on whether the
opportunity for air agencies to submit demonstrations under CAA section
179B should be limited to nonattainment areas adjoining international
borders, and on any technical and legal basis for determining whether
it is appropriate to have, or conversely whether it is appropriate not
to have, such a geographic limitation. The proposal noted that the
science review supporting the 2015 ozone NAAQS suggested that the
influence of international sources on U.S. ozone levels will be largest
in locations near the borders of Mexico or Canada (80 FR 65292, 65444;
October 26, 2015) and that, historically, only states with
nonattainment areas in the immediate vicinity of the Mexican border
have submitted CAA section 179B demonstrations to the EPA (81 FR 81303;
November 17, 2016).
2. Final Rule
The EPA is not finalizing our proposed requirement that all
demonstrations under CAA section 179B(b) must include a showing that
the air agency adopted all RACM, including RACT.
The EPA is choosing to not adopt our proposal for this final rule
because the Act does not require states to implement RACM/RACT in
Marginal ozone nonattainment areas. For purposes of CAA section 179B
demonstrations for the 2015 ozone NAAQS, we are maintaining the
approach used for prior ozone standards that only areas classified
Moderate and higher must show that they have implemented RACM/RACT.
In the proposal, the EPA also solicited comment on whether--but did
not propose that--demonstrations under CAA section 179B should be
limited only to nonattainment areas adjoining international borders.
After considering comments received, we are not adopting any geographic
limitation on the use of CAA section 179B for purposes of the 2015
ozone NAAQS. We are instead clarifying that a demonstration prepared
under CAA section 179B could consider emissions emanating from North
American or intercontinental sources and is not restricted to areas
adjoining international borders, consistent with the approach
articulated in the preamble of the 2008 Ozone NAAQS SIP Requirements
Rule.
The EPA encourages air agencies to coordinate with their EPA
Regional office to identify approaches to evaluate the potential
impacts of international transport and to determine the most
appropriate information and analytical methods for each area's unique
situation. The EPA will also work with air agencies that are developing
attainment plans for which CAA section 179B is relevant, and ensure the
air agencies have the benefit of the EPA's understanding of
international transport of ozone and ozone precursors. Air agencies are
encouraged to consult with their EPA Regional office to establish
appropriate technical requirements for these analyses. In addition, the
EPA is currently developing supplementary technical information and
guidance to assist air agencies in preparing demonstrations that meet
the requirements of CAA section 179B.
3. Comments and Responses
Comment: The EPA received numerous comments on our proposed RACM/
RACT requirement for all demonstrations under CAA section 179B(b)
(including for Marginal areas), and providing feedback on whether CAA
section 179B applicability should be limited to nonattainment areas
adjoining international borders. There was broad objection to both
approaches, which many commenters interpreted as restricting the
potential use of CAA section 179B for attainment plans under the 2015
ozone NAAQS.
Response: As discussed previously, the EPA is not interpreting CAA
section 179B as requiring that demonstrations under CAA section 179B(b)
for Marginal areas include a showing that the air agency adopted all
RACM, including RACT. We are also finalizing our existing approach that
does not restrict the use of CAA section 179B demonstrations to areas
adjoining international borders.
Comment: Several commenters supported the proposed RACM/RACT
requirement for all demonstrations under CAA section 179B(b). One
commenter stated that CAA section 179B does not alter the subpart 1
requirement in CAA section 172(c)(1) that all SIPs provide for
implementation of RACM/RACT as expeditiously as practicable. The same
commenter also argued that failure to require RACM/RACT for Marginal
areas seeking relief under CAA section 179B would upset the subpart 2
scheme for reclassification and implementation of basic reasonable
control measures, and prevent attainment of the NAAQS as expeditiously
as practicable.
Response: The EPA is not finalizing our proposed requirement that
all demonstrations under CAA section 179B(b) must include a showing
that the air agency adopted all RACM, including RACT. The Act does not
require implementation of RACM/RACT in Marginal ozone nonattainment
areas under the relevant implementation provisions in subpart 2, and
nothing in 179B alters the statutory requirements with respect to RACM/
RACT obligations in subpart 2. The EPA believes the CAA's specific
provisions for ozone Marginal areas in section 182(a) rather than
general nonattainment provisions in section 172(c)(1) prescribe the
specific SIP revision requirements for such areas. In section 182(a),
the CAA states ``Each state [with a Marginal area] shall . . . submit
to the Administrator the state implementation plan revisions (including
the plan items) described under this subsection . . .'' (emphasis
added). Subsection 182(a) does not list RACM/RACT as a plan item. This
is in clear contrast to the provisions in subsection 182(b) for
Moderate and higher classified areas, which identifies specific RACT
requirements (e.g., section 182(b)(2)) and plan submissions that
``provide such specific annual reductions in emissions . . . as
necessary to attain . . .'' For this final rule, we are adopting our
existing approach grounded in the plain language of CAA section
179B(b), which applies specifically to the ozone NAAQS and does not
explicitly modify the subpart 2 planning requirements in CAA section
182 to require RACM/RACT for Marginal areas.
IV. Provisions of the 2008 Ozone NAAQS Implementing Regulations To Be
Retained With Specific Revisions
For purposes of implementing the 2015 ozone NAAQS, we are
promulgating several regulatory provisions that are similar to the
corresponding implementation provisions for the 2008 ozone NAAQS, but
with modifications to reflect application to the 2015 ozone NAAQS, as
explained later. The existing implementation provisions for the 2008
standards are codified at subpart AA of 40 CFR part 51, and the
corresponding provisions for the 2015 standards will now be codified at
subpart CC of part 51. The revised provisions for the 2015 standards
address SIP requirements pertaining to MCD for RFP; the submission and
implementation deadlines for RACT SIP revisions; the consideration of
intrastate pollution sources outside of a nonattainment area for
attainment planning purposes;
[[Page 63011]]
NNSR IPT for ozone; and emissions inventories and emissions statements.
A. Requirements for RFP: Milestone Compliance Demonstrations
The EPA proposed to revise our RFP provisions for purposes of the
2015 ozone NAAQS to address MCDs required under CAA section 182(g) for
ozone nonattainment areas classified Serious or higher. The RFP
regulatory provisions for the 2008 ozone NAAQS characterize the
emissions reductions and time intervals that constitute RFP milestones,
but do not address the requirements for demonstrating compliance with
these milestones.
CAA section 182(g)(1) requires that states demonstrate whether
nonattainment areas classified Serious, Severe or Extreme have achieved
incremental RFP emission reductions needed to ensure attainment of the
NAAQS by the prescribed applicable time intervals (i.e., milestones).
The statute establishes an initial milestone date of 6 years after
November 15, 1990, and at intervals of 3 years thereafter. These
milestones are established in the general RFP requirements of CAA
sections 182(c)(2)(B) for Serious areas. Sections 182(d) and 182(e)
incorporate those requirements for, respectively Severe and Extreme
areas. Accordingly, the timeline for Serious areas provided in section
182(c)(2)(B) also applies to Severe and Extreme areas.
CAA section 182(g)(2) requires that states submit to the
Administrator a demonstration that an RFP milestone has been met, not
later than 90 days after the applicable milestone date. Section 182(g)
refers to the required emissions reduction for the time interval as the
``applicable milestone.'' Section 182(g)(2) of the CAA states that the
form, manner of submittal and contents of the required compliance
demonstration shall be set by the Administrator by rule.
CAA sections 182(g)(3) and (g)(5) establish measures a state
``shall elect'' to implement if the state fails to submit a MCD by the
due date or the EPA determines that a milestone was not met. For
Serious and Severe areas, an air agency shall elect within 90 days of
the failure or determination to: (1) Have the area reclassified to the
next higher classification; (2) implement additional measures to meet
the next milestone per the applicable contingency plan; or (3) adopt an
economic incentive program as described in CAA section 182(g)(4). For
an Extreme area, an air agency shall within 9 months of the failure or
determination submit a SIP revision to implement a CAA section
182(g)(4) economic incentive program.
1. Summary of Proposal
The EPA proposed that an air agency will have the option to
demonstrate milestone compliance in terms of either: (1) Compliance
with control measures requirements in an RFP plan that complies with
the requirements of the CAA (e.g., percent implementation), or (2)
actual emissions reductions, as demonstrated with periodic emissions
inventory data required under CAA section 182(a)(3)(A). In considering
the form and content of an ozone MCD submittal, the EPA referenced the
parallel regulatory requirements for fine particulate matter
(PM2.5), which were added in the 2016 final implementing
regulations for the PM2.5 NAAQS.\25\ The EPA also considered
the amount of time allowed in the statute for states to make the
required submittal.
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\25\ See ``Fine Particulate Matter National Ambient Air Quality
Standards: State Implementation Plan Requirements'' 81 CFR 58063-64;
August 24, 2016), hereafter PM2.5 SIP Requirements Rule.
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2. Final Rule
The EPA is finalizing MCD requirements for RFP as proposed. These
requirements, codified at 40 CFR 51.1310(c), are consistent with the
PM2.5 SIP Requirements Rule.\26\ Similar to the statutory
requirements for ozone, CAA section 189(c)(1) establishes a 3-year
cycle for PM2.5 milestones. For both pollutants, the CAA
provides Administrator discretion in setting the form and content of
the milestone demonstration submittal.\27\
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\26\ See id.
\27\ CAA sections 182(g)(2) and 189(c)(2) share the same basic
milestone demonstration submittal requirements, i.e., not later than
90 days after the applicable milestone date, each State in which all
or part of such area is located shall submit to the Administrator a
demonstration that the milestone has been met. A demonstration shall
be submitted in such form and manner, and shall contain such
information and analysis, as the Administrator shall require. For
PM2.5, the statute further qualifies that the submittal
must also demonstrate that all measures in the SIP have been
implemented.
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The PM2.5 SIP Requirements Rule requires that the
quantitative milestones be constructed such that they can be tracked,
quantified and/or measured adequately in order for an air agency to
meet its milestone reporting obligations, which come due 90 days after
a given milestone date. For PM2.5, the EPA interprets CAA
section 189(c) to allow air agencies to identify milestones that are
suitable for the specific facts and circumstances of the attainment
plan for a particular area, so long as they provide an objective means
to measure RFP.\28\
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\28\ In the Addendum to the General Preamble, the EPA suggested
(for implementation of the PM10 NAAQS) possible metrics
that ``support and demonstrate how the overall quantitative
milestones identified for an area may be met,'' such as percent
implementation of control strategies, percent compliance with
implemented control measures and adherence to a compliance schedule.
This list was not exclusive or exhaustive but reflected the EPA's
view that the purpose of the quantitative milestone requirement is
to provide an objective way to determine whether the area is making
the necessary progress towards attainment by the applicable
attainment date (59 FR 41998 at 42016; August 16, 1994).
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The EPA is adopting a similar approach for MCDs for the 2015 ozone
NAAQS. We interpret CAA sections 182(g)(1) and 182(g)(2) as imposing
two separate obligations on an air agency: (1) To determine whether an
affected nonattainment area has achieved an incremental emissions
reduction corresponding with the RFP milestone; and (2) to demonstrate
to the satisfaction of the Administrator that the RFP milestone has
been met. We believe it would be sufficient for purposes of CAA section
182(g)(2) for an air agency to demonstrate milestone compliance in
terms of compliance with control measures requirements in the approved
RFP plan (e.g., percent implementation), because the approach is
grounded in SIP provisions that correlate control measures and
resulting emissions reductions. As an alternative, an air agency could
rely on periodic, triennial emissions inventory data for demonstration
purposes where the appropriate data are obtainable within the 90-day
MCD submittal timeframe.\29\ In all cases, the EPA would review each
RFP plan submission on a case-by-case basis to determine whether the
milestones contained in the plan are specific enough to provide an
objective means for evaluating the area's progress toward attainment,
consistent with the statutory requirements of CAA section 182(g).
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\29\ Triennial emissions reporting periods are set by regulation
in the AERR at 40 CFR part 51, subpart A. The most recent and
upcoming reporting years are 2017, 2020, 2023 and 2026, where the
reports are due to the EPA by December 31 of the calendar year that
follows the reporting year. As discussed in Section IV.E of this
preamble, the adopted regulations for the 2015 ozone NAAQS provide
that states may use the most recent triennial report period
emissions inventory to satisfy the nonattainment area reporting
requirements of CAA section 182(a)(3)(A). See 40 CFR 51.1315(b).
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We are providing additional guidance on the MCD submission process
in this final rule. Consistent with the EPA's process for
PM2.5 quantitative milestones, the EPA believes it would be
appropriate for MCD to be submitted from the Governor or Governor's
designee to the Regional Administrator of the respective EPA Regional
office serving the submitting state. The EPA will notify the state of
our determination (regarding whether or not the state's demonstration
is adequate) by sending a letter to the appropriate
[[Page 63012]]
Governor or Governor's designee or, alternatively, by publishing a
notice in the Federal Register. The EPA encourages states to submit
MCDs, including supporting documents, through the agency's electronic
SIP submission system \30\ in order to simplify the process and reduce
resource burden on all sides. The EPA believes it is consistent with
statutory requirements to not consider MCDs to be formal SIP revisions
subject to CAA public notice and comment requirements.
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\30\ State Planning Electronic Collaboration System (SPeCS) for
SIPs. For more information see https://www.epa.gov/air-quality-implementation-plans/submit-sips-online.
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3. Comments and Responses
Comment: One commenter argued that an ``actual emissions
reductions'' approach using emissions inventory data is the only lawful
and rational approach for demonstrating RFP milestone compliance.
Because the Act defines RFP baseline emissions in terms of actual VOC
or NOX emissions (see CAA section 182(b)(1)(B)), the
commenter contended that RFP can only be satisfied by actual emission
reductions. This interpretation, they claimed, is supported by the
CAA's legislative history and the EPA's General Preamble. Further, the
commenter notes that RFP must address ``any growth in emissions after''
the baseline year (see CAA sections 182(b)(1)(A)(i) and 182(c)(2)(B))
and, therefore, only actual emissions would be sufficient to gauge
compliance with an RFP baseline.
Response: The EPA disagrees with the commenter that actual
emissions reductions are the only possible basis for demonstrating RFP
milestone compliance under CAA section 182(g). For PM2.5,
the statute requires quantitative milestones that demonstrate RFP,
whereas for ozone CAA section 182(g)(1) uses the term ``applicable
milestone'' to refer to the required RFP emissions reduction. However,
CAA section 182(g)(2) specifically provides the Administrator the
authority and discretion to establish the ``form and manner'' of MCDs,
and the EPA is exercising this authority and discretion through the
regulations adopted in this final rule. We encourage air agencies to
work with their EPA Regional office to develop a MCD suitable for the
specific facts and circumstances of the attainment plan for a
particular area (addressing, as appropriate, the potential emissions
growth noted by the commenter), which provides an objective means to
measure RFP.
Comment: Two commenters supported the EPA's proposed MCD
requirements and urged the agency to issue related guidance. One of the
commenters noted that the proposed MCD regulations were silent on the
form and manner of submittal, and requested that the EPA clarify who is
required to submit the MCD, whether the submission is considered a SIP
revision, and whether public notice would be required for the MCD. The
same commenter further requested that the EPA clarify whether
historical emissions inventory data can be used for MCDs where the
required RFP reduction was achieved in advance of the applicable
milestone date.
Response: The EPA has provided additional guidance on the MCD
submission process in this final rule preamble, as explained earlier,
and intends to develop more detailed guidance for preparing RFP MCD for
ozone and PM2.5. Regarding the use of historical emissions
inventory data in MCDs, we believe our adopted MCD requirements would
accommodate this approach, so long as the MCD submission provided a
sufficiently objective means for evaluating the area's progress toward
attainment, consistent with the statutory requirements of CAA section
182(g).
B. Requirements for RACT: Deadlines for Submittal and Implementation of
RACT SIP Revisions
The EPA proposed new RACT SIP revision submission and
implementation deadlines for specific kinds of triggering events that
may occur after the EPA has initially designated areas under a revised
ozone NAAQS. The RACT provisions established in the 2008 Ozone NAAQS
SIP Requirements Rule address RACT SIP revision submission and
implementation deadlines for areas (including portions of a state
located in an OTR) subject to initial designation and existing RACT
requirements, including requirements described in existing CTGs. CAA
section 182(b)(2) establishes that a state shall submit a SIP revision
to provide for implementation of RACT by 2 years after November 15,
1990, and provide for RACT implementation as expeditiously as
practicable, but no later than May 31, 1995 (approximately 54 months
from the enactment date of the 1990 CAA Amendments). As codified for
the 2008 ozone NAAQS at 40 CFR 51.1112, the EPA interpreted this CAA
timeframe to require submittal of RACT SIP revisions no later than 24
months after the effective date of initial area designations, and
implementation of the RACT SIP revisions no later than January 1 of the
fifth year after the effective date of initial designations. Regarding
mandatory reclassifications pursuant to CAA section 181(b)(2), CAA
section 182(i) allows the Administrator to adjust applicable deadlines
(excluding attainment dates), including those for SIP submissions and
implementation. For voluntary reclassifications, CAA section 181(b)(3)
does not establish a precise timeframe for submitting SIP revisions.
The EPA's general practice is to establish SIP revision submission
deadlines as part of the action granting an air agency's request for
voluntary area reclassification.
The EPA is retaining these general RACT provisions for purposes of
the 2015 ozone NAAQS, based on the rationale articulated in the final
2008 Ozone NAAQS SIP Requirements Rule (see Section III.F of this
preamble). However, the existing RACT provisions do not specify
deadlines for some RACT SIP revision submittal and implementation
requirements triggered by events occurring after initial area
designations, including area reclassifications and the issuance of new
CTGs. The following sections address the RACT submittal and
implementation deadlines for these post-designation scenarios.
1. RACT SIP Revision Submittal and Implementation Deadlines for Newly
Reclassified Areas
a. Summary of Proposal. The EPA proposed default submission and
implementation deadlines for SIP revisions resulting from area
reclassifications that occur after initial area designations under an
ozone NAAQS.\31\ This includes mandatory reclassification to a higher
classification upon failure to attain (pursuant to CAA section
181(b)(2)) and voluntary reclassification to a higher classification
upon an air agency's request (pursuant to CAA section 181(b)(3)). We
proposed that, following a reclassification action, RACT SIP revisions
be submitted no later than 24 months after the effective date of
reclassification, or by an alternative deadline established by the
Administrator as part of the action
[[Page 63013]]
reclassifying an area. We proposed that the RACT SIP revisions be
implemented as expeditiously as practicable, but no later than the
start of the attainment year ozone season associated with the area's
new attainment deadline, or January 1 of the third year after the
associated SIP revision submittal deadline, whichever is earlier. We
also proposed that the Administrator would retain existing authority to
establish a different implementation deadline as part of the action
reclassifying an area. This proposed approach would apply to
nonattainment area reclassifications.
