[Federal Register Volume 78, Number 109 (Thursday, June 6, 2013)]
[Proposed Rules]
[Pages 34177-34239]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13233]



[[Page 34177]]

Vol. 78

Thursday,

No. 109

June 6, 2013

Part II





Environmental Protection Agency





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40 CFR Parts 50, 51, 70 et al.





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

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

[[Page 34178]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51, 70 and 71

[EPA-HQ-OAR-2010-0885, FRL-9810-3]
RIN 2060-AR34


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing a rule for implementing the 2008 ozone 
national ambient air quality standards (NAAQS) (the ``2008 ozone 
NAAQS'') that were promulgated on March 12, 2008. This proposed rule 
addresses a range of state implementation plan requirements for the 
2008 ozone NAAQS, including requirements pertaining to attainment 
demonstrations, reasonable further progress (RFP), reasonably available 
control technology (RACT), reasonably available control measures 
(RACM), new source review (NSR) requirements in nonattainment areas, 
emission inventories, and the timing of state implementation plan (SIP) 
submissions and of compliance with emission control measures in the 
SIP. Other issues also addressed in this proposed rule are the 
revocation of the 1997 ozone NAAQS and anti-backsliding requirements 
that would apply when the 1997 ozone NAAQS is revoked.

DATES: Comments. Comments must be received on or before August 5, 2013. 
Public Hearings. The EPA plans to hold one public hearing concerning 
the proposed rule in Washington, DC. The date, time and location will 
be announced separately. Please refer to SUPPLEMENTARY INFORMATION for 
additional information on the comment period and the public hearings. 
Information Collection Request. Under the Paperwork Reduction Act 
(PRA), comments on the information collection provisions must be 
received by the Office of Management and Budget (OMB) on or before July 
8, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0885, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: a-and-r-docket@epa.gov.
     Mail: Air and Radiation Docket and Information Center, 
Attention Docket ID No. EPA-HQ-OAR-2010-0885, Environmental Protection 
Agency, 1301 Constitution Ave. NW., Washington, DC 20460. Mail Code: 
2822T. Please include two copies if possible. In addition, please mail 
a copy of your comments on the information collection provisions to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, 
DC 20503.
     Hand Delivery: Air and Radiation Docket and Information 
Center, Attention Docket ID No. EPA-HQ-OAR-2010-0885, Environmental 
Protection Agency in the EPA Headquarters Library, Room Number 3334 in 
the EPA West Building, located at 1301 Constitution Ave. NW., 
Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. 
to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, Air 
and Radiation Docket and Information Center.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0885. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
on-line at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any CD you 
submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters and any form of encryption and be free of any 
defects or viruses. For additional information about the EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in 
www.regulations.gov. Although listed in the index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in www.regulations.gov or in hard copy 
at the Air and Radiation Docket and Information Center in the EPA 
Headquarters Library, Room Number 3334 in the EPA West Building, 
located at 1301 Constitution Ave. NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rulemaking, contact Dr. Karl Pepple, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, by phone 
at (919) 54l-2683, or by email at pepple.karl@epa.gov; or Mr. Butch 
Stackhouse, Office of Air Quality Planning and Standards, U.S. 
Environmental Protection Agency, phone number (919) 54l-5208, or by 
email at stackhouse.butch@epa.gov. For information on the public 
hearings, contact Ms. Pamela S. Long at (919) 541-0641 or by email at 
long.pam@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this proposal include 
state, local and tribal governments. Entities potentially affected 
indirectly by this proposal include owners and operators of sources of 
emissions (volatile organic compounds (VOCs) and nitrogen oxides 
(NOX)) that contribute to ground-level ozone formation.

B. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit CBI information to the EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information on a disk or 
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM 
as CBI and then

[[Page 34179]]

identify electronically within the disk or CD ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed to be CBI must be 
submitted for inclusion in the public docket. Information marked CBI 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

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 notice will be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl.

D. What information should I know about possible public hearings?

    The EPA intends to hold one public hearing on this proposal. 
Further details concerning the public hearing for this proposed rule 
will be published in a separate Federal Register notice. For updates 
and additional information on the public hearings, please check the 
EPA's Web site for this rulemaking at http://www.epa.gov/air/ozonepollution/actions.html#impl.

E. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. What information should I know about possible public 
hearings?
    E. How is this notice organized?
II. Background for Proposal
    A. The 2008 Ozone NAAQS
    B. The Challenge of Ozone Implementation
    C. History of Implementation Rules for the 1997 Ozone NAAQS
    D. Section 110 SIP Requirements
    E. Part D Nonattainment Area SIP Requirements
III. What are the state implementation plan requirements for the 
2008 ozone NAAQS?
    A. What is the deadline for submitting nonattainment area SIP 
elements due under Clean Air Act (CAA or Act) section 182 for the 
2008 ozone NAAQS?
    B. What are the requirements for modeling and attainment 
demonstration SIPs?
    C. What are the RFP requirements for the 2008 ozone NAAQS?
    D. How do RACT and RACM requirements apply for 2008 ozone NAAQS 
nonattainment areas?
    E. Does the 2008 ozone NAAQS result in any new inspection and 
maintenance (I/M) programs?
    F. How does transportation conformity apply to the 2008 ozone 
NAAQS?
    G. What requirements for general conformity apply to the 2008 
ozone NAAQS?
    H. What are the requirements for contingency measures in the 
event of failure to meet a milestone or to attain?
    I. How do the NSR requirements apply for the 2008 ozone NAAQS?
    J. What are the emission inventory and emission statement 
requirements?
    K. What are the ambient monitoring requirements?
    L. How can states qualify for a 1-year attainment deadline 
extension?
    M. How will the EPA address transport of ozone and its 
precursors for rural nonattainment areas, multi-state nonattainment 
areas and international transport?
    N. How will the section 182(f) NOX provisions be 
handled?
    O. Emissions Reduction Benefits of Energy Efficiency/Renewable 
Energy Policies and Programs, Land Use Planning and Travel 
Efficiency
    P. Efforts To Encourage a Multi-Pollutant Approach When 
Developing 2008 Ozone SIPs
    Q. How does this proposed rule apply to tribes?
    R. What are the requirements for the Ozone Transport Region 
(OTR)?
    S. Are there any additional requirements related to enforcement 
and compliance?
    T. What are the requirements for addressing emergency episodes?
    U. How does the ``Clean Data Policy'' apply to the 2008 ozone 
NAAQS?
    V. What assistance programs is the EPA considering for 
implementation of the 2008 ozone NAAQS?
    W. What is the deadline for states to submit SIP revisions to 
address the CAA section 185 penalty fee provision for Severe and 
Extreme areas?
IV. What is the EPA proposing to address anti-backsliding issues 
related to transition from the 1997 ozone NAAQS to the 2008 ozone 
NAAQS?
    A. General Background
    B. Background on Transition From the 1-Hour to the 1997 Ozone 
NAAQS
    C. Background on Nonattainment NSR
    D. Background on Section 185 Fees
    E. Background on the Contingency Measures Requirement
    F. What is the EPA proposing regarding anti-backsliding 
requirements for the 1-hour and 1997 ozone NAAQS?
    G. Timing of 1997 Ozone NAAQS Revocation and Related Anti-
Backsliding Requirements
    H. What are the applicable requirements for anti-backsliding 
purposes during the transition to the 2008 ozone NAAQS?
    I. Application of Transition Requirements to Nonattainment and 
Attainment Areas
    J. Satisfaction of Anti-Backsliding Requirements for an Area
    K. How will the EPA's determination of attainment (``Clean 
Data'') regulation apply for purposes of the anti-backsliding 
requirements?
    L. What is the relationship between implementation of the 2008 
ozone NAAQS and the CAA title V permits program?
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)

Appendix A to Preamble--Glossary of Terms and Acronyms
Appendix B to Preamble--Relevant Rulemakings Concerning 
Implementation of the 1997 Ozone NAAQS
Appendix C to Preamble--Methods to Account for Non-Creditable 
Reductions When Calculating RFP Targets for the 2008 Ozone NAAQS
Appendix D to Preamble--List of Areas Nonattainment for the 2008 
Ozone NAAQS in Addition to a Prior Ozone NAAQS

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Statutory Authority
List of Subjects

II. Background for Proposal

A. The 2008 Ozone NAAQS

    On March 12, 2008,\1\ the EPA revised the primary NAAQS for ozone, 
designed to protect public health, to a level of 0.075 parts per 
million (ppm) (annual fourth-highest daily maximum 8-hour 
concentration, averaged over 3 years).\2\ The secondary NAAQS for 
ozone, designed to protect public welfare, was simultaneously set at 
the same level (and with the same averaging time) as the primary NAAQS. 
Since the 2008 primary and secondary NAAQS for ozone are identical, for 
convenience, we refer to both as ``the 2008 ozone NAAQS'' or ``the 2008 
ozone standard.''
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    \1\ 73 FR 16436.
    \2\ For a detailed explanation of the calculation of the 3-year 
8-hour average, see 40 CFR part 50, Appendix I.
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    On September 16, 2009, the EPA announced \3\ that it would initiate 
a rulemaking to reconsider the 2008 ozone NAAQS for various reasons, 
including the fact the 0.075 ppm level fell outside of the range for 
the primary standard recommended by the Clean Air Scientific Advisory 
Committee. Pending the outcome of that reconsideration, the EPA 
suspended further work on designating areas, and on classifying and 
developing implementation guidance for areas that would be designated 
nonattainment for the 2008 NAAQS. In September 2011, the OMB returned 
for further consideration the EPA's draft rulemaking to reconsider the 
2008 ozone NAAQS.\4\ The current primary and secondary NAAQS for ozone 
thus remains at 0.075 ppm, as established in 2008. The 2008 ozone NAAQS 
retains the same general form and averaging time as the 0.08 ppm NAAQS 
set in 1997 but is set at a more stringent level.
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    \3\ http://yosemite.epa.gov/opa/admpress.nsf/0/85F90B7711ACB0C88525763300617D0D.
    \4\ Memorandum from Cass R. Sunstein to the former EPA 
Administrator Lisa Jackson, September 2, 2011.
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B. The Challenge of Ozone Implementation

    The EPA and the states, and some local and tribal air agencies, are 
now proceeding with activities to implement the 2008 ozone NAAQS. In 
rules finalized on April 30, 2012, and May 31, 2012, the EPA formally 
designated all areas of the country as attainment/unclassifiable, 
nonattainment or unclassifiable for the 2008 NAAQS.\5\ On April 30, 
2012, the EPA also finalized a rule that established the approach for 
classifying ozone nonattainment areas for the 2008 ozone NAAQS based on 
their air quality concentrations, as well as the deadline for areas in 
each classification to achieve the 2008 ozone NAAQS.\6\ That rule, 
referred to as the ``Classifications Rule,'' also addressed the 
revocation of the 1997 ozone NAAQS for purposes related to 
transportation conformity, and reclassification for certain areas in 
California. Today's proposed rule, referred to as the ``SIP 
Requirements Rule,'' addresses a range of additional issues important 
for implementing the 2008 ozone NAAQS.
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    \5\ The EPA designated 46 areas as nonattainment for the 2008 
ozone NAAQS.
    \6\ 77 FR 30160, May 21, 2012.
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    In this action, the EPA proposes a rule to address the steps states 
will take to implement the 2008 ozone NAAQS and the timing of those 
steps. In accordance with Executive Order (EO) 13563 titled, 
``Improving Regulation and Regulatory Review,'' signed by President 
Barack Obama on January 18, 2011, which directs governmental agencies 
to offer and support flexible, common sense approaches, this proposed 
SIP Requirements Rule is intended to provide the health and 
environmental protections required under the CAA while maximizing 
flexibility and minimizing burden for states, who are the primary 
implementing agencies.
    Achieving the health benefits required by the CAA will require the 
combined efforts of federal, state, local, and in some cases tribal 
governments, each accomplishing the tasks for which it is best suited. 
For the EPA, that means adopting national standards where it makes 
sense to do so, such as standards to reduce emissions from sectors that 
are of national concern, such as mobile sources and many types of 
industries. It also means providing as much assistance and flexibility 
as possible to the states as they work to develop and implement their 
attainment plans. In addition, we are mindful that the requirement to 
implement the 2008 ozone NAAQS comes at a time when many states are 
facing substantial resource challenges. The EPA is committed to working 
in partnership with states and other stakeholders to share the burden 
of implementing the 2008 ozone NAAQS by promulgating a number of 
national regulations that will provide significant reductions in ozone 
precursors.
    In this preamble, we lay out proposed expectations and requirements 
for implementation of the 2008 ozone NAAQS. As we have considered the 
elements of implementation of the NAAQS required under the CAA, it has 
been our goal to propose approaches that provide flexibility and 
opportunities for efficiency, without jeopardizing expeditious 
attainment of the public health and welfare goals, and to identify the 
ways in which the EPA will provide assistance to the states. We invite 
comment on any and all aspects of this proposed rule, and encourage 
suggestions that will increase implementation efficiency, allow the 
most effective pollution control programs to be implemented and 
identify additional ways in which the EPA can assist the states to 
reach attainment within the legal framework of the CAA.
    The CAA was amended in 1990 to add specific provisions that apply 
to ozone nonattainment areas. These include timelines for both planning 
and implementation, and numerous mandates for specific programs to 
reduce emissions. Since that time, the EPA, states and others have 
gained a great deal of scientific knowledge and increased understanding 
of issues related to ozone formation and control. Specifically, we know 
more about how NOX and VOC interact to form ozone and we 
have better models for evaluating control strategies. This better 
understanding allows for more strategic approaches in which public 
health can serve as the key factor in prioritizing control measures. We 
also have a better appreciation for the role of interstate transport of 
ozone, international transport of pollutants and background levels of 
ozone. In the past 20 years, technology has evolved substantially, 
particularly with respect to mobile sources, with the result that some 
of the very specific programs mandated for ozone nonattainment areas, 
such as Stage II Vapor Recovery and vehicle I/M programs, may not 
provide the benefits they did originally because the problems that they 
were designed to address have been largely solved in other ways or 
technology advances make them no longer relevant. New and creative 
emission reduction approaches, such as energy efficiency and land use 
programs, are now being explored that have great promise for improved 
air quality and other benefits, but may not fit easily into the 
timelines of the CAA or the EPA's traditional expectations for SIPs. 
Other innovative approaches, such as I/M programs built around next 
generation testing technologies like onboard diagnostics (OBD), are 
available now and the EPA will work with states interested in adopting 
such programs to ensure their effective implementation.
    The EPA has explored a number of approaches to address the issues 
discussed above and has identified

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several ways to achieve emission reductions through national/regional 
standards and provide states flexibility and assistance in meeting the 
CAA requirements to increase implementation efficiency while still 
ensuring the public health and welfare protection achieved by meeting 
the ozone NAAQS. In subsequent sections of this preamble, we lay out 
our proposed approaches, but here are a few examples:
    1. Federal control measures: States can rely on emission reductions 
from federal control measures to help areas attain the 2008 ozone NAAQS 
or to meet other SIP-related objectives, as long as the federal 
measures achieve their reductions prior to the relevant SIP-related 
deadlines. Promulgated and planned federal rules include, but are not 
limited to: (1) Tier 3 emissions standards for on-road motor vehicles; 
\7\ (2) Maximum Achievable Control Technology (MACT) rules that address 
hazardous air pollutants (HAPs) that are also VOCs, such as rules 
associated with oil and gas development, internal combustion engines, 
incinerators, boilers and cement kilns; and (3) consumer product rules. 
The emission reductions achieved by these federal rules will reduce the 
amount of emission reductions individual states will need to achieve 
through state and local regulations in order for areas to attain the 
2008 ozone NAAQS.
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    \7\ In addition to the planned Tier 3 emission standards, other 
new and existing mobile source regulations addressing emissions from 
new heavy-duty vehicles, non-road equipment and engines, 
locomotives, marine engines and ocean-going vessels will continue to 
provide additional emissions reductions as the current fleets are 
replaced with vehicles, equipment and engines that are certified to 
more stringent emissions standards or engines are re-built to comply 
with any applicable requirements.
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    2. Stage II Vapor Recovery: In a separate Federal Register notice 
(77 FR 28772; May 16, 2012), the EPA determined that onboard refueling 
vapor recovery was in widespread use throughout the country and, as a 
result, the EPA exercised its authority under the CAA to waive the 
mandatory section 182(b)(3) stage II vapor recovery requirement. This 
waiver allows states, if they determine it appropriate, to discontinue 
the requirement for gasoline dispensing facilities (GDFs) in Serious 
and above nonattainment areas to install and operate Stage II vapor 
recovery systems, and the requirement for states to inspect such 
systems, resulting in cost savings for both the states and the owners 
and operators of GDFs.
    3. Attainment demonstrations: The EPA is investigating 
opportunities for easing the burden on states to conduct air quality 
modeling to demonstrate attainment, particularly for nonattainment 
areas initially classified as Moderate or reclassified to Moderate for 
the 2008 ozone NAAQS. The EPA is exploring options such as making 
available various emissions, meteorological and boundary conditions 
inputs, and national scale modeling results that were generated in 
support of EPA rules, that states could reference as part of their 
attainment demonstrations.
    4. Innovative and creative approaches: EO 13563 specifically 
requires agencies to ``seek to identify, as appropriate, means to 
achieve regulatory goals that are designed to promote innovation.'' The 
EPA is encouraging innovative and creative approaches to reducing 
emissions such as improvements in energy efficiency and land use 
programs, especially since many of the more traditional control 
measures have already been implemented in many areas. The EPA is 
committed to working in partnership with states to facilitate the 
incorporation of such approaches into SIPs. Energy efficiency, 
renewable energy programs, land use planning and travel efficiency are 
discussed in more detail in section III.O of this preamble.
    5. Updated information: The EPA will continue to assist states' 
implementation efforts by offering a variety of new compilations of 
information that will be useful to all states. In 2012, the EPA issued 
an updated ``Menu of Control Measures'' document which includes 
information on NOX and VOC control measures, including 
efficiencies and costs, for a range of source categories. This menu of 
measures is located at http://www.epa.gov/airquality/ozonepollution/SIPToolkit/. In addition, the EPA developed a Web site with information 
on existing local ozone reduction measures (e.g., ozone action days, 
ridesharing programs) and a forum for the exchange of ideas about 
potential state and local measures. This control measure Web site is 
located at http://www.epa.gov/airquality/ozonestrategy/. General 
information about SIP implementation requirements is located at http://www.epa.gov/air/ozonepollution/implement.html. Specific information 
regarding SIP submittal and approval status is located at http://www.epa.gov/airquality/urbanair/sipstatus/.
    6. Emissions offset relief in Economic Development Zones: The EPA 
will work with states to identify areas within nonattainment areas as 
zones to which economic development should be targeted. In these zones, 
the CAA allows new or modified major sources seeking permits to meet 
emissions growth offset requirements by drawing from a pool of growth 
allowances established by the state. This will help ensure clean air 
requirements can be met in a way that is consistent with economic 
development in low-employment areas and other areas in need of job 
growth.
    7. Rural transport areas: Section 182(h) of the CAA provides a 
``rural transport'' classification for ozone nonattainment areas that 
are rural in nature and can demonstrate that sources in the area do not 
make a significant contribution to ozone concentrations measured in the 
area or in other areas. These areas are subject to Marginal area 
requirements, regardless of the area's classification under section 
181(a), in recognition of that fact.
    8. RFP requirements: The EPA is proposing to provide nonattainment 
areas classified as Moderate and above the flexibility in certain 
situations to substitute NOX reductions for VOC reductions 
in their 15 percent RFP plans. We believe that, given the improved 
scientific understanding of the formation of ozone, it makes sense, 
wherever possible, to allow states to credit toward the RFP requirement 
those reductions that an area most needs to reach attainment.
    9. Combining submittals: The EPA is proposing, as an option, to 
allow states to combine SIP submittals where they believe it will 
reduce administrative burdens, and to adjust timeframes to provide more 
time for states to conduct some of the necessary rulemaking or program 
development activities without compromising expeditious progress 
towards and attainment of the standards.
    10. Encouraging early reductions: Under the ``Ozone Advance'' 
program, the EPA is working with states, tribes and local governments 
to ensure they are aware of the advantages of early action and to 
provide assistance in taking steps to achieve emission reductions in 
ozone attainment areas and participating Marginal nonattainment areas. 
Early reductions may help these areas maintain the 2008 ozone NAAQS. 
The EPA believes there are significant advantages for states, tribes 
and local governments to take steps to reduce emissions as early as 
possible. Early reductions can help to maintain or improve existing air 
quality, which in turn can help to ensure continued health protection 
and keep an area in attainment or, if eventually designated as 
nonattainment under a future ozone NAAQS, help bring the area back into 
attainment. In addition, efforts to improve local air quality can 
establish working relationships between

[[Page 34182]]

key stakeholders that can help achieve emission reductions quickly and 
in ways that make the most sense to the particular community.
    The EPA will work closely with states and tribes to provide 
assistance and flexibility in implementing the 2008 ozone NAAQS 
consistent with the implementation approaches that are adopted in the 
final implementation rule. The EPA solicits comment on other 
suggestions commenters may have for this implementation rule that are 
consistent with the CAA and provide flexibility to the states for 
common sense implementation that will provide for timely progress 
towards attainment of the 2008 ozone standard.

C. History of Implementation Rules for the 1997 Ozone NAAQS

    In 2004 and 2005, the EPA promulgated regulations codified in 40 
CFR part 51, subpart X, addressing implementation of the 1997 8-hour 
ozone NAAQS, revocation of the 1979 1-hour ozone NAAQS, and the anti-
backsliding requirements that continued to apply for the revoked 1979 
standard. See Federal Register publications at 69 FR 23951, April 30, 
2004 (the ``Phase 1'' Rule) and 70 FR 71612, November 29, 2005 (the 
``Phase 2'' Rule). The EPA received several petitions for 
reconsideration and several parties submitted petitions for judicial 
review of those rules. The EPA granted reconsideration of several 
issues and took final action on those issues. Challenges to those 
reconsideration actions were consolidated with the challenges to the 
Phase 1 and Phase 2 Rules. The court upheld portions of the Phase 1 
Rule but vacated limited portions concerning the classification of 
areas under subpart 1 of part D of title I of the CAA and the failure 
to include three anti-backsliding requirements associated with the 
revoked 1-hour ozone NAAQS. South Coast Air Quality Management District 
v. EPA, 472 F.3d 882 (D.C. Cir. 2006) (South Coast). Although the court 
upheld only limited challenges, it seemed to vacate the Phase 1 Rule in 
its entirety. The EPA requested rehearing and clarification of the 
ruling, and on June 8, 2007, the court clarified that it vacated the 
rule only to the extent that it had upheld petitioners' challenges. 
South Coast Air Quality Management District, et al., v. EPA, 489 F.3d 
1245 (D.C. Cir. 2007). Thus, only the following provisions of the Phase 
1 Rule were vacated: The provisions that classified some 1997 8-hour 
ozone nonattainment areas under subpart 1, part D, title I of the CAA; 
and the provisions that did not retain three anti-backsliding 
obligations associated with the revoked 1-hour ozone NAAQS: 
nonattainment NSR, section 185 penalty fees and contingency measures 
for failure to attain or to make reasonable progress toward 
attainment.\8\ The EPA finalized action to re-address the vacated 
subpart 1 classifications and contingency measures provisions of the 
Phase 1 Rule. 77 FR 28424, May 14, 2012. The EPA proposed action to re-
address the vacated nonattainment NSR provision. 75 FR 51960 (August 
24, 2010). We are re-addressing the anti-backsliding requirements for 
the section 185 fee program for the revoked 1-hour ozone NAAQS and re-
proposing further action on the NSR anti-backsliding issues as part of 
this proposal.
---------------------------------------------------------------------------

    \8\ The court's June 8, 2007, clarification also confirmed that 
the December 22, 2006, decision did not establish a requirement that 
areas continue to demonstrate conformity for the 1-hour ozone NAAQS 
for anti-backsliding purposes.
---------------------------------------------------------------------------

    In the litigation on the Phase 2 Rule, the EPA requested and the 
court granted a remand of the provision that allowed emission 
reductions from outside a nonattainment area to be credited toward the 
RFP requirement for that area, so that the EPA could reconsider that 
provision in light of the EPA's different treatment of such reductions 
under the fine particle (PM2.5) implementation rule (72 FR 
20586, April 25, 2007). The EPA then issued a revised rule requiring 
that states include in their baseline all emissions within any area 
outside of the nonattainment area from which reductions are being 
credited for rate of progress (ROP) purposes (74 FR 40074, August 11, 
2009). On May 13, 2010, the EPA granted a petition for reconsideration 
of this provision in light of the NOX SIP Call/RACT court 
decision described below. We proposed a rule to address this 
reconsideration as it relates to the 1997 ozone NAAQS (75 FR 80420, 
December 22, 2010), and we discuss this issue in more detail as it 
relates to the 2008 ozone NAAQS in section III.C.4 of this preamble.
    On July 10, 2009, the court issued its ruling on the remaining 
challenged provisions pertaining to the Phase 2 Rule. NRDC v. EPA, 571 
F.3d 1245 (D.C. Cir. 2009). The court upheld the Phase 2 Rule in large 
part, finding most of the challenged provisions to be reasonable 
interpretations consistent with the statutory mandates in the CAA. The 
court, however, granted the petitions for review on limited issues. It 
remanded the EPA's determination that compliance with the 
NOX SIP Call regional cap-and-trade program would satisfy 
the area-specific RACT requirement. It also remanded the revisions made 
to the requirements for NSR offsets in certain areas and vacated the 
extension of an NSR waiver provision beyond the previous 18-month time 
limit. The effect of the vacatur of the 18-month time limit is 
discussed in section III.I of this preamble.
    A listing of the relevant rulemakings concerning implementation of 
the 1997 ozone NAAQS appears in Appendix B of this preamble.

D. Section 110 SIP Requirements

    CAA section 110(a) imposes an obligation upon states to make a SIP 
submission with respect to the 2008 8-hour ozone NAAQS. CAA section 
110(a)(1) requires states to submit SIPs that provide for the 
implementation, maintenance and enforcement of a new or revised NAAQS 
within 3 years following the promulgation of the new or revised NAAQS, 
or within such shorter period as the EPA may prescribe.\9\ Section 
110(a)(2) lists specific requirements that states must meet in these 
SIP submissions, as applicable. The EPA refers to this type of SIP 
submission as the ``infrastructure'' SIP. The requirements for 
infrastructure SIPs include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
contents of that submission may vary depending upon the facts and 
circumstances. In particular, the content of such a SIP submission may 
vary depending upon what provisions the state's existing SIP already 
contains. Two elements identified in section 110(a)(2) are not governed 
by the 3-year submission deadline of section 110(a)(1). This includes 
SIP submissions incorporating necessary local nonattainment area 
requirements, which are due pursuant to the schedule in section 
182.\10\ The

[[Page 34183]]

two section 110 SIP elements not governed by the 3-year submission 
deadline are: (i) Submissions required by section 110(a)(2)(C) to the 
extent that subsection refers to a nonattainment area new source review 
permit program for major sources as required in part D of title I of 
the CAA; and (ii) submissions required by section 110(a)(2)(I) which 
pertains to the nonattainment planning requirements of part D of title 
I of the CAA. The EPA also notes that the D.C. Circuit's recent opinion 
in EME Homer City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012) 
concluded that a SIP cannot be deemed to lack a required submission or 
deemed deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation 
until after the EPA quantifies that obligation.
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    \9\ The EPA did not prescribe a shorter period for the 2008 8-
hour ozone NAAQS; thus, the SIP submission was due March 12, 2011.
    \10\ Nonattainment area plans required by part D title I of the 
CAA for the 2008 8-hour ozone NAAQS are due by various dates as 
established throughout subpart 2 of part D, i.e., reasonably 
available control measures are due in 2 years under 182(b)(2), 
reasonable further progress plans and attainment plans for Moderate 
areas are due in 3 years under 182(b)(1), and attainment 
demonstrations for Serious and above areas are due in 4 years under 
182(c)(2). The EPA has in the past interpreted these dates to run 
from the effective dates of the nonattainment designations, see 68 
FR 32802, 32816-817 (June 2, 2003) (``subpart 2 SIP submittals will 
be due as a general matter by the same period of time after 
designation and classification under the 8-hour standard as provided 
in subpart 2 for areas designated and classified at the time of 
enactment of the 1990 CAA.'') The designations for the 2008 ozone 
standard were effective on July 20, 2012. See 77 FR 30088 (May 21, 
2012) and 77 FR 34221 (June 11, 2012). In this notice, the EPA is 
proposing two options for SIP submittal dates for the 2008 ozone 
NAAQS. See section III.A.
---------------------------------------------------------------------------

    In the case of the 2008 8-hour ozone NAAQS, the period during which 
the EPA was making efforts to reconsider the 2008 NAAQS with the 
expectation of revising it in the near term extended about 6 months 
beyond March 12, 2011, the normal deadline for submission of 
infrastructure SIPs. The EPA therefore did not prepare and issue timely 
guidance for the states to assist them in preparing their submissions. 
Also, states were given the impression that if the NAAQS were revised 
as a result of the reconsideration, the 3-year deadline would reset. 
However, despite the reconsideration process, March 12, 2011, remained 
the legally applicable deadline for infrastructure SIPs for the 2008 8-
hour ozone NAAQS. The EPA recently responded to a court order requiring 
the EPA to make findings of failure to submit for certain 
infrastructure SIPs that had not been found complete by March 12, 
2011.\11\
---------------------------------------------------------------------------

    \11\ See 78 FR 2882, January 15, 2013.
---------------------------------------------------------------------------

    The EPA recognizes that many states are affected by transported 
ozone and ozone precursors from upwind states, and that transported 
pollution may contribute significantly to air pollution that exceeds 
the NAAQS in those states. The CAA establishes states' responsibilities 
to address interstate transport through two provisions: section 
110(a)(2)(D) (specifying certain of the requirements for the 
``infrastructure'' SIPs) and section 126 (requiring notification to 
downwind states of planned new or modified sources and providing a 
petition process through which downwind jurisdictions can seek to have 
specific sources of transported pollution addressed). This proposed 
implementation rule, which deals with the required SIP elements for 
areas designated as nonattainment for the 2008 ozone NAAQS, does not 
address states' obligations under the CAA to reduce transported 
pollution. Although, as noted elsewhere in this notice, the EPA intends 
to issue a guidance memorandum on the required elements of the section 
110 infrastructure SIP submittal for the 2008 ozone NAAQS, that 
memorandum also would not contain guidance on how to meet the 
requirements of section 110(a)(2)(D)(i)(I), which deals with air 
pollutant emissions within a state that significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in a downwind 
state.

E. Part D Nonattainment Area SIP Requirements

    In addition to the obligation to submit required section 110 
infrastructure SIPs within 3 years of promulgation of a new or revised 
NAAQS, states with designated nonattainment areas also have the 
obligation to submit SIPs designed to bring those areas into 
attainment. SIP requirements applicable to nonattainment areas are 
found in part D of title I of the CAA. Subpart 1 of part D discusses 
general requirements for nonattainment areas, including the requirement 
that states adopt and submit for the EPA's approval detailed SIPs that 
bring the area into attainment.
    Subpart 2 of part D contains additional provisions specifically 
applicable to ozone nonattainment areas. Subpart 2 includes CAA 
sections 181 through 185B. Section 181 of subpart 2 creates a framework 
for classifying ozone nonattainment areas into five classification 
categories based on the severity of their ozone air quality problems.
    Section 181(a) includes attainment deadlines for each 
classification category in relation to the time the area is designated 
nonattainment: Marginal areas are required to attain within 3 years of 
designation; Moderate areas--within 6 years; Serious areas--within 9 
years; Severe-15 areas--within 15 years; Severe-17 areas--within 17 
years; and Extreme areas--within 20 years.\12\ Section 182 of subpart 2 
outlines SIP requirements applicable to ozone nonattainment areas in 
each classification category. In general, under the framework 
established by subpart 2, areas classified in higher nonattainment 
categories are provided with more time to attain the ozone NAAQS but 
are also subject to more extensive planning and control obligations.
---------------------------------------------------------------------------

    \12\ Attainment deadlines for the 2008 ozone NAAQS were 
established in the Classifications Rule, 77 FR 30160, May 21, 2012.
---------------------------------------------------------------------------

    Where the Classifications Rule primarily dealt with issues related 
to CAA section 181, this rule addresses issues related to CAA sections 
182 through 185B. Subpart 2 is the focus of much of the discussion of 
this rule. When a topic is discussed that is not covered by subpart 2, 
reference will be made to the more general subpart 1 requirements found 
in CAA sections 171 through 179B, or to other sections of the CAA, as 
appropriate. As discussed in section II.D of this proposal, section 
110(a) infrastructure SIPs will be the topic of a separate guidance 
document.

III. What are the state implementation plan requirements for the 2008 
ozone NAAQS?

A. What is the deadline for submitting nonattainment area SIP elements 
due under CAA section 182 for the 2008 ozone NAAQS?

    Section 182 of the CAA requires states with ozone nonattainment 
areas to submit various SIP elements within specified time periods 
after enactment of the CAA Amendments of 1990: (1) An emission 
inventory for the nonattainment area within 24 months (section 
182(a)(1)); (2) a RACT SIP within 24 months (section 182(b)(2)); (3) a 
15 percent RFP plan for Moderate and above areas within 3 years 
(section 182(b)(1)); (4) an attainment plan for Moderate areas within 3 
years (section 182(b)(1)); (5) an attainment plan and demonstration for 
Serious and above areas within 4 years (section 182(c)(2)); and (6) a 3 
percent per year RFP plan for Serious and above areas within 4 years 
(section 182(c)(2)).
    In the Phase 2 Rule, we interpreted the SIP submittal time periods 
in section 182 to run from the effective date of designation and 
classification for the 1997 ozone NAAQS. See 70 FR 71670. However, with 
regard to attainment demonstrations for Serious and above areas, we 
provided 3 years, instead of 4 years, to submit an attainment 
demonstration. Specifically, we promulgated 40 CFR 51.908(a) which 
required all areas classified Moderate or higher to submit attainment 
demonstrations based on photochemical grid modeling no later than 3 
years after the area's designation for the 1997 8-hour ozone NAAQS. We 
explained that at the time of the 1990 Amendments, Congress required 
Serious and above areas to base their attainment demonstrations on 
photochemical grid modeling, which at that time was a relatively new 
modeling

[[Page 34184]]

technique. Congress then gave those areas 4 years to submit an 
attainment demonstration. In the Phase 2 rulemaking, we determined that 
photochemical grid modeling should be required for Moderate areas as 
well as for Serious and above areas, and we explained that the 
technique was no longer new and that areas did not need 4 years to 
submit an attainment demonstration based on such modeling. The policy 
reasons that existed at the time the Phase 2 rule was developed, 
specifically, the need for timing consistency between subpart 1 and 
subpart 2 areas within the same region, the timing of the large-scale 
transport modeling underway at the time, and the option of coordinated 
planning with the similarly timed PM2.5 SIPs, are not 
circumstances faced today by the Serious and higher areas.
    For purposes of the 2008 ozone NAAQS, the EPA proposes in the 
alternative the following two approaches regarding the deadlines for 
submitting the various elements of the state implementation plan.
    Period of time provided by the statute. Section 182 of the CAA 
specifies a time period, running from the date of enactment of the 1990 
CAA Amendments, for states to submit each required element of the state 
implementation plan for nonattainment areas. Under this first 
alternative, the EPA is proposing that the time period specified in 
section 182 for the submission of each required element (i.e., 2 years 
for emission inventories and RACT SIPs, 3 years for 15 percent RFP 
plans and Moderate area attainment demonstrations and 4 years for 3 
percent per year \13\ RFP plans and attainment demonstrations from 
Serious and higher areas), as described above, would apply and that 
such time periods would run from the effective date of an area's 
designation for the 2008 ozone NAAQS. State's choice: consolidated SIP 
submittal due 30 months after designation, or period of time provided 
by the statute. The EPA's second alternative, which is our preferred 
alternative, is for the state to have the choice of meeting the 
statutory deadline for each required SIP element as set out in section 
182, or following a consolidated submittal approach. Under the 
consolidated approach, all of the required SIP elements for a 
nonattainment area would be submitted at one time, no later than 30 
months after the effective date of the area's designation for the 2008 
ozone NAAQS. The consolidated approach represents a more expeditious 
schedule for areas to submit attainment demonstrations and RFP SIPs for 
the 2008 ozone NAAQS, but it provides slightly more time for submittal 
of emission inventories and RACT SIPs. We are proposing under this 
alternative that a state can choose, for a particular nonattainment 
area, to submit all SIP elements required under section 182 no later 
than 30 months after the effective date of designation; or the state 
can choose to submit all SIP elements in accordance with the time 
provided by the statute. As part of this alternative proposal, a state 
with more than one nonattainment area can select the option that is 
most preferable for each area. This alternative proposal applies only 
to areas designated Moderate and above for the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    \13\ Typically submitted in 3-year increments, thus as 9 percent 
RFP plans that produce average reductions of 3 percent per year.
---------------------------------------------------------------------------

    The consolidated approach may be preferable for some states because 
it would allow them to undertake a more coordinated and less burdensome 
planning process, including only having one period for public review 
and opportunity for public hearing for all the SIP elements involved. 
(Note that all states that include part of a multi-state nonattainment 
area would need to consult with each other and adopt the same SIP 
submittal deadline(s) with respect to the entire multi-state area.) 
Moreover, we believe that the 30-month timeframe would be reasonable 
for many areas. Those states with areas currently classified as 
Moderate and above for the 2008 ozone NAAQS have significant experience 
preparing modeled attainment demonstrations and many are participating 
in ongoing modeling with nearby states to address regional ozone 
issues. Thus, for some areas it may be less burdensome to submit all 
ozone SIP elements concurrently within 30 months of designation. We 
note that an added benefit of earlier completion of the attainment 
planning process is that it provides states and sources with additional 
time to implement the measures adopted as part of the RFP plan and 
attainment demonstration.\14\ This is particularly critical for 
Moderate areas, which have only 6 years to attain the standard. The EPA 
designated most areas on April 30, 2012, with an effective date 60 days 
after publication in the Federal Register. Thus, attainment 
demonstrations would be due under this option for most areas by January 
2015, prior to the beginning of the 2015 ozone season. The EPA believes 
that the later due date for emission inventories and RACT SIPs under 
this option would provide for a de minimis delay. Implementation of the 
RACT requirements would still occur on the schedule established by CAA 
section 182(b)(2)(C). From an accountability standpoint, if the 30 
months elapse with no SIP submittal from the state, the EPA will assume 
by default that the state has chosen to take the amount of time allowed 
by the statute for the attainment plan and demonstration, and is late 
with the RACT and emissions inventory SIP and thus potentially subject 
to a finding of failure to submit.
---------------------------------------------------------------------------

    \14\ Emission reductions resulting from implementation of RACT, 
RFP and other state and federal requirements may, in some cases, not 
be sufficient to demonstrate attainment. States are responsible for 
adopting any additional measures needed to attain the NAAQS. These 
additional measures would be submitted by the state as part of the 
attainment plan and demonstration.
---------------------------------------------------------------------------

B. What are the requirements for modeling and attainment demonstration 
SIPs?

    An attainment demonstration consists of: (1) Technical analyses, 
such as base year and future year modeling, to locate and identify 
sources of emissions that are contributing to violations of the 2008 
ozone NAAQS within the nonattainment area (i.e., analyses related to 
the emissions inventory for the nonattainment area and the emission 
reductions necessary to attain the standard); (2) a list of adopted 
measures (including RACT controls) with schedules for implementation 
and other means and techniques necessary and appropriate for 
demonstrating RFP and attainment as expeditiously as practicable but no 
later than the outside attainment date for the area's classification; 
(3) a RACM analysis; and 4) contingency measures required under section 
172(c)(9) of the CAA that can be implemented without further action by 
the state or the Administrator to cover emissions shortfalls in RFP 
plans and failures to attain. Penalty fee programs for failure to 
attain in Severe and Extreme areas are also associated with or are part 
of the attainment demonstration and are addressed in other sections of 
this proposal.
1. Marginal Areas
    Under section 182(a), Marginal areas have up to 3 years from 
designation to attain the NAAQS, and are not required to submit an 
attainment demonstration. When Congress amended the CAA in 1990, it 
anticipated that nonattainment areas with ozone concentrations close to 
the level of the NAAQS would likely come into attainment within 3 years 
after designation as nonattainment without any additional local 
planning.
    Although states are not required to develop attainment 
demonstrations for

[[Page 34185]]

Marginal areas, there may be modeling completed by the EPA or other 
state organizations which may provide useful information regarding 
whether Marginal areas may be expected to attain by their attainment 
dates. For example, as part of the Cross State Air Pollution Rule 
(CSAPR), the EPA modeled the expected improvements in air quality from 
existing federal, state and local controls. We encourage states to use 
available modeling information to examine the likelihood of whether a 
Marginal area would attain within 3 years.
    Where such modeling indicates that a Marginal area is unlikely to 
attain the standard by its attainment date without the implementation 
of additional controls, we strongly encourage states or local agencies 
to work to get the necessary emission reduction measures in place in 
order to meet the ozone NAAQS within the 3-year timeframe. Marginal 
areas that do not attain the standard by the required date are required 
to be reclassified (or ``bumped up'') to the Moderate classification, 
which would require the application of mandatory planning and control 
requirements. If it is not possible to implement sufficient additional 
controls for a Marginal area to attain by the 3-year maximum attainment 
date, states may wish to consider voluntarily requesting 
reclassification to the Moderate classification. The EPA intends to 
offer assistance to the 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: whether to adopt 
additional controls or seek a voluntary reclassification to the next 
higher category. Early reclassification would provide more time for 
adopting and implementing the control measures needed for attainment by 
the Moderate area attainment date than the area would have if it is 
reclassified after it fails to attain within 3 years of designation. If 
an area is reclassified based on an EPA determination that the area 
failed to attain by its attainment date, the state would likely have 
only 18 to 24 months to adopt and implement controls by the beginning 
of the final full ozone season before the Moderate area deadline 
because the statute requires areas to attain by the latest acceptable 
attainment date for any classification regardless of when the area is 
reclassified.
2. Moderate Areas
    Section 182(b)(1)(A) requires states with Moderate (and higher 
classified) ozone nonattainment areas to develop an attainment 
demonstration that provides for reductions in VOC and NOX 
emissions ``as necessary to attain the national primary ambient air 
quality standard for ozone.'' Although not specifically required by the 
statute, in the Phase 1 Rule for the 1997 ozone NAAQS, the EPA required 
states with Moderate and above areas to submit photochemical grid 
modeling or another equivalent analytical method to satisfy the 
attainment demonstration requirement for each area, which is the CAA 
requirement that applies for Serious and above areas (CAA section 
182(c)(2)(A)). The EPA explained that it was reasonable to do so 
because this modeling was generally available and reasonable to employ. 
The EPA is proposing to continue to require states with an area 
classified as Moderate to submit an attainment demonstration based on 
photochemical modeling or another equivalent analytical method that is 
determined to be at least as effective, as is required under the Act 
for Serious and above areas and multi-state nonattainment areas.\15\
---------------------------------------------------------------------------

    \15\ State plans for single nonattainment areas that include 
more than one state (multi-state nonattainment areas) are also 
required to have photochemical modeling (see CAA section 
182(j)(1)(B)).
---------------------------------------------------------------------------

    This requirement explicitly allows for alternative analytical 
methods to be substituted for or used to supplement a photochemical 
modeling-based assessment of an emissions control strategy. Any 
alternative analysis should be based on technically credible methods 
and provide for the timely submittal of the attainment demonstration 
and implementation of SIP controls. States should review the EPA 
modeling guidance and consult their appropriate EPA regional office 
before proceeding with alternative analyses.
3. Serious and Above Areas
    For Serious and higher-classified 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. States with areas classified as 
Serious and higher must submit an attainment demonstration based on 
photochemical modeling or an alternative analytical method determined 
by the Administrator to be at least as effective.
4. What guidance is there for using models to demonstrate attainment?
    The procedures for modeling ozone as part of an attainment 
demonstration are well developed and described in the EPA's ``Guidance 
on the Use of Models and Other Analyses for Demonstrating Attainment of 
Air Quality Goals for Ozone, PM2.5, and Regional Haze.'' 
\16\ This guidance document, as it currently exists, can be used by 
states developing attainment demonstration SIPs for the 2008 ozone 
NAAQS. The EPA is considering updates to the guidance to address ozone 
modeling for the 2008 ozone NAAQS. We will issue any updates as needed.
---------------------------------------------------------------------------

    \16\ The modeling guidance can be found at the following Web 
site: http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------

    All photochemical modeling in support of an attainment 
demonstration should be consistent with the EPA's ozone modeling 
guidance. States with areas that were nonattainment for the 1997 ozone 
NAAQS or are nonattainment today have invested considerable resources 
in local and/or regional ozone modeling analyses. We encourage states 
to work together to leverage the work and resources from these existing 
analyses, as well as to develop new analyses for the 2008 ozone NAAQS 
as appropriate. The application of air quality models requires a 
substantial effort by state agencies and the EPA. Therefore, in order 
to maximize efficient use of time and resources, states should work 
closely with the appropriate EPA regional offices in executing each 
step of the modeling process. Coordination with the EPA during the 
modeling process will help increase the likelihood that the EPA will be 
able to approve the modeling-based attainment demonstration.
5. High Electricity Demand Days (HEDD)
    The current modeling guidance addresses, among many other 
considerations, episode selection and accounting for potentially higher 
VOC and/or NOX emissions during high energy demand periods. 
A study has identified high NOX emissions from electric 
generating units (EGUs) in the Northeast Corridor on summer days when 
demand for electricity is high \17\ and has labeled these days as 
``High Electricity Demand Days'' (HEDD). This study indicates that 
NOX emissions from EGUs during periods of high electricity 
demand in the Northeast may be significantly greater than emissions 
that occur on an average summer day. This spike in NOX 
emissions is due to increased power demand on hot summer days to meet 
air conditioning

[[Page 34186]]

and other electric power needs. High electricity demand days require 
production of additional power from load-following EGUs and/or peaking 
unit EGUs, which are less frequently used compared to base-load EGUs. 
In the Northeast Corridor, these units have tended to be less well 
controlled than base-load EGUs.
---------------------------------------------------------------------------

    \17\ ``High Electric Demand Day and Air Quality in the 
Northeast.'' White Paper Prepared by the Northeast States for 
Coordinated Air Use Management. June 5, 2006. Available at: http://www.nescaum.org/.
---------------------------------------------------------------------------

    High energy demand summer days tend to coincide with ozone 
episodes, which may be in part due to the fact that NOX 
emissions on these days can greatly exceed average summer day 
NOX emissions from electric power generation. There has been 
some study of control measures to reduce NOX emissions on 
HEDDs.\18\
---------------------------------------------------------------------------

    \18\ See, e.g., Chris James and Jeremy Fisher, Ph.D. Reducing 
Emissions in Connecticut on High Electric Demand Days (HEDD): A 
Report for the CT Department of Environmental Protection and the 
U.S. Environmental Protection Agency. July 25, 2008. Synapse Energy 
Economics, Inc. 22 Pearl St., Cambridge, MA 02139.
---------------------------------------------------------------------------

    Since NOX emissions from electric power generation are a 
significant contributor to the total NOX emissions for many 
ozone nonattainment areas, states that experience this phenomenon 
should be careful to fully account for it by ensuring that these 
emissions are included in photochemical modeling of episode days on 
which the phenomenon occurs. In order to properly account for HEDD 
emissions, careful attention should be paid to the temporalization of 
emissions to the specific day and hour of the day when these emissions 
occur. We note that the current modeling guidance \19\ already 
addresses episode selection and development of accurate emissions input 
information during peak ozone periods. We will consider whether 
additional updates to the modeling guidance are needed to address 
modeling of the HEDD phenomenon.
---------------------------------------------------------------------------

    \19\ http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------

6. Modeled Attainment Test
    Models are used to test whether control measures to be adopted in 
the SIP are likely to result in attainment of the standard. The modeled 
attainment test for the ozone NAAQS under the EPA's guidance uses a 
combination of ambient ozone data and modeled ozone concentrations to 
estimate future year air quality. The attainment test is applied at 
each monitor location within or near a designated nonattainment area. 
Models are used in a relative sense to estimate the response of 
measured air quality to future changes in emissions. Future air quality 
is estimated by multiplying recent monitored values by the modeled 
relative response to projected future changes in emissions.\20\ The EPA 
additionally recommends application of an attainment test to be 
performed in unmonitored areas. The recommended attainment test 
methodology for unmonitored areas has been used in recent 8-hour ozone 
SIPs developed for the 1997 ozone NAAQS. To make it easier for states 
to apply the attainment tests, both the monitor-based test and the 
unmonitored area test have been incorporated in a software package 
called the ``Modeled Attainment Test Software'' (MATS). The MATS is 
available for no charge at: http://www.epa.gov/scram001/modelingapps_mats.htm.
---------------------------------------------------------------------------

    \20\ The EPA's guidance on attainment demonstrations (Guidance 
on the Use of Models and Other Analyses for Demonstrating Attainment 
of Air Quality Goals for Ozone, PM2.5, and Regional Haze, April 
2007) recommends that states may supplement the attainment test with 
other evidence in a ``weight of evidence'' determination of whether 
the nonattainment area is likely to attain the NAAQS by its 
deadline. The EPA intends to recommend in a forthcoming update of 
this guidance that other evidence that can be considered includes 
recent monitored values that have been adjusted so that they better 
represent the air quality that would have existed in the absence of 
any unusual natural or anthropogenic events (if any) that influenced 
ozone concentrations on the monitored days. The EPA intends to apply 
certain eligibility conditions to this recommendation. Specifically, 
the EPA intends to apply an eligibility approach that is like the 
set of eligibility criteria in the Exceptional Events Rule. However, 
we will not apply the ``no exceedance but for'' concept that is part 
of the provision in 50.14(c)(3)(iv)(D) that limits the EPA approvals 
for data exclusion to situations in which there would have been no 
exceedance or violation of the NAAQS ``but for'' the event. In this 
way, the EPA guidance will effectively recommend that states can 
apply Exceptional Events Rule-like considerations to situations in 
which an event has exacerbated the level of a NAAQS exceedance (but 
that did not cause the exceedance in the ``but for'' sense) on 
historical days that occur during the ambient data base year period 
that is used in the attainment test to project future air quality. 
The EPA expects there to be limited situations where this potential 
adjustment would make a difference between future year estimated 
attainment and nonattainment. The EPA intends to work with state air 
agencies in the development of the planned update to our guidance on 
this topic.
---------------------------------------------------------------------------

7. What future year(s) should be modeled in attainment demonstrations?
    The future modeling year should be selected such that all emissions 
control measures relied on for attainment will have been implemented by 
that year. Note that for purposes of the 1997 ozone NAAQS and as we are 
proposing here for the 2008 ozone NAAQS, control measures relied upon 
to demonstrate attainment should be implemented by the beginning of the 
last full ozone season prior to the area's attainment date. To 
demonstrate attainment, the modeling results for the nonattainment area 
must predict that emissions reductions implemented by the beginning of 
the last full ozone season preceding the attainment date will result in 
ozone concentrations that meet the level of the standard.\21\ Because 
an area must attain ``as expeditiously as practicable,'' additional 
considerations are necessary before a future modeling year can be 
established. For example, although the maximum attainment date for a 
Moderate area designated in 2012 would be December 31, 2018, under the 
2008 ozone NAAQS Classifications Rule, the state would need to conduct 
a RACM analysis (CAA section 172(c)(1)) to determine if it can advance 
the area's attainment date by at least a year.\22\ Results of the RACM 
analysis may indicate attainment can be achieved earlier (e.g., by 
December 2016 or December 2017) through implementation of reasonably 
available control measures prior to the beginning of an earlier ozone 
season. For instance, if emission reductions sufficient to demonstrate 
attainment are implemented prior to the 2016 ozone season, then in this 
example the attainment year and the future projection year should be 
2016. We strongly recommend that the state discuss the selection of the 
future year(s) to model with the appropriate EPA regional office as 
part of the modeling protocol development process.
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    \21\ Note that for purposes of the 8-hour ozone NAAQS, a 
determination of attainment (or failure to attain), which EPA is 
required to make after the attainment date has passed, is based on 
the most recent 3 complete years of data prior to the area's 
attainment date. Attainment date extensions are only available if 
the 4th maximum 8-hour average ozone concentration in the attainment 
year is below the level of the standard.
    \22\ See section III.D.2 of this proposal for a discussion of 
RACM analysis requirements.
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8. Multi-State Nonattainment Areas
    The CAA requirement for multi-state ozone nonattainment areas (CAA 
section 182(j)) requires each state in which a portion of a multi-state 
ozone nonattainment area is located to use photochemical grid modeling 
or any other analytic method determined by the Administrator to be at 
least as effective and to take all reasonable steps to coordinate, 
substantively and procedurally, the development, submittal and 
implementation of SIPs applicable to the various states within the 
nonattainment area. The EPA interprets CAA section 182(j) to require 
coordination on all aspects of nonattainment SIPs, including the 
development of an attainment demonstration.

