Proposed Rule2024-22008
State Implementation Plan Submittal Deadlines and Implementation Requirements for Reclassified Nonattainment Areas Under the Ozone National Ambient Air Quality Standards
Primary source
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Published
October 4, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing deadlines for submission of state implementation plan (SIP) revisions and implementation of the relevant control requirements that will apply for nonattainment areas reclassified as Moderate, Serious, and Severe under the current and any future ozone National Ambient Air Quality Standards (NAAQS) as a result of either failing to attain the standard by the applicable classification attainment date or the EPA granting a voluntary reclassification request. This proposal articulates the implementation requirements and timeframes that will apply for all such areas once reclassified. The EPA is also proposing regulatory revisions to codify its existing interpretation that following reclassification, a state is no longer required to submit SIP revisions addressing certain, but not all, requirements related to the prior classification level for an ozone nonattainment area. In addition, the EPA is articulating in this document how the proposed default deadlines and codification of applicable requirements following reclassification would apply specifically to any nonattainment areas that are reclassified as Serious under the 2015 ozone NAAQS.
Full Text
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<title>Federal Register, Volume 89 Issue 193 (Friday, October 4, 2024)</title>
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[Federal Register Volume 89, Number 193 (Friday, October 4, 2024)]
[Proposed Rules]
[Pages 80833-80853]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22008]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2024-0333; FRL-11817-01-OAR]
RIN 2060-AW25
State Implementation Plan Submittal Deadlines and Implementation
Requirements for Reclassified Nonattainment Areas Under the Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
deadlines for submission of state implementation plan (SIP) revisions
and implementation of the relevant control requirements that will apply
for nonattainment areas reclassified as Moderate, Serious, and Severe
under the current and any future ozone National Ambient Air Quality
Standards (NAAQS) as a result of either failing to attain the standard
by the applicable classification attainment date or the EPA granting a
voluntary reclassification request. This proposal articulates the
implementation requirements and timeframes that will apply for all such
areas once reclassified. The EPA is also proposing regulatory revisions
to codify its existing interpretation that following reclassification,
a state is no longer required to submit SIP revisions addressing
certain, but not all, requirements related to the prior classification
level for an ozone nonattainment area. In addition, the EPA is
articulating in this document how the proposed default deadlines and
codification of applicable requirements following reclassification
would apply specifically to any nonattainment areas that are
reclassified as Serious under the 2015 ozone NAAQS.
DATES: Comments must be received on or before November 4, 2024.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2024-0333, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#30511d515e541d421d545f535b5544705540511e575f46"><span class="__cf_email__" data-cfemail="90f1bdf1fef4bde2bdf4fff3fbf5e4d0f5e0f1bef7ffe6">[email protected]</span></a>. Include Docket ID No. EPA-
HQ-OAR-2024-0333 in the subject line of the message.
<bullet> Fax: (202) 566-9744.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Air and Radiation Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier (by scheduled appointment only):
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC 20004. The Docket Center's hours of
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except federal
holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``I. Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document. For information on EPA Docket Center services, please
visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: For information about this proposed
rule, contact Erin Lowder, U.S. EPA, Office of Air Quality Planning and
Standards, Air Quality Policy Division, C535-A Research Triangle Park,
NC 27709; telephone number: (919) 541-5421; email address:
<a href="/cdn-cgi/l/email-protection#4824273f2c2d3a662d3a2126082d3829662f273e"><span class="__cf_email__" data-cfemail="cba7a4bcafaeb9e5aeb9a2a58baebbaae5aca4bd">[email protected]</span></a>; or Robert Lingard, U.S. EPA, Office of Air Quality
Planning and Standards, Air Quality Policy Division, C539-01 Research
Triangle Park, NC 27709; by telephone number: (919) 541-5272; email
address: <a href="/cdn-cgi/l/email-protection#791510171e180b1d570b161b1c0b0d391c0918571e160f"><span class="__cf_email__" data-cfemail="127e7b7c757360763c607d70776066527762733c757d64">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means the EPA.
Table of Contents
I. Public Participation
II. Overview and Basis of Proposal
A. Overview of Proposal
B. What is the background for the proposed actions?
C. What is the statutory authority for the proposed actions?
III. What is the EPA proposing and what is the rationale?
A. Default Deadlines for Reclassified Nonattainment Areas Under
the Ozone NAAQS
1. Default Deadlines for Nonattainment Areas Reclassified as
Moderate or Serious
2. Default Deadlines for Nonattainment Areas Reclassified as
Severe
B. Status of Certain Requirements of Former Classification
1. Introduction
2. Leftover SIP Requirements
C. Serious Area SIP Revisions for the 2015 Ozone NAAQS
1. Required Submission Elements
2. Submission and Implementation Deadlines
IV. Environmental Justice Considerations
[[Page 80834]]
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing 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 That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Judicial Review
I. Public Participation
Written comments: Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2024-0333, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred
method), or the other methods identified in the ADDRESSES section. Once
submitted, comments cannot be edited or removed from the docket. The
EPA may publish any comment received to its public docket. Do not
submit to EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information
you consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), or other information whose disclosure is
restricted by statute. Clearly mark the part or all of the information
that you claim to be CBI. For CBI information on any digital storage
media that you mail to the EPA, mark the outside of the digital storage
media as CBI or PBI and then identify electronically within the digital
storage media the specific information that is claimed as CBI or PBI.
In addition to one complete version of the comments that includes
information claimed as CBI or PBI, you must submit a copy of the
comments that does not contain the information claimed as CBI or PBI
directly to the public docket through the procedures outlined in
Instructions. If you submit any digital storage media that does not
contain CBI or PBI, mark the outside of the digital storage media
clearly that it does not contain CBI. Information not marked as CBI or
PBI will be included in the public docket and the EPA's electronic
public docket without prior notice. Information marked as CBI or PBI
will not be disclosed except in accordance with procedures set forth in
40 Code of Federal Regulations (CFR) part 2. Our preferred method to
receive CBI or PBI is for it to be transmitted to electronically using
email attachments, File Transfer Protocol (FTP), or other online file
sharing services (e.g., Dropbox, OneDrive, Google Drive). Electronic
submissions must be transmitted directly to the OAQPS CBI Office using
the email address, <a href="/cdn-cgi/l/email-protection#9ef1ffefeeedfdfcf7defbeeffb0f9f1e8"><span class="__cf_email__" data-cfemail="4c232d3d3c3f2f2e250c293c2d622b233a">[email protected]</span></a>, and should include clear CBI or
PBI markings as described earlier. If assistance is needed with
submitting large electronic files that exceed the file size limit for
email attachments, and if you do not have your own file sharing
service, please email <a href="/cdn-cgi/l/email-protection#a0cfc1d1d0d3c3c2c9e0c5d0c18ec7cfd6"><span class="__cf_email__" data-cfemail="b9d6d8c8c9cadadbd0f9dcc9d897ded6cf">[email protected]</span></a> to request a file transfer link.
If sending CBI or PBI information through the postal service, please
send it to the following address: OAQPS Document Control Officer (C404-
02), OAQPS, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2024-
0333. The mailed CBI or PBI material should be double wrapped and
clearly marked. Any CBI or PBI markings should not show through the
outer envelope.
II. Overview and Basis of Proposal
A. Overview of Proposal
The EPA is proposing default SIP submittal and implementation
deadlines for the current and future ozone NAAQS that would apply for
mandatory reclassifications (e.g., from Marginal to Moderate, Moderate
to Serious, and Serious to Severe), and also for areas voluntarily
reclassified as Moderate, Serious, and Severe. These default
reclassification SIP submittal and implementation deadlines would apply
only in cases where the otherwise applicable deadlines that apply to
areas initially designated nonattainment have passed or are less than
18 months in the future from the effective date of such a
reclassification. In the near term, if these default deadlines are
finalized as proposed, they will apply to any nonattainment areas that
are reclassified as Serious under the 2015 ozone NAAQS for failing to
attain the standard by the Moderate attainment date of August 3, 2024,
unless otherwise established in a separate notice-and-comment
rulemaking.
The EPA is proposing a general default SIP submittal deadline for
such reclassified areas as the sooner of 18 months from the effective
date of the reclassification notice or January 1 of the new
classification attainment year, except for SIP revisions addressing
Clean Air Act (CAA) section 185. For the CAA section 185 fee program
SIP submittals for areas reclassified as Severe, the EPA is proposing a
default deadline of the sooner of 36 months after the effective date of
reclassification to Severe or January 1 of the Severe area attainment
year. The EPA recognizes that in certain circumstances, states and
areas may seek an adjustment of these default deadlines; the EPA
therefore proposes that the default SIP submission deadlines could be
adjusted where such adjustment is appropriate or necessary, through
future notice-and-comment rulemaking in specific EPA actions. Further
discussion of these proposed default deadlines is provided in section
III.A. of this document.
The EPA is also proposing default deadlines for implementation of
emissions control measures required by mandatory reclassifications
(e.g., from Marginal to Moderate, Moderate to Serious, and Serious to
Severe), and also for voluntary reclassifications to Moderate, Serious,
and Severe. The EPA is proposing a default control implementation
deadline of the sooner of 18 months after the proposed SIP submittal
deadline or the beginning of the relevant attainment year ozone season.
Similar to the SIP deadlines, the EPA proposes that these default
control measure implementation deadlines could be adjusted where such
adjustment is appropriate or necessary subject to notice-and-comment
rulemaking in specific EPA actions. Further discussion of these
proposed default deadlines is provided in section III.A. of this
document. In addition to establishing default SIP submittal and related
implementation deadlines, the EPA is proposing regulations to codify
its existing interpretation that, following reclassification, a state
is no longer required to submit SIP revisions addressing the following
requirements related to the prior classification level for an ozone
nonattainment area: (1) a demonstration of attainment by the prior
attainment date, (2) a reasonably available control measures (RACM)
analysis tied to the prior attainment date; and (3) for areas that are
voluntarily reclassified before the lower classification's attainment
date, contingency measures specifically related to the area's failure
to attain by the prior attainment date. As a general matter, this
interpretation applies with respect to areas reclassified by operation
of law from (1) Marginal to Moderate, (2) Moderate to Serious, and (3)
Serious to Severe, and also to any voluntary
[[Page 80835]]
reclassification request granted by the EPA for these
classifications.\1\
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\1\ This rule does not address voluntary reclassifications to
Extreme. The EPA expects that this type of reclassification will be
rare. We would address the requirements around such a
reclassification on a case-by-case basis, should the need arise.
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Under the CAA, the EPA is required to determine whether areas
designated nonattainment for an ozone NAAQS attained the standard by
the applicable attainment date, and to take certain steps for areas
that failed to attain (see CAA section 181(b)(2)). For a concentration-
based standard, such as the 2015 ozone NAAQS,\2\ a determination of
attainment is based on a nonattainment area's design value (DV).\3\ In
separate actions, the EPA will determine whether areas classified as
Moderate for the 2015 ozone NAAQS factually attained the standard by
the applicable attainment date of August 3, 2024, based on their DV as
of the attainment date. As required under CAA section 181(b)(2)(A),
where the EPA determines that areas failed to timely attain, those
areas will be reclassified by operation of law as Serious upon the
effective date of the EPA's determination. The reclassified areas will
then be required to attain the 2015 ozone NAAQS as expeditiously as
practicable, but not later than August 3, 2027 (see CAA section
181(a)(1) (table 1) and 40 CFR 51.1303(a) (table 1)). States with
jurisdiction over such areas will be required to submit to the EPA the
SIP revisions for these areas that satisfy the statutory and regulatory
requirements applicable to Serious areas established in CAA section
182(c) and in the 2015 Ozone NAAQS SIP Requirements Rule (see 83 FR
62998, December 6, 2018, and 40 CFR 51.1300 et seq.).
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\2\ Because the 2015 primary and secondary NAAQS for ozone are
identical, for convenience, the EPA refers to them in the singular
as ``the 2015 ozone NAAQS'' or as ``the standard.''
\3\ A design value is a statistic used to compare data collected
at an ambient air quality monitoring site to the applicable NAAQS to
determine compliance with the standard. The DV for the 2015 ozone
NAAQS is the 3-year average of the annual fourth highest daily
maximum 8-hour average ozone concentration. The DV is calculated for
each air quality monitor in an area, and the DV for an area is the
highest DV among the individual monitoring sites located in the
area. For more information on air quality design values, visit
<a href="https://www.epa.gov/air-trends/air-quality-design-values">https://www.epa.gov/air-trends/air-quality-design-values</a>.
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The EPA proposes in this action to articulate applicable
requirements and establish deadlines for submitting SIP revisions that
will apply to these reclassified areas, consistent with CAA section
182(i). If the proposed default deadlines discussed in section III.A.
of this document are finalized, new SIP revisions for nonattainment
areas reclassified as Serious under the 2015 ozone NAAQS would be due
to the EPA no later than 18 months after the effective date of the
relevant reclassification notice or January 1, 2026, whichever is
sooner.
Under the CAA and the Tribal Authority Rule (TAR), tribes may, but
are not required to, submit implementation plans to the EPA for
approval (see CAA section 301(d) and 40 CFR part 49). Accordingly, for
tribal nonattainment areas, a tribe is not required to submit any
tribal implementation plan (TIP) revisions applicable to Serious areas
established in CAA section 182(c) and in the 2015 Ozone NAAQS SIP
Requirements Rule. Tribes that are part of multi-jurisdictional
nonattainment areas are also not required to submit implementation plan
revisions applicable to Serious nonattainment areas.
If the proposed default deadlines discussed in section III.A. are
finalized as proposed, states would be required to implement any new
reasonably available control technology (RACT) required for
reclassified Serious areas under the 2015 ozone NAAQS no later than 18
months from the RACT submittal deadline or the beginning of the 2026
attainment year ozone season for that area, whichever is earlier.
Additionally, the deadline for any new or revised Enhanced vehicle
inspection and maintenance (I/M) programs (for areas that do not need
I/M emission reductions to demonstrate attainment by the attainment
date or to meet reasonable further progress (RFP) milestones) to be
fully implemented would be as expeditiously as practicable but no later
than 4 years after the effective date of the reclassification. Lastly,
the deadline for submitting the first transportation control
demonstration, as required by CAA section 182(c)(5), would be 2 years
after the attainment demonstration due date.
B. What is the background for the proposed actions?
On October 26, 2015, the EPA issued its final action to revise the
NAAQS for ozone to establish a new 8-hour standard (see 80 FR 65452,
October 26, 2015).\4\ In that action, the EPA promulgated identical
tighter primary and secondary ozone standards designed to protect
public health and welfare that specified an 8-hour ozone level of 0.070
ppm. Specifically, the standards require that the 3-year average of the
annual fourth highest daily maximum 8-hour average ozone concentration
may not exceed 0.070 ppm.
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\4\ On October 26, 2015, the EPA issued its final action to
revise the 8-hour NAAQS for ozone from 0.075 ppm to 0.070 ppm. The
0.075 ppm standard that was promulgated in 2008 has not been revoked
and is still in effect. See 40 CFR 51.1100 et seq.