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\31\ For purposes of this preamble discussion,
``reclassification'' is assumed to encompass nonattainment areas
being reclassified to a higher classification, attainment areas
being redesignated as nonattainment and assigned an initial
classification of Moderate or higher, and new OTR assignments.
Similarly, ``RACT SIP revision'' is assumed to encompass initial
RACT SIPs triggered by an initial area classification of--or
reclassification to--Moderate or higher.
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b. Final Rule. The EPA is finalizing the proposed deadlines with
clarifications, as codified at 40 CFR 51.1312(a)(2) and (3). To address
reclassification scenarios, we are adopting default submission and
implementation deadlines for resulting SIP revisions. Following a
reclassification action, RACT SIP revisions must be submitted no later
than 24 months after the effective date of reclassification, or by an
alternative deadline established by the Administrator as part of the
action reclassifying an area. RACT SIP revisions must be implemented as
expeditiously as practicable, but no later than the start of the
attainment year ozone season associated with the area's new attainment
deadline, or January 1 of the third year after the associated SIP
revision submittal deadline, whichever is earlier. We are clarifying
that the term ``ozone season attainment year'' used in the preamble to
the proposed rulemaking should read ``attainment year ozone season'' as
correctly presented in the proposed regulatory definition at 40 CFR
51.1300(i). The Administrator retains authority to establish different
RACT SIP revision submission and implementation deadlines as part of
the action reclassifying an area.
We are also in this final rule clarifying the implementation
deadline for RACT SIP revisions triggered by reclassification actions
that occur after initial area designations. As presented in the
preamble to the proposed rulemaking, these RACT SIP revisions must be
implemented as expeditiously as practicable, but no later than the
start of the attainment year ozone season associated with the area's
new attainment deadline, or January 1 of the third year after the
associated SIP revision submission deadline, whichever is earlier. The
Administrator also has the authority to establish a different
implementation deadline as part of the reclassification action (81 FR
81293; November 17, 2016). The proposed regulatory text in 40 CFR
51.1312(a)(3)(ii) incorrectly omitted the alternative implementation
deadline--i.e., it omitted the phrase ``start of the attainment year
ozone season associated with the area's new attainment deadline''--and
we have added this language to the final rule regulatory text,
consistent with the discussion in the preamble to the proposed
rulemaking. These default deadlines are grounded in the construct of
the overall RACT SIP revision submission and implementation timeframe
articulated in section 182(b)(2) of the CAA, and are also intended to,
where possible, provide at least one full ozone season in advance of an
area's maximum attainment date for implemented controls to achieve
emission reductions.
c. Comments and Responses. Comment: Several commenters expressed
the general concern that the default timelines would not provide
sufficient time for submission and/or implementation of RACT SIP
revisions triggered by reclassification actions, with some commenters
suggesting that air agencies should have 3 years to prepare and submit
the required SIP revision. Another commenter said that the EPA should
not establish RACT deadlines more stringent than those for similarly
classified areas, and that it should be a state's responsibility to
determine what is ``as expeditiously as practicable'' as it relates to
the schedule for submitting its required SIP revision.
Response: The EPA acknowledges the commenters' general concern that
mandatory reclassification actions can limit the time available to
submit and implement required RACT SIP revisions, but emphasizes that
CAA section 182(i) does not allow the EPA to extend the maximum
attainment date corresponding with an area's new classification. We
have noted this statutory constraint previously in establishing the SIP
revision submission deadline for nonattainment areas reclassified to
Moderate after failing to attain the 2008 ozone NAAQS by the Marginal
attainment date of July 20, 2015. In the face of the impending Moderate
area attainment date (July 20, 2018), the EPA exercised our authority
under CAA section 182(i) to set a uniform SIP submission deadline for
affected areas at the latest date compatible with the RACT
implementation deadline for Moderate areas (81 FR 26699; May 4,
2016).\32\
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\32\ That latest compatible date for the 2008 ozone NAAQS was no
later than January 1 of the 5th year after the effective date of
designation for the NAAQS, i.e., January 1, 2017.
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Our adopted requirements are intended to maximize planning
flexibility within the fixed outer bound of an area's maximum
attainment date, by retaining the Administrator's discretion under CAA
section 182(i) to set alternative RACT SIP submission and
implementation deadlines where appropriate. This discretion could
potentially apply to the extended submission and implementation
deadlines suggested by some commenters, though the degree of
flexibility would be dictated by the available compliance timeframe,
bounded by a reclassified area's maximum attainment date. For example,
an air agency that anticipates an area will not timely attain can
request a voluntary reclassification under CAA section 181(b)(3), which
would provide more time and potential flexibility for required RACT SIP
submissions and implementation than would a later mandatory
reclassification under CAA section 181(b)(2) upon actual failure to
attain.
At the same time, the EPA believes it is important to provide
default submission and implementation deadlines grounded in our overall
approach for RACT SIP revisions outlined in CAA section 182(b), in the
event that the Administrator does not exercise his or her discretion to
set alternative deadlines in a reclassification action. Regarding the
comment that the EPA should not establish RACT deadlines more stringent
than those for similarly classified areas, we disagree and note that
(particularly for mandatory reclassification actions) the Administrator
cannot alter the reclassified area's maximum attainment date, which
necessarily provides a shorter RACT SIP timeframe than for areas
initially assigned the same classification. The EPA disagrees with the
comment that it should be a state's responsibility to determine what is
``as expeditiously as practicable'' as it relates to the schedule for
submitting their required SIP revision. The language of CAA section
182(b)(2) clearly establishes the statutory basis for RACT SIP
submission deadlines, while qualifying that the SIP revisions shall
provide for implementation of required measures as expeditiously as
practicable, but not later than a date that the EPA interprets relative
to the Moderate area attainment date.
Comment: A commenter remarked that the proposed default deadlines
for RACT SIP revisions triggered by reclassification actions could
result in implementation deadlines occurring after a reclassified
area's maximum attainment date. The commenter provided an example
scenario where a
[[Page 63014]]
nonattainment area initially classified as Marginal (e.g., in 2017)
fails to attain by the Marginal attainment date (in 2020) and is
reclassified to Moderate (in 2021), with its RACT SIP submission due 2
years later (in 2023). The commenter goes on to illustrate how applying
a default RACT implementation deadline of no later than January 1 of
the third year after the associated SIP revision submission deadline
would place that default implementation deadline later than the 2023
attainment date for Moderate areas. The commenter noted it was
arbitrary and unlawful for the EPA to propose default deadlines that
contravene statutory structure in this manner.
Response: The EPA disagrees with the commenter that our default
submission and implementation deadlines for RACT SIP revisions
triggered by area reclassifications contravene the CAA. The default
submission deadline of no later than 24 months after the effective date
of reclassification is grounded in our longstanding interpretation of
the RACT SIP submission timeframe in CAA section 182(b)(2). As
discussed previously, we are clarifying and adopting in this final rule
our proposed default implementation deadline that requires RACT SIP
revisions to be implemented as expeditiously as practicable, but no
later than the start of the attainment year ozone season associated
with the area's new attainment deadline, or January 1 of the third year
after the associated SIP revision submission deadline, whichever is
earlier. The EPA agrees with the commenter that applying the latter
implementation deadline (i.e., January 1 of the third year after the
associated SIP revision submission) would exceed the area's maximum
attainment date in the commenter's Marginal-to-Moderate hypothetical
mandatory reclassification scenario. We note, however, that the earlier
alternative default deadline (i.e., implementation by the start of the
attainment year ozone season) would instead apply in this case, and
would be compatible with the RACT implementation occurring before the
area's attainment date passes. In the case where an air agency requests
a voluntary reclassification beyond a single level (e.g., Marginal to
Serious or Moderate to Severe),\33\ the earlier default implementation
deadline could potentially be January 1 of the third year after the
associated SIP revision submission. This approach is compatible with
the statutory requirement for areas initially classified Serious and
higher, which must implement RACT no later than January 1 of the fifth
year after the effective date of designation (i.e., the attainment year
for Moderate areas), and are thus afforded additional time for
implemented controls to achieve emission reductions.
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\33\ For example, the state of California requested and was
granted voluntary reclassifications beyond a single level for
several nonattainment areas for the 1997 ozone NAAQS (see 81 FR
81285; November 17, 2016).
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2. RACT SIP Revision Submittal and Implementation Deadlines Associated
With New Control Techniques Guidelines
a. Summary of Proposal. The EPA proposed two approaches for
establishing submission and implementation deadlines for SIP revisions
triggered by new CTGs issued by the EPA after the promulgation of
initial area designations under a revised ozone NAAQS. Under the first
approach, we proposed a RACT SIP submission deadline of no later than
24 months after the effective date of the action issuing the CTG, or
the deadline established by the Administrator in the action issuing the
CTG, and that RACT SIP revisions must be implemented no later than
January 1 of the third year after the associated SIP revision
submission deadline. Under the second approach, we also articulated the
Administrator's authority to establish a deadline for implementing RACT
SIP revisions as part of the action issuing a new CTG. These proposed
approaches would apply to covered sources in nonattainment areas and
portions of a state located in an OTR subject to new RACT SIP
obligations.
b. Final Rule. The EPA is finalizing a combination of the proposed
approaches, as codified at 40 CFR 51.1312(a)(2) and (3). For CTGs
issued between November 15, 1990, and the date of attainment, CAA
section 182(b)(2) requires a state to submit the associated RACT SIP
revision, where applicable, within the timeframe established by the
Administrator in issuing the CTG. The EPA interprets this provision as
authorizing the Administrator to set a SIP submission deadline in the
action issuing any future CTG. However, the agency is also establishing
a default submission deadline of no later than 24 months after the
effective date of the action issuing the CTG, which is grounded in our
overall approach for RACT SIP revisions outlined in CAA section 182(b),
in the event that the Administrator does not set an alternative
submission deadline as part of a CTG action.
While CAA section 182(b)(2) addresses the submission requirements
for RACT SIP revisions triggered by new CTGs, the CAA is otherwise
silent regarding the schedule for implementation of those RACT SIP
revisions triggered by new CTGs. When new CTGs are issued, these RACT
SIP revisions would be applicable to areas classified Moderate or
higher, and to any portion of a state located in an OTR. For CTGs in
effect at the time of initial area designations for a revised NAAQS,
the EPA has interpreted the relevant CAA provisions to require
implementation of related RACT SIP revisions as expeditiously as
practicable, but no later than January 1 of the fifth year after the
effective date of initial designations for the revised NAAQS (80 FR
12279; March 6, 2015). For RACT SIP revisions triggered by new CTGs
issued after initial area designations, we are adopting the proposed
default implementation deadline of no later than January 1 of the third
year after the associated SIP revision submission deadline. We
anticipate that this adopted default implementation deadline will
provide an overall RACT schedule similar to that for sources subject to
CTG requirements upon initial area designations.
We are also articulating in this final rule the Administrator's
authority to establish an alternative to the default deadline for
implementing RACT SIP revisions, as part of the action issuing a new
CTG. Under this option, setting a RACT SIP revision implementation
deadline as part of a CTG action would allow the Administrator to
tailor the implementation timeframe to the particular technical
considerations and attainment objectives associated with the sources
subject to the CTG and the overall attainment schedule. The adopted
approaches for establishing RACT SIP submission and implementation
deadlines would apply to covered sources in nonattainment areas and
portions of a state located in an OTR subject to new RACT SIP
obligations.
c. Comments and Responses. Comment: Several commenters stated that
a default submission deadline is not necessary for RACT SIP revisions
triggered by the issuance of a CTG after initial area designations.
They noted that the CAA expressly authorizes the Administrator to set a
RACT SIP submission deadline as part of the related CTG document, and
that a default deadline is either redundant or
[[Page 63015]]
could be interpreted to restrict the Administrator's authority.
Response: The EPA agrees with commenters that CAA section 182(b)(2)
authorizes the Administrator to set a RACT SIP submission deadline as
part of the related CTG document. As discussed previously, CAA section
182(b)(2) expressly requires that states submit RACT SIP revisions
triggered by new CTG issuance within a period established by the
Administrator, and we interpret this provision to authorize--but not
require--the Administrator to set a RACT SIP submission deadline in the
action issuing the CTG. As a result, we are adopting the proposed
default SIP submission deadline of no later than 24 months after the
effective date of the action issuing the CTG, in addition to affirming
in this final rule the Administrator's existing authority to set an
alternative RACT SIP submission deadline as part of the action issuing
the CTG.
C. Requirements for RACM: Consideration of Sources of Intrastate
Transport of Pollution
1. Summary of Proposal
As discussed in Section III.F.2 of this preamble, the EPA proposed
to require that, for each nonattainment area for which an attainment
demonstration is required (see Section III.D of this preamble), an air
agency 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. The EPA further proposed to codify the existing
requirement under CAA section 172(c)(6) that, in addition to sources
located in an ozone nonattainment area, air agencies must also consider
the impacts of emissions from sources outside an ozone nonattainment
area (but within a state's boundaries), and must require other control
measures on these intrastate sources if doing so is necessary to
provide for attainment of the applicable ozone NAAQS within the area by
the applicable attainment date. This proposed rulemaking provision is
consistent with SIP elements required under the CAA, as well as
existing EPA interpretations of CAA section 172(c)(6) as articulated in
previous NAAQS implementation rulemakings.
2. Final Rule
The EPA is finalizing the requirement regarding consideration of
``other control measures'' for intrastate sources of pollution, as
proposed. CAA section 172(c)(6) requires that SIP provisions include
enforceable emission limitations and other control measures, means or
techniques as may be necessary or appropriate to attain a standard by
the applicable attainment date. The EPA interprets this provision to
include ``additional reasonable measures,'' which are those measures
and technologies that can be applied to any emissions source within the
state's jurisdiction, including those outside of a nonattainment area.
Upwind sources within a state may have a significant impact on air
quality in a downwind nonattainment area, and failure to consider and
require, as appropriate, reasonable control measures for these sources
may preclude attainment of a NAAQS by the attainment date. Though not
directly a part of a nonattainment area RACM analysis, the EPA has
addressed this ``other control measures'' provision in the preamble
discussions for previous NAAQS implementation rulemakings,\34\ and for
clarity is codifying this interpretation in this final rule at 40 CFR
51.1312(c). As discussed in Section III.F of this preamble, the EPA is
otherwise adopting all RACM requirements for purposes of the 2015 ozone
NAAQS, based on the rationale and approach articulated in the final
2008 Ozone NAAQS SIP Requirements Rule.
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\34\ See the Phase 2 proposed rulemaking (68 FR 32829; June 2,
2003) and final rule to implement the 8-hour ozone NAAQS (70 FR
71623; November 29, 2005), and the final rule to implement the
PM2.5 NAAQS (81 FR 58035; August 24, 2016).
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3. Comments and Responses
Comment: A number of commenters opposed the EPA's interpretation of
CAA section 172(c)(6) as applying to emissions sources outside of
designated nonattainment areas. As one commenter stated, the plain
language of CAA section 172 in general focuses its discussions and
references to sources within a designated nonattainment area, and makes
no mention of requiring emission reductions for sources outside the
nonattainment area.
Response: The EPA disagrees with the commenters concerning the
proper application of CAA section 172(c)(6). Unlike other SIP
requirements under CAA section 172(c)(1), such as RACM/RACT-level
controls on sources located in a nonattainment area, CAA section
172(c)(6) is not limited by its terms to sources located in the
nonattainment area. Upwind sources within a state may have a
significant impact on air quality in a nonattainment area, and CAA
section 172(c)(6) imposes a potential obligation upon states to impose
emission controls on sources located outside a designated nonattainment
area that are in addition to, and beyond those, otherwise required on
sources located the nonattainment area, if necessary or appropriate for
purposes of attainment by the attainment date.
Comment: Some commenters contended that emissions from sources
outside a nonattainment area, if nearby and affecting a nonattainment
area's ability to timely attain, should be accounted for in setting
nonattainment area boundaries as part of the designations process under
CAA section 107(d).
Response: The EPA agrees with commenters that a designated
nonattainment area should already include the nearby sources that, at
the time of designations, were determined to be contributing to
violations in the area. But we disagree that the designations process
under CAA section 107(d) is the exclusive approach for identifying
relevant contributing sources for a nonattainment area, as there may be
additional contributing sources within a state that were not
sufficiently ``nearby'' the area, or were otherwise not identified in
the nonattainment area designations process as contributing to
violations in the area. Consistent with our existing policy, the EPA
interprets CAA section 172(c)(6) as imposing a separate obligation to
consider and control sources located outside of a nonattainment area
but within a state's jurisdiction, if necessary or appropriate to
attain a standard by the applicable attainment date.
Comment: Multiple commenters interpreted the EPA's proposal as
imposing a mandatory requirement for states to consider and implement
emission controls for intrastate sources located outside of a
designated nonattainment area. Some commenters characterized the
proposal as requiring RACM outside a nonattainment area, where other
commenters requested that we further clarify a state's discretion,
under CAA section 172(c)(6), to consider and require ``other control
measures'' for sources located outside of a nonattainment area.
Response: The EPA believes our interpretation of CAA section
172(c)(6), under certain circumstances, establishes a mandatory
requirement for states to consider and implement emission controls for
sources inside the state but outside of a designated nonattainment
area. The language of the statute, and our adopted regulatory text in
40 CFR 51.1312(c), describe a conditional requirement for placing
controls such sources, i.e., states are required to impose controls on
sources located outside of a nonattainment area but
[[Page 63016]]
within the state's jurisdiction, only in circumstances where that is
necessary or appropriate to provide for attainment by the attainment
date, because the emission controls required on sources within the
nonattainment area are not sufficient to provide for attainment by that
date. This qualification indicates that the obligation is tied to the
attainment needs of the nonattainment area in question and does not
apply more broadly. Further, the EPA emphasizes that we do not
interpret section 172(c)(6) to automatically require states to conduct
an evaluation of all sources and all potential controls throughout the
entire state regardless of attainment needs. However, if necessary to
achieve attainment by the applicable attainment date, the EPA believes
the CAA obligates states to place emission controls on significant
emissions sources elsewhere within the state as needed to achieve the
necessary reductions.