[[Page 34187]]

C. What are the RFP requirements for the 2008 ozone NAAQS?

1. Background
    Areas that are designated nonattainment for ozone must achieve RFP 
toward attainment of the ozone NAAQS. Part D of the CAA contains three 
separate provisions regarding RFP. Under subpart 1, section 172(c)(2) 
contains a general requirement that nonattainment SIPs must provide for 
reasonable further progress; this provision does not define RFP, but 
provides authority for the Administrator to do so. Sections 182(b)(1) 
and 182(c)(2)(B) under subpart 2 contain specific percent reduction 
targets for ozone nonattainment areas classified as Moderate and above 
and Serious and above, respectively. For Moderate and above areas, 
section 182(b)(1) requires a 15 percent reduction in VOC emissions from 
the baseline anthropogenic emissions over the 6-year period between 
designation and the Moderate area maximum attainment date. For Serious 
and above areas, section 182(c)(2)(B) requires an additional 3 percent 
per year reduction in VOC emissions beginning 6 years after designation 
until the attainment date.\23\ For the additional RFP requirement for 
Serious and above areas, section 182(c)(2)(B) allows NOX 
reductions to be substituted for VOC reductions under certain 
conditions. Note that the 15 percent requirement must be met by the end 
of the 6-year period regardless of whether the state attains the NAAQS 
prior to that point. The 3 percent per year requirement for Serious and 
above areas runs until the attainment date.
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    \23\ CAA section 182(c)(2)(B) states that Serious and above 
areas must achieve additional reductions of at least 3 percent per 
year ``averaged over each consecutive 3-year period.'' Thus it is 
equivalent to a nine percent additional reduction in baseline 
emissions for each subsequent 3-year period.
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    The Phase 2 Rule interpreted the requirements of subpart 2 as they 
would apply to areas for the 1997 ozone NAAQS. With respect to RFP, the 
Phase 2 Rule interpreted the section 182(b)(1) 15 percent RFP 
requirement such that an area that had already met the 15 percent RFP 
requirement for VOC under the 1-hour ozone NAAQS (for the first 6 years 
after the RFP baseline year for the 1-hour ozone NAAQS) would not have 
to fulfill that requirement again. Instead, Moderate areas would be 
treated like areas covered under section 172(c)(2), and Serious and 
above areas would be covered under section 182(c)(2)(B). For the 
purposes of the 1997 ozone NAAQS, the EPA interpreted section 172(c)(2) 
to require Moderate areas to obtain 15 percent ozone precursor emission 
reductions over the first 6 years after the baseline year for the 1997 
ozone NAAQS, and interpreted section 182(c)(2)(B) to require Serious 
and above areas to obtain 18 percent ozone precursor emission 
reductions in that 6 year period. Under the section 172(c)(2) and 
182(c)(2)(B) RFP requirements, NOX emission reductions could 
be substituted for VOC reductions. This provision of the Phase 2 Rule 
was upheld in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
2. In general, what is the EPA proposing as the RFP requirements for 
the 2008 ozone NAAQS?
    The EPA is proposing a number of provisions to address issues 
relevant to implementing RFP under the 2008 ozone NAAQS: (1) The timing 
for the submission of RFP plans; (2) restrictions on emission reduction 
measures that can be used to fulfill the RFP requirements under subpart 
2; 3) the RFP plan requirements of section 182(b)(1) of the CAA for 
nonattainment areas classified as Moderate or higher under the 2008 
ozone NAAQS for which no portion of such areas previously fulfilled the 
15 percent RFP requirement for VOC in section 182(b)(1); (4) the RFP 
plan requirements for nonattainment areas classified as Moderate or 
higher under the 2008 ozone NAAQS which consist entirely of former 
nonattainment areas that under a prior ozone NAAQS fulfilled the 15 
percent RFP requirement for VOC in section 182(b)(1); (5) the RFP plan 
requirements for nonattainment areas classified as Moderate or higher 
under the 2008 ozone NAAQS which consist partially of former 
nonattainment areas that under a prior ozone NAAQS fulfilled the 15 
percent RFP requirement for VOC in section 182(b)(1); and (6) proposed 
procedures for calculating RFP targets. Hereafter in the discussion of 
RFP requirements within this section, when we use the term ``2008 
nonattainment area'' we mean ``nonattainment area classified as 
Moderate or higher under the 2008 ozone NAAQS.''
a. What is the deadline for submitting RFP plans?
    As detailed in section III.A of this preamble, the EPA is proposing 
two options regarding the deadline(s) for submittal of the various SIP 
elements required for an ozone nonattainment area based on its 
classification for the 2008 ozone NAAQS. The first option is that the 
required SIP elements would be due in the time frame provided for such 
elements in section 182, with the specified time periods running from 
the effective date of designation for the 2008 ozone NAAQS. Thus, the 
RFP plan addressing the first 6-year period for Moderate and higher 
classified areas would be due 3 years from the effective date of 
designation; and the RFP plan addressing the additional 3 percent per 
year requirement for Serious and higher classified areas would be due 4 
years from the effective date of designation.
    The second option is to give states the choice to either submit the 
various SIP elements required for an area according to the timeframes 
specified by statute or to submit all of the required SIP elements 
within 30 months of the effective date of designation for the 2008 
ozone NAAQS; in other words, the state would submit one consolidated 
SIP, including all RFP obligations, no later than 30 months from the 
effective date of designation. For the same reasons discussed in 
section III.A of this preamble (related to SIP due dates), the EPA 
believes that it may be reasonable, and preferred by some states, to 
allow states to submit the RFP plans within 30 months in conjunction 
with all other required SIP elements.
    We are soliciting comment on options for submission deadlines as 
listed in this section and section III.A.
b. Restrictions on Emission Reduction Measures That Can Fulfill the RFP 
Requirement
    The CAA places certain restrictions on the emission reductions that 
are creditable toward meeting the RFP requirements. To be creditable, 
the reductions must meet the conditions in CAA sections 182(b) and 
182(c), including that reductions:
     Must be from measures required in the SIP, in a title V 
permit, or from rules promulgated by the EPA;
     Must occur during the RFP period;
     May not come from the pre-1990 EPA rules for motor vehicle 
exhaust and evaporative emissions; and
     May not come from the EPA rules limiting the Reid vapor 
pressure (RVP) of gasoline that were implemented by 1992.\24\
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    \24\ CAA section 182(b)(1)(D)(ii) states that ``Regulations 
concerning Reid vapor pressure promulgated by the Administrator by 
November 15, 1990, or required to be promulgated under section 
7545(h) of this title'' are not creditable toward required RFP 
reductions.
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    We are proposing that, except as specifically provided in section 
182(b)(1)(D) of the CAA, all SIP-approved or federally promulgated 
emissions reductions that occur after the baseline emissions inventory 
year are creditable for purposes of the RFP requirements, provided the 
reductions meet the standard requirements for

[[Page 34188]]

creditability.\25\ That is, to receive SIP credit, the reductions must 
be enforceable, quantifiable, permanent and surplus. We promulgated a 
regulatory provision adopting this same interpretation for purposes of 
implementing the 1997 ozone NAAQS. See 40 CFR 51.910(a)(2). CAA section 
182(b)(1)(D) imposes limitations on specific measures for which states 
may take credit for RFP reductions required under CAA sections 
182(b)(1) and 182(c)(2)(B).
    We are also proposing that all emission reductions creditable 
toward meeting RFP requirements must be from sources located within the 
nonattainment area. Section C.4 below discusses this issue in further 
detail.
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    \25\ Note that section III.C.2.f. below discusses the EPA's 
proposal regarding removal of the requirement to calculate non-
creditable emissions for pre-1990 vehicles.
---------------------------------------------------------------------------

c. What are the RFP plan requirements for 2008 ozone nonattainment 
areas for which no portion of the area has previously been required to 
meet the 15 percent RFP requirement for VOC in section 182(b)(1) of the 
CAA?
    Section 182(b)(1) of the CAA requires ozone nonattainment areas 
classified as Moderate or higher to submit a RFP plan to achieve a 15 
percent reduction in VOC baseline emissions over a 6-year period 
following the baseline year. If the area is classified Serious or 
higher, section 182(c)(2)(B) of the CAA requires an additional RFP plan 
to achieve an average of 3 percent additional emissions reductions per 
year for each subsequent 3-year period after the conclusion of the 
initial 6-year RFP period specified by section 182(b)(1).
    We are proposing that the RFP plan for a 2008 nonattainment area 
must provide for a 15 percent reduction in VOC emissions from the 
baseline emissions in the 6 years following the baseline emissions 
inventory year if no portion of that 2008 nonattainment area has 
already fulfilled the 15 percent RFP plan requirement for VOC.\26\ If 
such 2008 nonattainment area is classified as Serious or higher, the 
RFP plan for that 2008 nonattainment area must in addition achieve an 
average of three percent additional emissions reductions per year for 
each subsequent 3-year period after the conclusion of the initial 6-
year period specified by section 182(b)(1). We promulgated a similar 
regulatory provision adopting this interpretation for purposes of 
implementing the 1997 ozone NAAQS. See 40 CFR 51.910(a)(1)(i).
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    \26\ ``Fulfilled the 15 percent RFP plan requirement for VOC'' 
means EPA has approved an RFP plan for the geographic area as 
meeting the 15 percent RFP plan requirement for VOC specified in 
section 182(b)(1) of the CAA under a prior ozone NAAQS, whether it 
is the 1-hour ozone NAAQS or the 1997 8-hour ozone NAAQS.
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    In the alternative, we are proposing to allow an area to meet the 
15 percent RFP requirement in whole or in part with NOX 
reductions in lieu of VOC reductions if that area can demonstrate that 
it has in fact achieved a 15 percent reduction in VOC emissions from a 
1990 baseline. There are two reasons that we believe it makes sense to 
allow areas to substitute NOX for VOC in the 15 percent RFP 
plans. First, our understanding of the effects of reductions of VOC and 
NOX on ambient ozone levels has greatly improved since the 
1990 CAA Amendments were enacted, and there are technical tools more 
readily available to help states predict the combination of VOC and/or 
NOX that will be most effective in reducing ozone in a 
particular area. In many areas we now know that NOX 
reductions will have a far greater effect than VOC reductions on 
reducing ambient ozone concentrations. In fact, in some areas 
background levels of naturally-occurring VOC are so high that 
reductions in manmade VOC have limited effect on ozone. Since the 
purpose of the RFP provisions in section 182 is to foster the 
achievement of reasonable further progress toward attainment, we 
believe that it makes the most sense to allow states to credit toward 
the RFP requirement those reductions that an area most needs to reach 
attainment. Second, the mix of emissions across the country and in 
specific areas is very different than it was in 1990 because of 
emission controls that have gone into effect over the last 20 years. A 
variety of national and local VOC control measures affecting mobile and 
stationary sources have already substantially reduced the levels of 
manmade VOC. Since 1990, the EPA has issued aggressive national rules 
to reduce tailpipe VOC emissions from on-road vehicles and from non-
road engines. The EPA has also reduced evaporative emissions and 
vehicle refueling emissions through vehicle onboard refueling vapor 
recovery systems. VOC emissions from most major industrial sectors have 
also been substantially reduced through controls required to meet 
relatively stringent standards for hazardous air pollutants. The EPA 
has also promulgated national rules limiting the VOC content of the 
most ubiquitous paints/coatings and consumer products. These efforts 
have substantially reduced the anthropogenic VOC emissions inventory 
such that additional area-specific VOC reductions will be increasingly 
difficult to achieve.
    As a further alternative, if we do not finalize the proposal above 
to allow any area to substitute NOX reductions for VOC 
reductions where such area can demonstrate that it has achieved a 15 
percent reduction in VOC emissions from a 1990 baseline, we are 
proposing to allow such substitution only for areas located in the 
Ozone Transport Region (OTR) that would be subject to the 15 percent 
RFP requirement for the first time as a designated nonattainment area 
for the 2008 ozone NAAQS. Although attainment areas in the OTR were not 
required to adopt 15 percent RFP plans under section 184 of the CAA, 
they were required to adopt certain VOC reduction measures such as 
enhanced vehicle I/M plans in metropolitan statistical areas (MSAs) 
with a population of 100,000 or more, and RACT for all sources covered 
by a control technique guideline (CTG). At the time of the 1990 
Amendments it was expected that VOC reductions from those measures 
would account for a significant portion of the 15 percent RFP 
requirement for areas designated nonattainment. Thus, since attainment 
areas in the OTR were required to adopt and implement many of the same 
measures that applied in nonattainment areas, we are proposing that 
such areas should be treated as having met the 15 percent RFP 
requirement if they can demonstrate that they did, in fact, achieve a 
15 percent reduction in VOC emissions between 1990 and 1996 (even 
though they of course would not have submitted a 15 percent plan as 
they were not subject to the 15 percent requirement at that time). In 
such a case, the area would be treated the same as a nonattainment area 
that previously met the 15 percent requirement, as discussed below in 
section III.C.2.d.\27\ Specifically, these areas would still be 
required to submit a plan to achieve a 15 percent emission reduction, 
but could substitute NOX reductions for VOC in such plan.
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    \27\ The EPA's official on-road emissions model, MOVES, 
currently allows states to model emissions in 1990 and 1999 and 
later years, but not in 1996. EPA will evaluate whether the 
capability of modeling emissions in 1996 needs to be added to MOVES, 
or whether some other methodology can be used for this analysis.

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[[Page 34189]]

d. What are the RFP plan requirements for 2008 ozone nonattainment 
areas that consist entirely of one or more nonattainment areas for a 
former ozone NAAQS or pieces of nonattainment areas for a former ozone 
NAAQS where such areas fulfilled the 15 percent RFP plan requirement 
for VOC for that former ozone NAAQS?
    This provision covers any 2008 nonattainment area \28\ which 
consists entirely of a nonattainment area or portions of nonattainment 
areas for which we previously approved an RFP plan as meeting the 15 
percent RFP plan requirement for VOC in section 182(b)(1) of the CAA. 
Such a 2008 nonattainment area could consist of one or more 1-hour 
nonattainment areas, one or more nonattainment areas under the 1997 
ozone NAAQS, or a combination of nonattainment areas for either the 1-
hour or 1997 ozone NAAQS. However, all portions of the area that are a 
part of the 2008 nonattainment area must have an approved 15 percent 
RFP plan for either the 1-hour or the 1997 ozone NAAQS.\29\
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    \28\ 77 FR 30088, May 21, 2012.
    \29\ The following nonattainment areas were nonattainment for 
both the 1-hour and the 1997 ozone NAAQS, and remained the same size 
under the 2008 ozone NAAQS compared to the 1997 ozone NAAQS: 
Baltimore, MD; Los Angeles-San Bernardino Counties (West Mojave 
Desert), CA; Los Angeles-South Coast Air Basin, CA; Riverside County 
(Coachella Valley), CA; Sacramento Metro, CA; San Joaquin Valley, 
CA; and Ventura County, CA.
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    We are proposing that such 2008 nonattainment areas have met the 
CAA requirement for a 15 percent VOC reduction plan and are not 
required to fulfill that requirement again. As we did for the 1997 
ozone NAAQS, we propose to interpret the RFP requirement in section 
172(c)(2) to mean that a Moderate area must achieve a 15 percent 
reduction in baseline VOC emissions, but that NOX emission 
reductions may be substituted for the VOC reductions in the manner 
specified in section 182(c)(2)(C). Under section 182(c)(2)(B), Serious 
and higher classified areas would be required to achieve an average of 
3 percent emission reductions per year for each 3-year period following 
the baseline year (i.e., a total of 18 percent emissions reduction in 
the first 6 years) and NOX emission reductions could be 
substituted as provided under section 182(c)(2)(C).
e. What are the RFP plan requirements for 2008 ozone nonattainment 
areas that include portions consisting of all or a piece of one or more 
nonattainment areas for a previous NAAQS and which fulfilled the 15 
percent RFP plan requirement for VOC for that previous NAAQS and 
portions that have never been subject to or never have fulfilled the 15 
percent RFP plan requirement for VOC for a previous NAAQS?
    This provision addresses those areas that include all or part of a 
nonattainment area under a former ozone NAAQS that fulfilled the 15 
percent RFP plan requirement for VOC and all or part of an area that 
was not subject to or did not meet the 15 percent requirement for a 
former ozone NAAQS. The most common situation in which this would arise 
is when a 2008 nonattainment area consists of a former nonattainment 
area and additional surrounding areas (e.g., all or part of surrounding 
counties) that have not previously been designated nonattainment for 
ozone.
    For such 2008 nonattainment areas, we are proposing that the state 
choose between two approaches for addressing the 15 percent RFP 
requirement. First, the state could choose to treat the entire area as 
an area that never met the 15 percent requirement, and meet the 
requirements of subsection III.C.2.c of this section, described 
previously. Second, the state could choose to treat the 2008 
nonattainment area as divided into two portions: the former non-RFP 
plan portion and the former RFP plan portion. For the former non-RFP 
plan portion of the 2008 nonattainment area, the plan would establish a 
separate 15 percent VOC reduction requirement under section 182(b)(1) 
of subpart 2. However, VOC emissions reductions to meet the 15 percent 
requirement may come from across the entire 2008 nonattainment area, 
provided that the former RFP plan portion of the area also has a VOC 
reduction target as part of its RFP plan for the 2008 ozone NAAQS. If 
the RFP plan for the 2008 ozone NAAQS for the former nonattainment area 
relies solely on NOX reductions, then the portion of the 
nonattainment area never before subject to nonattainment requirements 
is still responsible for the 15 percent VOC reductions.
    For the former RFP plan portion of the 2008 nonattainment area, the 
RFP requirements in section 172(c)(2) will apply if the 2008 
nonattainment area is classified as Moderate as described previously in 
this document in subsection III.C.2.d of this section. Also, as 
described in subsection III.C.2.d of this section, CAA section 
182(c)(2)(B) RFP requirements will apply if the 2008 ozone NAAQS 
nonattainment area is classified as Serious or higher.
f. How should states account for non-creditable reductions when 
calculating RFP emission reduction targets?
    Section 182(b)(1)(D) specifies four categories of control measures 
that are not creditable toward the 15 percent RFP requirement under CAA 
section 182(b)(1)(A): (i) Measures related to motor vehicle exhaust or 
evaporative emissions promulgated by January 1, 1990; (ii) regulations 
concerning RVP promulgated by November 15, 1990; (iii) measures to 
correct previous RACT requirements; and (iv) measures required to 
correct I/M programs. With the exception of the first category, 
reductions from these measures were achieved many years ago, so the 
question of creditability is moot for RFP credit for the 2008 ozone 
NAAQS. For the motor vehicle standards, a small amount of reduction is 
still occurring due to fleet turnover. In Appendix A to the preamble of 
the Phase 2 Rule (70 FR 71696, as amended by 71 FR 58498, October 4, 
2006), we presented methodologies for accounting for non-creditable 
emission reductions consistent with requirements of section 
182(b)(1)(D)(i) of the CAA. The procedures vary with the types of 
areas. The EPA also issued a memorandum that supplements the 
Appendix.\30\ We are proposing as one alternative to eliminate the 
obligation for states to continue to perform this calculation because 
these reductions are now very small and will continue to further 
decrease in future years. The calculation of non-creditable reductions 
is based on the impact of pre-1990 model year vehicles on the total 
emissions inventory. In 2011, pre-1990 model year vehicles are 
estimated to account for only 2 percent of vehicle miles traveled 
(VMT), 5 percent of total on-road VOC emissions and 3 percent of total 
on-road NOX emissions using national estimates of fleet 
composition, activity and emissions from the EPA's latest emissions 
model. By 2017, the first year for which non-creditable reductions must 
be calculated for the 2008 ozone NAAQS, pre-1990 model year vehicles 
will be 27 years old and older. These vehicles will account for 
approximately 0.2 percent of total VMT, 0.6 percent of total on-road 
VOC emissions and 0.4 percent of total on-road NOX emissions

[[Page 34190]]

in 2017, using national estimates of fleet composition, activity and 
emissions from the EPA's latest emissions model. Local results may 
vary, but the non-creditable reductions associated with the turnover of 
these vehicles everywhere will be a very small fraction of the total 
on-road VOC emissions inventory by 2017 and will continue to decrease 
over future years. Accounting for all other emission sources, on-road 
VOC emissions typically constitute less than half of the total VOC 
inventory and about half of the total NOX inventory, so 
these percentages would be further reduced in the context of the total 
emissions inventory. Calculating non-creditable reductions will 
continue to be a very resource-intensive process requiring multiple 
modeling runs and extensive staff time. We are proposing to remove the 
burden of performing this calculation for purposes of RFP for the 2008 
ozone NAAQS based on the de minimis nature of these non-creditable 
reductions. If the final rule requires states to account for these non-
creditable reductions, we are proposing in the alternative that the 
calculation should be performed as described in Appendix C to this 
preamble.
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    \30\ Memorandum from William T. Harnett re: ``8-Hour Ozone 
National Ambient Air Quality Standards (NAAQS) Implementation--
Reasonable Further Progress (RFP),'' August 15, 2006. See first Q & 
A.
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g. Alternative Approaches To Achieving RFP
    In the spirit of the Executive Order 13563 titled, ``Improving 
Regulation and Regulatory Review,'' signed by President Barack Obama on 
January 18, 2011, which directs federal agencies to offer and support 
flexible, common sense approaches, the EPA is taking comment on 
allowing states to use additional alternative approaches to achieving 
RFP goals. One alternative is an air quality-based approach that would 
measure RFP in terms of actual ambient air quality improvements tied to 
an area's percent emission reduction requirements. Such an approach 
would involve work on the part of the state to translate an area's RFP 
emissions reduction targets (tons) into ozone improvement targets (ppb) 
based on air quality modeling or other appropriate analyses. The 
emission reduction targets for the area should be expressed in terms of 
the pollutant (VOC or NOX) which, when reduced, is most 
effective in reducing ozone concentrations in the area. Under this 
approach, RFP milestones would be satisfied if the area implements the 
target emissions reduction strategies and achieves the targeted ozone 
air quality improvement over the relevant RFP assessment period. This 
approach would retain a state's accountability for making consistent 
incremental progress while focusing on the most direct measurement of 
improvement, namely air quality. A similar approach is already included 
in the implementation rules that govern SIP development for the 
PM2.5 NAAQS (See 40 CFR 51.1009(g) and (h)).
    Another alternative approach would be to adjust (or ``weight'') the 
amount of RFP credit given for reductions of individual species (or 
similar groups) of VOCs based on their ozone forming potential (i.e., 
photochemical reactivity). Accordingly, reductions of VOCs with 
relatively high photochemical reactivity would be given more credit 
toward RFP requirements and reductions of VOCs with relatively low 
photochemical reactivity would be given less credit toward those 
requirements. For example, reducing one ton of a highly reactive VOC 
(i.e., with 1.5 times the ozone forming potential of an average VOC) 
could be given a RFP credit of 1.5 tons, reducing one ton of a low 
reactive VOC (i.e., with 0.5 times the ozone forming potential of an 
average VOC) could be given a RFP credit of 0.5 tons, and reducing one 
ton of a VOC with average reactivity could be given a RFP credit of 1.0 
tons. Such an approach provides an incentive for states to target those 
VOC reductions that will have the greatest impact on actual ozone 
formation. In order to use this approach, the EPA and/or states would 
need to develop more detailed operational parameters, guidelines or 
rules derived from scientific assessment.
    For both of these alternative approaches, the EPA is seeking 
comment on the usefulness and practicality of the approach, and 
specifically on whether there is adequate legal basis under the CAA to 
approve SIPs that would employ these approaches.
3. What baseline year may states use for the emission inventory for the 
RFP requirement?
    The baseline inventory for RFP is used as the starting point for 
determining a target level of emission reductions to meet the RFP 
requirement--in other words, it is the baseline from which creditable 
reductions are determined. Section 182(b)(1)(B) of the CAA, as amended 
in 1990, states that the term ``baseline emissions'' is defined as the 
total amount of actual VOC (or NOX) emissions from all 
anthropogenic sources in the area during the calendar year 1990. The 
initial 6-year RFP period covered the 6 years following the baseline 
year, 1991-1996, ending in the year that areas classified as Moderate 
under the 1-hour NAAQS were required to attain that NAAQS.
    For the 2008 ozone NAAQS, the EPA is proposing that states should 
use as the baseline year for RFP the calendar year for the most 
recently available triennial emission inventory at the time RFP plans 
are developed. We promulgated a regulatory provision adopting this same 
interpretation for purposes of implementing the 1997 ozone NAAQS. See 
40 CFR 51.910(d). A triennial emissions inventory under the Air 
Emissions Reporting Requirements (AERR) Rule (73 FR 76539; December 17, 
2008) is required for the year 2011 and was required to be submitted to 
the EPA by December 31, 2012. For the 1997 ozone NAAQS, our regulations 
also provided that a state has flexibility to use an alternative 
baseline year if it shows that the alternative year is appropriate and 
justifiable. We are proposing to allow similar flexibility for the 2008 
ozone NAAQS.
    A RFP baseline year of 2011 is analogous to the approach provided 
for RFP in the CAA as amended in 1990. The CAA required a 1990 baseline 
for the 15 percent RFP requirement which lined up the 6-year 15 percent 
RFP period with the 1996 attainment date for Moderate areas under the 
1-hour NAAQS. For the 2008 ozone NAAQS, initial area designations were 
effective in 2012 and the 6-year RFP period from a baseline of 2011 
(i.e., January 1, 2012-December 31, 2017) would line up reasonably well 
with the Moderate area attainment date of 2018. As noted above, the 
AERR Rule required states to report emissions for calendar year 2011 to 
the EPA by December 31, 2012. This is about 2.5 years before the July 
20, 2015, deadline for 15 percent RFP plans to be submitted. The EPA 
believes this timing is reasonable for areas designated nonattainment 
in 2012 and allows time for states to develop and submit an RFP plan, 
as well as time to implement measures to satisfy the RFP requirement by 
December 31, 2017. If a state chooses 2011 as a baseline year for a 
Moderate area designated nonattainment in 2012, the 15 percent 
reduction requirement covers the period from January 1, 2012, to 
December 31, 2017. The 6-year period concludes one year prior to the 
December 31, 2018, attainment date. Areas using 2011 as a base year 
would thus have to achieve whatever additional emissions reductions are 
needed to provide for attainment of the standard by December 31, 2018. 
This corresponds to the approach taken in the Phase 2 Rule (70 FR 
71615-71616).
    However the EPA is also proposing that states have the option of 
selecting an appropriate and justifiable alternate

[[Page 34191]]

year as a baseline year for RFP. If states choose a pre-2011 baseline 
year, the EPA is proposing that the 6-year period for achieving the 15 
percent reduction starts in January of the year following the selected 
baseline year. When a year prior to 2011 is chosen as the baseline 
year, the 6-year period thus concludes more than one year prior to the 
start of the attainment year for the area. In this situation, the EPA 
is proposing that the area is responsible for a 3 percent emissions 
reduction each year after the initial 6-year period has concluded up to 
the beginning of the attainment year. For example, if 2009 is chosen as 
a baseline year for a Moderate area, the 15 percent reductions cover 
the period from January 1, 2010 to December 31, 2015. The area would 
need to generate an additional 3 percent emissions reduction per year 
for the years 2016 and 2017. As in the Phase 2 Rule and consistent with 
CAA section 182(c)(2), Serious and higher classified areas would need 
to provide in their SIPs an additional average of 3 percent per year 
emission reduction over each subsequent year beyond the initial 6-year 
period through the attainment year (70 FR 71616).
    We are proposing that for a multi-state nonattainment area, all 
states associated with the nonattainment area must consult and agree on 
the same alternate year to use as the baseline year for RFP.
4. Can emission reductions from sources located outside the 
nonattainment area boundary apply toward RFP?
a. Background
    Under the EPA's initial Phase 2 Rule,\31\ certain emission 
reductions from outside a nonattainment area can be credited toward 
meeting the 1997 ozone NAAQS RFP requirement. See 70 FR 71647-49. For 
the same reasons provided in our proposed rule \32\ to revise this 
provision for the 1997 ozone NAAQS, the EPA is proposing to not allow 
states to rely on credit for emission reductions from outside the 
nonattainment area to meet RFP obligations for the 2008 ozone NAAQS.
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    \31\ See Final Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 2 (70 FR 71612, November 29, 
2005).
    \32\ Reasonable Further Progress Requirements for the 1997 8-
Hour Ozone National Ambient Air Quality Standard (75 FR 80420, 
December 22, 2010).
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    The language in the CAA's baseline emissions provision for 
determining the emissions reductions required for RFP purposes 
(sections 182(b)(1)(B) and 182(c)(2)(B)) is almost identical to the 
language in the CAA's RACT provision (section 172 (c)(1)). The issue of 
taking credit for reductions from outside the nonattainment area was 
raised in the context of the RACT provision and decided by the court in 
NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009). The court there held that 
``the RACT requirement calls for reductions in emissions from sources 
in the area; reductions from sources outside the nonattainment area do 
not satisfy the requirement.'' NRDC at 1256. We note the similarity in 
language in the several provisions of the CAA, but also the difference 
between RACT, which is a source specific requirement, and RFP, which is 
not.
b. Proposal
    The EPA is therefore proposing that for the 2008 ozone NAAQS states 
may not take credit for VOC or NOX reductions occurring 
outside the nonattainment area for purposes of meeting the 15 percent 
and 3 percent RFP requirements of sections 172(c)(2), 182(b)(1) and 
(c)(2)(B). This approach would mean that RFP credit for meeting the 15 
percent VOC requirement for Moderate and above ozone nonattainment 
areas in section 182(b)(1) and the additional 3 percent per year 
requirement for Serious and above ozone nonattainment areas in section 
182(c)(2)(B) could come only from emission reductions from within the 
nonattainment area. The EPA notes that the required 15 percent and 3 
percent reductions are calculated from the baseline emissions inventory 
for the nonattainment area, which reflects only emissions within the 
nonattainment area. In nonattainment areas where there are few 
significant local emission sources, and thus relatively small emission 
inventories, the required reduction percentages would similarly 
translate into only small required emission reductions. Areas still can 
and should, where appropriate, rely on out-of-area reductions for 
purposes of demonstrating attainment. There is no limitation under the 
attainment demonstration provisions of the CAA that restricts states 
from considering outside-the-area reductions as part of the modeled 
attainment demonstration for an area. As EPA has previously said, in 
determining the attainment date that is as expeditious as practicable, 
the state should consider impacts on the nonattainment area of 
intrastate transport of pollution from sources within its jurisdiction, 
and potential reasonable measures to reduce emissions from those 
sources.
    At the same time, the EPA recognizes that not allowing credit for 
reductions outside the nonattainment area will make it more challenging 
for some areas, such as the areas adjacent to the South Coast 
nonattainment area in California, namely, Coachella Valley, West Mojave 
Desert and Ventura County in California, to meet their RFP requirements 
and may foreclose some cost-effective opportunities for emissions 
reductions. Despite the court's opinion in NRDC, the EPA continues to 
believe that there remain valid policy reasons for giving states 
incentive to focus on obtaining emission reductions that are the most 
beneficial and cost effective for achieving air quality progress and 
attaining the ozone standards. The EPA believes there may be cases 
where the most beneficial and cost-effective reductions are from 
sources located outside the nonattainment area boundaries. In these 
cases, we believe it would be good policy to credit the emission 
reductions toward meeting RFP requirements. To this end, the EPA is 
also taking comment on whether there is a clear legal rationale for 
allowing credit for reductions outside the nonattainment area to 
satisfy the RFP requirements for the 2008 ozone NAAQS. We encourage 
commenters to consider how the baseline emission inventory should be 
determined if reductions from outside the nonattainment area were able 
to be creditable for RFP requirements. If the EPA receives comment that 
provides a clear legal justification for this approach, we will 
seriously consider including this approach in the final rule.
    The EPA requests comments on the proposal and its implications for 
the 2008 ozone NAAQS.

D. How do RACT and RACM requirements apply for 2008 ozone NAAQS 
nonattainment areas?

1. Reasonably Available Control Technology
a. Background
    Subpart 1 of part D of the CAA includes a requirement that an 
attainment plan must provide for the implementation of all RACM as 
expeditiously as practicable, including such reductions that may be 
obtained through RACT.\33\ Subpart 2 requires Marginal ozone 
nonattainment areas to correct pre-1990 RACT requirements and requires 
Moderate and above areas to adopt RACT rules for all VOC and

[[Page 34192]]

NOX sources covered by existing or new CTGs and for all 
other major sources of VOC and NOX (unless the state has 
received a NOX waiver). Additionally, states must adopt RACT 
for all VOC and NOX sources covered by a CTG, and for all 
other major sources of VOC and NOX in the OTR (CAA section 
184(b)(1)).
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    \33\ The EPA has defined RACT as the lowest emission limitation 
that a particular source is capable of meeting by the application of 
control technology that is reasonably available considering 
technological and economic feasibility (December 9, 1976 memorandum 
from Roger Strelow, Assistant Administrator for Air and Waste 
Management, to Regional Administrators, ``Guidance for Determining 
Acceptability of SIP Regulations in Non-Attainment Areas'' and also 
in 44 FR 53762; September 17, 1979).
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    Since the 1970s, the EPA has issued CTGs that establish presumptive 
RACT-level control requirements for various source categories. The CTGs 
usually identify a particular control level which the EPA recommends as 
being RACT. In some cases, the EPA has issued Alternative Control 
Techniques guidelines (ACTs) for source categories.\34\ ACTs differ 
from CTGs in that they present a range for possible control options but 
do not identify any particular option as the presumptive norm for what 
is RACT. Section 183(c) of the CAA requires the EPA to ``revise and 
update [CTGs and ACTs] as the Administrator determines necessary.'' The 
EPA issued eleven new CTGs from 2006 through 2008.\35\ For 
nonattainment areas classified as Moderate or higher, states are 
required to address RACT for the source categories covered by CTGs.
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    \34\ See http://www.epa.gov/air/ozonepollution/SIPToolkit/ctgs.html.
    \35\ CTGs updated from 2006 through 2008: Industrial Cleaning 
Solvents; Offset Lithographic Printing and Letterpress Printing; 
Flexible Package Printing; Flat Wood Paneling Coatings; Paper, Film, 
and Foil Coatings; Large Appliance Coatings; Metal Furniture 
Coatings; Miscellaneous Metal and Plastic Parts Coatings; Fiberglass 
Boat Manufacturing; Miscellaneous Industrial; and Automobile and 
Light-Duty Truck Assembly Coatings.
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    Some of the CTGs specify the minimum size of sources to which they 
apply. Where a CTG does not specify the minimum size of sources to 
which it applies or there is no CTG for a source category, states are 
required to apply the RACT requirement to sources in a nonattainment 
area that exceed the size threshold corresponding to the statutory 
definition of ``major stationary source.'' Section 302 of the CAA 
defines major stationary source as a source that emits 100 tons per 
year (tpy) or more of any air pollutant, and for ozone the air 
pollutants of concern are NOX and VOC. That 100 tpy 
threshold, however, is modified by subsections 182(c)-(f) of the CAA, 
which define a major source for Serious areas as a source that emits 
more than 50 tpy of VOC or NOX; for Severe areas as a source 
that emits more than 25 tpy of VOC or NOX; and for Extreme 
areas as a source that emits more than 10 tpy of VOC or 
NOX.\36\
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    \36\ Note, however, that an area may have obligations under 
anti-backsliding provisions based on classification under the 1-hour 
and/or the 1997 8-hour ozone NAAQS. Those obligations may result in 
a lower major source threshold for purposes of applying RACT than 
the classification associated with the 2008 ozone NAAQS.
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    The CAA required states to submit RACT SIPs for Moderate and higher 
classified areas within 2 years after enactment of the 1990 CAA 
Amendments and required implementation as expeditiously as practicable 
but no later than May 31, 1995, or 54 and one-half months following 
enactment of the 1990 Amendments (i.e., no later than 30 and one-half 
months after the required RACT SIP submission date).
    In considering modification to existing RACT guidance,\37\ the EPA 
believes there are two principles worth emphasizing:
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    \37\ May 18, 2006 memorandum from William T. Harnett, Director, 
Air Quality Policy Division, to Regional Air Division Directors, 
``RACT Qs & As--Reasonable Available Control Technology (RACT): 
Questions and Answers.''
---------------------------------------------------------------------------

    1. The implementation rules should conform closely to the clearly 
articulated goal of the CAA that states implement measures that provide 
for attainment of the ozone standard as expeditiously as practicable.
    2. The implementation rules should enable, if not encourage, the 
adoption of emission reduction strategies that will be the most 
effective, and the most cost effective, at reducing ozone levels.
b. Proposal
i. Substantive Requirements
    RACT SIPs must contain adopted RACT regulations, certifications 
where appropriate that existing provisions are RACT, and/or negative 
declarations that there are no sources in the nonattainment area 
covered by a specific CTG source category. States must provide notice 
and opportunity for public comment on their RACT submission even where 
the state determines to certify that the existing provisions remain 
RACT or where the state submits a negative declaration. States must 
also submit appropriate supporting information for their RACT 
submission as described in the Phase 2 Rule. See 70 FR 71652.
    States should use current EPA guidance and any other information 
available in making RACT determinations.\38\ The EPA recognizes that 
existing CTGs and ACTs for many source categories have not been revised 
in a number of years. However, in most cases, more recent technical 
information is available in other forms, such as the BACT/LAER 
Clearinghouse; SIPs for other nonattainment areas, in particular those 
areas with higher classifications; the ``Menu of Control Measures'' for 
NOX and VOC; and emissions standards developed under CAA 
section 111(d) and NSR/prevention of significant deterioration (PSD) 
settlement agreements. As part of their RACT SIP submission, states 
should provide adequate documentation that they have considered control 
technology that is economically and technologically feasible. The 
analysis of economic and technological feasibility should be based on 
information that is current as of the time of development of the RACT 
SIP for the 2008 ozone NAAQS. In other words, it is not sufficient for 
states to rely on previous RACT determinations without considering more 
recent information. Where public commenters submit specific information 
to a state about controls that are alleged to be reasonably available 
in light of technological and economic feasibility, the state should 
consider such information in developing its RACT SIP. The EPA generally 
considers controls that have been achieved in practice by other 
existing sources in the same source category to be technologically and 
economically feasible. In some cases, states may conclude that sources 
already subject to RACT for the 1-hour and/or 1997 ozone NAAQS are also 
meeting the 2008 ozone NAAQS RACT requirement.
---------------------------------------------------------------------------

    \38\ EPA's CTGs and ACTs are located at http://www.epa.gov/air/ozonepollution/SIPToolkit/ctgs.html.
---------------------------------------------------------------------------

    The EPA's NOX RACT guidance (Nitrogen Oxides Supplement 
to the General Preamble, 57 FR 55625; November 25, 1992) encouraged 
states to develop RACT programs that are based on ``area wide average 
emission rates.'' Additional guidance on area-wide RACT provisions is 
provided by EPA's January 2001 economic incentive program guidance 
titled, ``Improving Air Quality with Economic Incentive Programs.'' 
\39\ Thus, the EPA's existing policy recognizes the approach of states 
submitting a demonstration as part of their NOX RACT SIP 
submittal showing that the weighted average NOX emission 
rate from sources in the nonattainment area subject to RACT meets 
NOX RACT requirements.
---------------------------------------------------------------------------

    \39\ http://www.epa.gov/ttn/oarpg/t1/memoranda/eipfin.pdf.
---------------------------------------------------------------------------

    As part of their RACT submission, states have the option of 
demonstrating that compliance with a regional trading program by 
certain sources within a nonattainment area will achieve RACT-level 
reductions for those sources within the nonattainment area. The 
analysis would need to consider current control technology and cost 
effectiveness information as part of any such demonstration, and to 
show that the trading program achieves emission

[[Page 34193]]

reductions greater than or equal to reductions that would be achieved 
through a source-specific application of RACT in the nonattainment 
area.
    In the preamble to the Phase 2 Rule, the EPA explained that states 
could, in certain circumstances, conclude that sources (EGUs and some 
non-EGUs), in compliance with the requirements of regional trading 
programs established by the NOX SIP Call and/or the Clean 
Air Interstate Rule (CAIR), have met their ozone NOX RACT 
requirements with respect to the 1997 ozone standards. See 70 FR 71612, 
71656-58. EPA subsequently modified its guidance regarding when 
compliance with CAIR may satisfy NOX RACT requirements for 
EGUs in CAIR states. See 72 FR 31727, 31730-37.
    On July 10, 2009, in NRDC v. EPA, the Court of Appeals for the DC 
Circuit remanded the provision of the Phase 2 Rule determining that 
compliance with the NOX SIP Call satisfies NOX 
RACT because EPA had failed to show that compliance with the 
NOX SIP Call would achieve at least RACT-level reductions in 
each nonattainment area.\40\ The court held that ``[b]ecause the EPA 
has not shown that the NOX SIP call compliance will result 
in at least RACT-level reductions in emissions from sources within each 
nonattainment area, the EPA's determination that compliance with the 
NOX SIP call satisfies the RACT requirement is inconsistent 
with the ``in the area'' requirement and thus violates the plain text 
of [section] 172 (c)(1).'' \41\ Additionally, the court emphasized that 
``the RACT requirement calls for reductions in emissions from sources 
in the area; reductions from sources outside the nonattainment area do 
not satisfy the requirement . . . Accordingly, participation in the 
NOX SIP call would constitute RACT only if participation 
entailed at least RACT-level reductions in emissions from sources 
within the nonattainment area.''
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    \40\ In view of its decision in North Carolina v. EPA, in which 
the Court had previously remanded the CAIR, the Court deferred 
consideration of the litigant's challenge insofar as it related to 
the CAIR program.
    \41\ See NRDC v. EPA, 571 F.3d 1245.
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    The EPA believes that the concerns expressed by the court about the 
agency's approach to the NOX RACT requirement for sources, 
including EGUs, and the emissions reductions required by the 
NOX SIP Call raise significant questions about the EPA's 
approach to the comparable issues related to compliance with the CAIR.
    The EPA has not analyzed whether participation in either the 
NOX SIP call or CAIR would achieve reductions at least 
equivalent to what would be achieved if RACT requirements were applied 
on a source-specific basis in nonattainment areas for the 2008 ozone 
NAAQS. The analysis the EPA prepared for the Phase 2 Rule addressed 
only nonattainment areas for the 1997 ozone NAAQS. Moreover, since 
source-specific control assumptions would need to be developed in order 
to determine the overall reduction level achievable in a nonattainment 
area through source-specific application of RACT, the EPA believes 
states are in a better position than EPA to conduct this analysis.
    The statute, as interpreted by the court in NRDC v. EPA, provides 
that RACT SIPs must demonstrate that RACT-level emission reductions are 
achieved within the relevant nonattainment area. Thus, and for the 
reasons explained above, it does not allow states to, without providing 
such demonstration, rely upon the participation of a source in a 
regional cap-and-trade program to satisfy RACT requirements. However, 
as noted above, states retain the option of demonstrating that 
compliance with a regional trading program by certain sources within a 
nonattainment area, will achieve RACT-level reductions for those 
sources within the nonattainment area.
    For clarity, we also note that a state has discretion to require 
beyond-RACT reductions from any source, and has an obligation to 
demonstrate attainment as expeditiously as practicable. Thus, states 
may require VOC and NOX reductions that are ``beyond RACT'' 
if such reductions are needed in order to provide for timely attainment 
of the ozone NAAQS.
    The EPA is soliciting comment on modifying existing guidance to 
provide additional flexibility in implementing the section 182(b)(2) 
RACT requirements. In some nonattainment areas additional reductions of 
anthropogenic VOC emissions have been scientifically demonstrated to 
have a limited impact on reducing ozone concentrations. We are 
soliciting comment on whether such a demonstration is an appropriate 
factor to consider in determining what is ``reasonable'' in a RACT 
analysis. This modification to existing guidance is being explored in 
the spirit of the Executive Order 13563 titled, ``Improving Regulation 
and Regulatory Review,'' signed by President Barack Obama on January 
18, 2011, which directs governmental agencies to offer and support 
flexible, common sense approaches. The EPA recognizes that limited 
state and federal resources need to be used where they will produce the 
best environmental benefit, and that we should attempt to accommodate 
air quality management approaches that will be a better use of public 
and private resources and lead to more expeditious attainment.
    In some areas, additional VOC reductions may be of little value in 
further reducing ozone, and may be far less effective than 
NOX reductions (which may be quicker to implement and lower 
cost). Under such circumstances, the EPA is taking comment on whether 
state RACT determinations could take into consideration, in the 
evaluation of what is economically feasible, the potential air quality 
benefit (or lack thereof) of further VOC controls. Commenters should 
discuss the specific circumstances and limitations to which an air 
quality benefit factor would apply. For example, commenters should 
address whether this approach would (or can) be limited to cases where 
it can be scientifically demonstrated that additional VOC controls are 
ineffective in reducing ambient ozone concentrations. In addition, 
commenters are encouraged to provide specific examples of where 
modeling has demonstrated that anthropogenic VOC reductions have 
``negligible effect.'' Commenters, if possible, should also provide a 
defensible threshold for defining ``ineffective,'' and define a test 
for concluding that the effect of additional VOC reductions would be 
``negligible.'' The EPA is also interested in comments that address 
whether this flexibility should be provided on an individual source 
basis, or also on a source category basis. Any approaches suggested by 
commenters should also address how public health and welfare will be 
impacted. Finally, commenters are encouraged to provide an explanation 
as to the specific legal basis for supporting the suggested approach.
    For VOC sources subject to MACT standards, our policy is to allow 
states to streamline their RACT analysis by including a discussion of 
the MACT controls and considerations relevant to VOC RACT. 
Historically, in many cases, states have been able to rely on MACT 
standards for purposes of showing that a source has met VOC RACT. 
States need to take care to ensure that any MACT controls relied on for 
RACT adequately address all VOCs and not just those that are also HAPs. 
For example, if a manufacturer complies with MACT by reformulating 
products to remove HAPs but the production process still releases non-
HAP VOCs, the state would need to justify why the MACT meets the RACT 
requirement for that source or would need to develop an

