Rule2025-00336
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
January 17, 2025
Effective
February 18, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is finalizing 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 final rule articulates the implementation requirements and timeframes that will apply for all such areas once reclassified. The EPA is also finalizing 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.
Full Text
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<title>Federal Register, Volume 90 Issue 11 (Friday, January 17, 2025)</title>
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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5651-5678]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00336]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2024-0333; FRL-11817-02-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: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
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 final rule articulates the
implementation requirements and timeframes that will apply for all such
areas once reclassified. The EPA is also finalizing 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.
DATES: This rule is effective on February 18, 2025.
ADDRESSES: The EPA established Docket ID No. EPA-HQ-OAR-2024-0333 for
this action. All documents on the docket are listed at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Although listed in the docket index, some
information may not be publicly available, e.g., Confidential Business
Information (CBI) or other information for which disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Docket materials are available electronically
to the public through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For information about this final 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#5f3330283b3a2d713a2d36311f3a2f3e71383029"><span class="__cf_email__" data-cfemail="6c00031b08091e42091e05022c091c0d420b031a">[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#44282d2a232536206a362b26213630042134256a232b32"><span class="__cf_email__" data-cfemail="2e424740494f5c4a005c414c4b5c5a6e4b5e4f00494158">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means the EPA.
Table of Contents
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Overview and Basis of Final Rule
A. Background and Summary of Final Rule
B. Statutory Authority for Final Rule
III. Final Actions
A. Default Deadlines for Reclassified Nonattainment Areas Under
the Ozone NAAQS
1. Summary of Proposal
2. Final Rule
3. Comments and Responses
a. Default Deadlines Generally
b. SIP Submittal Deadline for All Elements, Except for the CAA
Section 185 Fee Program Element
c. SIP Submittal Deadline for the CAA section 185 Fee Program
Element
d. Deadline for RACT Implementation
e. Deadline for I/M Implementation
B. Status of Certain Requirements of Former Classification
1. Summary of Proposal
2. Final Rule
3. Comments and Responses
C. Serious Area SIP Revisions for the 2015 Ozone NAAQS
1. Summary of Proposal
2. Final Rule
3. Comments and Responses
a. Due Date for Serious Area SIP Revisions and RACT
Implementation
b. Deadline for Serious Area I/M Implementation
IV. Environmental Justice Considerations
V. Judicial Review
VI. Severability
VII. 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)
[[Page 5652]]
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. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Entities potentially affected directly by this final rule include
state, local, and tribal governments and air pollution control agencies
(``air agencies'') responsible for attainment and maintenance of the
NAAQS. Entities potentially affected indirectly by this final rule as
regulated sources include owners and operators of sources of emissions
of volatile organic compounds (VOCs) and nitrogen oxides
(NO<INF>X</INF>) that contribute to ground-level ozone formation.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at <a href="https://www.epa.gov/ground-level-ozone-pollution/ozone-implementation-regulatory-actions">https://www.epa.gov/ground-level-ozone-pollution/ozone-implementation-regulatory-actions</a>.
II. Overview and Basis of Final Rule
A. Background and Summary of Final Rule
The EPA is finalizing in this action default SIP submittal and
implementation deadlines for areas reclassified as Moderate, Serious,
and Severe by operation of law pursuant to Clean Air Act (CAA or Act)
section 181(b)(2) and voluntary reclassification requests pursuant to
CAA section 181(b)(3). These default deadlines are applicable for all
current and future ozone NAAQS.
States responsible for areas initially designated as nonattainment
under an ozone NAAQS are required to prepare and submit SIP revisions
by deadlines relative to the effective date of the rule establishing
area designations and classifications, 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 reasonably available
control technology (RACT) as expeditiously as practicable, but no later
than January 1 of the 5th year after the effective date of
designations.
The EPA recognizes that upon reclassification to a higher
classification, 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 formerly classified at a particular level may have already passed
at the time of reclassification, making it impossible to apply those
original SIP submission and implementation deadlines to areas that are
reclassified to that classification level upon failure to attain by a
lower classification attainment date or by voluntary request. 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).\1\ The EPA has promulgated these adjustments of SIP submission
and implementation deadlines that apply to reclassified areas with the
intent to assure consistency amongst submissions, encourage meaningful
reductions towards expeditious attainment of the NAAQS--mindful of
newly applicable attainment dates--and promote planning flexibility
where possible.
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\1\ 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 adjusting deadlines for such areas under its general
rulemaking authority in CAA section 301(a), consistent with CAA
section 182(i).
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On October 4, 2024, through a notice of proposed rulemaking (NPRM),
the EPA solicited public comment on proposed regulatory text codifying
default SIP requirements, including submittal and implementation
deadlines, that would apply to any nonattainment areas reclassified as
Moderate, Serious, and Severe under the current and any future ozone
NAAQS. Refer to the proposal for a description of the requirements that
were proposed to apply to areas reclassified as Moderate, Serious or
Severe.\2\ The public comment period for the NPRM ran from October 4,
2024, to November 4, 2024. The EPA received a total of 16 comment
submissions on the NPRM. The preamble to this final rule discusses
significant comments received on the NPRM and how those comments were
considered by the EPA.\3\ The comments and the EPA's responses are
organized in this final rule under subject titles, and in the same
order as they appear in the NPRM. The Response to Comments document
associated with this final rule contains our responses to comments that
are general in nature or outside the scope of the final rule. The
public comments received on the NPRM are posted in the docket at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> (Docket ID No. EPA-OAR-HQ-2024-0333).
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\2\ 89 FR 80833 (October 4, 2024).
\3\ Each commenter discussed in this preamble is identified by
the docket identification number associated with the comment
submission. The Response to Comments (RTC) document in this docket
for this final rule contains a table identifying each commenter and
their associated docket identification number.
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We are finalizing default SIP requirements, including submittal and
implementation deadlines, for all ozone nonattainment areas
reclassified as Moderate, Serious, and Severe under the current and any
future ozone NAAQS. This final rule articulates the implementation
requirements and timeframes that will apply for all such areas once
reclassified, either as a result of failing to attain the standard by
the applicable classification attainment date pursuant to CAA section
181(b)(2) or the EPA granting a voluntary reclassification request
pursuant to CAA section 181(b)(3). For any nonattainment areas
reclassified as Moderate, Serious, and Severe under the ozone NAAQS, we
are finalizing regulatory text codifying default SIP submission and
implementation deadlines that will apply upon the effective date of
reclassification. The EPA is also finalizing regulatory revisions
codifying 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.
B. Statutory Authority for Final Rule
The statutory authority for the actions being finalized 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 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,
[[Page 5653]]
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 design value (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,''
\4\ 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.\5\ 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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\4\ CAA section 172(c)(1).
\5\ 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 finalizing 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.\6\ The EPA's submission and implementation
schedules for reclassified areas in this final rule 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, in
nearly all cases before the next applicable attainment date. In
particular, the EPA's 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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\6\ 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 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), in the context of implementing
subpart 2 planning requirements, 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 default deadlines being finalized in this document were
also informed by the amount of time that the CAA prescribes when new
implementation plans are required to be submitted under various
circumstances. See, e.g., CAA section 110(k)(5) (allowing the EPA to
``establish
[[Page 5654]]
reasonable deadlines (not to exceed 18 months)'' after notification
that a SIP is inadequate); CAA section 179(d) (subpart 1 requirement
that within 1 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). As discussed in more
detail in response to comments received on the proposed rulemaking, in
section III.A.3. of this preamble, these other CAA provisions are not
directly applicable to the EPA's adjustment of deadlines for
reclassified areas and do not explicitly constrain the Agency's
exercise of discretion and judgment under CAA sections 182(i) and
301(a). CAA sections 110(k)(5) and 179(d) are informative, but not
prescriptive, to the EPA's final action.
III. Final Actions
A. Default Deadlines for Reclassified Nonattainment Areas Under the
Ozone NAAQS
1. Summary of Proposal
The EPA proposed to establish a general default SIP submittal
deadline for areas reclassified as Moderate, Serious, or Severe 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 CAA section 185. For the CAA section 185
fee program SIP submittals required for areas that are reclassified as
Severe, the EPA proposed 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 also proposed 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.
The EPA also proposed default deadlines for implementation of
emissions control measures for areas reclassified as Moderate, Serious,
or Severe. For reasonably available control technology (RACT), the EPA
proposed 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. For vehicle emissions
inspection and maintenance (I/M), the EPA proposed an implementation
deadline of no later than 4 years after the effective date of
reclassification (unless needed for attainment by the attainment date
or to demonstrate reasonable further progress (RFP)). Similar to the
SIP submittal deadlines, the EPA proposed that these default control
measure implementation deadlines could be adjusted where such
adjustment is appropriate or necessary.
2. Final Rule
The EPA is finalizing regulatory text in line with the EPA's
position as described in the proposal. The default SIP submittal
deadline for all elements, except for the CAA section 185 fee program
element, for areas reclassified as Moderate, Serious, or Severe will be
the sooner of 18 months from the effective date of the reclassification
or January 1 of the new classification attainment year. For the CAA
section 185 fee program SIP submittals required for areas that are
reclassified as Severe, the default deadline will be the sooner of 36
months after the effective date of reclassification to Severe or
January 1 of the Severe area attainment year. The default control
implementation deadline for RACT will be as expeditiously as
practicable, but no later than the sooner of 18 months after the
proposed SIP submittal deadline or the beginning of the relevant
attainment year ozone season. For I/M not needed for attainment by the
attainment date or to demonstrate RFP, the default implementation
deadline will be as expeditiously as practicable, but no later than 4
years after the effective date of reclassification. The EPA retains the
authority under the CAA to deviate from these default deadlines for all
ozone NAAQS, consistent with the CAA through future notice-and-comment
rulemaking.
3. Comments and Responses
a. Default Deadlines Generally
Comment: Three commenters (0030, 0031, 0036) express general
support for the proposed default SIP submittal and implementation
deadlines, noting that the rulemaking is an effective way to streamline
deadlines for ozone nonattainment areas and ensure successful SIP
submission and control implementation. One commenter (0036)
specifically notes that the EPA should finalize the default deadlines
as proposed for the following reasons: (1) these deadlines are legally
supported and offer air agencies advanced notice as to when SIPs must
be submitted and implemented; (2) it is critical that programs needed
to address attainment are implemented no later than the start of the
attainment year ozone season; (3) these proposed deadlines offer air
agencies some implementation flexibility while acknowledging the
constraints of statutorily fixed attainment dates; (4) this proposal
would still allow the EPA to set different submittal and implementation
deadlines on a case-by-case basis in the future, as necessary. The
commenter believes that, at a minimum, the EPA should finalize these
deadlines as they apply to any 2015 ozone NAAQS areas reclassified to
Serious. It is critical for nonattainment areas needing to meet the
2015 ozone NAAQS Serious area attainment date of August 3, 2027, to
understand the requirements sooner rather than later, given the short
time available to plan for and implement those requirements.
Response: The EPA agrees with the commenters and is finalizing the
deadlines as proposed with minor clarifications as discussed elsewhere
in this document.
Comment: One commenter (0036) requests that, for any deadlines
established by the EPA that are tied to the start of an area's ozone
season, the EPA should clarify that the applicable ozone season is the
ozone season as modified by an EPA-approved ozone season waiver. The
EPA has proposed a general deadline for certain nonattainment area
planning and control requirements as the sooner of 18 months after the
attainment SIP due date or the start of the attainment year ozone
season as listed in appendix D to 40 CFR part 58. However, 40 CFR part
58, appendix D, section 4.1(i) allows the EPA regional administrators
to grant case-by-case deviations from the otherwise applicable ozone
monitoring seasons listed in appendix D. Due to approved ozone season
deviations, it is possible, therefore, for the effective ozone season
in a state to differ from the dates listed in the appendix. To account
for these situations, the EPA should clarify that any deadlines
associated with the attainment year ozone season is the ozone season as
promulgated by appendix D to 40 CFR part 58 or the ozone season as
modified by an EPA-approved ozone season waiver.
Response: While the EPA acknowledges that ozone monitoring seasons
may be modified with approved waiver requests under 40 CFR part 58,
appendix D, section 4.1(i), we note that these waivers are specific to
individual monitoring sites and do not otherwise modify the statewide
ozone monitoring seasons listed in table D-3 to appendix D of part 58.
While it is possible that the ozone monitoring season could be modified
for an individual ozone nonattainment area, this would require an
approved waiver for all monitoring sites within the area. We are not
aware of any nonattainment areas meeting this condition under the 2008
or 2015 ozone NAAQS, and consider it unlikely to occur in the future.
Thus, the EPA is
[[Page 5655]]
finalizing default control implementation deadlines that align with the
attainment year ozone season as promulgated by appendix D to 40 CFR
part 58, as proposed.
Comment: One commenter (0030) recommends that the EPA should not
allow flexibility in the proposed default deadlines. The commenter
notes that allowing deadline extensions reintroduces inconsistencies
and undermines the predictability of default deadlines, which is
contradictory to the goal of the proposed rule. Furthermore, allowing
flexible deadlines can lead to delays in implementing control measures
and allowing one state to extend deadlines can set a precedent for
others. On the other hand, default deadlines create a sense of urgency
and accountability, forcing states to prioritize the NAAQS.
Other commenters (0039, 0042) recommend that the EPA should
maximize states' flexibility when implementing ozone NAAQS in
reclassified areas. One commenter (0039) notes that retaining the
option of adjusting timing of SIP submittals and implementation of
controls on a case-by-case basis, while ensuring the timeline is
consistent with meeting the NAAQS by the prescribed attainment date,
helps to preserve the flexibility contemplated by the CAA and its air
quality goals.
Another commenter (0043) requests that the EPA clarify when it is
necessary or appropriate to adjust the default deadlines. The commenter
notes that the EPA fails to define how it will determine when such an
extension is ``necessary or appropriate'' and requests that the EPA
outline the factors a state must show to obtain such an adjustment in
deadlines. The commenter feels that while the EPA has the authority
under the CAA to adopt modified timeframes, there is far too much
ambiguity in the term ``as appropriate or necessary'' to ensure that
this ``standard'' will be properly and uniformly applied if a state
submits a request.
Response: We are finalizing as proposed the default deadlines for
reclassified areas that acknowledge that such deadlines may be further
adjusted via a notice-and-comment rulemaking per CAA section 182(i).
However, we agree with those commenters who note that any flexibility
to set deadlines under CAA section 182(i) is constrained by the Act's
requirement that the EPA ensure areas expeditiously attain the NAAQS no
later than the attainment date. As an initial matter, the EPA is
finalizing as proposed the overall limitation of when an adjustment of
deadlines is triggered. Where otherwise applicable deadlines that apply
to areas initially designated nonattainment have not yet passed or are
more than 18 months from the effective date of the reclassification,
those deadlines will continue to apply to reclassified areas.
Therefore, the default SIP submittal and implementation deadlines
finalized in this action, and any adjustment thereof, only apply where
those otherwise applicable deadlines have either passed or are less
than 18 months in the future from the effective date of the
reclassification.
We also note that the deadlines in the EPA's final action
inherently already cover much of the available flexibility for
reclassified areas. By structuring the default deadlines as ``the
earlier of'' an outside timeframe (e.g., 18 months) or a specific date
(e.g., January 1 of the attainment year), the EPA is maximizing
available time for SIP development, adoption, and submission, while
still ensuring that controls are adopted into the SIP and implemented
in time to influence attainment of the NAAQS by the attainment date. We
anticipate any remaining flexibility on adjustment of deadlines, which
again must be adopted through rulemaking after public notice-and-
comment, to be minimal. As noted in the proposal, the EPA has in
certain historical instances established a SIP submission deadline for
reclassified areas as the beginning of the ozone season attainment year
(e.g., in March, April, or May) rather than January 1 of the attainment
year. We think such flexibility, for example, is permissible under the
Act's requirements. But as we stated in the proposal, there are outer
boundaries to establishing reasonable deadlines under CAA section
182(i); namely that we cannot establish SIP submission deadlines for a
control subsequent to a date when those controls are required under the
CAA to be implemented. 89 FR 80839 (October 4, 2024).
Given the limited nature of the anticipated further adjustment of
deadlines, we decline at this time to adopt a strict standard or to
enumerate factors that must be considered. Rather, we will issue any
such adjustments to the finalized default deadlines in accordance with
the statutory text of CAA section 182(i), which allows the
Administrator to ``adjust any applicable deadlines (other than
attainment dates) to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions.''
Those adjustments will be subject to notice-and-comment rulemaking,
providing the public the opportunity to provide input on the EPA's
application of the statute in those specific circumstances.
