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ENVIRONMENTAL PROTECTION the internet and will be publicly SIP State Implementation Plan AGENCY available only in hard copy. Publicly SO2 Sulfur Dioxide available docket materials are available tpy Tons per Year 40 CFR Part 51 electronically in http:// TAR Tribal Authority Rule TAS Treatment as a State [EPA–HQ–OAR–2016–0202; FRL–9986–53– www.regulations.gov. TGD Technical Guidance Document OAR] FOR FURTHER INFORMATION CONTACT: For TIP Tribal Implementation Plan USB U.S. Background RIN 2060–AS82 further general information on this final rule, contact Mr. Robert Lingard, Office U.S.C. United States Code of Air Quality Planning and Standards USDA U.S. Department of Agriculture Implementation of the 2015 National VOC Volatile Organic Compounds Ambient Air Quality Standards for (OAQPS), U.S. EPA, at (919) 541–5272 Ozone: Nonattainment Area State or [email protected]; or Mr. Butch B. Does this action apply to me? Implementation Plan Requirements Stackhouse, OAQPS, U.S. EPA, at (919) Entities potentially affected directly 541–5208 or [email protected]. by this final rule include state, local and AGENCY: Environmental Protection For information on the Information Agency (EPA). tribal governments and air pollution Collection Request (ICR), contact Mr. control agencies (‘‘air agencies’’) ACTION: Final rule. Butch Stackhouse, OAQPS, U.S. EPA, at responsible for attainment and (919) 541–5208 or stackhouse.butch@ SUMMARY: maintenance of the NAAQS. Entities The Environmental Protection epa.gov. Agency (EPA) is finalizing potentially affected indirectly by this nonattainment area and ozone transport SUPPLEMENTARY INFORMATION: final rule as regulated sources include owners and operators of sources of region (OTR) implementation I. General Information requirements for the 2015 ozone emissions of volatile organic national ambient air quality standards A. Preamble Glossary of Terms and compounds (VOCs) and nitrogen oxides (NAAQS) (2015 ozone NAAQS) that Acronyms (NOX) that contribute to ground-level were promulgated on October 1, 2015. The following are abbreviations of ozone formation. This final rule is largely an update to terms used in the preamble. C. Where can I get a copy of this the implementing regulations ACT Alternative Control Techniques document and other related previously promulgated for the 2008 AERR Air Emissions Reporting information? ozone NAAQS, and we are retaining Requirements In addition to being available in the without significant revision the majority AVERT AVoided Emissions geneRation docket, an electronic copy of this of those provisions to implement the Tool Federal Register document will be 2015 ozone NAAQS. This final rule BSMP Basic Smoke Management Practices posted at http://www.epa.gov/ozone- addresses a range of nonattainment area CAA Clean Air Act pollution. and OTR state implementation plan CFR Code of Federal Regulations CO Carbon Monoxide (SIP) requirements for the 2015 ozone CTG Control Techniques Guidelines D. How is this notice organized? NAAQS, including attainment DOI Department of the Interior The information presented in this demonstrations, reasonable further DOT Department of Transportation notice is organized as follows: progress (RFP) and associated milestone EE/RE Energy Efficiency and Renewable demonstrations, reasonably available Energy I. General Information control technology (RACT), reasonably EMFAC EMission FACtors Model A. Preamble Glossary of Terms and EPA Environmental Protection Agency Acronyms available control measures (RACM), B. Does this action apply to me? major nonattainment new source FLM Federal Land Managers FR Federal Register C. Where can I get a copy of this document review, emissions inventories, the ICR Information Collection Request and other related information? timing of required SIP submissions and I/M Inspection and Maintenance D. How is this notice organized? compliance with emission control IPT Interprecursor Trade or Interprecursor II. Background and Summary of Final Rule measures in the SIP. The EPA is not Trading III. Provisions of the 2008 Ozone NAAQS taking any final action regarding our MCD Milestone Compliance Demonstration Implementing Regulations To Be proposed approach for revoking a prior MOVES Motor Vehicle Emissions Simulator Retained Without Significant Revision NAAQS National Ambient Air Quality A. Submission Deadlines and Form for ozone NAAQS and establishing anti- Nonattainment Area and OTR SIP backsliding requirements; the agency Standards NNSR Nonattainment New Source