[Federal Register Volume 81, Number 222 (Thursday, November 17, 2016)]
[Proposed Rules]
[Pages 81276-81317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27333]
[[Page 81275]]
Vol. 81
Thursday,
No. 222
November 17, 2016
Part III
Environmental Protection Agency
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40 CFR Parts 50 and 51
Implementation of the 2015 National Ambient Air Quality Standards for
Ozone: Nonattainment Area Classifications and State Implementation Plan
Requirements; Proposed Rule
Federal Register / Vol. 81 , No. 222 / Thursday, November 17, 2016 /
Proposed Rules
[[Page 81276]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 50 and 51
[EPA-HQ-OAR-2016-0202; FRL-9950-24-OAR]
RIN 2060-AS82
Implementation of the 2015 National Ambient Air Quality Standards
for Ozone: Nonattainment Area Classifications and State Implementation
Plan Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
nonattainment area classification thresholds and implementation
requirements for the strengthened 2015 ozone national ambient air
quality standards (NAAQS) (2015 ozone NAAQS) that were promulgated on
October 1, 2015. This proposal is largely an update to the implementing
regulations previously promulgated for the 2008 ozone NAAQS, and we
propose to retain without significant revision the majority of those
provisions to implement the 2015 ozone NAAQS. This proposal addresses
the timing of attainment dates for each nonattainment area
classification and a range of nonattainment area state implementation
plan (SIP) requirements for the 2015 ozone NAAQS. The proposed SIP
requirements pertain to attainment demonstrations, reasonable further
progress (RFP) and associated milestone demonstrations, reasonably
available control technology (RACT), reasonably available control
measures (RACM), major nonattainment new source review (NNSR), emission
inventories, the timing of required SIP submissions, and compliance
with emission control measures in the SIP. Other issues addressed in
this proposed rule are the revocation of the 2008 ozone NAAQS, anti-
backsliding requirements that would apply when the 2008 ozone NAAQS are
revoked, and reconsideration of the ozone NAAQS interprecursor trading
(IPT) provisions (in response to a petition for reconsideration).
DATES: Comments. Written comments must be received on or before January
17, 2017. Public Hearing. If anyone contacts us requesting a hearing on
or before December 2, 2016, we will hold a hearing. Additional
information about the hearing, if requested, will be published in a
subsequent Federal Register document. Information Collection Request.
Under the Paperwork Reduction Act (PRA), comments on the information
collection provisions are best assured of having full effect if the
Office of Management and Budget (OMB) receives a copy of your comments
on or before December 19, 2016.
ADDRESSES: Comments: Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2016-0202, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, Cloud or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/comments.html.
FOR FURTHER INFORMATION CONTACT: For further general information on
this proposed rule, contact Mr. Robert Lingard, Office of Air Quality
Planning and Standards (OAQPS), U.S. EPA, at (919) 541-5272 or
[email protected]; or Mr. Lynn Dail, OAQPS, U.S. EPA, at (919)
541-2363 or [email protected]. For information on the Information
Collection Request (ICR), contact Mr. Butch Stackhouse, OAQPS, U.S.
EPA, at (919) 541-5208 or [email protected]. For information on
the public hearing, contact Ms. Pamela Long, OAQPS, U.S. EPA, at (919)
541-0641 or [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Preamble Glossary of Terms and Acronyms
The following are abbreviations of terms used in the preamble.
ACT Alternative Control Techniques
AERR Air Emissions Reporting Requirements
AVERT AVoided Emissions geneRation Tool
BSMP Basic Smoke Management Practices
CAA Clean Air Act
CAIR Clean Air Interstate Rule
CBI Confidential Business Information
CFR Code of Federal Regulations
CO Carbon Monoxide
CSAPR Cross-State Air Pollution Rule
CTG Control Techniques Guidelines
DOI Department of the Interior
DOT Department of Transportation
DV Design Value
EE/RE Energy Efficiency and Renewable Energy
EPA Environmental Protection Agency
FIP Federal Implementation Plan
FLM Federal Land Managers
FR Federal Register
ICR Information Collection Request
I/M Inspection and Maintenance
IPT Interprecursor Trade or Interprecursor Trading
MCD Milestone Compliance Demonstration
MPO Metropolitan Planning Organization
NAAQS National Ambient Air Quality Standards
NNSR Nonattainment New Source Review
NOX Nitrogen Oxides
O3 Ozone
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
OTR Ozone Transport Region
PAMS Photochemical Assessment Monitoring Station
PM2.5 Fine Particulate Matter
ppm Parts per Million
PRA Paperwork Reduction Act
PSD Prevention of Significant Deterioration
PTE Potential to Emit
PUC Public Utility Commission
RACM Reasonably Available Control Measures
RACT Reasonably Available Control Technology
RFP Reasonable Further Progress
ROP Rate of Progress
RPS Renewable Portfolio Standard
SIP State Implementation Plan
SO2 Sulfur Dioxide
tpy Tons per Year
TAR Tribal Authority Rule
TAS Treatment as a State
TGD Technical Guidance Document
TIP Tribal Implementation Plan
TIP Transportation Improvement Program
TSD Technical Support Document
USB U.S. Background
U.S.C. United States Code
USDA U.S. Department of Agriculture
VOC Volatile Organic Compounds
B. Does this action apply to me?
Entities potentially affected directly by this proposed rule
include state, local and tribal governments and air pollution control
agencies (``air agencies'') responsible for attainment and maintenance
of the NAAQS. Entities potentially affected indirectly by this proposed
rule as regulated sources include owners and operators of sources of
emissions of volatile organic compounds (VOCs) and nitrogen oxides
[[Page 81277]]
(NOX) that contribute to ground-level ozone formation.
C. What should I consider as I prepare my comments for the EPA?
When submitting comments, remember to:
Identify the rulemaking docket by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions. The proposed rule 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 to support your comment.
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
wherever possible, 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.
D. How can I find information about a possible hearing?
To request a public hearing or information pertaining to a public
hearing regarding this document, contact Ms. Pamela Long, OAQPS, U.S.
EPA, at (919) 541-0641 or [email protected].
E. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at http://www.epa.gov/ozone-pollution.
F. How is this notice of proposed rulemaking organized?
The information and proposals presented in this notice are
organized as follows:
I. General Information
A. Preamble Glossary of Terms and Acronyms
B. Does this action apply to me?
C. What should I consider as I prepare my comments for the EPA?
D. How can I find information about a possible hearing?
E. Where can I get a copy of this document and other related
information?
F. How is this notice of proposed rulemaking organized?
II. Summary of Proposed Rule and Background
III. Provisions of the 2008 Ozone NAAQS Implementing Regulations To
Be Retained Without Significant Revision
A. Submitting Nonattainment Area and OTR SIP Elements Due Under
CAA Sections 182 and 184 for the 2015 Ozone NAAQS
B. Applicability of Existing NAAQS Implementation Provisions in
40 CFR Part 51
C. General Classification and Nonattainment Area Planning
Provisions
D. Redesignation to Nonattainment Following Initial Designations
E. Determining Eligibility for 1-Year Attainment Date Extensions
for the 2015 Ozone NAAQS Under CAA Section 181(a)(5)
F. Modeling and Attainment Demonstration Requirements
G. Requirements for RFP
H. Requirements for RACT and RACM
I. CAA Section 182(f) NOX Exemption Provisions
J. General Nonattainment NSR Requirements
K. Ambient Monitoring Requirements
L. Requirements for an OTR
M. Fee Programs for Severe and Extreme Nonattainment Areas That
Fail To Attain
N. Applicability
IV. Provisions of the 2008 Ozone NAAQS Implementing Regulations To
Be Retained With Specific Revisions
A. Application of Classification and Attainment Date Provisions
in CAA Section 181 to Areas Subject to Subpart 2 of Part D of Title
I of the CAA
B. Transition From the 2008 Ozone NAAQS to the 2015 Ozone NAAQS
and Anti-Backsliding Requirements
C. Requirements for RFP: Milestone Compliance Demonstrations
(MCD)
D. Requirements for RACT: Deadlines for Submittal and
Implementation of RACT SIP Revisions
E. Requirements for RACM: Consideration of Sources of Intrastate
Transport of Pollution
F. Nonattainment NSR Offset Requirement: Interprecursor Trading
for Ozone Offsets
G. Emissions Inventory and Emissions Statement Requirements
V. Additional Considerations
A. Managing Emissions From Wildfire and Wildland Prescribed Fire
B. Transportation Conformity and General Conformity
C. Requirements for Contingency Measures in the Event of Failure
To Meet a Milestone or To Attain
D. International Transport and Background Ozone
E. Additional Policies and Programs for Achieving Emissions
Reductions
F. Additional Requirements Related to Enforcement and Compliance
G. Applicability of Proposed Rule to Tribes
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
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 (NTTA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
VIII. Statutory Authority
II. Summary of Proposed Rule and Background
On October 1, 2015,\1\ the EPA announced that it was strengthening
the primary and secondary NAAQS for ozone to a level of 0.070 parts per
million (ppm).\2\ Since the 2015 primary and secondary NAAQS for ozone
are identical, for convenience, we refer to both as ``the 2015 ozone
NAAQS'' or ``the 2015 ozone standards.'' The 2015 ozone NAAQS retains
the same general form and averaging time as the 0.075 ppm NAAQS set in
2008, but is set at a more protective level.
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\1\ See 80 FR 65292.
\2\ Annual fourth highest daily maximum 8-hour average
concentration, averaged over 3 years. For a detailed explanation of
the calculation of the 3-year 8-hour average, see 40 CFR part 50,
Appendix P.
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The revisions to the ozone NAAQS trigger a process under which
states recommend area designations (i.e., as nonattainment, attainment,
or unclassifiable) to the EPA. The EPA then evaluates air quality data
and other factors prior to making its proposed and final determinations
regarding area designations. To aid the states developing their
recommendations, the EPA issued area designations guidance on February
25, 2016.\3\ Areas designated as nonattainment for the revised ozone
NAAQS will be classified at the time of designation. With this action,
the EPA is proposing and seeking comment on air quality thresholds and
attainment dates for each nonattainment area classification, which it
will finalize upon or before promulgating final area
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designations and classifications for the 2015 ozone NAAQS.
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\3\ The EPA's guidance on the area designations for the 2015
ozone NAAQS is available at https://www.epa.gov/ozone-designations/epa-guidance-area-designations-2015-ozone-naaqs.
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The Clean Air Act (CAA or Act) does not require that the EPA
promulgate new or revised implementing regulations or guidance every
time that a NAAQS is revised. State, local and tribal air agencies
(hereinafter, referred to simply as air agencies) are required to
submit SIPs as provided in the CAA and in EPA regulations. Where the
nature of revisions to a NAAQS indicate that additional regulations or
guidance (or revisions to existing regulations or guidance) may be
helpful, the EPA endeavors to provide such regulations or guidance to
facilitate the designations process and preparation of timely SIP
submittals. It is important to note, however, that the existing EPA
regulations in 40 CFR part 51 applicable to SIPs generally and to
particular pollutants (e.g., ozone and its precursors) continue to
apply even without such updates. This rule is proposing revisions to
existing regulations and guidance as appropriate to aid in the
implementation of the 2015 ozone NAAQS.
The EPA believes that the overall framework and policy approach of
the implementation provisions associated with the 2008 ozone NAAQS
provide an effective and appropriate template for the general approach
air agencies should follow in planning for attainment of the revised
ozone standards. However, to assist with the implementation of the
revised ozone standards, the EPA is proposing this additional ozone
NAAQS implementation rule.
We are proposing multiple actions in this rule pertaining to
nonattainment area classification thresholds and associated attainment
dates, as well as submittal deadlines and specific CAA requirements for
the content of nonattainment area and Ozone Transport Region (OTR) SIPs
for the 2015 ozone NAAQS. As a general matter, this proposed rule
follows the same basic principles and approach that the EPA applied to
interpret the CAA's part D, subpart 2 ozone nonattainment area
requirements in developing the classification and implementation rules
for the 2008 ozone NAAQS.\4\ Additionally, we are proposing and seeking
comment on two alternative approaches for revoking the 2008 ozone NAAQS
and, where applicable, establishing anti-backsliding requirements for
areas that are designated nonattainment at the time the 2008 ozone
NAAQS is revoked.
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\4\ See the Classifications Rule (77 FR 30160; May 21, 2012) and
SIP Requirements Rule (80 FR 12264; March 6, 2015) for the 2008
ozone NAAQS.
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Regarding the format of this preamble, we organize our discussion
of implementation requirements for the 2015 ozone NAAQS around the
implementing regulations for the 2008 ozone NAAQS. As stated
previously, we propose to retain without significant revision the
majority of those existing regulations to implement the 2015 ozone
NAAQS, as discussed in Section III of this preamble. We discuss the
existing implementing regulations that we propose to retain with
specific revisions for implementing the 2015 ozone NAAQS in Section IV
of this preamble. For topics where we do not propose any action, we
provide guidance on that topic in the preamble. Section V of this
preamble addresses several requirements and policies not covered by
this proposed rulemaking (with one exception), but for which the EPA is
soliciting public comment (e.g., dealing with emissions from wildfires
and wildland prescribed fires, and international transport and
background ozone).
III. Provisions of the 2008 Ozone NAAQS Implementing Regulations To Be
Retained Without Significant Revision
For purposes of the 2015 ozone NAAQS, we are proposing to retain
the majority of existing implementation provisions for the 2008 ozone
NAAQS without significant revision. The existing classification and SIP
requirement provisions for the 2008 standards are codified at subpart
AA of 40 CFR part 51, and the corresponding provisions for the 2015
standards would be codified at the new subpart CC of part 51. As
discussed earlier, the EPA believes that the implementing regulations
for the 2008 standards generally provide an appropriate approach to
follow in attainment planning for the 2015 standards, and we welcome
comment on the following proposed provisions.
A. Submitting Nonattainment Area and OTR SIP Elements Due Under CAA
Sections 182 and 184 for the 2015 Ozone NAAQS
1. Deadlines for Submitting Nonattainment Area and OTR SIP Elements
The EPA is proposing to retain the existing approach to calculating
deadlines for submitting nonattainment SIP elements. 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. For the 2008 ozone NAAQS, the EPA adopted the
approach that the SIP elements listed in the proposal are due based on
the timeframes provided in CAA section 182 as measured from the
effective date of designation, instead of the 1990 date. For reference,
the final 2008 Ozone NAAQS SIP Requirements Rule (2008 ozone SRR)
provides an extensive discussion of the EPA's current approach and
rationale for SIP element submittal deadlines (80 FR 12265; March 6,
2015). The EPA is proposing to retain the same approach for calculating
deadlines for submitting nonattainment area SIP elements under CAA
section 182 for the 2015 ozone NAAQS, based on the current approach and
rationale articulated in the final 2008 Ozone NAAQS SIP Requirements
Rule.
Accordingly, states with areas designated nonattainment have 2
years from the effective date of nonattainment designation to submit
SIP revisions addressing emission inventories (required by CAA section
182(a)(1)), RACT (CAA section 182(b)(2)) and emissions statement
regulations \5\ (CAA section 182(a)(3)(B)); 3 years to submit SIP
revisions addressing 15 percent rate of progress (ROP) plans (CAA
section 182(b)(1)) and Moderate area attainment demonstrations (CAA
section 182(b)(1)); and 4 years to submit SIP revisions addressing 3
percent per year \6\ RFP plans (CAA section 182(c)(2)) and attainment
demonstrations (CAA section 182(c)(2)) for Serious and higher areas,
where applicable. If an area is subject to vehicle inspection and
maintenance (I/M) program requirements based on its classification, the
SIP revision due date, codified in 40 CFR 51.372(b)(2), would be
aligned with the due date for the attainment demonstration SIP for the
area. The SIP revisions addressing CAA section 185 penalty fee programs
in areas initially classified Severe or Extreme would be due 10 years
from the effective date of designations. Finally, SIP submissions
addressing nonattainment NSR would be due 3 years \7\ from the
effective date of designations.
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\5\ See Section IV.G of this preamble for additional information
on emissions statements.
\6\ 3 percent per year RFP plans are typically submitted in 3-
year increments, thus, as 9 percent RFP plans that produce average
reductions of 3 percent per year.
\7\ See 70 FR 71612, 71672 and 71683 (November 29, 2005); and 80
FR 12264, 12266 and 12267, March 6, 2015.
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We note also that the EPA's implementing regulations for revised
ozone NAAQS have required OTR states
[[Page 81279]]
to submit RACT SIP revisions based on the timeframe provided in CAA
section 184 as measured from the effective date for designations made
pursuant to those revised NAAQS. This requirement was first codified in
40 CFR 51.916 for the 1997 ozone NAAQS, and later codified for the 2008
ozone NAAQS in 40 CFR 51.1116. Under those provisions, states in the
OTR are required to submit SIP revisions addressing the RACT
requirements of CAA section 184 no later than 2 years after the
effective date of designations for the revised ozone NAAQS. The EPA is
proposing to retain these same general requirements for the 2015 ozone
NAAQS (see Section III.L of this preamble).
2. Form and Content of Nonattainment and OTR SIP Element Submissions
Required Under a Revised NAAQS
The EPA is restating the existing requirement that states must
submit all nonattainment SIP elements applicable for an area's
classification upon revision of the NAAQS, and is providing the
following guidance on the form and content of such submissions. As
discussed in the preceding section, a SIP submission is due from air
agencies for every nonattainment area for each of the SIP elements
listed in this proposal, including (but not limited to) emissions
statement regulations, nonattainment NSR, and vehicle I/M programs,
upon revision of the NAAQS, and they are due based on the timeframes
provided in CAA section 182 as measured from the effective date of
designation.
The EPA interprets the CAA to require an air agency to provide a
SIP submission to meet each nonattainment area planning requirement for
the 2015 ozone NAAQS. Many air agencies may already have regulations to
address certain requirements in place due to nonattainment designations
for a prior ozone NAAQS. Air agencies should review any existing
regulation that was previously approved by the EPA to determine whether
it is sufficient to fulfill obligations triggered by any revised ozone
NAAQS. In cases where a previously-approved provision is modified for
any reason, or where no provision exists, air agencies must provide the
new or modified provision as a SIP submission. This would include new
or modified RACT provisions for states with nonattainment areas and
states in an OTR, which must be reviewed to ensure that emissions from
affected stationary sources are appropriately controlled. However,
where an air agency believes that an existing regulation is adequate to
meet the nonattainment requirements of CAA section 182 (or OTR RACT
requirements of CAA section 184) for a revised ozone NAAQS, that air
agency's SIP submission may provide a written statement of the
rationale for that determination in lieu of submitting new revised
regulations. For example, a state may have an emissions statement
regulation (per CAA section 182(a)(3)(B)) that has been previously
approved by the EPA for a prior ozone NAAQS that covers all of the
state's nonattainment areas and relevant classes and categories of
sources for the 2015 ozone NAAQS, and is likely to be sufficient for
purposes of the emissions statement requirement for the 2015 ozone
NAAQS. The EPA has taken action on similar written statements. See 80
FR 48036, 48040 (explaining that EPA is approving Georgia's
certification that the state's previously approved regulation meets the
requirements of CAA section 182(a)(3)(B) for the 2008 ozone standards).
Other previously-approved nonattainment SIP elements that may be
sufficient for purposes of an area that has been designated
nonattainment for a revised NAAQS might include (but are not
necessarily limited to): Nonattainment NSR; vehicle I/M programs; and
clean fuels requirement for boilers.
An air agency choosing to provide a written statement to meet the
submission requirement of the CAA must provide the statement to the EPA
as a SIP submission in accordance with CAA section 110 and 40 CFR
51.102, 103 and Appendix V. An air agency should identify the related
applicable requirements and how each is met for the revised ozone NAAQS
by the regulation previously approved for a prior ozone NAAQS. The
purpose of the statement is to demonstrate compliance with the
nonattainment plan requirements for the new NAAQS. These written
statements must be treated in the same manner as any SIP submission and
must be provided to the EPA in accordance with applicable SIP
submission requirements and deadlines.
B. Applicability of Existing NAAQS Implementation Provisions in 40 CFR
Part 51
The EPA is proposing to retain its existing general requirement
that establishes the applicability of 40 CFR part 51 to the current and
prior ozone NAAQS. The general applicability of 40 CFR part 51 to the
2008 ozone NAAQS is codified in 40 CFR 51.1101, and requires that the
provisions in subparts A through X of part 51 apply to areas to the
extent they are not inconsistent with the specific implementation
provisions for the 2008 standards (i.e., subpart AA of part 51).
Subparts A through X of part 51 \8\ include generally applicable
requirements for preparation, adoption, and submittal of implementation
plans, as well as specific implementation provisions for the 1997 8-
hour ozone NAAQS (codified in subpart X). The EPA is proposing that the
same requirements apply for purposes of the 2015 ozone NAAQS at 40 CFR
51.1301, except that the listing of potentially applicable subparts
would include the addition of subpart AA of part 51 (i.e., subparts A
through AA).
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\8\ Excluding subpart Z (Provisions for Implementation of
PM2.5 NAAQS) and subpart BB (Data Requirements for
Characterizing Air Quality for the Primary Sulfur Dioxide
(SO2) NAAQS).
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C. General Classification and Nonattainment Area Planning Provisions
The EPA is proposing to retain its existing general classification
and nonattainment area planning provisions, which are codified for the
2008 ozone NAAQS in 40 CFR 51.1102. These provisions require that
designated areas be classified in accordance with CAA section 181
(classifications and attainment dates), as interpreted in 40 CFR
51.1103(a), and that designated areas will be subject to the applicable
planning requirements of subpart 2 of part D of title I of the CAA
(additional provisions for ozone nonattainment areas). The EPA is
proposing to retain the same general requirements for the 2015 ozone
NAAQS, without revision, and codify them at 40 CFR 51.1302 and
51.1303(a).
D. Redesignation to Nonattainment Following Initial Designations
The EPA is proposing to retain its existing requirements for areas
initially designated attainment for the current ozone NAAQS and
subsequently redesignated to nonattainment for the same standards,
which are codified for the 2008 ozone NAAQS in 40 CFR 51.1106. These
provisions generally allow an extension of any absolute, fixed date for
SIP requirements under part 51--excluding attainment dates--equal to
the length of time between the effective date of the initial
designation for the NAAQS and the effective date of redesignation,
unless otherwise provided in the implementation provisions for those
standards. The maximum attainment date for a redesignated area would be
based on the area's classification (see Section IV.A of this preamble
for discussion of classification thresholds and attainment dates). The
EPA is proposing to retain the same requirements for the 2015 ozone
NAAQS, without revision.
[[Page 81280]]
E. Determining Eligibility for 1-Year Attainment Date Extensions for
the 2015 Ozone NAAQS Under CAA Section 181(a)(5)
The EPA is proposing to retain its existing eligibility criteria
for 1-year attainment date extensions under CAA section 181(a)(5),
which are codified for the 2008 ozone NAAQS in 40 CFR 51.1107. An area
that fails to attain a specific ozone NAAQS by its attainment date
would be eligible for the first 1-year extension if, for the attainment
year, the area's fourth highest daily maximum 8-hour average is at or
below the level of the standards. The area would be eligible for the
second 1-year extension if the area's fourth highest daily maximum 8-
hour value, averaged over both the original attainment year and the
first extension year, is at or below the level of the standards. For
the second 1-year extension, the area's fourth highest daily maximum 8-
hour average for each year (the attainment year and the first extension
year) must be determined using the monitor which, for that year, has
the fourth highest daily maximum 8-hour average of all the monitors
that represent that area (i.e., the area's fourth highest daily maximum
8-hour average for each year could be derived from a different monitor)
(see 80 FR 12292; March 6, 2015). The EPA is proposing to retain the
same general eligibility criteria for the 2015 ozone NAAQS, without
revision.
We are also restating in this preamble that, in addition to
demonstrating that an area meets these general eligibility criteria, an
air agency must demonstrate that it has complied with all requirements
and commitments pertaining to the area in the applicable SIP, per CAA
section 181(a)(5)(A). Given the state and federal partnership in
implementing the CAA, it is reasonable for the EPA to interpret CAA
section 181(a)(5)(A) as permitting the agency to rely upon the
certified statements of its state counterparts, and the EPA has long
interpreted the provision to be satisfied by such statements.\9\ In
practice, in conjunction with a request for an extension, a state air
agency's Executive Officer, or other senior individual with equivalent
responsibilities, signs and affirms that their state is complying with
their applicable federally-approved SIP.
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\9\ See memorandum signed by D. Kent Berry, Acting Director, Air
Quality Management Division, ``Procedures for Processing Bump Ups
and Extension Requests for Marginal Ozone Nonattainment Areas.''
U.S. EPA, February 3, 1994.
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F. Modeling and Attainment Demonstration Requirements
The EPA is proposing to retain its existing modeling and attainment
demonstration requirements, which are codified for the 2008 ozone NAAQS
in 40 CFR 51.1108, and to establish criteria and due dates for
attainment demonstrations and implementation of control measures. Due
dates for attainment demonstrations are established relative to the
effective date of area designations, and all control measures in the
attainment demonstration must be implemented no later than the
beginning of the attainment year ozone season, notwithstanding specific
RACT and/or RACM implementation deadline requirements. For reference,
the final 2008 Ozone NAAQS SIP Requirements Rule provides an extensive
discussion of attainment demonstration elements and related modeling
protocols (80 FR 12268; March 6, 2015). The EPA's current procedures
for modeling are well developed and described in the EPA's ``Draft
Modeling Guidance for Demonstrating Attainment of Air Quality Goals for
Ozone, PM2.5, and Regional Haze'' (December 2014).\10\ The
EPA is proposing to retain the same modeling and attainment
demonstration requirements for the 2015 ozone NAAQS, based on the
current approach articulated in the final 2008 Ozone NAAQS SIP
Requirements Rule.
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\10\ Modeling guidance, tools, and supporting documents for SIP
attainment demonstration are available at: http://www3.epa.gov/scram001/guidance_sip.htm.
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G. Requirements for RFP
The EPA is proposing to retain its existing RFP requirements and to
add new regulatory provisions codifying statutory requirements for RFP
milestone compliance demonstrations (MCDs) (see Section IV.C of this
preamble). The EPA is also seeking comment on requiring states to use
the year of an area's designation as nonattainment as the baseline year
for the emission inventory for the RFP requirement.
The RFP requirements for the 2008 ozone NAAQS are codified in 40
CFR 51.1110 and require that nonattainment SIPs provide for the annual
incremental emission reductions needed to ensure attainment of the
NAAQS. The provisions in 40 CFR 51.1110 are organized by the following
major subjects: Submission deadline for SIP revisions; RFP requirements
for affected areas; \11\ creditability of emission control measures;
creditability of out-of-area emissions reductions; \12\ calculation of
non-creditable emissions reductions; and baseline emission inventories
for RFP plans. For reference, the final 2008 Ozone NAAQS SIP
Requirements Rule provides an extensive discussion of the EPA's
rationale and approach for how air agencies can provide for RFP in
their nonattainment SIPs (80 FR 12271; March 6, 2015).
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\11\ 40 CFR 51.1110(a)(2)-(4) establish three separate sets of
RFP requirements for: (1) Areas with an approved 1-hour or 1997
ozone NAAQS 15 percent VOC rate of progress (ROP) plan; (2) areas
for which an approved 15 percent VOC ROP plan for the 1-hour or 1997
ozone NAAQS exists for only a portion of the area; and (3) areas
without an approved 1-hour or 1997 ozone NAAQS 15 percent VOC ROP
plan.
\12\ Per 40 CFR 51.1110(a)(6), creditable emission reductions
for fixed percentage reduction RFP must be obtained from sources
within the nonattainment area.
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The EPA is proposing to retain the same RFP approach and
requirements for the 2015 ozone NAAQS, except that they would also
apply to areas with approved RFP plans for the 2008 ozone NAAQS, in
addition to the 1-hour and 1997 standards. This proposed approach
includes continuing to state that the baseline year for RFP should be
the calendar year for the most recently available triennial emission
inventory at the time ROP/RFP plans are developed (e.g., 2017 for
initial designations effective in 2018), but states may elect an
earlier alternate year to be used to recognize investments in
implementing early reductions to achieve improved air quality. We
propose that states may use an alternate year (i.e., other that 2017)
between the year of the revised NAAQS issuance (2015) and the year in
which nonattainment designation is effective. However, the EPA is
inviting comment on an alternate approach of requiring that states use
the year of the effective date of an area's designation as the baseline
year for the emission inventory for the RFP requirements.
The EPA is proposing to codify our existing interpretation of
statutory requirements for RFP MCD, which would be codified into
specific provisions of the RFP requirements discussed here (see Section
IV.C of this preamble).
H. Requirements for RACT and RACM
1. RACT
The EPA is proposing to retain its existing general RACT
requirements, and to add new deadline requirements for certain RACT SIP
revisions (see Section IV.D of this preamble). The general RACT
requirements for the 2008 ozone NAAQS, which are codified in 40 CFR
51.1112(a) and (b), address the content and timing of RACT SIP
[[Page 81281]]
submittals and implementation, and major source criteria for RACT
applicability.\13\ Underlying these general RACT requirements are well-
established EPA policies and guidance, including existing control
techniques guidelines (CTGs) and alternative control techniques
(ACTs).\14\ For reference, the final 2008 Ozone NAAQS SIP Requirements
Rule provides an extensive discussion of the EPA's current rationale
and approach for how air agencies can provide for RACT in their
nonattainment SIPs (80 FR 12278; March 6, 2015). With the exception of
new implementation deadlines for certain RACT SIP revisions (see
Section IV.D of this preamble), the EPA is proposing to retain the same
RACT requirements for the 2015 ozone NAAQS, based on the current
rationale and approach articulated in the final 2008 Ozone NAAQS SIP
Requirements Rule (80 FR 12278; March 6, 2015).
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\13\ The EPA has defined RACT as the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility (December 9, 1976, memorandum
from Roger Strelow, Assistant Administrator for Air and Waste
Management, to Regional Administrators, ``Guidance for Determining
Acceptability of SIP Regulations in Non-Attainment Areas'' and also
in 44 FR 53762; September 17, 1979). Availability and feasibility
may differ across sources in the same category (June 19, 1985,
memorandum from John Calcagni, Chief, Economic Analysis Branch, to
G.T. Helms, ``Criteria for Determining RACT in Region IV.'').
\14\ The EPA's CTGs and ACTs are available at: https://www3.epa.gov/airtoxics/ctg_act.html.