Comment: Several commenters provided input regarding the proposal's
establishment of 18 months from the effective date of reclassification
as the outer bound of the proposed general default deadline for SIP
submissions for reclassified areas. Three commenters (0032, 0040, 0042)
assert that the EPA's rationale for relying on CAA section 110(k)(5) to
establish the proposed default deadlines is flawed, and that 18 months
does not provide sufficient time to develop revisions to a SIP for an
area that has been reclassified. Two of these commenters (0032, 0042)
note that the EPA uses the CAA section 110(k)(5) 18-month timeframe for
states to submit SIP revisions as indication that Congress judged this
timeframe to be sufficient for states to identify and develop control
measures, draft revisions to address attainment plans and other
requirements, and complete the required public notice process, adopt
such revisions, and submit them to the EPA. These two commenters claim
that this is not an acceptable comparison to starting a SIP from the
beginning because CAA section 110(k)(5) only applies when an existing
SIP requires a revision. These commenters further provide that, in
relying on CAA section 110(k)(5) in the proposal, the EPA
underestimates the efforts developing a new SIP takes. In addition, one
of the commenters (0042) states that CAA section 110(a)(1) provides
states with up to 3 years to submit SIP revisions after a NAAQS
promulgation or revision and notes that the statute allows the EPA to
prescribe a shorter timeframe for such submissions, but the EPA must
consider all relevant factors and provide a rational justification for
such shorter timeframe. The commenter believes that the EPA's argument
that 18 months is the outer bound of reasonableness fails to consider
the technical complexity and unique challenges in achieving attainment
of the ozone NAAQS facing states, which the commenter claims is
particularly true in the case of areas reclassified as Severe. Another
commenter (0040) provides that the EPA has not cited to any authority
where the EPA is required to abide by the deadlines found in CAA
sections 110(k)(5) and 179(d) when setting deadlines for areas that
have requested voluntary reclassification. The commenter notes that, in
a prior action (see, 89 FR 51829, June 20, 2024), the EPA explicitly
noted that CAA sections 110(k)(5) and 179(d) do not directly apply to
areas that are voluntarily reclassified, rather they are just
[[Page 5656]]
informative of what a potentially appropriate deadline may be.
Another commenter (0045) claims that the CAA explicitly provides an
18-month period to states to submit their SIPs to the EPA and to
implement those SIPs. This commenter asserts that Congress has provided
an overt prescription of 18 months as an adequate standard for SIP
development, submittal, and implementation, and that the EPA has
distorted Congress' intention in the proposal by interpreting ``this
clause'' as a mere recommendation. Other commenters (0037, 0043) assert
that a default SIP submission deadline of less than 18 months is
contrary to the Act, which they allege establishes that 18 months as
the sufficient timeframe. These commenters assert that any amount of
time less than 18 months is not reasonable, cannot be justified, and
imposes unfair and arbitrary burdens on the state that are contrary to
the Act.
Conversely, one commenter (0044) claims that it is unlawful and
unnecessary for the EPA to provide states up to 18 months to make a SIP
submittal following reclassification, and the EPA's reliance on CAA
section 110(k)(5) is flawed. The commenter asserts that CAA section
179(d), which establishes a 12-month deadline for nonattainment SIP
submittals for areas that fail to timely attain, is the more relevant
CAA deadline. The commenter states that because nothing more specific
supplants or overrides CAA section 179(d), that ``generally applicable
nonattainment SIP requirement dictates the outer bound of the EPA's
authority to extend SIP submittal deadlines following ozone
reclassifications.'' The commenter points to the EPA's rule regarding
reclassifications of areas designated Marginal under the 2015 ozone
NAAQS to illustrate that the EPA has previously determined that 12
months provides adequate time for nonattainment SIP submittals.
Response: As noted in the proposal, neither CAA section 179(d) nor
section 110(k)(5) are directly applicable to reclassified ozone areas,
and the EPA therefore disagrees with all commenters that have suggested
that either of these two provisions dictate how the EPA should adjust
deadlines for reclassified areas under CAA section 182(i).
CAA section 179(d)(1) requires the state containing a nonattainment
area to submit within 12 months of the CAA section 179(c) determination
that the area failed to attain by its attainment date, a revision to
their SIP that meets the requirements of CAA section 110 and CAA
section 172 and any additional measures that the Administrator may
reasonably prescribe. This final action establishes deadlines for
states containing areas for which the EPA has made a determination that
an area failed to attain under CAA section 181(b)(2), not CAA section
179(c). We therefore do not agree with commenters who allege that CAA
section 179(d) ``dictates the outer bound of the EPA's authority'' to
establish deadlines for the SIP revisions that are required pursuant to
ozone determinations and reclassifications made under CAA section
181(b)(2). Rather, the authority to establish subpart 2 deadlines for
areas reclassified pursuant to CAA section 181(b)(2) is explicitly
granted in CAA section 182(i), which contains no reference to CAA
section 179(d) as establishing an outside limit to the EPA's authority.
CAA section 110(k)(5) states that ``[w]henever the Administrator
finds that the applicable implementation plan for any area is
substantially inadequate to attain or maintain the relevant [NAAQS], to
mitigate adequately the interstate pollutant transport described in
section 7506a of . . . or section 7511c of [the CAA], or to otherwise
comply with any requirement of this chapter, the Administrator shall
require the State to revise the plan as necessary to correct such
inadequacies.'' The CAA section 181(b)(2) determinations that ozone
nonattainment areas have failed to attain by their attainment dates are
not, unless otherwise specified, the findings of inadequacy that the
EPA issues under CAA section 110(k)(5). Therefore the authority to
establish deadlines for SIP revisions to address SIP inadequacies
identified under CAA section 110(k)(5)--i.e., the authority that
provides that the EPA ``may establish reasonable deadlines (not to
exceed 18 months after the date of such notice) for the submission of
such plan revisions''--does not apply to the SIP revisions that are
required as a result of the EPA's determinations under CAA section
181(b)(2) that ozone nonattainment areas have failed to attain or the
EPA's reclassifications of areas voluntarily requested by air agencies
under CAA section 181(b)(3). The commenter who asserted that the 18-
month timeframe is an ``overt prescription'' that dictates what the EPA
must finalize as a deadline in this rule is therefore plainly
incorrect.
Rather, as the EPA stated in the proposal, the Agency's choice to
refer to CAA sections 179(d) and 110(k)(5) were for the purpose of
informing its exercise of discretion under CAA section 182(i). We do
not agree with commenters who assert that Congress' establishment of
deadlines in those two provisions somehow created substantive
thresholds for the EPA's adjustment of deadlines under CAA section
182(i) such that the EPA must ``justify'' divergence from either. We
continue to think it is a permissible exercise of the EPA's discretion
under CAA section 182(i) to adjust deadlines to establish a default
deadline of no more than 18 months, where the available time before the
next attainment deadline permits. Commenters who assert that 18-months
should be the minimum timeframe for reclassified areas to revise SIPs
because revising a SIP per CAA section 110(k)(5) is not the same as
``starting a SIP from the beginning,'' ignore the fact that any
reclassified areas subject to the deadlines in this rule will have
already been designated nonattainment for at least 3 years, and for
classifications beyond Marginal, many more than three. Because the
subpart 2 requirements are cumulative and build on each classification,
reclassified areas revising their SIPs to address the requirements of
their new classification will also not be starting from scratch. States
containing these areas will not only have been subject to the general
infrastructure SIP requirements that all states are required to submit
after promulgation of a NAAQS, but they will also have been subject to
any lower subpart 2 classification requirements that have applied since
areas were designated nonattainment. Moreover, the assertion that
Congress would have intended states to be entitled to a minimum of 18
months to revise SIPs is contrary to the similar provisions the EPA
alluded to in CAA sections 110(k)(5) and CAA section 179(d).\7\ CAA
section 110(k)(5) on its face defines a reasonable deadline as ``not to
exceed 18 months.'' And CAA section 179(d), which as some commenters
point out is the Act's default deadline for non-ozone areas that have
failed to timely attain establishes an outer boundary of 12 months to
revise a SIP. So, we do not agree that there is statutory support for
commenters' contention that a deadline of anything less than 18 months
is unreasonable, unworkable, or contrary to the Act, when the Act
plainly identifies less than 18 months as the routine expectation for a
SIP revision in similar situations.
---------------------------------------------------------------------------
\7\ See also schedules for plan submissions for areas designated
nonattainment for particulate matter in CAA section 189(a)(2)(B)
(providing a maximum of 18 months to submit a nonattainment plan
after initial designation to nonattainment) and section 189(b)(2)
(providing a maximum of 18 months to submit a revised nonattainment
plan for particulate matter areas reclassified as a result of
failure to attain by the attainment date).
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[[Page 5657]]
With respect to commenters who suggest the EPA should look to CAA
section 110(a)(1)'s provision of up to 3 years to submit SIP revisions
after a NAAQS promulgation or revision as guidance for its
establishment of subpart 2 deadlines for reclassified areas, the EPA
does not agree that this timeframe is appropriate. As an initial
matter, CAA section 110(a)(1)'s provision of 3 years after the
promulgation of a NAAQS is a generally applicable requirement that was
not directed at nonattainment areas.\8\ That deadline of 3 years, which
in any case the Administrator is permitted to shorten,\9\ is untethered
from the more-specific statutory purpose of achieving attainment by an
attainment deadline, and therefore does not have direct relevance to
the issue facing reclassified areas, which are not only nonattainment
areas, but specifically nonattainment areas that have either already
failed to attain by an attainment date or whose states have recognized
are unlikely to do so and have therefore requested to be reclassified.
---------------------------------------------------------------------------
\8\ Cf. Stephen D. Page, Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2), September 13, 2013, at 52, available at
<a href="https://www.epa.gov/sites/default/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf">https://www.epa.gov/sites/default/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf</a> (explaining that the submission deadline for infrastructure
SIPs under CAA section 110(a) do not apply to nonattainment areas,
because SIP submissions for designated nonattainment areas ``are
subject to a different submission schedule than those for section
110 infrastructure elements'').
\9\ CAA section 110(a)(1) (``Each State shall, after reasonable
notice and public hearings, adopt and submit to the Administrator,
within 3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof) . . .'') (emphasis
added).
---------------------------------------------------------------------------
The EPA also explained at proposal why the attainment deadlines and
stringency of requirements under subpart 2 cannot accommodate a long
deadline such as the 3 years requested by the commenter. See 89 FR
80838-39 (October 4, 2024). CAA section 181(a)(1) establishes the
timeframes for maximum attainment deadlines under the Act, and those
timeframes are based on the number of years from area designations.
Marginal areas have no more than 3 years to attain, Moderate areas 6
years, Serious areas 9 years, Severe areas 15 years, and Extreme areas
20 years. For many of the reclassified areas to which this rule would
apply, the time between the attainment deadlines is only 3 years to
begin with. For example, a Marginal area that failed to attain by its
maximum attainment deadline of August 3, 2021, and is reclassified to
Moderate has only until August 3, 2024, to attain. And, as discussed in
the proposal and elsewhere in this final action, per the CAA's explicit
language in 181(b)(2), the determination of whether that Moderate area
attains by August 3, 2024, will be based on the area's design value as
of that date, i.e., monitoring data from 2021, 2022, and 2023. Even if
the EPA issued the finding that the area failed to attain immediately
after the August 3, 2021, attainment date, providing the area 3 years
to submit a new SIP for the reclassified Moderate requirements, or
until August 3, 2024, would necessarily mean that any new emissions
controls required by that SIP would have no impact on the area's
likelihood of attaining by the next attainment date. We therefore think
that for SIP deadlines associated with these reclassifications--
Marginal to Moderate, and Moderate to Serious--the commenter's
suggestion that the EPA look to section 110(a)'s provision of 3 years
is plainly unworkable. Even for areas reclassified as Severe, which
will likely have a longer interval between reclassification to Severe
and the Severe area attainment date, the EPA explained at proposal why
for these areas that have failed to timely attain multiple times, the
18-month deadline for SIP submissions would benefit such areas,
including that control measures contributing to attainment could be
implemented for multiple ozone seasons prior to the maximum attainment
date. See 89 FR 80841(October 4, 2024). The commenter has not explained
why the EPA's reasoning for maintaining a consistent deadline under CAA
section 182(i) for these areas is unreasonable.
We are finalizing a default SIP submission deadline with an outer
bound of 18 months from the effective date of reclassification. We are
finalizing this more extended timeframe for submitting new area
requirements triggered by reclassification (as opposed to 12 months,
which was also contemplated in the proposal), because we acknowledge,
as raised by many commenters, the general complexity in developing and
implementing effective emission reductions for ozone nonattainment
areas, and the opportunity a longer timeframe provides for more
attainment demonstration plans that are likely to meet applicable CAA
requirements.
b. SIP Submittal Deadline for All Elements, Except for the CAA Section
185 Fee Program Element
Comment: One commenter (0042) recommends that the EPA should not
finalize its proposal for areas that request voluntary reclassification
with existing submittal deadlines that are 18 months or more from the
effective date of reclassification. The commenter notes that the EPA
presumes that existing deadlines associated with a higher
classification that have not passed will always be practicable for
states to meet without adjustment, but provides no rationale in support
of such assumption. The commenter believes that the EPA should neither
prejudge, nor foreclose, longer submission deadlines.
Response: The EPA's authority to establish deadlines for areas that
have voluntarily requested reclassification under CAA section 181(b)(3)
is governed by CAA section 301(a). See 89 FR 80837 (October 4, 2024)
n.12. That provision states, ``The Administrator is authorized to
prescribe such regulations as are necessary to carry out his functions
under this chapter.'' CAA section 301(a). In proposing to establish
default deadlines for areas requesting a reclassification, the EPA
elected to apply such deadlines only where an existing deadline has
passed or there is less than 18 months until the deadline. The
commenter is therefore incorrect that the EPA presumed that any
deadline associated with a higher classification that had not passed
would be practicable for a state to meet; on the contrary, the EPA
proposed that if the existing deadline was less than 18 months away,
that there was a presumption that it would be necessary to adjust the
deadline. The EPA also explained its rationale in support of retaining
existing deadlines that were 18 months or more from the
reclassification. 89 FR 80837(October 4, 2024) . Where that period of
time remained prior to an existing deadline, we stated that we did not
find it ``necessary'' under CAA section 301(a) to prescribe a different
deadline than what the statute had provided for initially designated
and classified areas. To make that adjustment, we believed we needed to
provide a reason for doing so--that it would assure expeditious
attainment of the NAAQS or ensure that the required submissions would
be implemented consistently with the Act's structure--and we did not
find a reason to do so where a state still had 18 months before an
existing deadline. We also pointed out that the CAA's establishment of
18 months as an outer boundary for a ``reasonable deadline'' for a SIP
revision to address an inadequacy (per CAA section 110(k)(5)) 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, complete the required
[[Page 5658]]
public notice process, adopt such revisions, and submit them to the
EPA.
Comment: One commenter (0042) urges the EPA to set default SIP
submittal deadlines no sooner than January 1 of the applicable
attainment year for all classifications. The commenter asserts that, in
the case of voluntary reclassifications, a SIP submittal deadline of 18
months may be sooner than those given to states that are reclassified
as a result of failing to attain, and the EPA provides no rationale to
support such earlier deadline. The commenter further provides that
states requesting voluntary reclassification do so due to the need for
additional time to develop and implement control measures, and reducing
the possible additional time available ignores the statutory principle
supporting the need for such additional time. In addition, the
commenter urges the EPA to update the RACT SIP submittal deadline in
the CFR to reflect a general default RACT submittal deadline for
reclassified areas of no sooner than January 1 of the applicable
attainment year, for all Moderate and higher classifications.
Similarly, another commenter (0039) recommends that the proposed
default submission deadline not apply to areas for which a state has
voluntarily sought reclassification. The commenter notes that states
asking for voluntary reclassification of an area will, in many cases,
have more time before the attainment date to plan and implement a SIP
than will a state with an area that has been involuntarily reclassified
upon failure to attain. The commenter claims that default submission
deadlines should not unnecessarily constrain the planning timeline for
areas that states have voluntarily reclassified because states that
voluntarily reclassify an area often do so to afford them additional
time to plan for SIPs and implement the associated control measures to
bring the area into attainment.
Conversely, one commenter (0044) agrees with the EPA that under no
circumstance should nonattainment SIP submittals be due later than
January 1 of the applicable attainment year.
Response: We do not agree with the commenters' requests to
establish SIP submittal deadlines as no sooner than January 1 of the
attainment year or not to establish any default deadlines at all for
areas that voluntarily request to be reclassified. With respect to the
commenter who stated that establishing a deadline of 18 months for a
voluntarily reclassified area might render that deadline sooner than
the deadline that would apply to an area that failed to attain and was
reclassified, the EPA agrees that this might be the practical outcome.