[[Page 34194]]

appropriate RACT rule to address non-HAP VOCs.
ii. Timing
    We are proposing two alternatives for when states would be required 
to submit RACT SIPs. Under the first alternative, states with Moderate 
and higher classified areas would be required to submit RACT SIPs 
within the period specified in section 182(b) with the time running 
from the effective date of an area's designation for the 2008 ozone 
NAAQS (i.e., within 2 years from the effective date of designation). 
Under the second alternative, states would be given the choice of 
submitting RACT SIPs for Moderate and higher classified areas either as 
part of a consolidated SIP submittal 30 months after the effective date 
of designation, or within the period of time provided in section 
182(b), as described above. The 30-month option would align the 
submission date for the RACT SIP with the proposed submission date for 
other SIP elements for the area's classification in order to relieve 
states of the added burden that can result from processing different 
SIP elements at different times.
    We are also proposing a specific deadline by which RACT measures 
are to be implemented for the 2008 ozone NAAQS. Section 182(b)(2) 
requires RACT measures to be implemented as expeditiously as 
practicable, but no later than May 31, 1995, which was 54 and one-half 
months from the date of enactment of the 1990 CAA Amendments. This date 
was also near the beginning of the ozone season for many nonattainment 
areas at the time of enactment, and ensured that RACT measures were 
required to be in place during most of the last two ozone seasons 
before the Moderate area attainment date of November 15, 1996. For the 
2008 ozone NAAQS, we are proposing that areas must implement RACT 
measures as expeditiously as practicable, but no later than January 1 
of the fifth year after the effective date of a nonattainment 
designation. Nonattainment designations for all areas of the country 
were effective July 20, 2012. RACT measures for these areas would be 
required to be implemented by January 1, 2017. This allows a comparable 
amount of time for sources to meet RACT requirements as originally 
anticipated under the 1990 CAA Amendments, and ensures that RACT 
measures are required to be in place throughout the last two ozone 
seasons prior to the Moderate area attainment date of December 31, 
2018.
    If we finalize the ``state's choice'' approach for when SIP 
elements would be due, those states which chose to submit a 
consolidated SIP within 30 months of designation would have a little 
longer to develop and submit their RACT SIPs, but affected sources 
would have a little less lead time to implement the adopted 
requirements. Thus, any emission reductions due to RACT would not be 
delayed due to the slightly later RACT SIP submission date. The EPA 
believes this is a reasonable interpretation of the statute in this 
case.
2. Reasonably Available Control Measures (RACM)
    The RACM requirement, which is set forth in section 172(c)(1) of 
the CAA, applies to all nonattainment areas that are required to submit 
an attainment demonstration. The EPA has issued policies and procedures 
related to RACM. Specifically, the EPA has issued guidance that 
interprets the RACM provision to require a demonstration that the state 
has adopted all reasonable measures (including RACT) to meet RFP 
requirements and to demonstrate attainment as expeditiously as 
practicable and thus that no additional measures that are reasonably 
available will advance the attainment date or contribute to RFP for the 
area.42 43 44 We believe that this guidance should continue 
to apply for purposes of the 2008 ozone NAAQS.
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    \42\ ``State Implementation Plans; General Preamble for Proposed 
Rulemaking on Approval of Plan Revisions for Nonattainment Areas'' 
44 FR 20372 at 20375 (April 4, 1979). ``State Implementation Plans; 
General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990; Proposed Rule.'' 57 FR 13498 at 13560 (April 
16, 1992).
    \43\ ``Guidance on the Reasonably Available Control Measures 
(RACM) Requirement and Attainment Demonstration Submissions for 
Ozone Nonattainment Areas.'' John S. Seitz, Director, Office of Air 
Quality Planning and Standards. November 30, 1999. www.epa.gov/ttn/oarpg/t1/memoranda/revracm.pdf.
    \44\ Memorandum of December 14, 2000, from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, re: 
``Additional Submission on RACM from States with Severe One-Hour 
Ozone Nonattainment Area SIPs.'' www.epa.gov/ttn/oarpg/t1/memoranda/121400_racmmemfin.pdf.
---------------------------------------------------------------------------

    The determination of whether a SIP contains all RACM requires an 
area-specific analysis that there are no additional economically and 
technologically feasible control measures (alone or cumulatively) that 
will advance the attainment date.\45\ The EPA's RACM policy, as 
outlined in the April 16, 1992, General Preamble, indicates that states 
should consider all candidate measures that are potentially available 
for the particular nonattainment area that could advance the attainment 
date by 1 year.\46\ The April 16, 1992, General Preamble \47\ also 
provides that ``any measure that a commenter indicates during a public 
comment period is reasonably available should be closely reviewed by 
the planning agency to determine if it is in fact reasonably available 
for implementation in the area in light of local circumstances.'' 
Although states should consider all available measures, including those 
being implemented in other areas, a state must adopt measures for an 
area only if those measures are economically and technologically 
feasible and will advance the attainment date or are necessary for RFP. 
This interpretation of the section 172 requirements has been upheld by 
several courts. See, e.g., Sierra Club v. EPA, et al., 294 F.3d 155 
(D.C. Circuit, 2002).
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    \45\ Ibid.
    \46\ ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990; 
Proposed Rule.'' 57 FR 13507 (April 16, 1992). The discussion of 
RACM in that document contains other relevant history concerning the 
RACM requirement.
    \47\ 57 FR 13498.
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E. Does the 2008 ozone NAAQS result in any new inspection and 
maintenance (I/M) programs?

    No new I/M programs are currently required as a result of areas 
being designated and classified nonattainment for the 2008 ozone NAAQS. 
The applicable requirements for ozone nonattainment areas that are 
required to adopt I/M programs are described in sections 182(a)(2)(B), 
182(b)(4), 182(c)(3), and 184(b)(1)(A) of the CAA and further defined 
in section 51.350 (``Applicability'') of the I/M rule (40 CFR part 51, 
subpart S). Under these cumulative requirements, Moderate ozone 
nonattainment areas in urbanized areas with 1990 Census populations of 
200,000 or more are required to adopt basic I/M programs, while Serious 
and higher classified ozone nonattainment areas outside of the 
northeast OTR with 1980 Census-defined urbanized populations of 200,000 
or more are required to adopt enhanced I/M programs. Within the OTR, 
MSAs with populations of 100,000 or more are required to adopt enhanced 
I/M programs, regardless of attainment status. Currently, all the 
nonattainment areas meeting the criteria for mandatory I/M under the 
2008 ozone NAAQS are already operating I/M programs due to being 
designated nonattainment and classified as Moderate or above under an 
earlier ozone standard. If a Marginal 2008 ozone nonattainment area 
meeting the population cutoff for mandatory I/M is ever in the future 
reclassified to Moderate or a higher classification, then an I/M 
program meeting the SIP

[[Page 34195]]

submittal and program implementation requirements of the I/M rule would 
be required at that time.
1. If new I/M programs are required in the future, what are the SIP and 
implementation requirements?
    On April 7, 2006, the EPA finalized a suite of revisions to the I/M 
rule (71 FR 17705) to address the implementation of I/M under an 8-hour 
ozone NAAQS. The revised rule included deadlines for 8-hour 
nonattainment areas that were tied to the effective date of a given 
area's designation and classification under the 8-hour ozone NAAQS. 
Specifically, the April 2006 rulemaking established a deadline for 
submission of an I/M SIP no later than one year after the effective 
date of the area's nonattainment designation and classification for the 
8-hour ozone standard. This rule was originally applied for purposes of 
the 1997 8-hour NAAQS, but it remains applicable to the 2008 8-hour 
NAAQS. In addition to establishing the I/M SIP submittal schedule, the 
April 2006 rulemaking also set a deadline of no later than 4 years 
after the effective date of designation and classification by which the 
I/M program in question would actually begin testing vehicles.
2. Should the EPA allow more time for states to submit future I/M SIPs?
    Since the 2006 I/M rulemaking, the EPA has revisited the question 
of how much time it takes to submit an I/M SIP based upon the degree to 
which the modeling work needed to demonstrate attainment is closely 
linked to the modeling work required to design an I/M program that 
meets the area's attainment needs. Put simply, areas need to determine 
together the amount of emissions reductions needed for attainment and 
the amount of emissions reductions to get from different sectors and 
strategies (including I/M), before designing an I/M program capable of 
achieving the necessary reductions to demonstrate attainment. Requiring 
submittal of an I/M program in advance of an attainment demonstration 
for the current or future ozone standard could result in significant 
unnecessary work on modeling, SIP revisions, and implementation, if 
revisions to the I/M program are later deemed necessary.
    Because control strategy decisions and the modeling needed to 
perform the attainment demonstration are intertwined with decisions and 
modeling needed to design the local I/M program to such a high extent, 
the EPA is requesting comment on its proposal to align deadlines for 
the attainment SIP and the I/M SIP so that both are due at the same 
time.\48\ Commenters are asked to take the following factors into 
consideration when providing comments on this portion of the proposed 
rulemaking: Areas' need to analyze various I/M program designs to 
determine which combination of program parameters is capable of meeting 
the emission reduction needs of the attainment SIP; the need to secure 
legal authority when some of the potentially affected state 
legislatures may only meet for 2-4 months during any given legislative 
session; the time needed to promulgate a regulation; and the impact on 
timing of other, potentially competing resource demands that will be 
placed on states as a result of the need to meet current and/or future 
ozone standards.
---------------------------------------------------------------------------

    \48\ As discussed in section III.A of today's proposal, the EPA 
is soliciting comment on alternative deadlines for attainment SIP 
submissions. The EPA is here soliciting comment on aligning the 
deadline for I/M submittal with those alternative deadlines.
---------------------------------------------------------------------------

3. How is modern I/M different from the last time new I/M programs were 
required?
    It is important to note that much has changed since I/M programs 
were required under the original, November 5, 1992, I/M Rule. At that 
time, an I/M program would have included testing a vehicle's tailpipe 
emissions, in some cases using a treadmill-like device (dynamometer), 
so that the emissions were measured under more realistic driving 
conditions rather than at rest (idle). Dynamometer-based tests also 
allowed for measurement of NOX emissions, which was not 
possible at idle. The equipment needed for these types of programs was 
expensive compared to today's next-generation alternatives and the test 
itself was time consuming as the vehicle needed to be secured to the 
dynamometer and then driven through the test cycle.
    Beginning with the 1996 model year, vehicles have been equipped 
with a computerized system known as onboard diagnostics or OBD. The OBD 
system monitors the vehicle's emission control system continuously and 
illuminates the vehicle's dashboard ``Check Engine'' light if a problem 
is detected. The vehicle's computer stores information on the type of 
malfunction detected, and is therefore able to provide repair shops 
with information on the type of repair that is needed. The EPA 
estimates that about 80 percent of the national vehicle fleet is 
already equipped with an OBD system and that by the time any potential 
new I/M programs would be required to begin operation, about 90 percent 
of the national vehicle fleet will be OBD equipped. As a result, the 
EPA believes that I/M programs will no longer need to use tailpipe 
testing, and can instead rely on a simple, fast and inexpensive 
interrogation of the OBD system.
    There are many ways to conduct OBD system checks but all involve a 
relatively inexpensive scanner. The scanner is connected to a port in 
the vehicle and the tool downloads information from the vehicle's 
computer. This type of testing can be done either in a centralized 
testing facility, directly at a repair shop, or even remotely using 
telematics technology. Compared to earlier vehicle test methods, next-
generation I/M testing through OBD system checks is substantially 
quicker, less invasive, less costly to implement and ideally suited to 
innovative testing strategies such as remote inspections using cellular 
or telematic technologies, self-serve testing kiosks and even mail-in 
data loggers, none of which were practical under the previous 
generation of tailpipe tests and all of which are available for use in 
today's and future I/M programs.
    The EPA believes that OBD technology can change not only the way 
vehicles are tested but also whether vehicles need to be independently 
tested at all. This is because OBD offers vehicle owners all the 
information they need regarding whether or not their vehicle will pass 
or fail an I/M inspection. Simply put, if the ``Check Engine'' light is 
on, the vehicle will fail. This capability of OBD to provide immediate 
driver feedback suggests some as-yet untested but nevertheless 
intriguing alternatives to traditional I/M.
    One such alternative--the EPA believes--would include programs that 
offer some vehicle owners free or subsidized repairs of vehicles with 
lit ``Check Engine'' lights. Should such a program result in the same 
number of vehicles being repaired as would be the case in a traditional 
I/M program, then the program in question would be considered 
functionally equivalent to I/M. The choice of how to fund these repairs 
would rest with the state but could include collecting a fee equivalent 
to what would otherwise be charged for testing from all registrants, 
requiring vehicle insurance providers or a state to cover the cost of 
repairing the vehicle when the ``Check Engine'' light comes on, 
partnering with local vocational-technical schools to provide repair 
services, making driving with a lit ``Check Engine'' light on a 
secondary traffic offense (similar to driving without a seat belt or 
working headlights in some states), etc. Ultimately, program 
equivalency would

[[Page 34196]]

not depend upon how repairs are funded but rather on the number of 
relevant repairs accomplished by the program. Similarly, programs that 
accelerate the retirement of vehicles in need of emission-related 
repairs or that significantly prompt older vehicles to be replaced by 
cleaner technology could be considered equivalent to I/M if the amount 
of emission reductions achieved equals or exceeds what would be 
achieved by a traditional enhanced I/M program.
    The EPA is requesting comments on these or other ideas for ``right 
sizing'' I/M for the current and future fleet. Comments should address 
how proposals will meet the minimum statutory requirements for I/M 
while still achieving I/M's primary goal of reducing emissions from the 
fleet in-use and supporting vehicle maintenance and emission repair.

F. How does transportation conformity apply to the 2008 ozone NAAQS?

1. What is transportation conformity?
    Transportation conformity is required under CAA section 176(c) to 
ensure that transportation plans, transportation improvement programs 
(TIPs) and federally supported highway and transit projects are 
consistent with (``conform to'') the purpose of the SIP. Conformity to 
the purpose of the SIP means that transportation activities will not 
cause new air quality violations, worsen existing violations, or delay 
timely attainment of the relevant NAAQS or interim reductions and 
milestones. Transportation conformity applies to areas that are 
designated nonattainment, and to those former nonattainment areas that 
have been redesignated to attainment since 1990 and have a CAA section 
175A maintenance plan (``maintenance areas'') for transportation-
related criteria pollutants: Carbon monoxide, ozone, nitrogen dioxide, 
and particulate matter.
    The EPA's Transportation Conformity Rule (40 CFR 51.390 and Part 
93, subpart A) establishes the criteria and procedures for determining 
whether transportation activities conform to the SIP. The EPA first 
promulgated the Transportation Conformity Rule on November 24, 1993 (58 
FR 62188), and subsequently published several amendments. For example, 
the EPA published a final rule on July 1, 2004 (69 FR 40004) that 
provided transportation conformity procedures for state and local 
agencies under the 1997 ozone NAAQS, among other things. For further 
information on transportation conformity rulemakings, policy guidance 
and outreach materials, see the EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm.
2. Why is the EPA discussing transportation conformity in this proposed 
rulemaking?
    We are discussing transportation conformity in this proposed 
rulemaking in order to provide affected parties with information on 
when transportation conformity must be implemented for the 2008 ozone 
NAAQS and how we plan to make the transition from the 1997 ozone NAAQS 
to the 2008 ozone NAAQS with respect to transportation conformity. 
Affected parties would include state and local transportation and air 
quality agencies, metropolitan planning organizations (MPOs) and the 
U.S. Department of Transportation (the DOT) (40 CFR 93.102).
3. When would transportation conformity apply to areas designated 
nonattainment for the 2008 ozone NAAQS?
    Transportation conformity for the 2008 ozone NAAQS applies 1 year 
after the effective date of nonattainment designations for that 
standard. This is because CAA section 176(c)(6) and 40 CFR 93.102(d) 
provide a 1-year grace period from the effective date of initial 
designations before transportation conformity applies in areas newly 
designated nonattainment for a particular pollutant and standard.
4. How would the 1-year transportation conformity grace period apply?
    The transportation conformity grace period applies to all areas 
designated nonattainment for the 2008 ozone NAAQS. Metropolitan areas 
are urbanized areas that have a population greater than 50,000 and a 
designated MPO responsible for transportation planning per 23 U.S.C. 
134. In general, within 1 year after the effective date of the initial 
nonattainment designation for a given pollutant and standard, the 
area's MPO and the DOT must make a conformity determination with regard 
to that pollutant and standard for the area's transportation plan and 
TIP. The conformity requirements for donut areas,\49\ including the 
application of the 1-year conformity grace period, are generally the 
same as those for metropolitan areas. MPOs and any adjacent donut areas 
must continue to meet conformity requirements in nonattainment and 
maintenance areas for the 1997 ozone NAAQS during the grace period, in 
addition to any other applicable standards. If, at the end of the grace 
period, the MPO and the DOT have not made a transportation plan and TIP 
conformity determination for the relevant pollutant and standard, the 
area would be in a conformity ``lapse.'' During a conformity lapse, 
only certain projects can receive additional federal funding or 
approvals to proceed. The practical impact of a conformity lapse will 
vary from area to area.
---------------------------------------------------------------------------

    \49\ For the purposes of transportation conformity, a ``donut'' 
area is the geographic area outside a metropolitan planning area 
boundary, but inside a designated nonattainment or maintenance area 
boundary that includes an MPO (40 CFR 93.101).
---------------------------------------------------------------------------

    Isolated rural nonattainment and maintenance areas are areas that 
do not contain or are not part of an MPO (40 CFR 93.101). Conformity 
requirements for isolated rural nonattainment and maintenance areas can 
be found at 40 CFR 93.109(g). An isolated rural area would be required 
to make a conformity determination only at the point when a new 
transportation project needs funding or approval. This point may occur 
significantly after the 1-year grace period has ended. See the EPA's 
July 1, 2004, final rule for further background on how the EPA has 
implemented this conformity grace period for the 1997 ozone NAAQS in 
metropolitan, donut and isolated rural areas (69 FR 40008-40014).\50\
---------------------------------------------------------------------------

    \50\ Also, see the EPA's transportation conformity Web site for 
more information, including EPA's ``Transportation Conformity 
Guidance for 2008 Ozone NAAQS Nonattainment Areas'' at: www.epa.gov/otaq/statesresources/transconf/2008naaqs.htm.
---------------------------------------------------------------------------

5. What flexibilities exist for isolated rural areas?
    As discussed previously in this proposal, for transportation 
conformity purposes, isolated rural nonattainment and maintenance areas 
are areas that do not contain or are not part of an MPO (40 CFR 
93.101). In general, ozone nonattainment and maintenance areas with 
populations of less than 50,000 would be considered to be isolated 
rural areas for transportation conformity purposes because the DOT only 
requires an MPO to be established when an area's population exceeds 
50,000.
    The Transportation Conformity Rule contains a number of 
flexibilities that apply to isolated rural areas. As discussed 
previously, they are not required to determine conformity by the end of 
the 1-year grace period that applies for new nonattainment areas, since 
isolated rural areas do not have MPOs and do not have transportation 
plans that are subject to the requirements to demonstrate conformity on 
a periodic basis. Isolated rural areas are only required to demonstrate 
conformity when a non-exempt Federal Highway Administration or Federal

[[Page 34197]]

Transit Administration project in the nonattainment or maintenance area 
requires funding or approval. Experience has shown that isolated rural 
areas have few projects that require a transportation conformity 
determination. Another available flexibility is that isolated rural 
areas may choose from several alternative conformity tests that may be 
used for analysis years beyond the last year for which the SIP has 
established a motor vehicle emissions budget. These alternative tests 
are described in 40 CFR 93.109(g)(2)(ii)(A)-(C). We also note that 
since these areas do not have transportation plans or TIPs, they would 
never experience a conformity lapse.
6. Does transportation conformity apply for the 1997 ozone NAAQS once 
that standard is revoked?
    The CAA only requires transportation conformity in areas that are 
designated nonattainment or maintenance for a given pollutant and 
standard. Therefore, transportation conformity would no longer apply 
for purposes of the 1997 ozone NAAQS as of the time that standard (and 
thus an area's designation for that standard) is revoked. In other 
words, existing 1997 ozone NAAQS nonattainment and maintenance areas, 
regardless of their designation for the 2008 ozone NAAQS, would no 
longer be required to demonstrate transportation conformity for the 
1997 ozone NAAQS after the 1997 ozone NAAQS is revoked. The EPA revoked 
the 1997 ozone NAAQS for transportation conformity purposes in the 
Classifications Rule for the 2008 ozone NAAQS. The revocation will 
become effective on July 20, 2013, 1 year after the effective date of 
designations for the 2008 ozone NAAQS. Under our current Transportation 
Conformity Rule, the latest approved or adequate emission budgets for a 
previous ozone NAAQS (i.e., the 1997 or the 1-hour ozone NAAQS) would 
continue to be used in conformity determinations for the 2008 ozone 
NAAQS until emission budgets are established and found adequate or are 
approved for the 2008 ozone NAAQS. 77 FR 14981-2.
7. What impact will the implementation of the 2008 ozone NAAQS have on 
a state's Transportation Conformity SIP?
    Since we are not proposing to make revisions to our Transportation 
Conformity Rule in this proposal, states with previously approved 
Transportation Conformity SIPs should not need to revise those SIPs, 
unless they need to do so to ensure that existing state regulations 
apply in the appropriate newly designated areas. However, if this is 
the first time that transportation conformity will apply in a state, 
such a state is required to submit a SIP revision that covers the three 
specific transportation conformity requirements that are delineated in 
CAA section 176(c)(4)(E). These specific requirements are consultation 
procedures and written commitments to control or mitigation measures 
associated with conformity determinations for transportation plans, 
TIPs or projects. 40 CFR 51.390. Additional information and guidance 
can be found in EPA's ``Guidance for Developing Transportation 
Conformity State Implementation Plans'' (http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf).

G. What requirements for general conformity apply to the 2008 ozone 
NAAQS?

1. What is the purpose of the general conformity regulations?
    Section 176(c) of the CAA requires that before a federal entity 
takes an action affecting air quality in a state, it must make a 
determination that the proposed action will not interfere with the SIP 
or the state's ability to attain and maintain the NAAQS. In November 
1993, the EPA promulgated two sets of regulations to implement section 
176(c). One set, known as the Transportation Conformity Rules 
(described previously in this proposal), deals with approval and 
funding of highway and mass transit projects. The other set, known as 
the General Conformity Regulations, deals with all other federal 
activities. Besides ensuring that federal actions will not interfere 
with the SIP, the general conformity program also fosters 
communications between federal agencies and state/local air quality 
agencies, provides for public notification of and access to federal 
agency conformity determinations and allows for air quality review of 
individual federal actions. In 1995, Congress limited the application 
of section 176(c) to nonattainment and maintenance areas only.
2. How are federal actions in nonattainment or maintenance areas 
addressed?
    Federal agencies must demonstrate that their new actions occurring 
in a nonattainment or maintenance area will conform with the SIP by 
showing they will not (1) cause or contribute to any new violation of 
any standard in respective nonattainment and maintenance areas; (2) 
interfere with provisions in the applicable SIP for maintenance of any 
standard; (3) increase the frequency or severity of any existing 
violation of any standard; or (4) delay timely attainment of any 
standard or any required interim emissions reductions or other 
milestone. Information on what federal actions are covered and how to 
demonstrate conformity are found in 40 CFR part 93 subpart B. On March 
24, 2010, former Administrator Lisa P. Jackson signed the General 
Conformity Final Rule ``Revisions to the General Conformity 
Regulations,'' which was published April 5, 2010 (75 FR 17254-17279). 
More information on the general conformity program is available at 
http://www.epa.gov/air/genconform/.
3. General Conformity for the 2008 Ozone NAAQS
a. What de minimis emission levels will apply for ozone precursors?
    For the ozone precursors VOC and NOX, the existing de 
minimis emission levels that are set forth in the EPA's General 
Conformity Regulations at 40 CFR 93.153(b)(1) continue to apply to the 
2008 ozone NAAQS. Those levels were based on the definition of a major 
stationary source for NSR programs as established by sections 182, 183 
and 302 of the CAA. Federal actions estimated to have an annual net 
emissions increase less than the de minimis levels are not required to 
demonstrate conformity under the General Conformity Regulations. The 
current de minimis levels are identified in Table 1.

           Table 1--De Minimis Emission Levels for VOC and NOX
------------------------------------------------------------------------
                                                 VOC  tons/   NOX  tons/
              Type of ozone area                    year         year
------------------------------------------------------------------------
Extreme Nonattainment.........................           10           10
Severe Nonattainment..........................           25           25
Serious Nonattainment.........................           50           50
Other ozone Nonattainment areas outside an              100          100
 ozone transport region.......................

[[Page 34198]]

 
Other ozone Nonattainment areas inside an                50          100
 ozone transport region.......................
------------------------------------------------------------------------

b. What impact will implementation of the 2008 ozone NAAQS have on a 
state's General Conformity SIP?
    We are not proposing to make revisions to our General Conformity 
Regulations in this proposal. States with approved General Conformity 
SIPs should not need to revise those SIPs, unless they need to do so to 
ensure the existing regulations apply in the appropriate newly 
designated areas.
c. Are there any other impacts related to general conformity based on 
implementation of the 2008 ozone NAAQS?
    As noted above, we are not proposing any revisions to the General 
Conformity Regulations at this time. However, as areas develop SIPs for 
the 2008 ozone NAAQS, we recommend that state and local air quality 
agencies work with federal agencies with major facilities that are 
subject to the General Conformity Regulations (e.g., commercial 
airports, ports and large military bases) to establish an emission 
budget for those facilities in order to facilitate future conformity 
determinations. Such a budget could be used by federal agencies in 
determining conformity or identifying mitigation measures if the budget 
level is included and identified in the SIP.
    One federal activity subject to general conformity requirements is 
prescribed burning. The EPA recognizes that prescribed fire in some 
instances must be employed for natural resource management purposes and 
prevention or control of wildfires. The use of prescribed fire presents 
federal agencies, states and tribes with the challenge to balance and 
integrate two public policy goals, (1) to allow fire to function, as 
nearly as possible, in its natural role in maintaining healthy wildland 
ecosystems; and (2) to protect public health and welfare by mitigating 
the impacts of air pollutant emissions on air quality. The EPA 
encourages states and tribes to work with federal agencies to develop 
Smoke Management Programs (SMPs) and use Basic Smoke Management 
Practices (BSMPs) that identify the responsibilities of Federal Land 
Managers and state/tribal air quality managers to coordinate fire 
activities, minimize air pollutant emissions, manage smoke from 
prescribed fires for resource benefits, ensure the safety of burners 
and those in the forest/urban interface and establish emergency action 
programs to mitigate the impacts on the public. To reduce 
administrative burden on federal agencies, the EPA's April 5, 2010 
revisions, to its General Conformity Regulations (75 FR 17254) provided 
flexibilities in 40 CFR 93.153(h) and (i) for prescribed fires to meet 
general conformity requirements using SMPs and BSMP.
4. When would general conformity apply to areas designated 
nonattainment for the 2008 ozone NAAQS?
    General conformity for the 2008 ozone NAAQS applies 1 year after 
the effective date of nonattainment designations for that standard. 
This is because CAA section 176(c)(6) (which applies to general 
conformity as well as to transportation conformity) provides a 1-year 
grace period from the effective date of initial designations before 
general conformity determinations are required in areas newly 
designated nonattainment for a particular pollutant and standard.
5. How does the 1-year grace period apply to general conformity 
determinations?
    As discussed previously in this proposal, CAA section 176(c)(6) 
applies to both transportation and general conformity. Therefore, the 
EPA's April 2010 revisions to its the General Conformity Regulations 
(see 75 FR 17277, April 5, 2010) apply the grace period for the 
purposes of general conformity in the same manner as for transportation 
conformity.
6. How would the revocation of the 1997 ozone NAAQS affect general 
conformity requirements?
    Our proposal to revoke the 1997 ozone NAAQS at the time the final 
SIP Requirements Rule is published in the Federal Register means that 
general conformity requirements under the 1997 ozone NAAQS would end 
after the 2008 ozone NAAQS general conformity requirements begin.

H. What are the requirements for contingency measures in the event of 
failure to meet a milestone or to attain?

1. Background
    Contingency measures are additional emissions control measures 
states must implement in the event a nonattainment area fails to meet 
an RFP milestone or fails to attain by its attainment date. Under the 
CAA, nonattainment areas that are classified under subpart 2 of part D 
of title I as Moderate, Serious, Severe or Extreme must include in 
their SIPs contingency measures consistent with section 172(c)(9), and 
those classified as Severe or higher must include contingency measures 
that are also consistent with section 182(c)(9). These contingency 
measures must be fully adopted rules or measures that are ready for 
implementation quickly upon failure to meet milestones or attain. Per 
EPA guidance,\51\ these measures should represent 1 year's worth of 
reductions, or approximately 3 percent of the baseline emissions 
inventory. For additional background information on contingency 
measures, see 68 FR 32802 (June 3, 2003) and 70 FR 71650 (November 29, 
2005) (the proposed and final Phase 2 Rule).
---------------------------------------------------------------------------

    \51\ August 23, 1993 memorandum from Michael H. Shapiro, Acting 
Assistant Administrator for Air and Radiation, to Regional Air 
Directors, ``Guidance on Issues Related to 15 Percent Rate-of-
Progress Plans.''
---------------------------------------------------------------------------

    Guidance developed by the EPA in 1993 specified the content of the 
contingency measures. This guidance indicated that for areas classified 
Moderate and higher that had completed the initial 15 percent VOC 
reductions, contingency measures could be a mixture of VOC and 
NOX reductions. The guidance indicated that of the 3 percent 
emissions reductions required, 0.3 percent had to be VOC emissions 
reductions, allowing the remaining 2.7 percent of emissions reductions 
to be NOX emissions reductions.
2. Proposal
    The EPA is proposing to interpret the contingency measure 
requirement for the 2008 ozone NAAQS in the same manner it has 
interpreted that requirement for the 1-hour and 1997 ozone NAAQS, with 
the exception of the content of the contingency

[[Page 34199]]

measures, as discussed below. The EPA is proposing that the contingency 
measures required for Moderate and above areas under CAA sections 
172(c)(9) and 182(c)(9) must provide for the implementation of specific 
measures if the area fails to meet any applicable milestone. These 
measures must be submitted for approval into the SIP as adopted 
measures that would take effect without further rulemaking action by 
the state or the Administrator upon a determination that an area failed 
to attain or meet the applicable milestone. Contingency measures should 
represent 1 year's worth of progress for the nonattainment area, which 
would be achieved while the area is revising its plan. Where 
appropriate, federal measures providing ongoing reductions into the 
future can be used as contingency measures. Innovative measures such as 
energy efficiency programs or renewable energy programs that meet the 
requirements of CAA section 172(c)(9), as well as section 182(c)(9) for 
areas classified as Serious or higher, can also be used as contingency 
measures.
    Regarding content of the 1 year's worth of emissions covered by the 
contingency measures, the EPA believes that prior contingency measure 
guidance specifying a minimum of 0.3 percent of the emission reductions 
(i.e., one-tenth of the total 3 percent emission reduction requirement) 
must be from VOCs is no longer necessary. The EPA is proposing that for 
Moderate and above areas that have completed the initial 15 percent VOC 
reduction required by CAA section 182(b)(1)(A)(i), the 3 percent 
emissions reductions of the contingency measures may be based entirely 
on NOX controls if that is what the state's analyses have 
demonstrated would be most effective in bringing the area into 
attainment. There is no minimum VOC requirement.
    We are soliciting comment on a contingency measure issue for 
nonattainment areas classified as Extreme, based on past state 
experience developing control plans for Extreme areas. The CAA in 
section 182(e)(5) allows the EPA to approve an Extreme area attainment 
plan that relies, in part, on the future development of new control 
technologies or improvements of existing control technologies. This 
discretion is available as long as the state has demonstrated that: all 
reasonably available control measures, including RACT, have been 
included in the plan; the area's RFP demonstration during the first 10 
years after designation does not rely on anticipated future 
technologies; and the state has submitted enforceable commitments to 
develop and adopt contingency measures in the event that anticipated 
future technologies do not achieve planned reductions.
    If an Extreme area qualifies for the discretion authorized by 
section 182(e)(5), it could be argued that it is unreasonable to expect 
the state to provide for the contingency measures required by sections 
172(c)(9) and 182(c)(9). Indeed, it is hard to know how an area whose 
attainment SIP can include measures that are not fully developed would 
be able to identify contingency measures that are more specific. And 
while the CAA does not limit these measures to ``feasible'' measures, 
we do not believe that such areas should be required to adopt 
unreasonable or draconian measures when all reasonable candidate 
contingency measures will already have been employed in the plan to 
meet the RACM and RFP requirements. In this case it could be argued 
that the section 182(e)(5) contingency measure provision is the only 
reasonable way to meet the section 172(c)(9) and 182(c)(9) contingency 
measure requirements. Accordingly, the EPA is soliciting comments on 
how Extreme areas that can demonstrate they have implemented all 
feasible measures for purposes of their RFP SIPs and their RACM 
analyses can legally address CAA contingency measure requirements.
3. Additional Guidance for States That Use a Federal Measure as a 
Contingency Measure
    The EPA has a long-standing practice of allowing federal measures 
to be used as contingency measures as long as they provide emissions 
reductions in the relevant years in excess of those needed for 
attainment or RFP. The EPA has interpreted this policy as applying to 
federal measures that have already been adopted, which would include 
emissions reductions from fleet turnover to lower emitting on-road 
vehicles and non-road equipment such as on-road vehicles certified to 
Tier 2 light-duty vehicle emission standards.\52\ The EPA has approved 
the use of federal measures to meet contingency measure requirements in 
several EPA actions approving 1-hour and 8-hour ozone SIPs. (62 FR 
15844, April 3, 1997), (62 FR 66279, December 18, 1997), (66 FR 30811, 
June 8, 2001), (66 FR 586 and 66 FR 634, January 3, 2001) (74 FR 1903, 
January 14, 2009). We plan to continue to allow areas to use future 
reductions from promulgated federal measures as contingency measures 
for the 2008 ozone NAAQS, consistent with our practice for both the 1-
hour and 1997 ozone NAAQS.
---------------------------------------------------------------------------

    \52\ Fleet turnover is the change in model year composition of 
the local motor vehicle fleet. The composition of the motor vehicle 
fleet changes as new vehicles enter the fleet and old vehicles are 
removed. Generally, this results in a decrease in fleet average 
NOX and VOC emissions each year as older model year 
vehicles certified to less stringent emission standards leave the 
fleet and are replaced by newer vehicles certified to more stringent 
standards. The emission impacts of fleet turnover outside of 
California are currently calculated using EPA's MOVES emission 
factor model. 75 FR 9411, March 2, 2010. In California these 
emissions impacts are currently calculated using EMFAC2007.
---------------------------------------------------------------------------

    States using on-road motor vehicle fleet turnover as a contingency 
measure should establish and submit, as part of the SIP containing the 
contingency measure, motor vehicle emissions budgets (MVEBs) consistent 
with the use of on-road fleet turnover as a contingency measure. Such 
budgets would help to ensure that the emissions reductions attributed 
to the on-road fleet turnover contingency measure are actually 
available in the event that the contingency measure is triggered and 
would be available to serve the purpose intended by the SIP. For 
example, if an area is required to attain the 2008 ozone NAAQS in 2018 
and the SIP includes VOC and NOX emissions reductions 
resulting from on-road fleet turnover as a contingency measure in the 
event that the area fails to attain by 2018, the SIP for that area 
should include VOC and NOX MVEBs for 2019 (the year after 
the attainment date) that are consistent with the use of the on-road 
fleet turnover contingency measure. Having such budgets would help to 
ensure that reductions from a fleet turnover contingency measure would 
be surplus and available for the SIP in the event that contingency 
measures are triggered.

I. How do the NSR requirements apply for the 2008 ozone NAAQS?

1. NSR Requirements for the 2008 Ozone NAAQS
    The NSR programs contained in parts C and D of title I of the CAA 
are preconstruction review and permitting programs applicable to new or 
modified major stationary sources of air pollutants regulated under the 
CAA. In attainment and unclassifiable areas outside the OTR, the 
requirements under part C apply under the PSD program. In nonattainment 
areas and throughout the OTR, the program is implemented under the 
requirements of part D, under the nonattainment NSR program. 
Collectively, we commonly refer to the PSD and nonattainment NSR 
programs together as the ``major NSR programs.''
    The regulations for the major NSR programs are contained in 40 CFR

[[Page 34200]]

51.166 and 52.21 for PSD, and 51.165, 52.24 and part 51, Appendix S for 
nonattainment NSR. Among other things, in unclassifiable and attainment 
areas outside of the OTR, the PSD program requires a new major source, 
or a major modification to an existing source, to install best 
available control technology (BACT) and conduct an air quality impact 
analysis, including an analysis of potential impacts on Class I areas 
(see CAA sections 162, 165(a)(3), 165(a)(4), 165(a)(5) and 165(d)).
    Section 165(a)(3) of the CAA provides that in order to obtain a PSD 
permit the owner or operator of a proposed facility must, among other 
things, demonstrate that ``emissions from construction or operation of 
such facility will not cause, or contribute to, air pollution in excess 
of any . . . national ambient air quality standard in any air control 
region.'' The EPA has generally interpreted this requirement to include 
any NAAQS that is in effect at the time a permit is issued.\53\ See, 
e.g., 73 FR 28321, 28324, 28340 (May 16, 2008); Memorandum from Stephen 
D. Page, Director, Office of Air Quality Planning & Standards, 
``Applicability of the Federal Prevention of Significant Deterioration 
Permit Requirements to New and Revised National Ambient Air Quality 
Standards'' (April 1, 2010). Accordingly, since the May 27, 2008, 
effective date of the 2008 ozone NAAQS, permit applications for new 
major stationary sources and major modifications have been subjected to 
the PSD program requirements for ozone under two sets of circumstances: 
first, prior to the designation of areas based on the 2008 ozone NAAQS, 
sources locating in areas designated attainment or unclassifiable for 
the 1997 ozone NAAQS; and second, on and after the July 20, 2012 
effective date of area designations for the 2008 ozone NAAQS, sources 
locating in areas designated as attainment or unclassifiable for both 
the 1997 and 2008 ozone NAAQS. In all cases, the permit applicants 
must, among other things, demonstrate that the proposed project's 
emissions increase will not cause or contribute to a violation of the 
2008 ozone NAAQS.
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    \53\ However, the EPA has also recognized that it has discretion 
to grandfather, under appropriate circumstances, permit applications 
that are pending at the time a new or revised NAAQS comes into 
effect from the requirement to demonstrate that a major new source 
or modification does not cause or contribute to a violation of a new 
or revised NAAQS. Since the NAAQS has been in effect since 2008, the 
EPA does not believe any grandfathering is necessary and proposes no 
such action here.
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    For purposes of determining individual source impacts with respect 
to the 2008 ozone NAAQS, PSD permit applicants and permitting 
authorities should continue to follow the current practice described in 
Appendix W to 40 CFR part 51, which is to consult with the applicable 
EPA regional office to determine the appropriate means of addressing 
such impacts. 40 CFR part 51, App. W, Sec.  5.2.1(c). Although those 
applicants must demonstrate that the proposed source or modification 
will not cause or contribute to a violation of the 2008 ozone NAAQS, 
that demonstration does not necessarily require the permit applicants 
to perform new air quality modeling. See 40 CFR 51.166(k)(1) and 
52.21(k)(1) (requiring source impact analysis); see also 40 CFR part 
51, App. W, Sec.  5.2.1(c) (explaining that the choice of methods to 
assess the impact of an individual source on the ozone NAAQS depends on 
the nature of the source and its emissions, and that appropriate 
methods are determined in consultation with the EPA regional office on 
a case-by-case basis). As appropriate, after consultation with the 
applicable EPA regional office, the demonstration can be made using 
modeling performed previously for air quality planning purposes or with 
other forms of qualitative or quantitative analysis, as has generally 
been the case in past permits. The adoption of the 2008 ozone NAAQS 
does not change that approach.
    Following the July 20, 2012, effective date of area designations 
and classifications for the 2008 ozone NAAQS, and in keeping with the 
general policy that the permit issued to a major new source or major 
modification must satisfy the applicable permit requirements in effect 
as of the date of permit issuance, the requirements to be satisfied by 
the permit applicant in an area designated nonattainment for the 2008 
ozone NAAQS will have depended on the area's highest nonattainment 
classification, whether for the 2008 ozone NAAQS or a previous ozone 
NAAQS for which the area remains nonattainment. See section IV of this 
proposal for a more detailed description of anti-backsliding 
requirements. Accordingly, some pending permits that were originally 
being reviewed under the PSD requirements but not yet issued were to 
have been (or may need to be) revised to adequately reflect the area's 
new status as nonattainment for the 2008 ozone NAAQS. For example, if 
an area designated as attainment or unclassifiable for the 1997 ozone 
NAAQS was designated as nonattainment for the 2008 ozone NAAQS, any 
permit issued on or after the July 20, 2012, effective date of the new 
nonattainment designation (and classification) must satisfy the 
requirements for nonattainment NSR. In an area that was already 
designated as nonattainment for the 1997 ozone NAAQS at the time it was 
designated nonattainment for the 2008 ozone NAAQS, the source would 
need to ensure that its permit application applies the appropriate 
nonattainment NSR requirements (e.g., the applicable major source 
thresholds and offsets) consistent with the area's new classification 
under the 2008 ozone NAAQS as reflected in the SIP and the final NSR 
anti-backsliding provisions for the 2008 ozone NAAQS, as discussed in 
section IV.
    Some states may already have had in place a nonattainment NSR 
program consistent with the applicable part D requirements of the Act 
that can be directly applied to areas designated nonattainment for the 
2008 ozone NAAQS and that were not designated nonattainment for the 
1997 ozone NAAQS as of the July 20, 2012, effective date of the 
designations for the 2008 ozone NAAQS. For nonattainment areas in 
states with SIPs containing a generic requirement to issue 
nonattainment NSR permits in areas designated as nonattainment, those 
permit requirements for the 2008 ozone NAAQS became automatically 
effective upon designation.
    For a newly designated 2008 ozone nonattainment area in a state 
with a SIP that specifically lists the areas in which nonattainment NSR 
requirements under part D apply, or in a state which currently has no 
approved nonattainment NSR program, there will be an interim period 
between the July 20, 2012, designation date and the date when the state 
amends its SIP either to list any new nonattainment area(s) or to 
include a part D plan. During this interim period, nonattainment NSR 
requirements are governed by the EPA's Emission Offset Interpretative 
Ruling codified in appendix S to 40 CFR part 51. In general, appendix S 
requires new or modified major sources in nonattainment areas to meet 
the lowest achievable emission rate (LAER) and obtain sufficient 
offsetting emissions reductions to assure that the new or modified 
major sources will not interfere with the area's progress toward 
attainment. Readers should refer to 40 CFR part 51, appendix S for a 
complete understanding of these and other appendix S permitting 
requirements.
    Section 110(a)(2)(C) of the CAA establishes a general duty on the 
state to include a program in its SIP that regulates the modification 
and construction of any stationary source as necessary to assure that 
NAAQS are

[[Page 34201]]

achieved. This general duty exists during all periods, including the 
period between the effective date of a new nonattainment area 
designation and the date when a state has an EPA-approved nonattainment 
NSR program satisfying the applicable part D requirements. Although 
section 110(a)(2)(C) does not contain specific requirements a state 
must follow for issuing major source permits during the interim period, 
the EPA's regulations at 40 CFR 52.24(k) require the state to follow 40 
CFR part 51, appendix S, during this time. The availability of the 
waiver provision in section VI of appendix S is limited by the court's 
ruling in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). In the EPA's 
Phase 2 Rule for the 1997 ozone NAAQS, the EPA revised section 52.24(k) 
to eliminate language stating that if a nonattainment area did not have 
an approved nonattainment NSR program within 18 months after 
designation, a construction ban would apply. 70 FR 71612 (November 29, 
2005). The effect was to extend the applicability of appendix S, 
including the section VI waiver provision, to cover the full period 
from the date of designation to the date on which the EPA approved the 
nonattainment NSR SIP.
    In NRDC v. EPA (571 F.3d 1245 (D.C. Cir. 2009)), the court 
considered the petitioners' general objections to the NSR waiver 
provision in section VI of appendix S, as well as the EPA's elimination 
of the 18-month limit on the applicability of that section. The court 
dismissed the petitioners' general objections as ``untimely'' but 
vacated ``the elimination of the 18-month time limit for NSR waivers 
under Appendix S'' on the ground that it violated section 172(e) of the 
CAA (571 F.3d at 1276). The EPA intends to revise section 52.24(k) to 
reflect the court's vacatur of the extension of the 18-month time limit 
for section VI of appendix S. In the meantime, as a result of the 
vacatur, no section VI waivers may be granted beyond 18 months from the 
date of designation.
2. Facilitating New Source Growth in Nonattainment Areas
a. Offset Banks
    The Act requires new and modified major sources in nonattainment 
areas to secure emissions reductions (i.e., ``offsets'') to compensate 
for the proposed emissions increase. States can help facilitate 
continued economic development in a nonattainment area by establishing 
offset banks or registries. Such banks or registries can help new or 
modified major stationary source owners meet offset requirements by 
streamlining identification and access to available emissions 
reductions. Several states have established offset banks to help ensure 
a consistent method for generating and transferring NOX and 
VOC offsets.\54\ Offsets are generated by emissions reductions that 
meet specific creditability criteria set forth by EPA regulations.\55\ 
40 CFR 51.165(3)(ii)(A)-(J).
---------------------------------------------------------------------------

    \54\ See, for example, emission reduction credit banking 
programs in Ohio (OAC Chapter 3745-1111) and California (H&SC 
Section 40709).
    \55\ See the EPA's ``Improving Air Quality with Economic 
Incentive Programs'' document at http://www.epa.gov/region07/air/nsr/nsrmemos/eipfin.pdf. For additional memoranda and guidance 
documents, see http://www.epa.gov/region7/air/nsr/nsrindex.htm.
---------------------------------------------------------------------------

b. Interpollutant Offset Substitution
    States can make it easier for new or modified major sources to 
satisfy the offset requirements in an area by establishing 
interpollutant offset substitution provisions. Such provisions create 
additional flexibility in meeting offset requirements by allowing 
NOX emissions reductions to satisfy VOC offset requirements 
and vice versa. The appropriate exchange rate for substitution is 
determined by the state for each area consistent with the attainment 
needs of the area and must be approved by the EPA.
c. Economic Development Zones
    Section 173(a)(1)(B) of the CAA authorizes the Administrator, in 
consultation with the Secretary of Housing and Urban Development (HUD), 
to identify areas within nonattainment areas as ``zone(s) to which 
economic development should be targeted.'' In these zones, states are 
able to assist new or modified major sources in meeting the 
nonattainment area offset requirement by setting aside growth 
``allowances'' that serve as a pool of offsets to be tapped by such 
sources. The advantage of creating an offset pool specifically for a 
CAA economic development zone (EDZ) relative to relying on a 
traditional offset bank is that the offsets can be fully owned and 
controlled by the state, and the offsets do not need to be obtained 
from facility-specific emissions reductions or shutdowns in the 
nonattainment area. Accordingly, this provision is especially well 
suited to address the needs of the manufacturing sector and small 
businesses. The EPA is willing to work with HUD and states to identify 
potential areas.
    In the context of the 1997 ozone NAAQS, the EPA previously worked 
with Arkansas officials to create a CAA EDZ in Crittenden County, which 
is part of the Memphis ozone nonattainment area (see 71 FR 8857, 
February 21, 2006). The EPA identified Crittenden County as a CAA EDZ 
after consultation with the Secretary of HUD to review qualification 
information associated with HUD-implemented economic development 
programs. We also evaluated socio-economic statistics for Crittenden 
County in comparison with similar information for other U.S. counties, 
and we reviewed air quality modeling of the Memphis nonattainment area 
provided by the Arkansas Department of Environmental Quality 
demonstrating that a specified growth allowance pool was consistent 
with timely attainment of the 1997 ozone NAAQS. After reviewing this 
information, the Administrator determined that the EDZ designation 
would help the citizens of Crittenden County without jeopardizing the 
clean air goals of the Greater Memphis area. The Memphis area has since 
attained the 1997 ozone NAAQS and the Arkansas portion of the Memphis 
nonattainment area was redesignated to attainment on March 24, 2010.