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2. RACM
The EPA is proposing to retain its existing RACM requirements, and
to clarify the requirement under CAA section 172(c)(6) that air
agencies also consider the impacts of emissions from sources outside an
ozone nonattainment area but within a state's boundaries, and to
require such other measures for emissions reductions from these
intrastate sources if needed to attain the ozone NAAQS by the
applicable attainment date (see Section IV.E of this preamble). The
general RACM requirements for the 2008 ozone NAAQS are codified in 40
CFR 51.1112(c). For reference, the final 2008 Ozone NAAQS SIP
Requirements Rule describes the EPA's current rationale and approach
for how air agencies can provide for RACM in their nonattainment SIPs
(80 FR 12282; March 6, 2015). The EPA interprets the RACM provision to
require a demonstration that an air agency has adopted all reasonable
measures (including RACT) to meet RFP requirements and to demonstrate
attainment as expeditiously as practicable and, thus, that no
additional measures that are reasonably available will advance the
attainment date or contribute to RFP for the area.15 16 17
As the EPA has previously stated in the final 2008 Ozone NAAQS SIP
Requirements Rule,\18\ in determining the attainment date that is as
expeditious as practicable, an air agency 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. Further, the EPA requires that air
agencies should consider all available measures, including those being
implemented in other areas, but must adopt measures for an area only if
those measures are economically and technologically feasible and will
advance the attainment date or are necessary for RFP. The EPA is
proposing to retain its existing general RACM requirements for the 2015
ozone NAAQS--including the requirement to consider measures that
address intrastate transport--based on the current rationale and
approach articulated in the final 2008 Ozone NAAQS SIP Requirements
Rule, and the requirements of CAA section 172(c)(6).
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\15\ ``State Implementation Plans; General Preamble for Proposed
Rulemaking on Approval of Plan Revisions for Nonattainment Areas''
44 FR 20375 (April 4, 1979). ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990; Proposed Rule.'' 57 FR 13560 (April 16, 1992).
\16\ ``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. Available at:
http://www3.epa.gov/ttn/caaa/t1/memoranda/revracm.pdf.
\17\ 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.'' Available at: http://www3.epa.gov/ttn/caaa/t1/memoranda/121400_racmmemfin.pdf.
\18\ See the final SIP Requirements Rule for the 2008 ozone
NAAQS (80 FR 12264, 12270; March 6, 2015).
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The final 2008 Ozone NAAQS SIP Requirements Rule also recommended
that if wildfire impacts are significant in an area and contribute to
exceedances of the standard, then air agencies should consider RACM for
wildfires (which could include the use of prescribed fires). As
discussed in Section V.A of this preamble, the EPA is revising its
recommendation, such that prescribed fire and related wildland
management practices instead be addressed outside of the regulatory
framework of nonattainment planning.
I. CAA Section 182(f) NOX Exemption Provisions
The EPA is proposing to retain its existing CAA section 182(f)
NOX exemption provisions, which are codified for the 2008
ozone NAAQS in 40 CFR 51.1113. These provisions allow a person or an
air agency to petition the Administrator for an exemption from
NOX obligations under CAA section 182(f) for any area
designated nonattainment for the 2008 ozone standards and for any area
in a CAA section 184 OTR. 40 CFR 51.1113(c) stipulates that
NOX exemptions granted for previous 1-hour or 1997 ozone
NAAQS do not relieve an area from CAA section 182(f) NOX
obligations under the 2008 standards (see 80 FR 12294; March 6, 2015).
The EPA is proposing to retain the same requirements for the 2015 ozone
NAAQS, stipulating that NOX exemptions granted for any prior
ozone NAAQS do not relieve an area from CAA section 182(f)
NOX obligations under a specific revised ozone NAAQS.
Consistent with current EPA policy, existing NOX waivers for
the 2008 ozone standards would remain valid until area designations for
the 2015 NAAQS become effective, and we encourage air agencies to
consult the EPA's guidance on appropriate documentation for new waiver
requests.\19\
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\19\ 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.
Available at: http://www3.epa.gov/ttn/caaa/t1/memoranda/guide8hr-oz.pdf.
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J. General Nonattainment NSR Requirements
With one significant exception, the EPA is proposing to retain its
NNSR requirements contained at 40 CFR 51.165 and part 51 Appendix S,
which contain provisions for the preconstruction review and issuance of
permits to proposed new major stationary sources and major
modifications locating in ozone nonattainment areas. The one exception
pertains to a proposal to address IPT for ozone. As explained in
Section IV.F of this preamble, the EPA is proposing to confirm its
policy on ozone IPT, which is currently codified at 40 CFR
51.165(a)(11) and part 51 Appendix S, section IV.G.5, in response to a
petition for reconsideration. A basic understanding about how the NNSR
requirements would otherwise apply to the 2015 ozone NAAQS can be
obtained from the preamble discussion at Section VIII.C in the final
rule for the setting of
[[Page 81282]]
the 2015 Ozone NAAQS. See 80 FR 65442 (October 26, 2015).
The EPA proposes to codify NNSR requirements for the ozone NAAQS at
40 CFR 51.1314. These provisions would require that for each
nonattainment area an air agency must submit an NNSR plan or plan
revision for the 2015 ozone NAAQS no later than 36 months after the
effective date of the area's nonattainment designation for the 2015
ozone NAAQS. As discussed in Section IV.B of this preamble, we are
proposing two options for revoking the 2008 ozone NAAQS. The first
approach to revoking the 2008 ozone NAAQS (option 1) would parallel the
approach used in revoking the 1-hour and 1997 ozone NAAQS, and would
require that a set of protective anti-backsliding requirements be
promulgated for all areas that are designated nonattainment for both
the 2008 NAAQS and the 2015 NAAQS. Under the second approach (option
2), the 2008 ozone NAAQS would not be revoked in any area designated
nonattainment for the 2008 ozone NAAQS until that area is redesignated
to attainment with an approved CAA section 175A 10-year maintenance
plan; but in no case earlier than 1 year after the effective date of
designation for the 2015 ozone NAAQS. If the EPA were to revoke the
2008 ozone NAAQS according to proposed option 1, the EPA is also
proposing conforming changes to the existing anti-backsliding
provisions at 40 CFR 51.165(a)(12) and part 51 Appendix S section VII.
See Section IV.B of this preamble for a discussion of the conforming
revisions to the anti-backsliding provisions addressing the proposed
revocation of the 2008 ozone NAAQS under option 1.
K. Ambient Monitoring Requirements
The EPA is not proposing any changes to the existing ozone ambient
monitoring requirements are codified in 40 CFR part 58. Monitoring rule
amendments published on October 17, 2006, (71 FR 61236) established
minimum ozone monitoring requirements based on population and levels of
ozone in an area to better prioritize monitoring resources. The minimum
monitoring requirements are contained in Table D-2 of appendix D to
part 58. The Photochemical Assessment Monitoring Station (PAMS)
program, required by CAA section 182(c)(1), collects enhanced ambient
air measurements. The rulemaking for the final 2015 ozone NAAQS
included revisions to the PAMS requirements (80 FR 65416; October 26,
2015). The revisions were intended to provide a more spatially
dispersed network, reduce potential redundancy, and improve data value
while providing monitoring agencies flexibility in collecting
additional information needed to understand their specific ozone
issues.
L. Requirements for an OTR
The EPA is proposing to retain its existing OTR requirements, and
to add new deadline requirements for certain RACT SIP revisions (see
Section IV.D of this preamble). The OTR requirements for the 2008 ozone
NAAQS, which are codified in 40 CFR 51.1116, establish the general
applicability of CAA sections 176A (interstate transport commissions)
and 184 (control of interstate ozone air pollution), and stipulate the
criteria and timing for RACT SIP submittals and RACT implementation for
those portions of states located in an OTR (see 80 FR 12295; March 6,
2015). With the exception of additional submission and implementation
deadlines for certain RACT SIP revisions (see Section IV.D of this
preamble), the EPA is proposing to retain the same requirements for the
2015 ozone NAAQS, without revision.
M. Fee Programs for Severe and Extreme Nonattainment Areas That Fail To
Attain
The EPA is proposing to retain its existing fee program SIP
submission requirements, which are codified for the 2008 ozone NAAQS in
40 CFR 51.1117, and apply to each area classified Severe or Extreme for
that standard. Affected areas must submit a SIP revision that meets the
requirements of CAA section 185 (Enforcement for Severe and Extreme
ozone nonattainment areas for failure to attain) within 10 years of the
effective date of designation and classification as a Severe or Extreme
area. The EPA is proposing to retain the same SIP submission
requirements for the 2015 ozone NAAQS, without revision.
N. Applicability
The EPA is proposing to retain the provision that establishes
applicability of the current ozone NAAQS implementation provisions,
which is codified for the 2008 ozone NAAQS in 40 CFR 51.1119. The
provision states that the current provisions (subpart AA of part 51)
shall replace those for the previous 1997 standards (subpart X of part
51) after revocation of the 1997 NAAQS, except for anti-backsliding
purposes. The EPA is proposing to retain the same requirements for the
2015 ozone NAAQS, except that the proposed new implementation
provisions (to be codified in the new subpart CC of part 51) would
replace those for the 2008 ozone NAAQS (subpart AA) if the 2008
standards are revoked for all purposes, except for anti-backsliding
purposes. The proposed revocation of, and anti-backsliding requirements
for, the 2008 ozone NAAQS are discussed in Section IV.B of this
preamble.
IV. Provisions of the 2008 Ozone NAAQS Implementing Regulations To Be
Retained With Specific Revisions
For purposes of the 2015 ozone NAAQS, we are proposing to
promulgate some provisions that are similar to those for the 2008 ozone
NAAQS, but with minor modifications to reflect application to the 2015
ozone NAAQS, as explained later. The existing classification and SIP
requirement provisions for the 2008 standards, and revocation of the
1997 standards are codified at subpart AA of 40 CFR part 51, and the
corresponding provisions for the 2015 standards would be codified at
the new subpart CC of part 51. These proposed revisions reflect
classification thresholds and attainment deadlines relevant to the 2015
ozone standards; MCD for RFP; submission and implementation deadlines
for RACT SIP revisions; the consideration of intrastate pollution
sources outside of a nonattainment area for attainment planning; NNSR
IPT for ozone; emissions inventories and emissions statements; and
revoking the 2008 standards. The EPA welcomes comment on the following
proposed provisions.
A. Application of Classification and Attainment Date Provisions in CAA
Section 181 to Areas Subject to Subpart 2 of Part D of Title I of the
CAA
1. Background and Summary of Proposal
The EPA is proposing thresholds for classifying nonattainment areas
for the 2015 ozone NAAQS, and is proposing the timing of attainment
dates for each classification. We are also proposing to grant voluntary
reclassification to six California areas designated as nonattainment
for the 1997 ozone NAAQS that were voluntarily reclassified under that
NAAQS and the subsequent 2008 ozone standards. Each area designated as
nonattainment for the 2015 ozone NAAQS will be classified at the same
time as the area is designated by the EPA. Accordingly, the EPA intends
to finalize classification thresholds on or before the date that it
issues area designations.
[[Page 81283]]
2. Initial Area Designations for the 2015 Ozone NAAQS
After promulgating a new or revised NAAQS, the EPA considers air
agencies' recommendations for initial area designations (i.e., as
nonattainment, attainment, or unclassifiable). Area designations
establish which areas are meeting the NAAQS (attainment) and which
areas are not meeting the NAAQS (nonattainment), and the boundaries for
those areas. Areas designated unclassifiable cannot be classified as
meeting or not meeting the NAAQS based on available information. Based
on the schedule provided in section 107(d) of the CAA, states are
required to submit designation recommendations for every area in the
state to the EPA by no later than October 1, 2016, which is 1 year
after the promulgation date of the 2015 ozone NAAQS.\20\ In the event
that the EPA intends to modify an air agency's recommendation, the EPA
will notify the air agency no less than 120 days prior to issuing
designations.\21\ The CAA requires the EPA to promulgate designations
no later than 2 years after the October 1, 2015, promulgation of the
revised ozone NAAQS. Such period may be extended for up to one year in
the event the Administrator has insufficient information to promulgate
the designations.
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\20\ Area designations guidance for the 2015 ozone NAAQS
available at: https://www.epa.gov/ozone-designations/epa-guidance-area-designations-2015-ozone-naaqs.
\21\ While CAA section 107, which governs the process for
initial area designations, specifically addresses states, the EPA
intends to follow the same process for tribes to the extent
practicable, pursuant to section 301(d) of the CAA regarding tribal
authority and the Tribal Authority Rule (TAR) (63 FR 7254; February
12, 1998).
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3. Nonattainment Area Classifications
In accordance with CAA section 181(a)(1), each area designated as
nonattainment for the 2015 ozone NAAQS will be classified at the time
of designation. The planning and emission reduction requirements as
well as the maximum attainment date for each area are based on that
area's classification.
Under Subpart 2 of part D of title I of the CAA, state planning and
emissions control requirements for ozone are determined, in part, by a
nonattainment area's classification. These requirements apply in
addition to the general SIP planning requirements applicable to all
nonattainment areas under subpart 1 of part D. Under CAA subpart 2,
ozone nonattainment areas are classified based on the severity of their
ozone levels (as determined based on the area's ``design value,''
(DV)).\22\ Nonattainment areas with a ``lower'' classification have
ozone levels that are closer to the standard than areas with a
``higher'' classification. Subpart 2 provides an increasing amount of
maximum time from the date of designation to attain the standards for
the progressively higher classifications: Marginal (3 years), Moderate
(6 years), Serious (9 years), Severe-15 (15 years), Severe-17 (17
years) and Extreme (20 years).
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\22\ The air quality DV for the 8-hour ozone NAAQS is the 3-year
average of the annual fourth highest daily maximum 8-hour average
ozone concentration for a specific monitor. When an area has
multiple monitors, the area's DV is determined by the individual
monitor with the highest DV.
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Air agencies with areas in the lower classification levels have
fewer mandatory air quality planning and control requirements than
those in higher classifications. For instance, air agencies with a
Marginal area are only required to adopt an emissions statement rule
for major stationary sources, submit a base year emissions inventory,
follow the general and transportation conformity requirements in CAA
section 176(c), and implement a nonattainment area preconstruction
permit program (NNSR). Air agencies with a Moderate area are subject to
the Marginal area requirements; in addition air agencies must submit a
SIP revision that provides for a 15 percent emissions reduction from
the RFP baseline year within 6 years after the baseline year, and a
demonstration that the area will attain as expeditiously as
practicable, but not later than 6 years after designation. Air agencies
with a Moderate area must also adopt (and submit for EPA approval)
certain emissions control requirements, such as RACT, a basic vehicle
I/M program if the area meets the applicable population thresholds, and
provisions for increased offsets for new or modified sources under the
state's NNSR program. The higher classifications similarly require
additional emissions control programs and stricter NNSR requirements
beyond those required for a Moderate area. In addition, the major
source threshold for permitting, RACT and emissions reporting decreases
progressively from 100 tons per year (tpy) for Marginal areas to 10 tpy
for Extreme areas.
4. Proposed Classification Thresholds
a. Background. 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 requirements for
specific programs to reduce emissions that vary based on an area's
classification. The ozone standard in effect at the time of the 1990
CAA amendments was a 1-hour exceedance-based standard of 0.12 ppm.\23\
Accordingly, the classification provisions in Table 1 in section 181 of
subpart 2 of the CAA (also referred to herein as the ``subpart 2
classification table'') are specific to that 1-hour standard. In 1997,
the EPA revised both the form and level of the ozone NAAQS to a 3-year
average of annual fourth highest daily maximum 8-hour averages.\24\ In
a subsequent rulemaking, the EPA adapted the CAA's 1-hour
classification thresholds to the new 8-hour standard \25\ and used the
new 8-hour threshold values to classify certain areas designated
nonattainment for the 1997 8-hour NAAQS. We translated the
classification thresholds in the subpart 2 classification table from 1-
hour DVs to 8-hour DVs based on the percentage by which each
classification threshold in the table exceeds the 1-hour ozone NAAQS.
We noted that these percentages, as established by Congress in 1990,
set the classification thresholds at certain percentages or fractions
above the level of the standard.\26\ The EPA refers to this method as
the ``percent-above-the-standard'' method. This approach for
translating the CAA's 1-hour threshold values to 8-hour threshold
values was challenged in litigation and was upheld by the Court. See
South Coast Air Quality Management District v. Environmental Protection
Agency, 472 F.3d at 896-898. After analyzing various alternative
options for establishing classification thresholds, the EPA retained
the ``percent-above-the-standard'' approach in its final implementing
regulations for the 2008 ozone NAAQS.\27\
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\23\ For additional discussion on the 1-hour ozone NAAQS and its
associated area designations and classifications, see 56 FR 56695
(November 6, 1991).
\24\ See 40 CFR Appendix I.
\25\ Referred to as the Phase 1 Rule, see 69 FR 23956 to 23966
and part 51, subpart X at 51.903.
\26\ The upper thresholds of the Marginal, Moderate, Serious and
Severe classifications are precise percentages or fractions above
the level of the standard, namely 15 percent (3/20ths more than the
standard), 33.33 percent (one-third more than the standard), 50
percent (one-half more than the standard), and 133.3 percent (one
and one-third more than the standard).
\27\ See 77 FR 30162 to 30164 (May 21, 2012).
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b. Proposed classification threshold method. In this action, we are
proposing to use the same ``percent-above-the-standard'' methodology as
was used for establishing thresholds for classifications for the 1997
and 2008 8-hour ozone standards. The percent-above-the-standard method
is a simple and straightforward method for establishing classification
thresholds that is based on principles inherent in
[[Page 81284]]
the subpart 2 classification table itself. The principles include the
following:
Areas are grouped by the severity of their air quality
problem as characterized by the degree of nonattainment based on their
DV.
Classification would occur ``by operation of law'' without
relying on the EPA exercising discretion for individual situations.\28\
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\28\ Prior to any application of the 5 percent adjustment
provision under CAA section 181(a)(4) which may occur in the 90-day
period following initial designations and classifications). See
Section IV.A.5 of this preamble for details on how the EPA proposes
to interpret previous voluntary reclassification requests for the
1997 ozone NAAQS under the 2015 ozone NAAQS.
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Classification thresholds are derived from the structure
or logic of the CAA's nonattainment area planning and control
requirements, including the subpart 2 classification table, and
consistent with the overall goal of subpart 2 of attaining the
standards as expeditiously as practicable. At the same time, the CAA
provides mechanisms for voluntary and mandatory reclassification to a
higher classification, in the event that the initial maximum attainment
date for an area is determined to be insufficient to achieve the
standards.
In developing its proposed Classifications Rule for the 2008 ozone
standards, the EPA evaluated other options for classifying ozone
nonattainment areas but did not find them to be a more reasonable
interpretation of the Act's classification provisions, and did not
propose or solicit comment on them in the rule.\29\
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\29\ Docket #EPA-HQ-OAR-2010-0885 includes a background
information document prepared for the proposed rule titled,
Additional Options Considered for Classification of Nonattainment
Areas under the Proposed 2008 Ozone NAAQS (January 2012).
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Under the proposed percent-above-the-standard method, the
classification thresholds in the subpart 2 classification table would
be translated into a corresponding set of 8-hour DVs that are the same
percentages above the 2015 ozone NAAQS as the DV levels in the subpart
2 classification table are above the 1-hour ozone NAAQS. For example,
the threshold separating the Marginal and Moderate classifications in
the subpart 2 classification table (0.138 ppm) is 15 percent above the
1-hour ozone NAAQS (0.12 ppm). Thus, under this approach, the threshold
separating the Marginal and Moderate classifications for the 2015 ozone
NAAQS would be 0.070 ppm plus 15 percent, or 0.081 ppm. Table 1 depicts
this proposed translation for classifications as it would apply for the
2015 ozone NAAQS.
Table 1--Subpart 2 1-Hour Ozone Design Value Classification Table Translation to 8-Hour Design Values for the
2015 Ozone NAAQS of 0.070 PPM
----------------------------------------------------------------------------------------------------------------
Percent above 1- 8-hour ozone
Area class 1-Hour design hour ozone design value
value (ppm) NAAQS (ppm)
----------------------------------------------------------------------------------------------------------------
Marginal............................ From up to \a\......... 0.121 0.833 0.071
0.138 15 0.081
Moderate............................ From up to \a\......... 0.138 15 0.081
0.160 33.333 0.093
Serious............................. From up to \a\......... 0.160 33.333 0.093
0.180 50 0.105
Severe-15........................... From up to \a\......... 0.180 50 0.105
0.190 58.333 0.111
Severe-17........................... From up to \a\......... .0190 58.333 0.111
0.280 133.333 0.163
Extreme............................. Equal to or above...... 0.280 133.333 0.163
----------------------------------------------------------------------------------------------------------------
\a\ But not including.
Based on our analysis of air quality information from 2013-2015, we
estimate that approximately 57 ``hypothetical nonattainment areas'' had
ambient ozone concentrations exceeding the 2015 ozone NAAQS. We use
these 57 ``hypothetical nonattainment areas'' for purposes of the
following discussion. These hypothetical areas are intended to
illustrate the potential distribution of areas into the proposed
classifications. The actual number of total nonattainment areas,
boundaries of those areas, and the classification of each area will
depend on decisions made in the separate designations process under CAA
section 107(d) and we anticipate that these decisions will be based on
air quality information from 2014-2016. Applying the proposed
thresholds in Table 1, the 57 hypothetical nonattainment areas based on
2013-2015 air quality data would yield the distribution in each
classification as shown in Table 2.
Table 2--Number of Hypothetical Nonattainment Areas in Each
Classification Under the 2015 Ozone NAAQS: Percent-Above-the-Standard
Method
------------------------------------------------------------------------
2015 Ozone
NAAQS
Area classification (hypothetical
areas) \a\
------------------------------------------------------------------------
Marginal................................................ 47
Moderate................................................ 7
Serious................................................. 3
Severe-15............................................... 0
Severe-17............................................... 0
Extreme................................................. 0
---------------
Total............................................... 57
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\a\ Hypothetical nonattainment area classifications do not reflect
potential voluntary reclassifications of the California areas
discussed in Section IV.A.5 of the preamble.
The proposed classification method results in the vast majority of
nonattainment areas being classified Marginal. It is possible that a
few areas would have a later maximum statutory attainment date for
their existing classification under the 2008 ozone NAAQS than they
would have for their new classification under the 2015 NAAQS. For
example, an area that would be classified Moderate if designated in
2017 for the more stringent 2015 ozone NAAQS (with a potential maximum
statutory attainment date in 2023), may currently be classified Severe
for the less-stringent 2008 ozone NAAQS (which has a later maximum
statutory attainment date in 2027).\30\ This issue also arose under the
previously promulgated 8-hour classification threshold structure for
the 2008 NAAQS. See Section IV.A.5 of this preamble for additional
details on how the EPA intends to address previous voluntary
reclassifications under the 2015 ozone NAAQS.
---------------------------------------------------------------------------
\30\ As indicated elsewhere in this preamble, the CAA requires
the EPA to designate areas for the 2015 standard by October 1, 2017.
Thus, a 6-year attainment deadline would be in 2023.
---------------------------------------------------------------------------
For areas likely to be classified Marginal with a 3-year attainment
date
[[Page 81285]]
(e.g., in 2020), a number of federal and state emission reduction
programs have already been adopted that are expected to provide
reductions of ozone precursor emissions, both within and upwind of the
ozone nonattainment areas, lowering peak ozone concentrations by the
attainment date. Such programs include more stringent emission
standards for on-road and nonroad vehicles and equipment (with
associated fleet turnover), regional reductions in power plant
emissions to address interstate transport, and future programs to
reduce VOC emissions from oil and gas sources.
5. Reclassification of Nonattainment Areas That Have Voluntarily
Requested Higher Classifications
The CAA provides three mechanisms for addressing nonattainment
areas that may not be able to attain by the attainment date appropriate
to their classification. First, CAA section 181(a)(4) provides that
within 90 days of designation and classification, the Administrator may
exercise discretion to reclassify an area to a higher (or lower)
classification if its DV is within 5 percent of the DV range of the
higher (or lower) classification.\31\ Any air agency interested in
taking advantage of this flexibility should submit a request to the EPA
in sufficient time for the Administrator to make a determination within
the 90 days provided.
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\31\ Because most areas would be expected to be classified
Marginal (i.e., the lowest classification) and the few areas that
would be classified in higher classifications are likely to be
challenged to attain by the attainment date for the classification
it receives at the time of designation, we do not anticipate
receiving requests to reclassify an area to a lower classification.
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The second mechanism, provided in CAA section 181(b)(2), requires
that an area be reclassified to a higher classification (i.e.,
``bumped-up'') if the EPA determines that the area has failed to attain
the standard by the applicable attainment date.
The third mechanism, provided in CAA section 181(b)(3), allows an
air agency to voluntarily request that the EPA reclassify the area to a
higher classification. The EPA must approve any such requests. Once an
area is reclassified to a higher classification, it becomes subject to
the associated additional planning and control requirements for that
higher classification, and must attain the standard no later than the
maximum attainment date for that classification. Six nonattainment
areas in California were granted voluntary reclassifications for both
the 1997 and 2008 ozone standards (77 FR 30165; May 21, 2012).
The EPA is again proposing to apply a previous voluntary
reclassification for areas in California to the more stringent 2015
ozone standards unless the state of California explicitly requests
otherwise in their comments to this proposed action.\32\ These areas
are listed in Table 3. We believe this is an appropriate mechanism to
address the situation for these California areas that were voluntarily
reclassified for the 1997 ozone NAAQS and previously used this
mechanism for the 2008 ozone NAAQS to ensure the areas would have an
attainment date for the more stringent 2015 ozone NAAQS that is no
earlier than the area's attainment date for the less stringent 2008
NAAQS. The EPA is proposing this approach in order to minimize burden
on the state of California and obviate the need to go through the
voluntary reclassification process again.
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\32\ Areas for which California declines voluntary
reclassification would be classified at the time of designation for
the 2015 ozone NAAQS based on their DV.
TABLE 3--Areas for Which the State of California Requested a Voluntary Reclassification Under the 1997 NAAQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hypothetical
Voluntary Voluntary initial Potential voluntary
Original 1997 ozone reclassification for reclassification for classification reclassification under 2015
Nonattainment area NAAQS classification 1997 ozone NAAQS 2008 ozone NAAQS under 2015 ozone ozone NAAQS \a\ (attainment
(attainment date) (attainment date) (attainment date) NAAQS \a\ date)
(attainment date)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Los Angeles-South Coast Air Basin Severe-17 (2021).... Extreme (2024)....... Extreme (2032)....... Serious (2026)..... Extreme (2037).
San Joaquin Valley............... Serious (2013)...... Extreme (2024)....... Extreme (2032)....... Serious (2026)..... Extreme (2037).
Riverside County (Coachella Serious (2013)...... Severe-15 (2019)..... Severe-15 (2027)..... Moderate (2023).... Severe-15 (2032).
Valley).
Sacramento Metro................. Serious (2013)...... Severe (2019)........ Severe-15 (2027)..... Moderate (2023).... Severe-15 (2032).
Ventura County................... Moderate (2010)..... Serious (2013)....... Serious (2021)....... Marginal (2020).... Serious (2026).
Western Mojave................... Moderate (2010)..... Severe-15 (2019)..... Severe-15 (2027)..... Moderate (2023).... Severe-15 (2032).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Based on thresholds proposed in this notice and final 2013-2015 design values.
It is important to note that an air agency may request a voluntary
reclassification for an area under CAA section 181(b)(3) at any time.
If the air agency wants a specific higher classification to apply to an
area at the time of initial designation, the EPA encourages the air
agency to make such a request prior to or contemporaneous with the
designation process.
6. Attainment Dates for Nonattainment Areas in Each Classification of
the 2015 ozone NAAQS
The EPA is proposing to retain its current approach in establishing
attainment dates for each nonattainment area classification, which run
from the effective date of designation. This approach is codified at 40
CFR 51.1103 for the 2008 ozone NAAQS, and we are proposing to retain
the same approach for the 2015 ozone NAAQS without revision.
In the implementing regulations for the 1997 ozone NAAQS, the EPA
interpreted these timeframes to run from the date that area
designations and nonattainment classifications (by operation of law)
became effective (64 FR 23954; April 30, 2004). We adopted an
alternative approach in the classification regulations for the 2008
ozone standards, where the attainment dates would be December 31 of the
year that is the specified number of years in the subpart 2
classification table after designation (77 FR 30166; May 21, 2012). The
end of calendar year attainment date was challenged in NRDC v. EPA, 777
F.3d 456 (D.C. Cir. 2014). On December 23, 2014, the U.S. Court of
Appeals for the District of Columbia Circuit issued an opinion holding
that the EPA's decision to run the attainment periods to the end of the
calendar year in which areas were designated was unreasonable. While
[[Page 81286]]
recognizing that there is a ``gap'' in the statute since the CAA runs
the attainment periods from the date of enactment of the CAA Amendments
of 1990, the Court concluded that nothing in the statute or
congressional intent authorized the EPA to establish the attainment
dates for designated ozone nonattainment areas as December 31st of the
relevant calendar years, but rather that Congress's decision to run the
``. . . attainment periods starting from the designation date'' for the
ozone standard existing at the time of the 1990 CAA amendments
``strongly suggests that the same trigger date should apply when
adapting [applicable attainment dates] to the analogous situation of a
revised NAAQS.'' 777 F.3d at 466. The EPA subsequently revised its
regulations for the 2008 ozone NAAQS to follow the same approach used
for the 1997 ozone NAAQS, and this is codified at 40 CFR 51.1103.
Consistent with the regulatory approach for both the 1997 and 2008
ozone NAAQS, we are proposing that the maximum attainment dates for
nonattainment areas in each classification under the 2015 NAAQS are as
follows: Marginal--3 years from effective date of designation;
Moderate--6 years from effective date of designation; Serious--9 years
from effective date of designation; Severe--15 years (or 17 years) from
effective date of designation; and Extreme--20 years from effective
date of designation.
B. Transition From the 2008 Ozone NAAQS to the 2015 Ozone NAAQS and
Anti-Backsliding Requirements
1. Background and Summary of Proposal
The EPA is proposing and seeking comment on two alternative
approaches for revoking the 2008 ozone NAAQS and is also seeking
comment on whether to revoke the NAAQS at the current time. The first
approach to revoking the 2008 ozone NAAQS would parallel the approach
used in revoking the 1-hour and 1997 ozone NAAQS. Under this first
approach, the 2008 ozone NAAQS would be revoked at essentially the same
time for all areas of the U.S., and a set of protective anti-
backsliding requirements would be promulgated for all areas that are
designated nonattainment for the 2008 and 2015 NAAQS as of one year
after the effective date of designation for the 2015 ozone NAAQS. Under
the second approach, the 2008 ozone NAAQS would continue to apply in
any area designated nonattainment for the 2008 ozone NAAQS until that
area is redesignated to attainment with an approved CAA section 175A
10-year maintenance plan; but in no case earlier than 1 year after the
effective date of designation for the 2015 ozone NAAQS. The 2008 ozone
NAAQS would be revoked in all other areas 1 year after the effective
date of designation for the 2015 ozone NAAQS.