However, we do not agree with commenter's insinuation that there would
be anything unreasonable or inappropriate about this result. A state
that early on recognizes that its area is unlikely to timely attain and
seeks additional time for planning and development of control measures
can time its request for voluntary reclassification in order to ensure
that existing deadlines that are further out than 18 months apply or
that the state can at least have the full default 18 months to develop
its SIP. In most mandatory reclassifications due to failure to timely
attain, those states and areas will not have the benefit of 18 months
of SIP development time, because of how compressed the CAA's attainment
deadlines are for the lower classifications. So while a voluntary
reclassification area might have a ``sooner'' deadline than an area
that is mandatorily reclassified, the area that requests
reclassification early enough to obtain the 18 month default deadline
(or early enough to have more than 18 months until an existing SIP
deadline) will ultimately have more time, i.e., more months, to develop
its SIP than the area that is mandatorily classified and subject to the
January 1 of the attainment year default deadline. The area that early
requests voluntary reclassification will also have the benefit of
having control measures in its SIP revisions in place for longer before
the next attainment date, increasing the likelihood that it will
expeditiously attain the NAAQS by that next date. Finally, commenter
asserts that there is a ``statutory principle supporting the need for
such additional time'' for states requesting voluntary
reclassification, but the commenter does not identify any statutory
provision to support its statement. The CAA does not provide any
explicit authority for the EPA to establish new SIP submittal deadlines
for areas that request to be voluntarily reclassified. The EPA has
exercised its discretion under CAA section 301(a), in the context of
implementing subpart 2 requirements, to establish such deadlines where
it has determined that doing so is necessary, but we do not agree that
there is any statutory support for commenter's request to provide
states requesting voluntary reclassification the absolute latest
possible deadline to submit a new SIP, with the minimum timeframe for
emission reductions that would influence timely attainment.
The EPA acknowledges, and to some extent agrees, with the comments
that states might request voluntary reclassifications due to the need
for additional time to develop and implement control measures than
would be afforded to them if they were to wait to be mandatorily
reclassified under CAA section 181(b)(2) for failing to attain by the
applicable attainment date. However, as noted in the proposal, for any
states that seek a voluntary reclassification to a higher
classification early in the planning cycle, the existing SIP submittal
and implementation deadlines for the higher classification would apply,
which could result in SIP submittal deadlines longer than 18 months. On
the other hand, any states that seek a voluntary reclassification to a
higher classification after the original deadlines have passed or are
in the near future (i.e., less than 18 months from the effective date
of reclassification), they will be subject to a SIP submittal deadline
of 18 months from the effective date of reclassification or January 1
of the applicable attainment year, whichever is sooner. In either case,
the codification of these default deadlines will provide states with
advance notice and certainty of the applicable SIP submittal and
implementation deadlines for any reclassified ozone areas such that
they can begin developing, adopting, submitting, and implementing their
SIPs as soon as possible. We therefore do not agree with the commenter
who suggested that areas requesting reclassification should not be
subject to the default deadlines; establishing a default framework for
when and how deadlines will apply to such areas will allow states with
implementation obligations for these areas to plan with more certainty
than under the existing regime, where states requesting
reclassification have had to wait for the EPA's notice-and-comment
rulemakings to establish final SIP submission deadlines for
reclassified areas.
As to the comment about establishing a RACT SIP submittal deadline
of no sooner than January 1 of the applicable attainment year for all
Moderate and higher classifications, the commenter did not provide a
rationale in support of this recommendation. Therefore, the EPA
declines at this time to establish such a deadline for RACT SIP
revisions.
Comment: One commenter (0044) asserts that the EPA's proposal to
establish default SIP submittal deadlines based on the effective date
of reclassification is legally and practically flawed for two reasons:
(1) it is arbitrary and irrational for the EPA to key dates for
nonattainment SIP deadlines to the effective date of reclassification
rather than the attainment date; and (2) even if the SIP submittal
deadline could
[[Page 5659]]
lawfully be tethered to the timing of final action on the
reclassification, the EPA has not provided a justification for
tethering the SIP submittal deadline to the effective date (rather than
date of publication). The commenter recommends that the EPA key SIP
submittal deadlines to attainment dates rather than the date by which
the EPA acts on states' failure to timely attain because states know
whether they have failed to attain and failed to qualify for an
extension of the attainment date well before the area's attainment
date, let alone the date by which the EPA finalizes a reclassification
or makes it effective. This is because attainment is based on ozone
season monitor data from the 3 years preceding the attainment year.
Because states are on notice from before their attainment date that
they are going to fail to attain and be reclassified, it is appropriate
for the EPA to base SIP submittal deadlines on the expectations that
states will begin working on these submittals prior to the EPA's
finalization of reclassifications. This commenter points out that the
EPA has historically failed to timely issue determinations that areas
failed to attain (with the accompanying reclassifications), and
suggests that adding 18 months to those late determinations would have
resulted in SIP submittal deadlines many months after all relevant
ozone seasons for the next applicable attainment date had already
passed.
Another commenter (0045) expresses that the proposal does not
enforce a uniform deadline for all nonattainment areas and asserts that
the deadline for SIP submittal is relative to the effective date of the
rule establishing area designations. The proposed relativity of the SIP
submittal deadline is unclear, and the proposal does not include a
fixed period for nonattainment areas to develop and submit SIPs.
Congress' 18-month period has been nullified in this proposed
rulemaking, as states will not be entitled to that time, yet there is
no range of time provided in the proposal that reveals how long it
should take for states to develop and submit SIPs.
Response: Commenters have presented other potential ways of
structuring the adjustments in deadlines for reclassified areas, but we
do not agree that the EPA's proposal to require new SIP submittals 18
months from the effective date of reclassification but in any case no
later than January 1 of the attainment year is either barred by the CAA
or arbitrary or irrational. CAA section 182(i) contains no indication
that the grant of authority to the EPA to adjust deadlines in that
provision is cabined by a requirement to ``key'' those deadlines to
attainment dates, nor that the adjusted deadline must be 18 months, as
one commenter suggests.
With respect to the commenter's argument that it is irrational for
the EPA to base SIP submittal dates on the effective date of
reclassification rather than attainment dates, it is not clear what
alternative framework the commenter is advocating for. The commenter
does not explain whether they believe that the Act requires the EPA's
adjusted deadlines under CAA section 182(i) to be a certain number of
months from the preceding attainment date or a certain number of months
prior to the new attainment date. The suggestion of ``keying'' SIP
submittal deadlines to attainment dates, with no explanation of how to
do so, is odd given the commenter's invocation of CAA section 179(d) as
a model, since CAA section 179(d) ``keys'' new SIP submittals to the
EPA's determinations that areas failed to timely attain, rather than
past or future attainment dates. Nor does the commenter's reference to
the EPA's historically tardy determinations under CAA section 181(b)(2)
explain how any alternative framework would result in more expeditious
attainment of the NAAQS. The EPA acknowledges that its historical
determinations under CAA section 181(b)(2) have not met the statutory
deadline. The EPA proposed and is finalizing these default SIP
deadlines that would apply to prospective determinations and
reclassifications, in part to streamline the issuance of those
mandatory attainment determinations by removing the need to conduct a
new rulemaking to adjust applicable deadlines each time areas are
reclassified as a result of those determinations. To the extent the
commenter is advocating for a system of deadlines that encourage states
to begin working early on attainment planning for the next attainment
date, we believe the default deadlines in this final action accomplish
this policy goal as effectively as the commenter's suggestion. The
default schedule for reclassified areas creates certainty for states
regarding when SIP submittals for higher classifications will be due,
such that they can begin to plan for the next attainment date.
We also do not agree with the commenter's hypothetical application
of the proposed default deadlines to the EPA's past tardy
determinations. The commenter suggests that under the EPA's proposed
default deadlines, the SIP submittal deadline would have been several
ozone seasons after the relevant attainment date. But the EPA's
proposal, and final action, explicitly accounts for the compressed
timeframe that can occur by establishing SIP submittal deadlines that
are the earlier of 18 months from the reclassification action or
January 1 of the attainment year. In the example posited by commenter,
therefore, the EPA's proposed default deadline framework would result
in a SIP submittal deadline of January 1 of the attainment year, not 18
months from the reclassification action. In fact, as explained in the
proposal, the EPA was cognizant that the default deadlines in this
action are consistent with how it has historically established
deadlines for reclassified areas, i.e., by no later than the beginning
of the attainment year ozone season to ensure that emission reductions
would influence attainment by the attainment date. 89 FR 80839 (October
4, 2024) n.17, 18.
Finally, we do not agree that CAA section 179(d)'s establishment of
a deadline triggered off of publication of a determination rather than
the effective date of a determination mandates that the EPA's adjusted
deadlines under CAA section 182(i) must also be structured in the same
way, even if the EPA could structure its adjusted deadlines in that
way. Nothing in CAA section 182(i) suggests that Congress intended to
require the EPA's adjusted deadlines to be triggered off of the
publication of its determination rather than the effective date of its
determination. We also note that the practical difference between the
commenter's suggestion and the EPA's action is small; the only time a
difference would come into play is where there is sufficient time
between the EPA's determination and the next attainment date such that
the 18-month deadline (rather than January 1 of the attainment year)
would apply. In such situations, the difference between commenter's
suggested deadlines and the EPA's default deadlines would be 30 days,
i.e., 18 months from publication (commenter's suggestion) and 19 months
(the EPA's deadlines). As noted in the proposal, the EPA has
historically established deadlines for submission and implementation of
plan revisions based on the effective date of a reclassification
action, and we do not agree that the Agency is prohibited from doing so
here. For example, in its implementation rule for the 2015 ozone NAAQS,
the EPA finalized a default submission deadline for RACT SIP revisions
of ``no later than 24 months after the effective date of
reclassification, or by an alternative deadline established by the
Administrator as part of the action reclassifying an area'' (emphasis
[[Page 5660]]
added).\10\ The EPA has also, on numerous occasions, established SIP
submittal and implementation deadlines triggered by the effective date
of reclassification as part of actions granting voluntary
reclassification requests \11\ and actions making determinations of
attainment by the attainment date.\12\
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\10\ 83 FR 62998, 63013 (December 6, 2018).
\11\ See, e.g., Clean Air Act Reclassification of the San
Antonio, Dallas-Fort Worth, and Houston-Galveston-Brazoria Ozone
Nonattainment Areas, TX, Final Rule, 89 FR 51829 (June 20, 2024).
\12\ See, e.g., 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, Finale Rule, 81 FR 26697 (May 4, 2016); 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, Final Rule, 87 FR
60897 (October 7, 2022).
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We also disagree that the other commenter's assertion that the CAA
requires the EPA's adjusted deadlines under CAA section 182(i) (or
section 301(a) for voluntarily reclassified areas) to be 18 months from
the EPA's determination. Nothing in section 182(i) or any other
provision of the CAA suggests that such deadlines must be at least 18
months. We also do not agree that the Act requires that there be a
uniform or fixed amount of time for states to revise their SIPs after
areas are reclassified, and the commenter has provided no statutory
support for its contention.
The EPA is therefore finalizing its proposed schedule for states to
revise their SIPs to address applicable subpart 2 requirements after
ozone nonattainment areas are reclassified, which is the earlier of 18
months from the effective date of reclassification or January 1 of the
applicable attainment year.
Comment: One commenter (0039) recommends that the proposed default
submission deadlines align with the start of the ozone season to
provide states with ozone seasons that start later in the year
additional planning flexibility. Conversely, one commenter (0032)
expresses that the EPA's proposed alternative deadline that aligns with
the beginning of an area's attainment year ozone season is inadequate.
The commenter notes that, historically, the EPA has provided states 3
years to submit attainment demonstration SIPs and modeling, and 2 years
to submit RACT and reasonable available control measure (RACM) SIPs.
The commenter requests that the states be afforded this amount of time
to submit their SIPs.
Response: We are finalizing a default SIP submission deadline of 18
months from the effective date of reclassification or January 1 of the
applicable attainment year, whichever is earlier. As discussed in the
proposal, in some historical instances, the EPA has established the SIP
submittal deadline for reclassified areas as the beginning of the
attainment year ozone season, rather than January 1 of the attainment
year. Given that the beginning of the attainment year ozone season is
January 1 for many ozone nonattainment areas, we are setting the
maximum default SIP submission deadline as no later than January 1 of
the applicable attainment year ozone season to assure consistency among
all SIP submissions for ozone nonattainment areas reclassified as
Moderate, Serious, and Severe as well as to promote expeditious
attainment of the ozone NAAQS.
The EPA declines the request to provide states 3 years to submit
attainment demonstration SIPs and modeling, and 2 years to submit RACT/
RACM SIPs. While it is true that the CAA provides submission deadlines
that range between 2 and 4 years for some requirements, these schedules
are based on the effective date of the rule establishing initial area
designations. In the case of reclassifications, these initial SIP
submittal and implementation timelines have already been established
and, in many cases, are in the past or the near future (i.e., less than
18 months away) at the time of reclassification. Because reclassified
nonattainment areas typically face limited time to submit and implement
required SIP revisions prior to the next attainment date, it is
impossible to establish default deadlines after an attainment date that
would afford states 2 or 3 years to submit their SIPs, if those SIPs
are to have any impact on the area's ability to attain by the next
attainment date.
c. SIP Submittal Deadline for the CAA Section 185 Fee Program Element
Comment: One commenter (0037) claims that the CAA does not support
requiring CAA section 185 fee program SIP submittals any sooner than 36
months after the effective date of reclassification to Severe. In CAA
section 185, the attainment year is expressly identified as the year in
which the attainment date falls. When setting a deadline in relation to
CAA section 185, it is not necessary or practical that there be a
submittal more than a year before the attainment date. It is entirely
reasonable that states could submit those programs later consistently
with the implementation of any potential CAA section 185 fee program
because the fee payment does not arise until the year after the year in
which the attainment date falls.
One commenter (0044) urges the EPA to require states to develop CAA
section 185 SIPs on the same timeline as contingency measures for
failing to attain. The commenter believes that, just like attainment
contingency measures, section 185 penalty fees only kick in after an
area fails to timely attain. The EPA properly requires states to submit
contingency measure SIPs in well under 3 years and provides no rational
explanation for treating the two submissions differently. The commenter
notes that a section 185 SIP should be fairly straightforward,
requiring no assessment of control methodologies, and states therefore
should be able to develop it quickly. The commenter further provides
that, given the EPA's and the states' history of missing CAA deadlines,
the 36 months or January 1 attainment year deadline would very likely
mean that a final section 185 rule would not be in place until after an
area failed to attain, which is inconsistent with the CAA.
Response: The EPA disagrees with the comment claiming that the CAA
does not support a submission deadline any sooner than 36 months after
the effective date of reclassification to Severe. We are finalizing the
default deadline for CAA section 185 fee program element as proposed.
The CAA and the EPA's implementing regulations for the 2008 and 2015
ozone NAAQS permit states with ozone nonattainment areas initially
classified as Severe to submit a SIP revision that meets the
requirements of CAA section 185 within 10 years of the effective date
of an area's nonattainment designation. Given that nonattainment areas
initially classified as Severe have 15 years to attain the NAAQS after
the effective date of designation, states with nonattainment areas
initially classified as Severe must submit their CAA section 185 fee
program SIPs at least 5 years before the attainment date. Therefore,
the EPA disagrees with the comment that it is inconsistent with the CAA
for states to submit these SIPs more than a year before the attainment
date, and given the Act's structure for initially designated and
classified areas, which requires the section 185 fee SIP to be
submitted at least 5 years before the attainment date, the commenters
have failed to explain why the EPA's default deadline of 36 months
after reclassification (but no later than January 1 of the attainment
year), is not practical or necessary. As noted in the proposal, the EPA
has established a 36-month SIP submission deadline for CAA
[[Page 5661]]
section 185 SIPs in the past. Such an extended deadline is supported by
the fact that the CAA specifically sets a later SIP submission deadline
for the CAA section 185 fee program than for any other elements.\13\ In
addition, an extended deadline of 36 months after the effective date of
reclassification will still typically be more than 18 months before the
attainment date, which will still ensure that CAA section 185 fee
programs for reclassified areas will be in place ahead of when they are
needed. The EPA agrees that the development of the CAA section 185
program should not pose an undue burden on states. However, as noted in
the proposal, we believe that providing states with more time for the
CAA section 185 fee program SIP submission could allow more focused
attention to be spent on other Severe SIP elements in the first 18
months following reclassification.
---------------------------------------------------------------------------
\13\ See CAA section 182(d)(3).
---------------------------------------------------------------------------
The EPA likewise disagrees with the comment suggesting that states
must develop CAA section 185 SIPs on the same timeline as contingency
measures for failing to attain. The commenter is incorrect in claiming
that there is no difference between contingency measures and section
185 fee programs. While section 185 fee programs only kick in after an
area fails to timely attain, contingency measures may be triggered as a
result of an area's failure to meet RFP or a failure to attain by the
attainment date. See CAA section 172(c)(9). The later deadline
finalized in this action for the CAA section 185 SIP for areas
reclassified to Severe mirrors the different, later deadline that CAA
section 182(d)(3) provides for the section 185 fee program element for
initially designated and classified Severe areas, which it does not do
for any other element, including contingency measures.\14\ 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, which was a benefit the
EPA noted at proposal, they would still have the option to submit their
CAA section 185 programs earlier.
---------------------------------------------------------------------------
\14\ See CAA section 182(d)(3).