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Effective on August 3, 2018, the EPA designated 51 areas throughout
the country as nonattainment for the 2015 ozone NAAQS (see 83 FR 25776,
June 4, 2018).\5\ In a separate action, the EPA assigned classification
thresholds and attainment dates based on the severity of an area's
ozone levels, determined by the area's design value (DV) (see 83 FR
10376, March 9, 2018). In addition, the EPA established the attainment
date for Marginal, Moderate, Serious, Severe, and Extreme nonattainment
areas as 3 years, 6 years, 9 years, 15 years, and 20 years,
respectively, from the effective date of the final designations. Thus,
the attainment dates for each nonattainment area classification for the
2015 ozone NAAQS are as follows: August 3, 2021, for Marginal areas;
August 3, 2024, for Moderate areas, August 3, 2027, for Serious areas;
August 3, 2033, for Severe areas; and August 3, 2038, for Extreme
areas.\6\ The EPA also promulgated a rulemaking interpreting the CAA's
ozone nonattainment area implementation requirements for the 2015 ozone
NAAQS.\7\ The implementation rulemaking articulated the Act's
substantive requirements for ozone nonattainment areas for each
classification level and established deadlines for submission of plan
revisions to address those requirements that were triggered off of the
date of the areas' initial designations for the 2015 ozone NAAQS (e.g.,
24 months from the effective date of designation).\8\
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\5\ Effective on September 24, 2018, the EPA also designated the
San Antonio, Texas area as nonattainment for the 2015 ozone NAAQS.
See 83 FR 35136 (July 25, 2018).
\6\ Effective on September 24, 2018, the EPA classified the San
Antonio, Texas area as Marginal by operation of law for the 2015
ozone NAAQS, with an attainment date of September 24, 2021. Upon any
reclassification, the attainment deadline associated with each
classification level for the San Antonio nonattainment area is based
on this September 24, 2018, effective date. See 83 FR 35136 (July
25, 2018).
\7\ 83 FR 10382 (March 9, 2018).
\8\ Id.; 40 CFR 51.1300-1319.
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C. What is the statutory authority for the proposed actions?
The statutory authority for the actions proposed in this document
is provided by the CAA, as amended (42 U.S.C. 7401 et seq.). Relevant
portions of the CAA include, but are not necessarily limited to, CAA
sections 172, 181, 182, and 301(a).
CAA section 107(d) provides that when the EPA establishes or
revises a
[[Page 80836]]
NAAQS, the agency must designate areas of the country as nonattainment,
attainment, or unclassifiable based on whether an area is not meeting
(or is contributing to air quality in a nearby area that is not
meeting) the NAAQS, meeting the NAAQS, or cannot be classified as
meeting or not meeting the NAAQS, respectively. Part D of title I of
the CAA establishes the plan requirements that apply to all areas
designated nonattainment. The purpose of these plan requirements is
ensuring that these areas achieve attainment of the applicable NAAQS by
the applicable area attainment date. Subpart 1 of part D sets out the
plan requirements for nonattainment areas in general, and subpart 2 of
part D of title I of the CAA governs the classification, state
planning, and emissions control requirements for any areas designated
as nonattainment for a revised primary ozone NAAQS. In particular, CAA
section 181(a)(1) requires each area designated as nonattainment for a
revised ozone NAAQS to be classified at the same time as the area is
designated based on the extent of the ozone problem in the area (as
determined based on the area's DV). Classifications for ozone
nonattainment areas range from Marginal to Extreme. CAA section 172 (in
subpart 1) covers nonattainment area plan provisions in general, and
CAA section 182 (in subpart 2) provides the specific attainment
planning and additional requirements that apply to each ozone
nonattainment area based on its classification. Subparts 1 and 2 also
establish the timeframes by which air agencies must submit and
implement SIP revisions to satisfy the applicable attainment planning
elements, and require that such plans ``shall provide for attainment of
the NAAQS,'' \9\ and that the ``primary standard attainment date for
ozone shall be as expeditiously as practicable'' but not later than a
maximum attainment date measured from the effective date of the area's
designation.\10\ The EPA has also promulgated regulations interpreting
these requirements for the 2008 ozone NAAQS and the 2015 ozone NAAQS at
40 CFR part 51, subparts X and CC, respectively.
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\9\ CAA section 172(c)(1).
\10\ CAA section 181(a)(1).
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CAA section 182(i) governs the Act's requirements for areas
reclassified by operation of law. Specifically, CAA section 182(i)
states that areas that are reclassified due to failure to timely attain
by the attainment date ``shall meet such requirements of subsections
(b) through (d) of this section as may be applicable to the area as
reclassified, according to the schedules prescribed in connection with
such requirements, except that the Administrator may adjust any
applicable deadlines (other than attainment dates) to the extent such
adjustment is necessary or appropriate to assure consistency among the
submissions.'' Subsections (b) through (d) of CAA section 182 cover the
required SIP revisions for Moderate (182(b)), Serious (182(c)), and
Severe (182(d)), and those requirements are generally cumulative (see,
e.g., CAA section 182(b) (requiring Moderate areas to make submissions
relating to Marginal areas in addition to the revisions for the
Moderate classification)). The SIP revisions, control measures, and
timing of such submissions and controls are intended to, among other
things, ensure that areas will attain the NAAQS as expeditiously as
practicable, but no later than the applicable attainment date. As
discussed in more detail later in this document, most SIP requirements
are not dependent on the attainment date itself, but certain SIP
requirements are inherently tied to the applicable attainment date and
therefore are no longer required for the lower classification after the
area is reclassified.
As noted, CAA section 182(i) also provides the Administrator with
authority to adjust applicable deadlines (other than attainment dates)
for areas that are reclassified as a result of failure to attain the
NAAQS under CAA section 182(b)(2), ``to the extent such adjustment is
necessary or appropriate to assure consistency among the required
submissions.'' In proposing the adjustment of applicable deadlines for
reclassified areas, the EPA considered the timeframes provided under
the statute for the submission and implementation of requirements for
initial area designations and classifications. Unsurprisingly, many of
the nonattainment plan requirements in subparts 1 and 2 establish
timing of the submission and implementation of controls such that those
plans and controls will influence attainment of the NAAQS within the
area by the attainment date.\11\ The EPA's proposed submission and
implementation schedules for reclassified areas in this document are
consistent with the overall schedule of the submission of substantive
requirements that are associated with a classification, but adjusts
those schedules to fit the abbreviated timeframe available to
reclassified areas before the next applicable attainment date. In
particular, the EPA's proposed deadlines for implementation of controls
and SIP submissions are informed by the need to ensure that the
reductions resulting from the Act's requirements are consistently due
in time to influence an area's attainment by the attainment date, to
the extent the applicable controls are necessary to achieve attainment
by that date.
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\11\ See, e.g., CAA section 172(c)(6) (``Such plan provisions
shall include enforceable emission limitations . . . as well as
schedules and timetables for compliance, as may be necessary or
appropriate to provide for attainment of such standard in such area
by the applicable attainment date specified in this part.''); CAA
section 182(b)(1)(A)(i) (``Such plan shall provide for such specific
annual reductions in emissions of volatile organic compounds and
oxides of nitrogen as necessary to attain the [NAAQS] of for ozone
by the attainment date applicable under this chapter.''); CAA
section 182(b)(2) (requiring control measures on major stationary
sources of VOCs or sources of VOCs covered by a CTG to be
implemented as expeditiously as practicable but no later than the
beginning of the ozone season of the attainment year).
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While some areas are reclassified due to failure to attain by the
attainment date, others may be reclassified as a result of a state's
request. CAA section 181(b)(3) states that ``[t]he Administrator shall
grant the request of any State to reclassify a nonattainment area in
that State . . . to a higher classification.'' In some cases, states
may seek voluntary reclassification to a higher classification early in
the designation and planning cycle, and in those cases, the existing
SIP submittal and implementation deadlines for the higher
classification would continue to apply. In other instances, states may
request a voluntary reclassification under CAA section 181(b)(3) where
the SIP submittal and implementation deadlines have already passed or
will occur in the near future. CAA section 182(i) specifically provides
authority to the EPA to adjust applicable deadlines, other than
attainment dates, for areas that are reclassified as a result of a
failure to attain under CAA section 181(b)(2), but section 182(i) does
not specifically reference areas that are voluntarily reclassified
under CAA section 181(b)(3). Per CAA section 301(a)(1), the EPA has
determined that regulations are necessary to prescribe the SIP
submittal and implementation deadlines for such voluntarily
reclassified areas, where the deadlines associated with the requested
higher classification have already passed or will occur in the near
future (i.e., less than 18 months from the effective date of the
reclassification).
The EPA's proposed deadlines in this document were also informed by
the amount of time that the CAA prescribes when new implementation
plans are
[[Page 80837]]
required to be submitted under various circumstances (see, e.g., CAA
section 110(k)(5) (allowing EPA to ``establish reasonable deadlines
(not to exceed 18 months)'' after notification that a SIP is
inadequate); CAA section 179(d) (subpart 1 requirement that within one
year of a finding that a nonattainment area has failed to attain by its
attainment date, States must submit a new SIP revision addressing
nonattainment plan requirements)).
III. What is the EPA proposing and what is the rationale?
A. Default Deadlines for Reclassified Nonattainment Areas Under the
Ozone NAAQS
The EPA is proposing to establish default SIP submittal and
implementation deadlines for reclassifications by operation of law
pursuant to section 181(b)(2) and voluntary reclassification requests
pursuant to section 181(b)(3) for areas reclassified as Moderate,
Serious, and Severe for all current and future ozone NAAQS. States
responsible for areas initially designated as nonattainment are
required to prepare and submit SIP revisions by deadlines relative to
the effective date of the rule establishing area designations, and the
submission deadlines vary depending on the SIP element required (e.g.,
the statute provides 3 or 4 years from initial nonattainment
designation to submit SIPs for some requirements and 2 years for
others). Areas initially designated as nonattainment are also required
to implement RACT as expeditiously as practicable, but no later than
January 1 of the fifth year after the effective date of designations.
The EPA recognizes that upon reclassification, especially when
under CAA section 181(b)(2), a state can be faced with limited time to
submit and implement required SIP revisions prior to the next
attainment date. In addition, in some cases, the SIP submission and
implementation deadlines associated with areas initially classified at
a level may have already passed at the time of reclassification, making
it impossible to apply, for example, the Moderate area SIP submission
and implementation deadlines to areas that are mandatorily reclassified
to Moderate upon failure to attain by the Marginal area attainment
date. In light of these considerations, the EPA has historically
adjusted deadlines pursuant to the general rulemaking authority granted
under CAA section 301(a) to prescribe regulations as are necessary to
carry out the functions of the Act, and the specific authority granted
by CAA section 182(i).\12\ The EPA has promulgated these adjustments of
SIP submission and implementation deadlines that apply to reclassified
areas with the intent to ensure consistency amongst submissions,
encourage meaningful reductions towards expeditious attainment of the
NAAQS, and promote planning flexibility where possible, within the
fixed outer bound of an area's new maximum attainment date.
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\12\ CAA section 182(i) specifically provides authority to the
EPA to adjust applicable deadlines, other than attainment dates, for
areas that are reclassified as a result of failure to attain under
CAA section 182(b)(2), to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions.
The provision does not specifically reference areas that are
voluntarily reclassified under CAA section 181(b)(3); the EPA is
therefore reasonably proposing to adjust deadlines for such areas
under its general rulemaking authority in CAA section 301(a),
consistent with CAA section 182(i).
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We recognize that because the adjustments in these deadlines are
not made until after an area's attainment date under a lower
classification, the time between reclassification and a reclassified
area's new attainment date will inherently provide less time than the
period of time provided between initial designation and classification
and that classification's initial attainment date. For example, an area
that is initially classified as Marginal is afforded 3 years to attain
the NAAQS per CAA section 181(a)(1). If that area fails to attain by
the Marginal area attainment date, and the EPA timely issues its
finding 6 months after the attainment date per CAA section 181(b)(2),
then the area has no more than 2.5 years from that point in time to
plan for and attain the NAAQS by its new Moderate area attainment date,
which is far less than the 6 years that areas initially classified as
Moderate are allotted.
In some cases, though, particularly where a state requests a
voluntary reclassification pursuant to CAA section 181(b)(3) and does
so well before the area's attainment date, the existing deadlines
associated with the higher classification's requirements will not have
passed and it will be practicable for the state to meet those deadlines
without adjustment. The EPA is therefore proposing that, where the
existing deadlines are 18 months or more from the effective date of
reclassification, the EPA will not adjust such applicable deadlines or
set new ones under its CAA section 182(i) and 301(a) authority. The 18-
month timeframe is the outer boundary of what the CAA sets as a
``reasonable deadline'' for SIP revisions required following a finding
of inadequacy (see CAA section 110(k)(5)), and where that period of
time remains for SIP development for a reclassified area, we do not
think adjustment is necessary, nor is it needed to assure expeditious
attainment of the NAAQS or that the required submissions will be
implemented consistently with the Act's structure. The Act's
establishment of 18 months as an outer boundary in CAA section
110(k)(5) also indicates that Congress judged that this timeframe would
be sufficient for states to identify and develop control measures, to
draft revisions to address attainment plans and other requirements, and
to complete the required public notice process, adopt such revisions,
and to submit them to the EPA.
However, we note that the Act does not guarantee states will have
18 months to revise their SIPs following a finding of inadequacy, and
nor does this proposal establish that states are entitled to have 18
months to revise plans to address requirements of the new
classification. Expeditious attainment of the NAAQS and ensuring that
requirements are in place in time to influence attainment by the
attainment date will, in many cases, require that states are afforded
much less than 18 months to revise SIPs. This will be particularly true
where areas fail to attain by their attainment date, especially for the
lower classifications where the interval between attainment dates is
only 3 years,\13\ and where states fail to request a voluntary
reclassification early in the implementation schedule.
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\13\ The difference in attainment deadlines between Marginal and
Moderate classifications is 3 years, between Moderate and Serious
areas is 3 years, and between Serious and Severe areas is 6 years.
See CAA section 181(a) and 40 CFR 51.1302.
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The EPA invites comments on its proposal to adjust applicable
deadlines where the existing classification deadline has either passed
or is less than 18 months away, and whether a different remaining time
period for an existing deadline should be considered. The proposed
default adjustment of deadlines that would apply in these circumstances
will provide advance notice and certainty to any states with
nonattainment areas that may fail to attain an ozone NAAQS by the
applicable attainment date in the future. Because many of these same
timing-related pressures will exist with voluntary reclassifications,
the EPA is proposing to also set the same default SIP submission and
implementation deadlines to provide certainty to any states that are
contemplating making
[[Page 80838]]
such requests. The proposed default deadlines are listed in table 1 for
clarity.
Table 1--Default SIP Submission and Control Measure Implementation
Deadlines for Reclassified Ozone Nonattainment Areas When the
Classification-related Deadlines for Initial Designations Provide
Insufficient Time
------------------------------------------------------------------------
SIP requirement Proposed default deadline
------------------------------------------------------------------------
Default Deadlines for Reclassified Nonattainment Areas
------------------------------------------------------------------------
SIP submittal deadline for all Within 18 months after the
elements, unless addressed effective date of the relevant
differently elsewhere in this table. reclassification or January 1 of
the applicable attainment year,
whichever is sooner.
RACT implementation deadline........ Within 18 months from the RACT SIP
submittal deadline or the
beginning of the applicable
attainment year ozone season as
defined by 40 CFR appendix D to
part 58(i), whichever is sooner.