2. Rationale and Authority
The EPA believes that both of the proposed options to revoke the
2008 ozone NAAQS are consistent with the CAA and previous precedent in
transitioning from a previous NAAQS to a new, more stringent NAAQS, and
would help ensure that areas designated attainment for the revoked
NAAQS continue to attain the revoked NAAQS into the future.
a. Option 1: Revoke the 2008 ozone NAAQS for all purposes in each
area 1 year after the effective date of the designation for the 2015
ozone NAAQS. The EPA's first proposed option would revoke the 2008
ozone NAAQS for all purposes 1 year following the effective date of the
designations for the 2015 ozone standard. The EPA interprets the CAA
such that revoking the 2008 ozone NAAQS in an area would require
appropriate anti-backsliding measures. Therefore, the EPA is proposing
that anti-backsliding provisions would apply to an area in accordance
with its designation and its classification for the 2008 (and, if
applicable, 1997 and 1-hour) ozone NAAQS as of the effective date of
the revocation of the 2008 ozone NAAQS (a more detailed discussion of
EPA's proposed approach to anti-backsliding is provided in Section
IV.B.4 of this preamble). Upon revocation of the 2008 NAAQS, the areas
that had been initially designated or subsequently redesignated to
attainment for the 2008 NAAQS prior to its revocation would be subject
only to the general protections of CAA sections 110(l) and 193, whereas
areas designated nonattainment for the 2008 NAAQS would also be subject
to an extensive set of regulatory anti-backsliding provisions
promulgated in accordance with the principles of CAA section 172(e).
This approach is consistent with the EPA's established practice in
transitioning from prior to current ozone NAAQS.
After revocation of the 2008 ozone NAAQS, the designations (and the
classifications associated with those designations) for that NAAQS
would no longer be in effect. However, the EPA would retain the listing
of the designated nonattainment areas and their associated
classifications for the revoked 2008 ozone NAAQS in 40 CFR part 81, for
the sole purpose of identifying the anti-backsliding requirements that
may apply to the areas at the time of revocation. Accordingly, such
references to historical designations for the revoked NAAQS should not
be viewed as current designations under CAA section 107(d).
The EPA believes it would be appropriate to revoke, rather than
retain, the 2008 ozone NAAQS for all purposes because it would ensure
that only one ozone NAAQS--in this case the more protective 2015 ozone
NAAQS--would directly apply in an area, rather than having a situation
in which two standards would apply concurrently. The EPA believes that
the permanent retention of two standards, differing only in the ozone
concentrations they allow, could result in unnecessarily complex
implementation procedures \33\ and is not necessary to provide for
timely attainment of the more stringent NAAQS. The EPA's reason for
establishing the new standards of 0.070 ppm as requisite to protect
public health and welfare was its conclusion that the old standard of
0.075 ppm was not adequate. Revoking (with appropriate anti-backsliding
measures) rather than retaining the 2008 ozone NAAQS would facilitate a
more seamless transition to demonstrating compliance with the more
health and welfare protective 2015 ozone NAAQS, and would ensure an
efficient use of state and local resources in working toward attainment
of that standard. Moreover, we believe that by requiring adequate anti-
backsliding measures we will ensure continued momentum in air agencies'
efforts toward achieving clean air.
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\33\ For example, if an area's boundaries for two ozone NAAQS
differ from one another the same test of conformity cannot be used
for both ozone NAAQS (see 77 FR 30168; May 21, 2012).
---------------------------------------------------------------------------
The D.C. Circuit held that the EPA had authority to revoke the one-
hour NAAQS so long as it introduced adequate anti-backsliding measures.
South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 899 (D.C.
Cir. 2006). The EPA is proposing to follow the same approach here as
was upheld by the D.C. Circuit by requiring adequate anti-backsliding
measures, as discussed in this section of the preamble.
b. Option 2: Revoke the 2008 ozone NAAQS for all purposes in an
area only when designated attainment for that NAAQS, no sooner than 1
year after the effective date of the designations for the 2015 ozone
NAAQS. Under this option, the EPA would not revoke the 2008 ozone NAAQS
in any area that is designated nonattainment for that NAAQS. For areas
designated attainment or unclassifiable for the 2008
[[Page 81287]]
NAAQS on the effective date of designations for the 2015 ozone NAAQS,
the 2008 ozone NAAQS would be revoked 1 year after the effective date
of the 2015 NAAQS designation for that area. For nonattainment areas
that are subsequently redesignated attainment (maintenance) for the
2008 ozone NAAQS, the 2008 ozone NAAQS would be revoked upon
designation, but in no case sooner than 1 year after the effective date
of the designation for the 2015 ozone NAAQ for the area. This proposed
approach follows the approach established in revocation of the 1997
primary annual particulate matter (PM2.5) NAAQS (see 81 FR
58142, August 24, 2016). This option is also consistent with the
approach established for the transition from the prior lead and sulfur
dioxide (SO2) NAAQS to the current lead and SO2
NAAQS (see 73 FR 67043, November 12, 2008; and 75 FR 35581, June 22,
2010, respectively).
Under this proposed approach, areas that are designated
nonattainment for the 2008 ozone NAAQS at the time initial area
designations are completed for the 2015 NAAQS would be required to
continue to meet all applicable implementation requirements for the
2008 NAAQS in those areas, and would continue to seek redesignation to
attainment for the 2008 ozone NAAQS when the areas meet the conditions
necessary for redesignation. While such an area remains designated
nonattainment for the 2008 ozone NAAQS, transportation and general
conformity would continue to apply and the EPA would continue to
reclassify areas as provided in CAA section 181(b)(2). Further, the
designations for the 2008 ozone NAAQS would no longer be in effect in
areas where the NAAQS has been revoked, and the sole designations that
would remain in effect would be those for the 2015 ozone NAAQS.
Transportation and general conformity requirements for the 2008 ozone
NAAQS would no longer apply in the areas where that NAAQS has been
revoked.
The EPA notes that under proposed option 2, it is unnecessary to
propose a specific set of additional anti-backsliding requirements for
the 2008 ozone NAAQS, since option 2 would only revoke this NAAQS in
areas initially designated or redesignated attainment for the 2008
NAAQS. Special additional anti-backsliding requirements are not
necessary for areas that have attained the 2008 NAAQS. In areas that
have been redesignated to attainment for the 2008 ozone NAAQS while
that NAAQS is in effect, states have fulfilled all applicable
attainment and maintenance plan requirements for that NAAQS, including
applicable anti-backsliding requirements for the prior revoked 1997 and
1-hour ozone NAAQS. The area, therefore, is not subject to any specific
additional anti-backsliding requirements for the revoked 2008 ozone
NAAQS. These areas are required instead to implement their approved CAA
section 175A maintenance plan for the 2008 ozone NAAQS and, if
designated attainment for the 2008 ozone NAAQS implement a Prevention
of Significant Deterioration (PSD) program for this NAAQS. Revisions to
the approved maintenance plan for such an area can only be made subject
to the CAA's provisions in sections 110(l) and 193, which prevent
changes to SIPs if such changes would interfere with attainment and
maintenance of the more current 2015 ozone NAAQS.
3. Effective Date of the Revocation of the 2008 Ozone NAAQS
Under either option 1 or 2 outlined earlier, the EPA is proposing
to revoke the 2008 ozone NAAQS no sooner than one year after the
effective date of an area's final designation for the 2015 ozone
standards.\34\ The proposed timeline for revocation of the standard
under either option 1 or 2 outlined earlier is intended to ensure that
there is no period during which conformity does not apply in areas that
are nonattainment or maintenance for the 2008 ozone NAAQS and that are
designated nonattainment for the 2015 ozone NAAQS, and that
nonattainment areas for the 2015 ozone NAAQS do not have to perform
transportation conformity analyses for both the prior and current ozone
standards at the same time.\35\ As an example, areas designated
nonattainment for the first time for the 2015 ozone NAAQS would have a
1-year grace period before transportation conformity applies for those
standards. This 1-year grace period before transportation conformity is
required would apply to all areas designated nonattainment for the 2015
standards, regardless of their 2008 NAAQS designation status.
Transportation conformity for the 2008 standards would, therefore, no
longer apply 1 year following the effective date of the 2015 ozone
NAAQS designations (i.e., when the 2008 standards are revoked in
eligible areas). However, transportation conformity obligations for the
2008 ozone standards would remain applicable during the grace period
and would not be affected by the designation of areas for the 2015
NAAQS. Our proposed approach further supports air quality planning in
allowing areas to be redesignated to attainment or reclassified to a
higher classification until the 2008 ozone NAAQS is revoked.
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\34\ The 2008 Ozone NAAQS SIP Requirements Rule revoked the 1997
ozone standards upon the effective date of that final rule (April 6,
2015), which was 30 days after its publication in the Federal
Register (80 FR 12296; March 6, 2015). The EPA deemed this approach
appropriate because the final SIP requirements rule was being issued
more than a year after the effective date of final area designations
(July 20, 2012) for the 2008 ozone standards (77 FR 30160; May 21,
2012), an atypical sequence that is not expected to apply in this
case.
\35\ The EPA believes that these concerns are relevant for
either proposed option 1 or option 2, and therefore proposes the
same timeline for revocation for either option. Under option 2, the
motivation of ensuring that areas do not have to perform
transportation conformity analyses for both the prior and current
ozone standards at the same time would only be relevant for 2015
ozone NAAQS nonattainment areas that are maintenance areas for the
2008 ozone NAAQS at the time of the initial revocation. Areas that
remain designated nonattainment for the 2008 ozone NAAQS at the time
of the initial revocation are required to continue to make
transportation conformity determinations until they are redesignated
to attainment for that NAAQS regardless of their designation status
for the 2015 ozone NAAQS.
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If the 2008 ozone NAAQS are revoked in an area in a manner
consistent with the EPA's first proposed option, the anti-backsliding
requirements for those NAAQS would become applicable. The extent of
continued implementation efforts for revoked standards derives from
administration of anti-backsliding requirements (if any) for the
revoked standards. After the 2008 ozone NAAQS is revoked for an area,
the EPA will no longer take action to reclassify or to redesignate that
area for that NAAQS. Further, the designations for the 2008 ozone NAAQS
would be no longer be in effect in such areas, and the sole
designations that would remain in effect would be those for the 2015
ozone NAAQS. However, under option 1, the EPA would retain the listing
of the designated areas and the associated nonattainment
classifications for the revoked 2008 ozone NAAQS in 40 CFR part 81, for
the sole purpose of identifying the anti-backsliding requirements that
may apply to the areas as of the effective date of the revocation. Such
references to historical designations for the revoked standards would
not be current designations under CAA section 107(d) and should not be
viewed as such. If the EPA finalizes the option 2 approach to
revocation of the 2008 ozone NAAQS, the EPA would continue to
redesignate areas for the 2008 ozone NAAQS after the initial revocation
occurs 1 year after the effective date of designations for the 2015
ozone NAAQS. For any area
[[Page 81288]]
redesignated more than 1 year after the effective date of designations
for the 2015 ozone NAAQS, the 2008 ozone NAAQS would be revoked on the
effective date of the redesignation to attainment for the 2008 ozone
NAAQS.
4. Anti-Backsliding Requirements
``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, there is protection
against degradation of air quality (e.g., the areas do not
``backslide''), the areas continue to make progress toward attainment
of the new, more stringent NAAQS, and there is consistency with the
ozone NAAQS implementation framework outlined in subpart 2 of Part D of
the CAA.
Where a NAAQS is relaxed, CAA section 172(e) requires EPA to
promulgate regulations that impose on areas, which have not attained a
NAAQS prior to a relaxation, controls that are at least as stringent as
the controls applicable in nonattainment areas prior to any such
relaxation. Such controls are often referred to as ``anti-backsliding
requirements.'' Because the CAA does not speak to what to do where a
NAAQS is strengthened, the EPA has historically concluded, and proposes
to do so again here, that it is reasonable to look to the principles
set forth in CAA section 172 to impose anti-backsliding requirements
for purposes of transitioning to a more stringent NAAQS. See 69 FR
23951, 23972 (April 30, 2004); 80 FR 12264, 12297-98 (March 6, 2015).
The D.C. Circuit has upheld the EPA's authority to revoke a superseded
NAAQS in its entirety where adequate anti-backsliding measures are
retained under the principles of CAA section 7502(e). South Coast Air
Qual. Mgmt Dist. v. EPA, 472 F.3d 882, 899 (D.C. Cir. 2006).
Under option 1, the EPA is proposing to retain, for purposes of the
transition from the 2008 to the 2015 ozone NAAQS, the existing approach
to establishing anti-backsliding requirements. The proposed subpart CC,
40 CFR 51.1300 et seq., provides the set of anti-backsliding
requirements that would apply following revocation of the 2008 ozone
NAAQS along with the use of the latest approved or adequate motor
vehicle emission budgets for a prior ozone NAAQS (i.e., the 2008, 1997
or the 1-hour ozone NAAQS) at 40 CFR 93.109(c)(2) as part of
transportation conformity determinations in nonattainment areas for the
2015 NAAQS until 2015 ozone motor vehicle emissions budgets are
available.\36\ For reference, the final 2008 Ozone NAAQS SIP
Requirements Rule provides an extensive discussion of the EPA's
approach and rationale for establishing anti-backsliding requirements
consistent with the first proposed revocation option in this proposal
(option 1) (80 FR 12296-12308; March 6, 2015). The EPA is proposing a
second approach (option 2) to revoking the 2008 ozone NAAQS that would
not require the same extensive set of anti-backsliding requirements.
This co-proposal and associated anti-backsliding approach are discussed
previously in this section of the preamble.
---------------------------------------------------------------------------
\36\ The EPA believes it is unnecessary to propose to include
the use of existing SIP motor vehicle emissions budgets for
transportation conformity purposes in the proposed list of
regulatory anti-backsliding requirements subpart CC, 40 CFR 51.1300
et seq because EPA's regulations (40 CFR 93.109(c)(2)) already
require that transportation conformity determinations in
nonattainment areas for the new ozone NAAQS continue to be based on
the latest approved or adequate motor vehicle emission budgets for a
prior ozone NAAQS (i.e., the 2008, 1997 or the 1-hour ozone NAAQS)
until 2015 ozone budgets are available.
---------------------------------------------------------------------------
The following sections discuss the applicable anti-backsliding
requirements and how they apply to areas with various designations and
classifications for the 2015 standards, the 2008 standards that we are
proposing to revoke, and the already revoked 1997 and 1-hour ozone
NAAQS. Our proposed approach for revoking the 2008 ozone NAAQS is
discussed in Section IV.B of this preamble.
a. Applicable requirements for anti-backsliding purposes following
the revocation of the 2008 ozone NAAQS. As discussed in more detail in
Section IV.B of this preamble, the EPA is proposing and seeking comment
on two options for revoking the 2008 ozone NAAQS. As explained in that
section, under proposed option 2, it is unnecessary to propose specific
new anti-backsliding requirements for the 2008 ozone NAAQS, since
option 2 would only revoke this NAAQS in attainment areas. Therefore,
the following section would only apply if EPA were to finalize option 1
for revocation of the 2008 ozone standard. For purposes of the revoked
2008 ozone NAAQS if option 1 were to be finalized, the EPA is proposing
to retain the same set of anti-backsliding requirements that currently
apply for purposes of the revoked 1997 ozone NAAQS, without revision.
For the revoked 2008 ozone NAAQS, the potentially applicable
requirements for an area for anti-backsliding purposes would be
identical to the requirements currently codified at 40 CFR 51.1100(o).
These requirements include: (1) RACT; (2) Vehicle I/M programs; (3)
Major source applicability cut-offs for purposes of RACT; (4) ROP and/
or RFP reductions and associated MCDs; (5) the Clean Fuel Fleet program
under section 183(c)(4) of the CAA; (6) Clean fuels for boilers under
section 182(e)(3) of the CAA; (7) Transportation control measures
during heavy traffic hours as provided under section 182(e)(4) of the
CAA; (8) Enhanced (ambient) monitoring under section 182(c)(1) of the
CAA; (9) Transportation controls under section 182(c)(5) of the CAA;
(10) Vehicle miles traveled provisions under section 182(d)(1)(A) of
the CAA; (11) NOX requirements under section 182(f) of the
CAA; (12) Attainment demonstrations; (13) Nonattainment contingency
measures; (14) Nonattainment NSR major source thresholds and offset
ratios; (15) CAA section 185 requirements for Severe and Extreme areas
for failure to attain; (16) RACM; and (17) Contingency measures for
SIPs invoking section 182(e)(5) of the CAA. The use of the latest
approved or adequate motor vehicle emission budgets for a prior ozone
NAAQS (i.e., the 2008, 1997 or the 1-hour ozone NAAQS) as part of
transportation conformity determinations in nonattainment areas for the
2015 NAAQS until 2015 ozone motor vehicle emissions budgets are
available has also been recognized as a ``control'' for purposes of
defining anti-backsliding requirements. South Coast Air Qual. Mgmt.
Dist. v. EPA, 489 F.3d at 1248 (clarifying South Coast, 472 F.3d at
904-05). This requirement is already codified at 40 CFR 93.109(c)(2).
As discussed in the following section, applicability of individual
anti-backsliding requirements for an area would depend on its
designation and classification for all three of the revoked standards.
b. Transition requirements for nonattainment and attainment areas.
The EPA is proposing to retain its current approach for applying
transition requirements to various categories of nonattainment and
attainment areas. This approach is codified at 40 CFR 51.1105, and we
are proposing to retain the same approach adopted through the 2008
Ozone NAAQS SIP Requirements Rule in this rulemaking at 40 CFR 51.1305,
revised to address the revocation of the 2008 ozone NAAQS in addition
to the other prior revoked standards.
Table 4 provides a summary of the four transition categories, and
the proposed requirements that would apply for each of those
categories. The
[[Page 81289]]
following sections describe each category in detail.
Table 4--2015 Ozone NAAQS Transition Obligations
----------------------------------------------------------------------------------------------------------------
Designation for prior Proposed NNSR/PSD Other proposed transition
Designation for 2015 NAAQS NAAQS obligations obligations
----------------------------------------------------------------------------------------------------------------
1. Attainment...................... Attainment/Maintenance PSD remains in effect. --Area remains subject to
existing CAA section 175A
maintenance plan for the
prior ozone NAAQS and
requirements already in
the SIP.
--SIP subject to revision
consistent with CAA
sections 110(l) and 193.
--Existing CAA section 175A
maintenance plan, in
combination with an
approved PSD program,
satisfies maintenance
requirement under CAA
section 110(a)(1).
2. Attainment...................... Nonattainment for 2008 Nonattainment NSR in --Area remains subject to
ozone NAAQS. effect until control measures that were
revocation of the included in its adopted
2008 ozone NAAQS; SIP to meet nonattainment
then PSD applies. requirements.
--Control measures can be
modified in, or removed
from, active SIP only with
a CAA section 110(l)
demonstration and a CAA
section 193 demonstration
if applicable.
--Area's approved PSD
program satisfies CAA
section 110(a)(1)
maintenance provision.
3. Nonattainment................... Attainment/Maintenance Nonattainment NSR --Area remains subject to
applies based on 2015 existing CAA section 175A
ozone NAAQS maintenance plan (if
classification. applicable) for the prior
NAAQS and requirements
already in the SIP.
--SIP subject to revision
consistent with CAA
sections 110(l) and 193.
4. Nonattainment................... Nonattainment for 2008 Nonattainment NSR --Area subject to all
ozone NAAQS. applies based on applicable anti-
highest applicable backsliding requirements
classification. for 1-hr, 1997 and/or 2008
NAAQS.
--The area is no longer
required to adopt any
outstanding applicable
requirements for 1997 and/
or 2008 standards when the
area is redesignated to
attainment for the 2015
ozone NAAQS, or for the
revoked 1-hour, 1997 or
2008 NAAQS when the EPA
approves a redesignation
substitute.
----------------------------------------------------------------------------------------------------------------
i. Requirements for areas designated attainment for the 2015 ozone
NAAQS and maintenance for the 2008 ozone NAAQS. For this category, the
EPA is proposing that for areas designated attainment for the 2015
ozone NAAQS and maintenance for the 2008 ozone NAAQS, the area's
approved CAA section 175A maintenance plan for the revoked ozone NAAQS,
in combination with an approved PSD program, satisfies both its
obligations for maintenance under CAA section 110(a)(1) for the 2015
ozone NAAQS and its obligation to submit a second approvable
maintenance plan under CAA section 175A for the revoked ozone NAAQS.
This approach recognizes and reflects that such areas have in place an
ozone air quality management program that has successfully achieved
initial compliance with the 2015 ozone NAAQS and all previous ozone
NAAQS. Ongoing compliance with the 2015 ozone NAAQS in such areas will
be governed by the provisions of the area's approved SIP and the CAA's
general air quality management requirements in sections 107, 110 and
182. Any future revisions to the SIP would be subject to the general
``interference'' provisions of CAA section 110(l) and, if applicable,
the section 193 savings clause.\37\ Should the area subsequently
violate the 2015 ozone NAAQS, the contingency measures in the approved
maintenance plan would be triggered and the area may become subject to
a SIP call (under CAA section 110(k)(5)) or redesignation to
nonattainment (under CAA section 107(d)(3)).
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\37\ Section 110(l) of the CAA indicates that EPA cannot approve
a SIP revision if the revision would interfere with any applicable
requirement concerning attainment and RFP, or any other applicable
requirement of the CAA. Section 193 of the CAA prohibits the
modification of any rule adopted before November 15, 1990 in areas
designated as nonattainment for an air pollutant unless the
modification insures equivalent or greater emission reductions of
the relevant pollutant.
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ii. Areas designated attainment for the 2015 ozone NAAQS and
nonattainment for the 2008 ozone NAAQS. For this category, the EPA is
proposing that for areas designated attainment for the 2015 ozone NAAQS
and nonattainment for the 2008 ozone NAAQS, air agencies are relieved
of adopting any outstanding applicable requirements for the revoked
standards as of the effective date of the revocation; in other words,
these areas would not be subject to anti-backsliding requirements under
the principles of CAA section 172(e). We also propose that PSD SIPs for
these areas, once approved by the EPA, satisfy the obligation to submit
an approvable maintenance plan for the 2015 ozone NAAQS under CAA
section 110(a)(1).
Areas designated attainment for the 2015 ozone NAAQS and
nonattainment for the 2008 ozone NAAQS have already attained the most
stringent existing standard, notwithstanding their existing designation
as nonattainment for the 2008 NAAQS. Because it is mathematically
impossible to attain the 2015 NAAQS without having first attained the
2008 NAAQS (i.e., 0.070 ppm is necessarily less than 0.075 ppm), EPA
considers these areas to have attained the 2008 NAAQS at the time of
revocation of that standard. These areas, thus, have implemented an air
quality management program that, in combination with federal measures
and emissions controls in upwind areas, has produced sufficient
emissions reductions to achieve air quality that has both attained the
prior ozone
[[Page 81290]]
NAAQS and resulted in an attainment designation for the more protective
2015 ozone NAAQS. In this case, EPA proposes that an air agency would
not be obligated to implement the applicable anti-backsliding
requirements set forth in 51.1300(p) and 93.109(c)(2) at the time the
2008 NAAQS is revoked in these areas. Because CAA section 172(e) only
speaks to creation of regulatory anti-backsliding requirements for
``areas which have not attained th[e] standard as of the date of
[revocation],'' the EPA believes it is appropriate to not require the
regulatory anti-backsliding requirements listed in 40 CFR 51.1300(p)
and 40 CFR 93.109(c)(2) in these areas which have attained the 2008
standard as of the date that standard is revoked (by virtue of an
attainment designation for a more stringent standard). These areas
would remain subject to the prior emissions control requirements
(including contingency measures) already approved into the SIP. The
prior nonattainment area control requirements already approved into the
SIP can be revised upon a showing that such revision complies with CAA
sections 110(l) and 193.
Given the succession of NAAQS of increasing stringency that has
occurred, the EPA believes that the burden of developing a separate
approvable 110(a)(1) maintenance plan for the 2015 ozone NAAQS would
outweigh any compensating benefit for an area that is already attaining
that NAAQS and implementing, where applicable, any prior nonattainment
requirements that are already incorporated into the SIP and have been
sufficient to bring the area into attainment of both the prior and 2015
standards. Ongoing compliance with the 2015 ozone NAAQS in such areas
will be governed by the provisions of the area's approved SIP and the
CAA's general air quality management requirements in sections 107, 110
and 182. Should the area subsequently violate the 2015 ozone NAAQS, it
may become subject to a SIP call (under CAA section 110(k)(5)) or
redesignation to nonattainment (under CAA section 107(d)(3)).
iii. Areas designated nonattainment for the 2015 ozone NAAQS and
maintenance for the 2008 ozone NAAQS. For this category, the EPA is
proposing that an area's approved CAA section 175A maintenance plan for
the 2008 ozone NAAQS in combination with nonattainment obligations
under the 2015 ozone NAAQS would satisfy the obligation to submit a
second approvable maintenance plan under CAA section 175A for the
revoked 2008 ozone NAAQS. Areas in this category would already be
subject to the provisions of an approved CAA section 175A maintenance
plan for the revoked 2008 ozone NAAQS and would have been redesignated
to attainment for the revoked 2008 ozone NAAQS. The EPA's approval of
the redesignation request and of the CAA section 175A maintenance plan
for the 2008 ozone NAAQS would require the EPA to determine not only
that all applicable requirements for the 2008 ozone NAAQS have been
met, but also that all applicable anti-backsliding measures for the
1997 and 1-hour standards have been adopted and approved into the SIP.
No revision to a CAA section 175A maintenance plan for these areas can
be approved unless it complies with the conditions of CAA sections
110(l) and 193, which would ensure the revision would not interfere
with attainment and RFP for the 2015 standards.
Areas in this category would also be designated nonattainment for
the more stringent 2015 ozone NAAQS and, therefore, would be subject to
NNSR and other nonattainment requirements for their classification
under the more stringent 2015 ozone NAAQS. Thus, the EPA believes that
there is no useful purpose or justification for a second CAA section
175A maintenance plan that would apply only to the revoked 2008 ozone
NAAQS, in light of the nonattainment and eventual maintenance
requirements that apply for the more protective 2015 ozone NAAQS.
iv. Areas designated nonattainment for the 2015 ozone NAAQS and
nonattainment for the 2008 ozone NAAQS. For this category, the EPA is
proposing that for an area designated nonattainment for the 2015 ozone
NAAQS and nonattainment for the 2008 NAAQS (as of revocation of the
standard), an air agency would be obligated to implement the applicable
anti-backsliding requirements set forth in 40 CFR 51.1300(p) and 40 CFR
93.109(c)(2) for the revoked 2008 ozone NAAQS. This could include, as
applicable, anti-backsliding requirements associated with the revoked
1-hour and 1997 ozone NAAQS if the area was also designated
nonattainment for one or more of these ozone NAAQS when that NAAQS was
revoked and the status of the area with respect to those revoked NAAQS
has not been changed through a redesignation substitute. Nonattainment
NSR would apply in these areas in accordance with their highest
nonattainment classification under any ozone standards for which they
are (or were as of the effective date of the revocation) designated
nonattainment.\38\ Also, if these areas are classified Severe or
Extreme as of the effective date of the revocation of a prior standard,
the fee program requirements of CAA section 185 in relation to that
prior standard would continue to apply.
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\38\ In the case of an approved redesignation substitute, an air
agency seeking to remove NNSR provisions associated with a revoked
NAAQS from the active portion of the SIP must demonstrate
consistency with CAA sections 110(l) and 193.
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v. Application of transition requirements to nonattainment and
attainment areas. For purposes of determining an area's transition
requirements, we would first look to the area's initial designation for
the 2015 ozone NAAQS. We would then determine the area's designation
and classification status for the 2008 ozone NAAQS as of the effective
date the 2008 ozone NAAQS is revoked. Finally, where appropriate, we
would determine whether anti-backsliding requirements for the 1997 and
1-hour ozone NAAQS apply in the area and, if so, we would determine the
area's designation and classification status for those standards as of
the dates they were revoked.\39\
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\39\ If an area was initially designated attainment for the 2008
ozone NAAQS or was redesignated to attainment (``Maintenance'') for
the 2008 ozone NAAQS prior to the date of revocation of the 2008
NAAQS, then consistent with the position we took in the 2008 rule,
the area is no longer required to adopt any outstanding applicable
requirements for the revoked 1997 standard.
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5. Satisfaction of Anti-Backsliding Requirements for an Area
The EPA is proposing to retain its current approach through which
an air agency may demonstrate that it is no longer required to adopt
any additional applicable requirements for an area that have not
already been approved into the SIP for a revoked ozone NAAQS. The final
2008 Ozone NAAQS SIP Requirements Rule adopted two acceptable
procedures that, if followed and approved by the EPA, address anti-
backsliding requirements associated with one or more revoked standards.
These two procedures--formal redesignation to attainment and
redesignation substitute--are described later. We are proposing to
retain these two procedures for purposes of revocation of the 2008
ozone NAAQS. After one of these procedures has resulted in an approval
by the EPA, an air agency seeking to revise its SIP to remove anti-
backsliding measures, such as NNSR provisions, from the active portion
of the SIP must demonstrate consistency with CAA sections 110(l) and
193 (if applicable). Requirements could then be shifted from the active
portion of the SIP to the contingency
[[Page 81291]]
measures portion of the SIP (80 FR 12304; March 6, 2015).
The first of the proposed procedures is formal redesignation of the
area to attainment for the 2015 ozone NAAQS. For areas subject to anti-
backsliding requirements for the revoked 1997 or 2008 standards,
approval of a request for redesignation to attainment for the 2015
ozone NAAQS would signify that the air agency has satisfied its
obligations to adopt anti-backsliding requirements for the revoked 1997
or 2008 standards. Once the area is redesignated, the requirement(s)
for NNSR for the 2015 ozone NAAQS and for any prior ozone NAAQS cease
to apply, and the air agency may begin implementing the PSD program
requirements. Nonattainment NSR requirements may be removed from the
SIP, or may be retained as a maintenance plan contingency measure.\40\
This procedure is consistent with the EPA's longstanding interpretation
of NNSR requirements for areas that are redesignated to attainment.\41\
It is important to note that lifting the applicability of NNSR SIP
provisions in an area does not relieve sources in the area of their
obligations under previously established permit conditions.
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\40\ States in the OTR may not use this flexibility because the
CAA requires all areas of the OTR including attainment areas to
implement, at a minimum, the NNSR requirements prescribed for
Moderate areas.
\41\ See Greenbaum v. EPA, 370 F.3d 527, 534 (6th Cir. 2004)
(``The EPA argues that the Part D NSR program is inapplicable to
attainment areas, so that the requirement disappears upon
redesignation. After redesignation, Part D NSR is replaced by a PSD,
another permitting program designed to ensure maintenance of the
NAAQS in attainment areas. . . . The NSR program would not be
implemented as approved, as NSR programs are only required in
nonattainment areas.'')