---------------------------------------------------------------------------
In addition, we have previously stated that the EPA retains the
ability to set an alternative deadline for CAA section 185 SIP
submissions, if appropriate, for nonattainment areas reclassified as
Severe and that such an adjustment ``could be appropriate in situations
where the reclassification action occurs on a date that is unreasonably
near to or past the 10-year deadline applicable to areas initially
designated Severe or Extreme.'' \15\ The appropriateness of such
adjustment applies here. The deadlines that we are finalizing as part
of this rule would be applicable to any reclassified Severe areas only
if the original 10-year deadline established for nonattainment areas
initially classified as Severe has passed or is less than 18 months
away from the effective date of reclassification. In either case, a
deadline of the earlier of 36 months after the effective date of
reclassification or January 1 of the applicable attainment year is
reasonable because either date would provide states with adequate time
to develop and submit their SIP revisions, while still ensuring that
approved CAA section 185 fee programs for reclassified areas will be in
place ahead of when they are needed.
---------------------------------------------------------------------------
\15\ 83 FR 62998, 63009 (December 6, 2018).
---------------------------------------------------------------------------
Regarding the comment about the EPA and states' history of missing
CAA deadlines, we disagree that a default deadline of the earlier of 36
months or January 1 of the attainment year would mean that a state's
CAA section 185 program would not be in place until after an area
failed to attain. This is unlikely because the CAA provides up to 6
years between the Serious and Severe attainment dates, in contrast to
the 3-year intervals for Marginal, Moderate, and Serious
classifications. Even with the additional time allowed to develop
section 185 fee programs, there will be sufficient time to get such
programs in place before the Severe attainment date. Moreover, as noted
in the proposal, the purpose of the default deadlines that would apply
to reclassified Moderate, Serious, and Severe nonattainment areas is to
provide advance notice and certainty to any states with nonattainment
areas that may fail to attain an ozone NAAQS by the applicable
attainment date as well as any nonattainment areas for which a state
requests a voluntary reclassification to a higher classification. The
default SIP submission and implementation deadlines that we are
finalizing as part of this rule will help streamline the
reclassification process and help the EPA, as well as states, meet CAA
deadlines in the future. As acknowledged elsewhere in this document,
the EPA has routinely adjusted SIP submission and implementation
deadlines as part of actions granting voluntary reclassification
requests and actions making determinations of attainment by the
attainment date. This rule will remove that step from the
reclassification process, thereby simplifying and advancing the
nonattainment planning cycle for states and the EPA. We expect that the
default deadlines finalized as part of this rule will promote
efficiency, allowing states and the EPA to continue working towards CAA
goals in a timely manner.
d. Deadline for RACT Implementation
Comment: Two commenters (0039, 0042)) recommend that the proposed
default RACT implementation deadlines align with the start of the ozone
season. One of these commenters (0039) states that this will provide
states with ozone seasons that start later in the year additional
implementation flexibility. The other commenter (0042) notes that this
will allow affected entities to comply with RACT on a timeline that
considers sources' ability to control emissions based on technological
and economic feasibility, which are primary factors in determining
RACT.
Conversely, one commenter (0032) expresses that the EPA's proposed
alternative deadline that aligns with the beginning of an area's
attainment year ozone season is inadequate. The commenter notes that
the CAA requires states to implement RACT as expeditiously as
practicable but no later than January 1 of the 5th year after the
effective date of designation. The commenter requests that the states
be afforded this amount of time to implement RACT.
Response: We are finalizing the default RACT implementation
deadlines as proposed. While the EPA agrees with the comments asserting
that aligning the RACT implementation deadline with the attainment year
ozone season will provide states with additional implementation
flexibility, the beginning of the attainment year ozone season will not
always be the most expeditious deadline for RACT implementation. In
those instances, it may be more expeditious for RACT to be implemented
earlier (i.e., EPA's proposed 18 months after the date in which RACT
SIPs are due). As with other RACT implementation deadlines that the EPA
has established for reclassified areas, an underlying consideration is
that, consistent with the CAA, the 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.\16\ In recognition of this, the EPA is finalizing a default RACT
implementation deadline of as expeditiously as practicable but no later
[[Page 5662]]
than the earlier of 18 months from the SIP submittal deadline or the
beginning of the attainment year ozone season.
---------------------------------------------------------------------------
\16\ 89 FR 80833, 80839 (October 4, 2024).
---------------------------------------------------------------------------
The EPA disagrees with the comment that the EPA should establish a
RACT implementation deadline that requires states to implement RACT as
expeditiously as practicable but no later than January 1 of the 5th
year after the effective date of designation.\17\ In reclassification
scenarios, it is often the case that the RACT implementation deadlines
established for areas initially classified as Moderate, Serious, and
Severe have already passed or will occur shortly after the effective
date of reclassification, thereby making it impossible or unreasonable
for a state to comply with the implementation schedules that initially
classified areas must comply with. As such, the EPA is finalizing a
default RACT implementation deadline that accommodates the need for
additional time to develop SIPs and implement controls, while also
establishing that deadline in time to influence attainment by the
attainment date. In general, this deadline would provide states with a
36-month schedule for SIP submission and controls implementation for
reclassified areas (i.e., 18 months to develop and submit required SIP
revisions and an additional 18 months to implement controls). Should
fact-specific-circumstances arise that would necessitate a further
adjustment of deadlines for a particular nonattainment area, the EPA is
reserving the right to establish different implementation deadlines for
reclassified areas in separate notice-and-comment rulemakings.
---------------------------------------------------------------------------
\17\ To the extent that the commenter is suggesting that the EPA
establish the default RACT implementation deadline as January 1 of
the 5th year after reclassification, we decline to establish the
generic default RACT deadline in this manner. For further
discussion, see the EPA's response to commenter (0044) in this
section seeking a default RACT implementation deadline beyond the
attainment deadline.
---------------------------------------------------------------------------
Comment: One commenter (0037) believes that there is no basis in
the CAA for the EPA to require implementation of controls any sooner
than 18 months after the proposed SIP submittal deadline in any given
instance of reclassification. The commenter notes that the EPA provides
no statutory basis for triggering obligations in advance of a full
calendar ``attainment year'' before the year in which the attainment
date falls. The commenter claims that the EPA risks upending a state's
due consideration of controls and its overall discretion to implement
controls to attain the NAAQS consistent with the state's overall
economic and air quality priorities by rushing states to implement
controls.
Another commenter (0044) believes that the EPA's proposal
impermissibly fails to provide states adequate time to fully implement
RACT, thereby undermining long-term attainment and maintenance of the
ozone NAAQS. This commenter urges the EPA to clarify that, while
interim RACT must be implemented as expeditiously as practicable, and
no later than prior to the beginning of the applicable attainment year
ozone season, RACT must nevertheless be fully implemented even if this
necessitates that some components of RACT are implemented subsequent to
that attainment year date. By requiring RACT to be fully implemented by
deadlines that are already only slightly more than a year out, the
commenter claims that the EPA unlawfully precludes states from
implementing the full suite of controls that meet the definition of
RACT.
Similarly, another commenter (0032) recommends that the EPA should
extend the deadline for newly implemented RACT, just as it does for I/M
programs. The commenter asserts that the EPA proposed to allow newly
required Basic and Enhanced I/M programs to be fully implemented no
later than 4 years after the effective date of reclassification, so
long as states do not intend to rely upon emission reductions from
their newly required Basic or Enhanced I/M program in attainment or RFP
SIPs. The commenter believes that this more flexible timeframe should
also extend to RACT because states will not be able to rely on RACT for
their reclassified 2015 ozone Serious areas by including reductions
from it by January 1, 2026, if they cannot practically implement by
that date. The commenter asserts that states will be forced to exclude
newly implemented RACT from modeling and RFP demonstrations when
performing 2026 attainment year modeling and projections.
Response: We are finalizing the default RACT implementation
deadline as proposed. As an initial matter, we disagree with the
commenter's contention that EPA lacks a statutory basis for
establishing a default deadline for RACT implementation in advance of
the full calendar ``attainment year'' (i.e., the year before the year
in which the attainment date falls). CAA section 182(i) delegates to
EPA the authority to ``adjust any applicable deadlines (other than
attainment dates) to the extent such adjustment is necessary or
appropriate to assure consistency among the required submissions''
(emphasis added). Commenter points to no limitation on the EPA's
authority contained in the relevant statutory language to support the
commenter's position. We also disagree with the commenter's contention
that the RACT implementation deadline fails to provide states adequate
time to fully implement RACT and unlawfully precludes states from
implementing the full suite of controls that meet the definition of
RACT. Nothing in this rule reopens or alters the EPA's longstanding
definition of RACT \18\ as the lowest emission limit that a particular
source is capable of meeting by the application of control technology
that is reasonably available considering technological and economic
feasibility. The EPA always has, and will continue to, evaluate state
RACT SIP submittals against this definition, and states remain
obligated to implement RACT-level controls in nonattainment areas by
any applicable implementation deadline. We acknowledge that timely RACT
implementation may be difficult. However, we note that the
implementation of controls is intended to help states expeditiously
attain the NAAQS no later than the attainment date. If a state adopts
new or additional control measures as RACT and relies on the emission
reductions caused by those control measures to demonstrate RFP and/or
attainment, those states must implement such RACT as expeditiously as
practicable, but no later than a date by which the state can achieve
emissions reductions that positively influence an area's monitored
design value (e.g., the earlier of 18 months from the applicable SIP
due date or the beginning of the attainment year ozone season).
Further, it is important to establish a generic RACT implementation
deadline to provide advance notice and certainty to states so that they
can undertake preparation and advanced planning, as appropriate, to
timely implement any applicable RACT controls. Given these
considerations, in establishing a generic default timeline
[[Page 5663]]
in this rule, the EPA is setting the RACT implementation deadline to
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.\19\ Delays
in implementing RACT controls associated with reclassification would
delay related air quality improvements and human health benefits for
residents across reclassified areas. However, the regulations being
finalized here preserve flexibility for the EPA in future individual
actions to take a different approach to the RACT implementation
deadline for specific areas following notice-and-comment rulemaking.
---------------------------------------------------------------------------
\18\ See State Implementation Plans; General Preamble for
Proposed Rulemaking on Approval of Plan Revisions for Nonattainment
Areas--Supplement (on Control Techniques Guidelines), Proposed Rule,
44 FR 53761, 53762 (September 17, 1979) (defining RACT as ``The
lowest emission limitation that a particular source is capable of
meeting by the applicable of control technology that is reasonably
available consider technological and economic feasibility'') (citing
memorandum from Roger Strelow to Regional Administrators, Regions I-
X, Guidance for Determining Acceptability of SIP Regulations in Non-
attainment Areas (December 9, 1976). See also, Keystone-Conemaugh
Projects v. EPA (3rd Cir.) No. 22-3026, May 2, 2024 (noting that
``EPA has repeatedly interpreted [RACT] to mean `the lowest emission
limit that a particular source is capable of meeting by the
application of control technology that is reasonably available
consider technological and economic feasibility'').
\19\ 89 FR 80833, 80839 (October 4, 2024).
---------------------------------------------------------------------------
With respect to commenter's suggestion that the EPA establish a
longer implementation horizon for RACT, including beyond the attainment
date, we appreciate these comments and will take them under advisement
for potential future notice and comment rulemaking. As noted in the
proposal and in other portions of this final action, 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 is independent from the attainment demonstration
for such areas and is not directly linked to the attainment date.\20\
The EPA acknowledges that the Agency could, where appropriate, afford
additional flexibility in the timeline for implementing RACT.
Accordingly, as with the other default deadlines finalized as part of
this rule, the EPA is reserving the right to establish a different RACT
implementation deadline for reclassified areas in a separate notice-
and-comment rulemaking, consistent with its authority under CAA section
182(i) and the CAA's requirements that areas expeditiously attain the
NAAQS.
---------------------------------------------------------------------------
\20\ 89 FR 80833, 80847 (October 4, 2024).
---------------------------------------------------------------------------
e. Deadline for I/M Implementation
Comment: One commenter (0030) recommends that the EPA should align
the deadlines for I/M programs with the deadlines for control measure
implementation, within 18 months of SIP submission or before the
beginning of the ozone season. The commenter notes that this will
ensure consistent submission deadlines, which support the goal of the
proposed ruling. The commenter cited studies asserting that mobile
sources are a major cause of health impacts because they are one of the
largest contributors to ozone-forming emissions in the U.S., and
therefore the commenter believes that I/M programs must be integrated
in a timely manner to reduce negative health impacts. They also state
that because the EPA emphasized that some SIPs rely on ozone emission
reductions via I/M programs, it would be counterintuitive to allow I/M
programs to be implemented up to 4 years after the effective date of
reclassification despite other control measures being implemented
within 18 months.
Response: We agree with the commenter that, for SIPs that rely on
emission reductions from I/M programs, it would be counterintuitive to
allow any new or revised I/M programs to be fully implemented beyond
the beginning of the attaining ozone season. We explained at proposal
that an I/M implementation deadline of as expeditiously as practicable,
but no later than the beginning of the attainment year ozone season
applies to reclassified areas relying on emission reductions from their
newly required Basic or Enhanced I/M programs for attainment or RFP
purposes:
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.\21\
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\21\ 89 FR 80833, 80840 (October 4, 2024).
The EPA's requirement in this action that states relying on I/M
emission reductions in their attainment or RFP SIPs is consistent with
the 2015 ozone implementation rule which requires all control measures
in the attainment plan and demonstration to be implemented no later
than the beginning of the attainment year ozone season.\22\ However,
for states that do not intend to rely upon emission reductions from
their newly required Basic or Enhanced I/M programs in attainment or
RFP SIPs, we maintain, as proposed, that it is reasonable to allow
these newly required Basic or Enhanced I/M programs to be fully
implemented no later than 4 years after the effective date of
reclassification considering the numerous challenges and milestones
necessary in establishing a new or revised I/M program. While mobile
sources can be a significant source of ozone-forming emissions, I/M is
not the only CAA program that generates emission reductions from mobile
sources.
---------------------------------------------------------------------------
\22\ 40 CFR 51.1308(d)
---------------------------------------------------------------------------
Comment: One commenter (0032) believes that the EPA is promulgating
a rule that ensures new I/M programs could not be relied on for SIP
planning because there is no practical way to start a new I/M program
in the proposed timeframe of the beginning of the applicable attainment
year ozone season.
Response: We respectfully note that the commenter offered no
evidence to support a finding that there is no practical way to start a
new I/M program in the proposed timeframe of the beginning of the
applicable attainment year ozone season.
In practice, many areas where new Basic I/M or Enhanced I/M SIP
revisions are required as the result of a reclassification for a new
ozone NAAQS may already be operating I/M programs for a variety of
reasons, including to satisfy requirements from designation as
nonattainment and classification as Moderate or above under a prior
ozone NAAQS. Such areas may use emissions reductions from these
programs in attainment SIPs if they have also submitted a new I/M SIP
revision for such NAAQS that meets the applicable Basic or Enhanced I/M
requirements for the new classification.
For areas that might need to start a new I/M program or revise
their existing program as the result of a reclassification, we realize
that implementing a new or revised I/M program on an accelerated
timeline may be difficult given the unique nature of I/M programs, and
many challenges, tasks, and milestones that must be met. However, as
discussed in other responses to comments in this document, an I/M
implementation deadline, for reclassified areas intending to rely on
emission reductions from their newly required Basic or Enhanced I/M
program in attainment or RFP SIPs, as expeditiously as practicable but
no later than the beginning of the attainment ozone season is
consistent with the CAA and is pursuant to the existing implementing
regulations for the 2008 and 2015 ozone NAAQS.
Comment: One commenter (0044) urges the EPA to require states to
implement I/M programs as expeditiously as practicable, and no later
than a timeline that can influence attainment year air quality. The
commenter asserts that the EPA's proposal to allow I/M program
implementation after the attainment
[[Page 5664]]
deadline is unlawful and arbitrary. First, the commenter asserts that
the EPA's proposed timeline is contrary to the express indications of
Congressional intent, which stipulates that pollution control
requirements for nonattainment areas are to take effect before the
attainment deadline. In the case of Enhanced I/M programs, Congress's
intent was that they take effect on the same timeline as plans for
their submission. Second, the commenter states that the EPA's reading
undermines the limits on its discretion regarding subpart 2 of the Act,
contrary to governing precedent. Third, the commenter claims that the
EPA wrongly reads 40 CFR 51.373(d) as allowing implementation to take 4
years from the date of reclassification. Instead, the commenter notes
that the regulation provides that the required Enhanced I/M Program
``shall be fully implemented no later than 4 years after the effective
date of designation and classification under the 8-hour ozone
standard.'' The commenter believes that ``the effective date of
designation and classification'' is not the same as the effective date
of ``reclassification'' because designation and reclassification did
not occur on the same date. The commenter notes that the same is true
for Basic I/M. Finally, the commenter asserts that it is inherently
unreasonable, arbitrary, and capricious for the EPA to allow an
implementation deadline for I/M Programs that is later than the
relevant area attainment dates because mobile source emission
reductions are so important for reducing ambient ozone levels.