Review Elements Due Under CAA Sections 182 intends to address any revocation of the NOX Nitrogen Oxides and 184 2008 ozone NAAQS and any potential O3 Ozone B. Redesignation to Nonattainment anti-backsliding requirements in a OAQPS Office of Air Quality Planning and Following Initial Designations separate future rulemaking. Standards C. Determining Eligibility for 1-Year DATES: This final rule is effective on OMB Office of Management and Budget Attainment Date Extensions for the 2015 February 4, 2019. OTR Ozone Transport Region Ozone NAAQS Under CAA Section PAMS Photochemical Assessment 181(a)(5) ADDRESSES: The EPA has established a Monitoring Station D. Modeling and Attainment docket for this action, identified by PM2.5 Fine Particulate Matter Demonstration Requirements Docket ID No. EPA–HQ–OAR–2016– ppm Parts per Million E. Requirements for RFP 0202. All documents in the docket are PRA Paperwork Reduction Act F. Requirements for RACT and RACM listed in the http://www.regulations.gov PTE Potential to Emit G. CAA Section 182(f) NOX Exemption website. Although listed in the index, PUC Public Utility Commission Provisions some information may not be publicly RACM Reasonably Available Control H. General Nonattainment NSR Measures Requirements available, e.g., Confidential Business RACT Reasonably Available Control I. Ambient Monitoring Requirements Information or other information whose Technology J. Requirements for an OTR disclosure is restricted by statute. RFP Reasonable Further Progress K. Fee Programs for Severe and Extreme Certain other material, such as ROP Rate of Progress Nonattainment Areas That Fail To Attain copyrighted material, is not placed on RPS Renewable Portfolio Standard L. Applicability

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M. International Transport the 2015 primary and secondary from numerous stakeholders, including IV. Provisions of the 2008 Ozone NAAQS NAAQS for ozone are identical, for the states responsible for fulfilling the Implementing Regulations To Be convenience, we refer to both as ‘‘the CAA’s NAAQS implementation Retained With Specific Revisions 2015 ozone NAAQS’’ or ‘‘the 2015 requirements under the CAA’s system of A. Requirements for RFP: Milestone Compliance Demonstrations ozone standards.’’ The 2015 ozone cooperative federalism. The framework B. Requirements for RACT: Deadlines for NAAQS retains the same general form and policy approach have also been Submittal and Implementation of RACT and averaging time as the 0.075 ppm significantly informed by numerous SIP Revisions NAAQS set in 2008. court opinions rendered on specific C. Requirements for RACM: Consideration Following revisions to a NAAQS, the regulatory provisions, where the EPA’s of Sources of Intrastate Transport of EPA and air agencies work together to initial interpretation of the CAA’s ozone Pollution implement the revised NAAQS. To implementation requirements was D. Nonattainment NSR Offset Requirement: assist air agencies, the EPA considers vacated or otherwise restricted. Interprecursor Trading for Ozone Offsets the extent to which existing EPA An initial step in implementing a E. Emissions Inventory and Emissions Statement Requirements regulations and guidance are sufficient revised NAAQS is the process in which V. Additional Considerations to implement the standard and whether states and some tribes recommend area A. Managing Emissions From Wildfire and any revisions or updates to those designations (i.e., as nonattainment, Wildland Prescribed Fire regulations and guidance would be attainment or unclassifiable) to the EPA. B. Transportation Conformity and General helpful or appropriate in facilitating the The EPA then evaluates air quality data Conformity implementation of the revised standard and other factors prior to making our C. Requirements for Contingency Measures by air agencies and regulated entities. proposed and final determinations in the Event of Failure To Meet a The Clean Air Act (CAA or Act) does regarding area designations. Areas Milestone or To Attain not require that the EPA promulgate designated as nonattainment for a D. Background Ozone E. Additional Policies and Programs for new or revised implementing revised ozone NAAQS are classified Achieving Emissions Reductions regulations or guidance when a NAAQS (i.e., as Marginal, Moderate, Serious, F. Additional Requirements Related to is revised. However, in certain Severe or Extreme) according to the Enforcement and Compliance circumstances, the EPA has determined severity of the nonattainment at the time G. Applicability