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Redesignation to attainment would also terminate any obligations to
implement CAA section 185 fee programs in a Severe or Extreme area for
the 2015 or revoked 1997 or 2008 ozone NAAQS pursuant to the express
terms of CAA section 185. All of the remaining anti-backsliding
measures that have been approved into the SIP must continue to be
implemented unless or until the air agency can show that such
implementation is not necessary for maintenance, consistent with CAA
sections 110(l) and 193 if applicable.\42\
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\42\ This showing may be submitted to the EPA at the same time
as the maintenance plan, and may be approved by the EPA in a single
action. Subject to this process, anti-backsliding requirements
contained in the SIP could be shifted to the contingency measures
portion of a CAA section 175A maintenance plan or, in limited
circumstances (such as nonattainment NSR), removed from the SIP.
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The second of the proposed procedures for satisfying the anti-
backsliding requirements associated with a specific revoked standard is
referred to as a ``redesignation substitute.'' This redesignation
substitute showing would serve as a successor to redesignation to
attainment, for which the area would have been eligible were it not for
revocation. The showing is based on the CAA's criteria for
redesignation to attainment (CAA section 107(d)(3)(E)), but differs in
some important respects. This procedure does not require air agencies
to go through formal SIP submission procedures to submit a request for
approval of a redesignation substitute because the action is not a
redesignation under CAA section 107(d)(3)(E). States would have to
demonstrate that the area has attained the relevant revoked standard
and met all of the requirements for redesignation for that standard. An
area would then no longer be subject to any remaining applicable anti-
backsliding requirements associated with the specific revoked NAAQS,
including the major source thresholds and offset ratios associated with
the area's classification under those standards.\43\ The remaining NSR
requirements would be determined by the highest remaining
classification to which the area is subject, whether for the 2015 ozone
NAAQS or another revoked NAAQS for which the EPA had not approved a
redesignation substitute showing.
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\43\ An air agency seeking to remove NNSR provisions associated
with a revoked NAAQS from the active portion of the SIP must
demonstrate consistency with CAA sections 110(l) and 193.
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6. Application of the EPA's Determination of Attainment Regulation
(``Clean Data Policy'') for Purposes of the Anti-Backsliding
Requirements
The EPA is proposing to retain its current approach to implementing
the Clean Data Policy, under which a determination of attainment
suspends the obligation to submit certain attainment-related planning
requirements for the associated NAAQS for an area as long as the area
continues to attain those standards.\44\ This approach is codified at
40 CFR 51.1118 for the 2008 ozone NAAQS, and we are proposing to retain
the same approach for the 2015 ozone NAAQS at 40 CFR 51.1318, without
revision.
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\44\ The EPA initially issued the Clean Data Policy in 1995,
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard.'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May
10, 1995. For purposes of the 1997 ozone NAAQS, we codified that
policy at 40 CFR 51.918. This codified policy was upheld by the D.C.
Circuit in NRDC v. EPA, 571 F.3d 1245 (D.C. 2009).
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The planning elements that would be suspended under 40 CFR 51.1318
are the same as those suspended under existing 40 CFR 51.1118: RFP
requirements, attainment demonstrations, RACM, contingency measures and
other state planning requirements related to attainment of the relevant
standards. For a Severe or Extreme area, a CAA section 185 fee program
is expressly linked by the statute itself to an attainment plan.
Therefore, suspension of the obligation to submit the attainment plan
also necessarily suspends the obligation to submit the fee program
which is part of the attainment plan (provided that the EPA has not
already determined that the area failed to attain by its attainment
deadline and, thus, triggered the obligation to implement a fee
program). The EPA notes that a determination of attainment would not,
however, suspend obligations to submit non-planning requirements such
as NNSR, subpart 2 RACT or emission inventories under CAA section
182(a)(1).
Under this proposed approach, 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, would remain embodied in a regulation
applicable for the purpose of all existing and prior ozone NAAQS. We
believe that this approach makes the most sense for implementing the
2015 ozone NAAQS.
7. Relationship Between Implementation of the 2015 Ozone NAAQS and the
CAA Title V Permits Program
The EPA is proposing to retain its current approach for
implementing the title V permit program for sources in areas designated
nonattainment for the current ozone NAAQS and subject to anti-
backsliding requirements for a prior ozone NAAQS. The final 2008 Ozone
NAAQS SIP Requirements Rule adopted an approach under which, following
revocation of the prior (1997) ozone NAAQS, major source thresholds for
title V would be the same as the major source thresholds applicable for
purposes of other requirements such as RACT and NNSR (80 FR 12307;
March 6, 2015). We are proposing to retain this approach for purposes
of implementing the 2015 ozone NAAQS, without revision.
Under this proposed approach, following revocation of the 2008
ozone NAAQS, major source thresholds for title V would be the same as
the major
[[Page 81292]]
source \45\ thresholds applicable for purposes of other requirements,
such as RACT and NNSR. Specifically, the major source threshold
associated with the more stringent of the area's classification for the
2015, 2008, 1997 and/or 1-hour ozone NAAQS will be the applicable
threshold for title V purposes, to the extent that anti-backsliding
requirements for the 2008, 1997 and/or 1-hour ozone NAAQS apply in the
area.\46\ The final 2008 Ozone NAAQS SIP Requirements Rule amended the
definitions of ``major source'' in 40 CFR 70.2 and 71.2 as related to
application of title V thresholds, and we propose to retain these
definitions for purposes of the 2015 ozone NAAQS.
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\45\ 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. (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 ozone 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.) See CAA section 501(2)(B) and 502(a); 40 CFR 70.2; 71.2.
Thus, changes in an area's ozone 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.
\46\ 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 works with states to ensure that all approved title V
programs are adequate under the CAA.
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As background, the EPA notes that, under CAA section 502, sources
are required to operate in accordance with the terms of a title V
permit if, among other things, the source is a major source or the
source is required to have a permit under part D of title I. Thus, even
if a source is not a major source for purposes of title V, it is still
required to obtain a title V permit under part D of title I. We believe
that maintaining consistency between the NNSR and title V thresholds
promotes compliance with CAA requirements by providing a simpler
permitting regime, ensuring that sources subject to major source NNSR
understand they are also subject to title V, and enabling permitting
authorities to identify sources that are potentially subject to major
source NNSR.
C. Requirements for RFP: Milestone Compliance Demonstrations (MCD)
1. Background and Summary of Proposal
The EPA is proposing to revise its existing RFP provisions for
purposes of the 2015 ozone NAAQS to address MCDs required under CAA
section 182(g) for ozone nonattainment areas classified Serious or
higher. The existing regulatory provisions characterize the emissions
reductions and time intervals that constitute RFP milestones, but do
not explicitly address the requirements for demonstrating compliance
with these milestones. The following sections discuss the challenges of
MCD implementation for ozone, and a proposed approach that would
satisfy CAA requirements consistent with milestone demonstrations for
other regulated pollutants.
2. CAA Requirements for Ozone Milestone Compliance Demonstrations
CAA section 182(g)(1) requires that states demonstrate whether
nonattainment areas classified Serious, Severe, or Extreme have
achieved incremental emission reductions needed to ensure attainment of
the NAAQS (i.e., RFP) by the applicable attainment date at set time
intervals (i.e., milestones). The statute establishes an initial
milestone date of 6 years after November 15, 1990, and at intervals of
3 years thereafter. These milestones are mirrored in the general RFP
demonstration requirements of CAA sections 182(c)(2)(B) for Serious
areas, 182(d) for Severe areas, and 182(e) for Extreme areas. As
discussed in Section III.G of this preamble, we propose to retain the
existing general RFP requirements for purposes of the 2015 ozone
standards.
As noted previously, the existing ozone implementation regulations
do not explicitly address the MCDs required under the CAA.
Specifically, CAA section 182(g)(2) requires that states submit to the
Administrator a demonstration that an RFP milestone has been met, not
later than 90 days after the date on which the applicable milestone
occurs. For purposes of CAA section 182(g), the statute refers to the
required emissions reduction for the time interval as the applicable
milestone. Section 182(g)(2) of the CAA states that the form, manner of
submittal, and contents of the required compliance demonstration shall
be set by the Administrator, by rule.
CAA sections 182(g)(3) and (g)(5) establish measures a state shall
elect to implement if the state fails to submit an MCD by the due date
or the EPA determines that a milestone was not met. For Serious and
Severe areas, an air agency shall elect within 90 days of the failure
or determination to: (1) Have the area reclassified to the next higher
classification; (2) implement additional measures to meet the next
milestone per the applicable contingency plan; or (3) adopt an economic
incentive program as described in CAA section 182(g)(4). For an Extreme
area, an air agency shall within 9 months of the failure or
determination submit a SIP revision to implement a CAA section
182(g)(4) economic incentive program.
3. Proposed Approach for Ozone Milestone Compliance Demonstrations
The EPA is proposing that an air agency will have the option to
demonstrate milestone compliance in terms of either: (1) Compliance
with control measures requirements in an RFP plan that complies with
the requirements of the CAA (e.g., percent implementation), or (2)
actual emissions reductions, as demonstrated with periodic emissions
inventory data required under CAA section 182(a)(3)(A). In considering
the form and content of an ozone MCD submittal, the EPA referenced the
parallel statutory requirements for PM2.5, which are also
addressed in the final implementing regulations for the
PM2.5 NAAQS.\47\ Similar to ozone requirements, CAA section
189(c)(1) establishes a 3-year cycle for PM2.5 milestones,
but differs from ozone in how a milestone may be expressed. For
PM2.5, the statute requires quantitative milestones that
demonstrate RFP, whereas for ozone the milestone is expressed as the
actual emissions reduction increment that demonstrates progress toward
attainment. For both pollutants, the CAA provides Administrator
discretion in setting the form and content of the milestone
demonstration submittal.\48\
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\47\ See 81 CFR 58063-64 (August 24, 2016).
\48\ CAA sections 182(g)(2) and 189(c)(2) share the same basic
milestone demonstration submittal requirements, i.e., not later than
90 days after the date on which an applicable milestone occurs, each
State in which all or part of such area is located shall submit to
the Administrator a demonstration that the milestone has been met. A
demonstration shall be submitted in such form and manner, and shall
contain such information and analysis, as the Administrator shall
require. For PM2.5, the statute further qualifies that
the submittal also demonstrate that all measures in the SIP have
been implemented.
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The final implementing regulations for the PM2.5 NAAQS
require that the quantitative milestones be constructed
[[Page 81293]]
such that they can be tracked, quantified and/or measured adequately in
order for an air agency to meet its milestone reporting obligations,
which come due 90 days after a given milestone date. For
PM2.5, the EPA interprets CAA section 189(c) to allow air
agencies to identify milestones that are suitable for the specific
facts and circumstances of the attainment plan for a particular area,
so long as they provide an objective means to measure RFP.\49\
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\49\ In the Addendum to the General Preamble, the EPA suggested
(for implementation of the PM10 NAAQS) possible metrics
that ``support and demonstrate how the overall quantitative
milestones identified for an area may be met,'' such as percent
implementation of control strategies, percent compliance with
implemented control measures, and adherence to a compliance
schedule. This list was not exclusive or exhaustive but reflected
the EPA's view that the purpose of the quantitative milestone
requirement is to provide an objective way to determine whether the
area is making the necessary progress towards attainment by the
applicable attainment date (59 FR 42016; August 16, 1994).
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We are proposing a similar approach for MCDs for the 2015 ozone
NAAQS. We believe it would be sufficient for purposes of CAA section
182(g)(2) for an air agency to demonstrate milestone compliance in
terms of compliance with control measures requirements in the approved
RFP plan (e.g., percent implementation). The EPA would review each RFP
plan submission on a case-by-case basis to determine whether the
milestones contained in the plan are specific enough to provide an
objective means for evaluating the area's progress toward attainment,
consistent with the statutory requirements of CAA section 182(g).
This proposed measure provides a reasonable and feasible means to
implement the demonstration requirement in CAA section 182(g)(2)
because it is grounded in SIP provisions that correlate control
measures and resulting emissions reductions. Conversely, the EPA
believes it would not typically be feasible for air agencies to
demonstrate compliance with milestones based on an assessment of actual
emissions data because such data are not typically expected to be
timely available. Compiling and analyzing area-wide emissions data can
be a resource intensive and time consuming process that the EPA expects
takes many months after the end of an emissions reporting year. In
fact, the EPA's triennial emissions reporting rules provide no less
than 12 months for states to report annual emissions after the end of
the calendar year.\50\ This timing and resource concern is expected to
be even greater in a case where the MCD year and triennial emissions
reporting year are not aligned, such that the 90-day MCD submittal
timeframe would end well before emissions data from that reporting
process become available. For example, for an area with an RFP baseline
year of 2016, the first MCD year would be 2022 (6 years after RFP
baseline year). In this example, the most recent emissions reporting
year would be 2020, and the following emissions reporting cycle would
not end until 2023. This asynchronous timing would continue through
subsequent 3-year MCD cycles after the initial (6-year) MCD submission.
Our proposed optional approach would allow an air agency to uncouple
MCD submissions from the triennial cycle for periodic emissions
inventories, to facilitate compliance with the 90-day MCD submittal
timeframe under CAA section 182(g)(2), while preserving the option to
rely on periodic emissions inventory data where the appropriate data
are obtainable within the 90-day MCD submittal timeframe.
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\50\ Triennial emissions reporting periods are set by regulation
in the Air Emissions Reporting Requirements at 40 CFR part 51,
subpart A. The most recent and upcoming reporting years are 2014,
2017, 2020, 2023 and 2026, where the reports are due to the EPA by
December 31 of the calendar year that follows the reporting year.
The EPA's implementing regulations for the ozone NAAQS provide that
states may use the most recent triennial report period emissions
inventory to satisfy the nonattainment area reporting requirements
of CAA section 182(a)(3)(A). See 40 CFR 51.1115(b).
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We invite comment on this proposed approach for MCDs, including
potential alternatives to reporting actual emissions data as measures
for demonstrating RFP that air agencies can reasonably assess and
report within 90 days of each milestone.
D. Requirements for RACT: Deadlines for Submittal and Implementation of
RACT SIP Revisions
1. Background and Summary of Proposal
The EPA is proposing to retain its existing general RACT provisions
(see Section III.H of this preamble), and to add new RACT SIP revision
submission and implementation deadlines for specific kinds of
triggering events that occur after initial area designations under a
revised ozone NAAQS. The existing RACT provisions address submission
and implementation deadlines for areas (including portions of a state
located in an OTR) subject to initial designation and existing RACT
requirements, including measures described in existing CTGs. However,
existing RACT provisions do not contemplate some RACT SIP revision
submittal and implementation deadlines triggered by events occurring
after initial area designations, including area reclassifications and
the issuance of new CTGs. The following sections address the proposed
new RACT submittal and implementation deadlines for these post-
designation scenarios.
2. RACT SIP Revision Submittal and Implementation Deadlines for Newly-
Reclassified Areas
CAA section 182(b)(2) establishes that a state shall submit a
revision to a SIP to provide for implementation of RACT by 2 years
after November 15, 1990, and provide for RACT implementation as
expeditiously as practicable, but no later than May 31, 1995
(approximately 54 months total). For purposes of the 2008 ozone NAAQS,
the EPA interpreted this CAA timeframe to require submittal of RACT SIP
revision no later than 24 months after the effective date of initial
area designations, and implementation of the RACT SIP revisions no
later than January 1 of the fifth year after the effective date of
initial designations. We did not, however, establish regulatory
schedules for submission and implementation of RACT SIP revisions for
areas reclassified after initial area designations under an ozone
NAAQS.\51\ This includes mandatory reclassification to a higher
classification upon failure to attain (pursuant to CAA section
181(b)(2)), or voluntary reclassification to a higher classification
upon an air agency's request (pursuant to CAA section 181(b)(3)).
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\51\ For purposes of this preamble discussion,
``reclassification'' is assumed to encompass nonattainment areas
being reclassified, attainment areas being redesignated as
nonattainment and assigned an initial Moderate-or-higher
classification, and new OTR assignments. Similarly, ``RACT SIP
revision'' is assumed to encompass initial RACT SIPs triggered by an
initial area classification of--or reclassification to--Moderate or
higher.
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To address these reclassification scenarios, we are proposing
default submission and implementation deadlines for resulting SIP
revisions. The EPA is proposing that, following a reclassification
action, RACT SIP revisions be submitted no later than 24 months after
the effective date of reclassification, or the deadline established by
the Administrator in the action reclassifying an area. We are proposing
that the RACT SIP revisions be implemented as expeditiously as
practicable, but no later than the start of the ozone season attainment
year associated with the area's new attainment deadline, or January 1
of the third year after the associated SIP revision submittal deadline,
whichever is earlier. We are also proposing that the Administrator
would retain existing
[[Page 81294]]
authority to establish a different implementation deadline in the
action reclassifying an area. For example, for an area initially
classified in 2017 as Marginal that is reclassified in 2021 as
Moderate, the Administrator could require that a RACT SIP revision be
submitted no later than 1 year after the final reclassification action
(i.e., 2022). In this case, the RACT SIP revision must then be
implemented no later than the start of the ozone season attainment year
(i.e., 2023), unless a different implementation deadline were
established in the reclassification action. This proposed approach
would apply to nonattainment area reclassifications and any portion of
a state newly included in an OTR.
For the timeline for implementing RACT SIP revisions triggered by
area reclassifications that occur after initial area designations, we
propose to establish a deadline relative to the submittal due date for
associated RACT SIP revisions. The CAA authorizes the Administrator to
adjust applicable SIP submission deadlines as necessary or appropriate
to assure consistency among required submissions. Regarding mandatory
reclassifications pursuant to CAA section 181(b)(2), CAA section 182(i)
allows the Administrator to adjust applicable deadlines (excluding
attainment dates), including those for SIP submittals. For voluntary
reclassifications, CAA section 181(b)(3) does not establish a precise
timeframe for submitting an attainment plan. Current practice is that
we establish SIP revision submittal deadlines through the action
granting an air agency's request for voluntary area reclassification.
Depending on the timing of the reclassification action, the resulting
SIP revision submittal deadline might allow adequate lead time for RACT
implementation, or impinge on the applicable attainment year (i.e., the
ozone season immediately preceding a nonattainment area's maximum
attainment date). In the latter case, timely RACT implementation may be
difficult or infeasible, with an implementation deadline potentially
approaching or exceeding the reclassified area's new maximum attainment
date. We still believe it is important to provide a generic
implementation deadline, in addition to retaining Administrator
discretion in setting a specific implementation deadline where
appropriate.
We are proposing a generic RACT SIP implementation deadline of no
later than January 1 of the third year after the associated SIP
revision submittal deadline. This generic implementation deadline would
apply where the Administrator elects to not establish a specific
alternate implementation deadline in an area reclassification action.
The proposed interval between the RACT SIP revision submittal deadline
and the implementation deadline was developed by drawing a parallel to
the construct of the overall RACT SIP revision submittal and
implementation timeframe articulated in section 182(b)(2) of the CAA.
In the statute, SIP revisions for sources of VOCs were required by 2
years after November 15, 1990, and were required to provide for RACT
implementation as expeditiously as practicable, but no later than the
start of the ozone season that is the third year after the SIP revision
deadline (i.e., May 31, 1995, approximately 54 months total).
We invite comment on the proposed submission and implementation
deadlines for SIP revisions resulting from reclassification actions.
3. RACT SIP Revision Submittal and Implementation Deadlines Associated
With New Control Techniques Guidelines
The CAA is silent regarding the schedule for implementation of RACT
SIP revisions triggered by new CTGs. When new CTGs are issued, these
RACT SIP revisions would be applicable to areas classified Moderate or
higher, and any portion of a state located in an OTR. For CTGs in
effect at the time of initial designations for a revised NAAQS, the EPA
has interpreted the CAA provisions to require implementation of related
RACT SIP revisions as expeditiously as practicable, but no later than
January 1 of the fifth year after the effective date of initial
designations for the revised NAAQS (80 FR 12279; March 6, 2015). For
new CTGs issued after initial area designations, we considered several
approaches for establishing deadlines for submitting and implementing
RACT SIP revisions.
Under the first approach, we are proposing a RACT SIP submission
deadline of no later than 24 months after the effective date of the
action issuing the CTG, or the deadline established by the
Administrator in the action issuing the CTG. We are proposing that the
RACT SIP revisions be implemented no later than January 1 of the third
year after the associated SIP revision submittal deadline. This
deadline is based on the same rationale and approach used for our
proposed generic implementation deadline for RACT SIP revisions
triggered by reclassification actions, discussed in the preceding
section. We are requesting comment on the appropriate implementation
deadline, and propose that it should in no case exceed January 1 of the
third year after the SIP revision submittal deadline.
Under the second approach, we would also articulate in the general
RACT provisions the Administrator's authority to establish an alternate
to the generic deadline for implementing RACT SIP revisions in the
action issuing a new CTG. Under this option, setting a RACT SIP
revision implementation deadline in a CTG action would allow the
Administrator to tailor the implementation timeframe to the particular
technical considerations and attainment objectives associated with the
sources subject to the CTG.
We are proposing this second combined approach that would establish
a generic RACT implementation deadline for SIP revisions resulting from
new CTGs, while also articulating the Administrator's authority to set
a different implementation deadline in the action issuing a new CTG.
This proposed approach would apply to covered sources nonattainment
areas and portions of a state located in an OTR subject to new RACT SIP
obligations. Under this proposed approach, RACT SIP revisions must be
submitted no later than 24 months after the effective date of
reclassification, or the deadline established by the Administrator in
the action issuing a new CTG. We are proposing that RACT SIP revisions
be implemented as expeditiously as practicable, but no later than
January 1 of the third year after the associated SIP revision submittal
deadline. This generic implementation deadline would apply where the
Administrator elects to not establish a specific RACT implementation
deadline for an individual new CTG. Note that the CAA already requires
that RACT SIP revisions triggered by a new CTG must be submitted within
the period specified by the Administrator in the action issuing the new
CTG. We invite comment on the proposed submission and implementation
deadlines for SIP revisions resulting from new CTGs.
As discussed in Section III.H of this preamble, the EPA is
proposing to otherwise adopt all existing RACT requirements for
purposes of the 2015 ozone NAAQS, based on the current rationale and
approach articulated in the final 2008 Ozone NAAQS SIP Requirements
Rule.
[[Page 81295]]
E. Requirements for RACM: Consideration of Sources of Intrastate
Transport of Pollution
1. Background and Summary of Proposal
The EPA is proposing to retain its existing general RACM provisions
(see Section III.H of this preamble), and to clarify in the rule that,
in addition to sources located in an ozone nonattainment area, air
agencies must also consider the impacts of emissions from sources
outside an ozone nonattainment area (but within a state's boundaries),
and must require other measures for emissions reductions from these
intrastate sources if needed to attain the ozone NAAQS by the
applicable attainment date. This proposed rule provision is consistent
with SIP elements required under the CAA, as well as existing EPA
policy articulated in previous NAAQS implementation rulemakings.
2. Applicability of CAA Requirements and Existing EPA Policy
CAA section 172(c)(6) requires that SIP provisions include
enforceable emission limitations and other control measures, means or
techniques as may be necessary to attain a standard by the applicable
attainment date. The EPA interprets this provision to include
``additional reasonable measures,'' which are those measures and
technologies that can be applied to any emission source within an air
agency's jurisdiction, including those outside of a nonattainment area.
Upwind sources within a state may have a significant impact on air
quality in a nonattainment area, and failure to consider and require,
as appropriate, reasonable control measures for these sources may
preclude the expeditious attainment of a NAAQS in the area. Though not
directly a part of RACM, the EPA has addressed this ``other control
measures'' provision in the preamble discussions for previous NAAQS
implementation rulemakings,\52\ and proposes to codify this
interpretation in the ozone implementation rules.
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\52\ See the Phase 2 final rule to implement the 8-hour ozone
NAAQS (70 FR 71623; November 29, 2005) and the final rule to
implement the PM2.5 NAAQS (81 FR 58035; August 24, 2016).
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3. Proposed Requirement for RACM, Other Control Measures and Sources of
Intrastate Transport of Pollution
The EPA is proposing that, for each nonattainment area required to
submit an attainment demonstration (see Section III.F of this
preamble), an air agency shall submit with the attainment demonstration
a SIP revision demonstrating that it has adopted all RACM necessary to
demonstrate attainment as expeditiously as practicable and to meet any
RFP requirements. This SIP revision shall include, as applicable, other
control measures on sources of emissions of ozone precursors located
outside the nonattainment area or portion thereof, located within the
state if doing so is necessary to provide for attainment of the
applicable ozone NAAQS within the area by the applicable attainment
date.
We invite comment on the proposed inclusion of this SIP revision
requirement for RACM and other control measures in the ozone
implementation rule provisions. As discussed in Section III.H of this
preamble, the EPA is proposing to otherwise adopt all existing RACM
requirements for purposes of the 2015 ozone NAAQS, based on the current
rationale and approach articulated in the final 2008 Ozone NAAQS SIP
Requirements Rule.
F. Nonattainment NSR Offset Requirement: Interprecursor Trading for
Ozone Offsets
1. Background
In 2015, the EPA took final action in the 2008 ozone SRR to amend
the regulatory text in 40 CFR 51.165 and part 51 Appendix S to allow
air agencies to permit IPT for ozone as part of their NNSR
programs.\53\ See existing 40 CFR 51.165(a)(11)(i) and part 51 Appendix
S section IV.G.5(i). These ozone IPT provisions allow any new or
modified major stationary source locating in an ozone nonattainment
area to satisfy the NNSR emissions offset requirements for ozone with
emissions reductions of VOC or NOX interchangeably.
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\53\ The term interprecursor trading (IPT) is being used in this
preamble to describe the EPA's policy supporting the use of
emissions reductions of precursors of a pollutant (NOX
and VOC for ozone) to be used interchangeably as emissions offsets
under the NNSR program. The EPA recognizes that other terms,
including interpollutant trading, interpollutant offsetting, and
interprecursor offset substitution, have also been used in the past.
The EPA intends to use ``IPT'' moving forward to promote consistency
in this preamble.
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On May 5, 2015, a coalition of environmental and health advocate
groups \54\ filed an administrative petition for reconsideration
raising two specific challenges to the EPA's codified IPT policy.
Petitioners alleged that the EPA unlawfully failed to provide for
adequate public comment on the ozone IPT provisions that we finalized
and, in addition, that the CAA specifically prohibits ozone IPT in the
NNSR context. The EPA granted the petition for reconsideration on
November 5, 2015, in order to allow for public comment on those
provisions.
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\54\ Earthjustice filed the petition on behalf of Sierra Club,
Conservation Law Foundation, Downwinders at Risk and the Physicians
for Social Responsibility--Los Angeles.
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This action, in response to the petition for reconsideration,
proposes and requests comment on ozone IPT provisions for the NNSR
offset requirement, as described in Sections IV.F.2 and 4 of this
preamble. Under these provisions, IPT cannot be used to meet the NNSR
offset requirement unless the precursor substitution is technically
supported. For air agencies implementing an EPA-approved NNSR program,
these provisions must be approved in the air agency's plan addressing
NNSR requirements for ozone. In addition, as explained in Section
IV.F.5 of this preamble, the EPA is including a Technical Guidance
Document (TGD) (in the Docket to this rulemaking) to assist air
agencies and major stationary sources of ozone in the development of
ozone IPT ratios tailored to particular ozone nonattainment areas. The
EPA also requests comment on the process and framework described in
this TGD to establish IPT ratios.
2. Proposed IPT Provisions for Ozone Offsets
The EPA proposes to reaffirm its longstanding policy that air
agencies may allow major stationary sources to use ozone IPT to satisfy
the NNSR offset requirements in ozone nonattainment areas. In addition,
the EPA is proposing criteria for developing and implementing ozone IPT
programs that will be applicable in particular ozone nonattainment
areas. The proposed ozone IPT provisions would replace the existing
provisions contained in the NNSR regulations at 40 CFR 51.165 and
Appendix S. In addition, the EPA proposes that these ozone IPT
provisions would supersede any previous ozone IPT policy articulated in
EPA guidance.\55\
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\55\ The EPA's prior guidance concerning the use of IPT to
satisfy the NNSR requirements for emissions offsets was contained in
a 2001 EPA document titled ``Improving Air Quality with Economic
Incentive Programs'' (January 2001). The EPA's policy on IPT for
ozone, when finalized through this rulemaking, will supersede the
information contained in that earlier document specifically with
respect to IPT.
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In proposing new ozone IPT provisions, it is important to note that
the EPA is not proposing to change or seek comment on any existing or
traditional NNSR emissions offsets requirements contained in the NNSR
regulations at 40 CFR 51.165 and part 51 Appendix S. Existing NNSR
emissions
[[Page 81296]]
offset requirements are based largely on Part D of title I of the CAA's
nonattainment requirements. These existing requirements include the
statutory offset ratios applicable in specific ozone nonattainment
areas (based on an area's classification for ozone), geographic
restrictions as to where creditable emissions reductions may be
obtained, and other criteria concerning the creditability of emissions
reductions to be used as offsets.
A key component of an ozone IPT program for any ozone nonattainment
area is an IPT ratio.\56\ An IPT ratio is intended to ensure that the
substitution of one ozone precursor for another in an offset
transaction, substantiated by modeling or other technical
demonstration, provides an equivalent or greater air quality benefit
for ozone concentrations in the ozone nonattainment area. The EPA is
proposing that air agencies submit to the EPA as part of a plan that
must be approved by the Administrator: (1) Their ozone IPT provisions,
including the default IPT ratio(s) where applicable; (2) a description
of the air quality model(s) that have been used to develop any default
ratio(s); and (3) an accompanying modeling demonstration that such
ratio(s) provide an equivalent or greater air quality benefit for ozone
concentrations in the ozone nonattainment area. The EPA recommends that
each air agency implementing an ozone IPT program consult with the
appropriate EPA Regional office as the air agency develops a modeling
protocol to establish IPT ratios for a particular nonattainment area.
The EPA seeks comment on the proposed contents of the plan submission
and the approach for establishing area-specific default IPT ratios.
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\56\ The IPT ratio is separate and distinct from the statutory
ratios contained in the CAA and associated with area classifications
for ozone nonattainment areas. Both ratios must be applied in
determining the appropriate emissions offset that must be applied
for a particular offset transaction.
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The EPA proposes to provide flexibility for air agencies to
incorporate IPT ratios into their IPT programs for ozone nonattainment
areas.\57\ As stated in the 2008 PM2.5 NSR rulemaking, the
EPA believes the flexibility provided by this policy allows air
agencies and sources to take into account the role that ozone
precursors play in the formation of ground-level ozone in specific
ozone nonattainment areas due to the specific terrain, local and
regional source emissions mixture, and meteorological conditions that
exist in each area, and to select the most cost-effective manner to
obtain the offsets necessary to ensure that air quality improves. This
flexibility will also be beneficial where offsets for one particular
precursor are scarce in a particular area. The goal of the CAA is to
have air quality that is healthy, i.e., meeting the NAAQS, and there is
a strong principle in the CAA that air agencies have discretion to
choose from a range of options in designing plans to meet that goal,
which may include the choice to use the most cost-effective measures to
get there.