Response: We agree with the commenter that the I/M rule at 40 CFR
51.373(d) regarding the I/M implementation deadline is directly
applicable only for areas initially designated and classified. But we
do not agree that the EPA cannot consider that regulatory timeframe in
adjusting schedules for implementation of newly applicable I/M programs
following an area reclassification under CAA sections 182(i) and
301(a). While as a general matter, we agree that expeditious attainment
of the NAAQS is best served by implementing control measures in advance
of area attainment dates, and ideally in time to influence attainment
by the attainment date, we are also cognizant that many, if not all, of
the components of an I/M program permit consideration of feasibility
within a given time frame. A list of these items that must be included
in an I/M SIP is enumerated in 40 CFR 51.372(a). For example,
establishment of the inspection network, the request for proposal
process to select an inspection hardware/software service provider,
inspector recruitment, training and licensing, changes to the state's
vehicle registration process, as well as public notification, outreach
and education are components to an I/M program that, based on the
experience of the EPA and implementing states, we know to be time-
intensive and difficult to feasibly accomplish on an accelerated
timeframe.
As discussed in the proposal, 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 EPA is establishing the same default I/M
implementation deadline under its general rulemaking authority in CAA
section 301(a), in the context of implementing subpart 2 planning
requirements, for voluntarily reclassified areas. We acknowledge that
for initially designated and classified areas, all of the submission
and implementation deadlines in subpart 2 occur prior to the attainment
deadline, and that ideally, states would similarly address all newly
applicable subpart 2 requirements for reclassified areas in time to
influence an area's air quality by the next attainment date. This is in
large part why all of the other default deadlines for reclassified
ozone areas in this action have been adjusted consistent with that
approach.
We do not agree, however, that CAA section 182(i), or subpart 2
generally, explicitly prohibits the establishment of any deadline
beyond the attainment date. Section 182(i) states that states
containing reclassified areas shall meet the applicable subpart 2
requirements ``according to the schedules prescribed in connection with
such requirements'' in granting the EPA discretion to adjust such
deadlines other than the attainment date. The EPA's establishment of
the default I/M implementation deadline of no later than 4 years after
the effective date of reclassification is a limited exercise of its
discretion under CAA section 182(i) to provide one deadline that
extends beyond the attainment date. The Agency has a longstanding
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, and specifically the attainment date.\23\ We note that the same
commenter taking issue with the EPA's post-attainment date
implementation deadline for I/M elsewhere argues that the EPA should
establish RACT implementation deadlines ``even if compliance timeframes
extend beyond the applicable attainment year ozone season.'' \24\
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\23\ 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.
\24\ EPA-HQ-OAR-2024-0333-0044 commenter letter at 13.
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We agree that given section 182(i)'s requirement that the EPA
assure consistency among required submissions and the Act's overall
emphasis that areas expeditiously attain the NAAQS, it would be
unlawful for the EPA to adjust all submission and implementation
deadlines for reclassified areas such that those deadlines fell after
the newly applicable attainment dates. But the EPA's action here with
respect to providing this limited I/M implementation extension 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
is not inconsistent with the Act's goal of attainment of the NAAQS;
under the EPA's default deadlines, areas must still submit and
implement all control measures necessary to achieve attainment by the
attainment date no later than the beginning of the attainment year
ozone season. The EPA's final action providing this limited extended I/
M implementation deadline for certain reclassified ozone nonattainment
areas also aligns with past practice for both mandatorily and
voluntarily reclassified areas.\25\ We do not dispute that mobile
source emission reductions are an important component to reducing
ambient ozone levels, but we do not agree with commenter that this fact
necessarily renders the final default I/M implementation deadline of 4
years from the effective date of reclassification (for areas not
relying on I/M reductions in attainment or RFP SIPs) to be ``inherently
unreasonable, arbitrary, and capricious.'' Emissions from mobile
sources can be and are addressed under the CAA in other programs
besides I/M, including Federal
[[Page 5665]]
vehicle standards, and states may also seek ways to reduce and mitigate
mobile source emissions consistent with the CAA in their plans to
attain by the attainment date.
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\25\ 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).
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B. Status of Certain Requirements of Former Classification
1. Summary of Proposal
The EPA proposed regulations to codify its existing interpretation
that, following reclassification to Moderate, Serious, or Severe,
certain ozone SIP requirements for the lower, former classification
will still be required. Specifically, the EPA restated 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. 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) for
areas that are mandatorily or voluntarily reclassified, a demonstration
of attainment by the prior attainment date; (2) for areas that are
mandatorily or voluntarily reclassified, a 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 attainment date associated with the prior classification.
2. Final Rule
The EPA is finalizing regulatory text in line with the Agency's
position as described in the proposal. Planning requirements applicable
to the lower, former classification for the ozone NAAQS \26\ continue
to be legally required following a change in an area's classification
level, except: (1) the attainment demonstration; (2) RACM; and (3) for
areas that are voluntarily reclassified, contingency measures to
address failure to attain by the attainment date associated with the
prior classification. Although the EPA's position is unchanged from
proposal, the final regulatory text reflects minor changes from the
proposed text. This includes minor changes based on comments, as noted
in the next section. We also made minor revisions to the definitions of
``former attainment date'' and ``former classification'' to ensure
clarity that former attainment dates and former classifications include
every classification assigned to an area before it was reclassified,
not exclusively the immediately preceding classification (e.g., an area
initially classified as Moderate that was subsequently reclassified as
Serious and then reclassified again as Severe remains legally
responsible for requirements associated with Moderate and Serious
classifications as outlined in this rule, in addition to the new
requirements for Severe).
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\26\ The EPA's interpretation regarding leftover SIP
requirements when an area has been reclassified is specific to the
ozone NAAQS, and as codified in this final rule, does not apply to
any other NAAQS.
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3. Comments and Responses
Comment: Two commenters (0036, 0044) generally support the EPA's
policy on leftover SIP requirements. One of these commenters (0036)
believes that the EPA should finalize its proposal that most SIP
requirements from an area's prior classification continue to apply
following reclassification because these requirements include
important, CAA-required ozone reduction programs, as well as
requirements to demonstrate progress towards attainment. The commenter
emphasizes that it is critical that states implement these programs in
general, and implement these programs on the original deadlines. The
other commenter (0044) states that the CAA does not allow
reclassification to result in the elimination of unmet SIP requirements
that do not depend on the superseded attainment deadline. The commenter
believes that the proposed approach is not only reasonable, but
compelled by the CAA's carefully constructed statutory scheme, which
does not contemplate fewer or different requirements for reclassified
areas when compared to those areas initially given that same
classification when designated nonattainment. To arrive at the contrary
conclusion would allow areas struggling with ozone air pollution to
skirt otherwise applicable SIP requirements, which would be
unreconcilable with Congress's discretion-limiting intent in enacting
the ozone nonattainment requirements.
Response: The EPA agrees with the commenters and is finalizing the
deadlines as proposed with minor clarifications as discussed elsewhere
in this document.
Comment: Two commenters (0041, 0042) assert that the EPA's policy
on leftover SIP requirements is neither required nor supported by
statutory provisions that the EPA cites in the proposed rule, and
requests that the EPA reconsider the policy. One commenter (0041)
states that the CAA section 182(i) does not give the EPA ``gap
filling'' authority to specify what requirements apply to an area that
has been reclassified, and legislative history indicates that Congress
did not intend for requirements of a former classification to apply
upon reclassification to a higher classification. The commenter notes
that the reference to submissions under CAA sections 182(b) and (c)
contained in sections 182(c) and (d) make no mention of the situation
where an area has been reclassified (and thus should not be interpreted
to apply to a reclassification). Instead, the commenter believes that
these provisions should be read to mean classifications under subpart 2
impose cumulative, but not what the commenter considers duplicative,
requirements.
Two commenters (0037, 0042) believe that all requirements
associated with an area's prior classification are superseded, and no
longer due, with more stringent requirements upon reclassification to a
higher classification. One of these commenters (0042) claims that
requiring a state to submit and have the EPA act on superseded prior
classification elements would make no logical or practical sense.
One commenter (0041) believes that the EPA's proposed distinction
between SIP elements ``inherently tied'' to an attainment date and SIP
elements ``independent'' of an attainment date is not supported by
statute. The commenter asserts that, under the EPA's proposed statutory
interpretation, requirements that are tied to attainment dates are
transitory requirements that are supplanted if an area is reclassified
to a higher level of nonattainment, while other requirements in CAA
section 182 are effectively immutable and are not affected by a change
in an area's classification. The commenter disagrees with the EPA's
assertion that the SIP elements associated with an area's CAA section
181 classification are ``generally cumulative from Marginal up to
Extreme'' and that ``[t]he requirement to submit such elements remains
applicable, and the submittal and implementation deadlines are
unchanged.'' The commenter believes that a more rational reading of the
statute is that reclassification resets not only the timing of
attainment, but also which SIP requirements are applicable and the
timeframe under which states and localities must satisfy such
requirements. The commenter states that it is difficult to reconcile
why an area initially designated as being in Moderate nonattainment
(and then reclassified to Serious nonattainment) would be treated
differently from an area initially designated as being in Serious
nonattainment. The commenter
[[Page 5666]]
further asserts that a straightforward reading of the provision
indicates that: (1) reclassified areas are only subject to requirements
that apply to them under a new classification (i.e., requirements ``as
may be applicable to the area as reclassified''); and (2) the EPA's
Administrator's authority pursuant to CAA section 182(i) is constrained
to adjusting ``applicable deadlines'' and not ``applicable
requirements.'' The commenter asserts that this reading gives full
force to the increasing burden placed on reclassified areas pursuant to
subpart 2 but CAA section 182(i) does not grant the EPA Administrator
authority to continue to impose requirements that have been superseded
by more stringent requirements. Additionally, the commenter asserts
that because reclassification (voluntary or mandatory) effectively
increases the obligations imposed on states and localities to meet RFP
and provide sufficient contingency measures, the commenter believes
that the EPA's interpretation adds to that burden without appreciable
benefit.
One commenter (0037) urges the EPA to conclude that a voluntary
reclassification moots all leftover SIP elements from the previous
classification and any sanctions, where applicable, associated with the
failure to submit those elements for approval. The commenter believes
that the CAA recognizes that a state can exercise its authority to
request a voluntary reclassification, and therefore moot all elements
required under the prior classification, because the purpose of the
reclassification is to permit a state to take the most effective steps
to achieve the NAAQS on the timeline laid out for the new
classification. In addition, the commenter states that, even if the EPA
holds to its position that these previous classification elements are
not tied to the attainment deadline, the elements remain tied to the
classification itself and change alongside it. The commenter further
believes it is arbitrary and contrary to the CAA to impose
requirements, or to continue potential sanctions where applicable, when
the purported elements are associated with deadlines that have already
passed for an area that will be subject to a more stringent
classification. In addition, the commenter asserts that continuing to
require elements associated with a lower classification places
unnecessary burdens upon states and diverts resources from focusing on
the requirements of the more stringent classification.
Response: The EPA disagrees with the commenters. The EPA's
interpretation of the CAA regarding what SIP requirements remain due
following reclassification is supported by and consistent with the
relevant statutory provisions and is the best interpretation of
relevant CAA provisions. 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). In CAA section 182(i), the
statutory language also indicates that the requirements of each
classification are cumulative. The EPA interprets the provision ``shall
meet such requirements of subsections (b) through (d) . . . as may be
applicable to the area reclassified'' to require from a state any and
all of the elements contained in subsections (b) through (d) that
apply, not only the elements from subsection (b) or subsection (c) or
subsection (d) in isolation. The state must meet requirements of
subsections (b) through (d)--i.e., subsection b, subsection c, and
subsection d rather than subsection b, subsection c, or subsection d--
that apply, and elements of multiple classifications may be applicable
at any given point to the area being reclassified.
The commenter's characterization of the EPA's action as using
section 182(i) to justify adjusting the requirements is misplaced. The
EPA is not adjusting the requirements but rather providing clarity on
what the requirements are. The EPA interprets the CAA such that when
areas are reclassified to a higher classification of nonattainment,
those areas will become responsible for the statutory duties imposed
under the new classification and remain responsible for the statutory
duties imposed under any prior, lower classifications that it was
classified as, except for such elements inherently tied to the
attainment date of the lower classification. The EPA disagrees with the
commenter's claim that the CAA does not support the EPA's distinction
between SIP elements ``inherently tied'' to an attainment date and SIP
elements ``independent'' of an attainment date. To give sensible
construction to the terms of the CAA and avoid an absurd result, common
sense necessitates an exception for elements inherently tied to a date
in the past. There is only one attainment date that applies at any
given time to a singular nonattainment area for a given ozone NAAQS,
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--and is indeed, impossible--for the area
to demonstrate attainment with respect to it. As explained in more
detail in a later comment response, this same logic applies to RACM.
Similarly, there are no requirements to have contingency measures tied
to the prior classification's attainment date in a situation where an
area can never be found to have failed to attain by a no longer
relevant attainment date.
The EPA does not entirely disagree with the commenter's
characterization of the elements inherently tied to the attainment date
as ``transitory'' but notes that these elements are time-bound in a
manner unique to them in that once the attainment date has passed,
those elements are, as a matter of logic, impossible to fulfill. No
reading of the statute can alter the practical reality that once the
attainment date has passed and an area has failed to attain, no steps
can be taken by any State nor the EPA to demonstrate that an area would
meet a factual scenario that did not come to pass, i.e., attain the
ozone NAAQS by the attainment date, when the area failed to attain by
the attainment date. Similarly, after the attainment date, a RACM
analysis can only be a null set of measures because it is impossible to
advance an area's attainment by a year earlier than the attainment date
after that attainment date has come and gone. With respect to voluntary
reclassification, there is no purpose in requiring a state to have
contingency measures that could never be triggered by failure to attain
by an attainment date that no longer exists.\27\ Similarly, a state
cannot plan around meeting an attainment date that has been superseded.
It is this characteristic--that these elements are impossible to
fulfill--that distinguishes leftover SIP elements from the otherwise
cumulative set of requirements enshrined in the CAA's ozone
nonattainment classifications. It is an exception to avoid an absurd
result.
---------------------------------------------------------------------------
\27\ The term ``triggered'' for CMs refers to the EPA having
made a final determination that requires implementation of the CMs,
such as a final determination that a nonattainment area has failed
to meet RFP or has failed to attain a NAAQS by the applicable
attainment date. See Joseph Goffman, Guidance on the Preparation of
State Implementation Plan Provisions that Address the Nonattainment
Area Contingency Measure Requirements for Ozone and Particulate
Matter, December 3, 2024, at 3, available at <a href="https://www.epa.gov/air-quality-implementation-plans/final-contingency-measures-guidance">https://www.epa.gov/air-quality-implementation-plans/final-contingency-measures-guidance</a>.
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[[Page 5667]]
The EPA disagrees with the commenters that believe that all
requirements associated with an area's prior classification should be
superseded, or that by establishing the system of increasing levels of
nonattainment (i.e., classifications), Congress meant for the elements
of the lower classification to become obsolete upon reclassification.
The CAA provides no language suggesting that reclassification nullifies
the statutory obligations imposed on a state under its former
classification, and commenters provide no explanation of their
perceived statutory argument to support a claim that the elements of
the former classification are no longer required. Another commenter's
assertion that because the EPA would not require elements of
classifications lower than the area's initial classification (e.g., for
an area initially classified as Serious, requiring elements of Moderate
areas), this means that continuing to require elements of lower
classifications after an area has been reclassified imposes duplicative
rather than cumulative requirements is similarly flawed. The mere fact
that an area is reclassified is not a sufficient basis to determine
that a CAA requirement imposed on the area under a prior classification
no longer applies, and there is no language in the statute which
necessitates or supports such a position. The commenters have not
identified how the statutory language supports a finding that elements
of each classification are additive yet not preserved upon
reclassification.
Reclassification to a higher classification is not designed to halt
progress toward achieving the NAAQS under the prior classification, but
rather the opposite. Reclassification is an acknowledgment that an area
needs additional time to attain the NAAQS, and that it needs to
implement more stringent requirements and controls in order to attain.
The cumulative requirements of each classification Congress specified
in the Act--though necessitating a dedication of time and resources by
states--provide an intentional, measurable pathway to attainment. The
purpose of establishing plan requirements for ozone nonattainment areas
is to establish and obligate states to take the most effective steps to
achieve the NAAQS, which include all of those steps outlined in the
sections of part D applicable to ozone from the least stringent
associated with an area's initial classification to the most stringent
associated with its highest classification.
While one commenter claims that requiring a state to submit and
have the EPA act on superseded prior classification elements would make
no logical or practical sense, to the contrary, Congress's choice to
identify steps guiding states toward achieving attainment logically
reflects its intent for each step to count. This is especially true
given the requirement that EPA must reclassify areas with persistent
nonattainment problems, with each successive reclassification resulting
in requirements to adopt more rigorous SIP elements. Under the
commenter's proposed reading, reclassification resets not only the
timing of attainment and the degree of stringency of SIPs required, but
also interrupts and resets--or in some cases cancels--the
implementation of the requirements of the area's former classification.