of Final Rule to Tribes that revisions to implementing of designation (as determined based on VI. Environmental Justice Considerations regulations are necessary to ensure that the area’s ‘‘design value’’ (DV)).2 The VII. Statutory and Executive Order Reviews the CAA’s requirements are clear for EPA has already finalized in a separate A. Executive Order 12866: Regulatory both air agencies and regulated entities. action the air quality thresholds Planning and Review and Executive Air agencies are required to submit SIPs, corresponding with, and attainment Order 13563: Improving Regulation and Regulatory Review as provided in the CAA and in EPA dates for, each level of nonattainment B. Executive Order 13771: Reducing regulations. It is important to note that area classification for the 2015 ozone Regulations and Controlling Regulatory the existing EPA regulations in title 40 NAAQS (see 83 FR 10376; March 9, Costs part 51 of the Code of Federal 2018), which were then applied when C. Paperwork Reduction Act (PRA) Regulations (CFR) applicable to SIPs the EPA promulgated final D. Regulatory Flexibility Act (RFA) generally and to particular pollutants nonattainment area designations for that E. Unfunded Mandates Reform Act (e.g., ozone and its precursors) continue standard (see 83 FR 25766; June 4, 2018 (UMRA) to apply even if these regulations are not (for most of the U.S.); 83 FR 35136; July F. Executive Order 13132: Federalism updated. 25, 2018 (for the San Antonio, Texas G. Executive Order 13175: Consultation The 1990 CAA Amendments and Coordination With Indian Tribal area)). Governments contained ozone NAAQS On November 17, 2016, the EPA H. Executive Order 13045: Protection of implementation provisions that were solicited public comment on proposed Children From Environmental Health specific to the then-current 1-hour revisions to the ozone NAAQS and Safety Risks ozone NAAQS, including regulatory implementing regulations as they apply I. Executive Order 13211: Actions provisions and SIP-related deadlines to the 2015 ozone NAAQS, including Concerning Regulations That that do not directly apply to the revised the nonattainment area classification Significantly Affect Energy Supply, 8-hour ozone NAAQS. To fill the scheme and SIP requirements, in a Distribution or Use resulting statutory gaps and provide notice of proposed rulemaking (NPRM) J. National Technology Transfer and Advancement Act (NTTA) other needed regulatory guidance, the (81 FR 81276). The public comment K. Executive Order 12898: Federal Actions EPA has promulgated several iterations period for the NPRM ran from To Address Environmental Justice in of implementing regulations for the 8- November 17, 2016, to February 13, Minority Populations and Low-Income hour ozone NAAQS that was issued by 2017. The EPA received a total of 79 Populations the EPA in 1997 and revised in 2008. comment submissions on the NPRM. As L. Congressional Review Act (CRA) For purposes of the 2015 ozone NAAQS, explained previously, those comments M. Judicial Review the EPA is generally applying the relating to the nonattainment area VIII. Statutory Authority overall framework and policy approach classifications scheme were addressed II. Background and Summary of Final of the implementation provisions in a separate action in March 2018 Rule associated with the previous 8-hour finalizing those classifications (see NAAQS, with the exception of elements generally 83 FR 10376). The preamble to On October 1, 2015, the EPA addressed in the adverse portions of the this final rule discusses significant promulgated revisions to the primary D.C. Circuit’s February 2018 decision in comments received on the SIP and secondary NAAQS for ozone, South Coast Air Quality Management requirements portion of the NPRM and setting them at a level of 0.070 parts per District v. EPA (discussed later in this 1 million (ppm) (see 80 FR 65292). Since preamble), to provide for regulatory 2 The air quality DV for the 8-hour ozone NAAQS certainty and consistent implementation is the 3-year average of the annual fourth highest 1 Annual fourth highest daily maximum 8-hour daily maximum 8-hour average concentration for a average concentration, averaged over 3 years. For a across time. This overall regulatory specific monitor. When an area has multiple detailed explanation of the calculation of the 3-year framework and policy approach has monitors, the area’s DV is determined by the 8-hour average, see 40 CFR part 50, Appendix P. been developed over time with input individual monitor with the highest DV.