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\57\ For a discussion of proposed options for air agencies to
implement their ozone IPT provision, see Section IV.F.4 of this
preamble.
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When the EPA published its NNSR implementation rules for
PM2.5 in 2008, we indicated that, while the new
implementation rules allowed for air agencies to adopt EPA-approved IPT
programs to satisfy the NNSR offset requirements for PM2.5,
such trading for netting purposes was disallowed. See 73 FR 28340 (May
16, 2008). Consistent with that policy, the EPA intends that IPT not be
allowed for purposes of netting under the NNSR program.
Use of ozone IPT is not permissible where an air agency chooses to
include emissions offsets from NNSR air permitting in their initial 15
percent RFP (ROP) plan for those Moderate or higher ozone nonattainment
areas that are satisfying this ROP requirement for the first time under
CAA section 182(b)(1)(A)(i). The EPA believes that this restriction on
the use of IPT is necessitated by the CAA, which provides that this
initial RFP (ROP) plan requirement must be satisfied exclusively by
reductions in VOC emissions.\58\ We seek comment on this restriction on
ozone IPT.
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\58\ See CAA Section 182(b)(1)(a)(1)(i), the final 2008 ozone
SRR (80 FR 12269, March 6, 2015) and section III.G of this preamble.
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3. Authority To Establish Ozone NNSR IPT
The EPA previously authorized IPT to satisfy the NNSR offset
requirement for PM2.5 \59\ in its NNSR regulations pursuant
to the CAA. The EPA continues to believe that the CAA accommodates the
use of technically supported IPT to satisfy the NNSR offset
requirement.\60\ Section 173(c)(1) of the CAA states that the NNSR
offset requirement shall ``assure that the total tonnage of increased
emissions of the air pollutant from the new or modified source shall be
offset by an equal or greater reduction, as applicable, in the actual
emissions of such air pollutant from the same or other sources in the
area.'' Section 302(g) of the CAA defines ``air pollutant'' to include
``. . . any precursors to the formation of any air pollutant, to the
extent the Administrator has identified such precursor or precursors
for the particular purpose for which the term `air pollutant' is
used.'' (Emphasis added).
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\59\ The EPA notes that this proposal concerns only IPT for
ozone. Accordingly, this action does not affect the existing
requirements concerning PM2.5 IPT.
\60\ See 73 FR 28321, 28340 and 28347 (May 16, 2008).
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The EPA's NNSR regulations identify both NOX and VOC as
precursors for ozone, and, as such, NOX and VOC are both
regulated under NNSR as part of the regulation of ozone (See 40 CFR
51.165(a)(xxxvii)(C)(1)). Thus, when applied to ozone, the term ``air
pollutant'' in section 173 of the Act may be read to describe both
NOX and VOC, which are precursors for the pollutant ozone.
The EPA, therefore, reads the Act to allow the total annual tonnage of
emissions of one ozone precursor to be offset by reductions in total
annual emissions of another ozone precursor (in units of tpy) pursuant
to an IPT ratio that shows the reductions will have an equivalent or
greater air quality benefit. This cannot replace or supersede the
statutory ratio for the applicable area classification, which must be
considered in developing the IPT ratio.
Emissions of NOX and VOC are not considered
interchangeable for all aspects of ozone control. For example, in
certain situations for RFP purposes, the CAA NNSR requirements for
ozone in the CAA expressly require reductions in VOC emissions.
However, in many NNSR permitting situations, with an appropriate
technical demonstration, it is possible to establish ratios for using
NOX decreases to offset VOC increases, or vice versa, that
result in an equivalent or greater air quality benefit for ozone
concentrations in the ozone nonattainment area.
4. Proposed Implementation of Ozone NNSR IPT Provisions
The EPA recognizes that ozone IPT can be implemented in several
ways, with the primary variable being the way in which the IPT ratio is
established and applied. The EPA proposes that air agencies be allowed
to choose any of the options presented later, including a combination
if so desired, as a feature of their EPA-approved NNSR programs.
However, as explained in Section IV.F.4.c of this preamble, we believe
that for implementing ozone IPT in NNSR permits issued pursuant to
Appendix S, an air agency will be limited to the use of case-by-case
IPT ratios. Accordingly, with the goal of providing flexibility to air
agencies/
[[Page 81297]]
sources, the EPA is proposing and seeking comment on the following
implementation options:
a. EPA approval of case-by-case ozone IPT ratios. Under a case-by-
case ozone IPT ratio option, air agencies would generally require each
permit applicant who wishes to use ozone IPT to satisfy the NNSR
emissions offset requirement to calculate the ozone IPT ratio that
would be used to determine the amount of the required emissions
reduction for each proposed project. The EPA believes that this option
would be desirable for air agencies that anticipate few requests for
ozone IPT and do not want to expend the resources needed to establish
an up-front area-specific default ratio as described in Section
IV.F.4.b of this preamble. The EPA is proposing that, in choosing this
option, the air agency must include for the EPA's approval a plan
submission addressing NNSR program provisions that explicitly authorize
case-by-case IPT ratios for a particular ozone nonattainment area(s).
Such plan submission must include the procedures by which permit
applicants may implement ozone IPT in satisfying the NNSR emissions
offset requirement, including a description of the model(s) that will
be used, and the calculation of the IPT ratio with a demonstration that
such IPT ratio provides an equivalent or greater air quality benefit
for ozone concentrations in the ozone nonattainment area. The EPA is
also proposing that the air agency's ozone IPT provision must provide
that any ozone IPT ratio that an applicant proposes for an individual
permit must be approved by both the reviewing authority and the EPA.
b. EPA approval of area-specific default ozone IPT ratio. Under the
area-specific default ozone IPT option, an air agency would adopt in
its plan addressing NNSR requirements for ozone an area-specific
default IPT ratio to be used for all applicable NNSR permits issued in
a particular ozone nonattainment area. This option would require that a
description of the model(s) used, along with the calculated default
ratio and the technical demonstration substantiating the equivalent or
greater ozone benefit in that nonattainment area, be included in a plan
submission for EPA approval. A default ratio that has become part of an
approved plan and has undergone public comment during the plan approval
process would not require further EPA approval, or be subject to
additional public comment, each time it is utilized by individual
permit applicants.
c. Limitations for implementing ozone IPT under Appendix S. In the
specific case where an air agency issues permits pursuant to the
interim NNSR requirements under Appendix S, the EPA believes that the
air agency's only discretionary option for implementing ozone IPT is
the case-by-case ratio option described in Section IV.F.4.a of this
preamble. The NNSR requirements under Appendix S generally apply to
permits issued in ozone nonattainment areas before the air agency
receives approval of its plan including an NNSR program. Thus, such air
agencies would not have the opportunity to include in their plan an IPT
provision that includes an area-specific default ozone IPT ratio.
Accordingly, the EPA is proposing regulatory language in the ozone IPT
provisions of Appendix S to include the requirement that each permit
applicant seeking to satisfy the offset requirement through IPT must
identify and substantiate a case-by-case ratio and provide the
necessary justification demonstrating an equivalent or greater ozone
benefit in the nonattainment area. The EPA is proposing in Appendix S
that such ratio must be approved by both the reviewing authority and
the EPA. See proposed section IV.G.5 of Appendix S in 40 CFR part 51.
d. Other implementation considerations. The EPA is also proposing
for consideration a requirement that the air agency periodically review
an area-specific default ratio that is included in its EPA-approved
ozone IPT program to ensure the default ratio continues to be valid for
the area. The air agency would need to submit new modeling to confirm
that the default ratio is still appropriate. The EPA proposes that such
periodic evaluation occur at least every 3 years from the air agency's
prior plan submission including a default area-specific IPT ratio. The
EPA believes the 3-year period is reasonable, since it coincides with
RFP milestone dates and periodic area-specific emissions inventory
submission deadlines. The EPA seeks comment on the need to require that
an EPA-approved IPT program include periodic program evaluations by the
air agency and the appropriate frequency of such evaluations.
As explained earlier, the EPA believes that it is reasonable for
air agencies to have the option of implementing either a case-by-case
ozone IPT ratio or an area-specific default IPT ratio, depending on the
needs and capabilities of the individual air agencies. The EPA also
believes that air agencies having EPA-approved NNSR programs should
have the option of implementing a combination of the two proposed
options. This would enable an air agency to develop an area-specific
default IPT ratio, but, at the same time, allow an individual permit
applicant to propose an alternative case-specific IPT ratio (if it can
demonstrate to the satisfaction of both the reviewing authority and the
EPA that such alternative ratio is appropriate for the proposed
offsetting transaction for a specific permit application).
Finally, IPT programs are discretionary on the part of air agencies
and are not required SIP revisions. Therefore, air agencies would not
be required to submit a regulatory provision consistent with the
proposed IPT provision at 40 CFR 51.165(a)(11)(i) within the 36-month
timeframe set forth in 40 CFR 51.1314 for NSR requirements for the
revised ozone NAAQS. Air agencies would be permitted to submit an IPT
plan revision to the EPA for approval within the 36-month timeframe or
at any later date that the air agencies deems to be appropriate.
5. Proposed Technical Guidance Document for Developing Ozone IPT Ratios
As mentioned earlier in the preamble, the EPA is including a TGD in
the docket for this rulemaking. The purpose of the proposed TGD is to
provide air agencies with guidance on a technical approach to estimate
ozone impacts from precursor emissions for a specific nonattainment
area or for case-by-case determinations. The TGD provides a framework
and associated general methodology to apply existing or new empirical
relationships between ozone and precursors to develop IPT ratios. The
data sets and analyses included in the TGD may be used by air agencies
as appropriate to develop IPT ratios; alternatively, air agencies may
use existing modeling or generate their own modeling to provide the
basis for the development of IPT ratios. The EPA believes the
methodology presented in the TGD may be used by air agencies for
developing default IPT ratios for specific nonattainment areas, and by
air agencies and major stationary sources for developing appropriate
case-by-case IPT ratios.\61\ The EPA is seeking comment on all aspects
of the TGD.
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\61\ The EPA does not propose in the regulations to require
permitting authorities to use the data or methods described in the
TGD.
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In addition, in light of proposed changes to EPA's Guideline for
Air Quality Models, published as Appendix W to 40 CFR part 51, which
provide greater clarity regarding the use of
[[Page 81298]]
chemical transport modeling to estimate single-source ozone impacts
from precursors, any empirical relationships deemed acceptable for
estimating single-source compliance with the NAAQS under PSD permitting
could also provide credible and suitable information for air agencies
to establish area-specific IPT ratios for purposes of satisfying the
NNSR offset requirements. The EPA is seeking comment on the use of
technically credible relationships estimated with chemical transport
models between single-source ozone impacts and precursors to provide
the basis for an IPT ratio. Appendix W (if finalized, as proposed)
provides guidelines for area-specific assessments of precursor
emissions impacts on ozone and these guidelines may also support the
development of case-by-case IPT ratios or area-specific default IPT
ratios for ozone precursors.
G. Emissions Inventory and Emissions Statement Requirements
1. Background and Summary of Proposal
The EPA is proposing to clarify its emissions inventory and
emissions statement requirements in the context of this action by
adding 40 CFR 51.1315. CAA sections 182(a)(1) and 182(a)(3)(A) require
states to submit emissions inventories to the EPA. To clarify these
statutory requirements within the context of implementing the 2008
ozone NAAQS, the EPA added 40 CFR 51.1115 (80 FR 12264, 12314; March 6,
2015). These statutory and regulatory authorities do not address the
associated emissions statement requirements under CAA section
182(a)(3)(B). For purposes of the 2015 ozone NAAQS we are proposing to
add 40 CFR 51.1315, which will clarify requirements for the emissions
inventories and emissions statements required by CAA sections
182(a)(1), 182(a)(3)(A), and 182(a)(3)(B), respectively. While the
proposed 40 CFR 51.1315 is similar to the existing 40 CFR 51.1115,
these provisions are not identical, as discussed later. Moreover, we
are also clarifying in this preamble how air agencies demonstrate
compliance with CAA section 182(a)(3)(B) in the context of the 2015
ozone NAAQS.
2. Emissions Inventories
The emission inventory requirements for the 2008 ozone NAAQS, found
at 40 CFR 51.1115, describe the criteria and timing for base year and
periodic inventories required under CAA sections 182(a)(1) and
182(a)(3)(A), respectively. For reference, the preamble to the final
2008 Ozone NAAQS SIP Requirements Rule provides an extensive discussion
of the EPA's rationale and approach for emission inventories (80 FR
12289; March 6, 2015). In general, we provided that air agencies may
rely, when appropriate, on their 3-year cycle inventory as described by
the Air Emissions Reporting Requirements rule (AERR, codified in 40 CFR
51, subpart A) to meet the 182(a)(3)(A) periodic inventory obligations,
with additional requirements for the reporting of ozone season day
emissions and treatment of partial-county inventories.\62\
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\62\ States should consult the latest version of the guidance
document titled ``Emission Inventory Guidance for Implementation of
Ozone and Particulate Matter National Ambient Air Quality Standards
(NAAQS) and Regional Haze Regulations,'' EPA-454/R-05-001 (latest
final November 2005; revised draft April 2014) and any subsequent
updates to that guidance that the EPA makes available at: https://www.epa.gov/air-emissions-inventories/emissions-inventory-guidance-implementation-ozone-and-particulate-matter.
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To support the periodic emissions inventory requirement, the EPA is
proposing revisions to the AERR point source reporting thresholds in
AERR Table 1 (40 CFR 51, subpart A, appendix A) to be consistent with
the major source thresholds for ozone nonattainment areas. These
reporting thresholds are in tons of potential emissions per year. The
existing AERR Table 1 includes Moderate area thresholds of 100 tpy for
NOX and VOC, which are the same as the triennial thresholds
for all areas. The existing AERR table also includes lower VOC
thresholds for the Serious, Severe, and Extreme areas of 50, 25 and 10
tpy. With this proposed revision, the AERR table would be updated to
also explicitly include these same Serious, Severe and Extreme area
thresholds for NOX. The same thresholds as have existed for
VOC also apply for NOX, consistent with definition of
``major source'' in both 40 CFR 70.2 and 40 CFR 71.2. In addition, the
VOC and NOX thresholds also depend on whether the source is
within an OTR in accordance with CAA 184(b)(2). Thus, the EPA proposes
to include in the AERR table a 50 tpy potential-to-emit (PTE) VOC
threshold for sources within an OTR and a 50 tpy PTE NOX
threshold for sources both within an OTR and within a Moderate ozone
nonattainment area. The latter requirement applies the same definition
noted above in 40 CFR 70.2 and 40 CFR 71.2. Finally, this proposal
removes the lower 100 tpy PTE carbon monoxide (CO) threshold from
Appendix A for ozone nonattainment areas because there is no major
source threshold for CO in the current or proposed implementing
regulations for the ozone NAAQS. The EPA notes that these proposed
revisions are technical corrections, and we are not proposing or
accepting comment on any substantive revisions to the AERR itself.
Air agencies are advised to check the EPA Web site for the
currently approved mobile source models and to consult with the EPA
Office of Transportation and Air Quality and their Regional office to
determine the versions of models to use for their SIPs for the 2015
ozone NAAQS. MOVES2014a, which incorporates both onroad and nonroad
emissions estimates, is the most recently approved model for states
other than California. The model and additional information are
available at: http://www.epa.gov/otaq/models/moves/index.htm. Other
appropriate methods should be used to estimate emissions of nonroad
sources not included in the model. For California, consult with the EPA
Region 9 for information on the latest approved version of the EMFAC
(Emissions FACtors) model. EMFAC2014 is the most recently approved
model.
The EPA is proposing to otherwise adopt the same emission inventory
requirements for the 2015 ozone NAAQS, based on the current approach
articulated in the final 2008 Ozone NAAQS SIP Requirements Rule.
3. Emissions Statements
For nonattainment areas, air agencies must develop, and include in
their SIP, emission reporting programs for certain VOC and
NOX sources in accordance with CAA section 182(a)(3)(B). The
required state program defines how air agencies obtain emissions data
directly from certain facilities, and these data, along with other
information, are then reported to the EPA as part of SIP inventories
required by CAA sections 182(a)(1) and 182(a)(3)(a). This state program
is generally referred to as an emissions statement regulation, and it
outlines how certain facilities must report emissions and facility
activity data to an air agency, typically a state. Reports submitted to
air agencies must be accompanied by ``a certification that the
information contained'' in the report is ``accurate to the best
knowledge'' of the facility.\63\ To properly implement the emissions
reporting requirements, smissions statement regulations should be
coordinated carefully with the data
[[Page 81299]]
elements that are required by the EPA (existing requirements at 40 CFR
51.1115 and proposed at 40 CFR 51.1315). An air agency must submit the
emissions statement regulation required by CAA section 182(a)(3)(B), or
a written statement certifying a previously-approved regulation, to the
EPA as a SIP revision for approval (see Section III.A.2 of this
preamble). CAA section 110, in conjunction with 40 CFR 51.102, 103 and
Appendix V, establishes the procedure for submitting a SIP revision.
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\63\ Additional details on developing emissions statement
regulations can be found in the guidance document titled ``Guidance
on the Implementation of an Emission Statement Program (DRAFT),''
(July 1992) available at: https://www.epa.gov/air-emissions-inventories/implementation-emission-statement-program.
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V. Additional Considerations
This section addresses several important requirements and policies,
with one exception, the EPA is not proposing specific regulatory text
due to lingering legal issues, scientific unknowns and uncertainties
associated with developing and implementing new requirements and/or
policies. The one exception concerns proposed new regulatory provisions
that require air agencies to demonstrate RACM for Marginal areas for
treatment under CAA section 179B (see Section V.D of this preamble).
The EPA is using this notice, however, to solicit public comment on
these requirements and policies to inform possible future actions.
A. Managing Emissions From Wildfire and Wildland Prescribed Fire
The final 2008 Ozone NAAQS SIP Requirements Rule discussed the
large contribution that wildfire can make to air pollution (including
ozone), and wildfire's threat to public safety. The rule also
recognized that this effect can be mitigated through management of
wildland vegetation, including through prescribed fire. Such mitigation
can help manage the contribution of fires to ozone levels in
nonattainment areas. Therefore, the EPA recommended as guidance but not
as a requirement of the final rule, if wildfire impacts are significant
and contribute to exceedances of the standard, then air agencies should
consider RACM for wildfires (which RACM could include a required
program of prescribed fires). The EPA also recommended that air
agencies should consider RACM for managing emissions from prescribed
fires (including those prescribed fires conducted to reduce future
wildfire emissions). The rule noted that information is available from
the U.S. Department of the Interior (DOI) and the U.S. Department of
Agriculture (USDA) Forest Service on smoke management programs and
basic smoke management practices (BSMP). See 80 FR 12282.
More recently, in its proposed implementation rule for the
PM2.5 NAAQS, the EPA proposed to recommend as guidance, but
not as a requirement of the final rule, if wildfire impacts are
significant, and contributed to exceedances of the standard, then air
agencies should consider RACM for wildfires (which RACM could include a
required program of prescribed fires). The EPA also proposed to
recommend that air agencies should consider RACM for managing emissions
from prescribed fires (including those prescribed fires conducted to
reduce future wildfire emissions). The proposal noted that information
is available from the DOI and the USDA Forest Service on smoke
management programs and BSMP. The EPA requested comment on the concept
of, and practical considerations associated with RACM for wildfire and
RACM for prescribed fire, including such issues as how such measures
can be characterized in the emissions inventory and attainment
demonstration and made federally enforceable for adoption in a SIP (80
FR 15372; March 23, 2015). Upon consideration of public comments and
further consultation with other federal agencies, the EPA recommended,
as guidance for air agencies as they implement the final
PM2.5 implementation rule, that air agencies follow a
different approach to addressing RACM for wildland fire than the
approach that the EPA proposed to recommend (81 FR 58038-39; August 24,
2016). We are proposing the same recommended approach for purposes of
implementing the 2015 ozone NAAQS, as discussed in this preamble.
Before explaining this recommendation further, the EPA wishes to
clarify that the recommendation is focused on wildland fire management.
There are other uses of prescribed fire and other types of burning that
occur in nonattainment areas, or that affect downwind nonattainment
areas, such as burning of land clearing debris, agricultural burning,
and burning of logging slash on land where the primary purpose of the
logging is for commercial timber sale.\64\ The challenges with applying
the traditional nonattainment planning framework that are raised in
this discussion are particular to wildland fire, and the EPA believes
that addressing these other uses of prescribed fire does not present
nearly the same level of challenge, and thereby can still be
accommodated within the nonattainment planning framework. For example,
where these other types of burning currently contribute to ozone levels
in a nonattainment area, air agencies may, with an adequate technical
demonstration, be able to take credit for reductions resulting from
improvement in smoke management techniques for these types of
prescribed fire where the improvement results in a demonstrated
reduction in impacts in the nonattainment area. The remainder of this
discussion is not meant to address these categories, and is instead
focused on prescribed fire on wildlands.
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\64\ The EPA notes that some wildland logging operations are
conducted for the same purposes as prescribed fire (e.g., reducing
fuel load, ecosystem benefits). The fact that some of the removed
trees may be sold as timber does not make commercial timber sale the
primary purpose of such operations.
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The EPA also wants to clarify that it is not the intention to in
any way discourage federal, state, local or tribal agencies or private
land owners from taking situation-appropriate steps to minimize impacts
from prescribed fire emissions on wildland. The EPA encourages all land
owners and managers to apply appropriate BSMP to reduce emissions from
prescribed fires, especially where an air agency has determined that
prescribed fires are a significant source affecting air quality. The
EPA understands that the federal land managers (FLMs) apply these
measures routinely and will be available to consult with other agencies
and private parties interested in doing the same.
However, for several reasons, the EPA does not believe it would be
effective policy or technically appropriate to recommend that control
measures for wildland fire be adopted into the SIP as enforceable
measures and credited for emissions reductions (of ozone and
precursors) that would help the area attain the standard.\65\ Instead,
EPA recommends that ozone nonattainment plans (and in particular the
attainment demonstrations) not expressly account for expected air
quality changes over the planning period resulting from changes in the
use of wildland prescribed fire to reduce future wildfires, or air
quality changes over the planning period resulting from changes in
wildland fire emissions due to a program of prescribed fire or due to
any other cause including climate change. In most cases, state
attainment demonstration modeling should assume that wildland
[[Page 81300]]
prescribed fire and wildfire emissions in the attainment year will be
equal to, and have the same temporal and geographic pattern as, those
assumed in the baseline inventory year.
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\65\ These reasons include concerns raised by commenters about
the difficulties associated with requiring or even encouraging
states to incorporate wildland fire emissions into existing
nonattainment planning procedures and practices under the CAA; high
year-to-year variability and unpredictability with emissions from
wildland fires; uncertainty in the amount of credit to give for
reduced wildfire within the planning period and in the amount of
benefit that exists after accounting for increases in prescribed
fires within the planning period; and finally, the fact that air
quality data actually influenced by fire events may ultimately be
excluded under the provisions of the Exceptional Events Rule (40 CFR
50.14).
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The EPA acknowledges that some temporal and spatial patterns of
fire emissions must still be assumed in the attainment demonstration in
order to ensure that the required air quality modeling results in a
realistic physical and chemical environment and a correspondingly
realistic model response against which to analyze the changes from
categories where express accounting of changes is still being done.
This rule is not intended to constrain the options for states regarding
the appropriate assumptions to make for fire emissions. Rather, it
simply recommends that once this base level is established, ozone plans
should not attempt to expressly project changes over the planning
period in emissions from wildfires or prescribed fires on wildland
within the nonattainment area, or in upwind areas included in the
modeling domain, that are due to variability in wildfire occurrence or
changes in the use of prescribed fire or other wildland fire management
practices. Moreover, the EPA anticipates that changes in spatial and
temporal patterns of wildfire will likewise be too uncertain for them
to be allowed to have the effect of reducing or increasing the control
requirement on conventional anthropogenic sources. The EPA therefore
recommends that baseline wildland fire emissions should generally be
held constant over the planning period, regardless of whether wildland
fire management practices by land managers are expected, and possibly
encouraged, to change.
Air agencies still have flexibility in determining how best to
represent baseline wildland fire emissions. As noted earlier, base year
emission inventories for the nonattainment areas should represent the
conditions leading to nonattainment and be consistent with inventories
used for modeling. For fires, the EPA additionally encourages air
agencies to use a representative mix of prescribed fire and wildfire in
their inventories. Using PM2.5 as an example, some plans
under previous PM2.5 NAAQS have estimated the actual fire
emissions and temporal and spatial patterns from a given year and used
this estimate as the assumed future baseline for planning, while others
have used average emissions over multiple years. Other approaches may
be appropriate as well. Moreover, regardless of the approach used, the
EPA still encourages air agencies to submit actual wildfire and
prescribed fire activity data that are critical to developing emissions
estimates to the NEI as suggested in the AERR.
A consequence of the recommendation of not expressly accounting for
changes in wildland fires in attainment demonstrations is that measures
to reduce emissions from wildland fires, such as prescribed fire to
prevent catastrophic wildfires and for mitigation purposes or smoke
management programs and BSMP for prescribed fires in wildland, need not
be included as RACM for the respective fire types. This is because the
changes in emissions due to such measures would not be accounted for in
determining what is necessary for attainment and/or what would advance
the attainment date, which is how the EPA is recommending that RACM be
determined. So, for example, in an area that can attain in 6 years with
measures that do not address wildland fire, the EPA does not recommend
that states attempt to quantify whether increased prescribed fire could
advance the attainment date by 1 year, due to aforementioned
difficulties associated with such quantification.
To be clear, nothing about this policy regarding RACM is intended
to suggest that fires should be ignited in wildland (or elsewhere)
without regard to the air quality or public health consequences. As
noted earlier, the EPA believes these consequences are important to
address, and intends to engage in dialogue with the FLMs, air agencies,
tribes, state and private land owners and other stakeholders at
appropriate times, such as during the process for the development of
land management plans, about how land managers determine when and where
prescribed fire is appropriate for particular wildlands and how to
identify and implement appropriate mitigation measures. The policy
simply makes clear the EPA's view regarding its recommendation for RACM
for wildland fires.
Finally, the EPA notes that, because a significant element of the
rationale for this policy is the uncertainty in the timing of
wildfires, we may reconsider this recommendation in the future, if
adequate tools emerge that allow for predicting fire emissions with
sufficient specificity. However, even if such tools emerge, due to
inherent uncertainties it may be impossible to satisfactorily
incorporate the use of such information into an attainment
demonstration framework.
B. Transportation Conformity and General Conformity
1. What is conformity?
Conformity is required under CAA section 176(c) to ensure that
federal actions are consistent with (``conform to'') the purpose of the
SIP. Conformity to the purpose of the SIP means that federal activities
will not cause new air quality violations, worsen existing violations,
or delay timely attainment of the relevant NAAQS or interim reductions
and milestones. Conformity applies to areas that are designated
nonattainment, and those nonattainment areas redesignated to attainment
with a CAA section 175A maintenance plan after 1990 (``maintenance
areas'').
The EPA's Transportation Conformity Rule (40 CFR 51.390 and part
93, subpart A) establishes the criteria and procedures for determining
whether transportation activities conform to the SIP. These activities
include adopting, funding or approving transportation plans,
transportation improvement programs (TIPs) and federally supported
highway and transit projects. The EPA first promulgated the
Transportation Conformity Rule on November 24, 1993 (58 FR 62188), and
subsequently published several amendments. We subsequently restructured
the Transportation Conformity Rule in such a manner that existing
conformity requirements will apply for any new or revised NAAQS (77 FR
14979; March 14, 2012); the conformity rule, therefore, applies
directly and does not need to be updated to reflect the 2015 ozone
NAAQS. However, the EPA intends to issue an update to existing
transportation guidance related to the implementation of the revised
ozone standards. The updates to the existing guidance will address
topics that include when conformity applies for the 2015 ozone NAAQS,
when conformity may stop applying for the 2008 ozone NAAQS and the
baseline year to be used by metropolitan planning organizations (MPOs)
in nonattainment areas for the 2015 ozone NAAQS that are required to
use one or both of the interim emissions tests to demonstrate
conformity before such areas have adequate or approved motor vehicle
emissions budgets for the 2015 ozone NAAQS (or adequate or approved
budgets for a previous ozone NAAQS). For further information on
transportation conformity rulemakings, policy guidance and outreach
materials, see the EPA's Web site at http://www3.epa.gov/otaq/stateresources/transconf/policy.htm.
With regard to general conformity, the EPA first promulgated
general
[[Page 81301]]
conformity regulations in November 1993 (40 CFR part 51, subpart W and
40 CFR part 93, subpart B). Subsequently, the EPA finalized revisions
to the general conformity regulations on April 5, 2010 (75 FR 17254).
The general conformity program ensures that federal actions not covered
by the Transportation Conformity Rule will not interfere with the SIP.
General conformity also fosters communications between federal agencies
and state and local air quality agencies, provides for public
notification of and access to federal agency conformity determinations
and allows for air quality review of individual federal actions. More
information on the general conformity program is available at http://www3.epa.gov/airquality/genconform/.
2. Why is the EPA discussing transportation and general conformity in
this proposed rulemaking?
The EPA is discussing transportation and general conformity in this
proposed rulemaking in order to provide affected parties with
information on when conformity must be implemented after nonattainment
areas are designated for the 2015 ozone NAAQS. The information
presented here is consistent with existing conformity regulations and
statutory provisions that are not addressed by this ozone
implementation rulemaking. Affected parties include state and local
transportation and air quality agencies, MPOs, and federal agencies
including the U.S. Department of Transportation (DOT), the U.S.
Department of Defense, the DOI and the USDA.
3. When would transportation and general conformity apply to areas
designated nonattainment for the 2015 ozone NAAQS?
Transportation and general conformity will apply 1 year after the
effective date of nonattainment designations for a new or revised ozone
NAAQS including the 2015 ozone NAAQS. This is because CAA section
176(c)(6) provides a 1-year grace period from the effective date of
initial designations for any new or revised NAAQS before transportation
and general conformity apply in areas newly designated nonattainment
for a specific pollutant and NAAQS. The grace period applies to newly
designated nonattainment for a new or revised ozone NAAQS including the
2015 ozone NAAQS even if the area had been designated nonattainment for
a prior ozone NAAQS. With regard to general conformity, the EPA's April
2010 revisions to its general conformity regulations (see 75 FR 17277;
April 5, 2010) apply the same 1-year grace period to all new or revised
NAAQS--including the 2015 ozone NAAQS--for purposes of general
conformity.
With regard to transportation conformity, the conformity grace
period will apply to all areas designated nonattainment for a new or
revised ozone NAAQS including the 2015 ozone NAAQS. The requirements
differ depending on whether the nonattainment area includes any part of
an MPO designated under 23 United States Code (U.S.C.) section 134.