The steps Congress enshrined in the CAA as appropriate to achieve
attainment would be obsolete, and areas that are further from achieving
the CAA goal of maintaining ambient ozone levels below the threshold
requisite to protect public health and welfare (i.e., the primary and
secondary ozone NAAQS) would be able to skip, or at least delay, steps
that Congress directed them to take. For example, the Serious area RFP
provisions begin in the 6th year after designation and establish
milestones for 3 percent annual reductions for each 3-year period
thereafter.\28\ But the Moderate area RFP provisions require 15 percent
reductions over the first 6 years after designation. Commenters' logic
would make the Moderate requirement obsolete upon reclassification to
Serious, resulting in an interpretation that 15% reductions were no
longer required for the first 6 years the area was nonattainment; only
the Serious area requirement would apply starting in the 7th year.
Clearly this is not consistent with the language or purpose of the RFP
provisions of the statute, which are intended to avoid this kind of
delay in reductions, and this example demonstrates how the commenter's
assertion that such submissions are ``duplicative'' is flawed.
---------------------------------------------------------------------------
\28\ CAA section 182(c)(2)(B) for Serious area provisions and
section 182(b)(1) for Moderate provisions.
---------------------------------------------------------------------------
Under such a reading, it would be fully possible for a state to
elude duties imposed on them under the CAA by waiting until the
attainment date has nearly passed, requesting a voluntary
reclassification, and waiting for the next attainment date to request
an additional voluntary reclassification without planning for, making,
or demonstrating meaningful progress toward achieving the NAAQS.
Congress could not have intended to render the NAAQS and the steps it
prescribed to achieve the NAAQS wholly irrelevant with such a loophole.
Introducing new requirements (e.g., requiring an area initially
classified as Serious to submit elements of Moderate areas) is clearly
distinct from enforcing existing requirements. The CAA does not relieve
a state of its existing requirements upon reclassification, with the
exception of elements inherently tied to the attainment date for the
reasons described elsewhere in this document. Under the EPA's
interpretation, states remain obligated to address requirements
associated with the lower classifications to which they were assigned
even following voluntary reclassification, with the limited exception
of elements directly tied to the attainment date. The consequences
associated with failure to submit elements of a lower classification
remain unchanged upon voluntary reclassification with the limited
exception of elements directly tied to the attainment date.
With respect to the comment asserting that a voluntary
reclassification should moot any sanctions associated with a failure to
submit the SIP elements associated with a prior classification, the EPA
agrees only with respect to the leftover SIP elements that we consider
to no longer be required submissions after a voluntary or mandatory
reclassification, as applicable. Pursuant to CAA section 179(a)(1)-(2),
a finding of failure to submit or final disapproval of a SIP submission
required under part D, title I of the CAA triggers the imposition of
sanctions under CAA section 179(b). See also 40 CFR 52.31. Similarly, a
finding of failure to submit or final disapproval of a required SIP
submission triggers the EPA's obligation to promulgate a Federal
Implementation Plan (FIP) under CAA section 110(c)(1)(B).
Accordingly, if there is currently a FIP and sanctions clock
associated with either (1) a finding of failure to submit, or (2) a
prior disapproval of, a SIP submission that is no longer considered to
be a required submission due to an intervening reclassification, the
EPA would consider the reclassification action to moot the FIP and
sanctions clocks. Similarly, if the EPA disapproves a SIP submission
that is no longer considered to be a required submission due to an
intervening reclassification, there would be no FIP or sanctions clock
associated with a disapproval of that submission.\29\ In
[[Page 5668]]
other words, because a state no longer has a legal obligation to submit
the relevant SIP submissions that are no longer required for the
reasons described in this action, the failure to submit or disapproval
of such submissions would not trigger imposition of mandatory sanctions
under CAA section 179 and 40 CFR 52.31, or a FIP obligation under CAA
section 110(c).
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\29\ CAA section 110(k) requires that the EPA act on any
submitted SIP revision, regardless of whether the submission is
considered to be required to meet applicable CAA requirements. A
state may withdraw a SIP submission, and then EPA considers there to
be no remaining obligation to act on that SIP revision.
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Comment: Four commenters (0036, 0037, 0038, 0039) agree with the
EPA's position on leftover SIP requirements regarding attainment
demonstrations and RACM. However, one commenter (0044) disagrees with
the EPA's position on leftover SIP requirements related to RACM and
urges the EPA not to finalize its proposal that reclassification of a
nonattainment area, whether by mandatory or voluntary reclassification,
excuses the states' obligation to adopt all RACM for the previous
classification. The commenter claims that the plain language of the CAA
establishes RACM as a mandatory part of each nonattainment plan, and
expressly requires that each nonattainment plan implement all RACM. In
addition, the commenter states that the text and structure of the CAA
make clear that the requirement to adopt all RACM is in addition to,
and independent from, the requirement to provide for timely attainment
and there is nothing in the text of the statute suggesting that the
requirement to impose all RACM is predicated on any particular
attainment deadline. Furthermore, to the extent that the EPA believes
that RACM is tied to an attainment date, or only relevant if such
measures can ``advance attainment date by 1 year,'' the commenter
believes that the EPA has failed to articulate how that rationale is
consistent with the plain text of the CAA. Finally, the commenter
claims that the CAA's paramount purpose of protecting public health
supports ensuring that reclassified areas continue to implement all
RACM as expeditiously as practicable, regardless of any new attainment
deadline. Excusing reclassified areas from the CAA's RACM requirements
creates a perverse incentive for states to simply request
reclassification or run out the attainment deadline clock, thereby
avoiding any need to evaluate or impose reasonable pollution reduction
measures.
Response: The EPA agrees with the commenter that the states are
required to submit SIPs addressing RACM for all nonattainment areas
classified as Moderate and above. See 40 CFR 51.1312(c). The EPA
further agrees that this requirement to adopt all RACM is in addition
to, and independent from, the requirement to submit a SIP revision that
includes a demonstration that the SIP will, as revised, provide for
attainment of the NAAQS by the applicable attainment date. However, the
EPA disagrees that there is nothing connecting the CAA requirement to
impose all RACM with the relevant attainment deadline.
As explained in the proposal, in a RACM demonstration a state must
show whether there are any reasonably available control measures that
could advance an area's attainment date beyond the control strategy
associated with the accompanying attainment demonstration. See, e.g.,
80 FR 12264, 12282 (March 6, 2015) (interpreting the Clean Air Act ``to
require a demonstration that the state has adopted all reasonable
measures . . . to meet RFP requirements and to demonstrate attainment
as expeditiously as practicable and thus that no additional measures
that are reasonable available will advance the attainment date of
contribute to RFP for the area.''). The Clean Air Act mandates that SIP
submittals must ``provide for the implementation of all reasonably
available control measures as expeditiously as practicable . . . and
shall provide for attainment of the [NAAQS].'' 42 U.S.C. 7502(c)(1).
Given this inextricable link to advancing attainment beyond what is
included in the attainment demonstrations, the EPA's rules require that
states address RACM as part of their SIP submittal demonstrating that
the nonattainment area at issue will attain the ozone NAAQS no later
than the applicable attainment date. See, e.g., 40 CFR 51.1312(c)
(requiring that ``the state shall submit with the attainment
demonstration a SIP revision demonstrating that it has adopted all RACM
necessary to demonstrate attainment as expeditiously as practicable and
to meet any RFP requirements.''). While the commenter possibly
disagrees with the EPA's longstanding interpretation of RACM, in the
current rulemaking, the EPA is not reopening its ozone implementation
regulations or the interpretations of nonattainment planning
requirements contained therein.
The EPA's interpretation of RACM is longstanding. For example, the
EPA wrote in the General Preamble, dated April 16, 1992, 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.\30\ The EPA similarly explained in a 1979 rule the
interpretation that RACM should be implemented ``insofar as necessary
to assure reasonable further progress and attainment by the required
date.'' \31\
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\30\ 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).
\31\ 44 FR 20372, 20375 (April 4, 1979).
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Thus, when this interpretation of RACM is applied to the situation
at issue in this rule, the outcomes are clear. For a mandatory
reclassification, where the former classification's attainment date is
in the past and was not met, it is not possible or meaningful for a
state or the EPA to consider whether control measures could advance
attainment earlier than the already past attainment date. Similarly,
following voluntary reclassification of an area, there is no sense in
assessing whether a former attainment date could have been met sooner.
In either case, if a state were to submit a RACM analysis for the lower
classification, that analysis would be tailored to the already-passed
or former attainment deadline for the lower classification. When a
state submits a SIP containing an attainment demonstration and RACM
prior to the attainment date, the Act is clear about what the EPA must
do. The EPA must determine whether the state has demonstrated that the
area will attain by the applicable attainment date and whether the
state has adopted all reasonable measures that would advance that date.
However, this is not appropriate when the applicable attainment date
has already come and gone--or has moved following a voluntary
reclassification.
In this scenario, states are not avoiding being held accountable
under the Clean Air Act. For areas that fail to attain and are
mandatorily reclassified, states must implement contingency measures
for failure to attain by the attainment date. In all situations, while
reclassification allows states time to submit a RACM analysis with
respect to the new classification level, the new classification imposes
added, more stringent obligations on the state.
If the EPA were to require a state to submit a RACM analysis for
the former classification after an area is reclassified, it would lead
to one of two illogical outcomes. One possibility is that the state
would be required to submit a RACM analysis pertaining to an already
passed or already supplanted attainment date. Such submissions
[[Page 5669]]
would not support the goals of the Act and would have no beneficial
impact on nonattainment areas' success in attaining by or advancing the
no longer relevant attainment date. As already discussed, a RACM
analysis is intended to determine what measures can reasonably be
adopted to advance the attainment date, but such an attainment date
cannot be advanced once an area has failed to attain, or the attainment
date no longer exists. The alternative is that a RACM analysis is
required for the former classification level, but it would be an
analysis conducted with respect to the new applicable attainment date
for the higher classification level. This would then require the state
to submit a RACM analysis with its lower classification plan, due by a
lower classification deadline, but analyzing a brand-new attainment
date. States are already required to submit a RACM analysis with
respect to the higher classification level and for the higher
classification attainment date. The EPA has declined to follow either
of these approaches.
Accordingly, following reclassification, a RACM analysis must be
done with respect to the new and currently applicable attainment date.
The CAA does not require RACM analysis for attainment dates associated
with any classification that is not currently applicable to the area.
Comment: One commenter (0042) disagrees with the EPA's assertion
that RACT requirements are not tied to the attainment date and
therefore are not mooted for a prior classification upon
reclassification. The commenter contends that because CAA section
182(b)(2)(A) requires that states implement RACT for all categories of
sources covered by a CTG document issued before the date of attainment,
there is a clear statutory connection of the RACT review to the
attainment date. The commenter argues that because the EPA sets RACT
implementation deadlines based on the attainment year, this evidences
that that EPA bases RACT requirements on the attainment deadline. The
commenter also notes that because higher classification levels have a
lower major source threshold for RACT, RACT SIP submissions for a
higher classification level would necessarily cover RACT determinations
for a lower classification level, thus eliminating the need for a
submittal to address RACT for the prior classification.
Response: The EPA disagrees with the commenter. For reclassified
areas, the RACT requirements at 40 CFR 51.1312(a)(2)(ii) and (3)(ii)
obligate a state to conduct a new, individual RACT analysis for the new
classification and implement any identified measures as necessary.
Reclassification does not relieve the RACT obligation for the prior
classification. The CAA requirement in section 182(b)(2) to implement
RACT for specified categories of sources is implemented and assessed
based on whether the RACT rules are implementing what is economically
and technologically feasible and is not based on reductions needed to
attain by the attainment deadline.
We disagree that CAA section 182(b)(2)(A) provides a statutory
connection of RACT to the attainment date. Section 182(b)(2)(A) states
that RACT requirements apply to each category of sources covered by a
CTG document issued by the Administrator between November 15, 1990,
``and the date of attainment.'' This language establishes the sources
covered by the RACT analysis that a Moderate or higher area must
consider. The reference to the attainment date sets an outer bound of
what CTGs will define the categories of sources that fall under the
Moderate RACT requirement. It does not tie the substantive RACT
analysis, and the level of controls required by the application of
RACT, to the attainment date.
We also disagree that the stationary source threshold set by the
classification level evidences a connection between RACT and the
attainment date. Just as 182(b)(2)(A) defines the categories of sources
that need to be covered by a RACT assessment so too the stationary
source threshold associated with a classification level defines the
sources that need to be covered in the state's RACT assessment. The
stationary source threshold establishes the emission levels where RACT
would be applied but does not define the substance or content of the
RACT analysis. For example, for an area reclassified from Moderate to
Serious, the prior Moderate classification would require evaluation of
any sources in any category subject to a CTG and any non-CTG sources
with a potential to emit more than 100 tons per year (tpy) of
NO<INF>X</INF> or VOCs. The commenter is correct in that the new
Serious classification means the state needs to address RACT for
additional sources, namely non-CTG sources with a potential to emit 50
tpy or more of NO<INF>X</INF>. But the commenter has failed to explain
why this fact--that RACT must be analyzed and implemented for
additional smaller sources--should, upon reclassification, result in
delayed implementation of RACT for the original set of sources covered
by the prior classification. If the EPA were to adopt such an
interpretation, it would delay the implementation of RACT for several
years in an area that is not attaining the ozone NAAQS, as each
successive reclassification halts the submission and/or implementation
of (as well as EPA action on) the RACT requirement as it applied to the
former classification. This would lead to a delay in required controls
in areas that have air quality that exceeds levels protective of human
health and the environment, particularly when compared to an area that
was initially classified at the higher level, where technologically and
economically feasible controls would be implemented by January 1 of the
5th year following designation as nonattainment. The commenter has not
identified any language in the CAA that necessitates or even supports
such a result.
Finally, the commenters point to the fact that the EPA has based
RACT implementation deadlines on the timing required to influence
attainment of the standard by the attainment date. This is a correct
characterization of several, although not all, of the EPA's actions,
but also does not inevitably lead to an interpretation that required
SIP revisions and RACT implementation should be delayed by several
years following an area's reclassification. As explained, the
substantive analysis required in a RACT SIP, namely the implementation
of controls that are economically and technologically feasible, does
not hinge on what level of control is needed for the area's attainment
by the attainment date (this is in contrast to, e.g., the analysis
required for RACM). A state's RACT SIP should be based on, and the EPA
will review it for, imposition of reasonably available control
technology, even if that imposition of reasonably available control
technology is not nearly enough to get the area to attainment by the
attainment date. At the same time, it is also true that implementation
of RACT-level control should aid, at least in part, in getting an area
to attainment by the attainment date. Accordingly, both of these things
can be true: that RACT is not a requirement directly tied to the
attainment date while also requiring that RACT SIPs be due and RACT-
level controls be implemented in time to matter for the overall efforts
to get an area to attainment.
Comment: Three commenters (0037, 0038, 0039) agree with the EPA's
position on leftover SIP requirements regarding contingency measures
for failure to attain. However, two commenters (0030, 0044) disagree
with the EPA's proposal insofar as it does not require contingency
measures for areas that request and receive voluntary
[[Page 5670]]
reclassification before the attainment date. They recommend that the
EPA continue to require contingency measures for failure to attain for
such areas, to be implemented when states request voluntary
reclassifications prior to the attainment date.
One commenter (0030) notes that requiring contingency measures for
failure to attain for states that request a voluntary reclassification
will ensure they are not just extending their SIP submission and
implementation deadlines, and claims that allowing such an extension
would promote prolonged periods of nonattainment for ozone and
negatively impact health. This commenter also cautions that the EPA
should be wary of states who request a reclassification as a means to
delay such deadlines.
Similarly, another commenter (0044) disagrees with the EPA's
position that, for voluntary reclassifications that are effective
before the attainment date, contingency measures are not triggered
because the EPA is not required to make a determination of whether the
area attained by its attainment date. The commenter asserts that the
plain language of the CAA provides that contingency measures are
triggered if the area did not attain by the attainment date, not
whether the EPA made a finding of such, and the fact that the EPA will
not make such a determination is not relevant. The commenter further
asserts that, if a voluntary reclassification becomes effective after
the attainment date, the EPA similarly has no authority to remove the
requirement to have contingency measures because CAA sections 172(c)(9)
and 182(c)(9) do not say that contingency measures are triggered after
the EPA ``determines'' or ``makes a finding.'' The commenter also notes
that if the reclassification occurs before but becomes effective after
the attainment date, then the previous classification attainment date
applied on the effective date because the area was still that previous
classification on that date. The commenter recommends, at a minimum,
that the EPA should change the word ``occurred'' to ``became
effective'' in proposed 40 CFR 51.1403(a)(3) because before the rule
granting the voluntary bump up request becomes effective, the
applicable attainment date is for the lower classification. Lastly, the
commenter takes issue with the EPA's statement in the proposal that
``Requiring a state to submit or the EPA to act on such SIP elements
would make no logical or practical sense,'' and asserts that it is both
practical and logical for the EPA to require contingency measures to be
implemented following a reclassification.