D. Nonattainment NSR Offset Requirement: Interprecursor Trading for
Ozone Offsets
1. Summary of Proposal
In response to a petition for reconsideration granted on November
5, 2015, the EPA proposed to reaffirm our longstanding policy regarding
IPT for ozone, which is currently codified at 40 CFR 51.165(a)(11) and
part 51 Appendix S, section IV.G.5,\35\ by re-proposing the existing
regulatory provisions with revised text, and adding specific criteria
for developing and implementing an IPT program.\36\ In addition, the
EPA indicated that the re-proposed IPT provision, when finalized, would
supersede any previous ozone IPT policy articulated in earlier EPA
guidance.\37\ Further, the November 17, 2016, proposal explained that
the EPA proposed no other changes to the existing requirements in the
NNSR regulations.\38\
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\35\ The EPA originally added these provisions specific to ozone
to the NNSR regulation in 2015 as part of the final 2008 Ozone NAAQS
SIP Requirements Rule. See 80 FR 12264 at 12288.
\36\ See 81 FR at 81295-8.
\37\ The EPA's prior guidance concerning the use of IPT to
satisfy the NNSR requirements for emissions offsets was contained in
a 2001 EPA document titled ``Improving Air Quality with Economic
Incentive Programs'' (January 2001). The EPA's policy on IPT for
ozone, as finalized through this rulemaking, supersedes the
information contained in that earlier document specifically with
respect to IPT.
\38\ In the proposal, the EPA did not propose to change or seek
comment on any existing NNSR emissions offsets requirements
contained in the NNSR regulations at 40 CFR 51.165 and part 51
Appendix S. Existing NNSR emissions offset requirements are based
largely on part D of title I of the CAA's nonattainment
requirements. These existing requirements include the statutory
offset ratios applicable in specific ozone nonattainment areas
(based on an area's classification for ozone), geographic
restrictions as to where creditable emissions reductions may be
obtained and other criteria concerning the creditability of
emissions reductions to be used as offsets.
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The proposal noted the EPA's continued interpretation that the CAA
accommodates the use of technically supported IPT to satisfy the NNSR
offset requirement. As discussed in greater detail in the Comments and
Responses section that follows, the EPA stated at proposal that the CAA
allows the total annual tonnage of emissions of one ozone precursor to
be offset by reductions in total actual annual emissions of another
ozone precursor (in units of tons per year (tpy)) pursuant to an IPT
ratio that shows the reductions will have an equivalent or greater air
quality benefit. The proposal explained that the authority to permit
IPT is based on the language of section 173(c)(1) of the CAA and the
definition of ``air pollutant'' in section 302(g) of the CAA, and that
ozone is the regulated pollutant at issue (rather than NOX
or VOC, which are both recognized precursors to the formation of
ground-level ozone concentrations).
The EPA proposed that states interested in implementing an ozone
IPT program must submit the following to the EPA as part of a plan for
approval: (1) IPT provision(s), including area-specific default IPT
ratio(s),39 40 where applicable; (2) a description of the
air quality model(s) used to develop any default IPT ratio(s); and (3)
an accompanying modeling demonstration showing that such ratio(s)
provide an equivalent or greater air quality benefit with respect to
ground level ozone concentrations in the ozone nonattainment area than
an offset of the emitted precursor would achieve.
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\39\ An IPT ratio sets the appropriate proportion for the
amounts of each precursor in tpy of emissions, which is intended to
ensure that the substitution of one ozone precursor for another in
an offset transaction provides an equivalent or greater air quality
benefit with respect to ground level ozone concentrations in the
ozone nonattainment area. The IPT ratio is separate and distinct
from the statutory offset ratios contained in the CAA that are
directly associated with area classifications for ozone
nonattainment areas. See e.g., CAA Section 182(b)(5) (establishing
an offset ratio of 1.15 to 1 for Moderate areas). Both ratios must
be applied in determining the appropriate emissions offset that must
be applied for a particular offset transaction if one ozone
precursor is being used to offset a different ozone precursor. An
example of a simple offset calculation with the application of an
IPT ratio would be a major NNSR proposed source in a Moderate area
seeking to offset a 200 tpy NOX increase with reductions
in VOC from another source or the respective SIP approved Emission
Reduction Credit Bank. First, the 200 tpy NOX offset is
subject to the 1.15 Moderate area offset ratio, then the product is
multiplied by the IPT ratio (either area-wide or case-specific
derived from technical demonstration). If we assume the IPT ratio in
this case is 5, the resulting equation is: (200 tpy NOX)
x (1.15(Moderate area offset ratio)) x (5 VOC/
NOX (IPT ratio applied)) = 1,150 tpy total NOX
(offset) required for NNSR permitting purposes.
\40\ Hereafter referred to as default IPT ratio(s) or default
ratio(s).
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The EPA recommended that each air agency implementing an IPT
program consult with the appropriate EPA Regional office as the air
agency develops a modeling protocol to establish a default IPT ratio or
ratios \41\ for a nonattainment area. The EPA sought comments on the
proposed contents of the plan submission and the approach for
establishing any default IPT ratios.
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\41\ The draft Technical Guidance Document provided in the
docket supports the division of a nonattainment area into sub-areas
with a technical demonstration substantiating the need for separate
ratios in specific portions of a nonattainment area.
---------------------------------------------------------------------------
When the EPA published our NNSR implementation rules for
PM2.5 in 2008, we indicated that, while the new
implementation rules allowed air agencies to adopt IPT programs to
satisfy the NNSR offset requirements for PM2.5, such IPT was
not permissible for netting purposes. See 73 FR 28340 (May 16, 2008).
Consistent with that policy, in the proposal the EPA proposed that an
IPT program could not be used for purposes of netting under the NNSR
program.
The EPA also indicated in the proposal that we have interpreted the
CAA to preclude the use of ozone IPT where an air agency chooses to
include emissions reductions attributable to the NNSR air permitting in
its initial 15 percent ROP plan for those Moderate or higher ozone
nonattainment areas that are satisfying this ROP requirement for the
first time under CAA section 182(b)(1)(A)(i). This interpretation
results from the fact that the CAA requires that a state's initial ROP
plan can be satisfied only via reductions in VOC emissions. Hence, the
EPA proposed that such a plan could not count emission reductions
attributable to a NNSR permitting program utilizing IPT flexibilities,
for ROP purposes.\42\
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\42\ See section III.E of this preamble.
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Finally, the EPA in the November 17, 2016, proposal also explained
that IPT could be implemented in several ways; the primary variable
being the method in which the IPT ratio for ozone precursors is
established by an air agency or permit applicant and applied in a
particular ozone nonattainment area. That is, the EPA proposed that
states be allowed to choose any of the options presented in the
proposal. Accordingly, with the goal of providing flexibility to air
agencies and sources, the EPA proposed and sought comment
[[Page 63017]]
on the following implementation options:
a. Case-specific Permit Ozone IPT Ratios. Under a case-specific IPT
ratio option, state plans would generally require each permit applicant
who chooses to use ozone IPT as the means for satisfying the NNSR
emissions offset requirement to calculate and submit to the reviewing
authority the appropriate IPT ratio. In choosing this option, the state
would be required to include for the EPA's approval a plan submission
addressing NNSR program provisions that explicitly authorize case-
specific IPT ratios for the particular ozone nonattainment area(s).
Also, such a plan submission must include the procedures by which
permit applicants may use IPT, including a description of the model(s)
that will be used, the calculation of the IPT ratio, and a
demonstration that such IPT ratio provides an equivalent or greater air
quality benefit for ozone concentrations in the ozone nonattainment
area. The EPA also proposed that the state's IPT provision must provide
that any IPT ratio that an applicant proposes for an individual permit
must be approved by both the reviewing authority and the EPA.
b. Area-specific Default Ozone IPT Ratio. Under the proposed area-
specific default IPT option, the EPA proposed that a state plan could
include a default IPT ratio that may be used by permit applicants to
obtain IPT offsets for all applicable NNSR permits issued in a
particular ozone nonattainment area. Under this proposed option, the
state's plan submission would be required to provide a description of
the model(s) used, the calculated ratio and the technical demonstration
substantiating the equivalent or greater ozone benefit in that
nonattainment area. The EPA further proposed that a ratio that has
become part of an approved plan and has undergone public comment during
the plan approval process would not require further EPA approval or be
subject to additional public comment each time that ratio is utilized
by individual permit applicants.
c. Combination of an Area-specific Default Ozone IPT Ratio and
Case-specific IPT Ratios. As explained in the proposed rulemaking, the
EPA believes that it is reasonable for air agencies to have the option
of implementing as part of their NNSR programs either a case-specific
IPT ratio or a default IPT ratio. The EPA also believes that air
agencies with EPA-approved NNSR programs should have the option of
implementing a combination of the two proposed options. Such a combined
program would enable an air agency to develop a default IPT ratio,
while at the same time allowing an individual permit applicant to
propose an alternative case-specific IPT ratio (if it can demonstrate
to the satisfaction of both the reviewing authority and the EPA that
such alternative ratio is appropriate for the proposed offsetting
transaction for a specific permit application).
d. Limitations for Implementing Ozone IPT under Appendix S. In the
specific case where a state lacks an approved NNSR program and issues
NNSR permits under the requirements contained in the EPA's Emission
Offset Interpretative Ruling at 40 CFR part 51, Appendix S (Appendix
S), the EPA proposed that states would be limited to the use of case-
specific IPT ratios.
In addition to the four options proposed for implementing the IPT
program for ozone, the EPA proposed to require air agencies to review
any default IPT ratio(s) that is included in their EPA-approved IPT
program at least every 3 years (from the air agency's prior plan
submission containing any such area-specific default IPT ratio(s)) to
ensure that the ratio continues to be valid for IPT offsets in the
area. To meet this proposed requirement an air agency would need to
submit new modeling to confirm that the ratio still defines an
equivalent or greater air quality benefit relationship between VOC and
NOX emissions regarding ozone formation in the particular
ozone nonattainment area.
At proposal, the EPA included a draft TGD in the docket. The
purpose of this TGD was to provide air agencies with guidance on a
technical approach to determine ozone impacts from precursor emissions
for a specific nonattainment area or for case-by-case determinations.
2. Final Rule and Rationale
In this final rule, the EPA is promulgating a discretionary IPT
program for ozone with changes from the proposed rulemaking based on
comments received. The final rule allows states to implement their IPT
program using any of the proposed implementation options as follows:
(1) Default IPT ratios, (2) case-specific IPT ratios or (3) a
combination of the two options, whereby a proposed source may, at the
approval of the reviewing authority, propose a case-specific ratio in
lieu of an available default IPT ratio. The following changes are being
made in response to comments received: (1) Air agencies will not be
required to obtain EPA approval of IPT ratios when implementing a case-
specific IPT program or when applying default IPT ratios that are not
included in the state regulations and the SIP; and (2) the required
periodic review of any default IPT ratio must be conducted every 5
years, rather than every 3 years as proposed.
The EPA acknowledges, based on comments received, that the
requirement of EPA approval of IPT ratios could impose additional
burdens and result in permit delays. Hence, in the final rule, the EPA
is eliminating this approval requirement for the case-specific ratios
and for default ratios that are not included in state regulations and
the SIP. In the spirit of cooperative federalism, the EPA encourages
air agencies to both work with the EPA in the development of IPT ratios
and notify the EPA after the development of any initial or revised
area-specific default IPT ratio for a particular ozone nonattainment
area. Finally, the EPA will, of course, also have an opportunity to
review and comment on the application of any IPT ratio (default or
case-specific) to a particular source or location during the public
comment period afforded as part of the NNSR permitting process.
An air agency may choose to include a numerical default ratio in
its NNSR regulations and the SIP to make that ratio controlling.
Alternatively, if an air agency chooses not to include any numerical
default IPT ratios in its regulations and SIP, EPA approval of the
numerical default ratio is no longer required. However, for any such
air agency, the final rule still requires the SIP to include (1) the
authority to implement IPT; (2) a description of the air quality
model(s) that may be used to develop any default IPT ratio; and (3) a
description of the approach that the air agency will use to develop any
default IPT ratio, which must show that such ratios provide an
equivalent or greater ozone air quality benefit in the applicable ozone
nonattainment area. The final rule also requires air agencies with IPT
programs that authorize case-specific IPT ratios to require permit
applicants to include along with the submittal of the proposed case-
specific ratio similar information pertaining to the development of the
ratio.
A default IPT ratio that is not in a state regulation and an
approved SIP would be subject to public comment for each use in
individual permits. Therefore, states may want to include numerical
default IPT ratios in their regulations and submit them to the EPA for
approval as part of the SIP. In such an instance, the regulation
containing the area-specific default IPT ratio would be reviewed by the
EPA as part of the SIP submission and, if approved, would provide
states and other stakeholders with greater certainty that the IPT ratio
will be applicable to all permit
[[Page 63018]]
applications. The validity of a default IPT ratio that has become part
of an approved plan and has undergone public comment during the plan
approval process would not be subject to additional public comment with
regard to its numerical value each time that ratio is utilized by
individual permit applicants.
On the other hand, default ratios that are not included in a state
regulation and SIP, and, therefore, are not subject to the EPA's
approval, may be replaced more rapidly in situations where the ratio is
no longer valid, e.g., as a result of a periodic review. An air agency
can replace such a ratio with a revised value that will not have to be
processed through rulemaking and a plan revision. Also, if an air
agency determines through a periodic review that an existing default
ratio is no longer valid and must be revised, the air agency may decide
not to revise it but to rely solely on case-specific permit ratios to
continue implementing IPT provided that the SIP contains the necessary
authority to implement case-specific ratios as part of the NNSR program
for ozone. Unlike the default IPT ratios, case-specific IPT ratios will
not require periodic review because the ratio used for each individual
permit will be based on the most current data representing the ozone
chemistry for the area of concern.
This final rule does not discourage or preclude an air agency
desiring EPA approval from electing to either submit numerical default
IPT ratio(s) to EPA for review and approval into its SIP, seek EPA
approval of any case-specific IPT ratio or to simply seek consultation
with the EPA on the development of any IPT ratio for ozone.
For any state that lacks an approved NNSR program for ozone, the
state may issue an NNSR permit pursuant to the NNSR requirements for
ozone contained in 40 CFR part 51 Appendix S, which includes an IPT
program. The final rule provides that the IPT program under Appendix S
may be implemented only by using case-specific IPT ratios. In addition,
the final rule includes a provision in Appendix S that requires permit
applicants to include along with the submittal of the proposed case-
specific ratio information pertaining to the development of that ratio.
Moreover, each case-specific permit IPT ratio would not require EPA
approval but only the approval of the air agency.
The EPA is including a revised final TGD in the docket for this
rulemaking. The purpose of this TGD is to provide air agencies and
source owners or operators, where applicable, with guidance on a
technical approach to determine ozone impacts from precursor emissions
for a specific nonattainment area or for case-specific determinations.
The TGD provides a framework and associated general methodology to
apply existing or new empirical relationships between ground level
ozone concentrations and the two precursors--NOX emissions
and VOC emissions--to develop the required IPT ratios.\43\ Air agencies
may use existing modeling analyses or generate their own modeling
analyses to provide the basis for the development of IPT ratios.\44\
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\43\ Please refer to the TGD included in this final rule docket
and the section of the Response to Comments document related to the
proposed TGD for further information.
\44\ The EPA has not added any regulatory provisions in the NNSR
regulations to require permitting authorities to use the data or
methods described in the TGD.
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In addition, recent changes to the EPA's Guideline for Air Quality
Models, published as Appendix W to 40 CFR part 51, provides greater
clarity regarding the use of chemical transport modeling to estimate
single-source ozone impacts from precursors. Appendix W provides
guidelines for area-specific assessments of precursor emissions impacts
on ozone and these guidelines may also support the development of case-
specific IPT ratios or area-specific IPT ratios for ozone precursors.
Finally, the final rule attempts to strike a balance between
providing flexibility for the offset requirement in NNSR permitting and
compliance with the CAA's air quality protections. While EPA approval
of ratios is no longer required, the EPA believes that the SIP
requirements for air agencies to comply with the criteria for
development of default IPT ratios and to conduct periodic reviews of
each default ratio, along with the opportunity for the EPA to review
the application of a ratio for a specific permit during the public
comment period, afford adequate safeguards. In particular, the
mandatory periodic review conducted by the air agency will ensure that
each area-specific ratio either continues to adequately reflect the
correct relationship between VOC and NOX emissions with
respect to the formation of ground level ozone in a particular ozone
nonattainment area or will result in such ratio being eliminated (and
revised if so desired).
3. Comments and Responses
Comment: Six commenters expressed concerns about the administrative
burden associated with the proposed requirement for the EPA to approve
all IPT ratios for ozone. These commenters believed that the EPA's
approval of the SIP containing the authority to use IPT and the
methodology for developing an IPT ratio would be sufficient. The
commenters claimed that the EPA's approval of SIPs containing rules
authorizing IPT is sufficient for compliance with the CAA requirements
for EPA approval of SIPs, while the specific ratios applied to IPT
should be a matter of NNSR permitting. The commenters stated that the
CAA assigns the EPA a substantive role in approving SIPs but generally
reserves NNSR permitting decisions to states. They thereby concluded
that the determination of specific IPT ratios should be considered the
province of the air agency and should not require EPA approval. One
commenter, while generally opposing the proposed IPT provisions, argued
that EPA approval of ratios would provide minimal, if any, benefit and
that the EPA lacked the resources sufficient for such a process to be
successful.
Response: The EPA has considered the commenters' concerns about the
proposed requirement for EPA approval of all IPT ratios for ozone. As a
result, we have concluded that it would be appropriate to eliminate the
proposed EPA approval requirement as part of the final rule while
retaining the following safeguards: The final rule requires the SIP to
include (1) the authority to implement IPT; (2) a description of the
air quality model(s) that may be used to develop any default ratio; and
(3) a description of the approach that the air agency will use to
develop any default IPT ratio, which will show that such ratio(s)
provide an equivalent or greater ozone air quality benefit in the
applicable ozone nonattainment area. Accordingly, the final rule does
not require EPA approval of any IPT ratio. The EPA agrees that the
process of EPA approval could lengthen the time required for SIP
approval (in the case of default IPT ratios) and for individual permit
processing (in the case of case-specific IPT ratios).
However, the EPA also believes that SIP approved default IPT ratios
have great potential in burden reduction for both proposed projects as
well as the state through an initial up-front effort in providing the
technical demonstration supporting the desired default ratio with an
equivalent or greater air quality benefit for such ratio's use in NNSR
permitting. A SIP approved default IPT ratio could be used to provide a
greater degree of certainty for projects each time it is used in an
NNSR permit, since it would be presumed to be appropriate for each
individual NNSR permit in that nonattainment area. To avail this
greater
[[Page 63019]]
certainty of default IPT ratios, an air agency could choose to obtain
formal approval of any default ratio by including it in its SIP
submission.