J. What are the emission inventory and emission statement requirements?

1. Emission Inventory Requirements
    Emission inventories are critical for the efforts of state, local 
and federal agencies to attain and maintain the NAAQS that the EPA has 
established for criteria pollutants, including ozone. Pursuant to 
section 110(a)(2)(F)(ii) of the CAA, states must submit emission 
inventories containing information regarding the current emissions of 
criteria pollutants and their precursors. The EPA first codified 
regulations to implement CAA section 110(a)(2)(F)(ii) in 40 CFR part 
51, subpart Q in 1979 and amended them in 1987.
    The 1990 CAA Amendments established new emission inventory 
requirements applicable to certain areas that were designated 
nonattainment for certain pollutants. First, CAA section 182(a)(1) 
requires that Marginal and above ozone nonattainment areas submit a 
base year emission inventory for the nonattainment area 2 years after 
designation as nonattainment in 1990. For areas designated 
nonattainment for the 2008 ozone NAAQS, we are proposing that the base 
year emission inventory submission be due no later than 2 years after 
the effective date of designation, or alternatively, 30 months 
following the effective date of designation under the consolidated SIP 
submittal option described in section III.A of this preamble.

[[Page 34202]]

    Second, CAA section 182(a)(3)(A) requires that states submit 
periodic emission inventories every 3 years after the initial base year 
inventory for Marginal and above ozone nonattainment areas. The 
periodic inventory must include emissions of VOC and NOX for 
point, nonpoint and mobile sources (on-road and non-road). On December 
4, 2008, the EPA promulgated the AERR rule (40 CFR 51, subpart A). The 
AERR requires states to submit comprehensive statewide 3-year cycle 
emission inventories (2008, 2011, 2014, etc.) regardless of an area's 
attainment status. The EPA thinks it would be appropriate for states 
with periodic inventory obligations under 182(a)(3)(A) to rely on their 
3-year cycle inventory as described in the AERR to satisfy their 
182(a)(3)(A) periodic inventory obligation. In cases where a state will 
use its 3-year cycle inventory to meet its 182(a)(3)(A) inventory 
obligation, we are further proposing that the emissions reporting 
requirements of the AERR be applied to determine all of the data 
elements required for such inventories. (see, e.g. Tables 2A, 2B, 2C 
and 2D of 40 CFR part 51, subpart A, Appendix A).
    For all inventories that are used in developing RFP plans or 
attainment demonstrations, mobile source emissions should be estimated 
using the latest emissions models, data and planning assumptions. The 
latest approved models should be used to estimate emissions from on-
road and non-road sources, in combination with the latest available 
estimates of VMT, vehicle population, and/or equipment activity. States 
are advised to check the EPA Web pages for the mobile source models and 
to consult with the EPA Office of Transportation and Air Quality and 
their regional office to determine the versions of models to use for 
their SIPs for the 2008 ozone NAAQS.
    Currently, the most recently approved model for estimating on-road 
emissions in states outside of California is MOVES2010 \56\ which 
initially was approved for use in SIPs on March 2, 2010 (75 FR 
9411).\57\ The EPA has subsequently released two minor updates to 
MOVES2010, MOVES2010a and MOVES2010b that are also approved for use in 
SIPs. The on-road emissions can be generated either through inventory 
mode (via MOVES) or through emission rates mode (via SMOKE-MOVES \58\). 
Guidance on using MOVES as well as information on the current version 
of MOVES that has been approved for use in SIPs and transportation 
conformity is available at: http://www.epa.gov/otaq/models/moves/index.htm.
---------------------------------------------------------------------------

    \56\ MOVES2010 refers to the initial version of the model that 
was approved for use in SIPs and regional transportation conformity 
analyses on March 2, 2010, as well as subsequent minor upgrades to 
the model such as MOVES2010a and MOVES2010b.
    \57\ EMFAC is the model used to estimate on-road mobile source 
emissions in California. The latest version of the model that has 
been approved for SIP and conformity purposes is EMFAC2011. See 78 
FR 14533 (March 6, 2013).
    \58\ For more information, see http://www.smoke-model.org/index.cfm.
---------------------------------------------------------------------------

    Emissions from non-road equipment should be estimated with the 
latest official version of the EPA's NONROAD model, and other 
appropriate methods for estimating emissions from sources not covered 
by these models. Links to Federal Register notices and policy guidance 
memos on the latest approved versions of MOVES and NONROAD can be found 
at http://www.epa.gov/otaq/models.htm. States should consult the 
guidance document ``Emission Inventory Guidance for Implementation of 
Ozone and Particulate Matter National Ambient Air Quality Standards 
(NAAQS) and Regional Haze Regulations,'' EPA-454/R-05-001 (updated 
November 2005) and submit inventories that are appropriate for each 
nonattainment area and consistent with this guidance.
    As indicated above, some inventories submitted to meet the 
requirements of section 182(a)(1) and 182(a)(3)(A) may be used in the 
development of RFP plans and/or attainment demonstrations. As such, the 
EPA requires the methodologies used to develop these inventories to be 
clearly documented and the inventories themselves to be subject to 
public participation requirements and formal approval/disapproval by 
the EPA.\59\
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    \59\ In comparison, the AERR emissions data are submitted by the 
states to the EPA, electronically via the Emission Inventory System 
to the National Emissions Inventory (NEI), without public review. 
The states submit AERR data to the NEI inventory 12 months after the 
NEI inventory year (i.e., calendar year 2014 NEI inventory data are 
submitted by December 31, 2015). The NEI process provides for the 
states to review the data as collected by the EPA before the EPA 
officially publishes the data. (Under the current process, the EPA 
would intend to publish the data for the 2014 NEI in June of 2016, 6 
months after the AERR data is required to be submitted to the EPA.)
---------------------------------------------------------------------------

    In guidance titled, ``Public Hearing Requirements for 1990 Base-
Year Emissions Inventories for Ozone and Carbon Monoxide Nonattainment 
Areas,'' September 29, 1992, the EPA set forth its interpretation of a 
``de minimis'' deferral of the public hearing requirement and the 
requirement for the EPA to approve or disapprove certain emissions 
inventories under section 110(k).\60\ The EPA is proposing to follow 
this guidance in implementing the emissions inventory requirements 
under CAA sections 182(a)(1) and 182(a)(3)(A) for purposes of the 2008 
ozone NAAQS. Under this approach, where emission inventories are used 
in the development of an RFP plan or attainment demonstration, states 
can defer the public hearing on these inventories until the time the 
areas adopt and submit their RFP plans and/or attainment demonstrations 
that rely on such inventories. The EPA would not take action to approve 
or disapprove such inventories until the state completes the state 
public participation process. If a state opts to submit a consolidated 
SIP submittal, this should not be an issue.
---------------------------------------------------------------------------

    \60\ CAA section 110(k) lists the actions that the EPA may take 
on SIP submissions, including approval and disapproval of the SIP.
---------------------------------------------------------------------------

2. Source Emission Statements
    Section 182(a)(3)(B) of the CAA requires Marginal and above areas 
to submit an emissions statement within 2 years of enactment of the CAA 
Amendments of 1990. Specifically it provides that the emission 
statement must: ``. . . require that the owner or operator of each 
stationary source of oxides of nitrogen or volatile organic compounds 
provide the state with a statement, in such form as the Administrator 
may prescribe (or an equivalent alternative developed by the state), 
for classes or categories of sources, showing the actual emissions of 
oxides of nitrogen and volatile organic compounds from that source. The 
first such statement shall be submitted within 3 years after the date 
of the enactment of the CAA Amendments of 1990. Subsequent statements 
shall be submitted at least every year thereafter. The statement shall 
contain a certification that the information contained in the statement 
is accurate to the best knowledge of the individual certifying the 
statement.''
    We published guidance on source emission statements in a July 1992 
memorandum titled, ``Guidance on the Implementation of an Emission 
Statement Program.'' A memorandum titled, ``Emission Statement 
Requirements Under 8-hour Ozone NAAQS Implementation,'' dated March 14, 
2006, clarified that the source emission statement requirement under 
the CAA was applicable to all areas designated nonattainment for the 
1997 ozone NAAQS and classified as Marginal or higher under subpart 2, 
part D, title I of the CAA. This requirement similarly applies to all 
areas designated

[[Page 34203]]

nonattainment for the 2008 ozone NAAQS and classified as Marginal or 
higher under subpart 2. The EPA is proposing this SIP submittal be due 
2 years after the effective date of designations or, alternatively, no 
later than 30 months after the effective date of designations as part 
of a consolidated SIP submission as described previously in this 
proposal. Most areas that need an emission statement program already 
have one in place due to a nonattainment designation for an earlier 
ozone NAAQS. If an area has a previously approved emission statement 
rule in force for the 1997 ozone NAAQS or the 1-hour ozone NAAQS that 
covers all portions of the nonattainment area for the 2008 ozone NAAQS, 
such rule should be sufficient for purposes of the emissions statement 
requirement for the 2008 ozone NAAQS. The state should review the 
existing rule to ensure it is adequate and, if it is, may rely on it to 
meet the emission statement requirement for the 2008 ozone NAAQS.
    We note that regardless of whether states submit their emissions 
inventory statements within 2 years of the effective date of 
designations, or within 30 months of the effective date of designations 
as part of a consolidated SIP submission, this proposed rule will 
ensure that, consistent with the intent of section 182(a)(3)(B), states 
will submit their first emission statements no later than 3 years 
following the effective date of designations for the 2008 NAAQS. We are 
soliciting comments on our interpretation of the emission statement 
requirements under section 182(a)(3)(B) as they would apply to areas 
designated nonattainment for the 2008 ozone NAAQS.

K. What are the ambient monitoring requirements?

    Ozone monitoring data play an important role in designations, 
classifications, control strategy development and related 
implementation activities. The EPA's ambient monitoring requirements 
are contained in 40 CFR part 58. On July 16, 2009, the EPA proposed 
revised rules for monitoring ambient ozone (74 FR 34525). The EPA 
proposed to modify minimum monitoring requirements in urban areas, add 
new minimum monitoring requirements in non-urban areas and extend the 
length of the required ozone monitoring season in some states. The 
schedule for finalizing any or all aspects of the ambient ozone 
monitoring proposal remains unclear at this time. There were no new 
monitoring requirements included in the 2008 ozone NAAQS rule.
    The Photochemical Assessment Monitoring Station (PAMS) program, 
required by CAA section 182(c)(1), collects enhanced ambient air 
measurements in areas classified as Serious, Severe, or Extreme ozone 
nonattainment. Each PAMS area collects data for a target list of 
volatile organic compounds (VOCs), NOX, NOy, and 
ozone, as well as surface and upper air meteorological measurements. 
Monitoring rule amendments published on October 17, 2006, (71 FR 61236) 
reduced the minimum PAMS requirements. The revisions were intended to 
require the retention of the minimum common PAMS network elements 
necessary to meet the objectives of every PAMS program, while freeing 
up resources for states to tailor other features of their own PAMS 
networks to suit their specific data needs.

L. How can states qualify for a 1-year attainment deadline extension?

    Section 181(a)(5) of the CAA addresses the conditions under which 
an area may be eligible for a 1-year extension of its attainment date. 
Because that statutory provision was written for an exceedance-based 
standard, such as the 1-hour ozone NAAQS, the EPA established through 
the Phase 1 Rule (40 CFR 51.907) an interpretation that would apply to 
a concentration-based standard, such as the 1997 ozone NAAQS.\61\ The 
2008 ozone NAAQS is also a concentration-based standard. Thus, we are 
proposing the same approach as set forth in section 51.907 for purposes 
of the 2008 ozone NAAQS. Under this approach, an area that fails to 
attain the 2008 ozone NAAQS by its attainment date would be eligible 
for the first 1-year extension if, for the attainment year, the area's 
4th highest daily 8-hour average is at or below the level of the 
standard. The area would be eligible for the second 1-year extension if 
the area's 4th highest daily 8-hour value, averaged over both the 
original attainment year and the first extension year, is at or below 
the level of the standard. Thus, to be eligible for the first 1-year 
extension, the 4th highest daily 8-hour value for an area would need to 
be at or below 0.075 ppm. The area would be eligible for the second 
extension if the area's 4th highest daily 8-hour value, averaged over 
both the original attainment year and the first extension year, is less 
than or equal to 0.075 ppm.
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    \61\ The exceedance based standard basically allowed the NAAQS 
level to be exceeded an average of only once a year over a 3-year 
period. (This is a generalization of how attainment is determined; 
the actual method considers other factors such as completeness of 
the data.) See 40 CFR, appendix H. In contrast, the concentration 
based standard allows the level of the 8-hour ozone NAAQS to be 
``exceeded'' more than once a year on average because the form 
(concentration-based) of that NAAQS is determined by averaging the 
4th highest reading for each year over a 3-year period.
---------------------------------------------------------------------------

M. How will the EPA address transport of ozone and its precursors for 
rural nonattainment areas, multi-state nonattainment areas and 
international transport?

1. Rural Transport Areas (RTAs)
    Section 182(h) of the CAA recognizes that ozone standard violations 
in some rural areas may be almost entirely attributable to emissions 
from outside the nonattainment area (i.e., from upwind areas). That 
section provides that an area meeting certain criteria may, at the 
Administrator's discretion, be treated as a ``rural transport area.'' 
Under this classification, the area's ozone implementation requirements 
are met if the area satisfies the requirements applicable to areas 
classified as Marginal. This means that the area does not need to 
provide an attainment demonstration or adopt specific mandatory 
measures associated with higher classifications. The only requirements 
that would apply, regardless of the level of ozone air quality, would 
be nonattainment NSR, at the Marginal major source threshold and offset 
ratio, and conformity requirements associated with a nonattainment 
designation, as well as the emission inventory and source emission 
statement requirements. Because the area's nonattainment problem is 
primarily due to upwind sources outside the control of the area, the 
consequences of failure to attain by the Marginal area deadline would 
not apply.
    The EPA may determine an area is a rural transport area if it meets 
two statutory criteria. First, a nonattainment area may only be a rural 
transport area if it ``. . . does not include, and is not adjacent to, 
any part of a Metropolitan Statistical Area or, where one exists, a 
Consolidated Metropolitan Statistical Area . . .'' In addition, the EPA 
must determine that ``sources of VOC emissions (and, where the 
Administrator determines relevant, NOX emissions) within the 
area do not make a significant contribution to the ozone concentrations 
measured in the area or in other areas.'' The metropolitan areas 
addressed in section 182(h) were only those with population cores of 
50,000 or more.
    In 2000, OMB issued new standards for defining statistical areas 
(65 FR 82228; December 27, 2000). The new

[[Page 34204]]

statistical area standards supersede and replace the previous 1990 
standards for defining metropolitan areas, which the EPA used for the 
ozone designations and classifications for the 1-hour ozone NAAQS and 
the 1997 ozone NAAQS. In order to facilitate comparison of data for 
MSAs over time, OMB retained the conceptual approach to defining 
metropolitan statistical areas based around population cores of 50,000 
or more. These core areas are not necessarily confined to city limits, 
and may include multiple counties or parts of counties. Because of the 
usefulness of the metropolitan area standards and data products, OMB 
received requests that the new standards take into account more 
territory of the United States. In response, OMB established a new 
category called micropolitan statistical areas, which are defined as 
areas with an urban core population of at least 10,000 but less than 
50,000. The new standards also establish the term Core Based 
Statistical Area (CBSA), which refers collectively to both metropolitan 
statistical areas and the new smaller micropolitan statistical areas, 
and the term Combined Statistical Area (CSA), which consists of two or 
more adjacent CBSAs that are linked by commuting patterns. (See http://www.census.gov/population/www/metroareas/metrodef.html.)
    In light of the changed OMB definitions, the EPA has considered how 
the reference in section 182(h) to areas adjacent to a ``Metropolitan 
Statistical Area or, where one exists, a Consolidated Metropolitan 
Statistical Area'' should be interpreted. We intend to interpret this 
language to refer to OMB's current definition of MSA. In other words, 
to qualify for a rural transport classification, the nonattainment 
area's boundary could not include or be adjacent to an OMB-defined MSA 
based on the Census Bureau's latest population estimates. Under this 
approach, any nonattainment area associated with a micropolitan area or 
area too sparsely populated to be included in a census-defined 
statistical area, based on Census Bureau population estimates, may be 
able to qualify for a rural transport classification.
    The EPA believes this interpretation of CAA section 182(h) is 
consistent with the scope of section 182(h) as promulgated in 1990 and 
provides maximum flexibility for areas to qualify for this 
classification where appropriate. During the designations process for 
the 2008 ozone NAAQS, no states identified any rural transport areas.
2. Multi-State Nonattainment Areas
    Each state within a multi-state ozone nonattainment area is 
responsible for meeting all the requirements relevant to the given 
area. Section 182(j)(1)(a) requires that states should ``take all 
reasonable steps to coordinate substantively and procedurally'' on SIP 
development. States should coordinate on topics such as determining the 
appropriate modeling domain, baseline year, projection years and 
meteorological episodes. In addition, they should coordinate modeling 
efforts and, as required by section 182(j)(1)(B), the attainment 
demonstration must be based on photochemical grid modeling or another 
method determined by the EPA to be at least as effective.
    Section 182(j)(2) recognizes that in certain instances, one or more 
states within a multi-state nonattainment area may not submit an 
attainment plan by the required date, and thus interfering with the 
ability of the area as a whole to demonstrate attainment. In such case, 
section 182(j) provides that even though the area as a whole would not 
be able to demonstrate attainment, the sanction provisions of section 
179 shall not apply in the portion of the nonattainment area located in 
a state that submitted all other provisions of an attainment plan and 
demonstrated that it could have demonstrated attainment but for the 
failure of the other state to cooperate.
3. International Transport
a. Transboundary Transport
    Most ozone air quality problems in the United States are due 
primarily to emission sources within the United States. However, 
domestic ozone air quality can also be affected by sources of emissions 
located across United States borders in Canada and Mexico, and from 
other continents. These contributions to U.S. ozone concentrations from 
sources outside the United States can affect to varying degrees the 
ability of some areas to attain and maintain the 2008 ozone NAAQS and 
may play a larger role in ozone attainment demonstrations for future 
NAAQS.
    There is strong evidence that baseline levels of tropospheric ozone 
have risen above pre-industrial levels in the northern hemisphere, and 
much of this increase can be directly attributed to human-caused 
emissions of ozone precursors. Our ability to fully characterize and 
quantify the impact of sources of air pollution from other parts of 
North America (Canada and Mexico) has been steadily improving; however, 
our ability to assess the impacts of air pollution from other 
continents on air quality in the U.S. is still developing. Some factors 
that affect our current ability to fully characterize international 
transboundary transport of air pollution from other continents are 
uncertainties in foreign emissions inventories, incomplete 
understanding of atmospheric chemistry during transport and the 
inability to distinguish long-range pollutant contributions from local 
and regional sources of air pollution.
    In order to address the challenging and complex problem of the 
impact of foreign emissions on air quality in the U.S., the EPA has 
been engaged in a number of different efforts both domestically and 
internationally. In 1991, the U.S. and Canada entered into an agreement 
to address transboundary air pollution (U.S.-Canada Air Quality 
Agreement); and in 2000 an Ozone Annex was added to the agreement to 
establish commitments to reduce ozone and its precursors--
NOX and VOCs. Under this agreement, significant progress has 
been made in reducing transport of ozone and its precursors across the 
U.S.-Canada border. Similarly, the U.S. has been working with Mexico in 
addressing the transboundary transport of air pollution under the La 
Paz Agreement (Cooperation for the Protection and Improvement of the 
Environment in the Border Area) established in 1983.
    In addition, the EPA, along with several other federal agencies, 
sponsored a National Academy of Sciences study to summarize the state 
of knowledge regarding the international flows of air pollutants into 
and out of the U.S. and consider the impact of these flows on the 
achievement of environmental objectives related to air quality and 
pollutant deposition in the U.S.\62\ The study, completed in 2009, 
recommended a variety of research initiatives, such as advanced 
``fingerprinting'' techniques to better identify source-specific 
pollutant characteristics in order to enhance the understanding of 
long-range transport of pollution. Moreover, the EPA co-chairs the Task 
Force on Hemispheric Transport of Air Pollution under the Convention on 
Long-range Transboundary Air Pollution of the United Nations Economic 
Commission for Europe. The task force was established to develop a 
fuller understanding of intercontinental transport of air pollution in 
the northern hemisphere, and serves as a forum for international 
scientific communication

[[Page 34205]]

and collaboration and as a bridge between the international research 
community and the international air quality policy community. This task 
force concluded that methane is an important precursor to tropospheric 
ozone on global scales and that decreasing methane emissions will, over 
several decades, decrease background ozone levels and help mitigate 
climate change.
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    \62\ ``Global Sources of Local Pollution: An Assessment of Long-
Range Transport of Key Air Pollutants to and from the United 
States.'' http://www.nap.edu/catalog.php?record_id=12743.
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    Methane has not been addressed as part of ozone attainment planning 
in the past because of the limited effect that local measures to 
control methane would have on local or regional ozone concentrations in 
the immediate time frame. Given the temporal and spatial 
characteristics associated with methane and ozone, we continue to 
believe that it is inappropriate to require or rely on local methane 
emission reductions in ozone SIPs. Through voluntary partnership 
programs focused on greenhouse gas reduction, the EPA has worked with 
U.S. industries and state and local governments to promote cost-
effective opportunities for reducing methane emissions from the coal, 
natural gas, petroleum, landfill and agricultural industries. Building 
on these domestic programs and the international Methane to Markets 
Partnership, the United States has joined with other countries to 
launch the Global Methane Initiative to facilitate the reduction of 
methane emissions globally. These domestic and international efforts 
will help mitigate climate change and decrease background ozone levels 
over the next several years and decades.
    The EPA will continue to work with our domestic and international 
partners to better understand the extent and implications of 
transboundary flows of air pollutants and, where possible, to mitigate 
their impact on U.S. domestic air quality.
b. The SIP Approval Process Under Section 179B for International Border 
Areas
    Emissions from sources outside the United States that may 
contribute to violations of the 2008 ozone NAAQS in an area designated 
as nonattainment may be addressed by section 179B of the CAA. This 
section allows the EPA to approve an attainment demonstration for a 
nonattainment area if: (1) The attainment demonstration meets all other 
applicable requirements of the CAA; and (2) the submitting state can 
satisfactorily demonstrate that ``but for emissions emanating from 
outside of the United States,'' the area would attain and maintain the 
ozone standard. The EPA is proposing that this could include 
consideration of any emissions from North American or intercontinental 
sources. The EPA has historically evaluated these ``but for'' 
demonstrations on a case-by-case basis, based on the individual 
circumstances, the classification of the area and the data provided by 
the submitting state. These data have included ambient air quality 
monitoring data, modeling scenarios, emissions inventory data and 
meteorological or satellite data. For areas classified as Moderate and 
above, the modeling and other elements of the attainment demonstration 
must show timely attainment of the NAAQS but for the emissions from 
outside of the U.S. Section 179B does not, however, provide authority 
to exclude monitoring data influenced by international transport from 
regulatory determinations related to attainment and nonattainment. 
Thus, even if the EPA approves a section 179B ``but for'' demonstration 
for an area, the area would continue to be designated as nonattainment 
and subject to the applicable requirements, including nonattainment new 
source review, conformity and other measures prescribed for 
nonattainment areas by the CAA. However, if the EPA approves a ``but 
for'' demonstration for an area, the area would not be subject to 
reclassification for failure to attain by its attainment deadline and, 
if such areas were classified as Severe or Extreme, the section 185 fee 
program would not apply based on a failure to attain by the attainment 
date.
    Although monitored data cannot be excluded for a determination of 
whether an area has attained based solely on the fact the data are 
affected by emissions from outside the U.S., such data may be excluded 
from consideration if they were significantly influenced by exceptional 
events. CAA section 319(b)(3). Where international transport meets the 
criteria contained in the EPA's Exceptional Events Rule (40 CFR 50.14), 
it can be addressed by that rule.
    The EPA believes that the best approach for addressing the 
potential impacts of international transport on nonattainment is for 
states to work with the EPA on a case-by-case basis to determine the 
most appropriate information and analytical methods for each area's 
unique situation. We will work with states that are developing plans 
pursuant to section 179B, and ensure the states have the benefit of the 
EPA's developing understanding of international transport of ozone and 
its precursors.

N. How will the section 182(f) NOX provisions be handled?

1. Background
    Section 182(f) of the CAA applies to areas designated nonattainment 
for ozone and classified as Serious and above under subpart 2 of part D 
of title 1, and to areas in the OTR. It requires states to apply the 
same requirements to major stationary sources of NOX as 
apply to major stationary sources of VOC under subpart 2. Specifically, 
this requirement applies to RACT and nonattainment NSR for major 
stationary sources of NOX in these areas.\63\ However, while 
NOX emissions are necessary for the formation of ozone in 
the lower atmosphere, a local decrease in NOX emissions can, 
in some cases, increase local ozone concentrations. Thus, section 
182(f) also allows a person or a state to request an exemption from or 
limitation on the application of the specified NOX 
requirements if specific circumstances are met (``NOX 
exemption''). Areas granted a NOX exemption under section 
182(f) may also be granted an exemption from certain requirements of 
the EPA's motor vehicle I/M regulations and from certain federal 
requirements of General and Transportation Conformity.\64\ The EPA 
initially issued guidance on the section 182(f) NOX 
requirements in 1993.\65\ On January 14, 2005, the EPA issued an update 
to that guidance to address implementation of the 1997 ozone NAAQS.\66\
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    \63\ See 57 FR 55622, November 25, 1992, ``Nitrogen Oxides 
Supplement to the General Preamble.''
    \64\ As stated in the EPA's I/M rule (57 FR 52950; November 5, 
1992) and conformity rules (60 FR 57179, November 14, 1995 for 
transportation conformity and 58 FR 63214, November 30, 1993 for 
general conformity), certain NOX requirements in those 
rules do not apply where the EPA grants an area-wide exemption under 
section 182(f).
    \65\ In 1993 the EPA issued a guidance document for application 
of the section 182(f) provisions with respect to the 1-hour ozone 
NAAQS. The document was titled ``Guideline for Determining the 
Applicability of Nitrogen Oxides Requirements under Section 182(f), 
from John S. Seitz, Director, Office of Air Quality Planning and 
Standards, to the Regional Division Directors, December 16, 1993. 
The NOX exemption guidance was revised later in ``Section 
182(f) Nitrogen Oxides (NOX) Exemptions Revised Process 
and Criteria,'' memorandum from John S. Seitz, Director, Office of 
Air Quality and Standards, to the Regional Division directors, May 
27, 1994; and ``Section 182(f) Nitrogen Oxides (NOX) 
Exemptions--Revised Process and Criteria,'' memorandum from John S. 
Seitz, Director, Office of Air Quality and Standards, to the 
Regional Division Directors, February 8, 1995.
    \66\ Memorandum dated January 14, 2005, ``Guidance on Limiting 
Nitrogen Oxides (NOX) Requirements Related to 8-Hour 
Ozone Implementation'' from Stephen D. Page, Director, Office of Air 
Quality Planning and Standards, to Air Directors, Regions I-X.

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[[Page 34206]]

2. Proposal
    We are not proposing any modifications to our previous 
interpretation of the NOX RACT requirement for purposes of 
implementing the 2008 ozone NAAQS. Consistent with the approach taken 
in the 2005 updated guidance and the Phase 2 Rule, we are proposing 
that a previously granted NOX exemption (or waiver) under 
the 1-hour or 1997 ozone NAAQS would not apply for purposes of 
implementing the 2008 ozone NAAQS. A state would need to submit a new 
request for an exemption that is supported by analyses specific to the 
2008 ozone NAAQS and considers any relevant information developed after 
the 1-hour or 1997 ozone NAAQS waivers were granted. As states evaluate 
whether to seek a NOX waiver, the EPA encourages them to 
include consideration of air quality effects that may extend beyond the 
designated nonattainment area. See, for example, the discussion in the 
Phase 2 Rule, November 29, 2005, on page 71661 (70 FR at 71661-71662).
    A SIP revision requesting a NOX exemption for the 2008 
ozone NAAQS must contain adequate documentation that the provisions of 
section 182(f) and our regulations are met. The EPA has issued guidance 
on appropriate documentation regarding section 182(f) for application 
to the 8-hour ozone program.\67\ The EPA believes this guidance is 
sufficient to cover the 2008 ozone NAAQS.
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    \67\ Memorandum dated January 14, 2005, ``Guidance on Limiting 
Nitrogen Oxides (NOX) Requirements Related to 8-Hour 
Ozone Implementation'' from Stephen D. Page, Director, Office of Air 
Quality Planning and Standards, to Air Directors, Regions I-X.
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O. Emissions Reduction Benefits of Energy Efficiency/Renewable Energy 
Policies and Programs, Land Use Planning and Travel Efficiency

1. Energy Efficiency/Renewable Energy Policies and Programs
    Governments at all levels--local, state, tribal and federal--have 
been developing energy efficiency/renewable energy (EE/RE) policies and 
programs to reduce demand for and production of fossil-fuel driven 
electric power. As of 2011, twenty-nine states (and Washington, DC) had 
adopted renewable portfolio standards (RPS) which require retail 
electricity providers to supply a minimum percentage or amount of 
retail demand with renewable resources, more than double the number of 
states in 2000.68 69 Although the details of each RPS policy 
vary, generally they are structured such that, initially, a relatively 
small percentage of a state's electricity supply must come from 
renewable sources, and over time the percentage increases until a 
state-specified target is achieved. For example, the State of 
Connecticut requires that 4.5 percent of electricity come from 
renewable sources beginning in 2005, and the target increases to 27 
percent by 2020.\70\
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    \68\ For more information, see presentations from the 2011 
National Summit on RPS at http://www.cleanenergystates.org/assets/Uploads/2011-RPS-Summit-Combined-Presentations-File.pdf.
    \69\ See Database of CHP Policies and Incentives (dCHPP) at 
http://www.epa.gov/chp/policies/database.html.
    \70\ http://www.dpuc.state.ct.us/electric.nsf/
$FormRenewableEnergyView?OpenForm&.
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    Energy efficiency policies refer to a range of laws, regulations, 
and public utility commission (PUC) orders aimed at reducing energy 
demand through the use of more energy efficient equipment, 
technologies, and practices. These policies can be funded through 
ratepayer surcharges, federal funds (e.g., American Recovery and 
Reinvestment Act \71\), state general funds, proceeds from pollution 
auctions such as the Regional Greenhouse Gas Initiative \72\ and/or any 
combination of the above. Examples of energy efficiency policies 
include:
---------------------------------------------------------------------------

    \71\ For more information, go to: http://www.recovery.gov/Pages/default.aspx.
    \72\ For more information, go to: http://www.rggi.org/.
---------------------------------------------------------------------------

     Minimum efficiency requirements for new homes and 
buildings (building energy codes) or appliances (appliance standards).
     Requirements for utilities (or other program 
administrators) to deliver a specified amount of energy savings by 
developing energy efficiency programs to increase market adoption of 
energy efficiency technologies and practices (i.e., energy efficiency 
resource standards (EERS), also known as Energy Efficiency Portfolio 
Standards (EEPS)). Some states have incorporated EERS to function 
alongside or as part of their RPS.
     Specified funding levels collected via ratepayer electric 
bills or other sources and dedicated to implementing energy efficiency 
programs (e.g., public benefits funds, air pollution allowance auction 
revenue).
    EE/RE policies and programs can help reduce electricity generation 
from fossil-fueled sources resulting in lower emissions of 
NOX (as well as other criteria pollutants, hazardous air 
pollutants and greenhouse gases) from power generation. Many renewable 
energy sources such as wind, solar and hydro power have no associated 
NOX and other emissions. Other renewable energy sources, 
such as landfill gas combustion used to power electrical generators, do 
produce some air emissions but generally less NOX emissions 
than coal-fired EGUs. Energy efficiency is achieving the same or better 
level of service or performance with lower energy consumption. Examples 
include high-efficiency appliances; efficient lighting; high-efficiency 
heating, ventilating and air conditioning systems or control 
modifications; efficient building design; advanced electric motor 
drives; combined heat and power; and heat recovery systems.
    The EPA encourages states to consider adopting EE/RE policies and 
programs to benefit nonattainment areas in their own state, as well as 
to reduce the impact of ozone transport on downwind states. In July 
2012, the EPA made available the first version of clarifying guidance 
on the incorporation of EE/RE measures in SIPs.\73\ Specifically, the 
EPA made available a document titled, ``Roadmap for Incorporating 
Energy Efficiency/Renewable Energy Policies and Programs into State and 
Tribal Implementation Plans'' to encourage state, tribal and local 
agencies to consider incorporating EE/RE policies and programs into 
SIPs/tribal implementation plans (TIPs). The manual is a ``living'' 
document, and it will be updated periodically as new information 
becomes available.
---------------------------------------------------------------------------

    \73\ See http://www.epa.gov/airquality/eere.html.
---------------------------------------------------------------------------

    The manual describes four pathways for considering air pollution 
reductions from EE/RE policies and programs in SIPs and TIPs. They can 
be included in the attainment year projected baseline, factored into a 
``weight of evidence'' attainment demonstration, incorporated as 
emerging/voluntary measures, or adopted as control measures and modeled 
in the attainment demonstration. When reviewing air pollution 
reductions from EE/RE policies and programs for the purpose of SIPs and 
TIPs, it is important to consider how the EE/RE policies and programs 
and their associated emission reductions best fit within one or more of 
the four SIP pathways. Valid EE/RE policies and programs that meet the 
applicable requirements of section 182(c)(9) can also be used as 
contingency measures.
    The EPA is providing additional assistance to state, tribal and 
local agencies, including tools for quantifying the emissions impacts 
of EE/RE policies and programs, training and technical assistance, and 
energy savings information for state-level EE policies

[[Page 34207]]

and programs. The EPA is also working with states on developing 
examples to illustrate how reductions from specific EE/RE policies and 
programs could be quantified and considered in their SIPs. The EPA 
encourages states to continue to work with each other and with the EPA 
to incorporate emission reductions from their EE/RE policies and 
programs into SIPs.
2. Land Use Planning
    States may also wish to consider strategies that foster more 
efficient urban and regional development patterns as another effective 
long-term air pollution control measure. For example, land use 
strategies consistent with the principles endorsed by the HUD DOT EPA 
Sustainable Communities Partnership \74\ can reduce mobile source 
emissions by providing a broader range of transportation and housing 
choices. Strategies that achieve such results include: increased 
residential development in major employment centers, transit-oriented 
development, redevelopment of underutilized land in existing 
communities and making pedestrian and transit access key design 
features of new communities. Specific activities that support such 
strategies include: changing local zoning codes to accommodate mixed 
use development and more walkable neighborhoods; greenway corridors; 
complete streets ordinances; increasing street connectivity; creating 
more flexible parking standards; transit station area planning; and 
funding or policy incentives to support redevelopment. EPA studies have 
concluded that development patterns that enable people to live closer 
to work, and that allow people to walk, bike or use transit, will 
reduce VMT, thereby decreasing automobile emissions and improving 
regional air quality.\75\ Several studies conducted by metropolitan 
planning organizations have also found significant reductions in VMT 
associated with accommodating more growth though redevelopment in 
existing communities rather than greenfields development.
---------------------------------------------------------------------------

    \74\ Sustainable Communities Principles: 1. Provide more 
transportation choices. 2. Promote equitable, affordable housing. 3. 
Enhance economic competitiveness. 4. Support existing communities. 
5. Coordinate and leverage federal policies and investments. 6. 
Value communities and neighborhoods. See http://www.epa.gov/smartgrowth/partnership/index.html.
    \75\ ``Our Built and Natural Environments'' (EPA 231-R-01-002, 
January 2001). ``Measuring the Air Quality and Transportation 
Impacts of Infill Development'' (EPA 231-R-07-001, November 2007).
---------------------------------------------------------------------------

    The EPA has issued guidance on how to include emissions reductions 
from such growth strategies in SIPs. This guidance document, 
``Improving Air Quality Through Land Use Activities,'' is available at: 
http://www.epa.gov/otaq/stateresources/policy/transp/landuse/r01001.pdf.
    The guidance provides communities experiencing air quality problems 
with the information they need to better understand the link between 
air quality, transportation and land use activities, and how certain 
land use activities have the potential to help local areas meet and 
maintain healthy air quality. The document also includes methods to 
help communities account for the air quality benefits of their local 
land use activities in their air quality plans. The EPA will provide 
additional guidance as needed, and will continue to work with states on 
incorporating these types of programs into their SIPs.
3. Travel Efficiency
    In addition to land use strategies, areas should consider 
incorporating travel efficiency strategies in their SIPs. Travel 
efficiency strategies may include land use strategies, but also include 
new or expanded mass transit options, commuter strategies, system 
operations (e.g., eco-driving, ramp metering), pricing (e.g., parking 
taxes, congestion pricing, intercity tolls), speed limit restrictions 
and multimodal freight strategies.
    In July 2009, the Urban Land Institute released a report titled, 
Moving Cooler: An Analysis of Transportation Strategies for Reducing 
Greenhouse Gas Emissions,\76\ which the EPA and the DOT helped to fund. 
The report analyzed the potential levels of emissions reductions 
achievable from light-duty travel efficiency strategies. Moving Cooler 
included six different bundles of strategies to reflect different 
potential groups of strategies that could be implemented.
---------------------------------------------------------------------------

    \76\ Cambridge Systematics, Inc. (2009). Moving Cooler: An 
Analysis of Transportation Strategies for Reducing Greenhouse Gas 
Emissions. Urban Land Institute: Washington, DC (http://www.uli.org/
).
---------------------------------------------------------------------------

    We believe that the ``Low Cost'' bundle of measures represents the 
most appropriate combination of strategies for states to consider based 
on cost, likelihood of success and accuracy of the research results. 
This bundle of measures includes the strategies listed above. We have 
conducted a preliminary national emissions modeling analysis using the 
data in the report and estimate that between 2010 and 2020 the low cost 
bundle of measures could reduce NOX and VOC emissions 
between approximately 2 and 5 percent depending on how aggressively the 
strategies are implemented. Additional reductions are possible in later 
years.
    The Moving Cooler report makes assumptions about the geographic 
scope for which each strategy could be implemented. For example, 
certain strategies like increased transit are dependent on high 
population density, while other strategies like telecommuting could be 
implemented in both urban and rural areas. The percent reductions for 
such measures would be larger in urban areas, where VMT reductions 
would be concentrated. The EPA believes that states should consider 
these types of strategies as they develop SIPs for the 2008 ozone 
NAAQS.
    In March of 2011, the EPA released two documents that we believe 
will prove to be useful to states that want to evaluate emissions 
reductions that may be available from travel efficiency strategies. The 
first document is titled, ``Potential Changes in Emissions Due To 
Improvements In Travel Efficiency.'' \77\ This report provides 
information on the effectiveness of travel efficiency measures for 
reducing emissions of NOX, VOCs and PM2.5 at the 
national scale. The report describes an approach that uses regionally 
derived travel model data and other travel activity information, and 
sketch-planning analysis to estimate potential emission reductions from 
urban areas of varying size and characteristics. The results are 
applied to other urban areas in the U.S. of similar characteristic to 
estimate potential national emission reductions.
---------------------------------------------------------------------------

    \77\ EPA-420-R-11-003, March 2011, http://epa.gov/otaq/stateresources/policy/420r11003.pdf.
---------------------------------------------------------------------------

    The second document is titled, ``Transportation Control Measures: 
An Information Document for Developing and Implementing Emission 
Reduction Programs.'' \78\ This document provides information on 
transportation control measures that have been implemented across the 
country for a variety of purposes, including reducing emissions related 
to criteria pollutants. The document describes the processes used to 
develop and implement the strategies and, where available, their 
effectiveness.
---------------------------------------------------------------------------

    \78\ EPA-430-R-09-040, March 2011, http://www.epa.gov/otaq/stateresources/policy/430r09040.pdf.
---------------------------------------------------------------------------

P. Efforts To Encourage a Multi-Pollutant Approach When Developing 2008 
Ozone SIPs

1. In General
    From a planning and resource perspective, the EPA believes that it 
can

[[Page 34208]]

be efficient for states to develop integrated control strategies that 
addresses multiple pollutants rather than separate strategies for each 
pollutant or NAAQS individually. An integrated air quality control 
strategy that reduces multiple pollutants can help ensure that 
reductions are efficiently achieved and produce the greatest overall 
air quality benefits. For example, we know that certain control 
measures that reduce emissions of the ozone precursors NOX 
and VOC, and thus reduce ambient ozone levels, can also result in 
reduced emissions and ambient concentrations of PM2.5 \79\ 
and also can improve visibility. Many VOCs are also HAP, so an ozone 
control strategy may provide the additional benefit of reducing air 
toxics. We also know that many sources of PM2.5 also emit 
toxic metals as particulates, so controlling directly emitted 
PM2.5 emissions from these sources would also reduce the 
emissions of toxic metals. In addition, due to expected changes in 
meteorology resulting from climate change, the EPA encourages states to 
assess climate change and air pollution together and account for the 
potential effects of climate change in their multi-pollutant planning 
efforts.
---------------------------------------------------------------------------

    \79\ For a list of potential control measures for 
PM2.5 precursors, see http://www.epa.gov/airquality/particlepollution/measures/pm_control_measures_tables_ver1.pdf.
---------------------------------------------------------------------------

    In June 2007, the EPA's CAA Advisory Committee (CAAAC) recommended 
that the agency allow states to integrate SIP requirements and other 
air quality goals into a comprehensive plan.\80\ The recommended plan 
would demonstrate attainment/maintenance of multiple NAAQS, accomplish 
sector-based reductions, realize risk reductions of HAPs and make 
improvements in visibility. It could also be structured to integrate 
programs addressing land use, transportation, energy and climate.
---------------------------------------------------------------------------

    \80\ Recommendations to the Clean Air Act Advisory Committee: 
Phase II, June 2007, http://epa.gov/air/caaac/aqm/phase2finalrept2007.pdf.
---------------------------------------------------------------------------

    The EPA has encouraged states to take a multi-pollutant approach to 
managing air quality.\81\ Specifically, we have encouraged states to 
involve all stakeholders when planning to meet air quality standards 
and to provide a basic outline for how local jurisdiction(s) could 
address air pollutants in an integrated manner.
---------------------------------------------------------------------------

    \81\ Memo from Stephen D. Page to Regional Air Division 
Directors, Aug. 10, 2005, ``Consideration of Multiple Pollutants in 
Control Strategy Development.'' http://epa.gov/air/caaac/aqm/aqm-page-memo.pdf.
---------------------------------------------------------------------------

    While the agency encourages states to develop multi-pollutant 
plans, we recognize that the requirement for the EPA to review and, as 
necessary, revise NAAQS every 5 years, which can trigger new statutory 
SIP submission and attainment dates, as well as the ever-evolving 
understanding of pollutants and the myriad control programs that may be 
available to reduce emissions, can sometimes make such efforts 
challenging. For example, under the current law, the 2007 submission 
date for Regional Haze SIPs has already passed while the December 2012 
submittal date for attainment demonstrations for the 2006 
PM2.5 NAAQS is more than 2 years before the proposed 
submittal date for attainment demonstrations for the 2008 ozone NAAQS. 
Although it is thus not feasible to integrate fully the planning 
requirements for regional haze, the 2006 PM2.5 NAAQS and the 
2008 ozone NAAQS, states could use common databases and modeling tools 
for all three programs and rely on similar control measures as 
appropriate. Furthermore, as states develop plans to meet the 2008 
ozone NAAQS, they may wish to modify existing plans for other NAAQS or 
for regional haze as they consider strategies more comprehensively. 
However, it is important to note that all the CAA mandated planning and 
program elements for individual standards must continue to be met. We 
are specifically requesting comments on other approaches to integrating 
the planning requirements for multiple NAAQS and other CAA programs 
that are promulgated at different times.
2. What is the EPA doing beyond encouraging states to integrate their 
air quality planning activities to the extent feasible?
    Ideally, an air quality management plan (AQMP) is a set of 
pollution reduction strategies/planning activities for an area 
demonstrating: attainment/maintenance of one or more NAAQS; risk 
reductions from HAPs; improvements in visibility and ecosystem health; 
and integration of land use, transportation, energy and climate 
activities in the area. Three areas in the country--North Carolina, New 
York and the city of St. Louis (involving both Missouri and Illinois)--
participated in an EPA-led pilot effort to develop multi-pollutant 
AQMPs. The pilots provided lessons regarding AQMP development that 
should prove useful to other areas interested in better integrating 
their air quality planning. The areas' initial AQMPs and other 
materials are available on the EPA's Web site.\82\
---------------------------------------------------------------------------

    \82\ http://www.epa.gov/air/aqmp/.
---------------------------------------------------------------------------

    Implementation of the 2008 ozone NAAQS provides an opportunity for 
states to consider how to use a multi-pollutant approach from the 
beginning of their planning process. We recommend that states and 
tribes wishing to take a comprehensive approach consider the following 
activities.
     Develop models for the attainment demonstration that 
include previously implemented or planned measures to reduce ozone 
precursors, secondary fine particles, pollutants that contribute to 
regional haze and, where appropriate, air toxics and any potential 
negative impacts on ecosystems.
     Conduct an integrated assessment of the impact controls 
have on ambient levels of ozone, PM2.5, regional haze and, 
where applicable, air toxics, greenhouse gases, ecosystem protection 
and environmental justice.
     Use common data bases and analytical tools, where 
possible.
    EPA is requesting comment on what incentives or assistance we might 
be able to provide to encourage states to integrate their planning 
activities.
3. Multi-pollutant Assessments/One-atmosphere Modeling
    A multi-pollutant assessment, or one-atmosphere modeling, is 
conducted with a single air quality model that is capable of simulating 
transport and formation of multiple pollutants simultaneously.\83\ For 
example, this type of model can simulate formation and deposition 
involving pollutants associated with ozone, PM2.5 and 
regional haze, and it can include algorithms simulating gas phase 
chemistry, aqueous phase chemistry, aerosol formation and acid 
deposition. This type of model could also include the formation and 
deposition of key air toxics and the chemical interactions that occur 
with these individual toxic species to produce ozone and 
PM2.5.
---------------------------------------------------------------------------

    \83\ Depending on the context, ``multi-pollutant'' can be 
defined in different ways. In this context we are defining multi-
pollutant modeling as simultaneous modeling of ozone, 
PM2.5, key air toxics, and regional haze. Future multi-
pollutant models may include the ability to model a broader array of 
air toxics as well as greenhouse gases.
---------------------------------------------------------------------------

    Multi-pollutant assessments are recommended for ozone attainment 
demonstrations because the formation and transport of ozone is closely 
related to the formation of both PM2.5 and regional haze. 
There is often a positive correlation between measured ozone and 
secondary particulate matter. Many of the same factors affecting 
concentrations of ozone also affect concentrations of secondary 
particulate matter because similarities exist in

[[Page 34209]]

sources of precursors for both pollutants. For example, emissions of 
NOX may lead to formation of nitrates, which affect both 
ambient ozone and PM2.5 levels and impair visibility. Many 
VOCs (such as toluene) are air toxics and may also be sources or 
precursors for both ozone and organic particles. In addition, the 
presence of ozone itself may be an important factor affecting secondary 
particle formation.
    Because of these relationships, models and data analysis intended 
to address ozone could be beneficial for use in addressing 
PM2.5 and visibility impairment. When performing a multi-
pollutant assessment, the modeling should take into account previously 
implemented or planned measures to reduce ozone, PM2.5 and 
regional haze. States that undertake multi-pollutant assessments as 
part of their attainment demonstration should consider assessing the 
impact of their ozone strategies on PM2.5 and visibility 
impairment to ensure that optimal emission reduction strategies are 
developed for the three programs to the extent possible. This could 
facilitate addressing all of these pollutants in a more cost effective 
manner.
    States may also find it desirable to assess the impact of ozone, 
PM2.5 and/or regional haze control strategies on toxic air 
pollutants regulated under the CAA or under state air toxic 
initiatives. Given the relationships that exist between air toxics and 
the formation of ozone and PM2.5, states may find that 
controls can be selected to meet goals for ozone and/or 
PM2.5 attainment as well as those of specific air toxic 
programs.