I/M implementation deadline (Basic No later than 4 years after the
and Enhanced). effective date of the relevant
reclassification notice (unless
needed for attainment by the
attainment date or to demonstrate
RFP).
------------------------------------------------------------------------
Default Deadlines for Reclassified Severe Nonattainment Areas
------------------------------------------------------------------------
SIP submittal deadline for section 36 months after the effective date
185 fee program element. of the relevant reclassification
notice or no later than January 1
of the applicable attainment
year, whichever is sooner.
------------------------------------------------------------------------
Establishing default deadlines for areas reclassified under CAA
sections 181(b)(2) and 181(b)(3) is necessary and appropriate to ensure
states are submitting SIP revisions and implementing control measures
triggered by reclassification on a consistent timeline that retains the
statute's framework of applying requirements in time to achieve
attainment by the attainment date. Doing so also provides states
maximum advance visibility into the time that will be provided for
development of SIP revisions and new control measures designed to
expeditiously attain the NAAQS. The EPA's expectation is that providing
a consistent framework for SIP development for reclassified areas will
establish certainty for states with areas that fail to timely attain,
and that such states can begin focusing on identifying meaningful
reductions and developing SIPs to obtain those reductions earlier than
they would under the EPA's historical practice of issuing SIP revision
submission and control measure implementation deadlines after or in
parallel with the determinations that result in area reclassifications.
However, we recognize the possibility that in some situations, the
default deadlines may not be appropriate or serve the statutory goals
of consistency amongst submissions or expeditious attainment of the
NAAQS. Therefore, we propose that the EPA would retain authority under
CAA sections 301(a) and 182(i) to establish a set of SIP submission and
control measure implementation deadlines on a case-by-case basis,
through notice-and-comment rulemaking, that deviate from the default
deadlines proposed in this document, if finalized, where appropriate.
1. Default Deadlines for Nonattainment Areas Reclassified as Moderate
or Serious
SIP requirements that apply to Moderate areas are generally
cumulative of CAA requirements for the Marginal classification and
include additional Moderate area requirements (see CAA sections
172(c)(1) and 182(a) and (b)). The EPA has further interpreted and
described these requirements in its implementation rules.\14\
Similarly, SIP requirements that apply to Serious areas are generally
cumulative of CAA requirements for the Marginal and Moderate area
classifications and include additional Serious area requirements (see
CAA sections 172(c)(1) and 182(a)-(c)). The EPA's implementation rules
also provide further interpretation of the statutory Serious area
requirements.\15\
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\14\ See, e.g., 40 CFR 51.1100 et seq. (2008 ozone NAAQS), and
40 CFR 51.1300 et seq. (2015 ozone NAAQS).
\15\ Id.
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a. Default Submission Deadline for Required SIP Revisions
The time period between designation and the maximum attainment date
for nonattainment areas initially classified as Moderate or Serious is
6 or 9 years, respectively. In the case of mandatory reclassification
after initial area designations pursuant to CAA section 181(b)(2),
reclassified Moderate and Serious areas would typically have less than
3 years between the date of reclassification and the area's new maximum
attainment date. Given the compressed timeline that reclassified
Moderate and Serious areas face, and consistent with past practice,\16\
we are proposing to set the SIP submission deadlines for all the
various requirements for newly reclassified Moderate and Serious areas
as within 18 months of the effective date of the relevant
reclassification notice or January 1 of the applicable attainment year,
whichever is sooner, unless otherwise specified in a separate notice-
and-comment rulemaking establishing a different SIP submission
deadline. While not all of the ``schedules prescribed in connection
with'' the various subpart 2 requirements are the same, because the
timeframe to attain by the newly applicable attainment date for
Moderate and Serious areas is compressed from either 6 or 9 years to
less than 3 years, we propose to apply one SIP revision deadline that
is at most 18 months from the effective date of reclassification, but
in any case no later than January 1 of the attainment year.
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\16\ See, e.g., ``Final Rule--Determinations of Attainment by
the Attainment Date, Extensions of the Attainment Date, and
Reclassification of Areas Classified as Marginal for the 2015 Ozone
National Ambient Air Quality Standards'' (87 FR 60897, 60907,
October 7, 2022).
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As previously stated, the EPA believes that, in most cases, 18
months should provide states sufficient time for assessing, adopting,
and implementing emission reduction measures such that any reclassified
nonattainment areas can expeditiously attain the ozone NAAQS,
consistent with part D's purpose of achieving expeditious attainment by
the attainment date. Similarly, a default SIP submission deadline of
January 1 of the applicable attainment year would
[[Page 80839]]
promote expeditious attainment of the ozone NAAQS by requiring states
to submit SIPs including control measures needed for attainment prior
to when those controls are required to be implemented. In addition,
establishing January 1 of the attainment year as the outer boundary for
states to submit SIP revisions would ensure that reclassified
nonattainment areas are subject to consistent deadlines in accordance
with CAA section 182(i) and would be in line with past practice. For
example, the EPA adopted this approach for Marginal areas reclassified
as Moderate for failure to timely attain the 2008 and 2015 ozone NAAQS,
to ensure consistency among required SIP submissions.<SUP>17 18</SUP>
Thus, the proposed deadline is necessary and appropriate to assure that
these submissions are consistent with the Act's overall scheme for
expeditious attainment of the NAAQS by the attainment date, and that
similarly situated states are treated consistently.
---------------------------------------------------------------------------
\17\ ``Final Rule--Determinations of Attainment by the
Attainment Date, Extensions of the Attainment Date, and
Reclassification of Several Areas for the 2008 Ozone National
Ambient Air Quality Standards'' (81 FR 26697, 26705, May 4, 2016).
\18\ ``Final Rule--Determinations of Attainment by the
Attainment Date, Extensions of the Attainment Date, and
Reclassification of Areas Classified as Marginal for the 2015 Ozone
National Ambient Air Quality Standards'' (87 FR 60897, 60907,
October 7, 2022).
---------------------------------------------------------------------------
In some historical instances, we have also established SIP
submission deadlines that align with the beginning of an area's ozone
season,\19\ which we view as the outer boundary for establishing a SIP
submission deadline for a reclassified area, because the beginning of
the attainment year ozone season is the maximum deadline under the
statutory ozone RACT provision and the EPA's existing regulations
interpreting that provision to implement RACT. The EPA does not believe
it is reasonable to establish a SIP submission date for controls
subsequent to a date when those controls are required under the Act to
already be implemented. For many ozone nonattainment areas in the
country, January 1 is the beginning of the ozone season. But there are
states that have a later start to the ozone season in March, April, or
May. We therefore take comment on establishing the later alternative
SIP submission deadline for reclassified Moderate and/or Serious areas
as the beginning of the attainment year ozone season (rather than
January 1 of the attainment year), recognizing that doing so would
result in different SIP submission deadlines for different reclassified
areas, depending on when the area's ozone season begins.
---------------------------------------------------------------------------
\19\ See, e.g., 88 FR 6633 (February 1, 2023) establishing March
1, 2023, as the due date for SIP revisions addressing Moderate
requirements for the Detroit, Michigan area.
---------------------------------------------------------------------------
The EPA's proposed SIP submission deadline for areas reclassified
as Moderate or Serious of no later than 18 months after the effective
date of the relevant reclassification notice or January 1 of the
applicable attainment year, whichever is earlier, would apply to all
newly applicable requirements associated with the reclassification,
including SIPs to address RACT and I/M. The EPA's implementing
regulations for the 2015 ozone NAAQS established a default RACT SIP
submission deadline for areas reclassified Moderate or higher of either
24 months from the reclassification effective date or a deadline
established by the Administrator in the reclassification action using
its discretion under CAA section 182(i) (see 40 CFR 51.1312(a)(2)(ii)).
We have found that a RACT SIP submission deadline of 24 months after
the effective date of the reclassification action has resulted in SIP
submission deadlines that are later than the beginning of the
attainment year ozone season, and in some cases, near or after an
applicable Moderate or Serious area attainment date. In every case of
reclassification under the 2008 and 2015 ozone NAAQS, it has not been
possible to provide a RACT SIP submission deadline of 24 months from
the effective date of the reclassification for an area that was
reclassified as result of failure to attain by the attainment date. We
are therefore proposing to remove the existing RACT SIP submission
deadline in 40 CFR 51.1312(a)(2)(ii) and replace it with the general
default deadlines discussed in this action.
Thus, if this action is finalized as proposed, the default SIP
submission deadlines for newly required Basic or Enhanced I/M SIPs,
would also become the sooner of 18 months from the effective date of
the relevant reclassification notice or January 1 of the applicable
attainment year. This is necessary to be consistent with the I/M
regulations which provide that an I/M SIP shall be submitted no later
than the deadline for submitting the area's attainment SIP.\20\
---------------------------------------------------------------------------
\20\ See 40 CFR 51.372(b)(2).
---------------------------------------------------------------------------
b. Default Implementation Deadlines for RACT and I/M
With respect to implementation deadlines, the EPA's implementing
regulations for the 2008 ozone NAAQS require that, for areas initially
classified as Moderate or higher, a 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.\21\ Similarly, the EPA's implementing regulations for the
2015 ozone NAAQS require that, for areas initially classified as
Moderate or higher, a state shall provide for implementation of RACT as
expeditiously as practicable but no later than January 1 of the fifth
year after the effective date of designation.\22\ The EPA's
implementing regulations for the 2015 ozone NAAQS also require that,
for RACT required pursuant to reclassification, the state shall provide
for implementation of RACT as expeditiously as practicable, but no
later than the beginning of the attainment year ozone season associated
with the area's new attainment deadline, or January 1 of the third year
after the associated SIP submission deadline, whichever is earlier; or
the deadline established by the Administrator in the final action
issuing the area reclassification.\23\ In addition, the modeling and
attainment demonstration requirements for 2008 ozone nonattainment
areas require that a state must provide for implementation of all
control measures needed for attainment no later than the beginning of
the attainment year ozone season.\24\ Similarly, the EPA's implementing
regulations for the 2015 ozone NAAQS require that the modeling and
attainment demonstrations for areas classified Moderate or higher must
provide for implementation of all control measures needed for
attainment no later than the beginning of the attainment year ozone
season, notwithstanding any alternative deadline established per 40 CFR
51.1312.\25\ Underlying these implementation deadlines is the EPA's
consideration that any RACT deadline should, where possible, provide at
least one full ozone season in advance of an area's maximum attainment
date for implemented controls to achieve emission reductions and
positively influence an area's monitored design value.
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\21\ See 40 CFR 51.1112(a)(3).
\22\ See 40 CFR 51.1312(a)(3)(i).
\23\ See 40 CFR 51.1312(a)(3)(ii).
\24\ See 40 CFR 51.1108(d).
\25\ See 40 CFR 51.1308(d).
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The EPA recognizes that the beginning of the ozone season varies
among states and nonattainment areas. For some nonattainment areas, the
ozone season begins in January and for other areas it begins in March,
April, or May. Consequently, the beginning of the attainment year ozone
season ranges from January to May of the year before
[[Page 80840]]
the area's maximum attainment deadline. The EPA's existing implementing
regulations informed the default RACT implementation deadline that we
are proposing in this document for any area reclassified as Moderate or
Serious. Such proposed default deadline would require states to
implement RACT as expeditiously as practicable, but no later than 18
months from the proposed RACT SIP submittal deadline or the beginning
of the applicable attainment year ozone season, whichever is earlier.
We are proposing that this default deadline would apply instead of the
existing regulatory provision in 40 CFR 51.1312(a)(3)(ii), which
applied only to the 2015 ozone NAAQS. As we proposed for establishment
of SIP submission deadlines, the EPA is also proposing that the
regulation would allow the EPA to establish a different deadline in a
notice-and-comment rulemaking in order to accommodate fact-specific
circumstances, where appropriate.
With respect to the default implementation deadlines for Basic and
Enhanced I/M programs required as the result of a mandatory
reclassification, states wishing to use emission reductions from their
newly required I/M programs for the ozone NAAQS would need to have such
programs fully established and start testing as expeditiously as
practicable, but no later than the beginning of the applicable
attainment year ozone season, consistent with the CAA principle (and
logic) that measures that are needed to demonstrate attainment by the
attainment date must be in place early enough to impact the air quality
design value that will be used to determine whether the area attained
by that date. The EPA's implementing regulations for the 2008 and 2015
ozone NAAQS therefore adopt this principle with respect to
implementation of I/M when required as a result of a reclassification.
However, given the unique nature of I/M programs, there are many
challenges, tasks, and milestones that must be met in establishing and
implementing an I/M program. The EPA realizes that implementing a new
or revised I/M program on an accelerated timeline may be difficult to
achieve in practice. Therefore, for states that do not intend to rely
upon emission reductions from their newly required Basic or Enhanced I/
M program in attainment or RFP SIPs, we are proposing to allow these
Basic and Enhanced I/M programs to be fully implemented no later than 4
years after the effective date of reclassification, explained as
follows.
Under CAA section 182(i), mandatorily reclassified areas are
generally required to meet the requirements associated with their new
classification ``according to the schedules prescribed in connection
with such requirements.'' The I/M regulations provide such a prescribed
schedule in stating that newly required I/M programs are to be
implemented as expeditiously as practicable. The I/M regulations also
allow areas newly required to implement I/M up to ``4 years after the
effective date of designation and classification'' to fully implement
the I/M program.\26\ With mandatory reclassifications, this 4-year
implementation deadline for newly required I/M programs might extend
beyond the corresponding attainment date. However, by proposing such a
deadline for mandatorily reclassified areas newly required to implement
a Basic or Enhanced I/M program (but not needing I/M emission
reductions for attainment or RFP SIP purposes), the EPA maintains that
these newly required I/M programs could reasonably be implemented after
the area's relevant attainment date if reductions from an I/M program
are not necessary for an area to achieve timely attainment of the
applicable NAAQS. The EPA has long taken the position that the
statutory requirement for states to implement I/M in ozone
nonattainment areas classified Moderate and higher generally exists
independently from the attainment planning requirements for such areas
(see also section III.B.2. of this document).\27\ This proposed
implementation deadline of up to 4 years takes into consideration the
numerous challenges and milestones necessary in implementing a Basic or
an Enhanced I/M program. The EPA is proposing to establish that the
same implementation deadline of up to 4 years for areas not relying on
Basic or Enhanced I/M for attainment or RFP SIP purposes is appropriate
to also apply to voluntarily reclassified areas, where the higher
classification deadlines for those areas have either already passed or
are less than 18 months from the effective date of reclassification.
This proposed deadline is not only consistent with the proposed
deadline for mandatorily reclassified areas, but it is also consistent
with EPA's historical practice.\28\
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\26\ The I/M program implementation deadline at 40 CFR 51.373(d)
states: ``For areas newly required to implement enhanced I/M as a
result of designation under the 8-hour ozone standard, the required
program shall be fully implemented no later than 4 years after the
effective date of designation and classification under the 8-hour
ozone standard.'' A start date for I/M programs of 4 years after the
effective date of designation and classification under the 8-hour
ozone standard is also cited in the Basic I/M performance standard
at 40 CFR 51.351(c) and (i)(2).
\27\ John S. Seitz, Memo, ``Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' May 10, 1995, at 4.