The EPA recommends that air agencies consult with the EPA and refer
to the TGD for assistance in developing the technical demonstration
supporting IPT as providing an equivalent or greater air quality
benefit in the nonattainment area, whether implementing a case-specific
or area-specific default ratio. The EPA also offers direct assistance
to air agencies in the development of default IPT ratios upon request.
Comment: Seven commenters advocated that the EPA take greater
responsibility for the development of default IPT ratios. Five of the
seven specifically recommended that the EPA provide the area-specific
IPT ratios for ozone nonattainment areas to the air agencies. Two of
the commenters, supporting a greater EPA responsibility, called upon
the EPA to provide assistance to the states in developing default IPT
ratios. All seven commenters generally agreed that the process to
develop default IPT ratios is too burdensome for the states to conduct
on their own. A state air agency commenter recommended that the EPA
provide a mechanism to establish an alternative ratio ``that does not
rely upon overly burdensome modeling exercises.'' The same commenter
suggested that the EPA could instead rely upon a ratio of
NOX and VOC inventories rather than photochemical modeling.
Response: While the EPA continues to support the concept of a
default ratio for a particular ozone nonattainment area, primarily for
resource reasons it is not feasible at this time for the EPA to assume
the responsibility for establishing ratios for all ozone nonattainment
areas across the country. Additionally, it is not clear whether all
states will adopt the discretionary IPT provisions or whether they will
prefer default or case-specific IPT ratios. Taking into account these
considerations, and the considerable resources required to conduct
research and data analyses to establish IPT ratios for every
nonattainment area, the EPA believes that it is more appropriate for
states to assume the responsibility for developing IPT ratios for
nonattainment areas if they decide to implement the voluntary IPT
program.
Concerning the commenters' recommendation for a mechanism for an
alternative ratio that can be derived without reliance on a modeling
demonstration, the EPA is not aware of an alternate methodology to show
equivalent or greater ozone air quality benefit in a nonattainment
area, which is an essential component of an acceptable ozone IPT ratio,
nor has the commenter provided such methodology for consideration.
Moreover, a ratio that relied upon NOX and VOC emissions
inventories, as recommended by one commenter, would not be based on an
air quality relationship between the two ozone precursors and would
lack elements of the required technical demonstration to substantiate
the required equivalent or greater air quality benefit for the ozone
nonattainment area than a reduction (offset) of the emitted precursor
would achieve.
Comment: One commenter recommended the EPA not allow case-specific
IPT ratios because such ratios could not be set in advance of the
permitting process, although permit applicants need to know the
appropriate amount of the precursor offsets that would be required in
order to decide whether to apply for an NNSR permit.
Response: Any major NNSR permit applicant would be required to do
preliminary analysis to determine the Lowest Achievable Emissions Rate
(LAER) and the amount of emissions offsets required. The EPA recognizes
the importance of an applicant of knowing, in advance of applying for a
permit to construct, the amount of emissions reductions that will be
needed to satisfy the NNSR offset requirement. If a state has chosen to
provide a default ratio, then that information is readily available to
the applicant when contemplating a proposed construction project. If,
however, a state also allows case-specific IPT ratios and the applicant
believes that a lower, less conservative ratio may be more appropriate
for the proposed project at a particular location within a
nonattainment area, then the applicant may elect to propose in advance
of the submittal of a permit application a case-specific IPT ratio that
would apply only to that source project. Thus, the case-specific IPT
ratio remains a valid option for permit applicants that find it useful.
Comment: Some commenters expressed concern that the final rule
would only allow one approach for developing the required IPT ratio.
One commenter was concerned that states with more than one ozone
nonattainment area would be required to select one approach to apply to
all nonattainment areas within the state.
Response: These commenters appear to have misunderstood the EPA's
proposal concerning the different options described for states to
consider in developing or revising IPT ratios for NNSR permitting. The
EPA did not intend to limit the flexibility afforded to states with
respect to how they can implement ozone IPT provisions (which includes
the approach indicated by these commenters). As previously explained,
the EPA proposed three options for states that choose for implementing
an IPT program for ozone: (1) Procedures to develop an area-wide IPT
ratio; (2) procedures to allow case-specific ozone IPT ratios
applicable to single permits; or (3) a combination of the first two
options with an area-specific default ratio that can be replaced by a
case-specific ratio as proposed by the applicant. The EPA's intent is
to maximize flexibility so that air agencies can choose a different
option for each nonattainment area, rather than choose one option to
apply at the statewide level, which means that two nonattainment areas
in the same state could apply different options for ozone IPT ratios.
The IPT program for ozone is not a mandatory program for air agencies
to adopt. However, air agencies that choose to use any form of IPT
program for ozone using the options provided in the final rule will
need to revise their SIPs to ensure that their NNSR rules satisfy the
minimum requirements contained in the final rule.
Comment: Twelve commenters opposed the proposed requirement for a
3-year periodic review of any area-wide IPT ratios. Several of these
commenters opposed any review at all unless there is a specific basis
(e.g., a new or revised attainment demonstration) to justify the need
for review. Most of the remaining commenters recommended that a longer
review period (generally 5-10 years) would be more appropriate than the
proposed 3-year frequency. The commenters generally indicated that the
proposed 3-year review would be overly burdensome and likely not
reflect appreciable inventory changes. The commenters further noted
that updating an ozone IPT ratio every 3 years after initial SIP
approval requires months of modeling along with many weeks to follow
public notice requirements and other applicable state requirements.
Response: The EPA considered the comments concerning the proposed
periodic review and the 3-year review cycle and has concluded that it
is appropriate to make certain changes to the proposed approach.
Specifically, the requirement for a periodic review of any default
ratio is being retained; however, such reviews will be required every 5
years rather than the proposed 3 years. The EPA notes that the
requirement for periodic review does not apply to case-specific IPT
ratios established for individual permits since each such ratio will be
based on the relevant technical
[[Page 63020]]
information applicable to that particular permitting situation. The EPA
disagrees with those commenters recommending that IPT review only occur
at the states' discretion. The EPA is establishing a periodic review
requirement for area-wide IPT ratios based on a 5-year review cycle to
address the potential for changes in atmospheric conditions in an area,
and to ensure that the requirement for equivalent or greater ozone
benefits continues to be satisfied.
The increase in the length of the review was supported by
commenters in response to the proposal. Commenters supporting a review
period specifically noted that the 3-year period was too short. Many of
the commenters noted the procedural challenges in their own rulemaking
process and that other contributing elements to the nonattainment area
air shed do not change significantly enough to justify the effort of
the review.\45\ They concluded that a 3-year review cycle would be too
burdensome to adopt as a provision. Further, recent research suggests
ozone formation in an area changes over time but is typically fairly
consistent in a given 3 to 5-year period.\46\ Therefore, the EPA has
decided to increase the proposed 3-year review period to a 5-year
review period in order to provide air agencies a more reasonable period
of time to satisfy the requirement and to afford sufficient time to
reflect inventory changes. It is important to note that the final rule
would also not require EPA approval of periodically reviewed ratios
that are not included in regulations and the SIP. This will enable an
air agency to effectuate an updated default ratio more quickly, but
such a default ratio will be subject to public comment as part of the
NNSR permitting process. However, similar to the development of the
initial default ratio, the EPA encourages air agencies to both work
with the EPA in the development of a revised default IPT ratio for a
particular ozone nonattainment area and notify the EPA after such a
ratio has been developed.
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\45\ See Section VIII.B of the Response to Comments document for
further information.
\46\ Evaluating a Space-Based Indicator of Surface Ozone-
NOx-VOC Sensitivity Over Midlatitude Source Regions and
Application to Decadal Trends, Xiaomeng Jin, Arlene M. Fiore, Lee T.
Murray, Lukas C. Valin, Lok N. Lamsal, Bryan Duncan, K. Folkert
Boersma, Isabelle De Smedt, Gonzalo Gonzalez Abad, Kelly Chance, and
Gail S. Tonnesen, Journal of Geophysical Research: Atmospheres,
October 5, 2017.
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Comment: Five commenters advocated that the EPA provide a
reasonable transition period for any pre-existing IPT programs that a
state may be currently implementing. Some of these commenters
explicitly recommended that states be allowed to continue the
implementation of pre-existing ozone IPT programs without including
revised IPT provisions as part of any other required revisions to the
ozone NNSR regulations.
Response: Existing provisions in an EPA-approved SIP remain in
effect until any revisions to those provisions are approved by the EPA
as a revision to the SIP. Accordingly, states that already implement a
SIP-approved ozone IPT program can continue to implement that approved
program until the program is revised. States are required to submit a
SIP revision regarding the state's NNSR program. Even if a state
believes that its pre-existing IPT program is sufficient to meet the
requirements established in this rulemaking, the state's SIP submittal
must demonstrate this to be so by including information to support the
implementation of IPT subject to the requirements of this rule. In the
case of any default ratios that are already in a SIP, this includes a
technical demonstration supporting an equivalent or greater ozone air
quality benefit for the existing default IPT ratio, and a 5-year
periodic review.
Comment: Two commenters objected to the proposed ozone IPT
provisions on the grounds that allowing IPT is unlawful. One of the
commenters claims the IPT provision would put human health at risk
because it contributes to delays in attaining the standards. The other
commenter provides a detailed argument claiming that the proposed ozone
IPT provision violates the express terms of the CAA. This commenter
interprets the offset requirement under CAA Section 173(c)(1), which
specifically refers to an ``air pollutant,'' to apply only to the
particular precursor emitted (VOC or NOx), rather than to
the ambient air pollutant (ozone) for which the region is in
nonattainment, noting that the Act establishes VOC-specific offset
ratios required for ozone permitting.
Response: The EPA disagrees with the commenters' narrow
interpretation of ``air pollutant'' under CAA Section 173(c)(1).\47\
CAA section 302(g), which defines ``air pollutant,'' provides that the
term includes ``. . . any precursors to the formation of any air
pollutant, to the extent the Administrator has identified such
precursor or precursors for the particular purpose for which the term
`air pollutant' is used.'' (Emphasis added).\48\ Further, CAA section
109(a) directs the Administrator to promulgate NAAQS for ``each air
pollutant for which air quality criteria have been issued. . . .'' The
criteria pollutant in this context is ozone--not its precursors.
Further, in accordance with CAA section 107(d)(4), the air pollutant
for which the area is designated nonattainment is ozone, and there is
no mention of NOX or VOC.
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\47\ Section 173(c)(1) of the CAA states that the NNSR offset
requirement shall ``assure that the total tonnage of increased
emissions of the air pollutant from the new or modified source shall
be offset by an equal or greater reduction, as applicable, in the
actual emissions of such air pollutant from the same or other
sources in the area.'' (Emphases added.)
\48\ See 57 FR 55620, November 25, 1992, at page 55621 and 55624
(PSD and NNSR Applicability), and 1991 Memo ``New Source Review
Program Transitional Guidance'' at page 5.
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While an area's attainment designation is made for the criteria air
pollutant ozone, the control of ground level concentrations of ozone
has occurred largely through regulation of its precursor emissions,
which are NOX and VOC. Both the CAA and the EPA's NNSR
regulations identify emissions of NOX and VOC as precursors
for ozone, and, as such, NOX and VOC are both regulated
under NNSR as part of the regulation of ozone (see 40 CFR
51.165(a)(xxxvii)(C)(1)). Thus, when applied to ozone, the term ``air
pollutant'' in section 173 of the Act may be read to describe both
NOX emissions and VOC emissions. The EPA, therefore, reads
the Act to allow the total annual tonnage of emissions of one ozone
precursor to be offset by reductions in total annual emissions of
another ozone precursor (in tpy) pursuant to an IPT ratio that
demonstrates that the reductions will have an equivalent or greater air
quality benefit with respect to ground level concentrations of the
ambient air pollutant ozone. Further, section 173(a)(1)(A) of the CAA
requires an NNSR permitting offset to be consistent with RFP (as
defined in CAA section 171(1)). Specifically, this provision requires
that the offsetting emissions reductions are such that the total
allowable emissions in the area, including the proposed source or
modification when the source commences operation, will be sufficiently
less than the emissions from the total emissions of existing sources
before the permit application, to represent RFP when considered
together with the provisions of the nonattainment SIP. Section 171(1)
of the CAA defines RFP as ``annual incremental reductions in emissions
of the relevant air pollutant . . . for the purposes of the applicable
NAAQS by the applicable date.'' This requirement serves as insurance
that IPT offsets must not interfere with NAAQS attainment for ozone.
[[Page 63021]]
Additionally, the commenters note that the Act establishes VOC-
specific offset ratios required for ozone permitting. The IPT
provisions at issue in this rulemaking are for the NNSR permitting
offset requirement for ozone and stem from the CAA section 173(c)
requirement to offset ``increased emissions of any air pollutant''
rather than a requirement that specifically identifies the precursor at
issue.\49\ Of note, the EPA is not suggesting that a VOC-specific SIP
requirement where Congress has not permitted NOX
substitution can be satisfied by utilizing either precursor
interchangeably. Specifically, in CAA section 182(b)(1), for newly
listed Moderate and higher classified nonattainment areas, there is a
requirement that a reduction in VOC emissions of 15 percent be
achieved. In the case of a nonattainment area (Moderate and higher
classified) that has not previously achieved the 15 percent VOC ROP
reduction and is seeking to utilize NNSR permitting as one of the
methods by which it will achieve the required VOC reductions, the state
is not allowed to utilize IPT in its NNSR program.
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\49\ If anything, the statement in section 182(c)(2)(C)
permitting NOX substitution that ``would result in a
reduction in ozone concentrations at least equivalent to that which
would result from the amount of VOC emission reductions required
under subparagraph (B)'' evidences Congress's understanding that
NOX reductions, when properly calculated, can be utilized
to result in equivalent ozone reductions as VOC emissions; a
contention which the commenters dispute and is discussed below in
addressing the commenters' ``anti-backsliding'' comments.
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Comment: One commenter argued that the IPT provision for ozone
violates the CAA's anti-backsliding requirements because ``[a] rule
that allows a new major source to be constructed and emit increased
levels of a pollutant that would have been barred under prior rules is
by definition less stringent.'' Additionally, the commenter asserted
that the IPT provision would put human health at risk and fails to
assure equivalent or greater ozone reduction benefit.
Response: The commenter did not identify any specific CAA
requirements in their comments with regard to anti-backsliding. Based
on the commenter's statement that the proposed rulemaking ``unlawfully
and arbitrarily authorize[s] controls for that pollutant that are less
stringent than required under the pre[hyphen]existing NAAQS,'' the
commenter appears to be referencing the EPA's application of section
172(e); however, this provision applies to relaxation of a prior NAAQS.
The EPA is not relaxing a prior NAAQS in this action, and thus section
172(e) does not apply.
As the EPA has stated, the IPT approach outlined in the proposal
and being finalized here represents the longstanding policy of the
EPA.\50\ Therefore, it is not ``less stringent'' than the agency's
prior approach. Moreover, the commenter provided no analysis or support
for the assertion that this rule would allow ``a new major source to be
constructed and emit increased levels of a pollutant that would have
been barred under prior rules.''
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\50\ See Louisiana; Final Rule: 67 FR 61260, September 30, 2002
(proposed at 67 FR 48090, July 23, 2002); Texas; Final Rule: 71 FR
52664, September 6, 2006 (proposed at: July 23, 2001); Mass
Emissions Cap and Trade Program proposal (66 FR 38240; July 23,
2001).
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The EPA also disagrees with commenter's claims that the proposed
rulemaking would put human health at risk and that IPT fails to assure
equivalent or greater ozone reduction benefits. In both the proposed
and final rule, the use of any IPT ratio is predicated on a
demonstration that assures exactly that. See, e.g., 40 CFR
51.165(a)(11)(i)(B)(I) and (C). The commenter claimed that the
``proposal nowhere finds or demonstrates that any specific trading
ratios will be sufficient to assure equivalent or greater ozone
reductions in any particular ozone nonattainment areas, nor does it
specify with precision the methods and supporting data required to make
such a demonstration.'' These critiques are premature and would only be
germane if the commenter sought to dispute the approval of a specific
IPT ratio. As discussed earlier in response to comments requesting that
the EPA directly develop ratios for each nonattainment area as part of
this final rule, the EPA maintains that we cannot, and will not
endeavor to, identify all possible specific trading ratios for all
areas. Rather, the EPA has defined three different procedural
approaches for implementing IPT and provided technical guidance to
assist air agencies (and permit applicants, where applicable) in the
establishment of such ratios.
Furthermore, the ability of an IPT ratio to assure equivalent or
greater ozone reductions has been acknowledged by Congress. CAA section
182(c)(2)(C) permits air agencies to demonstrate that substituting
NOX emissions for VOC emissions to satisfy the VOC-specific
requirements of CAA section 182(c)(2)(B) ``would result in a reduction
in ozone concentrations at least equivalent to that which would result
from the amount of VOCs emission reductions required.'' In that
context, Congress specifically authorized the substitution because it
related to a VOC-specific requirement. The IPT provisions in this final
rule, relate to the ambient air pollutant ozone, and, thus, as
discussed previously, specific authorization to substitute precursors
is not necessary as part of the section 173(c) offset requirement
because, as discussed earlier, CAA section 302(g) defines ``air
pollutant'' to include ``any precursors to the formation of any air
pollutant.'' However, section 182(c)(2)(C) is noteworthy because it
formalizes Congress' acknowledgement that, contrary to the commenter's
assertions, IPT can be implemented in a manner which assures equivalent
or greater ozone reductions.
E. Emissions Inventory and Emissions Statement Requirements
The EPA proposed to clarify our emissions inventory and emissions
statement requirements for purposes of the 2015 ozone NAAQS by adding
40 CFR 51.1315. CAA sections 182(a)(1) and 182(a)(3)(A) require states
to submit emissions inventories to the EPA. To clarify these statutory
requirements within the context of implementing the 2008 ozone NAAQS,
the EPA added 40 CFR 51.1115 (80 FR 12264, 12314; March 6, 2015). For
purposes of the 2015 ozone NAAQS, we proposed to add 40 CFR 51.1315, to
clarify requirements for the emissions inventories required by CAA
sections 182(a)(1) and 182(a)(3)(A). We also provided a preamble
discussion in the proposed rulemaking to clarify the emissions
statement requirements of 182(a)(3)(B), and are finalizing 40 CFR
51.1315 consistent with that discussion in this final rule.