Q. How does this proposed rule apply 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. The Tribal Authority 
Rule (TAR) (40 CFR part 49), which implements section 301(d) of the 
CAA, sets forth the criteria and process for tribes to apply to the EPA 
for eligibility to administer CAA programs. Among the programs that 
tribes may seek to administer are Tribal Implementation Plans 
(TIP),\84\ which are submitted to the EPA for approval. However, unlike 
states, tribes are not required to develop implementation plans.\85\ 
Under the TAR, the EPA determined that tribes are not required to meet 
plan submittal and implementation deadlines in the CAA, e.g., the 
deadlines specified in CAA sections 110(a)(1), 172(a)(2), 182, 187 and 
191.\86\
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    \84\ Not to be confused with Transportation Improvement Programs 
(also abbreviated ``TIPs''); the context will determine the meaning.
    \85\ 70 FR 71666 (November 29, 2005).
    \86\ See 40 CFR 49.4(a).
---------------------------------------------------------------------------

    Where tribes do seek to develop and administer TIPs, the TAR 
provides flexibility for tribes in the preparation of a TIP to address 
the NAAQS. See, e.g., 40 CFR 49.7(c). The TAR also states that the EPA 
has authority to promulgate federal implementation plan (FIP) 
provisions, as necessary and appropriate, to protect air quality if 
tribes choose not to implement those provisions. The EPA may find it 
necessary and appropriate to develop a FIP to reduce emissions from 
sources in Indian country where the tribe has not developed a TIP to 
address an air quality problem.
    It is important for states and tribes to work together to 
coordinate planning efforts where nonattainment areas include both 
Indian country and state land. Coordinated planning in these areas will 
help ensure that the planning decisions made by the states and tribes 
complement each other and that the nonattainment area makes reasonable 
progress toward attainment and ultimately attains the 2008 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 section 301(d) of 
the CAA and the TAR, tribes may become eligible to be treated in a 
manner similar to states (TAS) for this purpose. Affected tribes with 
this status 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 April 10, 2009, Office of Air Quality Planning and 
Standards guidance ``Consulting with Indian Tribal Governments,'' and 
the ``EPA Policy on Consultation and Coordination With Indian Tribes.'' 
\87\
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    \87\ For a copy of this 2011 policy, see http://www.epa.gov/tribal/pdf/cons-and-coord-with-indian-tribes-policy.pdf.
---------------------------------------------------------------------------

    Consistent with these policies, the EPA intends to meet with tribes 
on activities potentially affecting the attainment and maintenance of 
the 2008 ozone NAAQS in Indian country, including our actions on SIPs. 
As such, it would be helpful for states to work with tribes with land 
that is part of the same air quality area during the SIP development 
process and to coordinate with tribes as they develop their SIPs.

R. What are the requirements for the Ozone Transport Region (OTR)?

    The Phase 2 Rule codified the requirements applicable to the OTR 
for the 1997 ozone NAAQS in 40 CFR 51.916. The EPA is proposing to 
adopt the same requirements for the 2008 ozone NAAQS, except that the 
submission date for OTR RACT SIPs would be the same as proposed under 
the RACT section of this preamble for nonattainment areas. That is, we 
are proposing to require that states submit the RACT SIPs required 
under section 182(b)(2) within the final timeline we adopt based on the 
two SIP submittal options detailed in section III.A of today's 
proposal. (See section III.D of this preamble for additional 
information on RACT timeframes.)

S. Are there any additional requirements related to compliance and 
enforcement?

    The EPA is not proposing any specific regulatory provisions related 
to compliance and enforcement. Section 172(c)(6) requires nonattainment 
SIPs to ``include enforceable emission limitations, and such other 
control measures, means or techniques . . . as well as schedules and 
timetables for compliance, as may be necessary or appropriate to 
provide for attainment . . .'' The EPA's current guidance, ``Guidance 
on Preparing Enforceable Regulations and Compliance Programs for the 15 
Percent Rate-of-Progress Plans (EPA-452/R-93-005, June 1993)'' is still 
relevant to rules adopted for SIPs under the 2008 ozone NAAQS and 
should be consulted for purposes of developing appropriate enforceable 
nonattainment plan provisions under section 172(c)(6).

[[Page 34210]]

T. What are the requirements for addressing emergency episodes?

    The EPA proposes that the existing requirements for emergency 
episodes (40 CFR part 51, subpart H) would also apply to the 2008 ozone 
NAAQS. Subpart H requires SIPs to identify areas by priority 
classification and to contain contingency plans to prevent pollutant 
concentrations from reaching levels that would cause significant harm 
to the health of persons. The significant harm level for ozone had been 
established as 0.6 ppm, 2-hour average (40 CFR 51.151). This level 
remains appropriate for the 2008 ozone NAAQS.

U. How does the ``Clean Data Policy'' apply to the 2008 ozone NAAQS?

    The EPA, in its Phase 1 Rule, codified its long-standing 
interpretation under the Clean Data Policy in a regulation. Under 40 
CFR 51.918, a determination of attainment suspends the obligation to 
submit attainment planning SIP elements for the 1997 ozone NAAQS. An 
EPA determination that the area attained the 1997 ozone NAAQS suspended 
the obligation to submit any attainment-related SIP elements not yet 
approved in the SIP, for so long as the area continued in attainment.
    The EPA in this rulemaking is proposing to apply this same approach 
with respect to determinations of attainment for the 2008 ozone NAAQS. 
Moreover, in order to reflect the intended ongoing status of the Clean 
Data Policy and to consolidate in one regulation a comprehensive 
provision applicable to determinations of attainment for the current 
and former ozone NAAQS, the EPA proposes, after revocation of the 1997 
ozone NAAQS, to replace 40 CFR 51.918 with proposed 40 CFR 51.1118. 
Section 51.1118 applies essentially the same language as 51.918. If 
finalized, 40 CFR 51.1118 will apply to a determination of attainment 
that is made with respect to any revoked or current ozone NAAQS--the 1-
hour, the 1997 or the 2008 ozone NAAQS. The new section 51.1118, like 
section 51.918, will set forth the regulatory consequences of an EPA 
determination, made after notice-and-comment rulemaking, that an area 
designated nonattainment for an ozone standard has air quality 
attaining that standard. Upon such a determination by the EPA, the 
requirements for the area to submit an attainment demonstration, 
associated reasonably available control measures, reasonable further 
progress plans, contingency measures and other attainment-related SIP 
elements for that NAAQS, shall be suspended until such time as the area 
is redesignated to attainment, at which time the requirements no longer 
apply, or until the EPA determines that the area has again violated 
that ozone NAAQS, in which case the requirements are again applicable. 
The EPA intends to apply the provision for the 2008 ozone NAAQS in a 
similar manner as it did for the 1997 ozone NAAQS. Because the proposed 
section 51.1118 merely incorporates the continuation of the EPA's long-
held interpretation (Clean Data Policy) for the 1-hour ozone NAAQS, 
which was embodied in regulation 51.918 for the 1997 ozone NAAQS, it is 
appropriate to apply it in the context of the 2008 ozone NAAQS as well 
as the 1997 and 1-hour ozone NAAQS. On July 10, 2009, the U.S. Court of 
Appeals for the District of Columbia upheld the section 51.918 
regulatory provision. (NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009))

V. What assistance programs is the EPA considering for implementation 
of the 2008 ozone NAAQS?

    For purposes of the 1997 ozone NAAQS, the EPA established the Early 
Action Compact (EAC) program. Under the EAC program, certain areas that 
were violating the 1997 ozone NAAQS at the time of designation were 
allowed to enter into an EAC agreement, and were given a deferred 
effective date for their area designation in order to allow time for 
the area to meet the terms of the agreement. The EPA does not have 
plans to proceed with an EAC program for the 2008 ozone NAAQS.
    Nevertheless, the EPA believes there are significant advantages for 
states, tribes and local agencies to take steps to reduce emissions as 
early as possible. First and foremost, early reductions help to achieve 
cleaner air sooner, and help to ensure continued health protection. 
Secondly, early steps could help an area avoid a nonattainment 
designation in the first place, or for an area eventually designated as 
nonattainment, early reductions could result in a lower nonattainment 
classification. In addition, early action to improve air quality can 
help an eventual nonattainment area, particularly an area that has 
never been designated nonattainment before, establish working 
relationships between key stakeholders. Our expectation is that early 
actions to reduce emissions in such areas would be less resource-
intensive than actions taken once a nonattainment designation has been 
made, since at that point the implementation of controls would need to 
occur in conjunction with actions to comply with other requirements 
such as nonattainment NSR and transportation conformity.
    If an area uses 2011 as the baseline year for its RFP plan, as we 
are proposing as the default approach in this rule, any reductions that 
were made before 2011 can be fully reflected in the baseline for the 
area's attainment plan. Reductions achieved after 2011 due to measures 
in the area's SIP may receive emission reduction credit, subject to CAA 
requirements.
    Under the 8-Hour Ozone Flex program for the 1997 ozone NAAQS (begun 
in 2006), the EPA worked with interested attainment areas to take 
proactive steps that would keep them in attainment.\88\ The EPA is now 
offering a new early emission reduction program to attainment areas 
called ``Ozone Advance,'' which is similar to the Ozone Flex 
program.\89\ The EPA initiated the Ozone Advance program in April 2012. 
Additional information on the Ozone Advance program for the 2008 ozone 
NAAQS is provided in a separate guidance document that is available at 
www.epa.gov/ozonepmadvance.
---------------------------------------------------------------------------

    \88\ See http://www.epa.gov/ttn/oarpg/t1/memoranda/o3flexguidelines.pdf.
    \89\ Areas that signed up for Ozone Advance prior to 
designations for the 2008 ozone NAAQS are able to continue to 
participate in the program even if they were subsequently designated 
nonattainment and classified as Marginal. These areas may continue 
to participate in the program until such time as they may be 
reclassified to a higher classification. Participation in the Ozone 
Advance program does not remove any nonattainment area requirements 
from these areas. The current Marginal areas in the Ozone Advance 
program are Baton Rouge, LA; DeSoto County, MS (part of Memphis, TN-
AR-MS); and Upper Green River Basin, WY. The Uinta Basin, UT area, 
which was designated ``Unclassifiable,'' is also taking part in the 
program.
---------------------------------------------------------------------------

W. What is the deadline for states to submit SIP revisions to address 
the CAA section 185 penalty fee provision for Severe and Extreme areas?

    Under section 185, major stationary sources of VOC and 
NOX in a Severe or Extreme ozone nonattainment area are 
subject to penalty fees for emissions in excess of 80 percent of the 
source's baseline amount of emissions if such an area fails to attain 
the NAAQS by its attainment date. The baseline amount for a source is 
based on its applicable emission limit(s) or actual emissions in the 
attainment year, whichever is lower.
    Section 182(d)(3) provides that by December 31, 2000, the state 
shall submit a plan revision which includes the provisions required 
under section 185 for the 1-hour ozone NAAQS. Thus, the CAA provided 
slightly more than 10 years for submission of the fee program SIP 
revision for areas designated as

[[Page 34211]]

nonattainment and classified as Severe or Extreme by operation of law 
in 1990 for the 1-hour ozone NAAQS. We are proposing that states with 
areas initially classified as Severe or Extreme for the 2008 ozone 
NAAQS would be required to submit a section 185 SIP no later than 10 
years after the effective date of designation and classification for 
the 2008 ozone NAAQS. For areas that are reclassified to Severe or 
Extreme at any other time, the EPA will establish an appropriate fee 
program SIP submission deadline as part of the reclassification action.

IV. What is the EPA proposing to address anti-backsliding issues 
related to transition from the 1997 ozone NAAQS to the 2008 ozone 
NAAQS?

A. General Background

    This section sets forth background for today's proposal regarding 
areas that will be subject to anti-backsliding requirements for the 1-
hour ozone NAAQS and/or the 1997 ozone NAAQS, and the requirements that 
will apply to these areas after revocation of the 1997 ozone NAAQS. 
``Anti-backsliding'' provisions are designed to ensure that for 
existing ozone nonattainment areas that are designated nonattainment 
for the revised and more stringent ozone NAAQS, (1) there is protection 
against degradation of air quality (e.g., the areas do not 
``backslide''), (2) the areas continue to make progress toward 
attainment of the new, more stringent NAAQS, and (3) there is 
consistency with the ozone NAAQS implementation framework outlined in 
subpart 2 of Part D of the CAA.
    The CAA contains several provisions indicating Congressional intent 
not to allow a state to alter or remove provisions from an approved 
implementation plan if the revision would reduce air quality 
protection. Section 193 of the CAA prohibits modification of a control 
requirement in effect or required to be adopted as of November 15, 1990 
(the date of enactment of the 1990 CAA Amendments), unless such a 
modification would ensure equivalent or greater emissions reductions. 
CAA section 172(e), which addresses relaxations of a NAAQS, requires 
protections for areas that have not attained a NAAQS prior to a 
relaxation, by requiring controls which are at least as stringent as 
the controls applicable in nonattainment areas prior to any such 
relaxation. Section 110(l) provides that a SIP revision cannot be 
approved if it will interfere with attainment or other CAA 
requirements. Under section 175A(d), an area that is redesignated to 
attainment \90\ may, with an appropriate showing, cease to implement a 
measure that is contained in the SIP at the time of redesignation, but 
only if that measure is retained as a contingency measure in the area's 
maintenance plan.\91\
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    \90\ Nonattainment areas that were redesignated to attainment 
with an approved section 175A maintenance plan are referred to 
throughout this document as ``maintenance'' areas. CAA section 
175A(a) requires an area to develop a ten-year maintenance plan in 
order to be redesignated to attainment. CAA section 175A(b) requires 
an area to submit a second ten-year plan 8 years after approval of 
the first plan.
    \91\ Unimplemented requirements in the SIP or those shown to be 
unnecessary for maintenance can be shifted to the contingency 
measures portion of the SIP upon redesignation. ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992; ``State Implementation Plan (SIP) Requirements 
for Areas Submitting Requests for Redesignation to Attainment of the 
Ozone and Carbon Monoxide (CO) National Ambient Air Quality 
Standards (NAAQS) On or After November 15, 1992,'' Memorandum from 
Michael H. Shapiro, Acting Assistant Administrator for Air and 
Radiation, September 17, 1993. As discussed elsewhere in this 
document, an exception is made for nonattainment NSR, which can be 
removed from the SIP completely, and need not be retained as a 
contingency measure after redesignation to attainment. (See 
discussion in text below.)
---------------------------------------------------------------------------

B. Background on Transition From the 1-Hour to the 1997 Ozone NAAQS

    The following discussion addresses the transition policies the EPA 
adopted in the 2004 Phase 1 Rule for implementation of the 1997 ozone 
NAAQS; the legal challenges to that rule; and the resulting court 
decision in South Coast, which directed the EPA to provide 1-hour ozone 
NAAQS anti-backsliding requirements for nonattainment NSR, section 185 
fees and section 172(c)(9) and 182(c)(9) contingency measures for 
failure to attain the 1-hour ozone NAAQS by the applicable attainment 
date or to make reasonable further progress toward attainment of that 
standard.
    In its Phase 1 Rule, the EPA stated that the 1-hour ozone NAAQS 
would be revoked (i.e., no longer apply) 1 year after the effective 
date of initial area designations for the 1997 ozone NAAQS.\92\ The EPA 
also included anti-backsliding requirements in the Phase 1 Rule to 
address the transition between the two standards.
---------------------------------------------------------------------------

    \92\ See section IV.G of this proposal for a discussion of the 
timing of the 1997 ozone NAAQS revocation and related anti-
backsliding requirements.
---------------------------------------------------------------------------

    In developing the Phase 1 Rule, the EPA recognized that Congress 
did not directly address how anti-backsliding requirements should apply 
where the EPA replaces a prior NAAQS with a more stringent NAAQS, as 
occurred when the EPA replaced the 1-hour ozone NAAQS with the 1997 
ozone NAAQS.\93\ However, in section 172(e), Congress did address anti-
backsliding requirements for when the EPA replaces a NAAQS with a less 
stringent NAAQS. In the absence of any express Congressional direction 
regarding anti-backsliding where a NAAQS is replaced with a more 
stringent NAAQS, the EPA concluded that it was reasonable to look to 
the principles set forth in section 172(e) for purposes of the 
transition from the 1-hour ozone NAAQS to the 1997 ozone NAAQS.
---------------------------------------------------------------------------

    \93\ While there was the possibility of an area meeting the 1997 
ozone NAAQS while exceeding the 1-hour ozone NAAQS, in almost all 
instances the 1997 ozone NAAQS was the more stringent of the two.
---------------------------------------------------------------------------

    The Phase 1 Rule codified anti-backsliding provisions governing the 
transition from the revoked 1-hour ozone NAAQS to the 1997 ozone NAAQS 
in 40 CFR 51.905(a). These provisions, as promulgated, retained certain 
nonattainment area requirements specified under section 182 of the CAA, 
as those requirements applied for the 1-hour ozone NAAQS. The retained 
requirements, which were defined as ``applicable requirements'' in the 
ozone implementation regulations,\94\ continued to apply to areas that 
were designated nonattainment for the 1-hour ozone NAAQS as of the date 
that NAAQS was revoked, and that were also designated nonattainment for 
the 1997 ozone NAAQS as of that same date. The 1-hour ozone NAAQS 
requirements that the EPA retained as applicable requirements were the 
following: (1) RACT; (2) I/M programs; (3) Major source applicability 
cut-offs for purposes of RACT; (4) Rate of progress (ROP) reductions; 
(5) Stage II vapor recovery; (6) the Clean fuels fleet program under 
section 183(c)(4) of the CAA; (7) Clean fuels for boilers under section 
182(e)(3) of the CAA; (8) Transportation control measures (TCMs) during 
heavy traffic hours as provided under section 182(e)(4) of the CAA; (9) 
Enhanced (ambient) monitoring under section 182(c)(1) of the CAA; (10) 
Transportation controls under section 182(c)(5) of the CAA; (11) 
Vehicle miles traveled provisions under section 182(d)(1)(A) of the 
CAA; (12) NOX requirements under section 182(f) of the CAA; 
and (13) Attainment demonstration (or an alternative as provided for 
under 40 CFR section 51.905(a)(1)(ii)).
---------------------------------------------------------------------------

    \94\ See 40 CFR 51.900(f).
---------------------------------------------------------------------------

    Under the Phase 1 Rule, those 1-hour nonattainment areas would 
remain subject to the anti-backsliding provisions until they were 
redesignated

[[Page 34212]]

to attainment for the 1997 ozone NAAQS. In order for an area to be 
redesignated for the 1997 ozone NAAQS, the state would need to show 
that the applicable nonattainment requirements for the 1-hour ozone 
NAAQS had been satisfied with respect to that area.
    Upon redesignation of an area to attainment for the 1997 ozone 
NAAQS, a state could request that 1-hour anti-backsliding provisions 
contained in the SIP be shifted to the contingency measures portion of 
the SIP, based on a showing that active implementation of these 
measures was not necessary for attainment or maintenance of the NAAQS 
and that such a revision would be consistent with section 110(l). 40 
CFR 51.905(b). (Provisions in the contingency measures portion of the 
maintenance SIP are not actively implemented, but are measures the 
state may implement if the area were to violate the standard 
again.\95\) The court in South Coast did not vacate the EPA's 
regulations concerning these thirteen ``applicable requirements.''
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    \95\ States may adjust control strategies in the SIP or 
maintenance plan if they can demonstrate that the revision will not 
interfere with attainment or maintenance of the NAAQS, or any other 
CAA requirements. See CAA sections 175A and 110(l). Section 175A(d) 
of the CAA requires that contingency measures in the maintenance 
plan include all measures in the area's SIP before that area was 
regesignated to attainment.
---------------------------------------------------------------------------

    The Phase 1 Rule also provided that three requirements applicable 
under the 1-hour ozone NAAQS would no longer apply after revocation of 
that NAAQS: Nonattainment NSR, section 185 fee requirements and section 
172(c)(9) and 182(b)(9) contingency measures for failure to attain the 
1-hour ozone NAAQS by the applicable attainment date or to make 
reasonable further progress toward attainment of the standard. See 40 
CFR 51.905(e).\96\ As a result of the South Coast challenge to the 
Phase 1 Rule, the court vacated the regulatory provisions which had 
stated that these three obligations would no longer apply for purposes 
of the 1-hour ozone NAAQS upon revocation of that standard. See South 
Coast, 900-904. The following sections discuss how the EPA has 
addressed these three provisions since the South Coast decision.
---------------------------------------------------------------------------

    \96\ The fee obligations are also briefly addressed in section 
181(b)(4), which cross-references the more detailed provisions found 
in section 185.
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C. Background on Nonattainment NSR

    On October 3, 2007, the EPA issued a memorandum indicating that the 
vacatur of the nonattainment NSR provisions in the Phase 1 Rule by the 
South Coast court meant that states with 1-hour nonattainment areas 
that were subject to the anti-backsliding provisions remain subject to 
the obligation to include in their SIPs major source applicability 
thresholds and offset ratios consistent either with their nonattainment 
classification for the 1-hour ozone NAAQS or with their designation and 
classification for the 1997 ozone NAAQS, whichever is higher, as of the 
effective date of designation as nonattainment for the 1997 ozone 
NAAQS.\97\
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    \97\ Memorandum from Robert J. Meyers, Principal Deputy 
Administrator, Office of Air and Radiation, to EPA Regional 
Administrators, October 3, 2007, ``New Source Review (NSR) Aspects 
of the Decision of the U.S. Court of Appeals for the District of 
Columbia on the Phase 1 Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standards (NAAQS).''
---------------------------------------------------------------------------

    Thereafter, in a separate proposed rulemaking action in 2010, the 
EPA proposed revised regulations regarding treatment of major source 
thresholds and offset ratios for areas that were designated 
nonattainment for the 1-hour ozone NAAQS at the time of designation as 
nonattainment for the 1997 ozone NAAQS. See ``Proposed Rule to 
Implement the 1997 Ozone National Ambient Air Quality Standard: New 
Source Review Anti-Backsliding Provisions for Former 1-Hour Ozone 
Standard,'' August 24, 2010, 75 FR 51960 (hereinafter ``NSR Anti-
Backsliding Proposed Rule''). The EPA proposed that 1-hour ozone NAAQS 
nonattainment NSR requirements would apply in a manner similar to the 
requirements specifically listed as ``applicable requirements'' in the 
Phase 1 Rule.
    The NSR Anti-Backsliding Proposed Rule further proposed that in 
situations where an area's classification under the 1-hour ozone NAAQS 
was higher than its classification under the 1997 ozone NAAQS, (1) the 
obligation to implement nonattainment NSR requirements associated with 
the area's classification under the 1-hour ozone NAAQS would continue 
to apply after the revocation of the 1-hour ozone NAAQS until the area 
is redesignated to attainment for the 1997 ozone NAAQS, and (2) once 
the obligation to implement 1-hour ozone NAAQS nonattainment NSR ceases 
to apply, the state may request removal of the 1-hour ozone NAAQS 
nonattainment NSR requirements, without retaining them as contingency 
measures. The EPA also requested comment on an alternate proposal that, 
if certain conditions were met, would allow a state to request removal 
of the 1-hour nonattainment NSR requirements prior to redesignation of 
the area to attainment for the 1997 ozone NAAQS.
    The EPA has not finalized the proposed NSR Anti-Backsliding Rule, 
and does not intend to do so. This proposal replaces and supersedes 
that proposal, and the final rule will address all outstanding NSR 
anti-backsliding issues for both the 1-hour and 1997 ozone NAAQS. These 
include how ongoing obligations to implement anti-backsliding 
requirements pertaining to NSR thresholds and offset ratios under the 
1-hour and 1997 ozone NAAQS can be terminated, in light of revocation 
of the 1-hour ozone NAAQS and the impending revocation of the 1997 
ozone NAAQS.

D. Background on Section 185 Fees

    Section 185 of the CAA applies to areas classified as Severe or 
Extreme for the 1-hour ozone NAAQS. This section states that if such an 
area fails to attain the 1-hour ozone NAAQS by the applicable 
attainment deadline,\98\ each major stationary source of VOC and 
NOX \99\ located in the area is required to pay a fee to the 
state for each calendar year following the attainment year for 
emissions above a baseline amount.\100\ If the EPA determines that an 
area attained the standard as of the applicable attainment date, then 
the program does not take effect, even if the area subsequently 
violates that standard in a later year.
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    \98\ Under the 1990 CAA Amendments, nonattainment areas had 
until November 15 of the indicated year to attain: Marginal--1993; 
Moderate--1996; Serious--1999; Severe-15--2005, Severe-17--2007, 
Extreme--2010.
    \99\ While section 185 expressly mentions only VOC, section 
182(f) extends the application of this provision to NOX, 
by providing that ``plan provisions required under [subpart D] for 
major stationary sources of [VOC] shall also apply to major 
stationary sources . . . of [NOX].''
    \100\ See section III.W of this proposal for a discussion of 
baseline amount. See also CAA section 185(b)(2) for the definition 
of baseline amount.
---------------------------------------------------------------------------

    On January 5, 2010, the EPA issued a memorandum \101\ that 
addressed the obligation of states with Severe or Extreme 1-hour ozone 
NAAQS nonattainment areas that did not attain by their attainment dates 
to collect fees from major sources. The memorandum discussed options 
for the EPA approval of SIPs that included an equivalent alternative 
program to the section 185 fee program specified in the CAA under

[[Page 34213]]

the principles of section 172(e), including an ``attainment 
alternative.'' The EPA stated that it would use federal notice-and-
comment rulemaking procedures and seek public comment on any future 
approval of such alternative plans.
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    \101\ Memo from Stephen D. Page to Regional Air Division 
Directors, Jan. 5, 2010, ``Guidance on Developing Fee Programs 
Required by Clean Air Act Section 185 for the 1-Hour Ozone NAAQS.'' 
The EPA had previously issued guidance on baseline emissions under 
section 185. Memorandum from William T. Harnett, Director, Air 
Quality Policy Division, to EPA Regional Air Division Directors, 
March 21, 2008.
---------------------------------------------------------------------------

    On March 5, 2010, the Natural Resources Defense Council (NRDC) 
petitioned the U.S. Court of Appeals for the District of Columbia 
Circuit to review the 2010 Stephen D. Page guidance memorandum on 
section 185 fee programs. NRDC argued that the EPA violated the 
Administrative Procedures Act by issuing the guidance without notice-
and-comment rulemaking, and that both the section 185 alternate fee 
program and the ``attainment alternative'' in the guidance violated the 
CAA. Despite the fact that the EPA stated that approval of an 
alternative program would need to go through individual notice and 
comment rulemaking, the court concluded that the section 185 fee 
program guidance amounted to a rulemaking that should have provided 
notice and an opportunity to comment. The court thus vacated and 
remanded the EPA's guidance. NRDC v. EPA, 643 F.3d 311 (D.C. Cir. July 
2011).
    Although the court vacated the 2010 guidance memorandum on 
procedural grounds, it did not prohibit alternative programs, stating 
that ``neither the statute nor our case law obviously precludes that 
alternative.'' Id at 332. However, the court did express its 
disapproval of one alternative that was based in part on attainment of 
the 1997 ozone NAAQS. The court concluded that it would be 
impermissible to terminate an area's obligations under section 185 for 
the revoked 1-hour ozone NAAQS based solely on attainment of the 1997 
ozone NAAQS. NRDC, 643 F.3d at 313. The EPA has taken into account the 
NRDC court's decision in developing the EPA's current approach to 
terminating anti-backsliding requirements for 1-hour ozone NAAQS 
section 185 fees, and that approach is reflected in today's proposal 
regarding terminating those anti-backsliding requirements for both the 
1997 and 1-hour ozone NAAQS.
    At this time, a relatively small group of areas are affected by 
uncertainties surrounding implementation and termination of 1-hour 
ozone NAAQS section 185 obligations. Separate rulemakings regarding 
individual 1-hour ozone NAAQS Severe and Extreme areas may resolve 
those issues before this implementation rule is finalized.
    For areas subject to section 185 anti-backsliding requirements for 
the 1997 ozone NAAQS, this implementation rulemaking will have no near-
term impact. The earliest attainment deadline for areas designated 
Severe or Extreme for that standard is 2019. Moreover, as yet no SIP 
submittals to establish section 185 penalty fee programs for the 1997 
ozone NAAQS have become due.
    In sum, the EPA's proposed approach to section 185 anti-backsliding 
requirements for the 1997 ozone NAAQS (which will be described below in 
section IV.H.2) should be viewed in the context of (1) EPA's ongoing 
efforts to address the section 185 anti-backsliding requirements for 
individual 1-hour ozone NAAQS Severe and Extreme areas in separate 
rulemakings, and (2) the fact that for 1997 ozone NAAQS Severe and 
Extreme areas, no fees can be triggered until 2020 (the calendar year 
after 2019).

E. Background on the Contingency Measures Requirement

    In response to the South Coast decision, the EPA issued a final 
regulation on May 14, 2012 (77 FR 28424), which added nonattainment 
area contingency measures for failure to attain or meet RFP milestones 
(section 172(c)(9) and 182(c)(9) contingency measures)\102\ for the 1-
hour ozone NAAQS to the list of ``applicable requirements'' in 40 CFR 
51.900(f). These contingency measures were required for failure to meet 
an RFP milestone or to attain the 1-hour ozone NAAQS by the area's 
attainment date for the 1-hour ozone NAAQS.\103\ The EPA is similarly 
proposing in this implementation rulemaking to include an anti-
backsliding requirement for nonattainment area contingency measures for 
failure to attain or to meet an RFP milestone for the 1997 ozone NAAQS 
by the applicable deadlines for that NAAQS.
---------------------------------------------------------------------------

    \102\ These nonattainment area contingency measures are not to 
be confused with maintenance plan contingency measures for areas 
redesignated to attainment under CAA section 175A(d).
    \103\ The January 16, 2009, proposal (74 FR 2936) did not 
address when section 185 and NSR anti-backsliding requirements would 
be removed, indicating that the EPA would issue a separate Federal 
Register notice providing guidance on those issues. As discussed 
elsewhere, the EPA addressed nonattainment NSR anti-backsliding in 
its 2010 proposal (August 24, 2010, 75 FR 51960), and addressed 
section 185 in the 2010 guidance that has since been vacated.
---------------------------------------------------------------------------

F. What is the EPA proposing regarding anti-backsliding requirements 
for the 1-hour and 1997 ozone NAAQS?

    We discuss here the EPA's proposed anti-backsliding requirements 
for the 1-hour and the 1997 ozone NAAQS in the context of implementing 
the 2008 ozone NAAQS. With the 2008 ozone NAAQS, as with the 1997 ozone 
NAAQS, the EPA strengthened rather than relaxed the ozone NAAQS. The 
transition from the 1997 to the 2008 ozone NAAQS is a straightforward 
lowering of the level with no change in the form of the standard, so it 
is unambiguous that the 2008 ozone NAAQS is always more stringent--
never more lenient--than the 1997 ozone NAAQS. In these circumstances, 
section 172(e) on its face does not apply. In proposing the following 
anti-backsliding requirements, we look therefore to the principles but 
not to the letter of CAA section 172(e).

G. Timing of 1997 Ozone NAAQS Revocation and Related Anti-backsliding 
Requirements

    This section discusses the revocation of the 1997 ozone NAAQS and 
the application of anti-backsliding requirements for that NAAQS and for 
the previously-revoked 1-hour NAAQS. The EPA is proposing to revoke the 
1997 ozone NAAQS on the date the final SIP Requirements Rule for the 
2008 ozone NAAQS is published in the Federal Register for all purposes 
other than transportation conformity, where it has already been 
revoked. See proposed revision to 40 CFR 50.10(c).
    The EPA believes it is appropriate to revoke rather than retain the 
1997 standard for all remaining purposes.\104\ The EPA has already 
taken final action revoking the 1997 primary and secondary ozone NAAQS 
for transportation conformity purposes only.105 106 The EPA 
explained its rationale for this action in the notice proposing 
revocation of the 1997 ozone NAAQS in the context of conformity.\107\ 
The EPA's action ensures that only one ozone NAAQS--the more protective 
2008 ozone NAAQS--applies, rather than having two standards, one of 
which the agency has determined is insufficiently protective, apply 
concurrently. The EPA relies on similar reasoning to support today's 
proposal to revoke the 1997 ozone NAAQS for all purposes.
---------------------------------------------------------------------------

    \104\ When the EPA revises a NAAQS, the prior NAAQS is not 
automatically revoked. Accordingly, both the 1997 ozone NAAQS and 
the more stringent 2008 ozone NAAQS are active standards unless and 
until the EPA takes action to revoke the previous 1997 ozone NAAQS.
    \105\ 77 FR 30160, 30162, May 21, 2012.
    \106\ The EPA's authority to revoke the standard for 
transportation purposes only has been challenged. To ensure that the 
1997 ozone NAAQS is revoked for all purposes, today's proposal would 
revoke that standard for all purposes for which it has not yet been 
revoked.
    \107\ 77 FR 8197, 8205, February 14, 2012.
---------------------------------------------------------------------------

    At the time the EPA promulgated the 2008 ozone NAAQS, the 
Administrator determined that the 1997 ozone NAAQS

[[Page 34214]]

was no longer sufficient to protect public health and the environment 
with an adequate margin of safety and that it was therefore necessary 
to establish a more stringent standard.\108\ In determining how to 
transition from the 1997 ozone NAAQS to the more stringent 2008 ozone 
NAAQS, the EPA is now presented with the same situation that we faced 
with the transition from the 1-hour ozone NAAQS to the more stringent 
1997 ozone NAAQS. For that transition, our Phase 1 Rule for the 1997 
ozone NAAQS revoked the 1-hour ozone NAAQS for all purposes.\109\ The 
Phase 1 Rule also established comprehensive anti-backsliding provisions 
to ensure that the level of protection provided by requirements for the 
1-hour ozone NAAQS would remain in place as areas transitioned to 
implementing the more stringent 1997 ozone standard. The D.C. Circuit 
upheld EPA's decision, recognizing EPA's ``authority to revoke the one-
hour standard so long as adequate anti-backsliding measures are 
introduced.'' \110\
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    \108\ 73 FR 16436, March 27, 2008.
    \109\ See 69 FR 23954.
    \110\ South Coast Air Quality Management District v. EPA, 472 
F.3d at 899.
---------------------------------------------------------------------------

    We believe that revoking the 1997 ozone NAAQS, as we have already 
done for transportation conformity, is now appropriate for all other 
purposes. The EPA believes that the permanent retention of two 
conflicting standards, differing only in the ozone concentrations they 
allow, could lead to unnecessary complexity and that it is 
inappropriate to retain the 1997 standard of .08 ppm, which is less 
protective of human health than the 2008 standard of .075 ppm. The 
EPA's reason for establishing the new standard as requisite to protect 
public health was its conclusion that the old standard was not 
adequate. Revoking rather than retaining that 1997 ozone NAAQS will 
facilitate a seamless transition from demonstrating compliance with the 
1997 ozone NAAQS to demonstrating compliance with the more health and 
welfare protective 2008 ozone NAAQS. This approach will ensure the most 
efficient use of state and local resources in working toward attainment 
of the standard that EPA has determined is requisite to protect public 
health. Moreover, we believe that following the same course we followed 
in revoking the hourly standard by requiring adequate anti-backsliding 
measures will ensure continued momentum in states' efforts toward 
cleaner air.
    Until the 1997 ozone NAAQS is revoked, that NAAQS remains in 
effect, in parallel with the 2008 ozone NAAQS, and continues to apply 
independently and by its own terms. Similarly, prior to its revocation, 
implementation of the 1997 ozone NAAQS continues under the Phase 2 Rule 
(Subpart X, 40 CFR 51.900 et seq.) as modified in accordance with the 
South Coast decision. After the 1997 ozone NAAQS is revoked, however, 
the EPA is proposing that the anti-backsliding requirements for that 
NAAQS, as proposed in this rulemaking, will become applicable.
    After the revocation of a standard the EPA no longer intends to 
take action to designate or to redesignate areas for that standard. The 
extent of continued implementation of a revoked standard derives from 
administration of anti-backsliding requirements for that standard. 
After revocation of the 1997 ozone NAAQS, and because the 1-hour ozone 
NAAQS has already been revoked, obligations under these NAAQS will be 
defined by the anti-backsliding requirements that are specified for 
these NAAQS in the final rule for today's proposal.
    Upon revocation of the 1997 ozone NAAQS, the EPA proposes that 
anti-backsliding provisions would apply to an area in accordance with 
its designations and, as applicable, its nonattainment classifications, 
for the 1997 (and, if applicable, 1-hour) ozone NAAQS at the time of 
revocation of the 1997 ozone NAAQS. The sections below discuss in 
detail the applicable requirements and how they would apply to areas 
with various designations and classifications for the 2008 and the 
revoked 1997 and 1-hour ozone NAAQS.
    After revocation of the 1997 standard, the designations for that 
standard are no longer in effect, and the sole designations that remain 
in effect are those for the 2008 ozone NAAQS. However, the EPA is 
retaining the listing of the designations of areas for the revoked 1997 
ozone NAAQS in 40 CFR part 81, for the sole purpose of identifying the 
anti-backsliding requirements that may apply to the areas as a result 
of these designations at the time of revocation. Accordingly, such 
references to historical designations for the revoked standard should 
not be viewed as current designations under CAA section 107.
    The Phase 1 Rule revoked the 1-hour ozone NAAQS for all purposes 1 
year after the effective date of initial area designations for the 1997 
ozone NAAQS. The South Coast court rejected a challenge to this 
revocation, and determined that the EPA had the authority to revoke the 
1-hour ozone NAAQS, subject to adequate anti-backsliding provisions.
    The EPA is today proposing to exercise its authority to revoke the 
1997 primary and secondary ozone NAAQS for all remaining purposes upon 
the publication of the final SIP Requirements Rule in the Federal 
Register. The EPA's Classifications Rule \111\ for the 2008 ozone NAAQS 
provides that the 1997 ozone NAAQS will be revoked 1 year after the 
effective date of initial area designations for the 2008 ozone NAAQS 
for purposes of transportation conformity. Therefore, the 1997 ozone 
NAAQS will be revoked for all purposes upon the publication of the 
final SIP Requirements Rule in the Federal Register. However, the EPA 
is taking comment on alternate dates for revocation of the 1997 ozone 
NAAQS for all purposes other than transportation conformity. Alternate 
suggestions should explain the basis for the suggested date and be 
accompanied by technical and legal justifications.
---------------------------------------------------------------------------

    \111\ 77 FR 30160, May 21, 2012.
---------------------------------------------------------------------------

    We are proposing, for purposes of the transition from the 1997 
ozone NAAQS to the 2008 ozone NAAQS, that an area that was designated 
as nonattainment for the 1997 ozone NAAQS and also is designated as 
nonattainment for the 2008 ozone NAAQS, and which has not been 
redesignated to attainment for the 1997 ozone NAAQS prior to the 
effective date of revocation of that NAAQS, will be subject to anti-
backsliding requirements for the 1997 ozone NAAQS. To the extent that 
1-hour ozone NAAQS anti-backsliding requirements are also applicable 
SIP requirements in such an area at the time the 1997 ozone NAAQS is 
revoked, we are proposing that those requirements will also remain 
applicable.\112\
---------------------------------------------------------------------------

    \112\ As a practical matter, where a 2008 ozone nonattainment 
area is subject to anti-backsliding requirements for both the 1997 
ozone NAAQS and the 1-hour ozone NAAQS, the anti-backsliding 
requirements that will apply to the area for NSR and Title V will be 
those corresponding to the higher of the two nonattainment 
classifications that the area possessed with regard to the 1997 and 
1-hour ozone NAAQS at the time of revocation of the respective ozone 
NAAQS.
---------------------------------------------------------------------------

    The timing that EPA is proposing means that any 2008 ozone NAAQS 
nonattainment area that was previously a 1997 ozone NAAQS nonattainment 
area, but has been redesignated to attainment for the 1997 ozone NAAQS 
by the time of revocation of that NAAQS, will not be subject to the 
anti-backsliding requirements for the 1997 or the 1-hour ozone NAAQS. 
This is because when an area has been redesignated to attainment for an 
ozone NAAQS while that NAAQS is in effect, it has fulfilled all 
applicable

[[Page 34215]]

requirements for that NAAQS, including applicable anti-backsliding 
requirements for any prior ozone NAAQS. The area is, therefore, not 
subject to anti-backsliding requirements for the revoked ozone NAAQS or 
any prior ozone standard(s).
    During the period prior to revocation of the 1997 ozone NAAQS, that 
NAAQS will remain in effect and applicable requirements for that NAAQS, 
and any applicable 1-hour ozone NAAQS anti-backsliding requirements, 
will apply as usual. Redesignations and reclassifications for the 1997 
ozone NAAQS may continue up to the time of revocation of that standard.
    This approach of establishing anti-backsliding requirements is 
consistent with the EPA's actual practice in the transition from the 1-
hour to the 1997 ozone NAAQS.\113\ It would not make sense to select a 
point prior to revocation of the 1997 ozone NAAQS for the anti-
backsliding requirements associated with that standard to take effect, 
since prior to revocation of the 1997 ozone NAAQS, that NAAQS remains 
in effect and still applies directly, and an area can still be 
redesignated to attainment for that standard or reclassified to a 
higher nonattainment classification.\114\ In fact, the status of many 
areas with respect to designation and classification for the 1997 ozone 
NAAQS has already changed since promulgation of the 2008 ozone NAAQS. 
Thus, the EPA concludes that establishing the date of revocation of the 
1997 ozone NAAQS as the time for anti-backsliding requirements for that 
NAAQS to take effect is reasonable and consistent with past practice 
under the Phase 1 Rule.
---------------------------------------------------------------------------

    \113\ Although section 51.905(a) specified that the anti-
backsliding requirements ``attached'' at the time of designation for 
the 1997 ozone NAAQS, areas were still able to redesignate to 
attainment for the 1-hour ozone NAAQS up to the date of revocation 
of that standard.
    \114\ See, for example, the redesignations to 1-hour attainment 
for Phoenix (70 FR 34362, June 14, 2005) and Atlanta (70 FR 34660, 
June 15, 2005).
---------------------------------------------------------------------------

H. What are the applicable requirements for anti-backsliding purposes 
during the transition to the 2008 ozone NAAQS?

    The EPA in this rulemaking is proposing to establish subpart AA, 40 
CFR 51.1100 et seq., which will provide comprehensive anti-backsliding 
requirements for transition to the 2008 ozone NAAQS. The EPA is 
proposing that, upon revocation of the 1997 ozone NAAQS, subpart X, 40 
CFR 51.900 et seq., be effectively replaced by the proposed subpart AA.
    The proposed subpart AA addresses anti-backsliding requirements for 
both the previously revoked 1-hour ozone NAAQS and the 1997 ozone NAAQS 
in a consolidated and streamlined fashion. Areas designated 
nonattainment for the 2008 ozone NAAQS and also designated 
nonattainment for either or both the 1-hour or 1997 ozone NAAQS at the 
time of revocation of the 1997 ozone NAAQS will be subject to section 
51.1100(o). This provision specifies the list of ``applicable 
requirements'' that will apply as anti-backsliding requirements for the 
transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS. At the 
time of revocation of the 1997 ozone NAAQS, section 51.1100(o) will 
replace 40 CFR 51.900(f). The EPA is proposing as ``applicable 
requirements'' the requirements that were previously listed in section 
51.900(f) (excepting only Stage II vapor recovery),\115\ as well as the 
three anti-backsliding requirements that were included as a result of 
the South Coast decision: nonattainment NSR thresholds and offset 
ratios, nonattainment contingency measures for failure to attain by the 
applicable deadline or to meet RFP milestones, and section 185 fee 
program requirements. Since the South Coast decision, the EPA has been 
including these three requirements as anti-backsliding requirements for 
the 1-hour ozone NAAQS for the purpose of discharging its obligations 
to effectuate anti-backsliding for that standard. Proposed section 
51.1100(o) contains definitions of the EPA's proposed applicable 
requirements for the transition from the 1997 ozone NAAQS to the 2008 
ozone NAAQS. These applicable requirements as proposed in section 
51.1100(o) include the following: (1) RACT; (2) vehicle I/M programs; 
(3) Major source applicability cut-offs for purposes of RACT; (4) ROP 
and/or RFP reductions; (5) the Clean fuels fleet program under section 
183(c)(4) of the CAA; (6) Clean fuels for boilers under section 
182(e)(3) of the CAA; (7) Transportation control measures during heavy 
traffic hours as provided under section 182(e)(4) of the CAA; (8) 
Enhanced (ambient) monitoring under section 182(c)(1) of the CAA; (9) 
Transportation controls under section 182(c)(5) of the CAA; (10) 
Vehicle miles traveled provisions under section 182(d)(1)(A) of the 
CAA; (11) NOX requirements under section 182(f) of the CAA; 
(12) Attainment demonstrations; (13) Nonattainment contingency 
measures, (14) Nonattainment NSR requirements, and (15) Section 185 
requirements for Severe and Extreme areas.
---------------------------------------------------------------------------

    \115\ Under CAA section 202(a)(6), the EPA found that onboard 
refueling vapor recovery (ORVR) systems are in widespread use in the 
motor vehicle fleet and waived the section 182(b)(3) Stage II vapor 
recovery requirement for Serious and higher ozone nonattainment 
areas on May 16, 2012 (77 FR 28772). Thus, in this proposal, the 
section 182(b)(3) Stage II requirement is omitted from the list of 
applicable requirements in 51.1100(o).
---------------------------------------------------------------------------

    A number of areas designated nonattainment for the 2008 ozone NAAQS 
may retain residual attainment-related SIP obligations for the 1997 
ozone NAAQS. It is possible that SIP revisions to address obligations 
under the 2008 ozone NAAQS can also satisfy similar outstanding SIP 
obligations to prevent backsliding for revoked 1997 and 1-hour ozone 
NAAQS. For areas with residual attainment-linked requirements for the 
revoked 1997 ozone NAAQS, the EPA has taken into account the close 
relationship in timing and nature of attainment-linked obligations for 
the 1997 and 2008 standards. The 2008 ozone NAAQS incorporates and 
supersedes the 1997 ozone NAAQS, and the attainment deadline for the 
2008 ozone NAAQS is near-term. Thus the EPA believes it is critical to 
avoid the duplication of effort that requiring separate SIP submissions 
for the 1997 and 2008 ozone NAAQS would create. The best course would 
be to integrate, wherever possible, the attainment planning 
requirements for the revoked and current ozone NAAQS. At this time of 
scarce resources the states and the EPA should strive to develop SIP 
submissions that achieve the goals of both the 1997 and the 2008 ozone 
NAAQS. For example, areas that have not yet fully attained the 1997 
ozone NAAQS and have an obligation to continue meeting planning and 
control requirements to attain as expeditiously as practicable may find 
it more efficient to develop plans and controls that achieve the goals 
of both the 1997 and the 2008 ozone NAAQS. The need for an approach 
similar to the one EPA took in the transition from the 1-hour ozone 
NAAQS to the 1997 ozone NAAQS is heightened as we move on to a third 
more stringent ozone NAAQS. In the Phase 1 Rule (69 FR 23975-6), an 
attainment-related SIP submission to satisfy a requirement for the 1997 
ozone NAAQS could also satisfy an outstanding 1-hour ozone NAAQS SIP 
requirement. At this time it is even more important than in the 
previous transition to coordinate efforts and avoid overlapping and 
redundant planning efforts.
    In this proposal, the EPA is also proposing a different approach to 
the Stage II Vapor Recovery requirement than was contained in 
51.900(f)(5) in the Phase 1 Rule. In May 2012,\116\ the EPA