\28\ See, e.g., 87 FR 60897 (October 7, 2022) (establishing
Basic I/M implementation deadlines for areas reclassified from
Marginal to Moderate for the 2015 ozone NAAQS); 89 FR 51829 (June
20, 2024) (establishing Enhanced I/M implementation deadlines for
certain Texas areas that were voluntarily reclassified from Moderate
to Serious for the 2015 ozone NAAQS).
---------------------------------------------------------------------------
The EPA requests comment on a proposed default deadline for
reclassified Moderate and Serious areas requiring that any newly
required Basic or Enhanced I/M programs be fully implemented as
expeditiously as practicable, but no later than 4 years after the
effective date of reclassification. The EPA again notes that if a state
intends to rely upon emission reductions from its newly required Basic
or Enhanced I/M programs in its attainment or RFP SIP, the state will
need to have such I/M programs fully implemented no later than the
beginning of the applicable attainment year ozone season.
c. Transportation Control Demonstration
CAA section 182(c)(5) requires states with Serious ozone
nonattainment areas to submit, 6 years after November 15, 1990, and
every 3 years thereafter, a demonstration as to whether current
aggregate vehicle mileage, aggregate vehicle emissions, congestion
levels, and other relevant parameters are consistent with those used
for the area's demonstration of attainment. Six years after November
15, 1990, was 2 years after the statutory deadline established to
submit attainment demonstrations for such areas. Because the
transportation control demonstration is not itself a control that must
be implemented in order for areas to attain by the attainment date, and
is ideally spaced from the deadline of the attainment demonstration to
allow sufficient time for the state to see whether actual vehicle
emissions and parameters square with the projected emissions and
parameters in the attainment demonstration modeling, it is appropriate
to retain the Act's prescribed schedule without adjustment with respect
to this element for reclassified areas. The EPA is therefore proposing
that for all reclassified Serious ozone areas, the first transportation
control demonstration must be submitted within 2 years after the
deadline for the attainment demonstrations for these areas and every 3
years thereafter.
[[Page 80841]]
2. Default Deadlines for Nonattainment Areas Reclassified as Severe
SIP requirements that apply to Severe areas are generally
cumulative of CAA requirements for lower area classifications (i.e.,
Marginal through Serious) and include additional Severe area
requirements as interpreted and described in the final SIP Requirements
Rules for the 2008 and 2015 ozone NAAQS (see 80 FR 12264, March 6,
2015; 83 FR 62998, December 6, 2018; CAA sections 172(c)(1) and 182(a)-
(d); 40 CFR 51.1100 et seq.; and 40 CFR 51.1300 et seq.). For areas
reclassified as Severe, SIP submissions must address the more stringent
major source threshold of 25 tpy \29\ for RACT and NNSR, and the more
stringent NNSR emissions offset ratio of 1.3:1.\30\ In order to fulfill
their Severe area SIP submission requirements, states may, where
appropriate, certify that existing SIP provisions for an area are
adequate to address one or more Severe area requirements. Such
certifications must be submitted as a SIP revision.\31\
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\29\ ``For any Severe Area, the terms `major source' and `major
stationary source' include (in addition to the sources described in
section 7602 of this title) any stationary source or group of
sources located within a contiguous area and under common control
that emits, or has the potential to emit, at least 25 tpy of
volatile organic compounds.'' CAA section 182(d).
\30\ See CAA section 182(d)(2). If a state's plan requires all
existing major sources in the nonattainment area to use best
available control technology for VOCs consistent with CAA section
169(3), the required offset ratio is 1.2 to 1.
\31\ Air agencies should review any existing regulation that was
previously approved by the EPA to determine whether it is sufficient
to fulfill obligations triggered by the revised ozone NAAQS. This
review should include determining whether the nonattainment area
boundary for the current ozone NAAQS is consistent with the boundary
for the previous standards. Where an air agency determines that an
existing regulation is adequate to meet applicable nonattainment
area planning requirements of CAA section 182 (or ozone transport
region RACT requirements of CAA section 184) for a revised ozone
NAAQS, that air agency's SIP revision may provide a written
statement certifying that determination in lieu of submitting new
revised regulations.
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The EPA is proposing the same default SIP submittal and
implementation deadlines for reclassified Severe areas as is proposed
in section III.A.1. of this document for reclassified Moderate and
Serious areas, with one exception for SIP submissions addressing CAA
section 185 fee programs. More specifically, for all newly applicable
SIP requirements associated with an area's reclassification to Severe
(except SIP submissions addressing section CAA section 185 fee
programs), the EPA is proposing a default SIP submittal deadline as the
earlier of 18 months after the effective date of the relevant
reclassification notice or January 1 of the applicable attainment
year.\32\ This proposed SIP submission deadline is consistent with the
EPA's historical adjustment of deadlines for ozone areas mandatorily
reclassified from Serious to Severe under the 2008 ozone NAAQS as well
as areas reclassified to Severe per a voluntary request from the state,
for which we have previously established 18-month SIP submission
deadlines.\33\
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\32\ This proposed deadline would not apply for voluntarily
reclassified areas where the existing Severe area SIP submission
deadline is at least 18 months from the effective date of the
reclassification. In those instances, the existing Severe area SIP
submission deadline would apply.
\33\ 87 FR 21825 (April 13, 2022).
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It is appropriate to align the default SIP submission and
implementation deadlines for reclassified Severe nonattainment areas
with those proposed in section III.A.1. of this document for
reclassified Moderate and Serious nonattainment areas. The same
considerations articulated in section III.A.1. also apply here.
Additionally, areas that have been reclassified to Severe are areas
that have struggled over time to expeditiously attain the NAAQS, and
may face more complex and difficult implementation obstacles than areas
classified at lower levels. However, it is the Agency's view that an
outer boundary of 18 months remains an appropriate timeframe for states
to revise SIPs as needed, even for areas reclassified as Severe. We
recognize that the statute's later maximum attainment date associated
with higher classifications, and the more stringent requirements
imposed upon such areas under subpart 2, reflect the ``heavier lift''
that Severe areas may face to attain the NAAQS. The longer interval
between attainment dates between Serious and Severe would provide
states more time than is available for reclassifications between the
lower classifications (i.e., Marginal to Moderate or Moderate to
Serious) for SIP development and identification and implementation of
control measures. However, that same interval also means that
establishing an 18-month maximum SIP submission and control measure
implementation deadline will result in earlier implementation of the
control measures prompted by the Severe area requirements, such that
those measures may be in place to impact air quality in multiple ozone
seasons before the maximum attainment date, rather than just the last
ozone season preceding the attainment date, as may often be the
practical outcome of the EPA's proposed deadline for areas in the lower
classifications. Increasing the likelihood that Severe area measures
will be in place for multiple ozone seasons prior to the attainment
date correspondingly increases the likelihood that these reclassified
Severe areas will expeditiously attain the NAAQS by the attainment
date. The EPA's proposed deadline for reclassified areas, by providing
18 months for SIP development but requiring at least that those
revisions and measures be submitted by the last calendar year preceding
the attainment date, accommodates the varying positions areas may be in
vis-[agrave]-vis their attainment date, while also meeting the CAA's
requirement under section 182(i) ``to assure consistency among the
required submissions.''
The EPA is therefore proposing a default deadline for states to
submit Severe area SIP revisions of 18 months after the effective date
of reclassification or January 1 of the applicable attainment year,
whichever is earlier. Specifically, the EPA is proposing that SIP
revisions required for all newly reclassified Severe areas must be
submitted by the sooner of 18 months after the effective date of
reclassification or January 1 of the applicable attainment year, except
for SIP revisions required to address the section 185 fee program
element, for which the EPA is proposing a submittal deadline of the
earlier of 36 months after the effective date of reclassification or
January 1 of the applicable attainment year. Consistent with past
practice, the EPA is proposing a later submittal date for the CAA
section 185 fee program element than what is proposed for the other
requirements because implementation of a CAA section 185 fee program is
a penalty for failing to attain the NAAQS by the applicable attainment
date.\34\ Thus, an extended deadline of the earlier of 36 months after
the effective date of reclassification or January 1 of the applicable
attainment year, could allow states to focus more attention on other
elements in the first 18 months following reclassification while also
allowing enough time for states to submit, and for the EPA to approve,
a CAA section 185 fee program ahead of the applicable Severe area
attainment date. However, to the degree that states want to take
advantage of the administrative efficiency of adopting the CAA section
185 fee program element along with other required Severe area SIP
elements, they have the option to submit their CAA section 185 fee
programs earlier, including with the other elements.
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\34\ See, 87 FR 60926 at 60932 (October 7, 2022).
---------------------------------------------------------------------------
CAA section 182(d)(1)(A) requires a state with a Severe ozone
nonattainment
[[Page 80842]]
area to submit a SIP revision that identifies and adopts specific
enforceable transportation controls strategies and transportation
control measures (TCMs) to offset any growth in emissions from vehicle
miles traveled (VMT) or number of vehicles trips in such area. The EPA
has provided guidance to states on how to demonstrate whether there has
been any growth in emissions from growth in VMT or growth in the number
of vehicle trips.\35\ In addition, states with Severe ozone
nonattainment areas are required to submit a SIP revision that
identifies and adopts specific enforceable transportation control
strategies and TCMs to obtain reductions in motor vehicle emissions as
necessary, in combination with other emission reduction requirements.
States are also required to consider measures specified in CAA section
108(f) and choose from among those measures and implement such measures
as necessary to demonstrate attainment with the relevant ozone NAAQS.
In considering these measures, states should ensure adequate access to
downtown, other commercial, and residential areas and should avoid
measures that increase or relocate emissions and congestion rather than
reduce them. The EPA proposes that a SIP revision to address the VMT
offset demonstration requirement will be due the earlier of 18 months
after the effective date of reclassification or January 1 of the
applicable attainment year, consistent with all other Severe area
requirements. If a demonstration shows that a state must adopt
transportation control strategies or TCMs to offset any identified
increase in emissions due to growth in VMT or vehicle trips or if
additional transportation control strategies or TCMs are needed to
address RFP or attainment, we are proposing that the transportation
control strategies and/or TCMs be submitted at the same time as the SIP
revision to address the VMT offset demonstration.
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\35\ In August 2012, the EPA released guidance on VMT offset
demonstrations titled ``Implementing Clean Air Act Section
182(d)(1)(A): Transportation Control Measures and Transportation
Control Strategies to Offset Growth in Emissions Due to Growth in
Vehicle Miles Travelled'' (EPA-420-B-12-053). This guidance is
posted at <a href="https://www.epa.gov/state-and-local-transportation/vehicle-miles-travelled-vmt-offset-demonstration-guidance">https://www.epa.gov/state-and-local-transportation/vehicle-miles-travelled-vmt-offset-demonstration-guidance</a>.
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In addition to these submission deadlines, for any controls that
air agencies determine are needed for meeting CAA requirements, the EPA
is proposing that these controls must be implemented as expeditiously
as practicable, but no later than 18 months from the SIP submission
deadline or the beginning of the applicable attainment year ozone
season, whichever is earlier. This proposed deadline would generally
provide a 36-month schedule for SIP submission and controls
implementation for reclassified Severe areas. These proposed default
deadlines are consistent with the deadlines established for all other
Severe area plan elements that are established under CAA sections
172(c)(1) and 182(a)-(d), and 40 CFR 51.1100 et seq. As proposed in
section III.A.1. of this document for reclassified Moderate and Serious
areas, the EPA is also proposing to reserve the right to establish
different SIP submittal and implementation deadlines for reclassified
Severe areas in a notice-and-comment rulemaking in order to accommodate
fact-specific circumstances, where appropriate.
In addition to the SIP submission deadlines identified in this
section, the CAA prohibits the sale of conventional gasoline in any
ozone nonattainment area that is reclassified as Severe and requires
that federal reformulated gasoline (RFG) be sold instead. The
prohibition on the sale of conventional gasoline takes effect 1 year
after the effective date of the reclassification (see CAA sections
211(k)(10)(D) and 211(k)(5)). The prohibition on the sale of
conventional gasoline takes effect by operation of law; therefore,
states with such reclassified areas are not required to make a SIP
submission associated with the RFG requirement.
In summary, the EPA is proposing to establish default SIP submittal
and implementation deadlines for reclassifications by operation of law
under CAA section 181(a)(2) for areas that fail to attain by the
attainment date and are thus reclassified as Moderate, Serious, or
Severe for all current and future ozone NAAQS, and also for voluntary
reclassifications to these classifications under CAA section 181(a)(3).
Establishing default SIP submission deadlines that are triggered from
the effective date of reclassification actions will provide consistency
among the submissions in the sense that all states with jurisdiction
over such areas will be treated uniformly by having the same amount of
time to develop and submit SIPs. However, we acknowledge that our
proposal could in some cases result in SIP deadlines for reclassified
areas falling on different days (because such deadlines will be
triggered by reclassification actions that are statutorily required to
happen any time in a 6-month window following the attainment date, or
are granted under voluntary reclassification requests that may occur at
any time).
For areas reclassified as Moderate or Serious, where the initially
established deadlines have passed or are less than 18 months from the
effective date of reclassification, the EPA is requesting comment on:
(1) establishing a default SIP submission deadline for all Moderate and
Serious area plan elements of no later than 18 months from the
effective date of the relevant reclassification notice or January 1 of
the applicable attainment year, whichever is earlier; (2) requiring
that RACT be implemented as expeditiously as practicable, but no later
than 18 months from the RACT SIP submittal deadline or the beginning of
the applicable attainment year ozone season, whichever is earlier; (3)
requiring that any newly required Basic or Enhanced I/M programs be
fully implemented as expeditiously as practicable, but no later than 4
years after the effective date of reclassification; and (4) requiring
that the first transportation control demonstration be submitted 2
years after the due date for the attainment demonstrations for
reclassified areas (i.e., January 1 of the applicable attainment year)
and every 3 years thereafter.
For areas reclassified as Severe, where the initially established
deadlines have passed or are less than 18 months from the effective
date of reclassification, the EPA is requesting comment on: (1)
establishing a default SIP submission deadline for all Severe area plan
elements of 18 months after the effective date of reclassification or
January 1 of the applicable attainment year, whichever is earlier, with
an exception for section 185 fee program SIPs; (2) establishing a
default SIP submission deadline for section 185 fee program SIPs of 36
months from the effective date of reclassification or January 1 of the
applicable attainment year, whichever is earlier; and (3) requiring
that any controls needed for meeting RFP or timely attainment of the
ozone NAAQS be implemented as expeditiously as practicable, but no
later than 18 months after the proposed SIP submission deadline or the
beginning of the applicable attainment year ozone season, whichever is
earlier.
B. Status of Certain Requirements of Former Classification
1. Introduction
The EPA is also proposing to revise regulations to clarify whether,
when an ozone nonattainment area is reclassified to a higher
classification, certain ozone SIP requirements for that lower, former
classification will still be required. The
[[Page 80843]]
EPA has previously established its statutory interpretation and
position on the status of certain SIP requirements for the previous
classification in individual SIP actions, most recently in a
reclassification action for three nonattainment areas in Texas.\36\
This proposal restates these interpretations and proposes regulatory
language to codify these interpretations to provide further clarity.