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how those comments were considered the decision on those aspects of the provides an extensive discussion of the by the EPA in general terms. The proposal regarding revocation of the EPA’s current approach and rationale accompanying Response to Comments 2008 ozone NAAQS. Thus, the EPA is for SIP element submittal deadlines (80 document provides more detailed not acting today on any of the proposed FR 12265; March 6, 2015). responses to the comments received. revocation options of the 2008 ozone b. Final Rule. The EPA is adopting the The public comments received on the NAAQS or any proposed anti- proposed approach for establishing NPRM and the EPA’s Response to backsliding requirements. The EPA deadlines for submitting nonattainment Comments document are posted in the intends to address any revocation of the area SIP elements under CAA section docket at http://www.regulations.gov 2008 ozone NAAQS, and any potential 182 for the 2015 ozone NAAQS, based (Docket ID No. EPA–HQ–OAR–2016– anti-backsliding requirements in a on the approach and rationale 0202). separate future rulemaking. articulated in the final 2008 Ozone SIP We are finalizing submittal deadlines Regarding the format of this preamble, Requirements Rule. Section 182 of the and specific CAA requirements for the on topics where we made a specific CAA requires states with ozone content of nonattainment area and OTR proposal, we include detailed nonattainment areas to submit various SIPs for the 2015 ozone NAAQS in this information about what we proposed, SIP elements within specified time rule. As a general matter, this final rule what we are finalizing and our rationale, periods after November 15, 1990 (the follows the same basic principles and as well as responses to significant date of enactment of the 1990 CAA approach that the EPA applied to comments. As stated previously, we are Amendments). For the 2015 ozone interpret the CAA’s part D ozone retaining without significant revision NAAQS, the EPA is retaining the nonattainment area requirements in the majority of existing implementing approach adopted for the 2008 ozone developing the implementation rule for regulations associated with the 2008 3 NAAQS: The SIP elements listed will the 2008 ozone NAAQS. ozone NAAQS for purposes of In the NPRM, the EPA also proposed implementing the 2015 ozone NAAQS, generally be due, with the limited and sought comment on two alternative as discussed in Section III of this exceptions discussed later, according to approaches for revoking the 2008 ozone preamble. We discuss those aspects of the timeframes provided for those SIP NAAQS for all purposes and, where existing implementing regulations that elements in CAA section 182, but applicable, establishing anti-backsliding we are revising for purposes of measured from the effective date of requirements. The first approach to implementing the 2015 ozone NAAQS nonattainment designation rather than revoking the 2008 ozone NAAQS would in Section IV of this preamble. Section from November 15, 1990. parallel the approach used in revoking V of this preamble addresses several Accordingly, states with areas the 1-hour and 1997 ozone NAAQS. topics, relevant to implementing of the designated nonattainment have: 2 years Under this first approach, the 2008 2015 ozone NAAQS, on which we from the effective date of a ozone NAAQS would be revoked at solicited public comment in the nonattainment designation to submit essentially the same time for all areas of November 2016 proposal, but for which SIP revisions addressing emissions the U.S., and a set