1. Emissions Inventories
a. Summary of Proposal. The EPA proposed to retain our existing
approach to the general emissions inventory requirements for purposes
of the 2015 ozone NAAQS, as articulated in the final 2008 Ozone NAAQS
SIP Requirements Rule.\51\ We also proposed revisions to point source
reporting thresholds in the AERR (codified in 40 CFR 51, subpart A) to
be consistent with the major source thresholds for ozone nonattainment
areas.
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\51\ The preamble to the final 2008 Ozone NAAQS SIP Requirements
Rule provides an extensive discussion of the EPA's rationale and
approach for emissions inventories (80 FR 12289; March 6, 2015).
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The emissions inventory requirements for the 2008 ozone NAAQS,
found at 40 CFR 51.1115, describe the criteria and timing for base year
and periodic
[[Page 63022]]
inventories required under CAA sections 182(a)(1) and 182(a)(3)(A),
respectively. To support the periodic emissions inventory requirement,
the EPA proposed revisions to the AERR point source reporting
thresholds in AERR Table 1 (40 CFR 51, subpart A, appendix A) to be
consistent with the major source thresholds for ozone nonattainment
areas. These reporting thresholds are in tons of potential emissions
per year. The existing AERR Table 1 includes Moderate area thresholds
of 100 tpy for NOX and VOC, which are the same as the
triennial thresholds for all areas. The existing AERR table also
includes lower VOC thresholds for Serious, Severe and Extreme areas of
50, 25 and 10 tpy. With the proposed revision, the AERR table would be
updated to also explicitly include these same Serious, Severe and
Extreme area thresholds for NOX. The same thresholds as have
existed for VOC also apply for NOX, consistent with
definition of ``major source'' in both 40 CFR 70.2 and 40 CFR 71.2. In
addition, the emission thresholds also depend on whether the source is
within an OTR in accordance with CAA 184(b)(2). The EPA proposed to
include in the AERR table a 50 tpy potential-to-emit (PTE) VOC
threshold for sources within an OTR and a 50 tpy PTE NOX
threshold for sources both within an OTR and within a Moderate ozone
nonattainment area, proposing to apply the same definition noted
earlier in 40 CFR 70.2 and 40 CFR 71.2. Finally, the proposal removed
the 100 tpy PTE CO threshold from the AERR tables in Appendix A for
ozone nonattainment areas because there is no corresponding major
source threshold for CO in the existing or proposed implementing
regulations for the ozone NAAQS.
b. Final Rule. The EPA is finalizing the proposed emissions
inventory requirements, with the exception of the proposed AERR Table 1
reporting threshold for NOX sources within an OTR, as
explained more fully later. In general, we are providing that air
agencies may rely, when appropriate, on their 3-year cycle inventory as
described by the AERR to meet the 182(a)(3)(A) periodic inventory
obligations, with additional requirements for the reporting of ozone
season day emissions and treatment of partial-county inventories.\52\
For all of the mobile source inventories used for 2015 ozone NAAQS
implementation, states should use the latest emissions models available
at the time that the attainment plan inventory is developed.\53\ In
general, for states other than California that choose to fulfill
various modeling requirements by using the latest EPA emissions model,
the latest approved version of the MOtor Vehicle Emissions Simulator
(MOVES) model should be used to estimate emissions from onroad and
certain nonroad transportation sources. States should use the latest
available planning emission inputs including, but not limited to,
vehicle miles traveled, speeds, fleet mix, SIP control measures and
fuels. The current version of MOVES is available at: https://www.epa.gov/moves. Other appropriate methods should be used to estimate
emissions of nonroad sources not included in the model. For California,
consult with the EPA Region 9 for information on the latest approved
version of the EMFAC (EMission FACtors) model. EMFAC2014 is the most
recently approved model.\54\
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\52\ States should consult the guidance document titled
``Emissions Inventory Guidance for Implementation of Ozone and
Particulate Matter National Ambient Air Quality Standards (NAAQS)
and Regional Haze Regulations,'' EPA-454/B-17-003, July 2017, and
any subsequent updates to that guidance that the EPA may make
available at: https://www.epa.gov/air-emissions-inventories/emissions-inventory-guidance-implementation-ozone-and-particulate-matter.
\53\ Section 172(c)(3) of the CAA requires that emissions
inventories be based on the most comprehensive, accurate and current
information available. To do so, air agencies should use the most
up-to-date method for estimating emissions.
\54\ The EPA is aware that EMFAC2017 has been made available by
the California Air Resources Board and is currently reviewing that
model. However, EMFAC2017 should not be used for any conformity
analyses until the EPA officially approves the model for that
purpose.
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The EPA is finalizing the proposed updates to AERR Table 1 that
explicitly include the same Serious, Severe and Extreme area thresholds
for NOX as currently exist for VOC. We are also removing the
100 tpy PTE CO threshold from Appendix A for ozone nonattainment areas,
as proposed.
We are not finalizing our proposal to revise the NOX
reporting threshold for sources within an OTR from 100 tpy to 50 tpy.
This revision would have aligned the NOX reporting threshold
with that for VOC sources in an OTR, which is established as 50 tpy in
CAA section 184(b)(2) and in subsection 3(ii) of the definition of
``major source'' in 40 CFR 70.2 and 40 CFR 71.2. For nonattainment
areas, CAA section 182(f)(1) applies the planning requirements for
major stationary sources of VOC to NOX sources within
nonattainment areas classified Serious and higher. Major stationary
sources of NOX for nonattainment areas are thus defined by
the same corresponding emissions thresholds for VOC sources under CAA
sections 182(c) (Serious areas, 50 tpy), 182(d) (Severe areas, 25 tpy)
and 182(e) (Extreme areas, 10 tpy). Section 184 of the CAA does not
include NOX requirements for major stationary sources of VOC
in an OTR, while CAA section 184(b)(2) specifically provides that major
stationary sources of VOC (i.e., at least 50 tpy VOC) would be subject
to requirements applicable to major stationary sources in a Moderate
nonattainment area. The EPA's proposed revision of the OTR
NOX reporting threshold was intended to establish a
parallel, consistent basis for emissions reporting requirements for VOC
and NOX sources in an OTR. However, after considering
comments received (see later), the EPA has determined that our proposal
incorrectly interpreted the interaction between CAA sections 182 and
184 as requiring a NOX reporting threshold of 50 tpy in the
OTR. CAA section 182(f) states that the planning requirements for ozone
nonattainment areas that apply to major stationary sources of VOCs will
also apply to major stationary sources of NOX, but it does
not say the major stationary source definition for VOCs (such as the 50
tpy threshold contained in 184(b)(2) for stationary sources in the OTR)
shall also apply to determining major stationary sources of
NOX. Instead, section 182(f) specifically defines major
stationary sources of NOX with reference to the general
definition contained in CAA section 302, which applies a 100 tpy
emission threshold (see 42 U.S.C. 7602(j)), and the thresholds for
Serious, Severe and Extreme nonattainment areas contained in CAA
section 182(c), (d) and (e) (i.e., 50, 25 and 10 tpy, respectively).
Interpreting CAA section 182(f) as establishing a 100 tpy threshold for
major stationary sources of NOX in the OTR is consistent
with the EPA's longstanding position regarding the interaction between
section 182 and 184.\55\ We are therefore not finalizing our proposal
to revise the NOX reporting threshold for sources within an
OTR, and are retaining the existing general NOX reporting
threshold of 100 tpy. Major stationary sources within an OTR that are
also located in ozone nonattainment areas classified Serious and higher
would be subject to the
[[Page 63023]]
corresponding major source thresholds for those area classifications.
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\55\ See 57 FR 55620, 55622 (November 25, 1992) (stating that
section 184(b)(2) ``is specifically limited to VOC sources because
section 182(f) does not refer to the section 184 definition in
describing the major stationary source definitions applicable for
NOX purposes''); Region 1 EPA New England NOX
RACT Summary (stating that for ``Marginal and Moderate nonattainment
areas and attainment areas in the OTR, a major NOX source
is one with the potential to emit 100 tpy or more of
NOX''), https://www3.epa.gov/region1/airquality/noxract.html.
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c. Comments and Responses. Comment: Two commenters did not support
the EPA's proposed revision of the NOX reporting threshold
for sources within an OTR from 100 tpy to 50 tpy. The commenters
contended that any changes to reporting thresholds in AERR Table 1 must
be consistent with major source definitions established in the CAA and
regulation.
Response: We agree with the commenters and are not finalizing the
proposed revision. As discussed previously, we have determined that CAA
section 182(f) does not apply the major stationary source threshold for
VOCs contained in 184(b)(2) to major stationary sources of
NOX in an OTR.
2. Emissions Statements
For nonattainment areas, air agencies must develop, and include in
their SIPs, emission reporting programs for certain VOC and
NOX sources in accordance with CAA section 182(a)(3)(B).\56\
The required state program defines how air agencies obtain emissions
data directly from certain facilities, and these data, along with other
information, are then reported to the EPA as part of SIP inventories
required under CAA sections 182(a)(1) and 182(a)(3)(A). This state
program is generally referred to as an emissions statement regulation,
and it outlines how certain facilities must report emissions and
facility activity data to an air agency, typically a state agency.
Reports submitted to air agencies must be accompanied by ``a
certification that the information contained'' in the report is
``accurate to the best knowledge'' of the facility.\57\ To properly
implement the emissions reporting requirements, emissions statement
regulations should be coordinated carefully with the data elements that
are required by the EPA (the existing requirements at 40 CFR 51.1115
and the requirements finalized in this rule at 40 CFR 51.1315). An air
agency must submit the emissions statement regulation required by CAA
section 182(a)(3)(B), or a written statement certifying a previously
approved regulation, to the EPA as a SIP revision for approval (see
Section III.A.2 of this preamble). CAA section 110, in conjunction with
40 CFR 51.102, 51.103 and Appendix V, establishes the procedure for
submitting a SIP revision.
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\56\ CAA section 182(a)(3)(B)(2) allows that air agencies may
waive, with the EPA's approval, the requirement for emission
statements for classes or categories of sources with less than 25
tpy of actual plant-wide NOX or VOC emissions in
nonattainment areas, provided the class or category is included in
the base year and periodic inventories required under CAA sections
182(a)(1) and 182(a)(3)(a), respectively. Emissions in this case
must be calculated using emission factors established by the EPA, or
other methods acceptable to the EPA. We emphasize that the 25 tpy
emissions threshold applies separately for purposes of emissions
statement requirements, and does not relate to the major stationary
source reporting thresholds for emissions inventories in AERR Table
1.
\57\ Additional details on developing emissions statement
regulations can be found in the guidance document titled ``Guidance
on the Implementation of an Emission Statement Program (DRAFT),''
(July 1992) available at: https://www.epa.gov/air-emissions-inventories/implementation-emission-statement-program.
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V. Additional Considerations
This section addresses several important SIP-related topics for
which the EPA did not propose specific regulatory provisions due to
lingering legal issues, scientific unknowns and uncertainties
associated with developing and implementing new regulatory requirements
and/or policies. The EPA is using this final rule notice, however, to
articulate our existing requirements and policies pertaining to these
topics and to inform possible future actions.
A. Managing Emissions From Wildfire and Wildland Prescribed Fire
a. Proposed Recommendation. The preamble to the proposal for this
rule recognized both that prescribed fires are a source of emissions
that can have a greater or lesser impact on ozone concentrations
depending on how and when the prescribed fire is conducted, and that a
prescribed fire program can be a way to reduce emissions from
catastrophic wildfires which can impact ozone concentrations. In the
preamble to the proposal, the EPA proposed to recommend, as guidance to
air agencies, that in their attainment demonstrations they account for
emissions from wildfire and wildland prescribed fire as described in
the final PM2.5 SIP Requirements Rule.
b. Final Recommendation. The EPA continues to recommend that air
agencies use the approach described in the final PM2.5 SIP
Requirements Rule when accounting for emissions from wildfire and
wildland prescribed fire. Before explaining this recommendation
further, the EPA wishes to emphasize that this recommendation is
focused on wildland fire management. There are other uses of prescribed
fire and other types of burning that may occur in nonattainment areas,
or that may affect downwind nonattainment areas, such as burning of
land clearing debris, agricultural burning and burning of logging slash
on land where the primary purpose of the logging is for commercial
timber sale.\58\ The challenges with applying the traditional
nonattainment planning framework discussed here are particular to
wildland fire and prescribed fire on wildlands. The EPA believes that
addressing these other uses of prescribed fire does not present nearly
the same level of challenge as does addressing wildland fire, and,
thereby, can still be accommodated within the nonattainment planning
framework. For example, where these other types of burning currently
contribute to ozone levels in a nonattainment area, air agencies may,
with an adequate technical demonstration, be able to take credit for
reductions in ozone concentrations resulting from improvement in smoke
management techniques for these types of prescribed fire where the
improvement results in a demonstrated reduction in impacts in the
nonattainment area.
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\58\ The EPA notes that some wildland logging operations are
conducted for the same purposes as prescribed fire (e.g., reducing
fuel load, ecosystem benefits). The fact that some of the removed
trees may be sold as timber does not make commercial timber sale the
primary purpose of such operations.
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The EPA also wants to clarify that we continue to encourage
federal, state, local and tribal agencies and private land owners, to
take situation-appropriate steps to minimize impacts from prescribed
fire emissions on wildland. The EPA encourages all land owners and
managers to apply appropriate basic smoke management practices (BSMP)
to reduce emissions from prescribed fires, especially where an air
agency has determined that prescribed fires are a significant source
affecting air quality. The EPA understands that the federal land
managers (FLMs) apply these measures routinely and will be available to
consult with other agencies and private land owners interested in doing
the same.
However, for several reasons, the EPA does not believe it would be
effective policy or technically appropriate to recommend that control
measures for wildland fire be adopted into SIPs as enforceable measures
and credited for emissions reductions (of ozone and precursors) that
would help the area attain the standard.\59\ Instead, the EPA
[[Page 63024]]
recommends that ozone nonattainment plans (and in particular the
attainment demonstrations) not account for expected air quality changes
over the planning period resulting from changes in the use of wildland
prescribed fire or other wildland fire management practices to reduce
future wildfires, or air quality changes over the planning period
resulting from changes in wildland fire emissions due to a program of
prescribed fire or due to any other cause, including climate change. In
most cases, state attainment demonstration modeling should assume that
wildland prescribed fire and wildfire emissions in the attainment year
will be equal to, and have the same temporal and geographic pattern as,
those assumed in the baseline inventory year.
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\59\ These reasons include concerns raised by commenters on the
PM2.5 SIP Requirements Rule about the difficulties
associated with requiring (or even encouraging) states to
incorporate wildland fire emissions into existing nonattainment
planning procedures and practices under the CAA; high year-to-year
variability and unpredictability with emissions from wildland fires;
uncertainty in the amount of credit to give for reduced wildfire
within the planning period and in the amount of benefit that exists
after accounting for increases in prescribed fires within the
planning period; and the fact that air quality data actually
influenced by fire events may ultimately be excluded for regulatory
purposes under the provisions of the Exceptional Events Rule (40 CFR
50.14).
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The EPA acknowledges that some level and temporal and spatial
patterns of fire emissions must still be assumed in the attainment
demonstration in order to ensure that the required air quality modeling
results in a realistic physical and chemical environment and a
correspondingly realistic model response against which to analyze the
changes from source categories where express accounting of emissions
changes is being done. This final rule does not constrain the options
for states regarding the appropriate assumptions to make for fire
emissions. Rather, the guidance in this preamble simply recommends that
once this base level is established, ozone plans should not attempt to
project changes over the planning period in emissions from wildfires or
prescribed fires on wildland within the nonattainment area, or in
upwind areas included in the modeling domain, that are due to
variability in wildfire occurrence or changes in the use of wildland
prescribed fire or other wildland fire management practices. Moreover,
the EPA anticipates that changes in spatial and temporal patterns of
wildfire will likewise be too uncertain for them to be allowed to have
the effect of reducing or increasing the control requirement on
conventional anthropogenic sources. The EPA, therefore, recommends that
wildland fire emissions generally should be held constant in the air
quality modeling over the planning period, regardless of whether
wildland fire management practices by land managers are expected, and
possibly encouraged or required, to change.
Air agencies have flexibility in determining how best to represent
wildland fire emissions. As noted earlier, base year emissions
inventories for the nonattainment areas should represent the conditions
leading to nonattainment and be consistent with inventories used for
modeling. For fires, the EPA additionally encourages air agencies to
use a representative mix of prescribed fire and wildfire in their
inventories. Using ozone as an example, some plans under previous ozone
NAAQS have estimated the actual fire emissions and temporal and spatial
patterns from a given year and used this same estimate as part of the
assumed future baseline inventory for planning, while others have used
average emissions over multiple years. Other approaches may be
appropriate as well. Moreover, regardless of the approach used, the EPA
still encourages air agencies to submit actual wildfire and prescribed
fire activity data that are critical to developing emissions estimates
to the NEI, as suggested in the AERR.
A consequence of the recommendation of not expressly accounting for
changes in wildland fires in attainment demonstrations is that measures
to reduce emissions from wildland fires, such as prescribed fire to
prevent catastrophic wildfires or smoke management programs and BSMP
for prescribed fires in wildland, need not be included as RACM for the
respective fire types. This is because the changes in emissions due to
such measures would not be accounted for in determining what is
necessary for attainment and/or what would advance the attainment date,
which is how the EPA is recommending that RACM be determined. So, for
example, in an area that can attain in 6 years with measures that do
not address wildland fire, the EPA does not recommend that states
attempt to quantify whether increased prescribed fire could advance the
attainment date by 1 year, due to the aforementioned difficulties
associated with such quantification.
To be clear, nothing about this recommendation regarding RACM is
intended to suggest that prescribed fires should be ignited in wildland
(or elsewhere) without regard to the air quality or public health
consequences. As noted earlier, the EPA believes these consequences are
important to address, and intends to engage in dialogue with the FLMs,
air agencies, tribes, state and private land owners and other
stakeholders at appropriate times, such as during the process for the
development of land management plans, about how land managers determine
when and where prescribed fire is appropriate for particular wildlands
and how to identify and implement appropriate mitigation measures. The
guidance in this preamble simply makes clear the EPA's view regarding
our recommendation for RACM for wildland fires.
c. Comments and Responses
Comment: The EPA received comments expressing agreement with the
EPA's recommended approach to managing emissions from wildfire and
wildland prescribed fires. A few commenters took positions on
specifically how to define RACM for wildfires, ranging from suggesting
that the EPA require smoke management plans to simply stating that
prescribed fires themselves are RACM with no further measures required.