Specifically, the EPA is restating its interpretation that ozone
nonattainment area planning requirements continue to apply following a
change in an area's classification level, except where the EPA has
specifically determined that the planning requirement is no longer
applicable. Specifically, the EPA's existing interpretation is that
only three requirements applicable to the lower, former classification
(i.e., Moderate or Serious) are no longer required following a change
in the area's classification (i.e., to Serious or Severe,
respectively): (1) the attainment demonstration, (2) RACM, and, (3) for
areas that are voluntarily reclassified, contingency measures as
necessary to address failure to attain by the attainment date.
---------------------------------------------------------------------------
\36\ 89 FR 51829 (June 20, 2024).
---------------------------------------------------------------------------
As described elsewhere in this document, CAA section 182(i)
specifies that reclassified areas must meet the requirements ``as may
be applicable to the area as reclassified'' and describes the EPA's
authority to adjust applicable deadlines (except attainment dates) for
the new classification. In contrast, the CAA does not specify what then
happens to the requirements that were applicable to the area as it was
formerly classified. Nevertheless, this question commonly arises in the
ozone program in circumstances where an area is reclassified--whether
mandatorily as a result of failure to attain pursuant to CAA section
181(b)(2) or voluntarily (i.e., at the request of a state) pursuant to
CAA section 181(b)(3)--before the EPA determines that the requirements
for the former classification have been met by the state. This can
occur when reclassification takes effect before a state has submitted a
SIP revision addressing the requirements applicable to the former
classification, before the EPA has acted on a SIP submission to address
such requirements, or where the EPA has disapproved or conditionally
approved a SIP submission addressing such requirements. For the
purposes of this proposal, the EPA refers to the unresolved
requirements applicable to the former classification under any of these
scenarios as ``leftover'' SIP requirements.
As an initial matter, the Agency notes that when the states and EPA
timely meet CAA-specified deadlines for submitting and acting on SIPs,
and the submissions are approvable, it is possible for there to be no
leftover SIP requirements, but this is not guaranteed for every
situation. To illustrate a possible circumstance, consider that under
the 2015 ozone NAAQS, the Marginal attainment date was August 3, 2021.
Assuming the EPA had completed the Marginal determinations of
attainment by the attainment date (DAADs) within the 6 months provided
by CAA section 181(b)(2) (i.e., within 6 months of the August 3, 2021,
attainment date), the reclassifications to Moderate would have taken
effect no later than February 2022. The EPA, consistent with the
principles articulated in the deadline portion of this document, could
have established a SIP due date of January 1, 2023 (i.e., the beginning
of the Moderate attainment year), less than 11 months after the
reclassification took effect. Had the states in turn made timely and
complete submissions by January 1, 2023, the EPA could theoretically
have acted to approve or disapprove them within the statutory 12 months
allotted, or by January 1, 2024. This would have allowed for the
possibility of final action before the Moderate attainment date of
August 3, 2024. Assuming, for the sake of illustration, that such SIPs
were approvable, final approval before the attainment date would ensure
that there would be no leftover Moderate SIP requirements by the time
the EPA would be required to complete the Moderate area DAAD (i.e., by
February 2025) and reclassify areas to Serious if they fail to attain.
However, implementation of the ozone standards does not always follow
the most straightforward path. To take the previous example, consider
the changed circumstances and timeframe that might occur if the
Marginal area qualified for a 1-year extension of the attainment date
(under CAA section 181(a)(5) and 40 CFR 51.1307), but ultimately failed
to attain by the extended attainment date of August 3, 2022. Even if
the EPA issued its DAAD action reclassifying the area immediately after
the attainment date (i.e., August 4, 2022), the state would have less
than four months between the reclassification and its applicable SIP
due date under this proposal (i.e., January 1 of the attainment year,
2023) to develop the SIP revisions, put them out for public notice and
comment, legislatively approve them, and submit them to the EPA (see,
CAA section 110(l)). This timeframe makes it nearly impossible for the
state and the EPA to have approved Moderate area SIPs and controls in
place to influence air quality to help the area attain by the Moderate
area attainment date (i.e., August 3, 2024). Thus, areas in
circumstances like these may end up failing to attain by the Moderate
area attainment date and being reclassified as Serious without having
their Moderate area SIP revisions submitted and/or approved. Moreover,
even where there is no attainment date extension, the CAA timelines
under section 182 leave no margin for delay, particularly for areas
that are reclassified by operation of law as Moderate or Serious. For
such areas, the attainment year typically begins less than a year from
when the SIP would be due, and the resulting timeframe for SIP
development--which for ozone can involve complex analyses--is typically
less than a year. Therefore, despite significant effort invested by the
EPA and states to timely meet CAA-specified deadlines for ozone SIPs,
these deadlines are sometimes not met, and leftover SIP requirements
can result.
Accordingly, the EPA is restating in this national rulemaking its
interpretations describing whether and how these types of SIP
requirements leftover from lower classifications will still apply
following the reclassification to a higher classification (e.g.,
reclassification from Moderate to Serious). The EPA is also proposing
regulatory text to codify these interpretations. If this proposed rule
is finalized, it will codify the EPA's existing interpretation that
certain requirements applicable to the lower, former classification
(i.e., Moderate or Serious) are no longer required following a change
in the area's classification. Codifying this interpretation will
improve the EPA's and states' abilities to identify and timely meet SIP
deadlines.
2. Leftover SIP Requirements
The EPA has assessed the effect of reclassification on each of the
SIP requirements--referred to in this document as SIP elements--that
apply to Marginal, Moderate, and Serious areas.\37\ We have concluded
that certain SIP elements, discussed in this section, are explicitly
tied to the current attainment date, and would therefore be mooted by
reclassification. However,
[[Page 80844]]
most of the SIP elements required under the former classification are
not explicitly tied to the attainment date for that former
classification and are therefore unaffected by reclassification. The
mere fact that an area is reclassified is not a sufficient basis to
determine that a CAA requirement applicable to the prior classification
no longer applies and there is no language in the statute which
necessitates or even supports such a position. The SIP elements
associated with each classification are generally cumulative from
Marginal up to Extreme.\38\ The requirement to submit such elements
remains applicable, and the submittal and implementation deadlines are
unchanged. If a state misses the submission deadline for these required
SIP elements and has been subsequently reclassified, the EPA is
obligated under CAA section 110(k)(1)(copyright) to issue a finding
that the state has failed to make a complete submission (FFS) and
promulgate a FIP unless the state submits, and the EPA approves, a
corrective SIP. Thus, the EPA is not proposing any changes to the
current rules with respect to these requirements. For clarity, the
requirements associated with a prior classification that the EPA has
concluded still apply following a reclassification are listed in table
2. The EPA has been, and will continue, to conduct any CAA-directed
oversight on adherence to these listed requirements following
reclassification.
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\37\ As noted previously, this rule does not address voluntary
reclassifications from Severe to Extreme. The EPA expects that this
type of reclassification will be rare. We would address the status
of leftover Severe requirements following a reclassification to
Extreme, if any, on a case-by-case basis, should the need arise.
\38\ In subpart 2, subsections (b) through (d) of CAA section
182 cover the required SIP revisions for Moderate (182(b)), Serious
(182(c)), and Severe (182(d)), and those requirements are generally
cumulative. See, e.g., CAA section 182(b) (requiring Moderate areas
to make submissions relating to Marginal areas in addition to the
revisions for the Moderate classification).
Table 2--SIP Requirements From a Prior Classification That Continue To
Apply Following Reclassification
------------------------------------------------------------------------
Regulatory cite
SIP requirement CAA section from 40 CFR (if
applicable)
------------------------------------------------------------------------
Marginal Area Requirements
------------------------------------------------------------------------
Emissions Inventory............. 182(a)(3)(A)...... Sec. 51.1315.
Emissions Statement Rule........ 182(a)(3)(B)...... Sec. 51.1300(p).
------------------------------------------------------------------------
Moderate Area Requirements (also includes above Marginal Area
Requirements)
------------------------------------------------------------------------
15 percent rate-of-progress 182(b)(1)(a)...... Sec. 51.1310.
(ROP) plan.
Contingency measures for failure 172(c)(9)......... N/A.
to achieve ROP.
Moderate Area RACT.............. 182(b)(2)......... Sec. 51.1312.
NNSR Moderate Area rules........ 173............... Sec. 51.165.
Basic I/M....................... 182(b)(4)......... 40 CFR part 51,
subpart S.
------------------------------------------------------------------------
Serious Area Requirements (also includes above Moderate Area
Requirements)
------------------------------------------------------------------------
RFP............................. 182(c)(2)(B) and Sec. 51.1310.
(C).
Serious Area RACT............... 182(b)(2)......... Sec. 51.1312.
Contingency measures for failure 182(c)(9)......... N/A.
to achieve RFP.
Enhanced I/M.................... 182(c)(3)......... 40 CFR part 51,
subpart S.
Clean-fuel Vehicle Programs..... 182(c)(4)......... N/A.
NNSR Serious Area Rules......... 173............... 51.165.
------------------------------------------------------------------------
The EPA is, however, proposing that following reclassification,
there are three elements for nonattainment areas formerly classified as
Moderate or Serious that are no longer required for the lower, former
classification: (1) the attainment demonstration, (2) RACM, and (3) in
the case of voluntary reclassification, contingency measures for
failure to attain. These three elements are no longer required because
they are explicitly tied to the applicable attainment date. CAA section
181(a)(1) provides that the attainment date for an ozone nonattainment
area depends upon its classification. Therefore, when an ozone
nonattainment area is reclassified, the attainment date for the prior
classification is superseded by the attainment date for the new
classification. Thus, once an ozone nonattainment area has been
reclassified and as a result has a new statutory attainment deadline,
these three elements are no longer required for the lower, former
classification. Requiring a state to submit or the EPA to act on such
SIP elements would make no logical or practical sense as described in
more detail later in this section.
The first proposed element that is no longer required is the
attainment demonstration requirement for the former classification.
Following mandatory reclassification upon failure to attain, the
former, superseded classification's attainment date is in the past and
is no longer applicable, and it is no longer meaningful to evaluate
whether a plan demonstrates that an area would attain by that
superseded date. Moreover, it is impossible for a plan to demonstrate
that an area would attain by that superseded date. At that point in
time, no changes could be made that would change facts that have
already come to pass (i.e., that the area has failed to attain by its
applicable attainment date). For a voluntary reclassification that
becomes effective before the attainment date, the former attainment
date is likewise superseded. There can only be one attainment date that
applies at any given time, and the CAA does not require attainment
demonstrations for attainment dates that are not applicable to the
area. Because the former classification's attainment date is no longer
applicable, it is therefore no longer relevant for the area to
demonstrate attainment with respect to it (just as it is not relevant
for an area initially classified as Serious to provide an attainment
demonstration for a Moderate attainment date). Moreover, following
voluntary reclassification, the EPA is no longer required to determine
whether the area attained by the former attainment date. The EPA is
therefore proposing to codify the Agency's existing interpretation that
the leftover attainment demonstration requirement is no longer required
upon reclassification.
[[Page 80845]]
The second element that is proposed to be no longer required for
the lower, superseded classification is RACM. For ozone NAAQS
implementation under subpart 2 of the CAA, the EPA's rules require the
RACM element to be submitted with the attainment demonstration.\39\ The
RACM demonstration must show that an area has adopted all reasonably
available control measures necessary to demonstrate attainment as
expeditiously as practicable and meet RFP.\40\ The EPA has long
evaluated RACM in terms of whether, beyond the control strategy
associated with the accompanying attainment demonstration, there are
any reasonably available control measures that could advance an area's
attainment date.\41\ The determination of whether a SIP contains all
RACM requires an area-specific analysis that there are no additional
economically and technologically feasible control measures (alone or
cumulatively) that will advance the attainment date.\42\ The EPA's RACM
policy, as outlined in the April 16, 1992, General Preamble, indicates
that states should consider all candidate measures that are potentially
available for the particular nonattainment area that could advance the
attainment date by 1 year.\43\ Thus, the basis for our proposal that
the attainment demonstration is no longer required is applicable to the
RACM analysis as well. For a mandatory reclassification, this means
that the former classification's attainment date is in the past and was
not met. Thus, it is not possible or meaningful to conduct an
evaluation as to whether attainment could be achieved by the attainment
date or advanced. Likewise, once a voluntary reclassification has
occurred, it is no longer relevant to assess whether the former
attainment date could have been met sooner. Thus, even though it may
have been requested prior to the former attainment date, once granted,
a voluntary reclassification would still render inapplicable those
requirements specifically tied to the former, no longer applicable
attainment date. Accordingly, the EPA interprets the CAA such that
following reclassification, both the attainment demonstration and
associated RACM analysis must be done with respect to the new and
currently applicable attainment date. The CAA does not require
attainment demonstrations (and accompanying RACM analysis) for
attainment dates associated with any classification that is not
applicable to the area.
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\39\ 40 CFR 51.1312(c)
\40\ Id.
\41\ See 83 FR 62998, 63008 (December 6, 2018).
\42\ 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.'' <a href="https://www.epa.gov/ttn/oarpg/t1/memoranda/121400_racmmemfin.pdf">https://www.epa.gov/ttn/oarpg/t1/memoranda/121400_racmmemfin.pdf</a>.
\43\ ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990;
Proposed Rule.'' 57 FR 13507 (April 16, 1992). The discussion of
RACM in that document contains other relevant history concerning the
RACM requirement.
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The third element that the EPA interprets the CAA to no longer
require, and therefore proposes to codify into regulatory text through
this rule, is the contingency measure requirement with respect to
contingency measures that are only tied to the attainment date.\44\ The
contingency measure provisions of the CAA require the submittal of
measures that would take effect without further action by the EPA or
the state if the area fails to make RFP, or fails to attain by the
attainment date.\45\ Unlike the first two elements, the EPA is
proposing that the contingency measure requirement for failure to
attain would no longer be required only in the case of a voluntary
reclassification which becomes effective before the attainment date
associated with the prior classification. In the case of mandatory
reclassification upon failure to attain, the contingency measure
requirement for failure to attain would continue to apply.\46\
Furthermore, in no case would reclassification alone make the
contingency measure requirement for RFP or milestone failure be no
longer applicable. The contingency measure requirement for failure to
attain no longer applies in the case of a voluntary reclassification
because, in those circumstances, the state requests, and the EPA
approves, a reclassification before the attainment date. When the area
is voluntarily reclassified before the attainment date, the EPA is no
longer required to determine whether the area attained by the former
attainment date. Because the EPA would not issue such a finding of
failure to attain, contingency measures for failure to attain by the
attainment date associated with the previous classification would not
be triggered, and thus no longer have logical significance. The EPA
notes, however, that any mandatory or voluntary reclassification
triggers the need to submit new contingency measures for failure to
attain by the new attainment date, and further notes that there must
still be contingency measures available to implement in the event the
area fails to meet any RFP milestone associated with the current or
former classification.
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\44\ The EPA notes that most state air agencies do not
distinguish their contingency measures submissions as to which
measures would be triggered by a failure to attain versus a failure
to meet RFP, and the EPA does not necessarily encourage this.
Because contingency measures will continue to be required for RFP
following voluntary reclassification, the practical effect of the
contingency measures element no longer being required for failure to
attain may be negligible in most cases.
\45\ CAA section 172(c)(9). The RFP contingency measure
requirement is further specified in CAA section 182(c)(9) to be
undertaken if the area fails to meet any applicable RFP milestone.
\46\ Moreover, the determination that the area failed to attain
would actually trigger implementation of these contingency measures.