of protective anti- we are not promulgating any specific inventories (required by CAA section backsliding requirements would be revisions to the agency’s implementing 182(a)(1)), RACT (CAA section promulgated for all areas that are regulations at this time. 182(b)(2)) and emissions statement designated nonattainment for the 2008 regulations 4 (CAA section 182(a)(3)(B)); and 2015 NAAQS as of 1 year after the III. Provisions of the 2008 Ozone 3 years from the effective date of effective date of designation for the 2015 NAAQS Implementing Regulations To nonattainment designation to submit ozone NAAQS. Under the second Be Retained Without Significant SIP revisions addressing 15 percent rate approach, the 2008 ozone NAAQS Revision of progress (ROP) plans (CAA section would not be revoked in any area For purposes of implementing the designated nonattainment for the 2008 182(b)(1)) and Moderate area attainment 2015 ozone NAAQS, we are retaining demonstrations (CAA section 182(b)(1)); ozone NAAQS until that area is without significant revision the majority redesignated to attainment with an and 4 years from the effective date of of regulatory provisions previously nonattainment designation to submit approved CAA section 175A 10-year promulgated for purposes of maintenance plan; the 2008 ozone SIP revisions addressing 3 percent per implementing the 2008 ozone NAAQS. year 5 RFP plans (CAA section 182(c)(2)) NAAQS would in no case be revoked The classification and SIP requirement earlier than 1 year after the effective and attainment demonstrations for provisions for the 2008 standards were date of designation for the 2015 ozone Serious and higher classified areas codified at subpart AA of 40 CFR part NAAQS. The 2008 ozone NAAQS (CAA section 182(c)(2)), where 51, and the corresponding provisions for would be revoked in all other areas 1 applicable. If an area is subject to the 2015 standards will now be codified year after the effective date of vehicle inspection and maintenance (I/ in subpart CC of part 51. designation for the 2015 ozone NAAQS. M) program requirements based on its The EPA’s approach to revoking the A. Submission Deadlines and Form for classification, the SIP revision due date 1997 ozone NAAQS was challenged in Nonattainment Area and OTR SIP for the I/M requirements is already South Coast Air Quality Management Elements Due Under CAA Sections 182 codified in 40 CFR 51.372(b)(2) and is District v. EPA, 882 F.3d 1138 (D.C. Cir. and 184 aligned with the due date for the 2018) (hereinafter referred to as South attainment demonstration SIP for the Coast II). On February 16, 2018, the D.C. 1. Deadlines for Submitting area (i.e., either 3 or 4 years from the Circuit issued a partially adverse Nonattainment Area and OTR SIP effective date of nonattainment decision in that case. The EPA is Elements designation, depending on the area’s currently assessing the implications of a. Summary of Proposal. The EPA proposed to retain our existing approach 4 See Section IV.E of this preamble for additional 3 See ‘‘Implementation of the 2008 National to establishing deadlines for submitting information on emissions statements. 5 Ambient Air Quality Standards for Ozone: State ozone nonattainment area SIP elements. The 3 percent per year RFP plans are typically Implementation Plan Requirements’’ (80 FR 12264; submitted in 3-year increments, i.e., as 9 percent March 6, 2015), hereafter referred to as the 2008 For reference, the final 2008 Ozone RFP plans that produce average reductions of 3 Ozone NAAQS SIP Requirements Rule. NAAQS SIP Requirements Rule percent of baseline emissions per year.