[[Page 34216]]

determined that ORVR systems are in widespread use nationally, and the 
EPA waived the CAA section 182(b)(3) requirement for states to adopt 
and submit programs for implementation of the Stage II vapor recovery 
system at GDFs located in Serious and above ozone nonattainment areas, 
pursuant to authority provided in CAA section 202(b)(6). As a result of 
this waiver, states may seek EPA approval to discontinue implementing 
an existing Stage II Control Program for GDFs in Serious and above 
ozone nonattainment areas, subject to (1) the submittal of an 
approvable demonstration showing that removing the program from the SIP 
would not interfere with attainment and maintenance of the NAAQS 
pursuant to section 110(l), and (2) the submittal of an approvable 
demonstration under section 193 for Stage II programs that were in 
effect in 1990. Accordingly, in this proposed rule, the EPA is 
proposing a revision to the existing anti-backsliding rules and not 
including the Stage II vapor recovery program previously required by 
CAA section 182(b)(3) in the list of measures that need to be retained 
for anti-backsliding purposes. Areas that already have Stage II 
programs in their SIPs could remove these programs if they make the 
appropriate showings as detailed in CAA sections 110(l) and 193, 
following EPA approval of such SIP revisions.\117\ These revisions 
would not need to move Stage II requirements to contingency measures 
when Stage II is removed from the active SIP. Today's proposed rule 
would have no effect on the continuing independent CAA section 
184(b)(2) requirement for OTR states to implement Stage II programs or 
measures capable of achieving emissions reductions comparable to those 
achieved by Stage II.
---------------------------------------------------------------------------

    \116\ 77 FR 28772, May 16, 2012.
    \117\ See U.S. EPA Office of Air Quality Planning and Standards, 
``Guidance on Removing Stage II Gasoline Vapor Control Programs from 
State Implementation Plans and Assessing Comparable Measures,'' 
August 7, 2012 (EPA-457/B-12-001).
---------------------------------------------------------------------------

    The EPA discusses below the three anti-backsliding requirements 
that proposed section 51.1100 would add to the applicable requirements 
originally contained in section 51.900(f) of the rule.
1. NSR
a. NSR for Areas Designated Nonattainment for the 2008 Ozone NAAQS
    In response to the South Coast case, the EPA has been requiring 
areas designated nonattainment for the 1997 ozone NAAQS that are 
subject to anti-backsliding requirements for the 1-hour NAAQS to 
implement the nonattainment NSR requirements that applied at the time 
of revocation of the 1-hour ozone NAAQS, where such requirements are 
more stringent than those based on the area's classification for the 
1997 ozone NAAQS. In keeping with its practice following the South 
Coast decision, the EPA is proposing that nonattainment NSR be added to 
the list of applicable requirements. Thus, for areas designated 
nonattainment for the 2008 ozone NAAQS, nonattainment NSR will be 
required for any prior ozone standard for which they remain designated 
nonattainment. As explained later in this preamble, however, areas that 
remained designated nonattainment for the 1-hour ozone NAAQS at the 
time of its revocation, but were subsequently redesignated to 
attainment for the 1997 ozone NAAQS, would not be subject to this 
obligation. In practical terms, the obligation to implement 
nonattainment NSR requirements associated with two or more standards 
means that the area must implement the thresholds and offset ratios 
associated with the highest nonattainment classification. In the 
section on termination of anti-backsliding requirements below, the EPA 
is proposing two options for lifting 1997 and 1-hour ozone NAAQS 
nonattainment NSR requirements for areas designated nonattainment for 
the 2008 ozone NAAQS: redesignation for the 2008 NAAQS, or a 
``redesignation substitute'' for the 1997 and/or 1-hour ozone NAAQS. 
The EPA is also soliciting comment from the public on additional routes 
to lifting nonattainment NSR requirements tied to the revoked 1997 and 
1-hour ozone NAAQS, in areas where the 2008 nonattainment NSR 
requirements would remain in place. These additional processes, like 
the redesignation substitute option the EPA is proposing, would operate 
to lift the nonattainment NSR requirements for the revoked NAAQS while 
retaining the NSR requirements for the 2008 ozone NAAQS. The EPA asks 
that commenters provide supporting legal rationales for any additional 
option, taking into account the DC Circuit's decision in South Coast. 
The timing and basis for termination of nonattainment NSR requirements 
for the revoked NAAQS is discussed below in section IV.J.
b. NSR for Areas Designated Attainment for the 2008 Ozone NAAQS
    This proposal also addresses whether nonattainment NSR must 
continue to be implemented in areas initially designated attainment 
\118\ for the 2008 ozone NAAQS, but that were still designated 
nonattainment for the 1997 ozone NAAQS as of the effective date of 
their attainment designations under the 2008 ozone NAAQS. Some of the 
areas that have been designated as attainment for the 2008 ozone NAAQS 
are still designated as nonattainment for the 1997 ozone NAAQS.
---------------------------------------------------------------------------

    \118\ Applies to areas designated either ``unclassifiable/
attainment'' (hereafter referred to as ``attainment'' areas) or 
``unclassifiable,'' as defined in CAA Sec.  107(d)(1)(A).
---------------------------------------------------------------------------

    Until the 1997 ozone NAAQS is revoked, we propose that 
nonattainment NSR would continue to apply in areas designated as 
attainment for the 2008 ozone NAAQS but nonattainment for the 1997 
ozone NAAQS. This approach is consistent with the exemption in the PSD 
regulations at 40 CFR 51.166(i)(2) and 52.21(i)(2), which provides that 
PSD requirements do not apply with respect to a particular pollutant if 
the new source or modification is located in an area designated as 
nonattainment under CAA section 107 as to that pollutant.
    We propose that after the 1997 ozone NAAQS is revoked, areas 
designated as attainment for the 2008 ozone NAAQS would not be required 
to retain in their SIPs nonattainment NSR programs for ozone. Instead, 
such areas would be required to implement Prevention of Significant 
Deterioration (PSD) requirements, consistent with their attainment 
designation for the 2008 ozone NAAQS, notwithstanding any remaining 
references to nonattainment designations for the 1997 ozone NAAQS in 40 
CFR Part 81.
    When we revoke the 1997 ozone NAAQS, the designations for that 
standard have no further effect except as reference for anti-
backsliding purposes. We are retaining references to the designations 
for the revoked standard in 40 CFR part 81 solely for anti-backsliding 
purposes for areas designated nonattainment for the 2008 ozone NAAQS. 
Accordingly, such references to historical nonattainment designations 
for the revoked standard should not be viewed as current 
``nonattainment designation[s] under CAA Sec.  107'' within the meaning 
of 40 CFR 51.166(i)(2) and 52.21(i)(2) and, therefore, do not trigger 
the exemption from PSD requirements otherwise resulting from those 
provisions.
    While the EPA interprets the present regulatory text in 40 CFR 
51.166(i)(2) and 52.21(i)(2) in the manner described above, these 
provisions do not expressly say that a nonattainment designation for a 
revoked standard does not trigger the

[[Page 34217]]

exemption. To avoid confusion in the regulatory text and to clarify its 
intent, we are alternatively proposing that an amendment to 40 CFR 
51.166(i)(2) and 52.21(i)(2) would be appropriate to make it clear that 
a nonattainment designation for a revoked NAAQS, once the revocation 
becomes effective in an area, would not trigger the PSD exemption in 
those provisions and would not prevent application of PSD requirements 
for that pollutant. We request comment on whether such an amendment to 
40 CFR 51.166(i)(2) and 52.21(i)(2) is necessary or whether it is 
sufficient for the EPA to articulate the interpretation of these 
provisions described in the preceding paragraph. We also request 
comment on how such an amendment to 40 CFR 51.166(i)(2) and 52.21(i)(2) 
should be worded.
    The EPA took a similar approach in rules governing the transition 
from the 1-hour to the 1997 ozone NAAQS. This approach would not apply 
to areas located in the OTR and designated attainment, since the CAA 
requires these areas to remain subject to Moderate area nonattainment 
NSR requirements. As explained more fully in the NSR Anti-Backsliding 
Proposed Rule, the EPA is proposing this approach because the EPA does 
not interpret the South Coast decision as requiring that NSR 
requirements associated with a previous standard be retained in areas 
designated attainment for the current standard. See 75 FR 51964. The 
issue before the court in South Coast involved the substitution of one 
set of nonattainment NSR requirements for another, not the replacement 
of nonattainment NSR with PSD requirements. The EPA's determination 
that nonattainment NSR does not apply to areas designated attainment 
for the current NAAQS and thus is not required to remain in the SIP for 
such areas is consistent with Greenbaum v. EPA, 370 F.3d at 536.\119\
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    \119\ ``It would make little sense for [nonattainment NSR] to be 
included in the post-attainment SIP, as the Clean Air Act . . . 
explicitly states that attainment area SIPs must include a PSD 
program.''
---------------------------------------------------------------------------

2. Section 185 Fee Programs
    States with nonattainment areas classified as Severe or Extreme for 
a prior NAAQS at the time that NAAQS is revoked remain subject to the 
requirements of section 185 with respect to that NAAQS. This approach 
is consistent with the July 2011 NRDC court decision on the EPA's 
previously-issued section 185 guidance. As previously discussed, EPA 
has been working with states to address the section 185 requirements 
for the 1-hour ozone NAAQS. The timeline for section 185 requirements 
for the 1997 ozone NAAQS differs from that for the 1-hour ozone NAAQS; 
the earliest attainment deadline for a Severe area under the 1997 ozone 
NAAQS is 2019, and no 1997 ozone penalty fee program has yet become 
due.\120\ As in the case of NSR, the section below on termination of 
anti-backsliding requirements proposes two alternative approaches to 
terminating section 185 anti-backsliding requirements for both the 1-
hour and 1997 ozone NAAQS. Section IV.J goes into detail on the two 
proposed routes to terminate section 185 anti-backsliding requirements: 
redesignating to attainment for the 2008 ozone NAAQS, or providing a 
redesignation substitute for the revoked NAAQS triggering the section 
185 requirement.
---------------------------------------------------------------------------

    \120\ Under the 1997 ozone NAAQS, areas classified Severe-15 
must attain by 2019, Severe-17 areas by 2021, and Extreme areas by 
2024.
---------------------------------------------------------------------------

3. Contingency Measures Under Sections 172(c)(9) and 182(c)(9)
    The EPA's recent final rulemaking (May 14, 2012, 77 FR 28424) set 
forth the EPA's rationale for including, as an applicable 1-hour ozone 
NAAQS anti-backsliding requirement, nonattainment area contingency 
requirements for failure to attain the 1-hour NAAQS by the applicable 
deadline or to meet RFP milestones with respect to that NAAQS. The EPA 
is proposing to adopt the same contingency requirements for failure to 
attain the 1997 ozone NAAQS by the applicable deadlines or to meet RFP 
milestones with respect to that NAAQS, based on the same rationale that 
the agency articulated in its May 14, 2012 rulemaking.

I. Application of Transition Requirements to Nonattainment and 
Attainment Areas

1. Introduction
    This section discusses how the EPA's proposed transition 
requirements will apply to various types of areas. The general 
principle is to apply transition requirements depending on how the area 
is designated--attainment or nonattainment--for the 2008 ozone NAAQS, 
while taking into account the area's status with respect to prior 
standards.\121\ Table 2 provides a summary of the four transition 
scenarios, and the proposed requirements that would apply for each of 
those scenarios.\122\ The following sections describe each scenario in 
detail. In Table 2 and in the subsequent sections, for purposes of 
determining an area's transition requirements, we first look to the 
area's designation and classification for the 2008 ozone NAAQS. We then 
determine the area's designation and classification status for the 1997 
ozone NAAQS as of the effective date the 1997 ozone NAAQS is revoked. 
Finally, where appropriate, we determine whether anti-backsliding 
requirements for the 1-hour ozone NAAQS apply in the area and, if so, 
we determine the area's designation and classification status for the 
1-hour ozone NAAQS as of the date the 1-hour NAAQS was revoked.\123\ 
For ease of reference, throughout the remainder of this preamble, we 
refer to an area's designation and classification for the 1997 ozone 
NAAQS at the time of revocation of that NAAQS, simply as the area's 
``designation'' and ``classification'' for the 1997 ozone NAAQS. 
Similarly, we refer to an area's designation and classification for the 
1-hour ozone NAAQS at the time of revocation of that NAAQS (June 15, 
2005 for most areas), simply as the area's ``designation'' and 
``classification'' for the 1-hour ozone NAAQS.
---------------------------------------------------------------------------

    \121\ One area, the Uintah Basin, UT, was designated as 
``unclassifiable,'' and for purposes here would be treated like an 
area designated ``attainment.''
    \122\ Section IV.J details the proposed routes to satisfy the 
anti-backsliding requirements listed in Table 2.
    \123\ If the nonattainment area was initially designated 
attainment for the 1997 ozone NAAQS or was redesignated to 
attainment (``Maintenance'') for the 1997 ozone NAAQS prior to the 
date of revocation of the 1997 NAAQS, then the area has already 
fulfilled any applicable 1-hour anti-backsliding requirements. For 
ease of reference, we refer to these areas as ``Maintenance'' areas.

[[Page 34218]]



                                Table 2--2008 Ozone NAAQS Transition Obligations
----------------------------------------------------------------------------------------------------------------
                                     Designation for
   Designation for 2008 NAAQS      previous NAAQS (at     Proposed NSR/PSD         Other proposed transition
                                   time of revocation)       obligations                  obligations
----------------------------------------------------------------------------------------------------------------
1. Attainment...................  Attainment/           PSD remains in        --Area remains subject to existing
                                   Maintenance.          effect.               section 175A maintenance plan for
                                                                               the previous ozone NAAQS and
                                                                               requirements already in the SIP,
                                                                               subject to revision consistent
                                                                               with sections 110(l) and 193.
                                                                              --Section 175A maintenance plan
                                                                               satisfies maintenance requirement
                                                                               under section 110(a)(1).
2. Attainment...................  Nonattainment for     Nonattainment NSR in  --Area remains subject to measures
                                   1997 ozone NAAQS      effect until          to meet nonattainment
                                   only; or              revocation of the     requirements already in its
                                   nonattainment for     1997 ozone NAAQS;     adopted SIP. Removable only with
                                   1997 and 1-hour       then PSD applies.     a section 110(l) demonstration
                                   NAAQS.                                      and a section 193 demonstration
                                                                               if applicable.
                                                                              --Two alternatives to address
                                                                               section 110(a)(1) maintenance
                                                                               provision: (a) Area's approved
                                                                               PSD SIP satisfies section
                                                                               110(a)(1) maintenance provision,
                                                                               or
                                                                              (b) additional maintenance showing
                                                                               under section 110(a)(1).
3. Nonattainment................  Attainment/           Nonattainment NSR     --Area remains subject to existing
                                   Maintenance.          applies based on      section 175A maintenance plan for
                                                         2008 ozone NAAQS      the previous NAAQS and
                                                         classification.       requirements already in the SIP,
                                                                               subject to revision consistent
                                                                               with sections 110(l) and 193.
4. Nonattainment................  Nonattainment for     Nonattainment NSR     --Area subject to all applicable
                                   1997 ozone NAAQS      applies based on      anti-backsliding requirements for
                                   only; or              highest applicable    1-hr and/or 1997 NAAQS.
                                   nonattainment for     classification.      --Anti-backsliding obligations
                                   1997 and 1-hour                             lifted when the area either is
                                   ozone NAAQS.                                redesignated to attainment for
                                                                               the 2008 ozone NAAQS, or the EPA
                                                                               approves a redesignation
                                                                               substitute for the revoked 1-hour
                                                                               or 1997 NAAQS
                                                                              --EPA solicits comment on
                                                                               additional options for lifting
                                                                               anti-backsliding obligations.
----------------------------------------------------------------------------------------------------------------

2. Requirements for Areas Designated Attainment for the 2008 Ozone 
NAAQS and (i) Maintenance for the 1997 Ozone NAAQS or (ii) 
Nonattainment for the 1997 Ozone NAAQS
    In this section the EPA considers the requirements applicable after 
revocation of the 1997 ozone NAAQS, to (i) areas that are designated 
attainment for the 2008 ozone NAAQS and attainment for the 1997 ozone 
NAAQS with an approved 175A maintenance plan (hereafter ``maintenance 
for the 1997 ozone NAAQS''), as of the date of revocation of the 1997 
ozone NAAQS, and to (ii) areas that are designated as attainment for 
the 2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS. The 
EPA is proposing a preferred approach and an alternative, less-
preferred approach for requirements for areas that are designated 
attainment for the 2008 ozone NAAQS and nonattainment for the 1997 
ozone NAAQS, and a single approach for requirements for areas that are 
designated attainment for the 2008 ozone NAAQS and maintenance for the 
1997 ozone NAAQS. Appendix D contains a full list of these areas.
a. Background and Overview
    The Phase 1 Rule for implementation of the 1997 ozone NAAQS adopted 
40 CFR 51.905(c) and (d). These sections specified requirements 
applicable to areas designated attainment for the 1997 ozone NAAQS, and 
designated nonattainment or redesignated to attainment for the 1-hour 
ozone NAAQS. These areas were no longer obligated to adopt any 
outstanding applicable measures for the 1-hour ozone NAAQS. Sections 
51.905(c) and (d) required, however, that these areas submit, within 3 
years of the effective date of designation as attainment for the 1997 
ozone NAAQS, a maintenance plan under CAA section 110(a)(1) for the 
1997 ozone NAAQS.\124\ Due to changes that have occurred since 2004, 
the EPA is now proposing as its preferred approach for an area 
designated attainment for the 2008 ozone NAAQS and redesignated to 
attainment for the 1997 ozone NAAQS (as of revocation of the 1997 ozone 
NAAQS), that the area's approved 175A maintenance plan will satisfy its 
maintenance plan obligation for the 2008 ozone NAAQS under section 
110(a)(1). The EPA is also proposing as its preferred approach for an 
area designated attainment for the 2008 ozone NAAQS and nonattainment 
for the 1997 ozone NAAQS (as of revocation of the 1997 ozone NAAQS), 
that the area's approved PSD SIP will satisfy its maintenance plan 
obligation for the 2008 ozone NAAQS under section 110(a)(1).
---------------------------------------------------------------------------

    \124\ This maintenance plan was required to cover a 10-year 
period starting at the effective date of designation and to include 
contingency measures.
---------------------------------------------------------------------------

    The EPA believes this is appropriate for several reasons. First, 
many of these areas are now subject to a number of national rules which 
were not applicable in 2004. These national rules impose ozone 
precursor emissions limits on important emission source categories, 
independent of the provisions of any area-specific maintenance or anti-
backsliding plan for ozone. These rules include the several significant 
mobile source regulations, emission standards for toxic VOCs, power 
plant regulations reducing NOX emissions, and the Regional 
Haze Rule.\125\ Second, since 2004 a number of

[[Page 34219]]

these areas have also reduced emissions in order to attain the 1997 
and/or 2006 PM2.5 NAAQS. These PM2.5-related 
emissions reductions also help reduce and limit growth in ozone 
precursor emissions. Some of these measures will produce large 
reductions during the 10-year period over which a maintenance plan 
could be required. Third, the EPA anticipates that it will complete the 
next review of the ozone NAAQS before any additional section 110(a)(1) 
maintenance plan requirements could be due with respect to the 2008 
ozone NAAQS. Under these circumstances, imposing additional section 
110(a)(1) maintenance plan requirements for areas attaining the 2008 
ozone NAAQS could, without compensating benefit, create a conflict for 
state resources needed to address a more protective ozone standard. 
Finally, these areas are meeting a more protective NAAQS that is 
directly comparable in form to the 1997 ozone NAAQS, which was not the 
case when the anti-backsliding requirements for the 1-hour standard 
were created.
---------------------------------------------------------------------------

    \125\ Mobile source regulations that have begun to reduce 
emissions since 2004 include the Tier 2 emissions standards for 
light-duty vehicles, the 2007 emissions standards for heavy-duty on-
road vehicles, the clean air non-road diesel rule that covers a wide 
variety of non-road equipment and engines, and the locomotive and 
marine rule that establishes more stringent emissions standards for 
engines used in locomotives and in marine applications.
---------------------------------------------------------------------------

    An area designated attainment for the 2008 ozone NAAQS has already 
attained the most stringent existing standard. Except for the 
substitution of PSD for nonattainment NSR requirements, the area 
remains subject to the nonattainment requirements already approved into 
the SIP, which can be revised only upon a showing that such revision is 
consistent with CAA sections 110(l) and 193.\126\ These sections 
prevent any SIP revisions that would increase emissions of any 
pollutant related to a NAAQS unless a demonstration of continued 
attainment and maintenance accompanies the revision, and thus these 
sections effectively function as anti-backsliding provisions. Finally, 
because the form of the 1997 and 2008 ozone NAAQS is the same, there is 
no possibility that an area attaining the 2008 ozone NAAQS could be 
violating the 1997 ozone NAAQS, which is unlike the relationship that 
existed between the 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS. 
Thus, the EPA believes that designation as attainment for the 2008 
ozone NAAQS should result in no additional new obligations beyond PSD 
for this large group of areas, regardless of their status for prior 
standards.
---------------------------------------------------------------------------

    \126\ It should be noted that transportation conformity 
requirements no longer apply in these areas after the effective date 
of the revocation of the 1997 ozone NAAQS. (77 FR 30160, May 21, 
2012).
---------------------------------------------------------------------------

    As a result of these considerations, the EPA is proposing an 
approach more suited to areas designated attainment for the 2008 ozone 
NAAQS than the approach contained in the Phase 1 Rule. Below we 
describe our proposals for areas that are designated attainment for the 
2008 ozone NAAQS and designated (i) maintenance or (ii) nonattainment 
for the 1997 ozone NAAQS.
b. Proposals
i. Areas Designated Attainment for the 2008 Ozone NAAQS and Maintenance 
for the 1997 Ozone NAAQS
    For areas designated attainment for the 2008 ozone NAAQS and 
maintenance for the 1997 ozone NAAQS (as of the date of revocation of 
the 1997 ozone NAAQS), the EPA is proposing that the area's approved 
section 175A maintenance plan for the revoked 1997 ozone NAAQS 
satisfies both its obligations for maintenance under section 110(a)(1) 
for the 2008 ozone NAAQS and its obligation to submit a second 
approvable maintenance plan under section 175A for the revoked 1997 
ozone NAAQS. The EPA's reasoning is as follows. All areas in this group 
are already subject to a section 175A maintenance plan for the revoked 
1997 ozone NAAQS, and have been both redesignated to attainment for the 
1997 ozone NAAQS and designated attainment for the more stringent 2008 
ozone NAAQS. As explained elsewhere, the section 175A maintenance plan 
for the 1997 ozone NAAQS satisfies the anti-backsliding requirements of 
these areas for all prior standards. Any further 110(a)(1) maintenance 
plan requirement under the 2008 ozone NAAQS would be unnecessarily 
burdensome. No revision to the section 175A maintenance plans for these 
areas can be approved unless it complies with the anti-backsliding 
checks in CAA sections 110(l) and 193. Thus, the EPA believes strongly 
that there is no justification for additional maintenance plan burdens 
to be imposed on these areas solely because at one time they were 
designated nonattainment under the revoked 1997 ozone NAAQS. Since 
these areas were redesignated to attainment for the 1997 ozone NAAQS 
prior to its revocation, the EPA's proposed approach recognizes and 
reflects that status.
ii. Areas Designated Attainment for the 2008 Ozone NAAQS and 
Nonattainment for the 1997 Ozone NAAQS
    The EPA is proposing as its preferred approach that areas 
designated attainment for the 2008 ozone NAAQS and nonattainment for 
the 1997 ozone NAAQS (as of revocation of the 1997 ozone NAAQS) not be 
required to adopt any outstanding applicable requirements for the 
revoked 1997 standard. This approach is similar to the approach 
followed in the Phase 1 Rule. The EPA also proposes, in a departure 
from the Phase 1 Rule, that the approved PSD SIPs for these areas 
satisfy the obligation to submit an approvable maintenance plan for the 
2008 ozone NAAQS under section 110(a)(1). The EPA's rationale for this 
approach is as follows: areas designated attainment for the 2008 ozone 
NAAQS and nonattainment for the 1997 ozone NAAQS (as of revocation of 
the 1997 ozone NAAQS) have already attained the most stringent existing 
standard. These areas thus have developed nonattainment SIPs that in 
combination with federal measures and emissions controls in upwind 
areas have produced sufficient emissions reductions to achieve the more 
protective 2008 ozone NAAQS. They remain subject to the 1997 
nonattainment area requirements already approved into the SIP, which 
can be revised only upon a showing that such revision complies with the 
anti-backsliding checks in CAA sections 110(l) and 193. At this time, 
and given the succession of NAAQS of increasing stringency that has 
occurred, the EPA believes that the burden of developing an approvable 
110(a)(1) maintenance plan for the 2008 ozone NAAQS would outweigh any 
compensating benefit for an area that is already attaining that NAAQS 
and that is subject to prior nonattainment requirements which are 
already incorporated into the SIP.
    The EPA is proposing a second, and less preferred, alternative for 
areas designated attainment for the 2008 ozone NAAQS and nonattainment 
for the 1997 ozone NAAQS as of revocation of the 1997 ozone NAAQS. 
Similar to the approach taken in the Phase 1 Rule, under this 
alternative we propose that the area be required to show maintenance 
for the 2008 ozone NAAQS. (See proposed regulatory text section 
51.1105.) This maintenance showing would be due 3 years after the 
effective date of designations for the 2008 ozone NAAQS. The 
maintenance showing would contain a demonstration of continued 
maintenance of the 2008 ozone NAAQS in the area for ten years from the 
effective date of the area's designation as attainment for the 2008 
ozone NAAQS. The EPA proposes a maintenance showing in a form other 
than a formal SIP revision. If the EPA were to adopt this option, the 
EPA would provide guidance regarding the specific elements of the 
maintenance showing. The EPA seeks comment on this option.

[[Page 34220]]

3. Areas Designated Nonattainment for the 2008 Ozone NAAQS
    In the next sections the EPA addresses the transition requirements 
for three distinct groups of areas designated nonattainment for the 
2008 ozone NAAQS: those which are also designated nonattainment for the 
1997 ozone NAAQS as of the time of revocation of that NAAQS; those 
which are designated maintenance for the 1997 ozone NAAQS as of the 
time of revocation of that NAAQS; and those which are also designated 
nonattainment for both the 1997 and the previously revoked 1-hour ozone 
NAAQS as of the time of revocation of the 1997 NAAQS. See Appendix D 
for a list of these areas.
    The EPA is proposing that areas designated nonattainment for the 
2008 ozone NAAQS and also designated nonattainment for the 1997 ozone 
NAAQS, or for both the 1997 and the 1-hour ozone NAAQS, be subject to 
anti-backsliding provisions as interpreted by 51.1105. In particular, 
we are proposing that these areas be subject to applicable requirements 
for any prior standard for which they remain designated nonattainment 
at the time of revocation of the 1997 ozone NAAQS.\127\ As was also the 
case in the proposed NSR Anti-Backsliding Rule, 75 FR 51965, neither of 
the EPA's current proposed approaches to allowing removal of NSR anti-
backsliding requirements for a previous NAAQS (as discussed in section 
IV.J) would have an effect on any source permit conditions established 
during the time period in which a major NSR program pursuant to a 
previous NAAQS was applied. The NSR regulations do not provide a 
mechanism for major NSR permit conditions to be removed from a permit 
or modified when a SIP is later revised so as to remove or change NSR 
thresholds and/or offset requirements for purposes of future 
permitting. Replacement or removal of NSR SIP provisions does not 
relieve sources of their obligations under previously established 
permit conditions.
---------------------------------------------------------------------------

    \127\ We do not include in these two groups any areas that were 
redesignated to attainment for the 1997 ozone NAAQS prior to 
revocation of that NAAQS. In order to be redesignated for the 1997 
ozone NAAQS, the area had to satisfy all applicable anti-backsliding 
requirements for the 1-hour ozone NAAQS. Any 1997 ozone NAAQS 
nonattainment area that was designated nonattainment for the 1-hour 
ozone NAAQS at time of revocation of the 1-hour NAAQS had to meet 
applicable 1-hour ozone NAAQS anti-backsliding requirements in order 
to be redesignated to attainment for the 1997 ozone NAAQS.
---------------------------------------------------------------------------

    Under this proposed rule, areas that are designated nonattainment 
for the 2008 ozone NAAQS and are also designated nonattainment for a 
prior ozone NAAQS (as of the revocation of the 1997 NAAQS) will be 
subject to applicable requirements for that prior NAAQS, as well as the 
pertinent requirements for the current 2008 ozone NAAQS. In addition, 
if a state seeks to revise any measure already approved into its SIP 
for any prior standard, the revision must comply with the anti-
backsliding checks in CAA sections 110(l) and 193.
a. Areas Designated Nonattainment for the 2008 Ozone NAAQS and 
Maintenance for the 1997 Ozone NAAQS
    The EPA is proposing that for these areas, the area's approved 
section 175A maintenance plan for the revoked 1997 ozone NAAQS would 
satisfy the obligation to submit a second approvable maintenance plan 
under section 175A for the revoked 1997 ozone NAAQS. The EPA's 
reasoning is as follows. All areas in this group are already subject to 
an approved section 175A maintenance plan for the revoked 1997 ozone 
NAAQS and have been redesignated to attainment for the 1997 ozone 
NAAQS. As explained elsewhere, the approval of the redesignation and of 
the section 175A maintenance plan for the 1997 ozone NAAQS required the 
EPA to determine that the anti-backsliding requirements of these areas 
for the 1-hour standard, as well as those requirements applicable for 
the 1997 standard, have been met. Thus EPA's approvals of the 
redesignation request and the maintenance plan for the 1997 standard 
signify not only that all applicable requirements for the 1997 ozone 
standard have been met, but also that all applicable anti-backsliding 
measures for the 1-hour standard have been adopted and approved into 
the SIP. No revision to the section 175A maintenance plans for these 
areas can be approved unless it complies with the anti-backsliding 
checks in CAA sections 110(l) and 193.
    These areas are also designated nonattainment for the more 
stringent 2008 ozone NAAQS and therefore are subject to nonattainment 
NSR and other nonattainment requirements for their classification under 
the more stringent 2008 ozone NAAQS. Thus, the EPA believes strongly 
that there is no justification for a second 175A maintenance plan to be 
imposed on these areas solely because at one time they were designated 
nonattainment under the revoked 1997 ozone NAAQS. Since these areas 
were redesignated to attainment for the 1997 ozone NAAQS prior to its 
revocation, the EPA's proposed approach recognizes and reflects that 
status.
b. 2008 Nonattainment Areas Also Designated Nonattainment for the 1997 
Ozone NAAQS But Not for the 1-Hour Ozone NAAQS
    To better understand how the anti-backsliding requirements will 
affect these areas, it is helpful to review which areas are included in 
this group and their status with respect to attainment of the 1997 
ozone NAAQS. Table 1 in Appendix D lists the fifteen areas that are 
designated nonattainment for the 2008 ozone NAAQS and which, at the 
time of proposal of this rule, currently remain designated 
nonattainment for the 1997 ozone NAAQS but not for the 1-hour ozone 
NAAQS.\128\ As Table 1 in Appendix D shows, even though these areas are 
currently designated nonattainment for the 1997 ozone NAAQS, the EPA 
anticipates making final determinations that more than half of these 
areas have attained the 1997 ozone NAAQS prior to the date of 
revocation of the 1997 ozone NAAQS pursuant to the EPA's ``Clean Data'' 
regulation, 40 CFR 51.918, and anticipates that several of these will 
have been redesignated to maintenance for that standard. A 
determination of attainment suspends obligations for states to submit 
attainment-related planning requirements for the 1997 ozone NAAQS for 
those areas as long as they continue to attain that standard.\129\
---------------------------------------------------------------------------

    \128\ The status of some areas listed in Table 1 with respect to 
the 1997 ozone NAAQS may change between today and the date that 
NAAQS is revoked.
    \129\ Depending on the area's classification for the 1997 ozone 
NAAQS and the SIP elements already approved, the area may still have 
outstanding 1997 anti-backsliding submission requirements that are 
not suspended by 51.918 (e.g., nonattainment NSR, Subpart 2 RACT 
requirements).
---------------------------------------------------------------------------

    In addition, the EPA notes that two areas in this group are located 
in the OTR. For these areas in particular, a nonattainment designation 
for the 1997 ozone NAAQS does not necessarily indicate current 
unsatisfactory air quality or unmet SIP requirements with respect to 
that standard. The CAA requires areas in the OTR, among other measures, 
to be subject to certain nonattainment requirements such as 
nonattainment NSR even if they are redesignated to attainment. 
Therefore, even when these areas are eligible for redesignation to 
attainment, states often elect not to submit a redesignation request 
for these areas and to undergo the redesignation process because they 
view the workload involved incommensurate with the benefits of 
redesignation. Under the EPA's proposal, all areas listed in Table 1 of

[[Page 34221]]

Appendix D will be subject to anti-backsliding requirements for the 
1997 ozone NAAQS, unless they are redesignated to attainment for that 
standard prior to its revocation.
    The EPA believes that Table 1 in Appendix D illustrates that many 
of the areas in this category will have already met the 1997 ozone 
NAAQS and will have been redesignated to attainment by the time it is 
revoked, and thus after revocation of that NAAQS, the number of areas 
with 1997 anti-backsliding requirements will be correspondingly 
reduced. For other areas which remain designated nonattainment for the 
1997 ozone NAAQS, under the EPA's Clean Data Regulation, a 
determination of attainment suspends the obligation to submit certain 
attainment-related requirements. For those areas which have already 
incorporated measures into their approved SIPs that satisfy the 
nonattainment requirements for that standard, section 110(l) functions 
as an anti-backsliding check to require continued implementation of 
such measures unless revised in accordance with its provisions.
    The EPA is also proposing that once the nonattainment NSR anti-
backsliding requirement(s) for the 1997 ozone NAAQS cease to apply, 
since PSD will then be in effect the state may request that the 
corresponding NSR requirements be removed entirely, rather than be 
retained in the SIP as a maintenance plan contingency measure.\130\
---------------------------------------------------------------------------

    \130\ See 40 CFR 51.905(a)(3), the comparable provision for 
transitions from the 1-hour NAAQS to the 1997 ozone NAAQS, which 
allows states to request that the 1-hour nonattainment NSR 
provisions be removed from the SIP for such areas.
---------------------------------------------------------------------------

c. 2008 Nonattainment Areas Also Designated Nonattainment for the 1-
Hour and 1997 Ozone NAAQS
    Table 2 in Appendix D lists the 18 areas that are currently 
designated nonattainment for all three ozone NAAQS--the 2008 ozone 
NAAQS, the 1997 ozone NAAQS and the already revoked 1-hour ozone NAAQS. 
More than half of these areas are located in either California (9) or 
Texas (2). The remaining 7 areas are located in the East. The EPA has 
already made final determinations that all 7 eastern areas (five large 
metropolitan areas and two smaller areas), have attained the 1-hour 
ozone NAAQS. A number of the eastern areas--including Washington, DC, 
Philadelphia and Boston--have met their attainment deadlines for both 
the 1-hour and 1997 ozone NAAQS, although they have not undergone the 
process to be redesignated to attainment for these NAAQS. The EPA 
proposes that, upon revocation of the 1997 ozone NAAQS, the areas 
listed in this group will be subject to applicable requirements, 
including nonattainment NSR, for the 1-hour and 1997 ozone NAAQS (to 
the extent those requirements have not been suspended by a Clean Data 
Determination), unless they have been redesignated to attainment for 
the 1997 ozone NAAQS prior to its revocation. Implementation of 
measures previously approved into a SIP for either the 1-hour ozone 
NAAQS or the 1997 ozone NAAQS must continue unless the SIP is revised 
in accordance with the anti-backsliding checks in CAA sections 110(l) 
and 193.
4. Summary
a. Areas Designated Attainment for the 2008 Ozone NAAQS
    Areas designated attainment for the 2008 ozone NAAQS are meeting 
the current, most stringent ozone standard. Section 110(l) functions as 
an anti-backsliding provision to assure that the state may not revise 
any previously approved SIP provision without a showing that the 
revision will not interfere with attainment and maintenance or any 
other CAA requirements.
i. Attainment for the 2008 Ozone NAAQS and Maintenance for the 1997 
Ozone NAAQS
    Areas in this category (designated attainment for the 2008 ozone 
NAAQS and maintenance for the 1997 ozone NAAQS, as of revocation of the 
1997 ozone NAAQS) have fulfilled all anti-backsliding requirements for 
prior standards through their section 175A maintenance plans, and are 
not obligated to meet further requirements with respect to those 
standards. The EPA proposes no further requirements for these areas, 
apart from the requirements in their approved SIPs. The areas' approved 
section 175A maintenance plans for the 1997 ozone NAAQS also satisfy 
their obligations for maintenance plans for the 2008 ozone NAAQS 
pursuant to section 110(a)(1).
ii. Attainment for the 2008 Ozone NAAQS and Nonattainment for the 1997 
Ozone NAAQS
    In the case of areas designated attainment for the 2008 ozone NAAQS 
and nonattainment for the 1997 ozone NAAQS (as of revocation of the 
1997 ozone NAAQS), a state \131\ may, upon revocation of the 1997 ozone 
NAAQS, request that any requirements for nonattainment NSR included in 
the SIP for that revoked NAAQS be removed. In place of nonattainment 
NSR, these areas would be required to implement PSD requirements after 
the revocation of the 1997 ozone NAAQS. (As explained above, until the 
1997 ozone NAAQS is revoked, nonattainment NSR applies.)
---------------------------------------------------------------------------

    \131\ This approach would not apply to areas located in the OTR 
and designated attainment, since the CAA requires these areas remain 
subject to Moderate nonattainment NSR requirements notwithstanding 
designation.
---------------------------------------------------------------------------

    For these areas, the EPA is proposing to adopt as its preferred 
alternative that the SIP-approved PSD program that would apply to the 
area satisfies the maintenance plan obligation under CAA section 
110(a)(1) for the 2008 ozone NAAQS; or as a less-preferred alternative, 
the EPA is proposing a requirement for an additional maintenance 
showing for the 2008 ozone NAAQS. (See proposed regulatory text 
51.1105(a)(3).)
b. Areas Designated Nonattainment for the 2008 Ozone NAAQS
i. Areas Designated Nonattainment for the 2008 Ozone NAAQS and 
Maintenance for the 1997 Ozone NAAQS
    The areas in this category are designated nonattainment for the 
2008 ozone NAAQS and were (or will be) redesignated to attainment for 
the 1997 ozone NAAQS prior to its revocation. Thus, they are subject to 
section 175A maintenance plans for the 1997 ozone NAAQS. Having 
attained and been redesignated to attainment with a maintenance plan 
for the 1997 ozone NAAQS assures that the EPA has reviewed the area's 
approved maintenance SIP and has determined that it addresses all 
applicable anti-backsliding requirements for both the 1997 and 1-hour 
ozone NAAQS. The EPA believes that the approved SIP for these areas 
satisfies applicable anti-backsliding requirements. These areas are 
subject to nonattainment NSR and other nonattainment requirements for 
their classification under the 2008 ozone NAAQS.
    The EPA wishes to solicit comments on ways to integrate 
requirements from existing NAAQS with those of new NAAQS so as to 
prevent their interaction from draining resources rather than 
protecting air quality. The EPA will consider suggestions for 
mitigating the cumulative effect of anti-backsliding requirements when 
they would frustrate, rather than further efforts to preserve and 
improve air quality. The EPA seeks ways to synthesize and reconcile 
anti-backsliding obligations with current planning and control efforts, 
so as to

[[Page 34222]]

preserve scarce resources without sacrificing air quality protection.
ii. Areas Designated Nonattainment for the 2008 Ozone NAAQS and Also 
Nonattainment for a Prior Revoked Ozone NAAQS
    The EPA is proposing that an area designated nonattainment for the 
2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS at the time 
of revocation of the 1997 ozone NAAQS will be obligated to implement 
the applicable requirements set forth in 51.1100(o) for the 1997 ozone 
NAAQS. If the area is also designated nonattainment for the 1-hour 
ozone NAAQS and subject to applicable requirements for that NAAQS at 
the time of revocation of the 1997 ozone NAAQS, the state must also 
continue addressing those applicable 1-hour ozone NAAQS requirements 
for that area. These areas must apply nonattainment NSR in accordance 
with their highest nonattainment classification under any ozone 
standard for which they are (or were at the time of revocation) 
designated nonattainment, as well as any section 185 requirements for 
areas classified Severe or Extreme at the time of revocation for a 
prior standard.

J. Satisfaction of Anti-backsliding Requirements for an Area

    The EPA is proposing two acceptable procedures through which a 
state may demonstrate that it is no longer required to adopt any 
applicable requirements for an area which have not already been 
approved into the SIP for a revoked ozone NAAQS, through which it may 
remove nonattainment NSR provisions from the SIP and, upon a showing of 
consistency with the anti-backsliding checks in CAA sections 110(l) and 
193 (if applicable), it may shift to the contingency measures portion 
of the SIP requirements which are already contained in the SIP.\132\
---------------------------------------------------------------------------

    \132\ Nonattainment NSR is not required to be retained in the 
SIP as a contingency measure. This is because for attainment areas, 
PSD replaces nonattainment NSR.
---------------------------------------------------------------------------

Procedure 1: Redesignation to Attainment for the 2008 Ozone NAAQS
    The first of these procedures is formal redesignation of the area 
to attainment for the 2008 ozone NAAQS. This process is an extension of 
the approach EPA adopted in the Phase 1 Rule. Redesignation to 
attainment for the 2008 ozone NAAQS would allow a state to terminate 
and remove from its SIP for an area any nonattainment NSR requirements 
associated with its classifications under the 2008 ozone NAAQS, or 
under the 1997 or 1-hour ozone NAAQS, except for areas in the OTR as 
noted above. The area would instead apply PSD. We are proposing that 
once the area is redesignated and the requirement(s) for nonattainment 
NSR for the 2008 ozone NAAQS and for any prior ozone NAAQS cease to 
apply, the state may request that the corresponding NSR requirements be 
removed from the SIP rather than be retained as a maintenance plan 
contingency measure. This approach is consistent with the EPA's 
longstanding interpretation of NSR requirements for areas that are 
redesignated to attainment.\133\ Redesignation to attainment would also 
terminate any section 185 obligations applicable to a Severe or Extreme 
Area for the 2008 or prior revoked 1997 or 1-hour ozone NAAQS pursuant 
to the express terms of CAA section 185.
---------------------------------------------------------------------------

    \133\ See 40 CFR 51.905(a)(3), the comparable provision for 
transition from the 1-hour NAAQS to the 1997 ozone NAAQS, which 
allows such areas to request that the 1-hour nonattainment NSR 
provisions be removed from the SIP.
---------------------------------------------------------------------------

    For areas subject to anti-backsliding requirements for revoked 
standards, approval of redesignation to attainment for the 2008 ozone 
NAAQS signifies that the state has satisfied its obligations to adopt 
anti-backsliding requirements for the revoked standards. This same 
approach was used in the Phase 1 Rule in requiring redesignations for 
the 1997 ozone NAAQS to address anti-backsliding requirements for the 
revoked 1-hour standard. Approval of the section 175A maintenance plan 
for the 2008 ozone NAAQS assures that the area's SIP includes the 
provisions necessary for maintenance of the 2008 ozone NAAQS, which is 
the most stringent of the NAAQS. Therefore, upon redesignation to 
attainment and approval of its plan for maintenance of the 2008 ozone 
NAAQS, an area has satisfied its obligations to adopt anti-backsliding 
requirements. All of the anti-backsliding measures that have been 
approved into the SIP must continue to be implemented unless or until 
the state can show that such implementation is not necessary for 
maintenance, consistent with section 110(l) and section 193 if 
applicable. This showing may be submitted to the EPA at the same time 
as the maintenance plan, and may be approved by the EPA in a single 
action. Subject to this process, anti-backsliding requirements 
contained in the SIP could be shifted to the contingency measures 
portion of a section 175A maintenance plan, or, in limited 
circumstances \134\ removed from the SIP.
---------------------------------------------------------------------------

    \134\ As explained in the text above, nonattainment NSR 
requirements can be removed from the SIP entirely.
---------------------------------------------------------------------------

Procedure 2: Providing a Redesignation Substitute for Revoked NAAQS
    In addition to the redesignation of an area to attainment for the 
2008 ozone NAAQS, the EPA is proposing a new separate route for 
satisfying anti-backsliding requirements for a revoked 1997 or 1-hour 
ozone NAAQS. The EPA's experience in implementing the anti-backsliding 
requirements in the Phase 1 Rule has taught that the EPA should provide 
an additional mechanism to allow for satisfaction of anti-backsliding 
requirements for a revoked standard.
    Under the Phase 1 Rule, the EPA lacked a rule-based method that, 
like redesignation to attainment for a current standard, could serve as 
a demonstration that applicable nonattainment requirements for a 
revoked standard have been satisfied. Because the EPA can no longer 
formally redesignate areas to attainment for a standard after that 
standard is revoked, the only relief the Phase 1 Rule provided to areas 
subject to outdated anti-backsliding requirements for the revoked 1-
hour ozone NAAQS was redesignation to attainment for the 1997 ozone 
NAAQS that replaced it. The lack of another avenue of relief created 
hardship and confusion, particularly with respect to terminating 1-hour 
ozone nonattainment NSR and section 185 program fee requirements.
    As we confront the issue again, this time for areas which, in some 
cases, are subject to anti-backsliding requirements for two revoked 
ozone standards, the EPA now recognizes the need to create an 
alternative other than formal redesignation to attainment for the 2008 
ozone NAAQS. Unless we provide a second mechanism, after revocation of 
the 1997 ozone NAAQS, areas that attain and meet requirements for the 
revoked 1997 or 1-hour ozone NAAQS will be treated more harshly than 
areas that were redesignated to attainment for those standards prior to 
their revocation. Areas that would otherwise have qualified for 
redesignation to attainment for the 1997 or 1-hour ozone NAAQS, were it 
not for their revocation, would have to wait to be relieved of outdated 
requirements until they also qualify for redesignation to attainment 
for the more stringent 2008 ozone NAAQS. The EPA believes that, under 
any view of anti-backsliding for a revoked standard, it should not mean

[[Page 34223]]

imposing more onerous terms than those that would apply if the standard 
had not been revoked.
    Therefore, in addition to formal redesignation to attainment for 
the 2008 ozone NAAQS, the EPA is proposing a separate mechanism for 
satisfaction of anti-backsliding requirements for a revoked 1997 or 1-
hour ozone NAAQS. Because the EPA can no longer formally redesignate 
areas for a revoked standard, under this option, areas would be 
eligible to qualify for satisfaction of applicable requirements for the 
revoked 1-hour or 1997 ozone NAAQS by submitting a showing that 
functions as a substitute for redesignation to attainment for that 
revoked standard, and insures that the substance of the redesignation 
requirements are met. For a revoked standard, this second mechanism 
would serve as a successor to redesignation to attainment, for which 
the area would have been eligible were it not for revocation. See, for 
example, CAA section 185, which states that the obligation to implement 
a fee program terminates when ``the area is redesignated as an 
attainment area for ozone.'' Thus, redesignation to attainment for the 
1-hour ozone NAAQS if it were still possible would have clearly 
relieved the area of this obligation with respect to that standard.
    For an area to show that it qualifies for this redesignation 
substitute, the EPA proposes that the state provide a showing that 
addresses the substance of the redesignation criteria. After notice-
and-comment rulemaking on this showing, the EPA approval of the showing 
would have the same effect on the area's nonattainment anti-backsliding 
obligations as would a redesignation to attainment for the revoked 
standard.
    The EPA proposes that the showing, based on the CAA's criteria for 
redesignation to attainment (CAA section 107(d)(3)(E)), would include: 
Attainment of the relevant revoked 1-hour or 1997 ozone NAAQS; a 
showing that attainment was due to permanent and enforceable emissions 
reductions; and a demonstration that the area can continue to maintain 
the standard over the next 10 years. Redesignation criteria in section 
107(d)(3)(E)(ii) and (v) would be met by the existing approved SIP, 
under which the area has attained the revoked standard, in the context 
of (and reinforced by) the requirements for the new 2008 ozone NAAQS. 
We believe that, for a revoked standard, this approach results in a 
notice-and-comment process that fulfills the function of redesignation 
to attainment for the purpose of satisfying requirements for anti-
backsliding requirements for a revoked standard. See CAA sections 
107(d)(3)(E) and 175A. While we do not propose to require formal SIP 
submission procedures, since areas will not actually be redesignated 
under this option, the EPA will conduct notice-and-comment rulemaking 
on the state's showings. The EPA believes that requiring more elaborate 
administrative procedures would needlessly impose burdens on the area, 
which will remain subject to all the formal requirements for 
redesignation to attainment for the 2008 ozone NAAQS. Development of 
these SIP revisions takes time, and can impose costs to both industry 
and the public. Under these circumstances, it is consistent with the 
requirements of anti-backsliding for areas under pressure from multiple 
environmental obligations to be relieved of procedural burdens once the 
area has attained the revoked standard. As in the case of a 
redesignation to attainment for the 2008 ozone NAAQS, at the time of 
submitting a redesignation substitute or at any time thereafter, a 
state may request to revise its SIP so as to cease implementing a 
specific nonattainment SIP requirement. However, this request could not 
be granted, and the SIP revised, until the EPA approves the 
redesignation substitute and a demonstration that the SIP revision 
meets the requirements of section 110(l). The EPA is not providing this 
mechanism for the purpose of allowing areas to avoid requirements 
needed for attainment and maintenance of the NAAQS. The showings 
required, the provisions of section 110(l), and the fact that the area 
remains subject to the more stringent 2008 ozone NAAQS, assure that is 
not the case. It is, however, important to relieve areas of 
requirements that are no longer necessary, or that can be replaced by 
other forms of protection that might better meet local needs and 
circumstances.
    The EPA notes that this proposed option, a redesignation substitute 
procedure for the revoked 1-hour or 1997 ozone NAAQS, is more stringent 
than an option previously adopted in the EPA's Phase 1 Rule (69 FR 
23982). It requires a more extensive showing than mere attainment of 
the revoked standard. We also note that section 172(e) does not address 
when anti-backsliding requirements can be removed. Nor does the South 
Coast decision clearly answer this question. Here, the EPA is proposing 
a mechanism that demands more than a determination of attainment of the 
prior standard, and calls for a showing that addresses redesignation 
criteria for that standard. Moreover the process under this option 
occurs while the area remains subject to ongoing requirements to meet 
the new more stringent standard. In this context, the proposed option 
is clearly sufficient for its limited anti-backsliding purpose: It 
recognizes and supports the area's progress in having attained the 
prior standard due to permanent and enforceable emissions reductions, 
and reinforces continued attainment by calling for a demonstration that 
the area can maintain the revoked standard.
    Under both of the EPA's proposed procedures, a state seeking to 
revise its SIP to remove anti-backsliding measures from the active 
portion of its SIP must demonstrate, pursuant to section 110(l), that 
such revision would not interfere with attainment or maintenance of any 
applicable NAAQS, or any other requirement of the CAA.\135\
---------------------------------------------------------------------------

    \135\ Likewise to the extent a SIP revision seeking to remove 
anti-backsliding measures modifies control requirements subject to 
section 193, the revision would also have to satisfy the 
requirements of that provision.
---------------------------------------------------------------------------

    The EPA seeks comments on its proposed approaches for the final 
rule. Additionally, as mentioned in section IV.H.1 above, the EPA is 
soliciting comments on additional routes to lifting nonattainment NSR 
requirements tied to the revoked 1997 and 1-hour ozone NAAQS, where the 
2008 nonattainment NSR requirements would remain in place. These 
additional processes, like the redesignation substitute option the EPA 
is proposing, would operate to lift the nonattainment NSR requirements 
for the revoked NAAQS while retaining the NSR Requirements for the 2008 
ozone NAAQS. The EPA asks that commenters provide supporting legal 
rationales for any additional option, taking into account the D.C. 
Circuit's decision in South Coast.