To the extent this requirement is still unmet following such a
determination, the lack of contingency measures is a deficiency that
states must correct by developing and implementing such measures as
soon as reasonably possible (See, e.g., 88 FR 67961.)
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Aside from these three SIP requirements proposed to be no longer
applicable following reclassification, the EPA is not proposing any
clarifications or changes to its interpretation regarding the remaining
required SIP elements. All other Marginal, Moderate, and Serious area
elements continue to be required after these areas are reclassified.
These requirements are unaffected because their meaning is not
dependent upon the attainment date itself. For completeness, these
requirements are listed in table 2. Reclassification does not change
the submission requirement or due date for these elements. For example,
the Moderate area 15 percent rate-of-progress (ROP) requirement of CAA
section182(b) specifies an amount of reductions that must occur within
6 years of initial designation, and this requirement is not tied to the
applicable attainment date, and therefore, is unaffected by
supersession of the attainment date. Similarly, the 3 percent RFP
requirement of CAA section 182(c)(2)(B) is expressed as an amount of
reductions that must occur every 3 years, beginning 6 years after
initial designation and continuing until the attainment year. A new,
later attainment date would have no effect on the requirement to reduce
emissions in years 6, 9, and so on. This same reasoning applies to the
requirement to have contingency measures for failure to meet RFP. Where
an area is reclassified and the attainment date is superseded, the EPA
must still determine the adequacy of a state's demonstration that RFP
milestones have been met, which, if inadequate, could trigger the
implementation of contingency measures. Accordingly, and as discussed
earlier, contingency measure submissions for this element associated
with the current or former classification are still required.
Similar reasoning applies to the other elements listed in table 2.
RACT, I/M,
[[Page 80846]]
NNSR, and clean-fuel vehicle elements are required to be implemented on
specific timeframes that are independent of the attainment date and
therefore are unaffected by its supersession. Changing the submission
requirement or implementation deadlines for these elements that are not
tied to the attainment date would delay the implementation of these
measures beyond what the CAA intended. While the CAA does provide for
later attainment dates for higher classifications, it does not
authorize altering requirements that came due as a result of the lower
classifications, aside from the very particular situation outlined for
the three requirements that are directly dependent on the attainment
date. For example, the CAA requirement in section 182(b)(2) to
implement RACT for specified sources is implemented and assessed based
on whether the RACT rules are implementing what is economically and
technologically feasible. In other words, this analysis of whether
controls comprise RACT is done irrespective of the attainment deadline
and on a timeline that does not change if the attainment deadline is
superseded. There is nothing in the CAA to suggest that
reclassification, and the associated change in an area's attainment
date, should alter the preexisting requirement to submit a SIP
implementing RACT level controls and the deadline to implement those
controls. This same logic applies to all the identified SIP
requirements not specifically tied to the attainment date. This also is
consistent with the EPA's current practice with respect to these
requirements.
Finally, the EPA notes that once a reclassification occurs,
questions may arise as to how the EPA will implement the leftover SIP
requirements. First, for the requirements that the EPA has determined
still apply, the statutory planning obligations on states and the EPA
would remain. Where a state has not submitted a plan addressing these
requirements, the EPA would be required to issue an FFS (as it has done
for the 2015 NAAQS Moderate SIP elements),\47\ and where a state does
not submit an approvable plan for these requirements, there would be
FIP and sanctions obligations from any resulting disapprovals. We will
continue to work with states to support the development of approvable
SIPs for these required elements, and where such SIPs are received, we
intend to act on them in a timely manner, notwithstanding that the area
has been reclassified since the SIPs came due. There may be
opportunities for states to harmonize certain analyses for the new
classification with submittals for the former classification, but these
are situationally dependent and beyond the scope of this rule. As to
the SIP elements that the EPA interprets to no longer be required for
areas that have been reclassified, the EPA can withdraw the existing
FFS for these elements and thereby remove associated FIP and sanctions
obligations. Similarly, where a submittal is pending before the EPA
that contains SIP elements that are no longer required, the EPA expects
that a state could withdraw such a submission, with the expectation
that the EPA would not issue an FFS as to such no longer required SIP
elements. For such submissions that remain pending before the EPA and
for which the Agency is required to take action on under CAA section
110(k)(2), or if there are no longer required elements of a submission
that the state still wishes the EPA to act on, the EPA would continue
to evaluate those submissions in light of its view that the
approvability of such a submission no longer depends upon the
attainment date associated with the former classification.
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\47\ 88 FR 71757 (October 18, 2023).
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C. Serious Area SIP Revisions for the 2015 Ozone NAAQS
Moderate nonattainment areas that the EPA has determined failed to
attain the 2015 ozone NAAQS by the attainment date of August 3, 2024,
will be reclassified as Serious by operation of law upon the effective
date of the relevant final reclassification rule. Upon
reclassification, each responsible state air agency must submit SIP
revisions that satisfy the general air quality planning requirements
under CAA section 172(copyright) and the ozone specific requirements
for Serious nonattainment areas under CAA section 182(copyright), as
interpreted and described in the 2015 Ozone NAAQS SIP Requirements Rule
(see 83 FR 62998, December 6, 2018, and 40 CFR 51.1300 et seq.). This
section describes the required submission elements for Serious
nonattainment areas and articulates how, if finalized, the proposed
default SIP submission and implementation deadlines in section III.A.1.
of this document will apply to all areas reclassified as Serious under
the 2015 ozone NAAQS. In separate rulemakings, the EPA will determine
whether specific areas classified as Moderate for the 2015 ozone NAAQS
attained the standard by the applicable attainment date of August 3,
2024. The uniform deadlines the EPA is proposing to establish in this
rulemaking document are intended to apply to all reclassified Serious
nonattainment areas, unless otherwise established in a separate notice-
and-comment rulemaking.
1. Required Submission Elements
SIP requirements that apply to areas classified as Serious are
generally cumulative of CAA requirements for the Moderate
classification and include additional requirements that are specific to
areas classified as Serious, as interpreted and described in the final
SIP Requirements Rule for the 2015 ozone NAAQS (see CAA sections
172(c)(1) and 182(b) and (c), and 40 CFR 51.1300 et seq.). The SIP
requirements that apply specifically to Serious areas include: Enhanced
monitoring (CAA section 182(c)(1) and 40 CFR 58.10); Emissions
inventory and emissions statement rule (CAA section 182(a)(1), CAA
section 182(a)(3)(A), 40 CFR 51.1300(p), and 40 CFR 51.1315); RFP (CAA
section 182(c)(2)(B) and 40 CFR 51.1310); Attainment demonstration and
RACM (CAA section 182(c)(2(A), CAA section 172(c)(6), 40 CFR 51.1308,
and 40 CFR 51.1312(c)); RACT (CAA section 182(b)(2) and 40 CFR
51.1312); Nonattainment New Source Review (NSR) (CAA section 172(c)(5),
CAA section 173, 40 CFR 51.1314, and 40 CFR 51.165); Enhanced I/M (CAA
section 182(c)(3) and 40 CFR part 51, subpart S); Clean-fuel vehicle
programs (CAA section 182(c)(4)); \48\ and Contingency measures (CAA
sections 172(c)(9) and 182(c)(9)). In addition to these required SIP
submissions, a demonstration evaluating the need for a transportation
control measure program (CAA section 182(c)(5)) is required.
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\48\ In June 2022, the EPA released guidance on clean fuel fleet
programs titled ``Guidance for Fulfilling the Clean Fuel Fleets
Requirement of the Clean Air Act'' (EPA-420-B-22-027). This guidance
is posted at <a href="https://www.epa.gov/state-and-local-transportation/clean-fuel-fleets-program-guidance">https://www.epa.gov/state-and-local-transportation/clean-fuel-fleets-program-guidance</a>.
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We are providing additional discussion in the following sections
for these Serious area requirements: (a) RACT, (b) Nonattainment New
Source Review, and (c) Enhanced I/M.
a. RACT
Subpart 2 of part D of title I of the CAA applies a specific RACT
requirement for all ozone nonattainment areas that the EPA interprets
as being independent of the Attainment Demonstration and RACM elements
(see CAA section 182(b)(2), 40 CFR 51.1112, and 40 CFR 51.1312). For
ozone nonattainment areas reclassified as Serious, the independent
analysis addressing RACT level controls for major sources must include
an evaluation of controls for sources emitting 50 tons per year (tpy)
or more
[[Page 80847]]
that are currently reasonably available, consistent with the definition
of ``major source'' or ``major stationary source'' for areas classified
as Serious (see CAA sections 182(c)). The RACT analysis must also
include an evaluation of currently available RACT for all sources in
the nonattainment area that emit, or have the potential to emit, at
least 50 tpy of VOC or NO<INF>X</INF>, as well as an evaluation of RACT
for all sources subject to a Control Techniques Guideline (see CAA
sections 182(b)(2) and 182(f)). The EPA recognizes that in the context
of a reclassification to Serious, these areas should already have RACT
in place to address the lower classification's requirements (i.e.,
those required when the areas were previously classified as Moderate);
RACT should already be implemented in these areas for sources that
emit, or have the potential to emit, at least 100 tpy of VOC or
NO<INF>X</INF>. CAA subpart 2 requirements are generally cumulative
and, for Serious areas, states are required to address not only those
requirements listed in CAA section 182(c) but also in CAA sections
182(a) and (b), to the extent those requirements are not superseded by
the more stringent requirements in CAA section 182(c) and/or have not
been previously addressed. However, the primary focus for states with
areas reclassified as Serious is expected to be on identifying and
adopting new RACT measures required to control sources with the
potential to emit between 50 to 100 tpy of VOC or NO<INF>X</INF>, as
long as the state has already addressed sources with at least 100 tpy
of VOC or NO<INF>X</INF>. In order to fulfill their Serious area SIP
submission requirements under the 2015 ozone NAAQS, states may, where
appropriate, certify that existing RACT SIP provisions for an area are
adequate to address one or more Serious area requirements. Such
certifications must be submitted as a SIP revision.\49\
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\49\ Air agencies should review any existing regulation that was
previously approved by the EPA to determine whether it is sufficient
to fulfill obligations triggered by the reclassification. This
review should include determining whether the nonattainment area
boundary for the 2015 ozone NAAQS is consistent with the boundary
for any previous standards. Where an air agency determines that an
existing regulation is adequate to meet any newly applicable
nonattainment area planning requirements under CAA section 182, that
air agency's SIP revision may provide a written statement certifying
that determination in lieu of submitting new revised regulations.
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As a general matter, the EPA expects that any new determination or
certification that a state regulation meets RACT should be supported in
the record with a state's assessment of relevant information. We
informally refer to this assessment process as ``due diligence review''
and consider it a necessary component of approvable RACT SIP revisions.
The EPA has articulated this policy previously in its implementation
rules for the 2015 and 2008 ozone NAAQS, indicating that states should
refer to all relevant information (including recent technical
information and information received during the public comment period)
that is available at the time that they are developing their RACT
SIPs,\50\ and that SIP certifications should explain how an applicable
requirement is met by a previously approved regulation.\51\
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\50\ See 83 FR 62998, 63007 (December 6, 2018) and 80 FR 12264,
12279 (March 6, 2015).
\51\ See 83 FR 62998 at 63002.
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The EPA has long taken the position that the statutory requirement
for states to assess and adopt RACT for sources in ozone nonattainment
areas classified Moderate and higher generally exists independently
from the attainment demonstration for such areas.\52\ In addition to
the independent RACT requirement, states have a statutory obligation to
apply RACM and adopt such measures needed to meet RFP requirements and
to demonstrate attainment as expeditiously as practicable when also
considering emissions reductions associated with the implementation of
RACT on sources in the area.\53\ Therefore, to the extent that a state
adopts new or additional control measures as RACT and then relies on
the emission reductions caused by those control measures to demonstrate
RFP and/or to demonstrate attainment as expeditiously as practicable,
those states must include such RACT revisions with the other SIP
elements due as part of the attainment plan required under CAA sections
172(c) and 182(c).
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\52\ See Memo from John Seitz, ``Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard'' (1995), at 5 (explaining that subpart 2 requirements
linked to the attainment demonstration are suspended by a finding
that a nonattainment area is attaining but that requirements such as
RACT and I/M must be met whether or not an area has attained the
standard); see also 40 CFR 51.1318 (suspending attainment
demonstrations, RACM, RFP, contingency measures, and other
attainment planning SIPs with a finding of attainment).
\53\ Though not directly a part of a nonattainment area RACM
analysis, the EPA has interpreted CAA section 172(c)(6) to require
that air agencies also consider the impacts of emissions from
sources outside an ozone nonattainment area (but within a state's
boundaries) and must require other control measures on these
intrastate sources if doing so is necessary to provide for
attainment of the applicable ozone NAAQS within the area by the
applicable attainment date. For discussion of this ``other control
measures'' provision see also the final rule to implement the 2015
ozone NAAQS (83 FR 63015, December 6, 2018), the Phase 2 proposed
rulemaking (68 FR 32829, June 2, 2003) and final rule to implement
the 8-hour ozone NAAQS (70 FR 71623, November 29, 2005), and the
final rule to implement the PM<INF>2.5</INF> NAAQS (81 FR 58035,
August 24, 2016).
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b. Nonattainment New Source Review
Upon reclassification, stationary air pollution sources in newly
reclassified Serious nonattainment areas for the 2015 ozone NAAQS will
be subject to Serious ozone nonattainment area NSR permit requirements.
The source applicability thresholds for major sources and major source
modification emissions will be 50 tpy for volatile organic compounds
(VOC) and nitrogen oxides (NO<INF>X</INF>). For new and modified major
stationary sources subject to NSR, VOC and NO<INF>X</INF> emission
increases from the proposed construction of the new or modified major
stationary sources must be offset by emission reductions by a minimum
offset ratio of 1.20 to 1 (see CAA section 182(copyright)(10)). We note
that some newly reclassified Serious nonattainment areas for the 2015
ozone NAAQS may be classified as Severe under the 2008 ozone NAAQS and,
therefore, the more stringent Severe area requirements are currently
being implemented in those areas.\54\ As noted in section III.C.1.a. of
this document, in order to fulfill their Serious area SIP submission
requirements under the 2015 ozone NAAQS, states may, where appropriate,
certify that existing SIP provisions for an area are adequate to
address one or more Serious area requirements. Such certifications must
be submitted as a SIP revision.
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\54\ For Severe ozone nonattainment areas, the nonattainment NSR
source applicability thresholds for major sources and major source
modification emissions are 25 tpy for VOC and NO<INF>X</INF>, and
the minimum emissions offset ratio is 1.30 to 1 (see CAA sections
182(d) and 182(d)(2)).
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c. Vehicle Inspection and Maintenance (I/M)
Background on I/M. Motor vehicles are a major contributor of ozone
precursor (VOC and NO<INF>X</INF>) emissions. I/M programs reduce these
emissions by ensuring on-road motor vehicles are maintained to meet
vehicle emission standards as certified, identify excessive emissions,
and assure vehicle repairs.\55\
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\55\ See EPA's I/M website for a fact sheet and link to the I/M
regulations at <a href="https://www.epa.gov/state-and-local-transportation/vehicle-emissions-inspection-and-maintenance-im-regulations">https://www.epa.gov/state-and-local-transportation/vehicle-emissions-inspection-and-maintenance-im-regulations</a>.