Some commenters disagreed with our position that states not take credit
in the SIP for emission reductions attributable to a reduced incidence
of wildfire if the state can demonstrate that the measures in the SIP
can be expected to reduce emissions from wildfire events that would
ordinarily not be excluded from the design value for the area. Other
commenters disagreed with our recommendation that wildfire emissions be
kept constant in projections for the attainment demonstration.
Response: In light of the fact that the EPA did not propose
specific guidance on defining RACM for wildfires and typically does not
define RACM for specific categories, and the fact that the EPA is not
recommending that states include RACM for wildland fires, we are not
providing further guidance in response to those comments. The basis for
recommending that wildfire emissions be kept constant in baseline
projections is explained earlier and is driven by the uncertainties
(e.g., patterns, timing and variability) in predicting fire emissions
that affect ozone levels in in nonattainment areas. This recommendation
is only guidance, and is not binding on the states or the EPA. In our
actions on individual SIPs, the public will have the opportunity to
make similar comments and we will consider those comments in the
context of those actions.
B. Transportation Conformity and General Conformity
1. What is conformity?
Conformity is required under CAA section 176(c) to ensure that
federal actions are consistent with (``conform to'') the applicable
state, tribal or federal implementation plan (collectively referred to
as the SIP in the remainder
[[Page 63025]]
of this section). Conformity to the applicable implementation plan
means that federal activities will not cause or contribute to new
violations of the standards, worsen existing violations or delay timely
attainment of the relevant NAAQS or interim reductions and milestones.
Conformity applies to areas that are designated nonattainment and
nonattainment areas redesignated to attainment that are required to
have a CAA section 175A maintenance plan after 1990 (``maintenance
areas''). Because certain provisions of section 176(c) apply only to
highway and mass transit funding and approval actions, the EPA
published two sets of regulations to implement section 176(c).
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. These activities
include adopting, funding or approving transportation plans,
transportation improvement programs and federally supported highway and
transit projects. The EPA first promulgated the Transportation
Conformity Rule on November 24, 1993 (58 FR 62188), and subsequently
published several amendments. We subsequently restructured the
Transportation Conformity Rule so that existing transportation
conformity requirements apply for any new or revised NAAQS (77 FR
14979; March 14, 2012). The Transportation Conformity Rule, therefore,
does not need to be updated to reflect the 2015 ozone NAAQS. The EPA in
June 2018 issued an update to existing transportation conformity
guidance related to the implementation of the revised ozone NAAQS. The
guidance is available at: https://www.epa.gov/state-and-local-transportation/policy-and-technical-guidance-state-and-local-transportation. For further information on transportation conformity
rulemakings, policy guidance and outreach materials, see the EPA's
website at https://www.epa.gov/state-and-local-transportation.
The EPA's general conformity regulations (40 CFR part 51, subpart W
and 40 CFR part 93, subpart B) establish the criteria and procedures
for determining whether activities not addressed by the transportation
conformity rule conform to the appropriate implementation plan. The EPA
first promulgated general conformity regulations in November 1993 (58
FR 63214; November 30, 1993)). Subsequently, the EPA finalized
revisions to the general conformity regulations on April 5, 2010 (75 FR
17254). The general conformity program ensures that federal actions not
related to highway and transit funding and approval actions will not
interfere with the appropriate implementation plan. General conformity
also fosters communications between federal agencies and state and
local air quality agencies, provides for public notification of and
access to federal agency general conformity determinations and allows
for air quality review of individual federal actions. More information
on the general conformity program is available at https://www.epa.gov/general-conformity.
2. Why is the EPA discussing transportation and general conformity in
this final rulemaking?
The EPA is discussing transportation and general conformity in this
rulemaking in order to provide affected parties with information on
when conformity must be implemented after areas are designated
nonattainment for the 2015 ozone NAAQS. The information presented here
is consistent with existing conformity regulations and statutory
provisions that are not addressed by this ozone implementation
rulemaking. Affected parties include state, local and tribal
transportation and air quality agencies, metropolitan planning
organizations and federal agencies including the U.S. Department of
Transportation (DOT), the U.S. Department of Defense (DOD), the U.S.
Department of Interior (DOI) and the U.S. Department of Agriculture
(USDA).
3. When would transportation and general conformity apply to areas
designated nonattainment for the 2015 ozone NAAQS?
Transportation and general conformity will apply 1 year after the
effective date of nonattainment designations for the 2015 ozone NAAQS.
CAA section 176(c)(6) provides a 1-year grace period from the effective
date of initial designations for any new or revised NAAQS before
transportation and general conformity apply in nonattainment areas. The
grace period applies even if the area had been designated nonattainment
for a prior ozone NAAQS. For additional information on transportation
conformity requirements and the 1-year grace period please refer to the
EPA's transportation conformity guidance for the 2015 ozone NAAQS
available at: https://www.epa.gov/state-and-local-transportation/policy-and-technical-guidance-state-and-local-transportation.
As discussed in Section II of this preamble, the EPA proposed and
sought comment on two alternative approaches for revoking the 2008
ozone NAAQS for all purposes and, where applicable, establishing anti-
backsliding requirements. We are not taking any final action regarding
an approach for revoking a prior ozone NAAQS and establishing anti-
backsliding requirements; the EPA intends to address any revocation of
the 2008 ozone NAAQS and any potential anti-backsliding requirements in
a separate future rulemaking. We note here that the CAA requires
transportation and general conformity determinations in areas that are
designated nonattainment or maintenance for a given pollutant and
standard, which at this time includes the 2008 ozone NAAQS.
4. Are there any other impacts related to general conformity based on
implementation of the 2015 ozone NAAQS?
As air agencies develop SIP revisions for the 2015 and future ozone
NAAQS, the agency recommends that state and local air quality agencies
work with federal agencies with large facilities (e.g., commercial
airports, ports and large military bases) that might take actions
subject to the general conformity regulations to establish an emissions
budget in the SIP for those facilities in order to facilitate future
general conformity determinations. Such a budget could be used by
federal agencies in determining conformity or identifying mitigation
measures for particular projects at those facilities, but only if the
budget level is included and identified in the SIP.
In a few cases, tracts of land under federal management may also be
included in nonattainment and maintenance area boundaries. The role of
prescribed fire in these areas should be assessed in concert with those
federal land management agencies. In such areas the EPA encourages air
agencies to consider including, in any baseline, modeling and SIP
attainment inventory used and/or submitted, emissions expected from
projects subject to general conformity, including emissions from
wildland fire that may be reasonably expected in the area. Where
appropriate, air agencies may consider developing plans for addressing
wildland fires in collaboration with land managers and owners.
Information is available from DOI and USDA Forest Service on the
ecological role of fire and on smoke management programs and BSMP.\60\
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\60\ USDA Forest Service and Natural Resources Conservation
Service, Basic Smoke Management Practices Tech Note, October 2011,
available at: http://www.nrcs.usda.gov/internet/FSE_DOCUMENTS/stelprdb1046311.pdf.
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[[Page 63026]]
C. Requirements for Contingency Measures in the Event of Failure To
Meet a Milestone or To Attain
1. Summary of Proposal
For purposes of the 2015 ozone NAAQS, the EPA proposed no changes
to the requirements for contingency measures articulated in the final
2008 Ozone NAAQS SIP Requirements Rule (80 FR 12285; March 6, 2015). As
required by the CAA, states must include in their nonattainment area
SIPs contingency measures that are consistent with CAA section
172(c)(9). For areas classified Serious or higher, states must also
include contingency measures that are also consistent with CAA section
182(c)(9), with a limited exception for Extreme nonattainment areas
relying on plan provisions approved under CAA section 182(e)(5).
2. Final Rule
The EPA is finalizing the proposed requirements. Contingency
measures required under CAA sections 172(c)(9) and 182(c)(9) must be
fully adopted rules or measures that can take effect without further
action by the state or the EPA upon failure to meet milestones or
attain by the attainment deadline. Per the EPA guidance,\61\ these
measures should provide 1 year's worth of emissions reductions, or
approximately 3 percent of the baseline emissions inventory. Once
triggered, if these adopted contingency measures are insufficient to
attain the standard, an air agency must conduct additional control
measure development and implementation for the area as necessary to
correct the shortfall.
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\61\ ``Guidance on Issues Related to 15 Percent Rate-of-Progress
Plans,'' Memorandum from Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation, to Regional Air Directors
(August 23, 1993), available at: http://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19930823_shapiro_15pct_rop_guidance.pdf.
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Regarding content of the 1 year's worth of reductions covered by
the contingency measures, the EPA is continuing to allow contingency
measure emissions reductions to be based entirely or in part 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
an air agency's analyses have demonstrated that NOX
substitution (entirely or in part) would be effective in bringing the
area into attainment.
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 an air agency has demonstrated that: All RACM,
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 air agency 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 continuing to allow air
agencies to submit, for Extreme nonattainment areas, enforceable
commitments to develop and adopt contingency measures meeting the
requirements of 182(e)(5) to satisfy the requirements for attainment
contingency measures in CAA sections 172(c)(9) and 182(c)(9). These
enforceable commitments must obligate the air agency to submit the
required contingency measures to the EPA no later than 3 years before
any applicable implementation date, in accordance with CAA section
182(e)(5).\62\ We note that this does not, however, relieve air
agencies from obligations to submit contingency measures 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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\62\ 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 2027,
the commitments must obligate the state to submit adopted
contingency measures to the EPA no later than 2024 (i.e., 3 years
before RFP contingency measures for 2027 would be implemented).
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As noted in the November 17, 2016, proposed rulemaking, the EPA
acknowledges that the U.S. Court of Appeals for the Ninth Circuit
issued an opinion in Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016), cert.
denied, 199 L. Ed. 2d 525, 2018 U.S. LEXIS 58 (Jan. 8, 2018), which
rejected the EPA's longstanding interpretation of CAA section 172(c)(9)
in the context of a SIP for particulate matter standards that allowed
states to rely on control measures that are already in effect as a
valid means to meet the contingency measure requirement. The EPA does
not currently plan to alter the agency's longstanding interpretation
outside of the Ninth Circuit, especially in light of a prior decision
from the U.S. Court of Appeals for the Fifth Circuit upholding that
interpretation. See Louisiana Envt'l Action Network v. EPA, 382 F.3d
575 (5th Cir. 2004) (LEAN); see also 40 CFR 56.5(b).
3. Comments and Responses
Comment: A commenter noted that the EPA acknowledges the Bahr v.
EPA decision, but declines to abide by it. The commenter asserts that
Bahr was properly decided, and the EPA must follow it with regards to
contingency measures required under CAA sections 172(c)(9), 182(c)(9)
and 182(e)(5).
Response: The appropriateness of relying on already-implemented
reductions to meet the contingency measures requirement has been
addressed in two federal circuit court decisions. See LEAN, 382 F.3d at
586; Bahr, 836 F.3d 1218. The EPA believes that the language of
sections 172(c)(9) and 182(c)(9) is ambiguous with respect to this
issue, and that it is reasonable for the agency to interpret the
statutory language to allow approval of already implemented measures as
contingency measures, so long as they meet other parameters such as
providing excess emissions reductions that the state has not relied
upon to make RFP or for attainment in the nonattainment plan for the
NAAQS at issue. Until the Bahr decision, under the EPA's longstanding
interpretation of CAA section 172(c)(9) and 182(c)(9), states could
rely on control measures that were already implemented (so called
``early triggered'' contingency measures) as a valid means to meet the
Act's contingency measures requirement. The Ninth Circuit decision in
Bahr has created a split among the federal circuit courts, with the
Fifth Circuit upholding the agency's interpretation of section
172(c)(9) to allow early triggered contingency measures and the Ninth
Circuit rejecting that interpretation.
States located in circuits other than the Ninth may elect to rely
on the EPA's longstanding interpretation of section 172(c)(9) allowing
early triggered measures to be approved as contingency measures, in
appropriate circumstances. The EPA's revised Regional Consistency
regulations pertaining to SIP provisions authorize the agency to follow
this interpretation of section 172(c)(9) in circuits other than the
Ninth. See 40 CFR part 56. To ensure that early triggered contingency
measures appropriately satisfy all other relevant CAA requirements, the
EPA will carefully review each such measure contained in an air
agency's submission, and intends to consult with air agencies
considering such measures early in the attainment plan development
process.
[[Page 63027]]
D. Background Ozone
With respect to the larger issue of background ozone (or U.S.
background (USB)), the EPA has solicited input from air agencies,
tribes and interested stakeholders on aspects of USB that are relevant
to attaining the 2015 ozone NAAQS in a manner consistent with the
provisions of the CAA.\63\ To establish a common understanding and
foundation for discussion, the EPA released a white paper titled,
``Implementation of the 2015 Primary Ozone NAAQS: Issues Associated
with Background Ozone'' in December 2015, and held a workshop in
February 2016 to discuss information in the white paper.\64\ Workshop
attendees included representatives of state, local and tribal air
agencies and other interested stakeholders. General concerns expressed
by attendees that commented were that the EPA is underestimating the
magnitude and effects of USB, that available policy solutions do not
provide meaningful relief from nonattainment designations in affected
areas, and that USB can make meeting nonattainment area requirements
unreasonably difficult or costly.\65\
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\63\ For purposes of NAAQS implementation, the EPA considers USB
to be any ozone formed from sources or processes other than U.S.
manmade emissions of NOX, VOCs, methane and CO.
\64\ The white paper and other workshop details are available
at: https://www.epa.gov/ozone-pollution/background-ozone-workshop-and-information.
\65\ A high-level summary of workshop feedback is available at:
https://www.epa.gov/sites/production/files/2016-03/documents/bgo3-high-level-summary.pdf. Additional written comments from interested
parties are located in a separate EPA docket available at http://www.regulations.gov (Docket ID No. EPA-HQ-OAR-2016-0097).
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The EPA continues to engage with stakeholders and the academic
community to refine and conduct national and global model simulations
to better characterize USB, and is actively evaluating the need for
further guidance and/or rules to address USB based on feedback received
and new understandings that may emerge from ongoing research and
analysis. In 2017 and 2018, the EPA activities include participation in
the Background Ozone Science Assessment organized by the Western States
Air Resources Council, the Western Regional Air Partnership and the
American Petroleum Institute,\66\ the United Nations' Hemispheric
Transport of Air Pollutants task force \67\ and the U.S. National Air
and Space Administration's Health and Air Quality Applied Sciences
Team.\68\ Each of these efforts includes workshops for stakeholders and
development of scientific products that inform the EPA's understanding
of USB. However, the EPA is not adopting requirements regarding
background ozone with this rulemaking.
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\66\ A summary of this Background Ozone Science Assessment
workshop is available at: https://www.wrapair2.org/pdf/BOSA_March_28-29_workshop_agenda.pdf. A related journal article is
currently undergoing peer review.
\67\ A work plan and list of publications is available on the
website: www.htap.org.
\68\ Details about these Health and Air Quality Applied Sciences
Team workshops and projects are available on the website: https://haqast.org.
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The EPA also in 2016 recently finalized revisions to the
Exceptional Events Rule to further facilitate review and approval of
exceptional events that contribute to USB, such as stratospheric ozone
intrusions and wildfires (81 FR 68216; October 3, 2016). Guidance is
currently available for demonstrations of exceptional events for high
wind dust, and the EPA finalized guidance for ozone associated with
wildfire events in September 2016.\69\ The EPA expects to make
available similar guidance for stratospheric ozone intrusions by the
end of 2018. However, the EPA is not revising the Exceptional Events
Rule or guidance with this rulemaking.
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\69\ Guidance documents and more information about exceptional
events can be found at: https://www.epa.gov/air-quality-analysis/exceptional-events-rule-and-guidance.
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E. Additional Policies and Programs for Achieving Emissions Reductions
1. Multi-Pollutant Planning
Increasingly, state air agencies are considering multi-pollutant
emission reduction strategies. States have expressed interest in a
number of those strategies, ranging from energy efficiency and
renewable energy (EE/RE) programs to land use planning and travel
efficiency programs. This section discusses EE/RE, and Sections E.2 and
E.3 that follow discuss the latter programs.
In recent years, states have expressed increased interest in EE/RE
programs when assessing compliance options for ozone RFP and attainment
demonstration SIPs. Many states are already implementing cost-effective
EE/RE requirements that reduce all types of power generation-related
emissions (including NAAQS-related air pollutants such as
NOX, PM2.5, and sulfur dioxide (SO2)
and other air pollutants, such as hazardous air pollutants).
Effectively assessing these approaches will require strong working
relationships between state energy and environmental officials. As
state public utility commissions (PUCs) and state energy offices
implement, increase the stringency of or adopt new EE/RE requirements,
their expertise can assist air agencies to incorporate the
NOX emission impacts into ozone RFP and attainment
demonstration SIPs.
States and other authorities have requested the EPA's assistance in
accounting for the emissions reductions achieved through EE/RE programs
in NAAQS SIPs and tribal implementation plans (TIPs), and the EPA has
responded to those requests by developing several resources, including
the ``Roadmap for Incorporating EE/RE Programs and Policies in NAAQS
SIPs/TIPs'' (released August 2012) \70\ and the AVoided Emissions
geneRation Tool (AVERT), a tool for quantifying NOX,
SO2 and CO2 avoided emissions (released February
2014).\71\ The Roadmap describes four pathways (baseline emissions
projection, control strategy, emerging/voluntary measures and weight of
evidence determination) by which EE/RE policies and programs could be
included in a SIP. Each pathway is appropriate in certain circumstances
(existing vs. new EE/RE, control vs. voluntary measures etc.) and the
Roadmap can help decision-makers consider their options as they decide
which pathway(s) to pursue for incorporating EE/RE policies and
programs into SIP/TIP demonstrations. The Roadmap's Appendix I also
presents several methods available for quantifying the avoided
NOX emissions from fossil fuel generation as a result of
electricity savings from EE/RE policy/program implementation.\72\
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\70\ Roadmap for Incorporating EE/RE Programs and Policies in
NAAQS SIPs/TIPs available at: https://www.epa.gov/sites/production/files/2016-05/documents/eeremanual_0.pdf.
\71\ AVERT available at: http://www3.epa.gov/avert/.
\72\Available at https://www.epa.gov/sites/production/files/2016-05/documents/appendixi_0.pdf.
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The EPA's tool, AVERT, can help planners in quantifying the
emissions reductions that result from EE/RE policies and programs.
AVERT outputs are readily available for Sparse Matrix Operator Kernel
Emissions formatting to incorporate the emission impacts into air
quality models.
The EPA recognizes that states may now have at their disposal other
quantification tools. An update of the ``Air Emissions Inventory
Guidance for Implementation of Ozone and Particulate Matter NAAQS and
Regional Haze Regulations'' (released July 2017) provides examples of
tools that states can use to quantify the power sector emissions and
EE/RE.\73\ In this guidance, the EPA does not limit the types of tools
states can use, so long as
[[Page 63028]]
states appropriately document their assumptions.