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classification: 3 years for Moderate proposed 3-year NNSR SIP revision continues to support the interpretation areas, 4 years for Serious and higher). deadline from two air agency of the statute that the submission of SIP revisions addressing CAA section commenters. ‘‘corrections to the SIP,’’ including 185 penalty fee programs in areas Response: The EPA disagrees with the NNSR SIPs, due on November 15, 1992, initially classified Severe or Extreme are commenter’s argument that a 2-year fulfilled the statutory requirement due 10 years from the effective date of maximum deadline for NNSR plans for addressing the SIP revisions associated nonattainment designation. The 10-year the 2015 ozone NAAQS is required by with the 1-hour ozone standard. Hence, submittal deadline is consistent with the CAA. The commenter argues that a the EPA continues to support the section 182(d)(3) of the CAA, which 2-year deadline is mandated under interpretation that the general NAAQS provided slightly more than 10 years for provisions contained in CAA section implementation provisions in CAA submission of the fee program SIP 182. As explained in the 2008 Ozone subpart 1 at section 172(b) govern when revision for areas designated as NAAQS SIP Requirements Rule (see 80 the EPA establishes a deadline for the nonattainment and classified as Severe FR 12267, March 6, 2015), and the 2015 submittal of NNSR SIP revisions that are or Extreme by operation of law in 1990 Ozone NAAQS Implementation Rule triggered by ozone NAAQS revisions for the 1-hour ozone NAAQS. Proposal (see 80 FR 81278, November occurring after November 15, 1990. SIP submissions addressing 17, 2016), the EPA recognized that CAA nonattainment new source review section 182(a)(2)(C)(i), under the 2. Form and Content of Nonattainment (NNSR) permit program requirements heading ‘‘Corrections to the State and OTR SIP Element Submissions applicable to the 2015 ozone NAAQS implementation plans—Permit Required Under a Revised NAAQS are due 3 years from the effective date programs,’’ contains a requirement for a. Summary of Proposal. The EPA of nonattainment designation (see new states to submit SIP revisions to meet proposed to retain our existing CAA 40 CFR 51.1314). This is consistent with the requirements of CAA sections interpretation that air agencies are the approach articulated in the 2008 172(c)(5) and 173 within 2 years after required to submit all nonattainment Ozone NAAQS SIP Requirements Rule. the date of enactment of the 1990 CAA SIP elements applicable for an area’s This approach is based on the provision Amendments. The EPA continues to classification following revision of the in CAA section 172(b) requiring the support the interpretation of the statute NAAQS. The EPA also took comment submission of plans or plan revisions that the submission of NNSR SIPs due on an option for air agencies to submit ‘‘no later than 3 years from the date of on November 15, 1992, i.e., the date 2 a certification statement for previously the nonattainment designation.’’ years after enactment of the 1990 CAA approved SIP elements. When We note also that the EPA’s past Amendments, fulfilled this statutory submitting SIP elements, air agencies implementing regulations for revised ‘‘corrections’’ requirement. The plan may certify that an existing regulation is ozone NAAQS have required OTR states submittal schedules set forth in the 1990 adequate to meet certain nonattainment to submit RACT SIP revisions based on CAA Amendments at section 182(a)(2) area planning requirements for a revised the timeframe provided in CAA section were applicable to the then existing 1- ozone NAAQS, in lieu of submitting a 184 as measured from the effective date hour ozone NAAQS, and Congress new revised regulation. of designations made pursuant to those intended them to address SIP-related b. Final Rule. The EPA is finalizing revised NAAQS, rather than from transition issues unique to the transition the proposed requirements. We November 15, 1990. This requirement from provisions ‘‘as in effect continue to interpret the general SIP was first codified in 40 CFR 51.916 for immediately before November 15, 1990’’ requirements of subpart 1 of part D of the 1997 ozone NAAQS, and later to provisions in the newly enacted 1990 Title I and the specific nonattainment codified for the 2008 ozone NAAQS in CAA Amendments. area planning requirements of CAA 40 CFR 51.1116. Under those The CAA, in the generally applicable section 182 to require air agencies to provisions, states in the OTR are subpart 1 provisions of Part D of Title submit a SIP element to meet each required to submit SIP revisions I, specifically section 172(b), provides a nonattainment area planning addressing the RACT requirements of submittal schedule for plan revisions requirement for the 2015 ozone NAAQS. CAA section 184 no later than 2 years following the EPA’s promulgation of Many air agencies already have after the effective date of designations ‘‘the designation of an area as regulations in place to address certain for nonattainment areas for the revised nonattainment with respect to a national nonattainment area planning ozone NAAQS. The EPA is adopting ambient air quality standard. . . .’’ See requirements due to nonattainment these same general requirements for the 42 U.S.C. 7502(b). At the time of the designations for a prior ozone NAAQS. 2015 ozone NAAQS (see Section III.J of 1990 CAA Amendments, designations Air agencies should review any existing this preamble). for the 1-hour ozone NAAQS were c. Comments and Responses. already in existence for all areas of the regulation that was previously approved Comment: The only adverse comment country—including nonattainment by the EPA to determine whether it is the EPA received regarding the sufficient to fulfill obligations triggered areas. The 1990 CAA Amendments 6 proposed submittal dates for SIP under Title I Part D Subpart 2 added by the revised ozone NAAQS. For elements for the 2015 ozone NAAQS increased programmatic controls and a example, a state may have an emissions specifically pertained to the proposed 3- tiered classification structure on top of statement regulation (per CAA section year schedule for submitting new or the existing ozone nonattainment 182(a)(3)(B)) that has been previously revised SIP elements addressing NNSR designations, imposing still more SIP approved by the EPA for a prior ozone program requirements. The commenter, submission requirements on the higher NAAQS that covers all the state’s objecting to the proposed 3-year NNSR classified areas. Given the existing nonattainment areas and relevant SIP due date, claimed that such a NNSR programs developed under prior classes and categories of sources for the timeframe is contrary to CAA section statutory authority, it is reasonable to 2015 ozone NAAQS, and that is likely 182(a)(2)(C), which, based on the believe that Congress thought that the to be sufficient for purposes of meeting commenter’s interpretation, affords 2 initial NNSR SIP corrections required 6 This review should include determining years for nonattainment areas to submit under the newly created section whether the nonattainment area boundary for the their NNSR permit requirements SIP. 182(a)(2)(C) could be developed and current ozone NAAQS is consistent with the The EPA received support for the submitted to the EPA quickly. The EPA boundary for the previous standards.

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the emissions statement requirement for waste of resources because the EPA B. Redesignation to Nonattainment the 2015 ozone NAAQS. Where an air already has several processes to ensure Following Initial Designations agency determines that an existing that states meet CAA section 110 1. Summary of Proposal regulation is adequate to meet planning obligations including applicable nonattainment area planning infrastructure SIPs. Two commenters The EPA proposed to retain our requirements of CAA section 182 (or supported the EPA’s option for SIP existing requirements concerning SIP- OTR RACT requirements of CAA certification statements, citing its related deadlines for areas initially section 184) for a revised ozone benefits in streamlining the SIP designated attainment for a current NAAQS, that air agency’s SIP revision development process. ozone NAAQS and subsequently may provide a written statement Response: The EPA disagrees with redesignated to nonattainment for the certifying that determination in lieu of commenters that SIP certification same standards. These requirements are submitting new revised regulations. The statements triggered by a NAAQS codified for the 2008 ozone NAAQS at EPA has acted on similar certifications revision are redundant and already 40 CFR 51.1106. in the past. See e.g., 83 FR 26221 (June accomplished through other SIP 2. Final Rule 6, 2018) (explaining that the EPA is processes, including infrastructure SIPs. approving Pennsylvania’s certification As noted previously, we continue to The EPA is finalizing the proposed that the state’s previously approved interpret the general SIP requirements of requirements. The newly adopted emissions statement regulation meets CAA section 110 and specific provisions, codified at 40 CFR 51.1306, the requirements of CAA section nonattainment planning requirements of generally allow an extension of any 182(a)(3)(B) for the 2008 ozone CAA section 182 to require an