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As mentioned in the preceding section, an Enhanced I/M program is a
required Serious area SIP submission element for the 2015 ozone NAAQS.
The applicable Enhanced I/M requirements for Serious ozone
nonattainment areas are described in CAA section 182I(3) and further
defined
[[Page 80848]]
in the EPA's I/M regulations (40 CFR part 51, subpart S). The EPA is
not proposing changes to its I/M regulations in this document; however,
additional clarification in this preamble is provided to assist states
with nonattainment areas subject to Enhanced I/M in understanding
specific I/M program requirements due to being reclassified as Serious.
After a Moderate ozone area is reclassified to Serious or higher, an
Enhanced I/M program is required to be implemented in the 1990 Census-
defined urbanized area, if the 1980 Census-defined population is
200,000 or more (see 40 CFR 51.350(a)(9)).
Areas subject to Enhanced I/M program requirements for the 2015
ozone NAAQS. An Enhanced I/M program is required for all Serious areas
under the 2015 ozone NAAQS which meet the urbanized area population
criterion.\56\ Consistent with the I/M regulations, states with these
existing I/M programs would need to conduct and submit a performance
standard \57\ modeling (PSM) analysis \58\ as well as make any
necessary program revisions as part of their Serious area SIP
submissions for these reclassified areas to ensure that their I/M
programs are operating at or above the Enhanced I/M performance
standard level for the 2015 ozone NAAQS. States may determine through
the PSM analysis that an existing SIP-approved program would meet the
Enhanced performance standard for purposes of the 2015 ozone NAAQS
without modification. In this case, the state could submit a SIP
revision with the associated performance standard modeling, a narrative
describing how the regulations for the existing I/M program are
consistent with EPA's I/M regulations, and a written statement
certifying their determination for the 2015 ozone NAAQS in lieu of
submitting new revised regulations.\59\
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\56\ See CAA section 182(c)(3)(A).
\57\ An I/M performance standard is a collection of program
design elements that defines a benchmark program to which a state's
proposed program is compared in terms of its potential to reduce
emissions of the ozone precursors, VOC, and NO<INF>X</INF>.
\58\ See Performance Standard Modeling for New and Existing
Vehicle Inspection and Maintenance (I/M) Programs Using the MOVES
Mobile Source Emissions Model (October 2022, EPA-420-B-22-034) at
<a href="https://www.epa.gov/state-and-local-transportation/vehicle-emissions-inspection-and-maintenance-im-policy-and-technical#reporting">https://www.epa.gov/state-and-local-transportation/vehicle-emissions-inspection-and-maintenance-im-policy-and-technical#reporting</a>.
\59\ See Implementation of the 2015 National Ambient Air Quality
Standards for Ozone: Nonattainment Area Classifications and State
Implementation Plan Requirements, 83 FR 63001-63002. Performance
standard modeling is required for Enhanced I/M programs for the 2015
ozone NAAQS in Serious and above ozone nonattainment areas for that
NAAQS.
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In addition to complying with the Enhanced performance standard,
there are three other requirements unique to Enhanced I/M programs.
First, Enhanced I/M programs must conduct on-road testing of in-use
vehicles for a small percentage of the area's fleet of motor
vehicles.\60\ Second, Enhanced I/M programs are required to conduct
evaluations, and report the results of, the program effectiveness every
2 years.\61\ Third, Enhanced I/M programs have stricter provisions than
Basic programs if the program chooses to issue repair waivers.\62\ The
Enhanced I/M program requirements are to be fully implemented as
expeditiously as practicable but no later than the implementation
deadline determined by the final action of this proposal, as discussed
in section III.A.2.c. of this document.
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\60\ See Guidance for On-Road Testing Requirements for Enhanced
Vehicle Inspection and Maintenance (I/M) Programs, EPA-420-B-20-020,
March 2020, available at <a href="https://nepis.epa.gov/Exe/ZyPDF.cgi/P100YQX8.PDF?Dockey=P100YQX8.pdf">https://nepis.epa.gov/Exe/ZyPDF.cgi/P100YQX8.PDF?Dockey=P100YQX8.pdf</a>.
\61\ See Guidance on Biennial Performance Evaluation
Requirements for Enhanced Vehicle Inspection and Maintenance (I/M)
Programs, EPA-420-B-22-042, December 2022, available at <a href="https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P10168PU.pdf">https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P10168PU.pdf</a>.
\62\ 40 CFR 51.360
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2. Submission and Implementation Deadlines
a. Submission Deadline for SIP Revisions
As discussed in section III.A. of this document, CAA section 182(i)
provides that areas reclassified under CAA section 181(b)(2) shall
generally meet the requirements associated with their new
classifications ``according to the schedules prescribed in connection
with such requirements, except that the Administrator may adjust any
applicable deadlines (other than attainment dates) to the extent such
adjustment is necessary or appropriate to assure consistency among the
required submissions.'' Here, the EPA interprets the ``schedules
prescribed in connection with such requirements'' as the statutory
deadlines provided to meet Serious area requirements. For areas
initially classified as Serious for the 2015 ozone NAAQS, the deadlines
to prepare and submit SIP revisions were established relative to the
effective date of designation. For those areas, the submission
deadlines ranged from 24 to 48 months after the effective date of
designation, depending on the SIP element required (e.g., 2 years for
the RACT SIP, 4 years for the attainment plan with RACM and attainment
demonstration, and 4 years for an Enhanced I/M program SIP if required)
(see 40 CFR 51.1308 and 51.1312). Areas initially classified as
Moderate or higher were also required to implement RACT as
expeditiously as practicable but no later than January 1 of the 5th
year after the effective date of designations, i.e., January 1, 2023
(see 40 CFR 51.1312).
The SIP submission deadlines for nonattainment areas initially
classified by the EPA in 2018 as Serious have passed as of August 3,
2020, for the RACT SIP element and August 3, 2022, for the RACM and
Serious area SIP elements (including Enhanced I/M). The EPA is
therefore proposing to adjust applicable deadlines, as discussed in
section III.A.1. of this document, for areas reclassified as Serious
under the 2015 ozone NAAQS, per its authority under CAA section 301(a)
``to prescribe such regulations as are necessary to carry out [its]
functions under [the CAA]'' and its authority under CAA section 182(i).
We recognize that the time between the anticipated effective date of
reclassification and the Serious area attainment date in 2027 (and,
critically, the attainment year of 2026) \63\ is far less than the 9
years that areas initially classified as Serious have between
designation and the attainment date. The EPA is proposing that it is
necessary and appropriate to set, given the elapsed deadlines and this
compressed timeline, a uniform SIP submission deadline for all the
various requirements for the newly reclassified Serious areas.
Consistent with the framework of establishing proposed default
deadlines discussed in section III.A. of this document, because the
initially applicable Serious area deadlines have already passed, those
deadlines as proposed would be the earlier of 18 months from the
effective date of reclassification or January 1, 2026 (January 1 of the
attainment year).\64\ This deadline, consistent with the timing and
structure of subpart 2 requirements relative to area attainment dates,
will allow Serious area control measures to influence attainment by the
Serious area attainment date while also balancing the need for a
consistent submission deadline among the various Serious area SIP
requirements. While not all of the ``schedules prescribed in connection
with'' the various subpart 2
[[Page 80849]]
requirements are the same for initially designated Serious areas (e.g.,
the statute provides 4 years to submit SIPs for some requirements and 2
years for others), coordinating the submissions with the same deadline
is necessary and appropriate in this situation given the compressed
timeline before the attainment date and the need for consistent
implementation of required control measures for expeditious attainment
of the NAAQS.
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\63\ ``Attainment year'' refers to the last calendar year of
data prior to the attainment date. Attainment for newly reclassified
areas will be determined based on air quality monitoring data from
the DV period of 2024-2026, making the attainment year 2026.
\64\ Given the timing of this proposal, for these reclassified
Serious areas for the 2015 ozone NAAQS, the proposed deadline will
be January 1, 2026.
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The EPA recognizes that because CAA section 181(b)(2) requires the
EPA to determine whether areas have attained by the attainment date
``within six months of the attainment date'' and because CAA section
181(b)(3) allows a state to request voluntary reclassification at any
time, the effective date of reclassification will not necessarily be
uniform across all 2015 areas being reclassified to Serious. Therefore,
the time between the effective date of an area's reclassification and
the proposed SIP revision deadline of January 1, 2026, may not be
uniform across areas. It is the Agency's view that the uniform deadline
of January 1, 2026, nevertheless best serves the statutory aim of
ensuring consistency across the required submissions. All of these
areas will be subject to an August 3, 2027, attainment deadline, thus
the attainment year will be 2026 for all of these areas. As previously
discussed, the purpose of the part D nonattainment area requirements
(i.e., the submissions required by subparts 1 and 2) is the expeditious
attainment of the NAAQS by the attainment date, and SIP revisions and
implementation of controls occurring after the attainment year (in this
case, 2026), by definition cannot contribute to expeditious attainment
of the NAAQS by the attainment date (which will be determined based on
2024-2026 air quality monitoring data). The January 1, 2026, SIP
revision deadline for reclassified Serious areas is equally applicable
across areas, and perhaps more importantly, ensures that the newly
applicable subpart 2 requirements will be addressed consistent with
part D's purpose of achieving expeditious attainment by the attainment
date.
We note that ozone seasons do not have a uniform start date across
the country. In some states, the ozone season begins January 1 and in
other states, it begins in March. (See 40 CFR part 58, appendix D,
section 4.1, table D-3). While the EPA recognizes that nonattainment
areas located in states with ozone seasons that begin in March could
potentially benefit from an extra 2 months to develop and submit their
SIP revisions (e.g., attainment demonstration, RFP plan, and
contingency measures), the EPA also recognizes the value in
establishing a single due date for Serious area SIP submissions that
does not extend beyond the deadline for implementing such controls.
Requiring states to submit the required Serious area SIP revisions by
no later than January 1, 2026, will ensure that SIPs requiring control
measures needed for attainment will be submitted prior to when those
controls are required to be implemented and will also treat states
consistently per CAA section 182(i).
If the EPA does not finalize the proposed default deadlines
discussed in section III.A. that would apply generally to
reclassifications, the EPA proposes in the alternative to establish a
SIP revision deadline of January 1, 2026, for all reclassified Serious
area requirements for the 2015 ozone NAAQS nonattainment areas.
The SIP revisions triggered by a reclassification to Serious
includes a revision to address RACT requirements. The EPA's existing
implementing regulations for the 2015 ozone NAAQS established a RACT
SIP submission deadline for reclassified areas of either 24 months from
the reclassification effective date or a deadline established by the
Administrator in the reclassification action using the discretion under
CAA section 182(i) (see 40 CFR 51.1312(a)(2)(ii)). We are proposing to
remove this provision, specific to the 2015 ozone NAAQS, from those
implementing regulations and to instead have the new regulations
addressing reclassified areas (discussed in section III.A. of this
document) apply in this situation, or in the alternative, to articulate
a January 1, 2026, SIP submission deadline for RACT revisions for areas
reclassified as Serious for the 2015 ozone NAAQS.
The January 1, 2026, SIP submission deadline for reclassified
Serious 2015 ozone NAAQS areas also applies to revisions to address
Enhanced I/M. Aligning the submittal deadline for Enhanced I/M for
reclassified areas with the SIP submission deadline for all other SIP
elements is consistent with the I/M regulations, which provide that an
I/M SIP shall be submitted no later than the deadline for submitting
the area's attainment SIP.\65\
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\65\ 40 CFR 51.372(b)(2).
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The EPA requests comment on a uniform SIP submission deadline of
January 1, 2026, for RACT, and all other Serious area SIP elements
(including Enhanced I/M) for nonattainment areas reclassified as
Serious under the 2015 ozone NAAQS.
b. RACT Implementation Deadline
With respect to implementation deadlines, the EPA's implementing
regulations for the 2015 ozone NAAQS require that, for areas initially
classified as Moderate or higher, a 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
(see 40 CFR 51.1312(a)(3)(i)), which corresponds with the beginning of
the attainment year for initially classified Moderate areas (January 1,
2023). The modeling and attainment demonstration requirements for 2015
ozone NAAQS areas classified Moderate or higher require that a state
must provide for implementation of all control measures needed for
attainment no later than the beginning of the attainment year ozone
season, notwithstanding any alternative deadline established per 40 CFR
51.1312 (see 40 CFR 51.1308(d)). For areas that are reclassified (e.g.,
from Serious to Severe), the EPA's existing implementing regulations
for the 2015 ozone NAAQS require that the state shall provide for
implementation of RACT as expeditiously as practicable, but no later
than the beginning of the attainment year ozone season associated with
the reclassified area's new attainment deadline, or January 1 of the
third year after the associated SIP submission deadline, whichever is
earlier; or the deadline established by the Administrator in the final
action issuing the area reclassification (see 40 CFR
51.1312(a)(3)(ii)).
In the case of the potential reclassified Serious areas addressed
by this proposal, the beginning of the ozone season varies among
states, as stated earlier in this document. For some nonattainment
areas that will potentially be reclassified as Serious in separate
actions, the last ozone season that can impact air quality before the
areas' attainment date begins in January of the attainment year and for
other areas it begins in March of the attainment year (see 40 CFR part
58, appendix D, section 4.1, table D-3). Thus, in accordance with the
default deadlines proposed in section III.A.1.b. of this document, the
RACT implementation deadline for any nonattainment area reclassified as
Serious under the 2015 ozone NAAQS would be as expeditiously as
practicable, but no later than the earlier of 18 months from the RACT
SIP submission deadline or the beginning of the 2026 ozone season
associated with the area's new August 3, 2027,
[[Page 80850]]
attainment date. If the EPA does not finalize the proposed default
deadlines discussed in section III.A. that would apply generally to
reclassifications, the EPA proposes in the alternative to establish a
RACT implementation deadline for nonattainment areas reclassified as
Serious under the 2015 ozone NAAQS to be as expeditiously as
practicable, but no later than the beginning of the 2026 ozone season.
c. I/M Implementation Deadline
With respect to the implementation deadline for Enhanced I/M
programs, states wishing to use emission reductions from their newly
required Enhanced I/M program for the 2015 ozone NAAQS would need to
have such programs fully implemented as expeditiously as practicable
but no later than the beginning of the ozone season for the applicable
Serious area attainment year (i.e., January 1 or March 1, 2026),
whichever is applicable for a given area as described earlier in this
document. This I/M implementation deadline for those states wishing to
take credit for their I/M programs in their attainment or RFP SIPs
would align with that of the RACT implementation deadline determined by
the existing ozone NAAQS implementation rule at 40 CFR
51.1312(a)(3)(ii), as discussed in section III.A.1.b. of this document,
and with the implementation deadline at 40 CFR 51.1308(d) for any other
control measures necessary to attain by the Serious area attainment
date. However, as noted previously, there are many challenges, tasks,
and milestones that must be met in establishing and implementing an I/M
program. The EPA realizes that implementing a new or revised I/M
program on an accelerated timeline may be difficult to achieve in
practice. Therefore, for the states that do not intend to rely upon
emission reductions from their Enhanced I/M program in attainment or
RFP SIPs, we are proposing to allow Enhanced I/M programs to be fully
implemented no later than 4 years after the effective date of
reclassification. The EPA's underlying rationale for the proposed 4-
year maximum implementation deadline for I/M programs required to
conduct Enhanced I/M programs as the result of a mandatory
reclassification to Serious for the 2015 ozone NAAQS is the same as
that for the default I/M implementation deadline for reclassifications
as proposed in section III.A.1. of this document.