Within 1 year after the effective date of the initial nonattainment
designation for a given pollutant and NAAQS, the MPOs and DOT must make
a conformity determination with regard to that pollutant and standard
for all of the metropolitan transportation plans and TIPs in the
nonattainment area. The conformity requirements for surrounding ``donut
areas,'' including the application of the 1-year conformity grace
period, are generally the same as those for metropolitan areas.\66\ 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.\67\ The practical impact of a
conformity lapse will vary from area to area. Finally, the 1-year
conformity grace period also applies to project level conformity
determinations.
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\66\ 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).
\67\ During a conformity lapse, only the following projects can
receive additional federal approvals and funding:
1. Projects that are exempt from transportation conformity such
as elimination of at-grade railroad crossings, repaving roadways,
widening narrow pavements and reconstructing bridges as long as new
travel lanes are not added because they are exempt from conformity;
and
2. Transportation control measures included in approved SIPs
because these projects provide emissions reductions toward attaining
or maintaining the NAAQS.
Additionally, any project or project phase that was funded or
approved prior to a lapse may proceed but no additional funding or
approval decisions may be made until the lapse is ended.
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Isolated rural nonattainment areas are areas that do not contain or
are not part of an MPO (40 CFR 93.101).\68\ Conformity requirements for
isolated rural nonattainment areas can be found at 40 CFR 93.109(g).
One year after the effective date of the initial nonattainment
designation for a given pollutant and NAAQS, conformity requirements
with regard to that pollutant and standard would apply in any
nonattainment areas that are isolated rural areas. Per the
Transportation Conformity Rule, at the point that a transportation
project in an isolated rural area needs federal funding or approval,
the project sponsor (e.g., the state DOT) would prepare the
documentation required for the transportation conformity determination,
including a regional emissions analysis. The Federal Highway
Administration and Federal Transit Administration could then make the
transportation conformity determination. This conformity determination
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 in metropolitan, donut
and isolated rural areas (69 FR 40008-14).\69\
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\68\ An isolated rural nonattainment area as defined in the
transportation conformity rule is distinct from a CAA section 182(h)
rural transport area. An isolated rural area for transportation
conformity purposes is a nonattainment area that does not contain or
is not part of any metropolitan planning area as designated under
federal transportation planning regulations. (40 CFR 93.101) A rural
transport area as defined in CAA section 182(h) is a nonattainment
area that is not adjacent to or part of any metropolitan statistical
area or consolidated metropolitan area, if one exists. Such an area
may be treated as a rural transport area if the Administrator finds
that sources of VOC and, if relevant, NOX emissions in
the area do not make a significant contribution to the ozone
concentrations measured in the area or other areas.
\69\ Also, see the EPA's transportation conformity Web site for
more information, including EPA's ``Transportation Conformity
Guidance for 2008 Ozone NAAQS Nonattainment Areas'' at: http://www3.epa.gov/otaq/stateresources/transconf/2008naaqs.htm.
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4. Would transportation and general conformity apply for the 2008 ozone
NAAQS once that NAAQS is revoked?
The CAA only requires transportation and general conformity
determinations in areas that are designated nonattainment or
maintenance for a given pollutant and standard.\70\ As discussed in
Section IV.B of this preamble, the EPA is proposing two options for
revoking the 2008 ozone NAAQS. One option is to revoke the 2008 ozone
NAAQS for all purposes as has been done for the 1997 and 1-hour ozone
NAAQS one year after the effective date of designations for the 2015
ozone NAAQS. The second option is to revoke the 2008 ozone NAAQS in
areas that have always been designated attainment for that NAAQS and in
areas that have been redesignated to
[[Page 81302]]
attainment with an approved CAA section 175A maintenance plan. Under
the second option, the 2008 ozone NAAQS would be revoked in all
attainment areas for that NAAQS one year after the effective date of
designations for the 2015 ozone NAAQS. EPA will continue to redesignate
nonattainment areas for the 2008 ozone NAAQS after the initial
revocation. In those areas that are redesignated at a later date, the
2008 ozone NAAQS will be revoked on the effective date of the
redesignation but in no case sooner than 1 year after the effective
date of the designation for the 2015 ozone NAAQS for the area.
Therefore, transportation and general conformity would no longer apply
for purposes of the 2008 ozone NAAQS as of the time those standards
(and, thus, an area's designation for those standards) are revoked.
Accordingly, transportation and general conformity determinations would
no longer be required in existing 2008 ozone NAAQS nonattainment and
maintenance areas after the 2008 ozone NAAQS is revoked under either of
the proposed options. However, under option 2, the revocation for areas
designated as nonattainment for the 2008 ozone NAAQS would not occur
one year after the effective date of designations for the 2015 ozone
NAAQS. The revocation for these areas would only occur on the effective
date of their redesignation to attainment for the 2008 ozone NAAQS if
such redesignation were to occur.
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\70\ Maintenance areas are areas that have been redesignated to
attainment with an approved CAA section 175A maintenance plan.
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Under our current Transportation Conformity Rule, the latest
approved or adequate emission budgets for a prior ozone NAAQS (i.e.,
the 2008, 1997 or the 1-hour ozone NAAQS) would continue to be used in
transportation conformity determinations for the 2015 ozone NAAQS until
emission budgets are established and found adequate or are approved for
the 2015 ozone NAAQS (77 FR 14981, 14981; April 20, 1990). The use of
the latest approved or adequate motor vehicle emission budgets for a
prior ozone NAAQS as part of transportation conformity determinations
in nonattainment areas for the 2015 NAAQS until 2015 ozone motor
vehicle emissions budgets are available has been recognized as a
``control'' for purposes of defining anti-backsliding requirements as
discussed in section IV.B of this proposal. South Coast Air Qual. Mgmt.
Dist. v. EPA, 489 F.3d at 1248 (clarifying South Coast, 472 F.3d at
904-05). This requirement is already codified at 40 CFR 93.109(c)(2).
5. What impact will the implementation of the 2015 ozone NAAQS have on
an air agency's transportation and/or general conformity SIP?
As long as the EPA does not make specific changes to its
transportation or general conformity regulations, air agencies should
not need to revise their transportation and/or general conformity SIPs.
The EPA is not proposing any changes to its transportation conformity
or general conformity regulations. Air agencies with new nonattainment
areas may need to revise conformity SIPs in order to ensure the state
regulations apply in any newly designated areas.
However, if this is the first time that transportation conformity
will apply in a state, the air agency is required by the statute and
EPA regulations to submit a SIP revision that addresses three specific
transportation conformity requirements that address 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 the EPA's ``Guidance for Developing Transportation
Conformity State Implementation Plans (SIPs)'' (http://www3.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf).
6. Are there any other impacts related to general conformity based on
implementation of the 2015 ozone NAAQS?
As air agencies develop SIP revisions for the 2015 and future ozone
NAAQS, the agency recommends that state and local air quality agencies
work with federal agencies with large facilities (e.g., commercial
airports, ports and large military bases) that might take actions
subject to the general conformity regulations to establish an emissions
budget in the SIP for those facilities in order to facilitate future
conformity determinations under the conformity regulations. Such a
budget could be used by federal agencies in determining conformity or
identifying mitigation measures for particular projects at those
facilities, but only if the budget level is included and identified in
the SIP.
In a few cases, tracts of land under federal management may also be
included in nonattainment and maintenance area boundaries. The role of
fire in these areas should be assessed and emissions budgets developed
in concert with those federal land management agencies. In such areas
the EPA encourages air agencies to consider in any baseline, modeling
and SIP attainment inventory used and/or submitted to include emissions
expected from projects subject to general conformity, including
emissions from wildland fire that may be reasonably expected in the
area. Where appropriate, air agencies may consider developing plans for
addressing wildland fuels in collaboration with land managers and
owners. Information is available from DOI and USDA Forest Service on
the ecological role of fire and on smoke management programs and
BSMP.\71\
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\71\ USDA Forest Service and Natural Resources Conservation
Service, Basic Smoke Management Practices Tech Note, October 2011,
http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1046311.pdf.
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C. Requirements for Contingency Measures in the Event of Failure To
Meet a Milestone or To Attain
For purposes of the 2015 ozone NAAQS, the EPA is proposing no
changes to the requirements for contingency measures articulated in the
final 2008 Ozone NAAQS SIP Requirements Rule (80 FR 12285; March 6,
2015).\72\ As required by the CAA, nonattainment areas must include in
their SIPs contingency measures consistent with CAA section 172(c)(9),
and those classified Serious or higher must include contingency
measures that are also consistent with CAA section 182(c)(9), with
limited exceptions for Extreme nonattainment areas relying on plan
provisions approved under CAA section 182(e)(5). These contingency
measures must be fully adopted rules or measures that are ready for
implementation quickly upon failure to meet milestones or attain by the
attainment deadline. Per EPA guidance,\73\ these measures should
provide 1 year's worth of reductions, or
[[Page 81303]]
approximately 3 percent of the baseline emissions inventory. If these
adopted contingency measures are insufficient to attain the standard,
an air agency must conduct additional control measure development and
implementation for the area as necessary to correct the shortfall.
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\72\ The EPA acknowledges that the U.S. Court of Appeals for the
9th Circuit recently issued an opinion in Bahr v. EPA, No. 14-72327,
2016 U.S. App. LEXIS 16667 (9th Cir. Sept. 12, 2016), which rejected
EPA's longstanding interpretation of section 172(c)(9) in the
context of a SIP for particular matter standards that allowed states
to rely on control measures that are already in effect as a valid
means to meet the contingency measure requirement. The EPA is still
in the process of assessing and determining how to address the Bahr
decision, but does not currently plan to alter the Agency's
longstanding interpretation outside of the 9th Circuit, especially
in light of a prior decision from the U.S. Court of Appeals for the
5th Circuit upholding that interpretation. See Louisiana Envt'al
Action Network v. EPA, 382 F.3d 575 (5th Cir. 2004); see also 40 CFR
56.5(b).
\73\ 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.'' Available at: http://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19930823_shapiro_15pct_rop_guidance.pdf.
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Regarding content of the 1 year's worth of reductions covered by
the contingency measures, the EPA is proposing to continue to allow
these reductions of the contingency measures to be based entirely or in
part on NOX controls if the area has completed the initial
15 percent ROP VOC reduction required by CAA section 182(b)(1)(A)(i)
and an air agency's analyses have demonstrated that NOX
substitution (entirely or in part) would be effective in bringing the
area into attainment. The EPA will continue to allow the use of federal
measures providing ongoing reductions into the future to be used meet
contingency measure requirements for the 2015 ozone NAAQS, consistent
with the EPA's longstanding policy.
With respect to Extreme ozone nonattainment areas, CAA section
182(e)(5) allows the agency to exercise discretion in approving Extreme
area attainment plans that rely, in part, on the future development of
new control technologies or improvements of existing control
technologies, where certain conditions are met. This discretion can be
applied as long as an air agency has demonstrated that: All RACM,
including RACT, have been included in the plan; the area's RFP
demonstration during the first 10 years after designation does not rely
on anticipated future technologies; and the air agency has submitted
enforceable commitments to timely develop and adopt contingency
measures to be implemented if the anticipated future technologies do
not achieve planned reductions. The EPA is proposing to continue to
allow air agencies to submit, for Extreme nonattainment areas,
enforceable commitments to develop and adopt contingency measures
meeting the requirements of 182(e)(5) to satisfy the requirements for
both attainment contingency measures in CAA sections 172(c)(9) and
182(c)(9). These enforceable commitments must obligate the air agency
to submit the required contingency measures to the EPA no later than 3
years before any applicable implementation date, in accordance with CAA
section 182(e)(5).\74\ We note that this does not, however, relieve air
agencies from obligations to submit contingency measures as required by
CAA sections 172(c)(9) and 182(c)(9) for periods in the first 10 years
after designation.
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\74\ For example, where a state intends to rely on CAA section
182(e)(5) commitments to satisfy the CAA section 182(c)(9)
contingency measure requirement for an RFP milestone in year 2027,
the commitments must obligate the state to submit adopted
contingency measures to the EPA no later than 2024 (i.e., 3 years
before RFP contingency measures for 2027 would be implemented).
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D. International Transport and Background Ozone
Most modeled ozone air quality values that exceed the NAAQS in the
United States (U.S.) are due primarily to emission sources within the
U.S. However, domestic ozone air quality can also be affected by
sources of emissions located outside of the U.S. These contributions to
U.S. ozone concentrations from sources outside of the U.S., which can
be from nearby sources in a bordering country or from sources many
thousands of miles away,\75\ can affect to varying degrees the ability
of some areas to attain and maintain the 2015 ozone NAAQS. The EPA will
continue to work with our domestic and international partners to better
understand the extent and implications of transboundary flows of air
pollutants and, where possible, to mitigate their impact on U.S.
domestic air quality.
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\75\ Observational and modeling studies have shown that
international ozone precursor emissions can lead to ozone formation
within the atmospheric boundary layer over far-upwind areas. When
meteorological conditions are favorable, this ozone can be
transported within the mid- and upper troposphere where ozone
lifetimes can exceed one week. Eventually, these ozone plumes can
mix down to the surface and contribute to local ozone concentrations
within the U.S. (Task Force on Hemispheric Transport of Air
Pollution, 2010).
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Congress recognized that some nonattainment areas may be impacted
not only by local sources of ozone or ozone precursor emissions, but
also sources of emissions from outside of the U.S. Through CAA section
179B, Congress provided the EPA with the authority to approve
attainment plans for areas that could attain the relevant NAAQS by the
statutory attainment date ``but for'' emissions emanating from outside
the U.S. When applicable, this CAA provision relieves states from
imposing control measures on emissions sources in the state's
jurisdiction beyond those necessary to address reasonably controllable
emissions from within the U.S. Specifically, CAA section 179B(a)
provides that the EPA shall approve an attainment plan for such an area
if: (i) The attainment plan meets all other applicable requirements of
the CAA, and (ii) the submitting state can satisfactorily demonstrate
that ``but for emissions emanating from outside the United States,''
the area would attain and maintain the relevant NAAQS. In addition, CAA
section 179B(b) applies specifically to the ozone NAAQS and provides
that if a state demonstrates that an ozone nonattainment area would
have timely attained the NAAQS by the applicable attainment date ``but
for emissions emanating from outside of the United States,'' then the
area can avoid extension of the ozone attainment dates pursuant to CAA
section 181(a)(5), the application of fee provisions of CAA section
185, and the mandatory reclassification provisions under CAA section
181(b)(2) \76\ for areas that fail to attain the ozone NAAQS by the
applicable attainment date. Section 179B, thus, provides an important
tool that provides states relief from the requirement to demonstrate
attainment--and from the more stringent planning requirements that
would result from failure to attain--in areas where, even though the
air agency has taken appropriate measures to address air quality in the
influenced area, emissions from outside of the U.S. prevent attainment.
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\76\ It is EPA's longstanding position that the Clean Air Act
contained an erroneous reference to section 181(a)(2) instead of
181(b)(2) in 179B(b). See ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990,'' 57 FR 13498, 13569 fn. 41 (April 16, 1992).
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In the 2008 ozone SIP Requirements Rule, the EPA stated that a
section 179B demonstration could include consideration of any emissions
from North American or intercontinental sources. (80 FR 12293). The EPA
also stated at that time that it did not believe use of section 179B
was limited to nonattainment areas adjoining international borders. Id.
at 12294. The EPA notes, however, that the science review conducted as
part of the 2015 ozone NAAQS suggests that the influence of
international sources on U.S. ozone levels will be largest in locations
that are in the immediate vicinity of Mexico or Canada (80 FR 65292,
65444; October 26, 2015). The EPA, therefore, anticipates that section
179B will most often be used by states with areas along the border with
Mexico and Canada. Historically, the EPA has used CAA section 179B
authority to approve attainment plans in the immediate vicinity of the
Mexican border, including El Paso, Texas,\77\ Imperial Valley,
California,\78\ and
[[Page 81304]]
Nogales, Arizona.\79\ Consistent with the particular showing required
by the statutory language, the EPA will consider section 179B
demonstrations on a case-by-case basis. The EPA asks for comment on
whether the opportunity for such a demonstration should be limited to
nonattainment areas adjoining international borders, and on any
technical and legal basis for determining whether it is appropriate to
have, or conversely whether it is appropriate not to have, such a
limitation.
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\77\ 59 FR 2532 (January 18, 1994); 68 FR 39457 (July 2, 2003);
69 FR 32450 (June 10, 2004).
\78\ 66 FR 53106 (October 19, 2001), overturned in Sierra Club
v. EPA, et al., 352 F.3d 1186 (9th Cir. 2003).
\79\ 77 FR 58962 (September 25, 2012).
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Even if an area is impacted by emissions from outside the U.S., CAA
section 179B does not affect the designations process.\80\ The
designations process is meant to protect public health and welfare.
Designating an area nonattainment for a particular NAAQS ensures that
the public is informed that the air quality in a specific area does not
meet the standard. Congress determined that in nonattainment areas,
there should be adequate safeguards to protect public health and
welfare. For example, Congress required such areas to have NNSR
permitting programs, to ensure that air quality is not further
degraded. Accordingly, areas with design values above the 2015 ozone
NAAQS will be designated nonattainment and will be classified with a
classification as indicated by actual ambient air quality. As a result
of designation and classification, the state is subject to the
applicable requirements, including NNSR, conformity, and other measures
prescribed for nonattainment areas by the CAA. Section 179B of the CAA
does not provide for any relaxation of mandatory emissions control
measures (including contingency measures) or the prescribed emissions
reductions; it only eliminates the obligation for an attainment
demonstration that demonstrates attainment and maintenance of the
NAAQS, which is conditioned upon the state meeting all other attainment
plan requirements,\81\ and voids certain consequences of an area's
failure to attain, including mandatory reclassifications.
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\80\ Monitoring data cannot be excluded for a determination of
whether an area has attained a NAAQS based solely on the fact the
data are affected by international transport. However, such data may
be excluded from consideration if they were significantly influenced
by exceptional events as described in CAA section 319(b). Where
international transport meets the criteria and procedural
requirements contained in the EPA's Exceptional Events Rule (40 CFR
50.14), it may be addressed by that rule. See 81 FR 68216 (October
3, 2016).
\81\ For a more detailed description of attainment planning
requirements, see Section III.A of this preamble.
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CAA section 179B does not alter the CAA's general construct
expressed in subpart 1 of part D that states with nonattainment areas
are expected to adopt reasonable emissions controls to lessen emissions
of criteria pollutants to promote citizen health protection. The
construct ensures that states will take reasonable actions to mitigate
the public health impacts of exposure to ambient levels of pollution
that violate the NAAQS by imposing reasonable control measures on the
sources that are within the jurisdiction of the state regardless of
impacts from interstate or international emissions. The primary purpose
of part D of Title I of the CAA is to achieve emission reductions so
that people living in a nonattainment area receive the public health
protection intended by the NAAQS.
Marginal ozone nonattainment areas are not generally required to
implement reasonably available control technology requirements under
subpart 2 of part D of Title 1 of the CAA. If an air agency were to
apply for treatment under CAA section 179B(b) to avoid mandatory
reclassification of a Marginal area after its failure to attain by the
applicable attainment date, an area could continue to remain Marginal
and, therefore, never implement reasonable emissions controls.
The EPA believes that adopting an interpretation of CAA section
179B that would allow people to continue to be subjected to levels of
ozone above the NAAQS that a state could reasonably reduce--in this
case not to attainment level, but to a level below the current level--
would be antithetical to the objectives of the CAA. The EPA believes it
is appropriate for the Administrator to take this general construct of
the CAA into account in determining during the application of CAA
section 179B whether, ``to the satisfaction of the Administrator,'' an
area would have attained the ozone NAAQS by the applicable attainment
date but for emissions emanating from outside of the U.S. Accordingly,
the EPA is proposing and seeking comment on a requirement that all
demonstrations under CAA section 179B(b), regardless of an area's
classification (including nonattainment areas classified as Marginal),
must include a showing that the air agency adopted all RACM, including
RACT, for the area in accordance with CAA section 172(c)(1), 42 U.S.C.
7502(c)(1). Under this interpretation, if the air agency did not adopt
reasonable control measures before making a section 179B(b)
demonstration, it will be missing a critical component of the
demonstration that the area would have attained the ozone NAAQS by the
attainment date ``but for'' international impacts, namely a showing
that the area could otherwise attain by application of reasonable
controls on sources of emissions that are within the state's
jurisdiction.\82\ We are proposing to add new regulatory provisions at
40 CFR 51.1309 to establish that air agencies must also demonstrate
RACM for Marginal areas for treatment under CAA section 179B.
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\82\ With respect to the demonstration under CAA section
179B(a), regardless of the nonattainment area's classification,
where a plan can demonstrate that an area will attain the NAAQS by
the attainment date after adopting all reasonable control measures,
and, as such, would be potentially approvable by the EPA, such a
plan would not also be eligible for approval under CAA section
179B(a) by simply omitting these measures.
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The EPA encourages air agencies to coordinate with their EPA
regional office to identify approaches to evaluate the potential
impacts of international transport and to determine the most
appropriate information and analytical methods for each area's unique
situation. The EPA will also work with air agencies that are developing
attainment plans for which CAA section 179B is relevant, and ensure the
air agencies have the benefit of the EPA's understanding of
international transport of ozone and ozone precursors. Air agencies are
encouraged to consult with their EPA Regional office to establish
appropriate technical requirements for these analyses. The EPA invites
comment as to whether the EPA should develop technical guidance for the
``but for'' analysis in a section 179B demonstration, and invites
comment about which methodologies and tools would be most effective to
help states develop section 179B demonstrations.
With respect to the larger issue of background ozone (or U.S.
background, (USB)), the EPA has solicited input from air agencies,
tribes, and interested stakeholders on aspects of USB that are relevant
to attaining the 2015 ozone NAAQS in a manner consistent with the
provisions of the CAA.\83\ To establish a common understanding and
foundation for discussion, the EPA released a white paper titled,
``Implementation of the 2015 Primary Ozone NAAQS: Issues Associated
with Background Ozone'' in December 2015, and held a workshop in
February 2016 to discuss information in the white paper.\84\
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\83\ For purposes of NAAQS implementation, the EPA considers
background ozone to be any ozone formed from sources or processes
other than U.S. manmade emissions of NOX, VOCs, methane
and CO.
\84\ The white paper and other workshop details are available
at: https://www.epa.gov/ozone-pollution/background-ozone-workshop-and-information.
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[[Page 81305]]
Workshop attendees included representatives of state, local and
tribal air agencies, and other interested stakeholders. A general theme
among attendee comments was a concern that the EPA is underestimating
the magnitude and effects of USB, and that available policy solutions
do not provide meaningful relief from nonattainment designations in
affected areas.\85\ The EPA continues to refine and conduct its
national and global model simulations to better characterize USB, and
is actively evaluating the need for further guidance and/or rules to
address USB based on feedback received.
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\85\ A high-level summary of workshop feedback is available at:
https://www.epa.gov/sites/production/files/2016-03/documents/bgo3-high-level-summary.pdf. Additional written comments from interested
parties are located in a separate EPA docket at http://www.regulations.gov (Docket ID No. EPA-HQ-OAR-2016-0097).
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The EPA also recently finalized revisions to the Exceptional Events
Rule to further facilitate review and approval of exceptional events
that contribute to USB, such as stratospheric intrusions and wildfires
(81 FR 68216; October 3, 2016).
E. Additional Policies and Programs for Achieving Emissions Reductions
1. Multi-Pollutant Planning
Increasingly, state air agencies are considering multi-pollutant
emission reduction strategies such as energy efficiency and renewable
energy (EE/RE) requirements as compliance options for CAA plans and EPA
encourages this multi-pollutant approach when assessing compliance
options for ozone RFP and attainment demonstration SIPs. Many states
are already implementing cost-effective EE/RE requirements that reduce
all types of power generation related emissions (including carbon
dioxide, NOX, PM2.5, SO2, and
hazardous air pollutants). Effectively assessing these approaches will
require strong working relationships between state energy and
environmental officials. As state Public Utility Commissions (PUC) and
state energy offices implement, increase the stringency of, or adopt
new EE/RE requirements, their expertise can assist air agencies to
incorporate the NOX emission impacts into ozone RFP and
attainment demonstration SIPs.
The EPA discussed this approach more completely in the final Clean
Power Plan (CPP) \86\ and in an accompanying Technical Support Document
(TSD) titled ``Incorporating RE and Demand-Side EE into State Plan
Demonstrations.'' \87\ States would be able to use EE/RE requirements
as a compliance option in their state plans to meet the CPP's carbon
dioxide emission reduction targets for existing fossil-fired electric
generating units (EGUs), and achieve a co-benefit of reducing
NOX emissions that would be beneficial to managing ozone
formation.
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\86\ Carbon Pollution Emission Guidelines for Existing
Stationary Sources: Electric Utility Generating Units; Final Rule
(Clean Power Plan) (80 FR 64662; October 23, 2015). See, e.g., West
Virginia v. EPA, No. 15A773, Order at 1 (U.S. Feb. 9, 2016).
\87\ U.S. EPA (October 2015) Clean Power Plan TSD: Incorporating
RE and Demand-Side EE Impacts into State Plan Demonstrations
available at: https://www.epa.gov/sites/production/files/2015-11/documents/tsd-cpp-incorporating-re-ee.pdf.
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The EPA has available several resources to help air agencies
incorporate these multi-pollutant strategies in NAAQS SIPs/TIPs.
Resources include the ``Roadmap for Incorporating EE/RE Programs and
Policies in NAAQS SIPs/TIPs'' \88\ (released August 2012) and the
AVoided Emissions geneRation Tool (AVERT), a tool for quantifying
NOX, SO2 and CO2 avoided emissions
\89\ (released February 2014). The Roadmap describes four pathways
(baseline emissions projection, control strategy, emerging/voluntary
measures, and weight of evidence determination) by which EE/RE policies
and programs could be included in a SIP. Each pathway is appropriate in
certain circumstances (existing vs. new EE/RE, control vs. voluntary
measures, etc.) and the Roadmap can help decision-makers consider their
options as they decide which pathway(s) to pursue for incorporating EE/
RE policies and programs into SIP/TIP demonstrations. The Roadmap's
Appendix I also presents several methods available for quantifying the
avoided NOX emissions from fossil fuel generation as a
result of electricity savings from EE/RE policy/program
implementation.\90\
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\88\ Roadmap for Incorporating EE/RE Programs and Policies in
NAAQS SIPs/TIPs available at: http://www3.epa.gov/airquality/eere/manual.html.
\89\ AVERT available at: http://www3.epa.gov/avert/.
\90\ Available at: http://www3.epa.gov/airquality/eere/pdfs/appendixI.pdf.
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The EPA's tool, AVERT, can help planners in quantifying the
emissions reductions that result from EE/RE policies and programs.
AVERT outputs are readily available for SMOKE formatting to incorporate
the emission impacts into air quality models.
2. Energy Efficiency/Renewable Energy Policies and Programs
a. State-level EE/RE Requirements. State PUCs, primarily through
their utilities, have in recent years been rapidly increasing resources
devoted to EE programs. In the five years spanning 2006 to 2011,
budgets for EE programs more than tripled, from $1.6 billion to $5.9
billion. Additionally, EE spending is projected to continue to grow at
a substantial rate.\91\ As of March 2015, 23 states have mandatory
energy efficiency requirements, two states have voluntary targets, and
two states allow energy efficiency as a compliance option for their
renewable portfolio standard.\92\
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\91\ American Council for an Energy-Efficient Economy (ACEEE)
2013 State Energy Efficiency Scorecard. November 2013. Available at
http://www.aceee.org/state-policy/scorecard/.
\92\ U.S. EPA 2015. Energy and Environmental Guide to Action,
Chapter 4 available at: http://www3.epa.gov/statelocalclimate/documents/pdf/GTA_Chapter_4.1_508.pdf.
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Also, state-level RE requirements have been implemented in 29
states plus Washington, DC, representing all regions of the
country.\93\ Between the years 2020 and 2030, many state-level
renewable portfolio standard (RPS) programs require electric utilities
to serve from 15 to 40 percent of their retail sales with renewable
power.\94\
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\93\ RE requirements include Renewable Portfolio Standards or
state-enacted RE requirements on a Mega-Watt (MW) basis. Database of
State Incentives for Renewables and Efficiency, March 2013.
Available at: http://www.dsireusa.org. Accessed January 3, 2016.
\94\ U.S. EPA. 2015 Energy and Environment Guide to Action,
Chapter 5 available at: http://www3.epa.gov/statelocalclimate/documents/pdf/guide_action_chapter5.pdf.
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In an effort to examine the effects of these programs, EPA
developed a counterfactual EE/RE scenario for a couple of areas that
were nonattainment for EPA's 2008 ozone NAAQS, including the New York-
New Jersey-Connecticut area.\95\ In these illustrative examples the EPA
used AVERT to approximate the potential emissions that would have been
emitted into the atmosphere without current state-level EE/RE
requirements. For the New York-New Jersey-Connecticut area, the EPA
estimated that the current state-level RE requirements \96\ would avoid
over 24 tons per summer day of NOX in 2020, and the current
state-level EE
[[Page 81306]]
programs \97\ would avoid nearly 17 tons per summer day of
NOX in 2020.\98\
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\95\ This area encompasses eight counties in New York, 12
counties in New Jersey, and three counties in Connecticut. The EPA's
analysis is described in the Technical Support Document
``Demonstrating NOX Emission Reduction Benefits of State-
Level Renewable Energy and Energy Efficiency Policies'' available in
the docket.
\96\ The 2020 RE requirements in each state are different and
range from 20 percent-30 percent.
\97\ The EE programs used in each state are different.
Connecticut's estimated annual efficiency savings is 2.8 percent,
New York's target was 15 percent savings from baseline by 2015, and
New Jersey incentivized efficiency improvements through a funding
program of $265 million in FY2014.
\98\ For context, the RFP plan for the New York-New Jersey-
Connecticut 1997 ozone NAAQS nonattainment area included a 2008
NOX emissions projection of 269 tons per summer day.
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3. Land Use Planning
Air agencies may also wish to consider strategies that foster more
efficient urban and regional development patterns as a long-term air
pollution control measure. Resources include the U.S. Department of
Housing and Development--DOT-EPA Partnership for Sustainable
Communities, as well as the policy and technical guidance documents on
land use and related travel efficiency available on the EPA's Office of
Transportation and Air Quality Web site.\99\ These documents provide
communities with the information they need to better understand the
link between air quality, transportation and land use, and how certain
land use policies have the potential to help local areas achieve and
maintain healthy air quality. The documents also include methods to
help communities account for the air quality benefits of their local
land use in their air quality plans.
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\99\ See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm.
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If wildfire impacts are significant in a particular area, air
agencies and communities may be able to lessen the impacts of wildfires
by working collaboratively with land managers and land owners to employ
various mitigation measures including taking steps to minimize fuel
loading in areas vulnerable to fire.