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

    The EPA, in its Phase 1 Rule, codified its long-standing 
interpretation under the Clean Data Policy in a regulation. Under 40 
CFR 51.918, an EPA determination that an area is attaining the 1997 
ozone NAAQS suspends the obligation to submit any attainment-related 
SIP elements for the 1997 ozone NAAQS not yet approved in the SIP, for 
so long as the area continues in attainment of that NAAQS.\136\ The EPA

[[Page 34224]]

in this rulemaking is proposing to apply this same approach with 
respect to determinations of attainment for the 2008 ozone NAAQS. 
Moreover, in order to reflect the intended ongoing status of the Clean 
Data Policy and to consolidate in one regulation a comprehensive 
provision applicable to determinations of attainment for the current 
and former ozone NAAQS, the EPA proposes, after revocation of the 1997 
ozone NAAQS, to replace 40 CFR 51.918 with proposed 40 CFR 51.1118. 
Section 51.1118 applies essentially the same language as 51.918. Upon 
revocation of the 1997 ozone NAAQS, this section would be applicable to 
determinations of attainment for all ozone NAAQS: the 2008, 1997 and 
the already revoked 1-hour ozone NAAQS. If section 51.1118 is 
finalized, the EPA's long-standing Clean Data Policy, which has been 
upheld by the D.C. Circuit and all other courts that have considered 
it, will be embodied in a regulation applicable, after revocation of 
the 1997 ozone NAAQS, for the purpose of all existing and prior ozone 
NAAQS. The planning elements that are suspended under section 51.1118 
would be the same as those suspended under existing section 51.918: RFP 
requirements, attainment demonstrations, RACM, contingency measures and 
other state planning requirements related to attainment of the relevant 
standard. For a Severe or Extreme area, a section 185 fee program is by 
its express terms linked to an attainment demonstration; therefore 
suspension of the obligation to submit the attainment demonstration 
also suspends the obligation to submit the fee program which is part of 
the attainment demonstration (provided that the EPA has not already 
determined that the area failed to attain by its attainment deadline). 
The EPA notes that a determination of attainment would not, however, 
suspend obligations to submit NSR, subpart 2 RACT or emission 
inventories under section 182(a)(1).
---------------------------------------------------------------------------

    \136\ The EPA initially issued the Clean Data Policy in 1995, 
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard.'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995. For purposes of the 1997 ozone NAAQS, we codified that 
policy at 40 CFR 51.918. This codified policy was upheld by the D.C. 
Circuit in NRDC v. EPA 571 F.3d 1245 (DC 2009).
---------------------------------------------------------------------------

L. What is the relationship between implementation of the 2008 ozone 
NAAQS and the CAA title V permits program?

    We are proposing, and soliciting comment on, two alternative 
approaches for implementing the title V permit program for sources in 
areas designated nonattainment for the 2008 ozone NAAQS and subject to 
anti-backsliding requirements for a prior ozone NAAQS.
    One of the ways a source can become subject to title V is as a 
``major source.'' See CAA section 502(a); 40 CFR 70.3; 71.3. 
Furthermore, the definition of ``major source'' for purposes of title V 
includes, but is not limited to, a ``major stationary source as defined 
. . . in part D'' of title I.\137\ See CAA section 501(2)(B); 40 CFR 
70.2; 71.2. Thus, changes in an area's classification (e.g., from 
``Serious'' to ``Severe'') by changing the emissions threshold for 
being deemed a major source (e.g., from 100 tpy to 50 tpy of a relevant 
pollutant) can result in changes in title V applicability for a 
source.\138\
---------------------------------------------------------------------------

    \137\ The EPA notes that sources can become subject to title V 
permitting for other reasons, and nothing in this discussion is 
intended to suggest that changes in an area's classification would 
affect those other provisions of title V. Accordingly, sources 
subject to title V under other provisions would remain subject to 
title V for those independent reasons.
    \138\ It should be noted that, pursuant to CAA section 503(a), a 
source is subject to a permit program on the later of the date that 
it becomes a major source and the effective date of a permit program 
applicable to the source. Thus, if a permitting authority with an 
approved title V program lacks any authority to permit certain 
sources that are major sources subject to title V as a result of 
ozone precursor emissions and an area classification for ozone that 
has a major source threshold lower than 100 tpy (e.g., ``Serious'') 
then there is no title V permit program ``applicable to the source'' 
and those sources have no obligation to apply for a title V permit 
until after such time as a permit program becomes applicable to 
them. The EPA will work with States to ensure that all approved 
title V programs are adequate under the CAA.
---------------------------------------------------------------------------

    Between the effective date of area classifications for the 2008 
ozone NAAQS and the revocation date of the 1997 ozone NAAQS, the major 
source thresholds for both the 1997 ozone NAAQS classifications and the 
2008 ozone NAAQS classifications are in effect under part D of title 
I,\139\ and therefore under title V as well. However, after revocation 
of the 1997 ozone NAAQS and the corresponding area classifications for 
that NAAQS, the question arises as to whether only the major source 
thresholds for the 2008 ozone NAAQS designations and classifications 
are relevant for determining whether a source is major for ozone 
precursors for purposes of title V.
---------------------------------------------------------------------------

    \139\ It should be noted that the major source threshold 
associated with an area's 1-hour ozone NAAQS classification may be 
the applicable threshold for at least some purposes where anti-
backsliding requirements for the 1-hour ozone NAAQS apply in the 
area.
---------------------------------------------------------------------------

    As discussed below, the EPA is co-proposing and soliciting comments 
on the following two alternative approaches for determining whether a 
source is a ``major stationary source as defined in . . . part D'' for 
purposes of title V after the revocation of the 1997 ozone NAAQS: (1) 
The major source threshold for title V in an area is the same as the 
major source threshold for purposes of requirements such as NSR and 
RACT (i.e., the major source threshold associated with the area's 
classification for the 1997 and/or 1-hour ozone NAAQS may be the 
applicable threshold for title V purposes, to the extent that anti-
backsliding requirements for the 1997 and/or 1-hour ozone NAAQS apply 
in the area); and (2) the major source threshold for title V in the 
area depends solely on the area's classification for the 2008 ozone 
NAAQS.
    In the Phase 2 Rule for implementing the 1997 ozone NAAQS, the EPA 
discussed, in response to comments, its approach to implementing title 
V during the transition to implementation of the 1997 ozone NAAQS. See 
70 FR 71689-71691. Specifically, the EPA recognized that the Phase 1 
Implementation Rule retained the major source applicability cut-offs 
associated with the prior 1-hour ozone NAAQS for purposes of RACT as an 
anti-backsliding requirement. In other words, an area classified as 
Moderate for the 1997 ozone NAAQS, but Serious for the 1-hour ozone 
NAAQS, would be treated as a Serious area and required to apply major 
source RACT to sources above the major source threshold for Serious 
areas (i.e., 50 tpy or more of VOC or NOX). In the Phase 2 
Rule, the EPA concluded that the anti-backsliding provisions of the 
Phase 1 Implementation Rule were not relevant to the definition of 
major source for purposes of title V. The EPA suggested the anti-
backsliding provisions could not change the major source thresholds for 
title V, as those are defined in the statute. See 70 FR 71690.
    Following the EPA's promulgation of the Phase 2 Rule, the U.S. 
Court of Appeals for the D.C. Circuit issued its ruling on challenges 
to the Phase 1 Rule, which had established which requirements for the 
1-hour ozone NAAQS would be retained as anti-backsliding requirements, 
and found that EPA erred in its approach to anti-backsliding by not 
requiring states to retain, as applicable requirements, all control 
measures that applied for the 1-hour ozone NAAQS. South Coast Air 
Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006). 
Accordingly, today's proposal not only includes RACT as an anti-
backsliding measure, with the major source thresholds that applied to 
areas under the 1997 ozone NAAQS or 1-hour ozone NAAQS (i.e., where 
such thresholds are more restrictive than the thresholds

[[Page 34225]]

applicable to areas under their classifications for the 2008 NAAQS), 
but also includes the requirement for these areas to continue to 
implement NSR using the major source thresholds that applied under the 
1997 ozone NAAQS or the 1-hour ozone NAAQS, where those thresholds are 
more restrictive than the threshold applicable to an area under its 
classification for the 2008 NAAQS. In light of the D.C. Circuit's 
decision in South Coast, and the current approach of this proposed rule 
to retain as anti-backsliding requirements the RACT and NSR 
obligations, including the major source applicability thresholds 
associated with prior NAAQS, the EPA solicits comment on appropriate 
approaches to title V applicability during the transition to the 2008 
ozone NAAQS. In summary, EPA is co-proposing two approaches to 
interpreting title V applicability requirements following revocation of 
the 1997 ozone NAAQS: (1) Major source thresholds for title V should be 
the same as the major source thresholds applicable for purposes of 
other requirements such as RACT and NSR; and (2) major source 
thresholds for title V depend solely on the area's classification for 
the 2008 ozone NAAQS.
    In particular, the EPA solicits comments on whether title V should 
(or should not) be considered a''control,'' within the meaning of 
section 172(e) in light of the fact that title V generally does not 
impose new substantive air quality control requirements but is intended 
to assure compliance with all such existing requirements. The EPA also 
solicits comments on the consistency of the two proposed approaches 
with the language and purposes of the Act, in light of the major source 
thresholds under the revoked standard being retained for requirements 
such as RACT and NSR. The EPA generally solicits comment on other legal 
or policy issues relevant to these two approaches.
    Because the EPA would benefit from public comment on these issues, 
the EPA is co-proposing these two approaches and, following review of 
public comments on the issues raised by each approach, intends to adopt 
one of the approaches in the final rule. As part of the proposal to 
retain major source applicability thresholds for the 1997 and/or 1-hour 
classifications, the EPA is also proposing to make minor conforming 
amendments to the definition of ``major source'' in 40 CFR 70.2 and 
71.2 by inserting after each occurrence of the word ``classified'' in 
paragraph (3) the phrase ``or treated as classified'' in order to make 
clear that sources subject to major source thresholds pursuant to a 
revoked standard for controls are also subject to the same major source 
thresholds for purposes of title V. The EPA further solicits comments 
on the proposed conforming amendments, and on whether additional 
changes, different changes, or no changes to parts 70 and 71, and to 
approved state title V programs, would be necessary, if the EPA 
concluded that the thresholds under the 1997 and/or 1-hour 
classifications should be retained for purposes of title V.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) 
document prepared by the EPA has been assigned the EPA ICR number 
2347.01.
    The EPA is proposing this 2008 ozone NAAQS SIP Requirements Rule so 
that states will know what CAA requirements apply to their 
nonattainment areas when the states develop their SIPs for attaining 
and maintaining the NAAQS. The intended effect of the SIP Requirements 
Rule--in conjunction with the rule on other aspects of implementation--
is to provide certainty to states regarding their planning obligations 
such that states may begin SIP development. For purposes of analysis of 
the estimated paperwork burden, the EPA assumed 46 \140\ non-attainment 
areas, some of which must prepare an attainment demonstration as well 
as submit an RFP and RACT SIP. The attainment demonstration requirement 
would appear as 40 CFR 51.908 which implements CAA subsections 
172(c)(1), 182(b)(1)(A) and 182(c)(2)(B). The RFP SIP submission 
requirement would appear in 40 CFR 51.910, and the RACT SIP submission 
requirement would appear in 40 CFR 51.912, which implements CAA 
subsections 172(c)(1) 182(b)(2),(c),(d) and (e).
---------------------------------------------------------------------------

    \140\ 77 FR 30088, May 21, 2012.
---------------------------------------------------------------------------

    States should already have information from emission sources, as 
facilities should have provided this information to meet 1-hour and 
1997 ozone NAAQS SIP requirements, operating permits and/or emissions 
reporting requirements. Such information does not generally reveal the 
details of production processes. But, to the extent it may, 
confidential business information for the affected facilities is 
protected. Specifically, submissions of emissions and control 
efficiency information that is confidential, proprietary and trade 
secret is protected from disclosure under the requirements of 
subsections 503(e) and 114(c) of the CAA.
    The annual burden for this information collection averaged over the 
first 3 years of this ICR is estimated to be a total of 120,000 labor 
hours per year at an annual labor cost of $2.4 million (present value) 
over the 3-year period or approximately $91,000 per state for the 26 
state respondents, including the District of Columbia. The average 
annual reporting burden is 690 hours per response, with approximately 2 
responses per state for 58 state respondents. There are no capital or 
operating and maintenance costs associated with the proposed rule 
requirements. Burden is defined at 5 CFR 1320.3(b).
    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.
    To comment on the agency's need for this information, the accuracy 
of the provided burden estimates and any suggested methods for 
minimizing respondent burden, the EPA has established a public docket 
for this rule, which includes this ICR, under Docket ID number EPA-HQ-
OAR-2010-0885. Commenters should submit any comments related to the ICR 
to both the EPA and OMB. See the ADDRESSES section at the beginning of 
this notice for where to submit comments to the EPA. Send comments to 
OMB at the Office of Information and Regulatory Affairs, Office of 
Management and Budget, 725 17th Street NW., Washington, DC 20503, 
Attention: Desk Office for EPA. Since OMB is required to make a 
decision concerning the ICR between 30 and 60 days after June 6, 2013, 
a comment to OMB is best assured of having its full effect if OMB 
receives it by July 8, 2013. The final rule will respond to any OMB or 
public

[[Page 34226]]

comments on the information collection requirements contained in this 
proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any regulation subject 
to notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
in the Small Business Administration's (SBA) regulations at 13 CFR 
121.201;) (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements directly on small 
entities. Entities potentially affected directly by this proposal 
include state, local and tribal governments and none of these 
governments are small governments. Other types of small entities are 
not directly subject to the requirements of this rule because this 
action only addresses whether a SIP will provide for adequate 
attainment and maintenance of the NAAQS and meet the obligations of the 
CAA.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandate under the provisions of 
title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local and tribal governments, in the aggregate, or 
the private sector. This action imposes no enforceable duty on any 
state, local or tribal governments or the private sector. Therefore, 
this action is not subject to the requirements of section 202 and 205 
of the UMRA.
    This action is also not subject to the requirements of section 203 
of the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The CAA imposes the 
obligation for states to submit SIPs to implement the 2008 ozone NAAQS; 
in this rule, the EPA is merely explaining those requirements.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The requirement to submit SIP 
revisions to meet a revised ozone standard is imposed by the CAA. This 
proposed rule, if made final, would interpret those requirements as 
they apply to the 2008 ozone NAAQS . Thus, Executive Order 13132 does 
not apply to these proposed regulation revisions.
    In the spirit of Executive Order 13132 and consistent with the EPA 
policy to promote communications between the EPA and state and local 
governments, EPA specifically solicits comments on this proposed action 
from state and local officials. In addition, the EPA intends to meet 
with organizations representing state and local officials during the 
comment period for this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It would not 
have a substantial direct effect on one or more Indian tribes, since no 
tribe has to develop a SIP under these proposed regulatory revisions. 
Furthermore, these proposed regulation revisions do not affect the 
relationship or distribution of power and responsibilities between the 
federal government and Indian tribes. The CAA and the Tribal Air Rule 
establish the relationship of the federal government and tribes in 
developing plans to attain the NAAQS, and these revisions to the 
regulations do nothing to modify that relationship. Thus, Executive 
Order 13175 does not apply to this action.
    Although Executive Order 13175 does not apply to this action, the 
EPA met with tribal officials in developing this action. Meeting 
summaries are contained in the docket for this rulemaking.
    The EPA specifically solicits additional comment on this proposed 
action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks. These proposed 
revisions address whether a SIP will be adequate to attain and maintain 
the NAAQS and will meet the obligations of the CAA. The NAAQS are 
promulgated to protect the health and welfare of sensitive population, 
including children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs the EPA 
to provide Congress, through OMB, explanations when the agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, the EPA is not considering the use of any voluntary 
consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs

[[Page 34227]]

federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies and 
activities on minority populations and low-income populations in the 
United States.
    The EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The proposed revisions to the regulations would, if 
promulgated, revise the substantive requirements for SIPs to attain the 
NAAQS, which are designed to protect all segments of the general 
populations. As such, they do not adversely affect the health or safety 
of minority or low-income populations and are designed to protect and 
enhance the health and safety of these and other populations.

K. Determination Under Section 307(d)

    Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the 
Administrator proposes to determine that this action is subject to the 
provisions of section 307(d). Under section 307(d)(1)(V), the 
provisions of section 307(d) apply to ``such other actions as the 
Administrator may determine.''

Appendix A to Preamble

Glossary of Terms and Acronyms

ACT Alternative Control Techniques (document)
AERR Air Emissions Reporting Requirements Rule
BACT Best Available Control Technology
CAA Clean Air Act
CAAAC Clean Air Act Advisory Committee
CAIR Clean Air Interstate Rule
CERR Consolidated Emissions Reporting Rule
CFR Code of Federal Regulations
CO Carbon Monoxide
CSAPR Cross-State Air Pollution Rule
CTG Control Technique Guideline
DOT Department of Transportation
DV Design Value
EMFAC EMissions FACtors (a mobile emissions model)
ESRP Emissions Statement Reporting Program
EGU Electricity Generating Unit
EO Executive Order
EPA Environmental Protection Agency
FIP Federal Implementation Plan
GDF Gasoline dispensing facilities
HEDD High Electric Demand Day
ICR Information Collection Requirement
I/M Inspection and Maintenance (i.e., smog check)
km Kilometers
LAER Lowest Achievable Emission Rate
MACT Maximum Achievable Control Technology
MCR Mid-course Review
MPO Metropolitan Planning Organization
NAAQS National Ambient Air Quality Standards
NOX Nitrogen Oxides
NPRM Notice of Proposed Rulemaking
NSR New Source Review
NTTAA National Technology Transfer and Advancement Act of 1995
OMB Office of Management and Budget
OTR Ozone Transport Region
ORVR Onboard refueling vapor recovery
PM Particulate Matter
PM2.5 Fine Particulate Matter
ppb Parts per Billion
ppm Parts per Million
PSD Prevention of Significant Deterioration
RACM Reasonably Available Control Measures
RACT Reasonably Available Control Technology
RFA Regulatory Flexibility Act
RFG Reformulated Gasoline
RFP Reasonable Further Progress
ROP Rate of Progress
RPO Regional Planning Organization
SBA Small Business Administration
SIP State Implementation Plan
TAR Tribal Authority Rule
TAS Treatment in the Same Manner as a State (``Treatment as State'')
TIP Tribal Implementation Plan; also Transportation Improvement 
Program (depending on context)
tpd Tons Per Day
tpy Tons Per Year
TSP Total Suspended Particulate
UMRA Unfunded Mandates Reform Act of 1995
VCS Voluntary Consensus Standards
VOC Volatile Organic Compound


     Appendix B to Preamble Relevant Rulemakings Concerning Implementation of the 1997 Ozone NAAQS and Anti-
                              Backsliding Provisions for Revoked 1-Hour Ozone NAAQS
                     [MR--Major Rulemaking; RE--Reconsideration; CO--Correction; OT--Other]
----------------------------------------------------------------------------------------------------------------
          FR Citation                   Date         Title (kind of rule)         Action             Topic
----------------------------------------------------------------------------------------------------------------
68 FR 32802....................  06/02/2003.......  Proposed Rule to        Proposed           .................
                                                     Implement the 8-Hour    Rulemaking.
                                                     Ozone National
                                                     Ambient Air Quality
                                                     Standards (MR).
68 FR 46536....................  08/06/2003.......  Draft Regulatory Text   Notice of          Draft regulatory
                                                     for Proposed Rule to    Availability.      text.
                                                     Implement the 8-Hour
                                                     Ozone National
                                                     Ambient Air Quality
                                                     Standards (OT).
68 FR 60054....................  10/21/2003.......  Proposed Rule to        Reopening of       Classification
                                                     Implement the 8-Hour    public comment     system.
                                                     Ozone National          period.
                                                     Ambient Air Quality
                                                     Standards (OT).
69 FR 23858....................  04/30/2004.......  Air Quality             Final Rule.......  .................
                                                     Designations and
                                                     Classifications for
                                                     the 8-Hour Ozone
                                                     National Ambient Air
                                                     Quality Standards;
                                                     Early Action Compact
                                                     Areas With Deferred
                                                     Effective Dates (MR).
69 FR 23951....................  04/30/2004.......  Final Rule to           Final Rule.......  Classification;
                                                     Implement the 8-Hour                       Revocation of 1-
                                                     Ozone National                             hour std, anti-
                                                     Ambient Air Quality                        backsliding.
                                                     Standards--Phase 1
                                                     (MR).
69 FR 35526....................  06/25/2004.......  Revision to the         Final rule;        Filing of
                                                     Preamble of the Final   correction.        petitions for
                                                     Rule to Implement the                      review.
                                                     8-Hour Ozone National
                                                     Ambient Air Quality
                                                     Standards--Phase 1;
                                                     Correction (CO).

[[Page 34228]]

 
70 FR 5593.....................  02/03/2005.......  Implementation of the   Proposed rule;     Waiver from anti-
                                                     8-Hour Ozone National   notice of public   backsliding of 1-
                                                     Ambient Air Quality     hearing.           hour ozone Sec.
                                                     Standards--Phase 1:                        185 penalty fees
                                                     Reconsideration (RE).                      and contingency
                                                                                                measures;
                                                                                                listing of 1-
                                                                                                hour attainment
                                                                                                demos as
                                                                                                applicable
                                                                                                requirement.
70 FR 17018....................  04/04/2005.......  Nonattainment Major     Proposed rule;     NSR under 8-hour
                                                     New Source Review       notice of public   NAAQS.
                                                     Implementation Under    hearing.
                                                     8-Hour Ozone National
                                                     Ambient Air Quality
                                                     Standards:
                                                     Reconsideration (RE).
70 FR 30592....................  05/26/2005.......  Implementation of the   Final rule.......  Waiver from Anti-
                                                     8-Hour Ozone National                      backsliding of 1-
                                                     Ambient Air Quality                        hour ozone Sec.
                                                     Standards--Phase 1:                        185 penalty fees
                                                     Reconsideration (RE).                      and contingency
                                                                                                measures;
                                                                                                listing of 1-
                                                                                                hour attainment
                                                                                                demos as
                                                                                                applicable
                                                                                                requirement.
70 FR 39413....................  07/08/2005.......  Nonattainment Major     Final rule;        NSR under 8-hour
                                                     New Source Review       notice of final    NAAQS.
                                                     Implementation Under    action on
                                                     8-Hour Ozone National   reconsideration.
                                                     Ambient Air Quality
                                                     Standards:
                                                     Reconsideration (RE).
70 FR 44470....................  08/03/2005.......  Identification of       Final Rule.......  Part 81 change to
                                                     Ozone Areas for Which                      reflect
                                                     the 1-Hour Standard                        revocation of 1-
                                                     Has Been Revoked and                       hour standard;
                                                     Technical Correction                       correction to 40
                                                     to Phase 1 Rule (RE).                      CFR 51.905(c).
70 FR 71612....................  11/29/2005.......  Final Rule To           Final Rule.......  All other 8-hour
                                                     Implement the 8-Hour                       ozone SIP
                                                     Ozone National                             requirements,
                                                     Ambient Air Quality                        including
                                                     Standards--Phase 2;                        attainment demo,
                                                     Final Rule to                              RFP, RACT/RACM.
                                                     Implement Certain
                                                     Aspects of the 1990
                                                     Amendments Relating
                                                     to New Source Review
                                                     and Prevention of
                                                     Significant
                                                     Deterioration as They
                                                     Apply in Carbon
                                                     Monoxide, Particulate
                                                     Matter and Ozone
                                                     NAAQS; Final Rule for
                                                     Reformulated Gasoline
                                                     (MR).
71 FR 15098....................  03/27/2006.......  Implementation of the   Proposed rule;     Overwhelming
                                                     8-Hour Ozone National   notice of public   transport
                                                     Ambient Air Quality     hearing;           classification.
                                                     Standards--Phase 1:     reopening
                                                     Reconsideration (RE).   comment period.
71 FR 58498....................  10/04/2006.......  Final Rule To           Final rule;        Corrections to
                                                     Implement the 8-Hour    correction.        methods for
                                                     Ozone National                             calculating RFP
                                                     Ambient Air Quality                        targets.
                                                     Standards--Phase 2;
                                                     Final Rule to
                                                     Implement Certain
                                                     Aspects of the 1990
                                                     Amendments Relating
                                                     to New Source Review
                                                     and Prevention of
                                                     Significant
                                                     Deterioration as They
                                                     Apply in Carbon
                                                     Monoxide, Particulate
                                                     Matter and Ozone
                                                     NAAQS; Final Rule for
                                                     Reformulated
                                                     Gasoline; Correction
                                                     (CO).
71 FR 75902....................  12/19/2006.......  Phase 2 of the Final    Proposed Rule....  CAIR/RACT issue &
                                                     Rule To Implement the                      two NSR issues.
                                                     8-Hour Ozone National
                                                     Ambient Air Quality
                                                     Standards--Notice of
                                                     Reconsideration (RE).
72 FR 31727....................  06/08/2007.......  Phase 2 of the Final    Final notice of    CAIR/RACT issue &
                                                     Rule To Implement the   reconsideration.   two NSR issues.
                                                     8-Hour Ozone National
                                                     Ambient Air Quality
                                                     Standards--Notice of
                                                     Reconsideration (RE).
73 FR 42294....................  07/21/2008.......  Proposed Rule to        Proposed Rule....  Phase 2 rule
                                                     Implement the 1997 8-                      addressing
                                                     Hour Ozone National                        partial vacatur
                                                     Ambient Air Quality                        on RFP Credit
                                                     Standard: Addressing                       from outside
                                                     a Portion of the                           nonattainment
                                                     Phase 2 Ozone                              area.
                                                     Implementation Rule
                                                     Concerning Reasonable
                                                     Further Progress
                                                     Emissions Reduction
                                                     Credits Outside Ozone
                                                     Nonattainment Areas
                                                     (OT).

[[Page 34229]]

 
74 FR 2936.....................  01/16/2009.......  Proposed Rule To        Proposed Rule....  Phase 1 Rule--
                                                     Implement the 1997 8-                      response to
                                                     Hour Ozone National                        vacatur--Subpart
                                                     Ambient Air Quality                        1 areas, 1-hour
                                                     Standards: Revision                        contingency
                                                     of Subpart 1 Area                          measures, rule
                                                     Reclassification and                       text revision on
                                                     Anti-backsliding                           1-hour Anti-
                                                     Provisions Under                           backsliding
                                                     Former 1-Hour Ozone                        exemptions.
                                                     Standard; Proposed
                                                     Deletion of Obsolete
                                                     1-Hour Ozone Standard
                                                     Provision.
74 FR 34525....................  07/16/2009.......  Ambient Ozone           Proposed Rule....  Proposing to
                                                     Monitoring                                 modify
                                                     Regulations:                               monitoring
                                                     Revisions to Network                       requirements and
                                                     Design Requirements.                       extend the
                                                                                                length of the
                                                                                                required ozone
                                                                                                monitoring
                                                                                                season in some
                                                                                                states.
74 FR 40074....................  08/11/2009.......  Implementation of the   Final Rule.......  Phase 2 rule
                                                     1997 8-Hour Ozone                          addressing
                                                     National Ambient Air                       partial vacatur
                                                     Quality Standard:                          on RFP Credit
                                                     Addressing a Portion                       from outside
                                                     of the Phase 2 Ozone                       nonattainment
                                                     Implementation Rule                        area.
                                                     Concerning Reasonable
                                                     Further Progress
                                                     Emissions Reduction
                                                     Credits Outside Ozone
                                                     Nonattainment Areas.
75 FR 51960....................  08/24/2010.......  Proposed Rule To        Proposed Rule....  Proposing to
                                                     Implement the 1997 8-                      address New
                                                     Hour Ozone National                        Source Review
                                                     Ambient Air Quality                        anti-backsliding
                                                     Standard: New Source                       requirements for
                                                     Review Anti-                               the revoked 1-
                                                     Backsliding                                hour ozone
                                                     Provisions for Former                      NAAQS.
                                                     1-Hour Ozone Standard.
75 FR 80420....................  12/22/2010.......  Reasonable Further      Proposed Rule....  Proposing to
                                                     Progress Requirements                      revise the
                                                     for the 1997 8-Hour                        agency's earlier
                                                     Ozone National                             interpretation
                                                     Ambient Air Quality                        of its rule that
                                                     Standards.                                 allowed
                                                                                                emissions
                                                                                                reductions from
                                                                                                outside the
                                                                                                nonattainment
                                                                                                area to be
                                                                                                credited toward
                                                                                                meeting the RFP
                                                                                                requirements
                                                                                                inside the area.
76 FR 41731....................  07/15/2011.......  Air Quality:            Proposed Rule....  Proposing: 1)
                                                     Widespread Use for                         criteria for
                                                     Onboard Refueling                          determining
                                                     Vapor Recovery and                         whether onboard
                                                     Stage II Waiver.                           refueling vapor
                                                                                                recovery (ORVR)
                                                                                                is in widespread
                                                                                                use; 2) to
                                                                                                determine the
                                                                                                date at which
                                                                                                widespread use
                                                                                                of ORVR will
                                                                                                occur.
----------------------------------------------------------------------------------------------------------------

Appendix C to Preamble Methods To Account for Non-Creditable Reductions 
When Calculating RFP Targets for the 2008 Ozone NAAQS

    The following methods properly account for the non-creditable 
emissions reductions when calculating RFP targets.\1\ They are 
consistent with requirements of sections 182(b)(1)(C) and (D) and 
182(c)(2)(B) of the CAA.\2\
---------------------------------------------------------------------------

    \1\ These methods assume the use of EPA's on-road motor vehicle 
emissions model in all states other than California. All of the 
methods given here require the user to turn off all post-1990 CAA 
measures as part of the calculation. In EPA's current motor vehicle 
emissions model, MOVES, this is accomplished by selecting ``Rate of 
Progress'' in the ``Strategies'' section of the MOVES Navigation 
Panel. This is described in the MOVES2010 User's Guide and in the 
MOVES Technical Guidance (both found at www.epa.gov/otaq/models/moves/index.htm). Users of future versions of EPA's motor vehicle 
emissions model should consult the appropriate User's Guide for the 
version of the model they are using for instructions on what model 
command to use. For California nonattainment areas, the current 
motor vehicle emissions model is EMFAC2007. Users modeling 
California nonattainment areas should consult with the EPA regional 
office for information on doing equivalent calculations in that 
model and in future versions.
    \2\ These sections of the Clean Air Act list four types of 
measures that are not creditable in these calculations: motor 
vehicle exhaust or evaporative standards promulgated by January 1, 
1990; certain fuel RVP requirements that were implemented in 1992; 
certain corrections to RACT provisions in SIPs; and certain 
corrections to I/M programs. The latter two corrections occurred 
shortly after 1990 and no longer need to be accounted for. The 
methods described in this appendix address the first two types of 
non-creditable reductions.
---------------------------------------------------------------------------

    (1) Method 1 applies to areas (or portions thereof) that must 
meet a 15 percent VOC reduction requirement without NOX 
substitution:
    (A) Estimate the actual anthropogenic baseline year VOC 
inventory for the baseline year with all control programs that were 
in the baseline year.

[[Page 34230]]

    (B) Using the same highway vehicle activity inputs used to 
calculate the actual baseline year inventory, run the appropriate 
motor vehicle emissions model for the baseline year and the 15 
percent milestone year (i.e., the sixth year following the baseline 
year) with all post-1990 CAA measures turned off. Any other local 
inputs for vehicle inspection and maintenance (I/M) programs should 
be set according to the program that was required to be in place in 
1990. Fuel vapor pressure (RVP) should be set at 9.0 or 7.8 
depending on the RVP required in the local area as a result of the 
RVP regulations promulgated in June 1990.
    (C) Calculate the difference between the baseline and 15 percent 
milestone year VOC emission factors calculated in Step B and 
multiply by vehicle miles traveled (VMT) for the baseline year. The 
result is the VOC emissions reduction that will occur between the 
baseline year and the 15 percent milestone year without the benefits 
of any post-1990 CAA measures. This is the non-creditable reduction 
that will occur over this period.
    (D) Subtract the non-creditable reduction calculated in Step C 
from the actual anthropogenic baseline inventory estimated in Step 
A. This adjusted VOC inventory is the basis for calculating the 
target level of actual emissions in the 15 percent milestone year.
    (E) Reduce the adjusted VOC inventory calculated in Step D by 15 
percent. The result is the level of VOC emissions in the 15 percent 
milestone year necessary to meet the 15 percent VOC reduction 
requirement. The actual projected 15 percent milestone year 
inventory for all sources with all control measures in place in the 
milestone year and including projected growth in activity through 
the 15 percent milestone year must be at or lower than this target 
level of emissions.
    (2) Method 2 applies to areas initially classified as Moderate 
for the 2008 ozone NAAQS and portions thereof and for areas or those 
portions thereof that had already met the 15 percent RFP requirement 
for VOC in section 182(b)(1) of the CAA for the 1-hour ozone NAAQS 
or the 1997 ozone NAAQS, or, that met this 15 percent RFP 
requirement based upon a combination of SIPs for both the 1-hour 
ozone NAAQS and the 1997 ozone NAAQS. These areas or the portions 
thereof are covered by subpart 1 RFP requirements and must meet a 15 
percent VOC emission reduction requirement by the 15 percent 
milestone year but with NOX substitution allowed, 
following EPA's NOX Substitution Guidance \3\:
---------------------------------------------------------------------------

    \3\ NOX Substitution Guidance (December 15, 1993; 
available at http://www.epa.gov/ttn/oarpg/t1pgm.html).
---------------------------------------------------------------------------

    (A) Estimate the actual anthropogenic baseline year inventory 
for both VOC and NOX with all control programs in place 
in the baseline year.
    (B) Using the same highway vehicle activity inputs used to 
calculate the baseline year inventory, run the appropriate motor 
vehicle emissions model for the baseline year and the 15 percent 
milestone year with all post-1990 CAA measures turned off. Any other 
local inputs for I/M programs should be set according to the program 
that was required to be in place in 1990. Fuel RVP should be set at 
9.0 or 7.8 depending on the RVP required in the local area as a 
result of RVP regulations promulgated in June 1990.
    (C) Calculate the difference between the baseline and 15 percent 
milestone years VOC emissions factors calculated in Step B and 
multiply by the baseline year VMT. The result is the VOC emissions 
reduction that will occur between the baseline year and the 15 
percent milestone year without the benefits of any post-1990 CAA 
measures. This is the non-creditable VOC reduction that will occur 
over this period. Calculate the difference between the baseline year 
and the 15 percent milestone year NOX emissions factors 
calculated in Step B and multiply by the baseline year VMT. This 
result is the NOX emissions reduction that will occur 
between the baseline year and the 15 percent milestone year without 
the benefits of any post-1990 CAA measures. This is the non-
creditable NOX reduction that will occur over this 
period.
    (D) Subtract the non-creditable VOC reduction calculated in Step 
C from the actual anthropogenic baseline year VOC inventory 
estimated in Step A. Subtract the non-creditable NOX 
reduction calculated in Step C from the actual anthropogenic 
baseline year NOX inventory estimated in Step A. These 
adjusted VOC and NOX inventories are the basis for 
calculating the target level of emissions in the 15 percent 
milestone year.
    (E) The target for VOC and NOX emissions in the 15 
percent milestone year needed to meet the 15 percent milestone year 
RFP requirement is any combination of VOC and NOX 
emissions which result in a combined total of 15 percent reductions 
when compared to the adjusted VOC and NOX inventories 
calculated in Step D. For example, the target level of VOC emissions 
in the 15 percent milestone year could be 90 percent of the adjusted 
VOC inventory calculated in Step D, which would be a 10 percent 
reduction, and similarly the target level of NOX 
emissions could be 95 percent of the adjusted VOC inventory 
calculated in Step D, which would be a 5 percent reduction. The 
actual projected 15 percent milestone year VOC and NOX 
inventories for all sources with all control measures in place as of 
the milestone year and including projected 15 percent milestone year 
growth in activity must be at or lower than the target levels of VOC 
and NOX emissions.
    (3) Method 3 applies to Serious and higher classified areas for 
the 2008 ozone NAAQS or portions thereof that have met a 15 percent 
reduction requirement for a previous ozone NAAQS and that must meet 
an 18 percent VOC emission reduction requirement with NOX 
substitution allowed, following EPA's NOX Substitution 
Guidance \4\:
---------------------------------------------------------------------------

    \4\ NOX Substitution Guidance (December 15, 1993; 
available at http://www.epa.gov/ttn/oarpg/t1pgm.html).
---------------------------------------------------------------------------

    (A) Estimate the actual anthropogenic baseline year inventory 
for both VOC and NOX with all source control programs in 
place during the baseline year.
    (B) Using the same highway vehicle activity inputs used to 
calculate the baseline year inventory, run the appropriate motor 
vehicle emissions model for the baseline year and the 18 percent 
milestone year (i.e., the sixth year following the baseline year) 
with all post-1990 CAA measures turned off. Any other local inputs 
for I/M programs should be set according to the program that was 
required to be in place in 1990. Fuel RVP should be set at 9.0 or 
7.8 depending on the RVP required in the local area as a result of 
RVP regulations promulgated in June 1990.
    (C) Calculate the difference between the baseline year and the 
18 percent milestone year VOC emissions factors calculated in Step B 
and multiply this difference by the baseline year VMT. The result is 
the VOC emissions reduction that will occur between the baseline 
year and the milestone year without the benefits of any post-1990 
CAA measures. This is the non-creditable VOC reduction that will 
occur over this period. Calculate the difference between the 
baseline and milestone years NOX emissions factors 
calculated in Step B and multiply by the baseline year VMT. This 
result is the NOX emissions reduction that will occur 
between the baseline year and the milestone year without the 
benefits of any post-1990 CAA measures. This is the non-creditable 
NOX reduction that will occur over this period.
    (D) Subtract the non-creditable VOC reduction calculated in Step 
C from the actual anthropogenic baseline year VOC inventory 
estimated in Step A. Subtract the non-creditable NOX 
reduction calculated in Step C from the actual anthropogenic 
baseline year NOX inventory estimated in Step A. These 
adjusted VOC and NOX inventories are the basis for 
calculating the target level of emissions in the milestone year.
    (E) The target for VOC and NOX emissions in the 18 
percent milestone year needed to meet the 18 percent milestone year 
RFP requirement is any combination of VOC and NOX 
emissions that result in a combined total of 18 percent reductions 
when compared to the adjusted VOC and NOX inventories 
calculated in Step D. For example, the target level of VOC emissions 
in the 18 percent milestone year could be 92 percent of the adjusted 
VOC inventory in Step D (and 8 percent reduction in VOC) and 90 
percent of the adjusted NOX inventory in Step D (a 10 
percent reduction in NOX). The actual projected 18 
percent milestone year VOC and NOX inventories for all 
sources with all control measures in place in the milestone year and 
including projected 18 percent milestone year growth in activity 
must be at or lower than the target levels of VOC and NOX 
emissions.
    (4) Method 4 applies to all Serious and higher classified areas 
that have used Method 1 (and therefore do not have a NOX 
target level of emissions for the 15 percent milestone year) and 
must meet an additional reduction VOC requirement of 9 percent every 
3 years after the 15 percent milestone year with NOX 
substitution allowed, following EPA's NOX Substitution 
Guidance. Each subsequent target level of emissions should be 
calculated as an emission reduction from the previous target.