The EPA is not proposing any changes to the implementation of any
new Basic I/M programs, which are still required by the prior rule that
reclassified certain nonattainment areas as Moderate for the 2015 ozone
NAAQS.\66\
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\66\ See 87 FR 60897, October 7, 2022, at 60900.
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The EPA requests comment on requiring that any Enhanced I/M
programs, required as a result of reclassification, be fully
implemented as expeditiously as practicable but no later than 4 years
after the effective date of reclassification. If a state intends to
rely upon emission reductions from its newly required Enhanced I/M
programs for the 2015 ozone NAAQS, that state would need to have such
Enhanced programs fully implemented as expeditiously as practicable but
no later than the beginning of the ozone season of the applicable
attainment year (i.e., January 1 or March 1, 2026).
The proposed 4-year implementation deadline offers the states that
will be required to implement Enhanced I/M due to reclassifications the
flexibility to fully implement the I/M programs on a timeline that
addresses the challenges, especially for states new to Enhanced I/M
programs.
d. Transportation Control Demonstration
CAA section 182(c)(5) requires states with Serious ozone
nonattainment areas to submit, 6 years after November 15, 1990, and
every 3 years thereafter, a demonstration as to whether current
aggregate vehicle mileage, aggregate vehicle emissions, congestion
levels, and other relevant transportation parameters are consistent
with those used for the area's demonstration of attainment. Six years
after November 15, 1990, was 2 years after the statutory deadline
established to submit attainment demonstrations for such areas. To be
consistent with this CAA schedule, the EPA is proposing to require that
the first transportation control demonstration be submitted 2 years
after the attainment demonstrations for newly reclassified Serious
areas are due, or January 1, 2028, and every 3 years thereafter. The
EPA's rationale for the deadlines for submitting the initial and
subsequent demonstration is discussed in section III.A.1.c. of this
document.
IV. Environmental Justice Considerations
In this action, the EPA is proposing to establish default SIP
deadlines for submission of SIP revisions and implementation of the
related control requirements for nonattainment areas reclassified as
Moderate, Serious, and Severe for current and future ozone NAAQS. In
addition, the EPA is proposing to codify its existing interpretation
that following reclassification, a state is no longer required to
submit SIP revisions addressing certain requirements related to the
prior classification level for an ozone nonattainment area. The EPA is
also articulating how the proposed default deadlines and codification
of applicable requirements following reclassification would apply to
nonattainment areas reclassified as Serious under the 2015 ozone NAAQS.
This action is intended to comply with the CAA program to ensure that
affected air agencies comply with CAA obligations for the applicable
nonattainment areas.
It is difficult to assess the environmental justice (EJ)
implications of this proposed action because the EPA cannot
geographically identify or quantify resulting source-specific emission
reductions. However, due to the nature of this proposed action, the EPA
believes that it will likely have no adverse impact on any existing
disproportionate and adverse effects on communities with EJ concerns.
At a minimum, the EPA believes that this action will not worsen any
existing air quality and is expected to ensure that the areas affected
by the rulemaking will meet applicable requirements to attain and/or
maintain national air quality standards.
The EPA notes, however, that states have flexibility and discretion
under the CAA in implementing their attainment strategies to focus
resources on controlling those sources of emissions that directly and
adversely affect communities with EJ concerns. The EPA strongly urges
states to consider the EJ aspects of any control measures in order to
provide health protection for communities with EJ concerns. In
addition, the EPA strongly encourages states to work with communities
experiencing EJ concerns to develop ozone-related control strategies
that most effectively reduce emissions contributing to elevated ozone
levels. One way to do this would be for states to increase
opportunities for meaningful involvement of community groups during
their SIP development processes. For example, air agencies could
provide advance notification for communities with EJ concerns of
upcoming opportunities for public comment on ozone SIPs and other
related actions, such as permit actions.
The EPA has resources available to help air agencies consider
aspects of EJ in their SIP development processes. The EPA released EPA
Legal Tools to Advance Environmental Justice (EJ Legal Tools) in 2022
to highlight the various environmental and civil rights
[[Page 80851]]
law authorities available to the EPA that authorize or address
consideration of EJ in its decision-making process as it pertains to
environmental laws, including the CAA.\67\ EJ Legal Tools is also
intended to promote meaningful engagement among the EPA and
communities.\68\ In addition, on September 5, 2024, the EPA announced
the release of the final policy, ``Achieving Health and Environmental
Protection Through EPA's Meaningful Engagement Policy.'' \69\ This
final policy updates the EPA's 2003 Public Involvement Policy that
guides the EPA's staff to provide meaningful public involvement in all
its programs and regions.\70\
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\67\ ``EPA Legal Tools to Advance Environmental Justice,'' (May
2022).
\68\ Id.
\69\ ``Achieving Health and Environmental Protection Through
EPA's Meaningful Engagement Policy'' (August 2024).
\70\ See, ``Public Involvement Policy of the U.S. Environmental
Protection Agency,'' (May 2003).
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V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined by
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This proposed rule does not impose any new information collection
burden under the PRA not already approved by the Office of Management
and Budget. This action proposes to establish deadlines for submission
of required SIP revisions and implementation of the related control
requirements for newly reclassified Moderate, Serious, and Severe ozone
nonattainment areas. This action also proposes to codify the EPA's
existing interpretation that following reclassification, a state is no
longer required to submit SIP revisions addressing certain requirements
related to the prior classification level for an ozone nonattainment
area. Thus, the proposed action does not impose any new information
collection burden under the PRA. OMB has previously approved the EPA's
information collection activities contained in the existing regulations
and has assigned OMB control number 2060-0695.\71\
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\71\ On April 30, 2018, the OMB approved the EPA's request for
renewal of the previously approved information collection request
(ICR). The renewed request expired on April 30, 2021, 3 years after
the approval date (see OMB Control Number 2060-0695 and ICR
Reference Number 201801-2060-003 for EPA ICR No. 2347.03). On April
30, 2021, the OMB published the final 30-day document (86 FR 22959)
for the ICR renewal titled ``Implementation of the 8-Hour National
Ambient Air Quality Standards for Ozone (Renewal)'' (see OMB Control
Number 2060-0695 and ICR Reference No: 202104-2060-004 for EPA ICR
Number 2347.04). The ICR renewal was approved on February 1, 2022,
and the renewed request expires on January 31, 2025.
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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. The proposed
SIP submittal and implementation deadlines, and the policy discussion
outlining the EPA's interpretation of the status of certain
requirements for prior nonattainment classifications following
reclassification, do not in and of themselves create any new
requirements beyond what is mandated by the CAA. Instead, this
rulemaking is administrative in nature, and does not directly regulate
any entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
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. The
division of responsibility between the federal government and the
states for purposes of implementing the NAAQS is established under the
CAA.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175. This action will not impose substantial direct
costs upon the tribes, nor will it preempt tribal law. The CAA requires
SIP revisions for all nonattainment areas that are reclassified from a
lower classification to a higher classification. For nonattainment
areas that include portions of Indian reservation lands, the
implementation plan deadlines that apply to states do not directly
apply to tribes. Thus, Executive Order 13175 does not apply to this
action.
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. Therefore, this action is not
subject to Executive Order 13045 because it does not directly concern
an environmental health risk or safety risk. Since this action does not
directly concern human health, the EPA's policy on Children's Health
also does not apply.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that the human health or environmental conditions
that exist prior to this action have the potential to result in
disproportionate and adverse human health or environmental effects on
communities with EJ concerns. The EPA believes that this action is not
likely to change existing disproportionate and adverse effects on
communities with EJ concerns. The areas impacted by this action are
designated as nonattainment for one or more ozone NAAQS and this action
is intended to comply with the CAA program to ensure attainment and
maintenance of the NAAQS. From a programmatic perspective, this action
is intended to ensure that affected air agencies comply with CAA
obligations for the applicable nonattainment areas.
The EPA did not perform an EJ analysis and did not consider EJ as a
basis for this action. While it is difficult to assess the EJ
implications of this proposed action because the EPA cannot
[[Page 80852]]
geographically identify or quantify resulting source-specific emission
reductions that are ultimately determined by air agencies, the EPA
believes that this proposed action is likely to have no impact on any
existing disproportionate and adverse effects on communities with EJ
concerns. Further, there is no information in the record inconsistent
with the stated goals of E.O.s 12898 or 14096.
K. Judicial Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the Court of Appeals for the District of
Columbia Circuit: (i) When the agency action consists of ``nationally
applicable regulations promulgated, or final actions taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.'' For
locally or regionally applicable final actions, the CAA reserves to the
EPA complete discretion whether to invoke the exception in (ii).\72\
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\72\ In deciding whether to invoke the exception by making and
publishing a finding that this action, if finalized, is based on a
determination of nationwide scope or effect, the Administrator
intends to take into account a number of policy considerations,
including his judgment balancing the benefit of obtaining the D.C.
Circuit's authoritative centralized review versus allowing
development of the issue in other contexts and the best use of
agency resources.
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The EPA is proposing to establish SIP submission and implementation
deadlines for all newly reclassified areas nationwide using a common,
nationwide method. The EPA is also proposing to codify its existing
interpretation that, following reclassification, a state is no longer
required to submit SIP revisions addressing certain requirements
related to the prior classification level for an ozone nonattainment
area. This action, if finalized, would impact jurisdictions with ozone
nonattainment areas across the country, covering potentially every
judicial circuit.
If the Administrator takes final action on this proposal, then, in
consideration of the effects of the action across the country, the EPA
views this action to be ``nationally applicable'' within the meaning of
CAA section 307(b)(1). In the alternative, to the extent a court finds
this proposal, if finalized, to be locally or regionally applicable,
the Administrator intends to exercise the complete discretion afforded
to him under the CAA to make and publish a finding that this action is
based on a determination of ``nationwide scope or effect'' within the
meaning of CAA section 307(b)(1).\73\
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\73\ In the report on the 1977 Amendments that revised CAA
section 307(b)(1), Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323-24, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Designations and classifications,
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, and Volatile organic compounds.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, the EPA proposes to amend
Title 40, Chapter I of the Code of Federal Regulations as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart CC--Provisions for Implementation of the 2015 Ozone
National Ambient Air Quality Standards
Sec. 51.1312 [Amended]
0
2. Amend Sec. 51.1312 by removing and reserving paragraphs (a)(2)(ii)
and (a)(3)(ii).
0
3. Add subpart DD consisting of Sec. Sec. 51.1400 through 51.1403 to
part 51 to read as follows:
Subpart DD--Requirements for Reclassified Ozone Nonattainment Areas
Sec.
51.1400 Definitions.
51.1401 Applicability of part 51.
51.1402 SIP submission and control measure implementation deadlines
for reclassified ozone nonattainment areas.
51.1403 Applicability of ozone SIP requirements for former
classification after reclassification.
Sec. 51.1400 Definitions.
The following definitions apply for purposes of this subpart. Any
term not defined herein shall have the meaning as defined in Sec.
51.100.
Attainment year means the calendar year in which the attainment
year ozone season occurs.
Attainment year ozone season means the full ozone season
immediately preceding a nonattainment area's maximum attainment date.
CAA means the Clean Air Act as codified at 42 U.S.C. 7401-7671q
(2010).
Former attainment date means the attainment date associated with
the classification under subpart 2 of part D of title I of the CAA
immediately preceding reclassification from a lower classification to a
higher classification.
Former classification means the classification under subpart 2 of
part D of title I of the CAA immediately preceding reclassification
from a lower classification to a higher classification.
Higher classification/lower classification means for purposes of
determining which classifications are higher or lower, the
classifications are ranked from lowest to highest as follows: Marginal;
Moderate; Serious; Severe-15; Severe-17; and Extreme.
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.
Initially classified means the first nonattainment classification
that becomes effective for an area for a specific ozone NAAQS and does
not include reclassification to another classification for that
specific NAAQS.
Initially designated means the first designation to nonattainment
that becomes effective for an area for a specific ozone NAAQS.
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).
Sec. 51.1401 Applicability of part 51.
The provisions in subparts A through Y, AA, and CC of this part
apply to reclassified nonattainment areas for purposes of the ozone
NAAQS to the extent they are not inconsistent with the provisions of
this subpart.
Sec. 51.1402 SIP submission and control measure implementation
deadlines for reclassified ozone nonattainment areas.
(a) Deadlines for applicable requirements pursuant to a
reclassification as Moderate, Serious, or Severe that are 18 months or
more after the effective date of reclassification will apply to such
reclassified area as though the area were initially designated at that
classification.
[[Page 80853]]
(b) Deadlines for applicable requirements pursuant to a
reclassification as Moderate, Serious, or Severe, where the deadline
that would have applied had the area been initially classified at the
new classification level at the time of initial nonattainment area
designations is less than 18 months after the effective date of
reclassification;
(1) SIP submission deadlines.
(i) For all SIP revisions required pursuant to reclassification
(except SIPs addressing CAA section 185 fee programs), the SIP revision
deadline is 18 months after the effective date of the relevant
reclassification or January 1 of the attainment year, whichever is
earlier, unless the Administrator establishes a different deadline in a
separate action.
(ii) For SIP revisions addressing CAA section 185 fee programs
required pursuant to reclassification, the SIP revision deadline is 36
months after the effective date of the relevant reclassification or
January 1 of the attainment year, whichever is earlier, unless the
Administrator establishes a different deadline in a separate action.
(2) Control measure implementation deadlines.
(i) For RACT required pursuant to reclassification, the state shall
provide for implementation of such RACT as expeditiously as
practicable, but no later than 18 months after the RACT SIP submittal
deadline or the beginning of the attainment year ozone season
associated with the area's new attainment deadline, whichever is
earlier, unless the Administrator establishes a different deadline in a
separate action.
(ii) For the required I/M program pursuant to reclassification, the
state shall provide for full implementation of such I/M program as
expeditiously as practicable, but no later than 4 years after the
effective date of the relevant reclassification, unless the I/M program
is needed for attainment by the attainment date or RFP, in which case
the state shall provide for full implementation of such I/M program no
later than the beginning of the attainment year ozone season.
Sec. 51.1403 Applicability of ozone SIP requirements for former
classification after reclassification.
(a) Upon the effective date of reclassification, the requirements
of any subpart of this part with respect to ozone nonattainment
planning applicable to the area for the former classification shall
apply as follows:
(1) Unless specified in (2) or (3), the requirement is unaffected
by reclassification and continues to be required for the former
classification.
(2) The following requirements are no longer applicable with
respect to the former attainment date:
(i) A SIP revision to demonstrate attainment by such date.
(ii) A SIP revision demonstrating adoption of all RACM necessary to
demonstrate attainment with respect to such date.
(2) If the reclassification occurred prior to the former attainment
date pursuant to CAA section 181(b)(3), the plan requirement for
contingency measures for failure to attain by such date is no longer
applicable with respect to the former attainment date.
(b) Nothing in this section shall affect the requirements
applicable to the nonattainment area under its currently applicable
classification and attainment date.
[FR Doc. 2024-22008 Filed 10-3-24; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.