4. Travel Efficiency
Areas may also consider incorporating travel efficiency strategies,
such as new or expanded mass transit options, commuter strategies,
system operations (e.g., ramp metering), pricing (e.g., parking fees,
congestion pricing, roadway tolls), real-time travel information and
multimodal freight strategies in their SIPs. The EPA has released
several documents that could be useful to air agencies that want to
evaluate emissions reductions from travel efficiency strategies. These
documents provide information on analysis methods and the potential
effectiveness of different combinations of travel efficiency measures
for reducing emissions. Additionally, the EPA has compiled a report
about transportation control measures that have been implemented across
the country for a variety of purposes, including reducing emissions
related to criteria pollutants. All of these documents are available on
the EPA's Office of Transportation and Air Quality Web site.\100\
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\100\ See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm.
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F. Additional Requirements Related to Enforcement and Compliance
CAA section 172(c)(6) requires nonattainment SIPs to ``include
enforceable emission limitations, and such other control measures,
means or techniques . . . as well as schedules and timetables for
compliance, as may be necessary or appropriate to provide for
attainment . . .'' The EPA's 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)'' \101\ is still
relevant to rules adopted for SIPs under the 2015 ozone NAAQS and
should be consulted for purposes of developing appropriate enforceable
nonattainment plan provisions under CAA section 172(c)(6). The EPA is
not proposing any additional specific regulatory provisions related to
compliance and enforcement for implementing the 2015 ozone NAAQS.
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\101\ Available at: http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=00002TCM.txt.
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G. Applicability of Proposed Rule to Tribes
Section 301(d) of the CAA authorizes the EPA to approve eligible
Indian tribes to implement provisions of the CAA on Indian reservations
and other areas within the tribes' jurisdiction.\102\ The TAR (40 CFR
part 49.1-49.11), which implements CAA section 301(d), sets forth the
criteria and process for tribes to apply to the EPA for eligibility to
administer CAA programs (40 CFR 49.6, 49.7). As discussed in detail in
the proposed 2008 Ozone NAAQS SIP Requirements Rule (78 FR 34209; June
6, 2013), tribes are not required to TIPs under the TAR. However,
should a tribe choose to develop a TIP, this proposed rule is intended
to serve as a guide for addressing key implementation issues for their
area of Indian country, particularly for any areas of Indian country
that may be designated as nonattainment areas separate from surrounding
state areas.
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\102\ On January 17, 2014, the United States Court of Appeals
for the District of Columbia Circuit issued a decision vacating the
EPA's 2011 rule titled ``Review of New Sources and Modifications in
Indian Country'' (76 FR 38748) with respect to non-reservation areas
of Indian country (See, Oklahoma Department of Environmental Quality
v. EPA, 740 F.3d 185 (D.C. Cir. 2014)). Under the court's reasoning,
with respect to CAA SIPs, a state has primary regulatory
jurisdiction in non-reservation areas of Indian country (i.e.,
Indian allotments located outside of reservations and dependent
Indian communities) within its geographic boundaries unless the EPA
or a tribe has demonstrated that a tribe has jurisdiction over a
particular area of non-reservation Indian country within the state.
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It is important for state and local air agencies and tribes to work
together to coordinate planning efforts where nonattainment areas
include both Indian country and state land. Coordinated planning in
these areas will help ensure that the planning decisions made by the
state and local air agencies and tribes complement each other and that
the nonattainment area makes reasonable progress toward attainment and
ultimately attains the 2015 ozone NAAQS. In reviewing and approving
individual TIPs and SIPs, we will determine if together they are
consistent with the overall air quality needs of an area.
States have an obligation to notify other states in advance of any
public hearing(s) on their state plans if such plans will significantly
impact such other states. 40 CFR 51.102(d)(5). Under CAA section 301(d)
of the CAA and the TAR, tribes may become eligible to be treated in a
manner similar to states (TAS) for this purpose (40 CFR 49.6-49.9).
Affected 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, OAQPS guidance ``Consulting with Indian
Tribal Governments,'' and the ``EPA Policy on Consultation and
Coordination With Indian Tribes.'' \103\
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\103\ Tribal guidance documents are available at: http://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
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[[Page 81307]]
Consistent with these policies, the EPA intends to coordinate and
consult with tribes on activities potentially affecting the attainment
and maintenance of the 2015 ozone NAAQS in Indian country, including
our actions on SIPs. We encourage state air agencies to work with
tribes with land that is part of the same general air quality planning
area during the SIP development process and to coordinate with tribes
as they develop their SIPs regardless of whether the tribe's area of
Indian country is separately designated.
VI. Environmental Justice Considerations
The EPA believes this action will not have disproportionately high
and adverse human health or environmental effects on minority, low-
income, or indigenous populations because it would not negatively
affect the level of protection provided to human health or the
environment under the 2015 ozone NAAQS, which are at levels to protect
sensitive populations with an adequate margin of safety.\104\ When
promulgated, these regulations will clarify the SIP requirements and
the NNSR permitting requirements to be met by air agencies in order to
attain the 2015 ozone NAAQS as expeditiously as practicable. These
requirements are designed to protect all segments of the general
population and will not adversely affect the health or safety of
minority, low-income or indigenous populations.
---------------------------------------------------------------------------
\104\ The EPA conducted a regulatory impact analysis (RIA) of
its final action establishing the 2015 ozone NAAQS. The demographic
analysis conducted as part of the RIA found that in areas with poor
air quality relative to the revised standards, the representation of
minority populations was slightly greater than in the U.S. as a
whole (see Chapter 9, section 9.10 and Appendix 9A of the RIA).
Because the air quality in these areas does not currently meet the
revised standards, populations in these areas would be expected to
benefit from implementation of the strengthened standards. The RIA
is available at https://www3.epa.gov/ttn/ecas/docs/20151001ria.pdf
and in the RIA docket (EPA-HQ-OAR-2013-0169).
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VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to OMB for review. Any changes made in response to OMB recommendations
have been documented in the docket.
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule have
been submitted for approval to OMB under the PRA. The ICR document that
the EPA prepared has been assigned the EPA ICR No. 2347.03 and OMB
Reference No. 2060-0695. You can find a copy of the ICR in the docket
for this rule, and it is briefly summarized here. The information
collection requirements are not enforceable until OMB approves them.
The EPA is proposing these implementing regulations for 2015 ozone
NAAQS so that air agencies will know what CAA requirements apply to
their nonattainment areas when the air agencies develop their SIPs for
attaining and maintaining the NAAQS. The intended effect of these
implementing regulations is to provide certainty to air agencies
regarding their planning obligations. For purposes of analysis of the
estimated paperwork burden, the EPA assumed 57 nonattainment
areas,\105\ some of which must prepare an attainment demonstration as
well as submit an RFP and RACT SIP. The attainment demonstration
requirement would appear in 40 CFR 51.1308 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 51.1310, and the RACT SIP
submission requirement would appear in 40 CFR 51.1312, which implements
CAA subsections 172(c)(1) 182(b)(2),(c),(d) and (e).
---------------------------------------------------------------------------
\105\ The EPA developed a hypothetical list of nonattainment
areas for estimating the burden for states to meet their 2015 ozone
nonattainment area requirements. The hypothetical nonattainment
areas were based on the preliminary 2013-2015 air quality data
available. The hypothetical nonattainment areas include multiple
counties for most areas based on the existing 2008 and 1997 8-hour
ozone nonattainment areas, Combined Statistical Area, or Core Based
Statistical Area boundary associated with a violating monitor. Note
that these areas are used for analytical purposes only. Actual
nonattainment areas and boundaries will be determined through the
designations process.
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Air agencies should already have information from many emission
sources, as facilities should have provided this information to meet 1-
hour, 1997, and 2008 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, CBI 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 41,800 labor
hours per year at an annual labor cost of $2.5 million (present value)
over the 3-year period or approximately $107,000 per state for the 23
state air agency respondents. The ICR Supporting Statement for the 2015
8-hour Ozone NAAQS Implementation Rule EPA ICR No. 2347.03 in the
docket provides the details for the 23 state air agencies that are
required to provide the 66 SIP revisions for the 57 hypothetical areas
designated nonattainment for the 2015 ozone standard. The average
annual reporting burden is 633 hours per response, with approximately
2.87 responses per state for 66 state responses from the state air
agencies. There are no capital or operating and maintenance costs
associated with the proposed 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 No. EPA-HQ-OAR-
2016-0202. 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 November 17,
2016, a comment to OMB is best assured of having its full effect if OMB
receives it by December 19, 2016. The final rule will respond to any
OMB or public comments on the information collection requirements
contained in this proposal.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Entities
potentially affected directly by this rule include state, local and
tribal governments and none of these governments are small governments.
Other types of small entities are not directly subject to the
requirements of this rule because this
[[Page 81308]]
action only addresses how a SIP will provide for adequate attainment
and maintenance of the NAAQS and meet the obligations of the CAA.
Although some states may ultimately decide to impose economic impacts
on small entities, that is not required by this rule and would only
occur at the discretion of the state.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action implements mandates specifically and
explicitly set forth in the CAA without the exercise of any policy
discretion by the EPA.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It would not have a substantial direct effect on
one or more Indian tribes, since no tribe has to develop a TIP under
these regulatory revisions. Furthermore, these regulation revisions do
not affect the relationship or distribution of power and
responsibilities between the federal government and Indian tribes. The
CAA and the Tribal Air Rule establish the relationship of the federal
government and tribes in developing plans to attain the NAAQS, and
these revisions to the regulations do nothing to modify that
relationship. Thus, Executive Order 13175 does not apply to this
action.
Although Executive Order 13175 does not apply to this action, the
EPA briefed tribal officials in developing this proposal.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy.
I. National Technology Transfer and Advancement Act (NTTA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous populations as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in Section VI of this
preamble.
VIII. Statutory Authority
The statutory authority for this action is provided by sections
109; 110; 172; 181 through 185B; 301(a)(1) and 501(2)(B) of the CAA, as
amended (42 U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. 7502; 42 U.S.C.
7511-7511f; 42 U.S.C. 7601(a)(1); 42 U.S.C. 7661(2)(B)).
List of Subjects
40 CFR Part 50
Environmental protection, Air pollution control, Carbon monoxide,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
40 CFR Part 51
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Particulate matter, Transportation, Volatile organic
compounds.
Dated: November 2, 2016.
Gina McCarthy,
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 AMBIENT AIR QUALITY
STANDARDS
0
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. In Sec. 50.15, add paragraph (c) to read as follows:
Sec. 50.15 National 8-hour primary and secondary ambient air quality
standards for ozone.
* * * * *
Proposed Regulatory Text for Option 1
(c) The 2008 ozone NAAQS set forth in this section will remain
applicable to all areas of the country notwithstanding the promulgation
of 2015 ozone NAAQS under Sec. 50.19. The 2008 ozone NAAQS set forth
in this section will no longer apply to an area 1 year after the
effective date of the initial area designation of that area for the
2015 ozone NAAQS pursuant to section 107 of the CAA. For purposes of
the anti-backsliding requirements of Sec. 51.1305, Sec. 51.165 and
Appendix S to part 51, the area designations and classifications with
respect to the revoked 1-hour, 1997 and 2008 ozone NAAQS are codified
in 40 CFR part 81.
Proposed Regulatory Text for Option 2
(c) Notwithstanding the promulgation of 2015 ozone NAAQS under
Sec. 50.19, the 2008 ozone NAAQS set forth in this section will remain
applicable to any area of the country designated nonattainment for the
2008 ozone NAAQS as of the date of that area's initial designation for
the 2015 ozone NAAQS pursuant to section 107 of the CAA. For any other
area of the country, the 2008 ozone NAAQS set forth in this section
will no longer apply to such area 1 year after the effective date of
the initial designation of that area for the 2015 ozone NAAQS pursuant
to section 107 of the CAA.
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.
0
4. Revise Sec. 51.1119 to read as follows:
Subpart AA--Provisions for Implementation of 8-Hour Ozone National
Ambient Air Quality Standards
Sec. 51.1119 Applicability.
As of revocation of the 2008 ozone NAAQS in an area, as set forth
in Sec. 50.15(c), the provisions of Sec. Sec. 51.1100 to 51.1118 of
subpart AA cease to apply, [Proposed Regulatory Text for Option 1:
except for Sec. 51.1107 for the anti-backsliding purposes of Sec.
51.1305(c)(2).]
[[Page 81309]]
0
5. Part 51 is amended by adding subpart CC to read as follows:
Subpart CC--Provisions for Implementation of the 2015 Ozone National
Ambient Air Quality Standards
Sec.
51.1300 Definitions.
51.1301 Applicability of part 51.
51.1302 Classification and nonattainment area planning provisions.
51.1303 Application of classification and attainment date provisions
in CAA section 181 to areas subject to Sec. 51.1302.
51.1304 [Reserved]
51.1305 Transition from the 2008 ozone NAAQS to the 2015 ozone NAAQS
and anti-backsliding.
51.1306 Redesignation to nonattainment following initial
designations.
51.1307 Determining eligibility for 1-year attainment date
extensions for an 8-hour ozone NAAQS under CAA section 181(a)(5).
51.1308 Modeling and attainment demonstration requirements.
51.1309 Demonstrations that areas would have attained but for
international emissions under CAA section 179B(b)
51.1310 Requirements for reasonable further progress (RFP).
51.1311 [Reserved]
51.1312 Requirements for reasonably available control technology
(RACT) and reasonably available control measures (RACM).
51.1313 Section 182(f) NOX exemption provisions.
51.1314 New source review requirements.
51.1315 Emissions inventory requirements.
51.1316 Requirements for an Ozone Transport Region.
51.1317 Fee programs for Severe and Extreme nonattainment areas that
fail to attain.
51.1318 Suspension of SIP planning requirements in nonattainment
areas that have air quality data that meet an ozone NAAQS.
51.1319 Applicability.
Subpart CC--Provisions for Implementation of the 2015 Ozone
National Ambient Air Quality Standards
Sec. 51.1300 Definitions.
The following definitions apply for purposes of this subpart. Any
term not defined herein shall have the meaning as defined in 40 CFR
51.100.
(a) 1-hour NAAQS means the 1-hour primary and secondary ozone
national ambient air quality standards codified at 40 CFR 50.9.
(b) 1997 NAAQS means the 1997 8-hour primary and secondary ozone
national ambient air quality standards codified at 40 CFR 50.10.
(c) 2008 NAAQS means the 2008 8-hour primary and secondary ozone
NAAQS codified at 40 CFR 50.15.
(d) 2015 NAAQS means the 2015 8-hour primary and secondary ozone
NAAQS codified at 40 CFR 50.19.
(e) 1-hour ozone design value is the 1-hour ozone concentration
calculated according to 40 CFR part 50, appendix H and the
interpretation methodology issued by the Administrator most recently
before the date of the enactment of the CAA Amendments of 1990.
(f) 8-hour ozone design value is the 8-hour ozone concentration
calculated according to 40 CFR part 50, appendix P for the 2008 NAAQS,
and 40 CFR part 50, appendix U for the 2015 NAAQS.
(g) CAA means the Clean Air Act as codified at 42 U.S.C. 7401-7671q
(2010).
(h) Attainment area means, unless otherwise indicated, an area
designated as either attainment, unclassifiable, or attainment/
unclassifiable.
(i) Attainment year ozone season shall mean the ozone season
immediately preceding a nonattainment area's maximum attainment date.
(j) Designation for a NAAQS shall mean the effective date of the
designation for an area for that NAAQS.
(k) Higher classification/lower classification. For purposes of
determining whether a classification is higher or lower,
classifications under subpart 2 of part D of title I of the CAA are
ranked from lowest to highest as follows: Marginal; Moderate; Serious;
Severe-15; Severe-17; and Extreme.
(l) Initially designated means the first designation that becomes
effective for an area for a specific NAAQS and does not include a
redesignation to attainment or nonattainment for that specific NAAQS.
(m) Maintenance area means an area that was designated
nonattainment for a specific NAAQS and was redesignated to attainment
for that NAAQS subject to a maintenance plan as required by CAA section
175A.
(n) Nitrogen Oxides (NOX) means the sum of nitric oxide
and nitrogen dioxide in the flue gas or emission point, collectively
expressed as nitrogen dioxide.
(o) Ozone season means for each state (or portion of a state), the
ozone monitoring season as defined in 40 CFR part 58, appendix D,
section 4.1(i) for that state (or portion of a state).
[Proposed Regulatory Text for Option 1:
(p) Applicable requirements for an area for anti-backsliding
purposes means the following requirements, to the extent such
requirements apply to the area pursuant to its classification for
revoked ozone NAAQS, as codified in 40 CFR part 51, on the effective
date of the revocation of those NAAQS:
(1) Reasonably available control technology (RACT) under CAA
sections 172(c)(1) and 182(b)(2).
(2) Vehicle inspection and maintenance programs (I/M) under CAA
sections 182(b)(4) and 182(c)(3).
(3) Major source applicability thresholds for purposes of RACT
under CAA sections 172(c)(2), 182(b), 182(c), 182(d), and 182(e).
(4) Reductions to achieve Reasonable Further Progress (RFP) under
CAA sections 172(c)(2), 182(b)(1)(A), and 182(c)(2)(B) and EPA's
implementing regulations at Sec. 51.1310.
(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).
(11) NOX requirements under CAA section 182(f).
(12) Attainment demonstration requirements under CAA sections
172(c)(4), 182(b)(1)(A), and 182(c)(2).
(13) Nonattainment contingency measures required under CAA sections
172(c)(9) and 182(c)(9) for failure to attain an ozone NAAQS by the
applicable attainment date for that NAAQS or failure to make reasonable
further progress toward attainment of that ozone NAAQS.
(14) Nonattainment NSR major source thresholds and offset ratios
under CAA sections 172(a)(5) and 182(a)(2).
(15) Penalty fee program requirements for Severe and Extreme Areas
under CAA section 185.
(16) Contingency measures associated with areas utilizing CAA
section 182(e)(5).
(17) Reasonably available control measures (RACM) requirements
under CAA section 172(c)(1).]
(q) CSAPR means the Cross-State Air Pollution Rule codified at 40
CFR 52.38 and part 97.
(r) CAIR means the Clean Air Interstate Rule codified at 40 CFR
51.123, 52.35 and part 95.
(s) NOX SIP Call means the rules codified at 40 CFR 51.121 and
51.122.
(t) Ozone transport region (OTR) means the area established by CAA
section 184(a) or any other area established by the Administrator
pursuant to CAA section 176A for purposes of ozone.
(u) Reasonable further progress (RFP) means the emissions
reductions
[[Page 81310]]
required under CAA sections 172(c)(2), 182(c)(2)(B), 182(c)(2)(C), and
Sec. 51.1310. The EPA interprets RFP under CAA section 172(c)(2) to be
an average 3 percent per year emissions reduction of either VOC or
NOX.
(v) Rate-of-progress (ROP) means the 15 percent progress reductions
in VOC emissions over the first 6 years after the baseline year
required under CAA section 182(b)(1).
(w) Revocation of the 1-hour ozone NAAQS means the time at which
the 1-hour ozone NAAQS no longer apply to an area pursuant to 40 CFR
50.9(b). The date of revocation of the 1-hour NAAQS was June 15, 2005
for most areas of the country.
(x) Revocation of the 1997 ozone NAAQS means the time at which the
1997 8-hour ozone NAAQS no longer apply to an area pursuant to 40 CFR
50.10(c). The date of revocation of the 1997 ozone NAAQS was April 6,
2015 for all areas of the country.
(y) Revocation of the 2008 ozone NAAQS means the time at which the
2008 8-hour ozone NAAQS no longer apply to an area pursuant to 40 CFR
50.15(c).
(z) Subpart 1 means subpart 1 of part D of title I of the CAA.
(aa) Subpart 2 means subpart 2 of part D of title I of the CAA.
(bb) I/M refers to the inspection and maintenance programs for in-
use vehicles required under the 1990 CAA Amendments and defined by
subpart S of 40 CFR part 51.
(cc) An area ``Designated nonattainment for the 1-hour ozone
NAAQS'' means, for purposes of 40 CFR 51.1305, an area that is subject
to applicable 1-hour ozone NAAQS anti-backsliding requirements as of
April 6, 2015, the effective date of the revocation of the 1997 ozone
NAAQS.
(dd) An area ``Designated nonattainment for the 1997 8-hour ozone
NAAQS'' means, for purposes of 40 CFR 51.1305, an area that is subject
to applicable 1997 ozone NAAQS anti-backsliding requirements as of
April 6, 2015, the effective date of the revocation of the 1997 ozone
NAAQS.
(ee) An area ``Designated nonattainment for the 2008 8-hour ozone
NAAQS'' means, for purposes of 40 CFR 51.1305, an area that is subject
to applicable 2008 8-hour ozone NAAQS anti-backsliding requirements as
of the effective date of the revocation of the 2008 ozone NAAQS.
(ff) Current ozone NAAQS means the most recently promulgated ozone
NAAQS at the time of application of any provision of this subpart.
(gg) Base year inventory for the nonattainment area means a
comprehensive, accurate, current inventory of actual emissions from
sources of VOC and NOX emitted within the boundaries of the
nonattainment area as required by CAA section 182(a)(1).
(hh) Ozone season day emissions means an average day's emissions
for a typical ozone season work weekday. The state shall select,
subject to EPA approval, the particular month(s) in the ozone season
and the day(s) in the work week to be represented, considering the
conditions assumed in the development of RFP plans and/or emissions
budgets for transportation conformity.
Sec. 51.1301 Applicability of part 51.
The provisions in subparts A-Y and AA of part 51 apply to areas for
purposes of the 2015 ozone NAAQS to the extent they are not
inconsistent with the provisions of this subpart.
Sec. 51.1302 Classification and nonattainment area planning
provisions.
An area designated nonattainment for the 2015 ozone NAAQS will be
classified in accordance with CAA section 181, as interpreted in Sec.
51.1303(a), and will be subject to the requirements of subpart 2 of
part D of title I of the CAA that apply for that classification.
Sec. 51.1303 Application of classification and attainment date
provisions in CAA section 181 to areas subject to Sec. 51.1302.
(a) In accordance with CAA section 181(a)(1), each area designated
nonattainment for the 2015 ozone NAAQS shall be classified by operation
of law at the time of designation. The classification shall be based on
the 8-hour design value for the area at the time of designation, in
accordance with Table 1 of paragraph (a) of this section. A state may
request a higher or lower classification as provided in paragraphs (b)
and (c) of this section. For each area classified under this section,
the attainment date for the 2015 NAAQS shall be as expeditious as
practicable, but not later than the date provided in Table 1 as
follows:
Table 1--Classifications and Attainment Dates for 2015 8-Hour Ozone
NAAQS (0.070 ppm) for Areas Subject to 40 CFR 51.1302
------------------------------------------------------------------------
Primary standard
attainment date
(years after the
Area class 8-Hour design effective date of
value (ppm ozone) designation for
2015 primary
NAAQS)
------------------------------------------------------------------------
Marginal:
from.......................... 0.071 3
up to *....................... 0.081
Moderate:
from.......................... 0.081 6
up to *....................... 0.093
Serious:
from.......................... 0.093 9
up to *....................... 0.105
Severe-15:
from.......................... 0.105 15
up to *....................... 0.111
Severe-17:
from.......................... 0.111 17
up to *....................... 0.163
Extreme:
equal to or above............. 0.163 20
------------------------------------------------------------------------
* But not including.
[[Page 81311]]
(b) A state may request, and the Administrator must approve, a
higher classification for an area for any reason in accordance with CAA
section 181(b)(3).
(c) A state may request, and the Administrator may in the
Administrator's discretion approve, a higher or lower classification
for an area in accordance with CAA section 181(a)(4).
(d) The following nonattainment areas are reclassified for the 2015
ozone NAAQS as follows: Serious--Ventura County, CA; Severe--Los
Angeles-San Bernardino Counties (West Mojave Desert), Riverside County
(Coachella Valley), and Sacramento Metro, CA; Extreme--Los Angeles-
South Coast Air Basin, and San Joaquin Valley, CA.
Sec. 51.1304 [Reserved]
Sec. 51.1305 Transition from the 2008 ozone NAAQS to the 2015 ozone
NAAQS and anti-backsliding.
(a) Requirements that continue to apply after revocation of prior
ozone NAAQS. (1) Areas designated nonattainment for the 2015 ozone
NAAQS and nonattainment for a prior revoked ozone NAAQS. The following
requirements apply to an area designated nonattainment for the 2015
ozone NAAQS and also designated nonattainment for a prior ozone NAAQS
as of the effective date of the revocation of the respective prior
ozone NAAQS unless the area has an approved redesignation substitute:
The area remains subject to the obligation to adopt and implement the
applicable requirements of Sec. 51.1300(p), for any ozone NAAQS for
which it was designated nonattainment as of the effective date of its
revocation, in accordance with its classification for that NAAQS as of
the effective date of its revocation, except as provided in paragraph
(b) of this section or if the area has an approved redesignation
substitute.
(2) Areas designated nonattainment for the 2015 ozone NAAQS and
maintenance for a prior revoked ozone NAAQS. For an area designated
nonattainment for the 2015 ozone NAAQS that was redesignated to
attainment for a prior ozone NAAQS prior to the effective date of the
revocation of the respective prior ozone NAAQS (hereinafter a
``maintenance area''), the approved SIP, including the maintenance
plan, is considered to satisfy the applicable requirements of 40 CFR
51.1300(p) for the revoked NAAQS. The measures in the approved SIP and
maintenance plan shall continue to be implemented in accordance with
the terms in the approved SIP. Any measures associated with applicable
requirements that were shifted to contingency measures prior to the
effective date of the revocation of the prior ozone NAAQS shall remain
in that form. After revocation of a prior NAAQS, and to the extent
consistent with any SIP for the 2015 ozone NAAQS and with CAA sections
110(l) and 193, the state may request approval from the EPA to shift
obligations under the applicable requirements of Sec. 51.1300(p) to
the SIP's list of maintenance plan contingency measures for the area.
(3) Areas designated attainment for the 2015 ozone NAAQS and
nonattainment for a prior revoked ozone NAAQS. For an area designated
attainment for the 2015 ozone NAAQS, and designated nonattainment for
the a prior ozone NAAQS as of the effective date of the revocation of
the respective prior ozone NAAQS, the area is no longer subject to
nonattainment NSR for the 1997 or 2008 ozone NAAQS, if applicable, and
the state may request approval from the EPA to either remove the
nonattainment NSR provisions from the SIP or shift them to the SIP's
list of maintenance plan contingency measures for the area. Such
approval must be consistent with CAA sections 110(l) and 193. If the
area's nonattainment NSR provisions are removed from the active portion
of the SIP for the area, the area's approved PSD SIP shall be
considered to satisfy the state's obligations with respect to the
area's maintenance of the 2015 ozone NAAQS pursuant to CAA section
110(a)(1). The state may request approval from the EPA, consistent with
CAA sections 110(l) and 193, to shift SIP measures adopted to satisfy
other applicable requirements of Sec. 51.1300(p) to the SIP's list of
maintenance plan contingency measures for the area.
(4) Requirements for areas designated attainment for the 2015 ozone
NAAQS and maintenance for a prior revoked ozone NAAQS. An area
designated attainment for the 2015 ozone NAAQS with an approved CAA
section 175A maintenance plan for a prior revoked ozone NAAQS is
considered to satisfy the applicable requirements of 40 CFR 51.1300(p)
through implementation of the SIP and maintenance plan provisions for
the area. After revocation of a prior NAAQS, and to the extent
consistent with CAA sections 110(l) and 193, the state may request
approval from the EPA to shift obligations under the applicable
requirements of 40 CFR 51.1300(p) to the list of maintenance plan
contingency measures for the area.
For an area that is initially designated attainment for the 2015
ozone NAAQS and which has been redesignated to attainment for a prior
revoked ozone NAAQS with an approved CAA section 175A maintenance plan
and an approved PSD SIP, the area's approved maintenance plan and the
state's approved PSD SIP for the area are considered to satisfy the
state's obligations with respect to the area's maintenance of the 2015
ozone NAAQS pursuant to CAA section 110(a)(1).
(b) Effect of Redesignation or Redesignation Substitute. (1) An
area remains subject to the anti-backsliding obligations for a revoked
NAAQS under paragraphs (a)(1) and (a)(2) of this section until either:
(i) EPA approves a redesignation to attainment for the area for the
2015 ozone NAAQS, in which case regulatory anti-backsliding
requirements for the 1997 and 2008 ozone standards, if applicable, are
satisfied; or (ii) EPA approves a demonstration for the area in a
redesignation substitute procedure for a revoked NAAQS. Under this
redesignation substitute procedure for a revoked NAAQS, and for this
limited anti-backsliding purpose, the demonstration must show that the
area has attained that revoked NAAQS due to permanent and enforceable
emission reductions and that the area will maintain that revoked NAAQS
for 10 years from the date of EPA's approval of this showing.
(2) If EPA, after notice-and-comment rulemaking, approves a
redesignation to attainment, the state may request approval from the
EPA to either remove provisions for nonattainment NSR from the SIP for
the 1997 and 2008 ozone standards, subject to the requirements of CAA
sections 110(l) and 193, or shift them to the SIP's list of maintenance
plan contingency measures for the area.
(3) If the EPA, after notice-and-comment rulemaking, approves a
redesignation to attainment, the state may request approval from the
EPA to shift other anti-backsliding obligations for the 1997 and 2008
ozone standards to contingency measures, provided that such action is
consistent with CAA sections 110(l) and 193.
(4) If EPA, after notice and comment rulemaking, approves a
redesignation substitute for a revoked NAAQS, the state may request
approval from the EPA to either remove provisions for nonattainment NSR
for that revoked NAAQS from the SIP, or shift them to the SIP's list of
maintenance plan contingency measures for the area.
(5) If EPA, after notice and comment rulemaking, approves a
redesignation substitute for a revoked NAAQS, the state may request
approval from the EPA to shift other anti-backsliding obligations for
that revoked NAAQS to
[[Page 81312]]
contingency measures provided that such action is consistent with CAA
sections 110(l) and 193.
(6) Areas that are designated nonattainment for the 2008 ozone
NAAQS at the time of designation for the 2015 ozone NAAQS may be
redesignated to attainment prior to the effective date of revocation of
the 2008 ozone NAAQS.
(c) Portions of an area designated nonattainment or attainment for
the 2015 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 2015 ozone NAAQS that was
required to adopt the applicable requirements in Sec. 51.1300(p) for
purposes of a prior revoked ozone NAAQS is subject to the obligations
identified in paragraph (a) of this section. Subpart C of 40 CFR part
81 identifies the areas designated nonattainment and associated area
boundaries for prior ozone NAAQS as of the effective date of the
revocation of the prior NAAQS.
(d) Obligations under a prior ozone NAAQS that no longer apply
after revocation of the prior ozone NAAQS. (1) Second 10-year
maintenance plans. As of the effective date of the revocation of a
prior ozone NAAQS, an area with an approved maintenance plan for the
respective prior ozone NAAQS under CAA section 175A is not required to
submit a corresponding second 10-year maintenance plan 8 years after
approval of the initial maintenance plan for that prior ozone NAAQS.