[[Page 34231]]

    (A) Estimate the actual anthropogenic baseline year 
NOX inventory in the baseline year with all control 
programs in place in the baseline year.
    (B) Using the same highway vehicle activity inputs used to 
calculate the actual baseline year inventory, run the appropriate 
emissions model for VOC and NOX in the baseline year and 
the 15 percent milestone year (previously done in Step B in Method 1 
for VOC but not necessarily for NOX) and the first 9 
percent milestone year with all post-1990 CAA measures turned off. 
Any other local inputs for I/M programs should be set according to 
the program that was required to be in place in 1990. Fuel RVP 
should be set at 9.0 or 7.8 depending on the RVP required in the 
local area as a result of fuel RVP regulations promulgated in June, 
1990.
    (C) Calculate the difference between the 15 percent milestone 
year and the first 9 percent milestone year VOC emission factors 
calculated in Step B and multiply by the baseline year VMT. The 
result is the VOC emissions reduction that will occur between the 15 
percent milestone year and the 9 percent milestone year without the 
benefits of any post-1990 CAA measures. This is the non-creditable 
VOC reduction that will occur over this period. Calculate the 
difference between the baseline year and the first 9 percent 
milestone year NOX emission factors calculated in Step B 
and multiply by the baseline year VMT. The result is the 
NOX emissions reduction that will occur between the 
baseline year and the first 9 percent milestone year without the 
benefits of any post-1990 CAA measures. This is the non-creditable 
NOX reduction that will occur over this period.
    (D) Subtract the non-creditable VOC reduction calculated in Step 
C from the 15 percent milestone year VOC target level of emissions 
calculated previously. Subtract the non-creditable NOX 
reduction calculated in Step C from the actual the baseline year 
NOX inventory of emissions calculated in Step A. These 
adjusted VOC and NOX inventories are the basis for 
calculating the target level of emissions for the first 9 percent 
milestone year.
    (E) The target for VOC and NOX emissions in the 9 
percent milestone year needed to meet the first 9 percent milestone 
year RFP requirement is any combination of VOC and NOX 
emissions that result in a combined total of 9 percent reductions 
when compared to the adjusted VOC and NOX inventories 
calculated in Step D that total 9 percent. For example, the target 
level of VOC emissions in the first 9 percent milestone year could 
be 96 percent of the adjusted VOC inventory in Step D (a 4 percent 
reduction in VOC emissions) and 95 percent of the adjusted 
NOX inventory in Step D (a 5 percent reduction in 
NOX emissions). The actual projected first 9 percent 
milestone year VOC and NOX inventories for all sources 
with all control measures in place in the milestone year and 
including projected first 9 percent milestone year growth in 
activity must be at or lower than the target levels of VOC and 
NOX emissions.
    (F) For subsequent 3-year periods until the attainment date, the 
adjusted VOC inventory should be based on the difference in VOC 
emissions during that 3-year period when all post-1990 CAA measures 
are turned off, subtracted from the previous VOC target level of 
emissions. For subsequent 3-year periods, the adjusted 
NOX inventory should be based on the difference in 
NOX emissions during that 3-year period when all post-
1990 CAA measures are turned off, subtracted from the previous 
NOX target level of emissions. For example, for the 
subsequent 9 percent milestone year, take the VOC and NOX 
emissions reductions that will occur between the 9 percent milestone 
year and the subsequent 9 percent milestone year without the 
benefits of any post-1990 CAA measures and with consistent vehicle 
activity. These reductions are subtracted from the 9 percent 
milestone year target level of VOC and NOX emissions 
calculated in Step E to get the adjusted VOC and NOX 
inventories to be used as the basis for calculating the target 
levels of VOC and NOX emissions in the subsequent 9 
percent milestone year.
    (5) Method 5 applies to all Moderate areas that are subsequently 
reclassified as Serious (or higher) pursuant to section 181(b) of 
the CAA, that used Method 2 (and therefore do have a NOX 
target level of emissions for the 15 percent milestone year) and 
that must meet an additional reduction VOC requirement of 9 percent 
every 3 years after the 15 percent milestone year with 
NOX substitution allowed, following EPA's NOX 
Substitution Guidance. Each subsequent target level of emissions 
should be calculated as an emissions reduction from the previous 
target.
    (A) Using the same highway vehicle activity inputs used to 
calculate the actual baseline year inventory, run the appropriate 
emissions model for VOC and NOX in the 15 percent 
milestone year (previously done in Step B in Method 2) and the 9 
percent milestone year with all post-1990 CAA measures turned off. 
Any other local inputs for I/M programs should be set according to 
the program that was required to be in place in 1990. Fuel RVP 
should be set at 9.0 or 7.8 depending on the RVP required in the 
local area as a result of fuel RVP regulations promulgated in June 
1990.
    (B) Calculate the difference between the 15 percent milestone 
year and the 9 percent milestone year VOC emission factors 
calculated in Step A and multiply by the baseline year VMT. The 
result is the VOC emissions reduction that will occur between the 15 
percent milestone year and the 9 percent milestone year without the 
benefits of any post-1990 CAA control measures. This is the non-
creditable VOC reduction that will occur over this period. Calculate 
the difference between the baseline year and the first 9 percent 
milestone year NOX emission factors calculated in Step A 
and multiply by the baseline year VMT. The result is the 
NOX emissions reduction that will occur between the 
baseline year and the first 9 percent milestone year without the 
benefits of any post-1990 CAA measures. This is the non-creditable 
NOX reduction that will occur over this period.
    (C) Subtract the non-creditable VOC reduction calculated in Step 
B from the 15 percent milestone year VOC target level of emissions 
calculated previously. Subtract the non-creditable NOX 
reduction calculated in Step B from the 15 percent milestone year 
NOX target level of emissions calculated previously. 
These adjusted VOC and NOX inventories are the basis for 
calculating the target level of emissions for the 9 percent 
milestone year.
    (D) The target for VOC and NOX emissions in the 9 
percent milestone year needed to meet the first 9 percent milestone 
year RFP requirement is any combination of VOC and NOX 
emissions that result in a combined total of 9 percent reductions 
when compared to the adjusted VOC and NOX inventories 
calculated in Step D For example, the target level of VOC emissions 
in the first 9 percent milestone year could be 96 percent of the 
adjusted VOC inventory in Step C (a 4 percent reduction in VOC 
emissions) and 95 percent of the adjusted NOX inventory 
in Step C (a 5 percent reduction in NOX emissions). The 
actual projected 9 percent milestone year VOC and NOX 
inventories for all sources with all control measures in place and 
including projected 9 percent milestone year growth in activity must 
be at or lower than the target levels of VOC and NOX 
emissions.
    (E) For subsequent 3-year periods until the attainment date, the 
adjusted VOC inventory should be based on the difference in VOC 
emissions during that 3-year period when all post-1990 CAA measures 
are turned off using the same VMT used in the baseline year, 
subtracted from the previous VOC target level of emissions. For 
subsequent 3-year periods, the adjusted NOX inventory 
should be based on the difference in NOX emissions during 
that 3-year period when all post-1990 CAA measures are turned off 
using the same VMT used in the baseline year, subtracted from the 
previous NOX target level of emissions. For example, for 
the subsequent 9 percent milestone year, take the VOC and 
NOX emissions reductions that will occur between the 9 
percent milestone year and the subsequent 9 percent milestone year 
without the benefits of any post-1990 CAA measures. These reductions 
are subtracted from the 9 percent milestone year target level of VOC 
and NOX emissions calculated in Step D to get the 
adjusted VOC and NOX inventories to be used as the basis 
for calculating the target levels of VOC and NOX 
emissions in the subsequent 9 percent milestone year.
    (6) Method 6 applies to all Serious and higher classified areas 
that have used Method 3 (and therefore do have a NOX 
target level of emissions for the 18 percent milestone year) and 
must meet an additional reduction VOC requirement of 9 percent every 
3 years after the 18 percent milestone year with NOX 
substitution allowed, following the EPA's NOX 
Substitution Guidance. Each subsequent target level of emissions 
should be calculated as an emissions reduction from the previous 
target.
    (A) Using the same highway vehicle activity inputs used to 
calculate the actual baseline year inventory, run the appropriate 
emissions model for VOC and NOX in the 18 percent 
milestone year (previously done in Step B in Method 3) and the 9 
percent milestone year with all post-1990 CAA measures turned off. 
Any other local inputs

[[Page 34232]]

for I/M programs should be set according to the program that was 
required to be in place in 1990. Fuel RVP should be set at 9.0 or 
7.8 depending on the RVP required in the local area as a result of 
fuel RVP regulations promulgated in June 1990.
    (B) Calculate the difference between the 18 percent milestone 
year and the 9 percent milestone year VOC emission factors 
calculated in Step A and multiply by the baseline year VMT. The 
result is the VOC emissions reduction that will occur between the 18 
percent milestone year and the 9 percent milestone year without the 
benefits of any post-1990 CAA control measures. This is the non-
creditable VOC reduction that will occur over this period. Calculate 
the difference between the baseline year and the first 9 percent 
milestone year NOX emission factors calculated in Step A 
and multiply by the baseline year VMT. The result is the 
NOX emissions reduction that will occur between the 
baseline year and the first 9 percent milestone year without the 
benefits of any post-1990 CAA measures. This is the non-creditable 
NOX reduction that will occur over this period.
    (C) Subtract the non-creditable VOC reduction calculated in Step 
B from the 18 percent milestone year VOC target level of emissions 
calculated previously. Subtract the non-creditable NOX 
reduction calculated in Step B from the 18 percent milestone year 
NOX target level of emissions calculated previously. 
These adjusted VOC and NOX inventories are the basis for 
calculating the target level of emissions for 9 percent milestone 
year.
    (D) The target for VOC and NOX emissions in the 9 
percent milestone year needed to meet the first 9 percent milestone 
year RFP requirement is any combination of VOC and NOX 
emissions that result in a combined total of 9 percent reductions 
when compared to the adjusted VOC and NOX inventories 
calculated in Step D For example, the target level of VOC emissions 
in the first 9 percent milestone year could be 96 percent of the 
adjusted VOC inventory in Step C (a 4 percent reduction in VOC 
emissions) and 95 percent of the adjusted NOX inventory 
in Step C (a 5 percent reduction in NOX emissions). The 
actual projected 9 percent milestone year VOC and NOX 
inventories for all sources with all control measures in place and 
including projected 9 percent milestone year growth in activity must 
be at or lower than the target levels of VOC and NOX 
emissions.
    (E) For subsequent 3-year periods until the attainment date, the 
adjusted VOC inventory should be based on the difference in VOC 
emissions during that 3-year period when all post-1990 CAA measures 
are turned off using the same VMT used in the baseline year, 
subtracted from the previous VOC target level of emissions. For 
subsequent 3-year periods, the adjusted NOX inventory 
should be based on the difference in NOX emissions during 
that 3-year period when all post-1990 CAA measures are turned off 
using the same VMT used in the baseline year, subtracted from the 
previous NOX target level of emissions. For example, for 
the subsequent 9 percent milestone year, take the difference in VOC 
and NOX emissions reductions that will occur between the 
9 percent milestone year and the subsequent 9 percent milestone year 
without the benefits of any post-1990 CAA measures. These values are 
subtracted from the 9 percent milestone year target level of VOC and 
NOX emissions calculated in Step D to get the adjusted 
VOC and NOX inventories to be used as the basis for 
calculating the target levels of VOC and NOX emissions in 
the subsequent 9 percent milestone year.

Appendix D to Preamble--List of Areas Nonattainment for the 2008 Ozone 
NAAQS In Addition to a Prior Ozone NAAQS

   Table 1--Areas Nonattainment for Both the 2008 and 1997 Ozone NAAQS
------------------------------------------------------------------------
                                1997 8-hour ozone  1997 Ozone attainment
 2008 Nonattainment area name     classification       determination
------------------------------------------------------------------------
Atlanta Area, GA *............  Moderate.........  Attainment Deadline
                                                    Determination **
                                                    Clean Data
                                                    Determination.
Calaveras County, CA *........  Moderate.........  Attainment Deadline
                                                    Determination Clean
                                                    Data Determination.
Charlotte-Rock Hill Area, NC,   Moderate.........  Attainment Deadline
 SC *.                                              Determination ***
                                                    Clean Data
                                                    Determination.
Chico Area, CA................  Marginal.........  Attainment Deadline
                                                    Determination Clean
                                                    Data Determination.
Denver-Boulder-Greeley-Ft.      Marginal.........  .....................
 Collins-Loveland Area, CO.
Imperial County Area, CA......  Moderate.........  Clean Data
                                                    Determination.
Jamestown Area, NY............  Moderate.........  Clean Data
                                                    Determination ****
Kern County (Eastern Kern)      Moderate.........  Attainment Deadline
 Area, CA.                                          Determination Clean
                                                    Data Determination.
Mariposa County, CA *.........  Moderate.........  Attainment Deadline
                                                    Determination Clean
                                                    Data Determination.
Nevada County (Western part)    Moderate.........  Attainment Deadline
 Area, CA.                                          Determination Clean
                                                    Data Determination.
Phoenix-Mesa Area, AZ *.......  Marginal.........  .....................
Pittsburgh-Beaver Valley Area,  Moderate.........  Clean Data
 PA.                                                Determination ****
San Diego Area, CA............  Moderate.........  **
Sheboygan County, WI..........  Moderate.........  Attainment Deadline
                                                    Determination *****
                                                    Clean Data
                                                    Determination.
St. Louis-St. Charles-          Moderate.........  Attainment Deadline
 Farmington, MO-IL *.                               Determination ******
                                                    Clean Data
                                                    Determination.
------------------------------------------------------------------------
* 2008 nonattainment area boundary differs from 1997 nonattainment area
  boundary.
** The EPA published a proposed approval action for the state submitted
  redesignation request under CAA section 107(d)(3)(E) for the 1997
  ozone NAAQS.
*** The EPA published a final approval action for the redesignation
  request submitted by the state of SC under CAA section 107(d)(3)(E)
  for the 1997 ozone NAAQS. The state of NC submitted a redesignation
  request under CAA Sec.   107(d)(3)(E) for the 1997 ozone NAAQS.
**** Former subpart 1 areas with Determinations of Attainment prior to
  subpart 2 classification on May 14, 2012 (77 FR 28424). The EPA is
  considering approving an Attainment Deadline Determination for the
  Marginal or Moderate 1997 ozone NAAQS attainment date.
****** The state of WI submitted a redesignation request under CAA
  section 107(d)(3)(E) for the 1997 ozone NAAQS.
******* The EPA published a final approval action for the redesignation
  request submitted by the state of IL under CAA section 107(d)(3)(E)
  for the 1997 ozone NAAQS. The state of MO submitted a redesignation
  request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS.


[[Page 34233]]


                                         Table 2--Areas Nonattainment for the 2008, 1997, and 1-Hour Ozone NAAQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         1-Hour ozone
    2008 Nonattainment area name        2008 8-Hour ozone         1-Hour ozone            attainment         1997 8-Hour ozone     1997 Ozone attainment
                                         classification          classification         determination          classification          determination
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baltimore Area, MD.................  Moderate..............  Severe 15............  Clean Data             Serious..............  ......................
                                                                                     Determination.
Dallas-Fort Worth Area, TX *.......  Moderate..............  Serious..............  Clean Data             Serious..............  ......................
                                                                                     Determination.
Dukes County, MA *.................  Marginal..............  Serious..............  Clean Data             Moderate.............  Clean Data
                                                                                     Determination,                                Determination,
                                                                                     Attainment Deadline                           Attainment Deadline
                                                                                     Determination.                                Determination.
Greater Connecticut Area, CT.......  Marginal..............  Serious..............  Clean Data             Moderate.............  Clean Data
                                                                                     Determination.                                Determination,
                                                                                                                                   Attainment Deadline
                                                                                                                                   Determination.
Houston-Galveston-Brazoria Area, TX  Marginal..............  Severe 17............  .....................  Severe 15............  ......................
Los Angeles and San Bernardino       Severe 15.............  Severe 17............  .....................  Severe...............  ......................
 Counties (W Mojave Desert) Area,
 CA.
Los Angeles-South Coast Air Basin    Extreme...............  Extreme..............  .....................  Extreme..............  ......................
 Area, CA.
Morongo Areas of Indian Country      Moderate..............  Extreme..............  .....................  Severe-17............  ......................
 (Morongo Band of Mission Indians)
 **.
New York-N. New Jersey-Long Island   Marginal..............  Severe 17............  Clean Data             Moderate.............  Clean Data
 Area, NY, NJ, CT.                                                                   Determination.                                Determination,
                                                                                                                                   Attainment Deadline
                                                                                                                                   Determination.
Pechanga Areas of Indian Country     Moderate..............  Extreme..............  .....................  Severe-17............  ......................
 (Pechanga Band of Luiseno Mission
 Indians of the Pechanga
 Reservation) **.
Philadelphia-Wilmington-Atlantic     Marginal..............  Severe 15............  Clean Data             Moderate.............  Clean Data
 City Area, PA, NJ, MD, DE *.                                                        Determination,                                Determination,
                                                                                     Attainment Deadline                           Attainment Deadline
                                                                                     Determination.                                Determination.
Riverside County (Coachella Valley)  Severe 15.............  Severe 17............  .....................  Severe 15............  ......................
 Area (1-hr Southeast Desert), CA.
Sacramento Metro Area, CA..........  Severe 15.............  Severe 15............  Clean Data             Severe 15............  ......................
                                                                                     Determination.
San Francisco Bay Area, CA.........  Marginal..............  Other................  Clean Data             Marginal.............  ......................
                                                                                     Determination,
                                                                                     Attainment Deadline
                                                                                     Determination.
San Joaquin Valley Area, CA........  Extreme...............  Extreme..............  .....................  Extreme..............  ......................
Seaford, DE ***....................  Marginal..............  Marginal.............  Clean Data             Moderate.............  Clean Data
                                                                                     Determination,                                Determination,
                                                                                     Attainment Deadline                           Attainment Deadline
                                                                                     Determination.                                Determination.
Ventura County (part) Area, CA.....  Serious...............  Severe 15............  Clean Data             Serious..............  Clean Data
                                                                                     Determination,                                Determination.
                                                                                     Attainment Deadline
                                                                                     Determination.
Washington Area, DC, MD, VA........  Marginal..............  Severe 15............  Clean Data             Moderate.............  Clean Data
                                                                                     Determination,                                Determination,
                                                                                     Attainment Deadline                           Attainment Deadline
                                                                                     Determination.                                Determination.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 2008 nonattainment area boundary differs from 1997 and 1-hr ozone nonattainment area boundary.
** Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries. Classification for the 1997
  ozone NAAQS was the classification based on the DV for a South Coast monitor near the tribal land.
*** Part of the Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE for 1997 ozone nonattainment area boundary, and part of the Sussex County, DE
  ozone nonattainment area boundary for the 1-hour ozone NAAQS.

Statutory Authority

    The statutory authority for this action is provided by sections 
109; 110; 172; 181 through 185B; 301(a)(1) and 501(2)(B) of the CAA, as 
amended (42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 42 U.S.C. 
7511-7511f; 42 U.S.C. 7601(a)(1); 42 U.S.C. 7661(2)(B)). This notice is 
also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).

[[Page 34234]]

List of Subjects

40 CFR Part 50

    Environmental protection, Air pollution control, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

40 CFR Part 51

    Air pollution control, Intergovernmental relations, Ozone, 
Particulate matter, Transportation, Volatile organic compounds.

40 CFR Part 70

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen oxides, Operating permits, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

40 CFR Part 71

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Nitrogen oxides, 
Operating permits, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: May 29, 2013.
Bob Perciasepe,
Acting Administrator.
    For the reasons stated in the preamble, Title 40, Chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 50--NATIONAL PRIMARY AND SECONDARY AXVYGH9

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

    Authority:  42 U.S.C. 7401, et seq.
0
2. Section 50.10 is amended by revising paragraph (c) to read as 
follows:


Sec.  50.10  National 8-hour primary and secondary ambient air quality 
standards for ozone.

* * * * *
    (c) Until date of publication of the final SIP Requirements Rule in 
the Federal Register, the 1997 ozone NAAQS set forth in this section 
will continue in effect, notwithstanding the promulgation of the 2008 
ozone NAAQS under Sec.  50.15. The 1997 ozone NAAQS set forth in this 
section will no longer apply to an area upon the date of publication of 
the final SIP Requirements Rule in the Federal Register. Area 
designations and classifications with respect to the 1997 ozone NAAQS 
are codified in CFR part 81.

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
3. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart X--Provisions for Implementation of 8-Hour Ozone National 
Ambient Air Quality Standard

0
4. Section 51.919 is added to read as follows:


Sec.  51.919  Applicability

    As of one year after the effective date of designations for the 
2008 ozone NAAQS, as set forth in 50.10(c), the provisions of Subpart 
AA shall replace the provisions of Subpart X, 51.900 to 51.918, which 
cease to apply.

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

0
5. Amend part 51, subpart AA by:
0
a. Revising Sec.  51.1100 by adding paragraphs (o) through (aa): and
0
b. Adding Sec. Sec.  51.1104 through 51.1119.
    The revisions and additions read as follows

Subpart AA--Provisions for Implementation of the 2008 Ozone National 
Ambient Air Quality Standards
Sec.
51.1100 Definitions.
51.1101 Applicability of part 51.
51.1102 Classification and nonattainment area planning provisions.
51.1103 Application of classification and attainment date provisions 
in CAA section 181 of subpart 2 to areas subject to Sec.  
51.1102(a).
51.1104 [Reserved].
51.1105 Transition from the 1997 and 1-hour NAAQS to the 2008 ozone 
NAAQS and anti-backsliding.
51.1106 Redesignation to nonattainment following initial 
designations.
51.1107 Applicability of CAA section 181(a)(5)(B) for an area that 
fails to attain the 2008 ozone NAAQS by its attainment date.
51.1108 Modeling and attainment demonstration requirements.
51.1109 [Reserved].
51.1110 Requirements for reasonable further progress (RFP).
51.1111 [Reserved].
51.1112 Requirements for reasonably available control technology 
(RACT) and reasonably available control measures (RACM).
51.1113 Section 182(f) NOX exemption provisions.
51.1114 New source review requirements.
51.1115 Emissions inventory requirements.
51.1116 Requirements for an Ozone Transport Region.
51.1117 Fee programs for Severe and Extreme nonattainment areas that 
fail to attain.
51.1118 Suspension of attainment SIP planning requirements in a 
nonattainment area upon a determination that the area has attained 
the ozone NAAQS.
51.1119 Applicability.
Appendixes A-K to Part 51 [Reserved]
Appendix L to Part 51--Example Regulations for Prevention of Air 
Pollution Emergency Episodes
Appendix M to Part 51--Recommended Test Methods for State 
Implementation Plans
Appendixes N-O to Part 51 [Reserved]
Appendix P to Part 51--Minimum Emission Monitoring Requirements
Appendixes Q-R to Part 51 [Reserved]
Appendix S to Part 51--Emission Offset Interpretative Ruling
Appendixes T-U to Part 51 [Reserved]
Appendix V to Part 51--Criteria for Determining the Completeness of 
Plan Submissions
Appendix W to Part 51--Guideline on Air Quality Models
Appendix X to Part 51--Examples of Economic Incentive Programs
Appendix Y to Part 51--Guidelines for BART Determinations Under the 
Regional Haze Rule

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


Sec.  51.1100  Definitions.

* * * * *
    (o) Applicable requirements for an area means the following 
requirements, to the extent such requirements apply to the area 
pursuant to its classification under CAA section 181(a)(1) for the 1-
hour NAAQS or the 1997 ozone NAAQS at the time of revocation of the 
1997 ozone NAAQS:
    (1) Reasonably available control technology (RACT).
    (2) Vehicle inspection and maintenance programs (I/M) under CAA 
section 182(b)(4) and 182(c)(3).
    (3) Major source applicability cut offs for purposes of RACT.
    (4) Reductions to achieve Reasonable Further Progress (RFP).
    (5) Clean fuels fleet program under CAA section 183(c)(4).
    (6) Clean fuels for boilers under CAA section 182(e)(3).
    (7) Transportation Control Measures (TCMs) during heavy traffic 
hours as specified under CAA section 182(e)(4).
    (8) Enhanced (ambient) monitoring under CAA section 182(c)(1).
    (9) Transportation controls under CAA section 182(c)(5).
    (10) Vehicle miles traveled provisions of CAA section 182(d)(1).

[[Page 34235]]

    (11) NOX requirements under CAA section 182(f).
    (12) Attainment demonstration.
    (13) Nonattainment contingency measures required under CAA sections 
172(c)(9) and 182(c)(9) for failure to attain the 1-hour or 1997 ozone 
NAAQS by the applicable attainment date or to make reasonable further 
progress toward attainment of the 1-hour or 1997 ozone NAAQS.
    (14) Nonattainment New Source Review (NSR) requirements.
    (15) Penalty fee program requirements for Severe and Extreme Areas 
under CAA section 185.
    (p) CAIR means the Clean Air Interstate Rule codified at 40 CFR 
51.123(a) through (ee).
    (q) NOX SIP Call means the rules codified at 40 CFR 
51.121 and 51.122.
    (r) Ozone transport region 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.
    (s) Reasonable further progress (RFP) means for the purposes of the 
2008 ozone NAAQS, the progress reductions required under CAA section 
172(c)(2) and CAA sections 182(b)(1) and (c)(2)(B) and (c)(2)(C).
    (t) Rate of progress (ROP) means for the purposes of the 1-hour 
ozone NAAQS, the progress reductions required under CAA section 
172(c)(2) and CAA sections 182(b)(1) and (c)(2)(B) and (c)(2)(C).
    (u) Revocation of the 1-hour NAAQS means the time at which the 1-
hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9(b).
    (v) Revocation of the 1997 ozone NAAQS means the time at which the 
1997 8-hour NAAQS no longer apply to an area pursuant to 40 CFR 
50.10(c).
    (w) Subpart 1 means subpart 1 of part D of title I of the CAA.
    (x) Subpart 2 means subpart 2 of part D of title I of the CAA.
    (y) [Reserved]
    (z) Consolidated submittal means a joint submittal of the emissions 
inventory, RACT, and attainment demonstration SIPs no later than 30 
months after the effective date of designation.
    (aa) An area ``designated nonattainment for the 1-hour ozone 
NAAQS'' means, for purposes of section 51.1105, an area that is subject 
to applicable 1-hour ozone NAAQS anti-backsliding requirements at the 
time of revocation of the 1997 ozone NAAQS.
* * * * *


Sec.  51.1104  [Reserved]


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

    (a) Requirements that continue to apply after revocation of the 
1997 ozone NAAQS.
    (1) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS 
nonattainment.
    The following requirements apply to an area designated 
nonattainment for the 2008 ozone NAAQS and also designated 
nonattainment for the 1997 ozone NAAQS, or nonattainment for both the 
1997 and 1-hour ozone NAAQS, at the time of revocation of the 1997 
ozone NAAQS:
    (i) The area remains subject to the obligation to adopt and 
implement the applicable requirements as defined in Sec.  51.1100(o), 
for any NAAQS for which it was designated nonattainment at the time of 
revocation, in accordance with its classification for that NAAQS at the 
time of that revocation; except as provided in paragraph (b) of this 
section.
    (2) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS 
maintenance.
    For an area designated nonattainment for the 2008 ozone NAAQS that 
was redesignated to attainment prior to the date of revocation 
(hereinafter a ``maintenance area'') for the 1997 ozone NAAQS at the 
time of revocation of that NAAQS, the approved SIP, including the 
maintenance plan, satisfies the applicable requirements defined in 
section 51.1100(o) for the revoked NAAQS. These applicable requirements 
shall be implemented in accordance with the measures included in the 
area's SIP, including the maintenance plan. Any applicable requirements 
that were shifted to contingency measures prior to revocation of the 
1997 ozone NAAQS may remain in that form.
    (3) 2008 ozone NAAQS attainment and 1997 ozone NAAQS nonattainment.
    (i) Obligations in an approved SIP.
    An area that is designated attainment for the 2008 ozone NAAQS, and 
designated nonattainment for the 1997 ozone NAAQS or for both the 1997 
and the 1-hour ozone NAAQS is no longer subject to nonattainment NSR as 
of revocation of the 1997 ozone NAAQS: the state may at any time 
request that the nonattainment NSR provisions applicable to the area be 
removed from the SIP as of that date. The state may also request, 
consistent with CAA section 110(l) and 193, that SIP measures adopted 
to satisfy other applicable requirements of Sec.  51.1100(o) be shifted 
to maintenance contingency measures.
    [OPTION 1] (ii) Termination of previous obligations for areas 
initially designated attainment for the 2008 ozone NAAQS.
    For areas initially designated attainment for the 2008 ozone NAAQS, 
and designated nonattainment for the 1997 or for both the 1997 and 1-
hour ozone NAAQS at the time of revocation of the 1997 ozone NAAQS, an 
area's approved PSD SIP shall satisfy the state's obligations with 
respect to the area's maintenance of the 2008 ozone NAAQS pursuant to 
CAA section 110(a)(1).
    [OPTION 2] (ii) Maintenance showing for the 2008 ozone NAAQS.
    For areas initially designated attainment for the 2008 ozone NAAQS, 
and designated nonattainment for the 1997 or for both the 1997 and 1-
hour ozone NAAQS at the time of revocation of the 1997 ozone NAAQS, the 
state shall provide a showing of maintenance for the 2008 ozone NAAQS, 
which shall be due no later than three years after the effective date 
of designations for the 2008 ozone NAAQS. This maintenance showing 
shall demonstrate that the area can continue to maintain the 2008 ozone 
NAAQS for 10 years following the designations for that NAAQS.
    (4) 2008 ozone NAAQS attainment and 1997 ozone NAAQS maintenance.
    (i) Obligations in an approved SIP.
    An area that is designated attainment of the 2008 ozone NAAQS and 
which has been redesignated to attainment for the 1997 ozone NAAQS with 
an approved section 175A maintenance plan, satisfies the applicable 
requirements set forth in section 51.1100(o) through implementation of 
the provisions of its SIP and maintenance plan. After revocation of the 
1997 ozone NAAQS, and to the extent consistent with sections 110(l) and 
193, the state may request that obligations under the applicable 
requirements of section 51.1100(o) be shifted to its list of 
maintenance plan contingency measures.
    (ii) No additional obligation for the 2008 ozone NAAQS.
    For an area that is initially designated attainment for the 2008 
ozone NAAQS and which has been redesignated to attainment for the 1997 
ozone NAAQS with an approved section 175A maintenance plan, the area's 
approved section 175A plan shall satisfy the state's obligations under 
CAA section 110(a)(1) with respect to maintenance of the 2008 ozone 
NAAQS.
    (b) For how long does an area designated nonattainment for the 2008 
ozone NAAQS remain subject to the applicable requirements as provided 
under paragraph (a)?

[[Page 34236]]

    (1) Redesignation for 2008 ozone NAAQS or approval of a 
redesignation substitute for a revoked ozone NAAQS.
    A state remains subject to the obligations for a revoked NAAQS 
under paragraphs (a)(1) and (a)(2) of this section until either (1) EPA 
approves the area's redesignation to attainment for the 2008 ozone 
NAAQS; or (2) EPA approves a showing for the area in a procedure that 
succeeds the redesignation process for a revoked NAAQS, and which 
serves the same purpose of ending anti-backsliding requirements as 
would redesignation, were the NAAQS in effect. Under this redesignation 
substitute procedure for a revoked NAAQS, and for this limited anti-
backsliding purpose, the area must show that it has attained that 
revoked NAAQS due to permanent and enforceable emission reductions, and 
it must demonstrate that it will maintain that NAAQS for ten years from 
the date of EPA's approval of this showing. If EPA, after notice-and-
comment rulemaking, approves this showing, it will have the effect set 
forth in paragraph (b)(2) below.
    (2) Effect of redesignation to attainment for the 2008 ozone NAAQS 
or approval of a redesignation substitute for a revoked ozone NAAQS. 
After redesignation to attainment for the 2008 ozone NAAQS, the state 
may request that provisions for nonattainment NSR be removed from the 
SIP, and that other anti-backsliding obligations be shifted to 
contingency measures provided that such action is consistent with CAA 
sections 110(l) and 193. After approval of a redesignation substitute 
for a revoked NAAQS, the state may request to remove from the SIP 
provisions for nonattainment NSR for that revoked NAAQS. The State may 
also request to shift other anti-backsliding obligations for the 
relevant revoked standard to contingency measures provided that such 
action is consistent with CAA sections 110(l) and 193.
    (c) Portions of an area designated nonattainment or attainment for 
the 2008 ozone NAAQS that remain subject to the obligations identified 
in paragraph (a) of this section.
    Only that portion of the designated nonattainment or attainment 
area for the 2008 ozone NAAQS that was required to adopt the applicable 
requirements in Sec.  51.1100(o) for purposes of the 1-hour or 1997 
ozone NAAQS is subject to the obligations identified in paragraph (a) 
of this section. 40 CFR part 81, subpart C identifies the areas 
designated nonattainment and associated area boundaries for the 1997 
ozone NAAQS. Areas that are designated nonattainment for the 1997 ozone 
NAAQS at the time of designation for the 2008 ozone NAAQS may be 
redesignated to attainment prior to the effective date of revocation of 
that ozone NAAQS.
    (d) Obligations under the 1997 ozone NAAQS that no longer apply 
after revocation of the 1997 ozone NAAQS.
    (1) Maintenance plans.
    Upon revocation of the 1997 ozone NAAQS, an area with an approved 
1997 ozone NAAQS maintenance plan under CAA section 175A may modify the 
maintenance plan: (a) To remove the obligation to submit a maintenance 
plan for the 1997 ozone NAAQS 8 years after approval of the initial 
1997 ozone NAAQS maintenance plan; and (b) to remove the obligation to 
implement contingency measures upon a violation of the 1997 ozone 
NAAQS. However, such requirements will remain enforceable as part of 
the approved SIP until such time as EPA approves a SIP revision 
removing such obligations.
    (2) Determinations of failure to attain the 1997 and/or 1-hour 
NAAQS.
    (i) After revocation of the 1997 ozone NAAQS, EPA is no longer 
obligated to determine pursuant to CAA section 181(b)(2) or section 
179(c) whether an area designated Marginal, Moderate, or Serious 
attained the 1997 ozone NAAQS by that area's attainment date for the 
1997 ozone NAAQS.
    (ii) Upon revocation of the 1997 ozone NAAQS for an area, under no 
circumstances is EPA obligated to reclassify an area to a higher 
classification for the 1997 ozone NAAQS based upon a determination that 
the area failed to attain the 1997 ozone NAAQS by the area's attainment 
date for the 1997 ozone NAAQS.
    (iii) For the revoked 1-hour and 1997 ozone NAAQS, EPA is required 
to determine whether a nonattainment area attained the 1-hour or 1997 
ozone NAAQS by the area's attainment date solely for the purpose of 
addressing an applicable requirement for nonattainment contingency 
measures or section 185 fee programs. In making such a determination, 
the EPA may consider and apply the provisions of former section 51.907 
in interpreting whether a 1-year extension of the attainment date is 
applicable under section 172(a)(2)(C) or 181(a)(5) of the CAA.
    (e) What is the continued applicability of the FIP and SIP 
requirements pertaining to CAA section 110(a)(2)(D)(i) and (ii) after 
revocation of the 1997 ozone NAAQS?
    All control requirements associated with a FIP or approved SIP in 
effect for an area at the time the 1997 ozone NAAQS is revoked, such as 
the NOX SIP Call or the CAIR shall continue to apply after 
revocation of the 1997 ozone NAAQS. Control requirements approved into 
the SIP pursuant to obligations arising from section 110(a)(2)(D)(i) 
and (ii), including 40 CFR 51.121, 51.122 and 51.123, may be modified 
by the state only if the requirements of Sec. Sec.  51.121, 51.122 and 
51.123, including statewide NOX emission budgets continue to 
be in effect. Any such modification must meet the requirements of CAA 
section 110(l).
    (f) New source review.
    An area designated nonattainment for the 2008 ozone NAAQS and 
designated nonattainment for the 1997 ozone NAAQS at the time of 
revocation of the 1997 ozone NAAQS remains subject to the obligation to 
adopt and implement the requirements for nonattainment NSR that apply 
or applied to the area pursuant to CAA sections 172(c)(5), 173 and 182 
based on the highest of: (i) The area's classification under CAA 
section 181(a)(1) for the 1-hour NAAQS as of the effective date of 
revocation of the 1-hour ozone NAAQS; (ii) the area's classification 
under 40 CFR 51.903 for the 1997 ozone NAAQS as of the date a permit is 
issued or as of the effective date of revocation of the 1997 ozone 
NAAQS, whichever is earlier; and (iii) the area's classification under 
40 CFR 51.1103 for the 2008 ozone NAAQS. Upon removal of nonattainment 
NSR obligations for a revoked NAAQS under section 51.1105(b)(ii), the 
state remains subject to the obligation to adopt and implement the 
requirements for nonattainment NSR that apply or applied to the area 
for the remaining applicable NAAQS consistent with this paragraph.


Sec.  51.1106  Redesignation to nonattainment following initial 
designations.

    For any area that is initially designated attainment for the 2008 
ozone NAAQS and that is subsequently redesignated to nonattainment for 
the 2008 ozone NAAQS, any absolute, fixed date applicable in connection 
with the requirements of this part other than an attainment date is 
extended by a period of time equal to the length of time between the 
effective date of the initial designation for the 2008 ozone NAAQS and 
the effective date of redesignation, except as otherwise provided in 
this subpart. The number of years such an area would have to attain 
would be based on the area's classification, consistent with Table 1 in 
section 51.1103.

[[Page 34237]]

Sec.  51.1107  Applicability of CAA section 181(a)(5)(B) for an area 
that fails to attain the 2008 ozone NAAQS by its attainment date.

    (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 8 
hour average in the attainment year is 0.075 ppm or less.
    (2) for the second 1-year extension, the area's 4th highest daily 8 
hour value, averaged over both the original attainment year and the 
first extension year, is 0.075 ppm or less.
    (b) For purposes of paragraph (a) of this section, the area's 4th 
highest daily 8 hour average for a year shall be from the monitor with 
the highest 4th highest daily 8 hour average for that year of all the 
monitors that represent that area.


Sec.  51.1108  Modeling and attainment demonstration requirements.

    (a) Attainment demonstration requirements for nonattainment areas 
classified as Moderate or higher pursuant to Sec.  51.1103.
    (1) An area classified as Moderate under Sec.  51.1103(a) shall be 
subject to the attainment demonstration requirement applicable for that 
classification under CAA section 182, except such demonstration is due 
no later than [option 1: 36 months] [option 2: The state's choice of 
either 36 months or 30 months for a consolidated submission] after the 
effective date of the area's designation for the 2008 ozone NAAQS.
    (2) An area classified as Serious or higher under Sec.  51.1103(a) 
shall be subject to the attainment demonstration requirement applicable 
for that classification under CAA section 182, except such 
demonstration is due no later than [option 1: 48 months] [option 2: The 
state's choice of either 48 months or 30 months for a consolidated 
submission] after the effective date of the area's designation for the 
2008 ozone NAAQS.
    (b) Attainment demonstration criteria.
    An attainment demonstration due pursuant to paragraph (a) of this 
section must meet the requirements of Sec.  51.112; the adequacy of an 
attainment demonstration shall be demonstrated by means of a 
photochemical grid model or any other analytical method determined by 
the Administrator, in the Administrator's discretion, to be at least as 
effective.
    (c) Implementation of control measures.
    For each nonattainment area, the state must provide for 
implementation of all control measures needed for attainment no later 
than the beginning of the attainment year ozone season.


Sec.  51.1109  [Reserved]


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

    (a) RFP for nonattainment areas classified pursuant to Sec.  
51.1103.
    The RFP requirements specified in CAA section 182 for that area's 
classification shall apply.
    (1) Submission deadline. For each area classified as Moderate or 
higher pursuant to Sec.  51.1103, the state shall submit a SIP revision 
no later than [option 1: 36 months] [option 2: The state's choice of 
either 36 months or 30 months for a consolidated submittal] after 
designation as nonattainment for the 2008 ozone NAAQS that provides for 
RFP as described in paragraphs (a)(2)-(4) of this section.
    (2) RFP requirements for areas classified as Moderate or higher 
with an approved 1-hour or 1997 ozone NAAQS 15 percent VOC RFP plan or 
a Determination of Attainment for those NAAQS.
    An area classified as Moderate or higher that has the same 
boundaries as an area, or is entirely composed of several areas or 
portions of areas, for which EPA fully approved a 15 percent plan for 
the 1-hour or 1997 ozone NAAQS or which has been determined to be 
attaining those NAAQS is considered to have met the requirements of CAA 
section 182(b)(1) for the 2008 ozone NAAQS and instead:
    (i) If classified as Moderate or higher, the area is subject to the 
RFP requirements under CAA section 172(c)(2) and shall submit a SIP 
revision that:
    (A) Provides for a 15 percent emission reduction from the baseline 
year within 6 years after the baseline year;
    (B) provides for an additional 3 percent per year reduction from 
the end of the first 6 years up to the beginning of the attainment year 
if a baseline year earlier than 2011 is used; and
    (C) relies on either NOX or VOC emissions reductions (or 
a combination) to meet the requirements of (a)(2)(i)(A) and (B). Use of 
NOX emissions reductions must meet the criteria in CAA 
section 182(c)(2)(C).
    (ii) If classified as Serious or higher, the area is also subject 
to RFP under CAA section 182(c)(2)(B) and shall submit an RFP SIP no 
later than [option 1: 48 months] [option 2: The state's choice of 
either 48 months or 30 months for a consolidated submission] providing 
for an average of 3 percent per year of reduction for:
    (A) All remaining 3-year periods after the first 6-year period 
until the area's attainment year; and that
    (B) relies on either NOX or VOC emissions reductions (or 
a combination) to meet the requirements of (a)(2)(ii)(A) and (B). Use 
of NOX emissions reductions must meet the criteria in CAA 
section 182(c)(2)(C).
    (3) RFP requirements for Moderate and above areas for which only a 
portion has an approved 15 percent VOC RFP plan for the 1-hour or 1997 
ozone NAAQS.
    An area classified as Moderate or higher that contains one or more 
areas, or portions of areas, for which EPA fully approved a 15 percent 
plan for the 1-hour or 1997 ozone NAAQS as well as areas for which EPA 
has not fully approved a 15 percent plan for either the 1-hour or 1997 
ozone NAAQS shall meet the requirements of either paragraph (a)(3)(i) 
or (ii) below.
    (i) The state shall not distinguish between the portion of the area 
that previously met the 15 percent VOC reduction requirement and the 
portion of the area that did not, and shall meet the requirements of 
(a)(4) of this section for the entire nonattainment area.
    (ii) The state shall treat the area as two parts, each with a 
separate RFP target as follows:
    (A) For the portion of the area without an approved 15 percent VOC 
RFP plan for the 1-hour or 1997 ozone NAAQS, the state shall submit a 
SIP revision as required under paragraph (a)(4) of this section. 
Emissions reductions to meet this requirement may come from anywhere 
within the 2008 ozone NAAQS nonattainment area.
    (B) For the portion of the area with an approved 15 percent VOC 
plan for the 1-hour or 1997 ozone NAAQS, the state shall submit a SIP 
as required under paragraph (a)(2) of this section.
    (4) RFP Requirements for areas without an approved 1-hour or 1997 
ozone NAAQS 15 percent VOC RFP plan and without a determination of 
attainment that suspends the requirements for those NAAQS.
    (i) For each area classified as Moderate or higher, the state shall 
submit a SIP revision consistent with CAA section 182(b)(1). The 6-year 
period referenced in CAA section 182(b)(1) shall begin January 1 of the 
year following the year used for the baseline emissions inventory.
    (ii) For Moderate areas, the plan must provide for an additional 3 
percent per year reduction from the end of the first 6 years up to the 
beginning of the attainment year if a baseline year earlier than 2011 
is used.

[[Page 34238]]

    (iii) For each area classified as Serious or higher, the state 
shall submit a SIP revision consistent with CAA section 182(c)(2)(B). 
The final increment of progress must be achieved no later than the 
attainment date for the area.
    (5) Creditability of emission control measures for RFP plans.
    Except as specifically provided in CAA section 182(b)(1)(C) and 
(D), section 182(c)(2)(B), and 51.1110(e) below, 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.
    (a) Baseline emissions inventory for RFP plans.
    For the RFP plans required under this section, at the time of 
designation for the 2008 ozone NAAQS the baseline emissions inventory 
shall be the emissions inventory for the most recent calendar year for 
which a complete triennial inventory is required to be submitted to EPA 
under the provisions of subpart A of this part. States may use an 
alternative baseline emissions inventory provided the state 
demonstrates why it is appropriate to use the alternative baseline 
year. All states associated with a multi-state nonattainment area must 
consult and agree on a single alternative baseline year.
    (b) NOX Substitution.
    [Alternative 1 for the final rule] For areas classified as Moderate 
or higher that are subject to the requirements of CAA section 
182(b)(1), the state must submit an RFP plan for the area that reduces 
VOC by 15 percent.
    [Alternative 2 for the final rule] For areas classified as Moderate 
or higher that are subject to the requirements of CAA section 
182(b)(1), the state may submit an RFP plan for the area that 
substitutes NOX reductions for VOC, consistent with section 
182(c)(2)(C), provided that the state can demonstrate that the area 
achieved a 15 percent reduction in VOC emissions in the 6-year period 
from a baseline emission year of 1990.
    [Alternative 3 for the final rule] For areas in the OTR that are 
subject to the requirements of CAA section 182(b)(1) for the first 
time, the state may submit an RFP plan for an area that substitutes 
NOX reductions for VOC, consistent with CAA section 
182(c)(2)(C), provided that the state can demonstrate that the area 
achieved a 15 percent reduction in VOC emissions in the 6-year period 
from a baseline emission year of 1990.
    (c) Creditability of out-of-area emissions reductions. For each 
area classified as Moderate or higher pursuant to Sec.  51.1103, in 
addition to the restrictions on the credibility of emission control 
measures listed in 51.1110(a)(5), creditable emission reductions for 
percentage reduction RFP also must be obtained from sources within the 
nonattainment area.
    (d) Calculation of non-creditable emissions reductions.
    [Alternative 1 for the final rule] 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 I/M programs.
    [Alternative 2 for the final rule] The non-creditable emissions 
reductions for RFP targets must be calculated using the methodology in 
Appendix C of the preamble to the 2008 SIP Requirements Rule.


Sec.  51.1111  [Reserved]


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

    (a) RACT requirement for areas classified pursuant to Sec.  
51.1103.
    (1) For each primary standard nonattainment area classified 
Moderate or higher, the state shall submit a SIP revision that meets 
the NOX and VOC RACT requirements in CAA sections 182(b)(2) 
and 182(f).
    (2) The state shall submit the RACT SIP for each area no later than 
[option 1: 24 months] [option 2: State's choice of either 24 months or 
30 months for a consolidated submittal] after the effective date of 
designation for the 2008 ozone NAAQS.
    (3) The state shall provide for implementation of RACT as 
expeditiously as practicable but no later than January 1 of the fifth 
year after the effective date of designation for the 2008 ozone NAAQS.
    (b) Determination of major stationary sources for applicability of 
RACT provisions.
    VOCs and NOX are to be considered separately for 
purposes of determining whether a source is a major stationary source 
as defined in CAA section 302.
    (c) Reasonably Available Control Measures (RACM) requirement for 
areas designated nonattainment for the 2008 ozone NAAQS.
    For each nonattainment area required to submit an attainment 
demonstration under Sec.  51.1108(a) and (b), the state shall submit 
with the attainment demonstration a SIP revision demonstrating that it 
has adopted all RACM necessary to demonstrate attainment as 
expeditiously as practicable and to meet any RFP requirements.


Sec.  51.1113  Section 182(f) NOX exemption provisions.

    (a) A person or a state may petition the Administrator for an 
exemption from NOX obligations under section 182(f) for any 
area designated nonattainment for the 2008 ozone NAAQS and for any area 
in a section 184 ozone transport region.
    (b) The petition must contain adequate documentation that the 
criteria in section 182(f) are met.
    (c) A section 182(f) NOX exemption granted for the 1-
hour or 1997 ozone NAAQS does not relieve the area from any 
NOX obligations under section 182(f) for the 2008 ozone 
standard.


Sec.  51.1114  New source review requirements.

    The requirements for NSR for the ozone NAAQS are located in Sec.  
51.165 of this part.


Sec.  51.1115  Emissions inventory requirements.

    For each nonattainment area classified in accordance with Sec.  
51.1103, the emissions inventory requirements in CAA sections 182(a)(1) 
and 182(a)(3) shall apply, and such SIP shall be due no later [option 
1: 24 months] [option 2: 24 months or state's choice of 30 months for a 
consolidated submittal] after designation. For purposes of defining the 
data elements for the emissions inventories for these areas, the ozone-
relevant data element requirements under 40 CFR part 51 subpart A shall 
apply.


Sec.  51.1116  Requirements for an Ozone Transport Region.

    (a) In general.
    CAA sections 176A and 184 apply for purposes of the 2008 ozone 
NAAQS.
    (b) RACT requirements for certain portions of an Ozone Transport 
Region.
    (1) The state shall submit a SIP revision that meets the RACT 
requirements of CAA section 184(b)(2) for each area that is located in 
an ozone transport region.
    (2) The state is required to submit the RACT revision no later than 
[option 1:

[[Page 34239]]

24 months] [option 2: State's choice of 24 months or 30 months for a 
consolidated submittal] after designation for the 2008 ozone NAAQS and 
shall provide for implementation of RACT as expeditiously as 
practicable but no later than January 1 of the fifth year after 
designation for the 2008 ozone NAAQS.


Sec.  51.1117  Fee programs for Severe and Extreme nonattainment areas 
that fail to attain.

    For each area classified as Severe or Extreme for the 2008 ozone 
NAAQS, the state shall submit a SIP revision within 10 years of the 
effective date of designation that meets the requirements of CAA 
section 185.


Sec.  51.1118  Suspension of attainment SIP planning requirements in a 
nonattainment area upon a determination that the area has attained the 
ozone NAAQS.

    Upon a determination by EPA that an area designated nonattainment 
for the 2008 ozone NAAQS, or for any prior ozone NAAQS, has attained 
the standard, the requirements for such area to submit attainment 
demonstrations and associated reasonably available control measures, 
reasonable further progress plans, contingency measures for failure to 
attain or make reasonable progress and other planning SIPs related to 
attainment of the 2008 ozone NAAQS, or for any prior NAAQS for which 
the determination has been made, shall be suspended until such time as: 
the area is redesignated to attainment for that NAAQS, at which time 
the requirements no longer apply; or EPA determines that the area has 
violated that NAAQS, at which time the area is again required to submit 
such plans.


Sec.  51.1119  Applicability.

    As of revocation of the 1997 ozone NAAQS, as set forth in 50.10(c), 
the provisions of Subpart AA shall replace the provisions of Subpart X, 
51.900 to 51.918, which cease to apply. See Subpart X section 51.919.
0
6. Appendix S to Part 51 is amended by adding section VII. to read as 
follows:

Appendix S to Part 51--Emission Offset Interpretative Ruling

* * * * *

VII. Anti-Backsliding Measures

    Nonattainment area new source review obligations for prior ozone 
NAAQS.
    (a) Except as provided in paragraph (b) of this section, an area 
designated nonattainment for the 2008 ozone NAAQS and designated 
nonattainment for the 1997 ozone NAAQS at the time of revocation of 
the 1997 ozone NAAQS remains subject to the obligation to adopt and 
implement the requirements for nonattainment new source review that 
apply or applied to the area pursuant to CAA sections 172(c)(5), 173 
and 182 based on the highest of: (i) The area's classification under 
CAA section 181(a)(1) for the 1-hour ozone NAAQS as of the effective 
date of revocation of that NAAQS; (ii) the area's classification 
under 40 CFR Sec.  51.903 for the 1997 ozone NAAQS as of the date a 
permit is issued or as of the effective date of revocation of that 
NAAQS, whichever is earlier; and (iii) the area's classification 
under 40 CFR Sec.  51.1103 for the 2008 ozone NAAQS.
    (b)(i) An area remains subject to the obligations for a revoked 
NAAQS under paragraph (a) until either (1) the area is redesignated 
to attainment for the 2008 ozone NAAQS; or (2) EPA, after notice-
and-comment rulemaking, approves a showing for the area in a 
procedure that succeeds the redesignation process for a revoked 
NAAQS, and which serves the same purpose of ending anti-backsliding 
requirements as would redesignation, were the NAAQS in effect. Under 
this redesignation substitute procedure for a revoked NAAQS, and for 
this limited anti-backsliding purpose, the area must show that it 
has attained that revoked NAAQS due to permanent and enforceable 
emission reductions, and it must demonstrate that it will maintain 
that NAAQS for ten years from the date of EPA's approval of this 
showing.
    (ii) Effect of redesignation to attainment for 2008 ozone NAAQS 
or approval of a redesignation substitute for a revoked ozone NAAQS. 
After redesignation to attainment for the 2008 ozone NAAQS, the 
state may request that provisions for nonattainment NSR be removed 
from the SIP. After EPA approval of a redesignation substitute for a 
revoked NAAQS, the state may request that provisions for 
nonattainment NSR for the revoked NAAQS be removed from the SIP. 
Upon removal of nonattainment new source review obligations for a 
revoked NAAQS, the state remains subject to the obligation to adopt 
and implement the requirements for nonattainment new source review 
that apply or applied to the area for the remaining applicable NAAQS 
consistent with paragraph (a).

[FR Doc. 2013-13233 Filed 6-5-13; 8:45 am]
BILLING CODE 6560-50-P