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\73\ Available at: https://www.epa.gov/air-emissions-inventories/air-emissions-inventory-guidance-implementation-ozone-and-particulate.
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State PUCs, primarily through their utilities, have in recent years
been rapidly increasing resources devoted to EE programs. In the 5
years spanning 2006 to 2011, budgets for EE programs more than tripled,
from $1.6 billion to $5.9 billion. Additionally, EE spending is
projected to continue to grow at a substantial rate.\74\ As of March
2015, 23 states have mandatory energy efficiency requirements, two
states have voluntary targets, and two states allow energy efficiency
as a compliance option for their renewable portfolio standard
(RPS).\75\
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\74\ American Council for an Energy-Efficient Economy (ACEEE)
2013 State Energy Efficiency Scorecard (November 2013), available
at: http://www.aceee.org/state-policy/scorecard/.
\75\ U.S. EPA 2015. Energy and Environmental Guide to Action,
Chapter 4 available at: https://www.epa.gov/statelocalenergy/energy-and-environment-guide-action-chapter-4-energy-efficiency-policies.
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Also, state-level RE requirements have been implemented in 29
states plus Washington, DC, representing all regions of the
country.\76\ Between the years 2020 and 2030, many state-level RPS
programs require electric utilities to serve from 15 to 40 percent of
their retail sales with renewable power.\77\
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\76\ RE requirements include Renewable Portfolio Standards or
state-enacted RE requirements on a Mega-Watt (MW) basis. Database of
State Incentives for Renewables and Efficiency, March 2013,
available at: http://www.dsireusa.org.
\77\ U.S. EPA. 2015 Energy and Environment Guide to Action,
Chapter 5 available at: https://www.epa.gov/statelocalenergy/energy-and-environment-guide-action-chapter-5-renewable-portfolio-standards.
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To further help states assess the effects of these programs, the
EPA developed a counterfactual EE/RE scenario for two areas that were
nonattainment for the 2008 ozone NAAQS, including the New York-New
Jersey-Connecticut area.\78\ In these illustrative examples the EPA
used AVERT to approximate the potential emissions that would have been
emitted into the atmosphere without current state-level EE/RE
requirements. For the New York-New Jersey-Connecticut area, the EPA
estimated that the current state-level RE requirements \79\ will avoid
over 24 tons per summer day of NOX in 2020, and the current
state-level EE programs \80\ will avoid nearly 17 tons per summer day
of NOX in 2020.\81\
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\78\ This area encompasses eight counties in New York, 12
counties in New Jersey and three counties in Connecticut. The EPA's
analysis is described in the Technical Support Document
``Demonstrating NOX Emission Reduction Benefits of State-
Level Renewable Energy and Energy Efficiency Policies,'' available
in the docket for this rulemaking.
\79\ The 2020 RE requirements in each state are different and
range from 20 percent to 30 percent.
\80\ The EE programs used in each state are different.
Connecticut's estimated annual efficiency savings is 2.8 percent,
New York's target was 15 percent savings from baseline by 2015 and
New Jersey incentivized efficiency improvements through a funding
program of $265 million in FY2014.
\81\ For context, the RFP plan for the New York-New Jersey-
Connecticut 1997 ozone NAAQS nonattainment area included a 2008
NOX emissions projection of 269 tons per summer day.
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2. Land Use Planning
Air agencies 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 U.S. Department of
Housing and Development-DOT-EPA Partnership for Sustainable
Communities, as well as the policy and technical guidance documents on
land use and related travel efficiency available on the EPA's Office of
Transportation and Air Quality website.\82\ These documents provide
communities with the information they need to better understand the
link between air quality, transportation and land use, and how certain
land use policies have the potential to help local areas achieve and
maintain healthy air quality. The documents also include methods to
help communities account for the air quality benefits of their local
land use in their air quality plans.
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\82\ See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm.
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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.
3. Travel Efficiency
Areas may also consider incorporating in their SIPs travel
efficiency strategies, such as new or expanded mass transit options,
commuter strategies, system operations (e.g., ramp metering), pricing
(e.g., parking fees, congestion pricing, roadway tolls), real-time
travel information and multimodal freight strategies. The EPA has
released several documents that could be useful to air agencies that
want to evaluate emissions reductions from travel efficiency
strategies. These documents provide information on analysis methods and
the potential effectiveness of different combinations of travel
efficiency measures for reducing emissions. Additionally, the EPA has
compiled a report about transportation control measures that have been
implemented across the country for a variety of purposes, including
reducing emissions related to criteria pollutants. All of these
documents are available on the EPA's Office of Transportation and Air
Quality website.\83\
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\83\ See https://www.epa.gov/state-and-local-transportation/policy-and-technical-guidance-state-and-local-transportation.
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F. Additional Requirements Related to Enforcement and Compliance
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 ``Guidance on Preparing Enforceable
Regulations and Compliance Programs for the 15 Percent Rate-of-Progress
Plans'' (EPA-452/R-93-005, June 1993) \84\ is still relevant to rules
adopted for SIPs under the 2015 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 propose, and is
not adopting, any additional specific regulatory provisions related to
compliance and enforcement for implementing the 2015 ozone NAAQS, and
received no adverse comments on the existing recommended approach and
related guidance.
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\84\ Available at: http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=00002TCM.txt.
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G. Applicability of Final Rule to Tribes
Section 301(d) of the CAA authorizes the EPA to approve eligible
Indian tribes to implement provisions of the CAA on Indian reservations
and other areas within the tribes' jurisdiction.\85\ The Tribal
Authority Rule (TAR) (40 CFR part 49.1-49.11), which implements CAA
section 301(d), sets forth the criteria and process for tribes to apply
to the EPA for eligibility to administer CAA programs (40 CFR 49.6,
49.7). As discussed in detail in the proposed 2008
[[Page 63029]]
Ozone NAAQS SIP Requirements Rule (78 FR 34209; June 6, 2013), tribes
are not required to submit TIPs under the TAR. However, should a tribe
choose to develop a TIP, this rule is intended to serve as a guide for
addressing key implementation issues for areas of Indian country,
particularly for any areas of Indian country that may be designated as
nonattainment areas separate from surrounding state areas.
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\85\ 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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It is important for state and local air agencies and tribes to work
together to coordinate planning efforts where nonattainment areas
include both Indian country and state land. States need to incorporate
Indian country emissions in their base emissions inventories if Indian
country is part of an attainment or nonattainment area. Tribes and
states should coordinate their planning activities as appropriate to
ensure that neither is adversely affecting attainment of the NAAQS in
the area as a whole. Coordinated planning in these areas will help
ensure that the planning decisions made by the state and local air
agencies and tribes complement each other and that the nonattainment
area makes reasonable progress toward attainment and ultimately attains
the 2015 ozone NAAQS. In reviewing and approving individual TIPs and
SIPs, we will determine if together they are consistent with the
overall air quality needs of an area.
States have an obligation to notify other states in advance of any
public hearing(s) on their state plans if such plans will significantly
impact such other states. 40 CFR 51.102(d)(5). Under CAA section 301(d)
and the TAR, tribes may become eligible to be treated in a manner
similar to states (TAS) for this purpose (40 CFR 49.6-49.9). Affected
states and tribes with approved TAS must also be informed of the
contents of such state plans and given access to the documentation
supporting these plans. In addition to this mandated process, we
encourage states to extend the same notice to all affected tribes,
regardless of their TAS status.
Executive Orders and the EPA's Indian policies generally call for
the EPA to coordinate and consult with tribes on matters that affect
tribes. Executive Order 13175, titled, ``Consultation and Coordination
with Indian Tribal Governments'' requires the EPA to develop a process
to ensure ``meaningful and timely input by tribal officials in the
development of regulatory policies that have Tribal implications.'' In
addition, the EPA's policies include the agency's 1984 Indian Policy
relating to Indian tribes and implementation of federal environmental
programs, the February 2014 ``OAR Handbook for Interacting with Tribal
Governments'' and the ``EPA Policy on Consultation and Coordination
with Indian Tribes.'' \86\ Consistent with these policies, the EPA
intends to meet with tribes on activities potentially affecting the
attainment and maintenance of the 2015 ozone NAAQS in Indian country,
including our actions on SIPs. As such, it would be helpful for states
to work with tribes whose land that is part of the same general air
quality area during the SIP development process and to coordinate with
tribes as they develop their SIPs, regardless of whether the tribe's
area of Indian country is separately designated.
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\86\ Tribal guidance documents are available at: https://www.epa.gov/sites/production/files/2018-01/documents/oar_handbook_updated_1.24.18_.pdf and http://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
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VI. Environmental Justice Considerations
The EPA believes this action does not have disproportionately high
and adverse human health or environmental effects on minority, low-
income or indigenous populations because it does not negatively affect
the level of protection provided to human health or the environment
under the 2015 ozone NAAQS, which are set at levels to protect
sensitive populations with an adequate margin of safety.\87\ These
regulations help clarify the SIP requirements and the NNSR permitting
requirements to be met by air agencies in order to attain the 2015
ozone NAAQS as expeditiously as practicable. These requirements are
designed to protect all segments of the general population and do not
adversely affect the health or safety of minority, low-income or
indigenous populations.
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\87\ The EPA conducted a regulatory impact analysis (RIA) of its
final action establishing the 2015 ozone NAAQS. The demographic
analysis conducted as part of the RIA found that in areas with poor
air quality relative to the revised standards, the representation of
minority populations was slightly greater than in the U.S. as a
whole (see Chapter 9, section 9.10 and Appendix 9A of the RIA).
Because the air quality in these areas does not currently meet the
revised standards, populations in these areas would be expected to
benefit from implementation of the strengthened standards. The RIA
is available at https://www3.epa.gov/ttn/ecas/docs/20151001ria.pdf
and in the RIA docket (EPA-HQ-OAR-2013-0169).
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Comment: One commenter on the proposed rulemaking stated that the
implementation rule must identify specific measures directed to
minority, low-income and/or indigenous people. The commenter noted that
the EPA identified such measures in the PM2.5 SIP
Requirement Rule. The commenter requests that the EPA require states to
utilize specific measures when developing attainment plans, updating
yearly monitoring plans and initiating the permitting process for
overburdened communities.
Response: The EPA is not making any changes to its proposed
approach in response to the commenter's request that the EPA require
states to utilize specific measures directed to minority, low-income
and indigenous people to help address ground-level ozone. In the CAA's
framework of cooperative federalism, states are primarily responsible
for developing plans for achieving NAAQS in areas within their
jurisdiction, based on planning rules and guidance promulgated by the
EPA. These planning requirements include (but are not limited to)
provisions for implementing emissions controls, tracking progress
toward attainment and monitoring and reporting air quality data, with
the overarching goal of attaining and maintaining the NAAQS as
expeditiously as practical, but no later than the CAA's maximum
attainment date. In the PM2.5 SIP Requirements Rule, the EPA
encouraged states to consider various tools to help users identify
areas with minority and/or low-income populations, potential
environmental quality issues, a combination of environmental and
demographic indicators that is greater than usual and other factors
that may be of interest. The EPA included these tools in the
PM2.5 SIP Requirements Rule because areas designated
nonattainment for the PM2.5 standards can contain sources of
directly emitted pollutants that can have adverse impacts on a local
neighborhood scale. By contrast, elevated levels of ambient ozone are
the result of secondary urban-scale atmospheric formation involving
emissions from ubiquitous sources of ozone precursors (VOC and
NOX) including motor vehicles, large and small industrial
processes and consumer products which result in more regional scale
impacts further down wind. The EPA encourages states to work with
communities to develop ozone-related control strategies that most
effectively reduce emissions that contribute to elevated ozone levels.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
[[Page 63030]]
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. Any changes
made in response to OMB recommendations have been documented in the
docket.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not subject to Executive Order 13771 because this
final rule is expected to result in no more than de minimis costs.
C. Paperwork Reduction Act (PRA)
The information collection activities in this final rule have been
submitted for approval to OMB under the PRA. The ICR document that the
EPA prepared has been assigned the EPA ICR No. 2347.03 and OMB
Reference No. 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 these implementing regulations for the 2015
ozone NAAQS so that air agencies will know what CAA requirements apply
to their nonattainment areas when the air agencies develop their SIPs
or SIP revisions for attaining and maintaining the NAAQS. The intended
effect of these implementing regulations is to provide certainty to air
agencies regarding their planning obligations. For purposes of analysis
of the estimated paperwork burden,\88\ the EPA assumed 57 nonattainment
areas,\89\ some of which must prepare an attainment demonstration as
well as submit an RFP and RACT SIP. The attainment demonstration
requirement appears in 40 CFR 51.1308, which implements CAA subsections
172(c)(1), 182(b)(1)(A) and 182(c)(2)(B). The RFP SIP submission
requirement appears in 40 CFR 51.1310, and the RACT SIP submission
requirement appears in 40 CFR 51.1312, which implements CAA subsections
172(c)(1) and 182(b)(2), (c), (d), and (e).
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\88\ Burden is defined at 5 CFR 1320.3(b).
\89\ The EPA developed a hypothetical list of nonattainment
areas for estimating the burden for states to meet their 2015 ozone
nonattainment area requirements. The hypothetical nonattainment
areas were based on the preliminary 2013-2015 air quality data
available. The hypothetical nonattainment areas include multiple
counties for most areas based on the existing 2008 and 1997 8-hour
ozone nonattainment areas, Combined Statistical Area, or Core Based
Statistical Area boundary associated with a violating monitor. Note
that these areas are used for analytical purposes only. Actual
nonattainment areas and boundaries are determined through the
designations process.
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Air agencies with areas that have been previously designated
nonattainment should already have information from many emission
sources, as facilities should have provided this information to meet 1-
hour, 1997 and/or 2008 ozone NAAQS SIP requirements, operating permit
program requirements and/or emissions reporting requirements.
The annual burden for information collection averaged over the
first 3 years of the ICR is estimated to be a total of 41,800 labor
hours per year at an annual labor cost of $2.5 million (present value)
or approximately $107,000 per state for the estimated 23 state air
agency respondents. The ICR Supporting Statement for the 2015 8-hour
Ozone NAAQS Implementation Rule, EPA ICR No. 2347.03, provided in the
docket, provides the details for the 23 state air agencies that would
be required to provide the estimated 66 SIP revisions for the 57
hypothetical areas designated nonattainment for the 2015 ozone
standard. The average annual reporting burden is 633 hours per
response, with approximately 2.87 responses per state for 66 state
responses from the state air agencies. There are no capital or
operating and maintenance costs associated with the proposed rulemaking
requirements.
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.
D. 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 and local
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.
E. 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 imposes no enforceable duty on any state,
local or tribal governments or the private sector. The CAA imposes the
obligation for states to submit attainment plans to implement the ozone
NAAQS. In this rule, the EPA is clarifying those requirements.
Therefore, this action is not subject to the requirements of sections
202, 203 and 205 of the UMRA.
F. 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.
G. 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 is required 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 tribes. The CAA and
the TAR 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 there were no substantial direct impacts on tribes,
consistent with the February 2014 ``OAR Handbook for Interacting with
Tribal Governments,'' and the ``EPA Policy on Consultation and
Coordination with Indian Tribes.'' the EPA briefed tribal officials
during the development of this action.
H. 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
[[Page 63031]]
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 implements a previously promulgated health or safety-
based federal standard established pursuant to the CAA.
I. 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.
J. National Technology Transfer and Advancement Act (NTTA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous populations as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in Section VI of this
preamble.
L. 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).
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.''
The EPA is determining that this rule for the 2015 ozone NAAQS SIP
requirements is ``nationally applicable'' within the meaning of CAA
section 307(b)(1). First, the rulemaking addresses implementation of
the NAAQS that applies to all states and territories in the U.S.
Second, the rulemaking addresses planning requirements for potential
nonattainment areas in states across the U.S. that are located in
various EPA regions and numerous federal circuits. Third, the
rulemaking addresses a common core of knowledge and analysis involved
in formulating the decisions and a common interpretation of the
requirements of the CAA being applied to potential nonattainment areas
in states across the country. Courts have found similar implementation
rulemaking actions to be nationally applicable.\90\
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\90\ See, e.g., Texas v. EPA, 2011 U.S. App. LEXIS 5654 (5th
Cir. 2011) (finding SIP call to 13 states to be nationally
applicable 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)).
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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 February 4, 2019. 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 to
enforce these requirements.
VIII. 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 in 40 CFR Part 51
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Particulate matter, Transportation,
Volatile organic compounds.
Dated: November 7, 2018.
Andrew R. Wheeler,
Acting Administrator.
For the reasons stated in the preamble, Title 40, Chapter I of the
Code of Federal Regulations is amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
0
2. In Appendix A to subpart A of part 51: revise Table 1 to read as
follows:
Appendix A to Subpart A of Part 51--Tables
Table 1 to Appendix A of Subpart A--Emission Thresholds \1\ by Pollutant for Treatment as Point Source Under 40
CFR 51.30
----------------------------------------------------------------------------------------------------------------
Every-year Triennial
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Pollutant Type A sources
\2\ Type B sources NAA sources \3\
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(1) SO2................................. >=2500 >=100..................... >=100.
.............. .......................... PM2.5 (Serious) >=70.
(2) VOC................................. >=250 >=100..................... >=100.
.............. within OTR \4\ >=50....... within OTR >=50.
.............. .......................... O3 (Serious) >=50.
.............. .......................... O3 (Severe) >=25.
.............. .......................... O3 (Extreme) >=10.
.............. .......................... PM2.5 (Serious) >=70.
[[Page 63032]]
(3) NOX................................. >=2500 >=100..................... >=100.
.............. .......................... O3 (Serious) >=50.
.............. .......................... O3 (Severe) >=25.
.............. .......................... O3 (Extreme) >=10.
.............. .......................... PM2.5 (Serious) >=70.
(4) CO.................................. >=2500 >=1000.................... >=1000.
.............. .......................... CO (all areas) >=100.
(5) Lead................................ .............. >=0.5 (actual)............ >=0.5 (actual).
(6) Primary PM10........................ >=250 >=100..................... >=100.
.............. .......................... PM10 (Serious) >=70.
(7) Primary PM2.5....................... >=250 >=100..................... >=100.
.............. .......................... PM2.5 (Serious) >=70.
(8) NH3................................. >=250 >=100..................... >=100.
.............. .......................... PM2.5 (Serious) >=70.