(2) Determinations of failure to attain a prior revoked ozone
NAAQS. (i) As of the effective date of the revocation of a prior ozone
NAAQS, the EPA is no longer obligated to determine pursuant to CAA
section 181(b)(2) or section 179(c) whether an area attained the
respective prior ozone NAAQS by that area's attainment date for that
prior ozone NAAQS.
(ii) As of the effective date of the revocation of a prior ozone
NAAQS, the EPA is no longer obligated to reclassify an area to a higher
classification for the respective prior ozone NAAQS based upon a
determination that the area failed to attain that prior ozone NAAQS by
the area's attainment date for that prior ozone NAAQS.
(iii) For a prior revoked ozone NAAQS, the EPA is required to
determine whether an area attained the prior ozone NAAQS by the area's
attainment date solely for anti-backsliding purposes to address an
applicable requirement for nonattainment contingency measures and CAA
section 185 fee programs. In making such a determination, the EPA may
consider and apply the provisions of CAA section 181(a)(5) and former
40 CFR 51.907 and 51.1107 in interpreting whether a 1-year extension of
the attainment date is applicable.
(e) Continued applicability of the Federal Implementation Plan
(FIP) and SIP requirements pertaining to interstate transport under CAA
section 110(a)(2)(D)(i) and (ii) after revocation of prior ozone NAAQS.
All control requirements associated with a FIP or approved SIP in
effect for an area as of the effective date of the revocation of a
prior ozone NAAQS, such as the NOX SIP Call, the CAIR, or
the CSAPR shall continue to apply after revocation of the prior ozone
NAAQS. Control requirements approved into the SIP pursuant to
obligations arising from CAA section 110(a)(2)(D)(i) and (ii),
including [NOTE: Update listing as necessary to reflect CSAPR update
rule due summer 2016] 40 CFR 51.121, 51.122, 51.123 and 51.124, may be
modified by the state only if the requirements of Sec. Sec. 51.121,
51.122, 51.123 and 51.124, including statewide NOX emission
budgets continue to be in effect. Any such modification must meet the
requirements of CAA section 110(l).
(f) New source review. An area designated nonattainment for the
2015 ozone NAAQS and designated nonattainment for a prior revoked ozone
NAAQS remains subject to the obligation to adopt and implement the
major source threshold and offset requirements for nonattainment NSR
that apply or applied to the area pursuant to CAA sections 172(c)(5),
173 and 182 based on the highest of: (i) The area's classification
under CAA section 181(a)(1) for the 1-hour NAAQS as of the effective
date of revocation of the 1-hour ozone NAAQS; (ii) the area's
classification under 40 CFR 51.903 for the 1997 ozone NAAQS as of April
6, 2015, which is the effective date of revocation of the 1997 ozone
NAAQS; (iii) the area's classification under 40 CFR 51.1103 for the
2008 ozone NAAQS as of the date a permit is issued or as of the
effective date of revocation of the 2008 ozone NAAQS for that area,
whichever is earlier; and (iv) the area's classification under Sec.
51.1303 for the 2015 ozone NAAQS. Upon the approval of the EPA of
removal of nonattainment NSR obligations for a revoked NAAQS under
Sec. 51.1305(b), the state remains subject to the obligation to adopt
and implement the major source threshold and offset requirements for
nonattainment NSR that apply or applied to the area for the remaining
applicable NAAQS consistent with this paragraph.
Sec. 51.1306 Redesignation to nonattainment following initial
designations.
For any area that is initially designated attainment for the 2015
ozone NAAQS and that is subsequently redesignated to nonattainment for
the 2015 ozone NAAQS, any absolute, fixed date applicable in connection
with the requirements of this part other than an attainment date is
extended by a period of time equal to the length of time between the
effective date of the initial designation for the 2015 ozone NAAQS and
the effective date of redesignation, except as otherwise provided in
this subpart. The maximum attainment date for a redesignated area would
be based on the area's classification, consistent with Table 1 in Sec.
51.1303.
Sec. 51.1307 Determining eligibility for 1-year attainment date
extensions for an 8-hour ozone NAAQS under CAA section 181(a)(5).
(a) A nonattainment area will meet the requirement of CAA section
181(a)(5)(B) pertaining to 1-year extensions of the attainment date if:
(1) For the first 1-year extension, the area's 4th highest daily
maximum 8-hour average in the attainment year is no greater than the
level of that NAAQS.
(2) For the second 1-year extension, the area's 4th highest daily
maximum 8-hour value, averaged over both the original attainment year
and the first extension year, is no greater than the level of that
NAAQS.
(b) For purposes of paragraph (a)(1) of this section, the area's
4th highest daily maximum 8-hour average for a year shall be from the
monitor with the highest 4th highest daily maximum 8-hour average for
that year of all the monitors that represent that area.
(c) For purposes of paragraph (a)(2) of this section, the area's
4th highest daily maximum 8-hour value, averaged over both the original
attainment year and the first extension year, shall be from the monitor
in each year with the highest 4th highest daily maximum 8-hour average
of all monitors that represent that area.
Sec. 51.1308 Modeling and attainment demonstration requirements.
(a) An area classified Moderate under Sec. 51.1303(a) shall submit
an attainment demonstration that provides for such specific reductions
in emissions of VOCs and NOX as necessary to attain the
primary NAAQS by the applicable attainment date, and such demonstration
is due no later than 36 months after the effective date of the area's
designation for the 2015 ozone NAAQS.
(b) An area classified Serious or higher under Sec. 51.1303(a)
shall be
[[Page 81313]]
subject to the attainment demonstration requirement applicable for that
classification under CAA section 182(c), and such demonstration is due
no later than 48 months after the effective date of the area's
designation for the 2015 ozone NAAQS.
(c) Attainment demonstration criteria. An attainment demonstration
due pursuant to paragraph (a) or (b) of this section must meet the
requirements of Appendix W of this part and shall include inventory
data, modeling results, and emission reduction analyses on which the
state has based its projected attainment date; the adequacy of an
attainment demonstration shall be demonstrated by means of a
photochemical grid model or any other analytical method determined by
the Administrator, in the Administrator's discretion, to be at least as
effective.
(d) Implementation of control measures. For each nonattainment
area, the state must provide for implementation of all control measures
needed for attainment as expeditiously as practicable. All control
measures in the attainment plan and demonstration must be implemented
no later than the beginning of the attainment year ozone season,
notwithstanding any alternate RACT and/or RACM implementation deadline
requirements in Sec. 51.1312.
Sec. 51.1309 Demonstrations that areas would have attained but for
international emissions under CAA section 179B(b).
For purposes of CAA section 179B(b), 42 U.S.C. 7509a(b), in order
to establish to the satisfaction of the Administrator that, with
respect to an ozone nonattainment area classified as Marginal in such
State, such State would have attained the national ambient air quality
standard for ozone by the applicable attainment date, but for emissions
emanating from outside the United States, a State must demonstrate that
all reasonably available control measures have been implemented in the
nonattainment area in accordance with CAA section 172(c)(1), 42 U.S.C.
7502(c)(1).
Sec. 51.1310 Requirements for reasonable further progress (RFP).
(a) RFP for nonattainment areas classified pursuant to Sec.
51.1303. The RFP requirements specified in CAA section 182 for that
area's classification shall apply.
(1) Submission deadline. For each area classified Moderate or
higher pursuant to Sec. 51.1303, the state shall submit a SIP revision
no later than 36 months after the effective date of designation as
nonattainment for the 2015 ozone NAAQS that provides for RFP as
described in paragraphs (a)(2) through (4) of this section.
(2) RFP requirements for areas with an approved prior ozone NAAQS
15 percent VOC ROP plan. An area classified Moderate or higher that has
the same boundaries as an area, or is entirely composed of several
areas or portions of areas, for which EPA fully approved a 15 percent
plan for a prior ozone NAAQS is considered to have met the requirements
of CAA section 182(b)(1) for the 2015 ozone NAAQS and instead:
(i) If classified Moderate or higher, the area is subject to the
RFP requirements under CAA section 172(c)(2) and shall submit a SIP
revision that:
(A) Provides for a 15 percent emission reduction from the baseline
year within 6 years after the baseline year;
(B) Provides for an additional emissions reduction of 3 percent per
year from the end of the first 6-year period after the baseline year up
to the beginning of the attainment year if a baseline year earlier than
2017 is used; and
(C) Relies on either NOX or VOC emissions reductions (or
a combination) to meet the requirements of paragraphs (a)(2)(i)(A) and
(B) of this section. Use of NOX emissions reductions must
meet the criteria in CAA section 182(c)(2)(C).
(ii) If classified Serious or higher, the area is also subject to
RFP under CAA section 182(c)(2)(B) and shall submit a SIP revision no
later than 48 months after the effective date of designation providing
for an average emissions reduction of 3 percent per year:
(A) For all remaining 3-year periods after the first 6-year period
after the baseline year until the year of the area's attainment date;
and
(B) That relies on either NOX or VOC emissions
reductions (or a combination) to meet the requirements of (a)(2)(ii)(A)
and (B). Use of NOX emissions reductions must meet the
criteria in CAA section 182(c)(2)(C).
(3) RFP requirements for areas for which an approved 15 percent VOC
ROP plan for a prior ozone NAAQS exists for only a portion of the area.
An area that contains one or more portions for which EPA fully approved
a 15 percent VOC ROP plan for a prior ozone NAAQS (as well as areas for
which EPA has not fully approved a 15 percent plan for a prior ozone
NAAQS) shall meet the requirements of either paragraph (a)(3)(i) or
(ii) of this section.
(i) The state shall not distinguish between the portion of the area
with a previously approved 15 percent ROP plan and the portion of the
area without such a plan, and shall meet the requirements of paragraph
(a)(4) of this section for the entire nonattainment area.
(ii) The state shall treat the area as two parts, each with a
separate RFP target as follows:
(A) For the portion of the area without an approved 15 percent VOC
ROP plan for a prior ozone NAAQS, the state shall submit a SIP revision
as required under paragraph (a)(4) of this section.
(B) For the portion of the area with an approved 15 percent VOC ROP
plan for a prior ozone NAAQS, the state shall submit a SIP as required
under paragraph (a)(2) of this section.
(4) ROP Requirements for areas without an approved prior ozone
NAAQS 15 percent VOC ROP plan.
(i) For each area, the state shall submit a SIP revision consistent
with CAA section 182(b)(1). The 6-year period referenced in CAA section
182(b)(1) shall begin January 1 of the year following the year used for
the baseline emissions inventory.
(ii) For Moderate areas, the plan must provide for an additional 3
percent per year reduction from the end of the first 6-year period
after the baseline year up to the beginning of the attainment year if a
baseline year other than the most recent triennial inventory year is
selected under paragraph (b) of this section.
(iii) For each area classified Serious or higher, the state shall
submit a SIP revision consistent with CAA section 182(c)(2)(B). The
final increment of progress must be achieved no later than the
attainment date for the area.
(5) Creditability of emission control measures for RFP plans.
Except as specifically provided in CAA section 182(b)(1)(C) and (D),
CAA section 182(c)(2)(B), and 40 CFR 51.1310(a)(6), all emission
reductions from SIP-approved or federally promulgated measures that
occur after the baseline emissions inventory year are creditable for
purposes of the RFP requirements in this section, provided the
reductions meet the requirements for creditability, including the need
to be enforceable, permanent, quantifiable, and surplus.
(6) Creditability of out-of-area emissions reductions. For purposes
of meeting the RFP requirements in Sec. 51.1310, in addition to the
restrictions on the creditability of emission control measures listed
in Sec. 51.1310(a)(5), creditable emission reductions for fixed
percentage reduction RFP must be obtained from emissions sources
located within the nonattainment area.
(7) Calculation of non-creditable emissions reductions. The
following four categories of control measures listed in CAA section
182(b)(1)(D) are no longer required to be calculated for
[[Page 81314]]
exclusion in RFP analyses because the Administrator has determined that
due to the passage of time the effect of these exclusions would be de
minimis: (i) Measures related to motor vehicle exhaust or evaporative
emissions promulgated by January 1, 1990; (ii) regulations concerning
Reid vapor pressure promulgated by November 15, 1990; (iii) measures to
correct previous RACT requirements; and (iv) measures required to
correct previous I/M programs.
(b) Baseline emissions inventory for RFP plans. For the RFP plans
required under this section, at the time of designation as
nonattainment for an ozone NAAQS the baseline emissions inventory shall
be the emissions inventory for the most recent calendar year for which
a complete triennial inventory is required to be submitted to EPA under
the provisions of subpart A of this part. States may use an alternative
baseline emissions inventory provided that the year selected is between
the year of designation as nonattainment for that NAAQS and the year
that NAAQS was promulgated. All states associated with a multi-state
nonattainment area must consult and agree on a single alternative
baseline year. The emissions values included in the inventory required
by this section shall be actual ozone season day emissions as defined
by Sec. 51.1300(ee).
(c) Milestones. (1) Applicable milestones. Consistent with CAA
section 182(g)(1) for each area classified Serious or higher, the state
shall determine at specified intervals whether each area has achieved
the reduction in emissions required under paragraphs (a)(2) through (4)
of this section. The initial determination shall occur 6 years after
the baseline year, and at intervals of every 3 years thereafter. The
reduction in emissions required by the end of each interval shall be
the applicable milestone.
(2) Milestone compliance demonstrations. For each area subject to
the milestone requirements under paragraph (c)(1) of this section, not
later than 90 days after the date on which an applicable milestone
occurs (not including an attainment date on which a milestone occurs in
cases where the ozone standards have been attained), each state in
which all or part of such area is located shall submit to the
Administrator a demonstration that the milestone has been met. The
demonstration under this paragraph must provide for objective
evaluation of reasonable further progress toward timely attainment of
the ozone NAAQS in the area, and may take the form of:
(i) Such information and analysis as needed to quantify the actual
reduction in emissions achieved in the time interval preceding the
applicable milestone; or
(ii) Such information and analysis as needed to demonstrate
progress achieved in implementing the approved SIP control measures,
including RACM and RACT, corresponding with the reduction in emissions
achieved in the time interval preceding the applicable milestone.
Sec. 51.1311 [Reserved]
Sec. 51.1312 Requirements for reasonably available control
technology (RACT) and reasonably available control measures (RACM).
(a) RACT requirement for areas classified pursuant to Sec.
51.1303. (1) For each nonattainment area classified Moderate or higher,
the state shall submit a SIP revision that meets the VOC and
NOX RACT requirements in CAA sections 182(b)(2) and 182(f).
(2) SIP submission deadline. (i) For a RACT SIP required pursuant
to initial area designations, the state shall submit the RACT SIP for
each area no later than 24 months after the effective date of
designation for a specific ozone NAAQS.
(ii) For a RACT SIP required pursuant to reclassification, the SIP
revision deadline is either 24 months from the effective date of
reclassification, or the deadline established by the Administrator in
the reclassification action.
(iii) For a RACT SIP required pursuant to the issuance of a new
Control Techniques Guideline (CTG) under CAA section 183, the SIP
revision deadline is either 24 months from the date of CTG issuance, or
the deadline established by the Administrator in the action issuing the
CTG.
(3) RACT implementation deadline. (i) For RACT required pursuant to
initial area designations, the state shall provide for implementation
of such RACT as expeditiously as practicable, but no later than January
1 of the 5th year after the effective date of designation.
(ii) For RACT required pursuant to reclassification, the state
shall provide for implementation of such RACT as expeditiously as
practicable, but either no later than January 1 of the 3rd year after
the associated SIP revision submission deadline or the deadline
established by the Administrator in the final action issuing the area
reclassification.
(iii) For RACT required pursuant to issuance of a new CTG under CAA
section 183, the state shall provide for implementation of such RACT as
expeditiously as practicable, but either no later than January 1 of the
3rd year after the associated SIP submission deadline or the deadline
established by the Administrator in the final action issuing the CTG.
(b) Determination of major stationary sources for applicability of
RACT provisions. The amount of VOC and NOX emissions are to
be considered separately for purposes of determining whether a source
is a major stationary source as defined in CAA section 302.
(c) Reasonably Available Control Measures (RACM) requirements. For
each nonattainment area required to submit an attainment demonstration
under Sec. 51.1308(a) and (b), the state shall submit with the
attainment demonstration a SIP revision demonstrating that it has
adopted all RACM necessary to demonstrate attainment as expeditiously
as practicable and to meet any RFP requirements. The SIP revision shall
include, as applicable, other control measures on sources of emissions
of ozone precursors located outside the nonattainment area or portion
thereof, located within the state if doing so is necessary to provide
for attainment of the applicable ozone NAAQS in such area by the
applicable attainment date.
Sec. 51.1313 Section 182(f) NOX exemption provisions.
(a) A person or a state may petition the Administrator for an
exemption from NOX obligations under CAA section 182(f) for
any area designated nonattainment for a specific ozone NAAQS and for
any area in a CAA section 184 ozone transport region.
(b) The petition must contain adequate documentation that the
criteria in CAA section 182(f) are met.
(c) A CAA section 182(f) NOX exemption granted for a
prior revoked ozone NAAQS does not relieve the area from any
NOX obligations under CAA section 182(f) for a current ozone
NAAQS.
Sec. 51.1314 New source review requirements.
The requirements for nonattainment NSR for the ozone NAAQS are
located in Sec. 51.165. For each nonattainment area, the state shall
submit a nonattainment NSR plan or plan revision for a specific ozone
NAAQS no later than 36 months after the effective date of the area's
designation of nonattainment or redesignation to nonattainment for that
ozone NAAQS.
Sec. 51.1315 Emissions inventory requirements.
(a) For each nonattainment area, the state shall submit a base year
inventory
[[Page 81315]]
as defined by Sec. 51.1300(dd) to meet the emissions inventory
requirement of CAA section 182(a)(1). This inventory shall be submitted
no later than 24 months after the effective date of designation. The
inventory year shall be selected consistent with the baseline year for
the RFP plan as required by Sec. 51.1310(b).
(b) For each nonattainment area, the state shall submit a periodic
emission inventory of emissions sources in the area to meet the
requirement in CAA section 182(a)(3)(A). With the exception of the
inventory year and timing of submittal, this inventory shall be
consistent with the requirements of paragraph (a) of this section. Each
periodic inventory shall be submitted no later than the end of each 3-
year period after the required submission of the base year inventory
for the nonattainment area. This requirement shall apply until the area
is redesignated to attainment.
(c) The emissions values included in the inventories required by
paragraphs (a) and (b) of this section shall be actual ozone season day
emissions as defined by Sec. 51.1300(ee).
(d) In the inventories required by paragraphs (a) and (b) of this
section, state shall report emissions from point sources according to
the point source emissions thresholds of the Air Emissions Reporting
Requirements (AERR), 40 CFR part 51, subpart A.
(e) The data elements in the emissions inventories required by
paragraphs (a) and (b) of this section shall be consistent with the
detail required by 40 CFR part 51, subpart A. Since only emissions
within the boundaries of the nonattainment area shall be included as
defined by Sec. 51.1300(ee), this requirement shall apply to the
emissions inventories required in this section instead of any total
county requirements contained in 40 CFR part 51, subpart A.
Sec. 51.1316 Requirements for an Ozone Transport Region.
(a) In general. CAA sections 176A and 184 apply for purposes of the
2015 ozone NAAQS.
(b) RACT requirements for certain portions of an Ozone Transport
Region. (1) The state shall submit a SIP revision that meets the RACT
requirements of CAA section 184(b) for all portions of the state
located in an ozone transport region.
(2) SIP submission deadline. (i) For a RACT SIP required pursuant
to initial area designations, the state shall submit the RACT SIP
revision no later than 24 months after the effective date of
designation for a specific ozone NAAQS.
(ii) For a RACT SIP required pursuant to reclassification, the SIP
revision deadline is 24 months from the effective date of
reclassification, or the Administrator will establish the SIP revision
submission deadline in the reclassification action.
(iii) For a RACT SIP required pursuant to the issuance of a new
control techniques guideline (CTG) under CAA section 183, the SIP
revision deadline is 24 months from the date of CTG issuance, or the
Administrator will establish the SIP revision submission deadline in
the action issuing the CTG.
(3) RACT implementation deadline. (i) For RACT required pursuant to
initial area designations, the state shall provide for implementation
of RACT as expeditiously as practicable, but no later than January 1 of
the 5th year after the effective date of designation.
(ii) For RACT required pursuant to reclassification, the state
shall provide for implementation of such RACT as expeditiously as
practicable, but either no later than January 1 of the 3rd year after
the associated SIP revision submission deadline or no later than a
superseding deadline established by the Administrator in the final
action issuing the area reclassification.
(iii) For RACT required pursuant to issuance of a new CTG under CAA
section 183, the state shall provide for implementation of such RACT as
expeditiously as practicable, but either no later than January 1 of the
3rd year after the associated SIP submission deadline or no later than
a superseding deadline established by the Administrator in the final
action issuing the CTG.
Sec. 51.1317 Fee programs for Severe and Extreme nonattainment areas
that fail to attain.
For each area classified Severe or Extreme for a specific ozone
NAAQS, the state shall submit a SIP revision within 10 years of the
effective date of designation for that ozone NAAQS that meets the
requirements of CAA section 185.
Sec. 51.1318 Suspension of SIP planning requirements in nonattainment
areas that have air quality data that meet an ozone NAAQS.
Upon a determination by EPA that an area designated nonattainment
for a specific ozone NAAQS has attained that NAAQS, the requirements
for such area to submit attainment demonstrations and associated
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 ozone
NAAQS for which the determination has been made, shall be suspended
until such time as: The area is redesignated to attainment for that
NAAQS or a redesignation substitute is approved as appropriate, at
which time the requirements no longer apply; or EPA determines that the
area has violated that NAAQS, at which time the area is again required
to submit such plans.
Sec. 51.1319 Applicability.
As of revocation of the 2008 ozone NAAQS, as set forth in Sec.
50.15(c), the provisions of Subpart CC shall replace the provisions of
subpart AA, Sec. Sec. 51.1100 to 51.1118, which cease to apply except
for Sec. 51.1107 for the anti-backsliding purposes of Sec.
51.1305(d)(2). See Subpart AA Sec. 51.1119.
0
6. In Appendix S to part 51, revise paragraphs IV.G.5. Introductory,
(i) and section VII to read as follows:
Appendix S to Part 51--Emission Offset Interpretative Ruling
* * * * *
IV. * * *
G. * * *
* * * * *
5. Interpollutant offsetting, or interpollutant trading or
interprecursor trading or interprecursor offset substitution. In
meeting the emissions offset requirements of paragraph IV.A,
Condition 3 of this Ruling, the emissions offsets obtained shall be
for the same regulated nonattainment NSR pollutant unless
interpollutant offsetting, interpollutant trading, interprecursor
trading or interprecursor offset substitution is permitted for a
particular pollutant as specified in this paragraph IV.G.5 and the
reviewing authority chooses to review such trading on a case by case
basis as described in this section.
(i) The offset requirements of paragraph IV.A, Condition 3 of
this Ruling for emissions of the ozone precursors NOX and
VOC may be satisfied by offsetting reductions of emissions of either
of those precursors, if all other requirements contained in this
Ruling for such offsets are also satisfied. Such precursor
substitutions shall be made on a case-by-case basis, subject to the
approval of the reviewing authority and the Administrator, with the
permit applicant submitting the following information to the
reviewing authority:
(a) A description of the air quality model(s) used to establish
the appropriate ratio for the precursor substitution;
(b) a proposed ratio for the precursor substitution and
accompanying calculations;
(c) a demonstration substantiating that the ratio achieves an
equivalent or greater air quality benefit for ozone in the
nonattainment area.
(ii) * * *
* * * * *
[[Page 81316]]
VII. Anti-Backsliding Measures for Revoked Ozone NAAQS
Nonattainment area new source review obligations for prior ozone
NAAQS.
A. Except as provided in paragraph VII.B of this Ruling, an area
designated nonattainment for the 2015 ozone NAAQS and designated
nonattainment for a prior ozone NAAQS, as of the effective date of
the revocation of the respective prior ozone NAAQS, remains subject
to the obligation to adopt and implement the major source threshold
and offset ratio requirements for nonattainment NSR that apply or
applied to the area pursuant to sections 172(c)(5), 173 and 182 of
the CAA based on the highest of: (i) The area's classification under
section 181(a)(1) of the CAA for the 1-hour ozone NAAQS as of the
effective date of revocation of that NAAQS; (ii) the area's
classification under Sec. 51.903 for the 1997 ozone NAAQS as of the
effective date of revocation of the 1997 ozone NAAQS; (iii) the
area's classification under Sec. 51.1103 for the 2008 ozone NAAQS
as of the date a permit is issued or as of the effective date of
revocation of the 2008 ozone NAAQS, whichever is earlier; and (iv)
the area's classification under Sec. 51.1303 for the 2015 ozone
NAAQS.
B.1. An area remains subject to the obligations for a revoked
NAAQS under paragraph VII.A of this Ruling until either: (i) The
area is redesignated to attainment for the 2015 ozone NAAQS, in
which case regulatory anti-backsliding requirements related to the
1997 and 2008 ozone standards are satisfied; or (ii) the EPA
approves a demonstration for the area in a redesignation substitute
procedure for a revoked NAAQS per the provisions of Sec.
51.1305(b). Under this redesignation substitute procedure for a
revoked NAAQS, and for this limited anti-backsliding purpose, the
demonstration must show that the area has attained that revoked
NAAQS due to permanent and enforceable emission reductions and that
the area will maintain that revoked NAAQS for 10 years from the date
of EPA's approval of this showing.
2. Effect of redesignation to attainment for 2015 ozone NAAQS or
approval of a redesignation substitute for a revoked ozone NAAQS.
After redesignation to attainment for the 2015 ozone NAAQS, the
state may request that provisions for nonattainment NSR for the 1997
and 2008 ozone standards, if applicable, be removed from the SIP,
subject to the requirements of CAA sections 110(l) and 193. After
EPA approval of a redesignation substitute for a revoked NAAQS under
the provisions of Sec. 51.1305(b), the state may request that
provisions for nonattainment NSR for that revoked NAAQS be removed
from the SIP, subject to the requirements of CAA sections 110(l) and
193. Upon removal of nonattainment NSR provisions for a revoked
NAAQS, the state remains subject to the obligation to adopt and
implement the major source threshold and offset ratio requirements
for nonattainment NSR that apply or applied to the area for the
remaining applicable NAAQS consistent with paragraph VII.A of this
Ruling.
* * * * *
0
7. In Sec. 51.165, revise paragraphs (a)(11)(i) and (12) to read as
follows:
Sec. 51.165 Permit requirements.
(a) * * *
(11) * * *
(i) The plan may allow the offset requirement in paragraph (a)(3)
of this section for emissions of the ozone precursors NOX
and VOC to be satisfied, where appropriate, by offsetting reductions of
emissions of either of those precursors, if all other requirements
contained in this section for such offsets are also satisfied.
(A) The plan shall indicate whether such precursor substitutions
for ozone precursors are to be based on a default ratio for the
applicable ozone nonattainment area, case-by-case ratios established
for individual permits, or a combination of these approaches whereupon
a permit applicant may propose a case-by-case permit-specific ratio in
lieu of the default ratio for a particular ozone nonattainment area.
(B) The plan shall include any default ratio for precursor
substitutions for ozone and shall be accompanied by a description of
the air quality model(s) used and the technical demonstration
substantiating the equivalent or greater air quality benefit for ozone
in the nonattainment area. Any default ratio for precursor
substitutions for ozone shall be subject to the approval of the
Administrator.
(C) The plan shall provide that for any case-by-case ratios used
for individual permit, the ratio shall be approved by the reviewing
authority and the Administrator, and should require that the permit
applicant submit information to the reviewing authority, including the
proposed ratio for the precursor substitution for ozone, a description
of the air quality model(s) used, and the technical demonstration
substantiating the equivalent or greater air quality benefit for ozone
in the nonattainment area.
(ii) The plan may allow the offset requirements in paragraph (a)(3)
of this section for direct PM2.5 emissions or emissions of
precursors of PM2.5 to be satisfied by offsetting reductions
in direct PM2.5 emissions or emissions of any
PM2.5 precursor identified under paragraph (a)(1)(xxxvii)(C)
of this section if such offsets comply with the interprecursor trading
hierarchy and ratio established in the approved plan for a particular
nonattainment area.
(12) The plan shall require that in any area designated
nonattainment for the 2015 ozone NAAQS and designated nonattainment for
the 2008 ozone NAAQS as of the effective date of revocation of the 2008
ozone NAAQS, the requirements of this section applicable to major
stationary sources and major modifications of ozone shall include the
anti-backsliding requirements contained at Sec. 51.1305.
* * * * *
Appendix A to Subpart A of Part 51--Tables
0
8. In Appendix A to subpart A of part 51: Revise table 1 to read as
follows:
Table 1 to Appendix A of Subpart A--Emission Thresholds \1\ by Pollutant for Treatment as Point Source Under 40
CFR 51.30
----------------------------------------------------------------------------------------------------------------
Every-year Triennial
Pollutant --------------------------------------------------------------------------
Type A sources \ 2\ Type B sources NAA sources \3\
----------------------------------------------------------------------------------------------------------------
(1) SO2.............................. >=2500................. >=100.................. >=100.
PM2.5 (Serious) >=70.
(2) VOC.............................. >=250.................. >=100.................. >=100.
within OTR \4\ >=50.... within OTR >=50.
O3 (Serious) >=50.
O3 (Severe) >=25.
O3 (Extreme) >=10.
PM2.5 (Serious) >=70.
(3) NOX.............................. >=2500................. >=100.................. >=100.
O3 (Moderate within
OTR) >=50.
O3 (Serious) >=50.
O3 (Severe) >=25.
O3 (Extreme) >=10.
[[Page 81317]]
PM2.5 (Serious) >=70.
(4) CO............................... >=2500................. >=1000................. >=1000.
CO (all areas) >=100.
(5) Lead............................. >=0.5 (actual)......... >=0.5 (actual).
(6) Primary PM10..................... >=250.................. >=100.................. >=100.
PM10 (Serious) >=70.
(7) Primary PM2.5.................... >=250.................. >=100.................. >=100.
PM2.5 (Serious) >=70.
(8) NH3.............................. >=250.................. >=100.................. >=100.
PM2.5 (Serious) >=70.
----------------------------------------------------------------------------------------------------------------
\1\ Thresholds for point source determination shown in tons per year of potential to emit as defined in 40 CFR
part 70, with the exception of lead. Reported emissions should be in actual tons emitted for the required time
period.
\2\ Type A sources are a subset of the Type B sources and are the larger emitting sources by pollutant.
\3\ NAA = Nonattainment Area. The point source reporting thresholds vary by attainment status for SO2, VOC, NOX,
CO, PM10, PM2.5, and NH3.
\4\ OTR = Ozone Transport Region (see 40 CFR 51.1300(t)).
[FR Doc. 2016-27333 Filed 11-16-16; 8:45 am]
BILLING CODE 6560-50-P