On the contrary, one commenter (0036) urges the EPA to not require
contingency measures for failure to attain as a leftover SIP
requirement after any reclassification (voluntary or mandatory). The
commenter believes that the EPA's justification for requiring these
contingency measures only for mandatory reclassifications by attempting
to draw a clear distinction between two scenarios is flawed. Under the
first scenario, a state requests a voluntary reclassification after its
attainment year, but before its attainment date, and, under the second
scenario, a state waits to have the EPA take its mandatory action to
reclassify the area, which occurs after the attainment date has passed.
The commenter asserts that while these situations would appear to be
very different, they are both based on the recognition that the area's
attainment year ozone data shows that the area will not attain the
NAAQS, which is publicly available in uncertified form no later than
December 31 of the attainment year and, in certified form, by May 1 of
the following year. Both the uncertified and certified data are
available well in advance of the attainment dates of the 2015 ozone
NAAQS. In other words, both situations are predicated on the
recognition that the area will fail to attain the standard by its
attainment date, whether this failure to attain has been officially
acknowledged by the EPA through a mandatory finding, or not. The
commenter claims that, because these situations are identical in
practice, there should be no difference in how the contingency measure
requirement for failure to attain applies.
Response: The EPA disagrees with the commenters' contention that
the Agency should implement contingency measures for failure to attain
when states request voluntary reclassifications before the prior
classification's attainment date has passed. Considering the case where
the state requests, and the EPA approves, a reclassification before the
attainment date, there would be no trigger for the implementation of
contingency measures where there is no finding of failure to attain
because the applicable attainment date has changed. When the area is
voluntarily reclassified before the attainment date, the EPA is no
longer required to--and cannot--determine whether the area attained by
the former attainment date. Once voluntarily reclassified, the area no
longer has the attainment date associated with the prior classification
level. Because the EPA would not--and could not--issue a finding of
failure to attain with respect to the prior, no longer existing
attainment date, requiring a state to submit contingency measures for
failure to attain by the attainment date associated with the previous
classification would no longer have logical significance because such
measures could not be triggered. With respect to the commenter's
related assertion that contingency measures should be triggered by
something other than the EPA's issuance of a finding of failure to
attain (i.e., by the voluntary reclassification itself), this is
contrary to the EPA's longstanding interpretation of what triggers the
requirement to implement contingency measures.\32\ As articulated in a
number of finding of failure to attain actions, the EPA's determination
of a failure to attain triggers the requirement to implement
contingency measures.\33\ States have full discretion to request
voluntary reclassification for any reason, and there is no statutory
basis to require states to implement contingency measures based on such
a request. However, reclassification does trigger the requirement to
submit new contingency measures for failure to attain by the new
classification's attainment date. States are also still required to
have contingency measures available to implement in the event the area
fails to meet any RFP milestone associated with the current of former
classification.
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\32\ See Joseph Goffman, Guidance on the Preparation of State
Implementation Plan Provisions that Address the Nonattainment Area
Contingency Measure Requirements for Ozone and Particulate Matter,
December 3, 2024, at 3, available at <a href="https://www.epa.gov/air-quality-implementation-plans/final-contingency-measures-guidance">https://www.epa.gov/air-quality-implementation-plans/final-contingency-measures-guidance</a>.
\33\ See, e.g., 87 FR 21825, 21828 (April 13, 2022).
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The EPA agrees with the commenter that the effective date of the
voluntary reclassification is governing with respect to whether
contingency measures for failure to attain by the previous attainment
date are required. If a voluntary reclassification becomes effective
after the attainment date associated with the lower classification
level, the EPA would be obligated to determine whether the
nonattainment area attained by the attainment date associated with the
prior, lower classification. In such a case, states would be required
to implement contingency measures for any failure to attain by the
attainment date associated with the prior classification level.
Therefore, the EPA has adjusted the regulations finalized herein as
commenter suggested, specifically changing the word ``occurred'' to
``became effective'' in 40 CFR 51.1403(a)(3).
[[Page 5671]]
The EPA disagrees with the commenter that contingency measures for
failure to attain should not be required for an area that has, in fact,
failed to attain the ozone NAAQS by the applicable attainment date and
was subsequently reclassified. Such a result is directly contrary to
the plain text of the CAA. CAA section 172(c)(9) requires that states
provide, as part of their SIPs, ``implementation of specific measures
to be undertaken if the area fails . . . to attain the [primary NAAQS]
by the attainment date.'' \34\ It is the direct effect of the CAA text
that states are required to have contingency measures that can be
implemented when an area has failed to attain the NAAQS by the area's
attainment date. It would be directly contrary to the statute to
determine that such contingency measures are not required for an area
that meets this exact fact pattern. The EPA disagrees with the
commenter's premise that voluntary and mandatory reclassifications
should be treated the same because they are situated the same
factually, specifically that voluntary reclassifications are always
requested based on data that shows an area will not attain by the
applicable attainment date. Voluntary reclassifications are provided as
a result of a state's request, and the state does not need to request
reclassification based on data indicating an area may not attain by the
applicable attainment date; it has full discretion to request such a
reclassification at any time, including in advance of such data
becoming available. 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.''
The grant of voluntary reclassification is not premised upon any
particular reasoning as to why the state may request reclassification,
and there is no statutory basis for the EPA to require contingency
measures tied to a failure to attain to be triggered based on such a
request.
---------------------------------------------------------------------------
\34\ 42 U.S.C. 7502(c)(9).
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Comment: One commenter (0041) recommends that the EPA treat RFP
requirements and contingency measures for RFP in the same manner as
RACM and contingency measures related to a failure to attain because
such requirements are related to attainment of the ozone NAAQS. The
commenter states that RFP reductions are linked to attainment because
CAA section 182(b)(1)(A) refers to RFP reductions as being ``necessary
to attain the national primary ambient air quality standard.'' In
addition, the commenter asserts that it would be entirely illogical for
Congress to impose requirements on states through subpart 2 that were
not, in some fashion, directly or indirectly linked to attainment of
air quality standards.
Response: The EPA agrees that all subpart 2 requirements are
related, in some fashion, to areas' attainment of the ozone NAAQS, but
commenters' assertions that RFP is directly tied to the attainment date
is inconsistent with the RFP requirements established in the
implementing regulations for the 2015 ozone NAAQS and the EPA's
longstanding interpretation of RFP for ozone nonattainment areas.
Moderate and higher ozone nonattainment areas are subject to the
general requirements for nonattainment plans in CAA subpart 1 and the
specific requirements for ozone areas in CAA subpart 2, including the
requirements related to RFP and attainment. While CAA section 172(c)(2)
of subpart 1 states only that nonattainment plans ``shall require
reasonable further progress,'' CAA sections 182(b)(1) and 182(c)(2)(B)
of subpart 2 provide specific percent reduction targets for ozone
nonattainment areas to meet the RFP requirement. Put another way,
subpart 2 defines RFP for ozone nonattainment areas by specifying the
incremental amount of emissions reduction required by set dates for
those areas.\35\ Importantly, these set dates are independent of the
attainment date. Although the dates may coincide with a particular
attainment date, the required RFP date(s) associated with the lower
classification do not change when the attainment date changes as a
result of reclassification. For Moderate ozone nonattainment areas, CAA
section 182(b)(1) defines RFP by setting a specific 15 percent VOC
reduction requirement over the first 6 years of the plan. The 15
percent reduction is ``the base program that all Moderate and above
areas must meet. This base program is necessary to ensure actual
progress toward attainment in the face of uncertainties inherent with
SIP planning.'' \36\
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\35\ CAA section 171(1) defines RFP as ``such annual incremental
reductions in emissions of the relevant air pollutant as are
required by this part or may reasonably be required by the
Administrator for the purpose of ensuring attainment of the
applicable national ambient air quality standard by the applicable
date.'' The words ``this part'' in the statutory definition of RFP
refer to part D of title I of the CAA, which contains the general
requirements in subpart 1 and the pollutant-specific requirements in
subparts 2-5 (including the ozone-specific RFP requirements in CAA
sections 182(b)(1) and 182(c)(2)(B) for Serious areas).
\36\ 57 FR 13498, 13507 (April 16, 1992).
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For Serious or higher ozone nonattainment areas, the 15 percent
requirement still applies, and section 182(c)(2)(B) further requires
specific annual percent reductions for the period following the first
6-year period and allows averaging over a 3-year period. With respect
to the 1-hour ozone NAAQS, the EPA has stated that, by meeting the
specific percent reduction requirements in CAA sections 182(b)(1) and
182(c)(2)(B), the state will also satisfy the general RFP requirements
of section 172(c)(2) for the time period discussed.\37\
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\37\ See 57 FR 13498, 13510 (April 16, 1992) (for Moderate
areas), 13518 (for Serious areas).
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The EPA has adapted the RFP requirements under the CAA to implement
the three 8-hour ozone NAAQS that have been promulgated since the 1990
CAA Amendments. In the ``Phase 2'' SIP Requirements Rule for the 1997
Ozone NAAQS (Phase 2 rule), see 70 FR 71612 (November 29, 2005), the
EPA adapted the RFP requirements of CAA sections 172(c)(2) and
182(b)(1) to require plans to provide for the minimum required percent
reductions and, for certain Moderate areas, to provide for the
reductions as necessary for attainment.\38\
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\38\ See, e.g., 40 CFR 51.910(a)(1)(ii)(A), (b)(2)(ii)(C).
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In 2015, the EPA replaced the regulations promulgated through the
Phase 2 rule with the regulations promulgated through the 2008 Ozone
SIP Requirements Rule (SRR). 80 FR 12264 (March 6, 2015).\39\ In the
2008 Ozone SRR, the EPA established RFP requirements for the 2008 ozone
NAAQS that are similar, in most respects, to those in the Phase 2 rule
for the 1997 ozone NAAQS but that do not define RFP for certain
Moderate areas in terms of the reductions needed for attainment by the
attainment date.\40\ More explicitly, in the 2008 Ozone SRR, the EPA
defined RFP as meaning both the ``emissions reductions required under
CAA section 172(c)(2) which the EPA interprets to be an average 3
percent per year emissions reductions of either VOC or NO<INF>X</INF>
and CAA sections 182(c)(2)(B) and (c)(2)(C) and the 15 percent
reductions over the first 6 years of the plan and the following three
percent per year average under 40 CFR 51.1110.'' See 40 CFR 51.1100(t).
Thus, under the 2008 Ozone SRR, the RFP emissions reductions required
for Serious or higher ozone nonattainment areas under CAA section
172(c)(2) are
[[Page 5672]]
based on a set annual percentage found in the CAA, not on the specific
needs for the area to attain by the attainment date. In this regard,
the EPA has been even more explicit in our SRR for the 2015 ozone
NAAQS: ``Reasonable further progress (RFP) means the emissions
reductions required under CAA sections 172(c)(2), 182(c)(2)(B),
182(c)(2)(C), and 40 CFR 51.1310. The EPA interprets RFP under CAA
section 172(c)(2) to be an average 3 percent per year emissions
reduction of either VOC or NO<INF>X</INF> 40 CFR 51.1300(l).
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\39\ Under 40 CFR 51.919 and 51.1119, the regulations
promulgated in the 2008 ozone SRR replaced the regulations
promulgated in the Phase 2 rule, with certain exceptions not
relevant here.
\40\ Compare RFP requirements for the 1997 ozone NAAQS at 40 CFR
51.910(a)(1)(ii)(A) and (b)(2)(ii)(C) with the analogous provisions
for the 2008 ozone NAAQS at 40 CFR 51.1110(a)(2)(i)(B).
---------------------------------------------------------------------------
Thus, the SRR for the 2015 ozone NAAQS defines RFP in terms of
percent reduction from the area's emissions in the baseline year, not
in terms of the reductions necessary for attainment by the attainment
date. In other words, for the 2015 ozone NAAQS, the requirement to
demonstrate RFP is independent of the requirement to demonstrate
attainment by the attainment date. RFP for the 2015 ozone NAAQS
represents the minimum progress that is required under the CAA and our
regulations, and does not necessarily need to provide for the
reductions necessary to achieve attainment of the ozone NAAQS by the
attainment date, which could vary largely from one nonattainment area
to another. For all of these reasons, the EPA disagrees with
commenter's claim that RFP should be treated the same as the Moderate
area attainment demonstration, RACM, and contingency measures for
failure to attain. The EPA's explanation for why those three particular
SIP elements are no longer required following a reclassification does
not apply to the Moderate area RFP SIP element. Unlike the other three
SIP elements, RFP is not directly tied to the applicable attainment
deadline as explained earlier.
Moreover, the SRR for the 2015 ozone NAAQS lists RFP and ROP as
distinct provisions for implementation.\41\ These provisions clearly
demonstrate the necessity for RFP reductions during the first 6 years
of the plan, regardless of the area's initial classification, or
whether it was Moderate before being reclassified as Serious, whether
voluntarily, or mandatorily.
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\41\ See, 40 CFR 51.1300(l), 51.1300(m), 51.1310(a)(2)(i) and
51.1310(a)(4)(i).
---------------------------------------------------------------------------
Because it is not appropriate after an area reclassification to
treat RFP the same as the attainment demonstration, RACM, and
contingency measures for failure to attain, it necessarily follows that
contingency measures for failure to make RFP would also still be
required for a failure to meet an RFP target associated with the lower
classification after reclassification. If it is appropriate to still
require SIP submissions addressing RFP for the prior classification,
then it follows that the EPA will require states to have contingency
measures in place that would be triggered for failure to meet those RFP
milestones.
Comment: One commenter (0042) urges the EPA to update its proposal
to note that if states can demonstrate their RFP targets have been met
for reclassified areas, the requirement to submit RFP contingency
measures for the prior classification would be unnecessary.
Response: The EPA acknowledges that there may be certain unideal
situations where the state has not yet submitted, or the EPA has not
yet approved, contingency measures for the prior classification, but
the state has nonetheless demonstrated that all RFP milestones
associated with the prior classification have been met. Where the EPA
has determined that demonstration to be adequate, the question of
whether the state has adequate contingency measures for failure to meet
RFP with respect to that milestone can be moot. This situation is
unideal because the CAA is not designed to operate this way with
respect to timing, and these situations typically arise because the
state is overdue for submitting approvable contingency measures. Under
normal CAA timelines, the contingency measures submittal and the EPA
approval should occur before the RFP milestone arrives so that the
contingency measures could be triggered if the area fails to meet RFP.
States should not delay submittal of required contingency submittals in
the hopes that they may become moot at a later time. Such an approach
contravenes the statutory timelines established by the CAA, and the
intent of the contingency measures requirement. If this situation
arises and the RFP milestone is not met, the CAA requires
implementation of contingency measures without further action by the
state or the EPA. That requirement cannot be met on time if the
contingency measures submittal is delayed.
However, under the unusual circumstances in which the EPA
determines the prior classification's RFP reduction targets were met
before the state makes its overdue submittal to satisfy the prior
classification's requirement for contingency measures for failure to
meet RFP, the EPA believes that no submittal of contingency measures
for a potential failure to meet the prior classification's RFP targets
would be necessary.\42\
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\42\ The EPA notes that we articulated this position in a recent
action. See 87 FR 67957, 67960 (October 3, 2023) (``EPA agrees with
TCEQ that there is no longer a need for contingency measures
triggered by failure to meet RFP for the DFW and HGB Serious
nonattainment plan for purposes of the 2008 8-hour ozone NAAQS,
because these areas met RFP for this specific classification.'').
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As discussed elsewhere in this document, with a voluntary
reclassification there will be no possibility of failure to attain by
the attainment date associated with the previous classification, and so
the voluntary reclassification negates the need for contingency
measures for failure to attain. Further, if a state has provided any
applicable RFP demonstration(s) associated with the previous
classification and the EPA has determined those demonstrations to be
adequate, this would negate the need to submit the contingency measures
for failure to meet the RFP milestones associated with the previous
classification, thus resulting in mooting the previous classification's
contingency measures requirement entirely.
Comment: One commenter (0036) recommends that the requirement to
continue to address leftover SIP requirements from prior
classifications should apply no matter if the reclassification is
voluntary or mandatory. The commenter notes that, in this context, the
method of reclassification makes no difference. The commenter claims
that a state must also be prevented from repeatedly requesting a
voluntary reclassification right before each attainment date, a
strategy that would delay indefinitely, at least until Extreme
classification is reached, the need for the state to submit any ozone
SIP or implement any ozone control program. The commenter claims that
this outcome is clearly contrary to the CAA and undermines the very
purpose of having defined regulatory requirements for nonattainment
areas.