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\1\ Thresholds for point source determination shown in tons per year of potential to emit as defined in 40 CFR
part 70, with the exception of lead. Reported emissions should be in actual tons emitted for the required time
period.
\2\ Type A sources are a subset of the Type B sources and are the larger emitting sources by pollutant.
\3\ NAA = Nonattainment Area. The point source reporting thresholds vary by attainment status for SO2, VOC, NOX,
CO, PM10, PM2.5, and NH3.
\4\ OTR = Ozone Transport Region (see 40 CFR 51.1300(k)).
* * * * *
0
3. In Sec. 51.165, revise paragraph (a)(11) to read as follows:
Sec. 51.165 Permit requirements.
(a) * * *
(11) Interpollutant offsetting, or interpollutant trading or
interprecursor trading or interprecursor offset substitution--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. (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, where appropriate, by offsetting reductions of
actual emissions of either of those precursors, if all other
requirements contained in this section for such offsets are also
satisfied.
(A) The plan shall indicate whether such precursor substitutions
for ozone precursors are to be based on an area-specific default ratio
(default ratio) for the applicable ozone nonattainment area,
established in regulations as part of the approved plan, or default IPT
ratios for an applicable ozone nonattainment area established in
advance by an air agency that are presumed to be appropriate for each
permit application in the area, absent contrary information in the
record of an individual permit application, or case-specific ratios
established for individual permits.
(B)(1) Where a state seeks to use a default IPT ratio that is not
part of the approved plan, the plan shall include the following to
authorize the development of a default ratio for a particular ozone
nonattainment area, including a revised default ratio resulting from
the periodic review required under paragraph (a)(11)(i)(B)(2) of this
section:
(i) A description of the model(s) that will be used to develop any
default ratio;
(ii) A description of the approach that will be used to analyze
modeling data, ambient monitoring data, and emission inventory data to
determine the sensitivity of an area to emissions of ozone precursors
in the formation of ground-level ozone; and
(iii) A description of the modeling demonstration that will be used
to show that the default ratio provides an equivalent or greater air
quality benefit with respect to ground level concentrations in the
ozone nonattainment area than an offset of the emitted precursor would
achieve.
(2) The plan shall require that for any default ratio for ozone,
the reviewing authority shall evaluate that ratio at least every 5
years to determine whether current conditions support the continued use
of such ratio.
(C) The plan shall require that, for any case-specific permit ratio
for ozone proposed by a permit applicant to be used for a particular
permit, the following information shall be submitted to the reviewing
authority to support approval of the ratio:
(1) The description of the air quality model(s) used to propose a
case-specific ratio; and
(2) the proposed ratio for the precursor substitution and
accompanying calculations; and
(3) a modeling demonstration showing that such ratio(s) as applied
to the proposed project and credit source will provide an equivalent or
greater air quality benefit with respect to ground level concentrations
in the ozone nonattainment area than an offset of the emitted precursor
would achieve.
(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.
* * * * *
0
4. In Sec. 51.1300 add paragraphs (f) through (q) to read as follows:
Sec. 51.1300 Definitions.
* * * * *
(f) 2008 ozone NAAQS means the 2008 8-hour primary and secondary
ozone NAAQS codified at 40 CFR 50.15.
(g) Attainment year ozone season shall mean the ozone season
[[Page 63033]]
immediately preceding a nonattainment area's maximum attainment date.
(h) Initially designated means the first designation that becomes
effective for an area for a specific NAAQS and does not include a
redesignation to attainment or nonattainment for that specific NAAQS.
(i) Nitrogen Oxides (NOX) means the sum of nitric oxide
and nitrogen dioxide in the flue gas or emission point, collectively
expressed as nitrogen dioxide.
(j) Ozone season means for each state (or portion of a state), the
ozone monitoring season as defined in 40 CFR part 58, appendix D,
section 4.1(i) for that state (or portion of a state).
(k) 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.
(l) Reasonable further progress (RFP) means the emissions
reductions required under CAA sections 172(c)(2), 182(c)(2)(B),
182(c)(2)(C), and Sec. 51.1310. The EPA interprets RFP under CAA
section 172(c)(2) to be an average 3 percent per year emissions
reduction of either VOC or NOX.
(m) Rate-of-progress (ROP) means the 15 percent progress reductions
in VOC emissions over the first 6 years after the baseline year
required under CAA section 182(b)(1).
(n) 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.
(o) Current ozone NAAQS means the most recently promulgated ozone
NAAQS at the time of application of any provision of this subpart.
(p) 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).
(q) 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
5. Adding Sec. Sec. 51.1304 through 51.1319 to subpart CC to read as
follows:
Sec.
Subpart CC--Provisions for Implementation of the 2015 Ozone National
Ambient Air Quality Standards
* * * * *
51.1304-51.1305 [Reserved]
51.1306 Redesignation to nonattainment following initial
designations.
51.1307 Determining eligibility for 1-year attainment date
extensions for an 8-hour ozone NAAQS under CAA section 181(a)(5).
51.1308 Modeling and attainment demonstration requirements.
51.1309 [Reserved]
51.1310 Requirements for reasonable further progress (RFP).
51.1311 [Reserved]
51.1312 Requirements for reasonably available control technology
(RACT) and reasonably available control measures (RACM).
51.1313 Section 182(f) NOX exemption provisions.
51.1314 New source review requirements.
51.1315 Emissions inventory requirements.
51.1316 Requirements for an Ozone Transport Region.
51.1317 Fee programs for Severe and Extreme nonattainment areas that
fail to attain.
51.1318 Suspension of SIP planning requirements in nonattainment
areas that have air quality data that meet an ozone NAAQS.
51.1319 [Reserved]
Subpart CC--Provisions for Implementation of the 2015 Ozone
National Ambient Air Quality Standards
* * * * *
Sec. Sec. 51.1304-51.1305 [Reserved]
Sec. 51.1306 Redesignation to nonattainment following initial
designations.
For any area that is initially designated attainment for the 2015
ozone NAAQS and that is subsequently redesignated to nonattainment for
the 2015 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 2015 ozone NAAQS and
the effective date of the 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. 51.1303.
Sec. 51.1307 Determining eligibility for 1-year attainment date
extensions for an 8-hour 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 no greater than the
level of that NAAQS.
(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 no greater than the level of that
NAAQS.
(b) For purposes of paragraph (a)(1) 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.
(c) For purposes of paragraph (a)(2) of this section, the area's
4th highest daily maximum 8-hour value, averaged over both the original
attainment year and the first extension year, shall be from the monitor
in each year with the highest 4th highest daily maximum 8-hour average
of all monitors that represent that area.
Sec. 51.1308 Modeling and attainment demonstration requirements.
(a) An area classified Moderate under Sec. 51.1303(a) shall submit
an attainment demonstration that provides for such specific reductions
in emissions of VOCs and NOX as necessary to attain the
primary NAAQS by the applicable attainment date, and such demonstration
is due no later than 36 months after the effective date of the area's
designation for the 2015 ozone NAAQS.
(b) An area classified Serious or higher under Sec. 51.1303(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 2015 ozone NAAQS.
(c) An attainment demonstration due pursuant to paragraph (a) or
(b) of this section must meet the requirements of Appendix W of this
part and shall include inventory data, modeling results, and emission
reduction analyses on which the state has based its projected
attainment date; 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
for which an attainment demonstration is required pursuant to paragraph
(a) or (b) of this section, the state must provide for implementation
of all
[[Page 63034]]
control measures needed for attainment as expeditiously as practicable.
All control measures in the attainment plan and demonstration must be
implemented no later than the beginning of the attainment year ozone
season, notwithstanding any alternate RACT and/or RACM implementation
deadline requirements in Sec. 51.1312.
Sec. 51.1309 [Reserved]
Sec. 51.1310 Requirements for reasonable further progress (RFP).
(a) RFP for nonattainment areas classified pursuant to Sec.
51.1303. The RFP requirements specified in CAA section 182 for that
area's classification shall apply.
(1) Submission deadline. For each area classified Moderate or
higher pursuant to Sec. 51.1303, the state shall submit a SIP revision
no later than 36 months after the effective date of designation as
nonattainment for the 2015 ozone NAAQS that provides for RFP as
described in paragraphs (a)(2) through (4) of this section.
(2) RFP requirements for areas with an approved prior ozone NAAQS
15 percent VOC ROP plan. An area classified Moderate or higher that has
the same boundaries as an area, or is entirely composed of several
areas or portions of areas, for which the EPA fully approved a 15
percent plan for a prior ozone NAAQS is considered to have met the
requirements of CAA section 182(b)(1) for the 2015 ozone NAAQS and
instead:
(i) If classified Moderate, 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; and
(B) Relies on either NOX or VOC emissions reductions (or
a combination) to meet the requirements of paragraph (a)(2)(i)(A) of
this section. Use of NOX emissions reductions must meet the
criteria in CAA section 182(c)(2)(C).
(ii) If classified Serious or higher, the area is subject to RFP
under CAA sections 172(c)(2) and 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 the first 6-year period after the baseline year and all
remaining 3-year periods 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
(a)(2)(ii)(A). 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 a prior ozone NAAQS exists for only a portion of the area.
An area that contains one or more portions for which the EPA fully
approved a 15 percent VOC ROP plan for a prior ozone NAAQS (as well as
portions for which the EPA has not fully approved a 15 percent plan for
a prior 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 paragraph
(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 a prior 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 a prior 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 prior 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 each area classified 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 51.1310(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 purposes
of meeting the RFP requirements in Sec. 51.1310, in addition to the
restrictions on the creditability of emission control measures listed
in Sec. 51.1310(a)(5), creditable emission reductions for fixed
percentage reduction RFP must be obtained from emissions sources
located 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 as
nonattainment for an 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 the EPA
under the provisions of subpart A of this part. States may use an
alternative baseline emissions inventory provided that the year
selected corresponds with the year of the effective date of designation
as nonattainment for that NAAQS. All states associated with a multi-
state nonattainment area must consult and agree on using the
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. 51.1300(q).
(c) Milestones--(1) Applicable milestones. Consistent with CAA
section 182(g)(1) for each area classified Serious or higher, the state
shall determine at specified intervals whether each area has achieved
the reduction in emissions required under paragraphs (a)(2) through (4)
of this section. The initial determination shall occur 6 years after
the baseline year, and at intervals of every 3 years thereafter. The
reduction in emissions required by the end of each interval shall be
the applicable milestone.
(2) Milestone compliance demonstrations. For each area subject to
the milestone requirements under paragraph (c)(1) of this section, not
later than 90 days after the date on which an applicable milestone
occurs (not including an attainment date on which
[[Page 63035]]
a milestone occurs in cases where the ozone standards have been
attained), each state in which all or part of such area is located
shall submit to the Administrator a demonstration that the milestone
has been met. The demonstration under this paragraph must provide for
objective evaluation of RFP toward timely attainment of the ozone NAAQS
in the area, and may take the form of:
(i) Such information and analysis as needed to quantify the actual
reduction in emissions achieved in the time interval preceding the
applicable milestone; or
(ii) Such information and analysis as needed to demonstrate
progress achieved in implementing the approved SIP control measures,
including RACM and RACT, corresponding with the reduction in emissions
achieved in the time interval preceding the applicable milestone.
Sec. 51.1311 [Reserved]
Sec. 51.1312 Requirements for reasonably available control technology
(RACT) and reasonably available control measures (RACM).
(a) RACT requirement for areas classified pursuant to Sec.
51.1303. (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) SIP submission deadline. (i) For a RACT SIP required pursuant
to initial nonattainment area designations, the state shall submit the
RACT SIP for each area no later than 24 months after the effective date
of designation for a specific ozone NAAQS.
(ii) For a RACT SIP required pursuant to reclassification, the SIP
revision deadline is either 24 months from the effective date of
reclassification, or the deadline established by the Administrator in
the reclassification action.
(iii) For a RACT SIP required pursuant to the issuance of a new
Control Techniques Guideline (CTG) under CAA section 183, the SIP
revision deadline is either 24 months from the date of CTG issuance, or
the deadline established by the Administrator in the action issuing the
CTG.
(3) RACT implementation deadline. (i) For RACT required pursuant to
initial nonattainment area designations, the state shall provide for
implementation of such RACT as expeditiously as practicable, but no
later than January 1 of the fifth year after the effective date of
designation.
(ii) For RACT required pursuant to reclassification, the state
shall provide for implementation of such RACT as expeditiously as
practicable, but no later than the start of the attainment year ozone
season associated with the area's new attainment deadline, or January 1
of the third year after the associated SIP revision submittal deadline,
whichever is earlier; or the deadline established by the Administrator
in the final action issuing the area reclassification.
(iii) For RACT required pursuant to issuance of a new CTG under CAA
section 183, the state shall provide for implementation of such RACT as
expeditiously as practicable, but either no later than January 1 of the
third year after the associated SIP submission deadline or the deadline
established by the Administrator in the final action issuing the CTG.
(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) RACM requirements. For each nonattainment area required to
submit an attainment demonstration under Sec. 51.1308(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. The SIP revision shall include, as applicable, other
control measures on sources of emissions of ozone precursors located
outside the nonattainment area, or portion thereof, located within the
state if doing so is necessary or appropriate to provide for attainment
of the applicable ozone NAAQS in such area by the applicable attainment
date.
Sec. 51.1313 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 a specific 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 a
prior ozone NAAQS does not relieve the area from any NOX
obligations under CAA section 182(f) for a current ozone NAAQS.
Sec. 51.1314 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 a specific ozone
NAAQS no later than 36 months after the effective date of the area's
designation of nonattainment or redesignation to nonattainment for that
ozone NAAQS.
Sec. 51.1315 Emissions inventory requirements.
(a) For each nonattainment area, the state shall submit a base year
inventory as defined by Sec. 51.1300(p) 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. 51.1310(b).
(b) For each nonattainment area, the state shall submit a periodic
emissions 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. 51.1300(q).
(d) In the inventories required by paragraphs (a) and (b) of this
section, the state shall report emissions from point sources according
to the point source emissions thresholds of the Air Emissions Reporting
Requirements, 40 CFR part 51, subpart A.
(e) The data elements in the emissions inventories required by
paragraphs (a) and (b) of this section 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. 51.1300(q), 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.
[[Page 63036]]
Sec. 51.1316 Requirements for an Ozone Transport Region.
(a) In general. CAA sections 176A and 184 apply for purposes of the
2015 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) for all portions of the state
located in an ozone transport region.
(2) SIP submission deadline. (i) For a RACT SIP required pursuant
to initial nonattainment area designations, the state shall submit the
RACT SIP revision no later than 24 months after the effective date of
designation for a specific ozone NAAQS.
(ii) For a RACT SIP required pursuant to reclassification, the SIP
revision deadline is either 24 months from the effective date of
reclassification, or the deadline established by the Administrator in
the reclassification action.
(iii) For a RACT SIP required pursuant to the issuance of a new CTG
under CAA section 183, the SIP revision deadline is either 24 months
from the date of CTG issuance, or the deadline established by the
Administrator in the action issuing the CTG.
(3) RACT implementation deadline. (i) For RACT required pursuant to
initial nonattainment area designations, the state shall provide for
implementation of RACT as expeditiously as practicable, but no later
than January 1 of the fifth year after the effective date of
designation.
(ii) For RACT required pursuant to reclassification, the state
shall provide for implementation of such RACT as expeditiously as
practicable, but no later than the start of the attainment year ozone
season associated with the area's new attainment deadline, or January 1
of the third year after the associated SIP revision submittal deadline,
whichever is earlier; or the deadline established by the Administrator
in the final action issuing the area reclassification.
(iii) For RACT required pursuant to issuance of a new CTG under CAA
section 183, the state shall provide for implementation of such RACT as
expeditiously as practicable, but either no later than January 1 of the
third year after the associated SIP submission deadline or the deadline
established by the Administrator in the final action issuing the CTG.
Sec. 51.1317 Fee programs for Severe and Extreme nonattainment areas
that fail to attain.
For each area classified Severe or Extreme for a specific ozone
NAAQS, the state shall submit a SIP revision within 10 years of the
effective date of designation for that ozone NAAQS that meets the
requirements of CAA section 185.
Sec. 51.1318 Suspension of SIP planning requirements in nonattainment
areas that have air quality data that meet an ozone NAAQS.
Upon a determination by the EPA that an area designated
nonattainment for a specific ozone NAAQS has attained that NAAQS, the
requirements for such area to submit attainment demonstrations and
associated RACM, RFP plans, contingency measures for failure to attain
or make reasonable progress, and other planning SIPs related to
attainment of the ozone NAAQS for which the determination has been
made, shall be suspended until such time as: The area is redesignated
to attainment for that NAAQS, at which time the requirements no longer
apply; or the EPA determines that the area has violated that NAAQS, at
which time the area is again required to submit such plans.
Sec. 51.1319 [Reserved]
0
6. In appendix S to part 51, revise paragraphs IV.G.5. introductory,
and IV.G.5(i) and remove and reserve section VII.
The revisions read as follows:
Appendix S to Part 51--Emission Offset Interpretative Ruling
* * * * *
IV. * * *
G. * * *
5. Interpollutant offsetting, or interpollutant trading or
interprecursor trading or interprecursor offset substitution. 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 nonattainment NSR pollutant unless
interprecursor offsetting is permitted for a particular pollutant as
specified in this paragraph IV.G.5 and the reviewing authority
chooses to review such trading on a case by case basis as described
in this section.
(i) A reviewing authority may choose to satisfy the offset
requirements of paragraph IV.A, Condition 3 of this Ruling for
emissions of the ozone precursors NOX and VOC by
offsetting reductions of emissions of either precursor, if all other
requirements contained in this Ruling for such offsets are also
satisfied. For a specific permit application, if the implementation
of IPT is acceptable by the reviewing authority, the permit
applicant shall submit to the reviewing authority for approval a
case-specific permit IPT ratio for determining the required amount
of emissions reductions to offset the proposed emissions increase
when considered along with the applicable offset ratio as specified
in paragraphs IV.G.2 through 4 of this Ruling. As part of the ratio
submittal, the applicant shall submit the proposed permit-specific
ozone IPT ratio to the reviewing authority, accompanied by the
following information:
(a) A description of the air quality model(s) that were used to
propose a case-specific ratio; and
(b) The proposed ratio for the precursor substitution and
accompanying calculations; and
(c) A modeling demonstration showing that such ratio(s) as
applied to the proposed project and credit source will provide an
equivalent or greater air quality benefit with respect to ground
level concentrations in the ozone nonattainment area than an offset
of the emitted precursor would achieve.
* * * * *
[FR Doc. 2018-25424 Filed 12-4-18; 8:45 am]
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