Response: The EPA generally agrees with the commenter, and the
EPA's interpretation regarding which SIP elements remain due related to
a prior, lower classification level is largely consistent for voluntary
and mandatory reclassifications. The only distinction between
requirements that remain due for a voluntary versus mandatory
reclassification is with respect to contingency measures to failure to
attain. As explained in more detail in a prior response to comments,
the EPA's distinction for the contingency measure requirement is
appropriate given that in the context of a mandatory reclassification,
a nonattainment area
[[Page 5673]]
has failed to attain by the attainment date, thereby triggering
contingency measures for that failure to attain. This is completely
distinguishable from a voluntary reclassification that becomes
effective prior to a nonattainment area's attainment date, where that
date is superseded and replaced by the new attainment date related to
the new classification level.
The issue of how often and when a state may request a voluntary
reclassification for a nonattainment area is beyond the scope of this
action. The EPA takes separate actions, independent from this rule, in
response to states' requests for voluntary reclassifications. The
commenter may look to those actions for the EPA's position on the
issue, and has the opportunity to seek judicial review of those actions
if it disagrees with the EPA's approach.
Comment: One commenter (0042) asserts that, in cases where States
satisfy certain required elements with the submittal of certification
statements noting that the requirements have already been addressed
(which is commonly used for addressing I/M and NNSR requirements), it
is illogical to hold areas under a finding of failure to submit for
elements that have already been submitted and approved under previous
classifications or standards. The commenter feels that submittal of a
certification statement is not legally necessary for the EPA to know
that an element, upon which the EPA has already acted and approved, has
been addressed, as the EPA's SIP approval actions legally stand on
their own merit. In addition, the commenter notes that the
infrastructure SIP submittal requirements for each NAAQS already
provide certification from the state that existing regulations are
adequate to meet the applicable nonattainment area planning
requirements.
Response: The EPA understands the commenter as arguing that states
should not be required to provide a SIP submission in instances where a
state has previously provided, and the EPA approved, a SIP submittal
addressing a SIP requirement for a lower classification or earlier
ozone NAAQS. This comment is outside the scope of the rulemaking and
therefore the comment is not substantively adverse to the action taken
herein. As a result, a response to this comment is not required.
Although this issue was not discussed in the proposal for this rule,
the Agency notes that this issue has been addressed at length in
previous rulemakings, including recently with relation to the 2015
ozone NAAQS. See, e.g., 83 FR 62998, 63002. The Agency further notes
that the commenter's characterization that infrastructure SIP submittal
requirements relate to nonattainment area planning requirements is
incorrect. See Stephen D. Page, Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2), September 13, 2013, at 52, available at
<a href="https://www.epa.gov/sites/default/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf">https://www.epa.gov/sites/default/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf</a> (explaining that the submission deadline for infrastructure SIPs
under CAA section 110(a) do not apply to nonattainment areas, because
SIP submissions for designated nonattainment areas ``are subject to a
different submission schedule than those for section 110 infrastructure
elements'').
Comment: One commenter (0044) notes that proposed 40 CFR 51.1403(a)
mistakenly contains two paragraph 2's. The second, which begins ``If
the reclassification occurred prior to the former attainment date,''
should be adjusted to be paragraph 3.
Response: The EPA agrees with the commenter that the cited proposed
regulatory text was a mistake, and the EPA has modified the final
regulations to reflect the corrected numbering.
C. Serious Area SIP Revisions for the 2015 Ozone NAAQS
1. Summary of Proposal
The EPA proposed to apply its default deadlines to states with
newly reclassified Serious areas under the 2015 ozone NAAQS. Those
default deadlines, as applied to reclassified Serious areas under the
2015 ozone NAAQS, require such states to submit SIP revisions for those
areas, including revisions for RACT needed to achieve attainment of the
standards by the attainment date, no later than 18 months after the
effective date of the relevant reclassification notice or January 1,
2026, whichever is sooner. The EPA also proposed that the default
implementation deadlines for RACT and Enhanced I/M would apply to
reclassified Serious areas under the 2015 ozone NAAQS. Thus, such areas
would be required to implement RACT by 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. In addition, for
states that do not intend to rely upon emission reductions from their
Enhanced I/M program in attainment or RFP SIPs, we proposed to allow
Enhanced I/M programs to be fully implemented no later than 4 years
after the effective date of reclassification.\43\
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\43\ The EPA did not propose 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. See 87 FR 60897, October 7, 2022, at 60900.
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2. Final Rule
The EPA is finalizing the default SIP submittal and implementation
deadlines for reclassified ozone nonattainment areas as proposed, and
thus such deadlines would apply to areas reclassified as Serious under
the 2015 ozone NAAQS. Below we address comments regarding the proposed
deadlines insofar as they specifically concerned the application of
those deadlines to reclassified Serious areas under the 2015 ozone
NAAQS.
3. Comments and Responses
a. Due Date for Serious Area SIP Revisions and RACT Implementation
Comment: One commenter (0032) believes that the EPA's proposed
default SIP submission deadlines are insufficient for nonattainment
areas reclassified as Serious under the 2015 ozone NAAQS. The commenter
notes that rulemaking to lower thresholds from 100 tpy to 50 tpy takes
a substantial amount of time, and it is unreasonable to expect that
newly regulated entities will be able to prepare a RACT SIP submittal,
install controls, and come into compliance by January 1, 2026. In
addition, the commenter believes that the proposed RACT implementation
deadline is not realistic. Even if states currently have regulations
ready, only a reclassification could trigger the requirement for RACT
implementation, which the commenter believes will not occur until
December 31, 2024, providing only 1 year to prepare a RACT study,
install controls, and implement RACT. The commenter further provides
that the EPA has not reclassified the areas, and many states have no
authority to begin the arduous process of rulemaking until a Federal
action triggers that requirement.
Response: The EPA acknowledges that the new Serious source
threshold may present difficulties for some states in developing a RACT
SIP submittal by January 1, 2026. However, as stated in the proposal, a
SIP submission deadline of the earlier of 18 months from the effective
date of reclassification or January 1, 2026 (January 1 of the
attainment year) will allow Serious area control measures to influence
attainment by the Serious area attainment date while also balancing the
need for a consistent submission
[[Page 5674]]
deadline among the various Serious area SIP requirements per CAA
section 182(i). The outer boundary of January 1, 2026, for states to
submit their Serious area SIP revisions applies equally across areas
for which an 18-month deadline is not possible and 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.
To the extent the commenter is concerned that regulated entities
will not be able to install controls and come into compliance prior to
January 1, 2026, the EPA notes that we proposed, and are finalizing, a
RACT implementation deadline for any nonattainment areas reclassified
as Serious under the 2015 NAAQS that provides for implementation as
expeditiously as possible, but no later than 18 months from the RACT
submission deadline or the beginning of the 2026 ozone season,
whichever is earlier. For some nonattainment areas that will 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. By structuring the default deadlines as ``the earlier of''
an outside timeframe (e.g., 18 months) or a specific date (e.g., the
beginning of the 2026 ozone season), the EPA is maximizing time for SIP
development, adoption, and submission, while still ensuring that
controls are adopted into the SIP and implemented in time to influence
attainment of the NAAQS by the attainment date.
We acknowledge again that meeting this SIP submission deadline will
be challenging for many states. However, to the extent that commenters
suggested that states can only initiate SIP development activities only
after the EPA finalizes its area reclassifications, we disagree. There
are proactive and voluntary pathways by which states can anticipate and
manage the tight timeframes to develop required SIP revisions for
reclassified nonattainment areas, including early planning and
voluntary reclassification. The EPA is aware that many states with
areas affected by this current action may be constrained in finalizing
rulemakings that require additional emissions controls unless the state
air agency can demonstrate such controls were mandated by an underlying
Federal requirement (e.g., required pursuant to a mandatory area
reclassification). However, to our knowledge, most states with affected
areas are not prohibited from starting their SIP development activities
before the EPA finalizes this current action, particularly because all
of those areas are already required under the CAA to attain the 2015
ozone NAAQS. As we noted in prior attainment determination and
reclassification actions for the 2008 and 2015 ozone NAAQS, states with
nonattainment areas that were proposed for reclassification had known
with a reasonable amount of certainty that revised SIPs would be due in
the near future to provide for expeditious attainment of the 2008 and
2015 ozone NAAQS, and had the opportunity to make progress on plan
development activities before issuance of the final actions.\44\ That
remains true for this current action, where states with affected
Moderate areas have been aware of preliminary 2021-2023 DVs since at
least December 2023 and certified 2021-2023 DVs since May 2024, showing
that the areas were not going to timely attain and would be
reclassified under the CAA. These states, therefore, could have
reasonably anticipated that SIP revisions for reclassified Serious
areas would be due in the near future, consistent with the CAA and
previous EPA determination and reclassification actions. Nonetheless,
the EPA recognizes the challenges posed by the SIP submission and RACT
implementation deadlines being finalized as part of this rule, and is
committed to working closely with states to help them as they prepare
SIP revisions in a timely manner.
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\44\ See, 84 FR 44238, 44246 (August 23, 2019); 87 FR 60897,
60909 (October 7, 2022).
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Comment: One commenter (0036) recommends that the deadlines and
requirements set by the EPA for 2015 ozone NAAQS areas reclassified to
Serious should be consistent with those established by the EPA in its
June 2024 Texas area reclassification rule (89 FR 51829, June 20,
2024). The commenter notes that many of the same issues and options in
this proposed rule were also contemplated in the June 2024 rulemaking.
The commenter further provides that aligning SIP deadlines and
requirements would also benefit state attainment planning efforts by
facilitating the use of area-agnostic technical products (such as
attainment modeling and control measure analyses) and encouraging
interstate attainment planning coordination.
Response: As commenter notes in its letter, the deadlines and
requirements that the EPA is finalizing are consistent with those the
EPA finalized in its June 2024 rule reclassifying three Texas areas
from Moderate to Serious under the 2015 ozone NAAQS.\45\
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\45\ 89 FR 51829 (June 20, 2024).
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Comment: One commenter from Delaware (0033) requests that the EPA
finalize a SIP submittal deadline of March 1, 2026, for Delaware's 2015
ozone NAAQS Serious attainment plan SIP. March 1, 2026, marks the
beginning of Delaware's attainment year ozone season, and establishing
a SIP submittal deadline that aligns with the attainment year ozone
season will allow Delaware sufficient time to research and prepare a
thorough and comprehensive SIP revision as well as time to complete the
required SIP revision submittal process. The commenter further provides
that March 1, 2026, is a more reasonable time frame because of
Delaware's complex and lengthy regulatory process, lack of feedback
from the EPA on contingency measures, and absence of resources
available for Delaware to calculate contingency measure reductions.
Another commenter from Colorado (0040) requests that the EPA grant
Colorado the flexibility to submit its Serious SIP revision sometime
after February 15, 2026, or, in the alternative, allow Colorado to
submit it as a provisional and non-binding submission that will
automatically be converted to a final submission for final approval
after February 15, 2026. The commenter notes that the EPA granted
Colorado's request for voluntary reclassification from Moderate to
Serious on July 24, 2024. The EPA's proposed default SIP submittal
deadlines would require Colorado to submit its Serious SIP for the 2015
ozone NAAQS to the EPA no later than January 24, 2026. However, due to
Colorado's legislative process and the late timing of the EPA's rule,
the commenter will be unable to submit the necessary SIP revisions by
the EPA's proposed deadline.
Response: In Section II.A. of the proposal, the EPA articulated
that, ``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'' (emphasis added). 89 FR 80833,
80834 (October 4, 2024). The EPA did not propose to establish different
SIP submittal or implementation deadlines for any specific
nonattainment areas. Any such adjustment would need to be done in a
separate notice-and-comment rulemaking. Therefore, the SIP
[[Page 5675]]
submission deadline that will apply to all nonattainment areas
reclassified as Serious under the 2015 ozone NAAQS, including areas
within Delaware and Colorado, will be the earlier of 18 months from the
effective date of reclassification or January 1, 2026, unless otherwise
established in a future notice-and-comment rulemaking.
In the case of Delaware, the EPA granted the state's request for a
voluntary reclassification of the Philadelphia-Wilmington-Atlantic
City, Pennsylvania-New Jersey-Maryland-Delaware 2015 ozone
nonattainment area to Serious, which became effective on July 30, 2024.
In applying the ``earlier of'' structure of the default deadlines
finalized in this rule, January 1, 2026 (i.e., January 1 of the
attainment year) will be the SIP submission deadline for the states in
which the Philadelphia-Wilmington-Atlantic City nonattainment area lies
because that date occurs before the 18-month timeframe established by
the effective date of the reclassification notice (i.e., January 30,
2026).
Likewise, in the case of Colorado, the SIP submission deadline will
be January 1, 2026. The EPA granted the state's request for voluntary
reclassification of the Denver Metro/North Front Range 2015 ozone
nonattainment area to Serious, which became effective on July 24, 2024.
In applying the ``earlier of'' structure of the default deadlines
finalized in this rulemaking, January 1, 2026 (i.e., January 1 of the
attainment year) will be the SIP submission deadline for Colorado
because that date occurs before the 18-month timeframe established by
the effective date of the reclassification notice (i.e., January 24,
2026).
b. Deadline for Serious Area I/M Implementation
Comment: One commenter (0042) disagrees with the EPA's proposal
that it is necessary to establish an implementation date at the
beginning of the attainment year ozone season for an Enhanced I/M
program under the Serious classification to use the emissions
reductions toward meeting Serious classification attainment
demonstration and RFP requirements. The commenter believes that the EPA
has not provided a rationale for why newly required Enhanced I/M
programs for the 2015 ozone standard would have to be fully implemented
by no later than the beginning of the Serious attainment year ozone
season. The commenter asserts that implementation should not be
required by the start date of the attainment year ozone season for the
area for the reductions to be used, particularly since emissions
reductions from I/M programs are variable, depend on the number of
vehicles tested in each month, as well as the vehicles' emissions
profiles and state of repair.
Response: We disagree with the commenter's position that the EPA
has not provided a rationale for why Enhanced I/M program emission
reductions that will be relied upon by the states for attainment
demonstration or RFP requirements must be implemented by the beginning
of the attainment year ozone season. For Serious areas that intend to
rely upon emission reductions from their newly required Enhanced I/M
program for attainment and RFP purposes, the implementation deadline is
already prescribed by the 2015 ozone implementation rule which requires
all control measures (including I/M) in the attainment plan and
demonstration to be implemented no later than the beginning of the
attainment year ozone season.\46\ As the EPA explained in the preamble,
EPA's proposal and solicitation of comments as to reclassified Serious
areas was limited to the deadline for implementation of Enhanced I/M
for areas that were not intending to rely on reductions from those
programs in attainment or RFP SIPs. See 89 FR 80850 (October 4, 2024).
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\46\ 40 CFR 51.1308(d).
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IV. Environmental Justice Considerations
In this action, the EPA is stablishing 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
codifying 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 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.
As explained in the proposal, it is difficult to assess the
environmental justice (EJ) implications of this action because the EPA
cannot geographically identify or quantify resulting source-specific
emission reductions. However, due to the nature of this 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 reiterates, 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. As stated in the
proposal, 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.
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 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.\47\ EJ Legal Tools is also intended to promote
meaningful engagement among the EPA and communities.\48\ 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.'' \49\ 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.\50\
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\47\ U.S. EPA, EPA Legal Tools to Advance Environmental Justice
(May 2022).
\48\ Id.
\49\ U.S. EPA, Achieving Health and Environmental Protection
Through EPA's Meaningful Engagement Policy (August 2024).
\50\ See U.S. EPA, Public Involvement Policy of the U.S.
Environmental Protection Agency (May 2003).
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[[Page 5676]]
V. Judicial Review
The CAA regulations promulgated herein may be challenged in the
United States Court of Appeals for the District of Columbia Circuit.
Pursuant to section 307(b)(1) of the CAA, petitions for judicial review
of the CAA regulations must be filed in that court within 60 days after
the date notice of this final action is published in the Federal
Register. Section 307(b)(1) of the CAA provides, in part, that
petitions for review must be filed in the United States 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.''
The CAA regulations promulgated herein are ``nationally applicable
regulations'' within the meaning of CAA section 307(b)(1). These
regulations establish regulatory requirements for all applicable areas
across the entire United States to implement provisions of the CAA,
including regulations establishing SIP submission and implementation
deadlines for all newly reclassified ozone nonattainment areas
nationwide, and. regulations codifying which requirements related to
the prior classification level for an ozone nonattainment area are no
longer applicable after an area's reclassification. Accordingly, under
section 307(b)(1) of the CAA, petitions for judicial review of these
CAA regulations must be filed in the United States Court of Appeals for
the District of Columbia by March 18, 2025.
VI. Severability
This final rule includes new and revised requirements for numerous
provisions under the implementation regulations for the national
ambient air quality standards for ozone, including deadlines for
revisions of implementation plans addressing different statutory
requirements of the CAA, deadlines for implementation of different
control measures required under different provisions of the CAA, and
regulations clarifying statutory provisions associated with an area's
former classification that are no longer applicable to that area after
the effective date of an area's reclassification. Therefore, this final
rule is a multifaceted rule that addresses many separate things for
independent reasons, as detailed in each respective portion of this
preamble. We intend each portion of this rule to be severabl
[…truncated; see source link]Indexed from Federal Register on January 17, 2025.
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.