air absolute, fixed date applicable to SIP standards). Other previously approved agency to provide a SIP submission to requirements under part 51—excluding nonattainment SIP elements that may be meet each nonattainment area planning attainment dates—equal to the length of sufficient for purposes of an area that requirement for a revised ozone time between the effective date of the has been designated nonattainment for a NAAQS. To the extent that commenters initial designation for the NAAQS and revised ozone NAAQS might include suggest the EPA should adopt a general the effective date of the redesignation, (but are not necessarily limited to): presumption of adequacy for previously unless otherwise provided in the NNSR, vehicle I/M programs and clean approved SIP elements, we disagree. We implementation provisions for the 2015 7 fuels requirement for boilers. note in particular that the infrastructure ozone NAAQS. The maximum An air agency choosing to provide a SIP submission triggered by a NAAQS attainment date for a redesignated area written certification in lieu of revision provides the public and the would be based on the area’s submitting a new or revised regulation EPA an opportunity to review the basic classification. must provide the certification to the structure of a state’s air quality 3. Comments and Responses EPA qualifying as a SIP revision in management program and is not accordance with CAA section 110 and intended—nor can it be presumed—to The EPA received no adverse 40 CFR 51.102, 103 and part 51 address the adequacy of individual comments on the proposed Appendix V. An air agency should nonattainment SIP elements for requirements. identify the related applicable purposes of the revised NAAQS. C. Determining Eligibility for 1-Year requirements and explain how each is The submission of individual Attainment Date Extensions for the 2015 met for the revised ozone NAAQS by nonattainment SIP elements for Ozone NAAQS Under CAA Section the regulation previously approved for a purposes of the revised NAAQS 181(a)(5) prior ozone NAAQS. The purpose of the provides the public and the EPA an statement is to demonstrate compliance opportunity to review and comment 1. Summary of Proposal with the nonattainment area planning upon each element of a nonattainment The EPA proposed to retain our requirements for the new NAAQS. SIP. If the air agency reviews an existing existing approach for eligibility criteria These written statements must be SIP element and concludes it does not for 1-year attainment date extensions treated in the same manner as any other need to be revised in light of the new under CAA section 181(a)(5). These SIP submission and must be provided to NAAQS, submission of a certification criteria are codified for the 1997 ozone the EPA in accordance with applicable SIP allows the public to review the air NAAQS in 40 CFR 51.907 and for the SIP submission requirements and agency’s assessment and provide 2008 ozone NAAQS in 40 CFR 51.1107, deadlines. comment on any changes they may and we proposed to retain the same In cases where a previously approved think necessary. The EPA then also has approach for purposes of the 2015 ozone regulation is modified for any reason, or an opportunity to review the air NAAQS. where no regulation exists, air agencies agency’s assessment and ensure that it must provide the new or modified is consistent with CAA requirements in 2. Final Rule regulation as a SIP submission. This relation to the revised 2015 ozone The EPA is finalizing the proposed would include new or modified RACT NAAQS. approach. Under the newly adopted provisions for states with nonattainment As noted by other commenters, the provisions, codified at 40 CFR 51.1307, areas and states in an OTR resulting certification statement option is an area that fails to attain a specific from a new review of major source intended to streamline the SIP ozone NAAQS by its attainment date emission controls. submission process, providing air c. Comments and Responses. agencies with the flexibility to address 7 For example, the adopted RACT provisions at 40 Comment: Several commenters objected multiple SIP elements in a single CFR 51.1312(a)(3)(ii) for reclassified nonattainment areas (which would include areas redesignated to to the EPA’s expectation that states certification statement, and combine the nonattainment) require that RACT SIP revisions be certify the adequacy of previously SIP certification action with other implemented as expeditiously as practicable, but no approved SIP elements for a revised actions subject to public notice and later than the start of the attainment year ozone NAAQS with written statements, comment. The EPA does not believe that season associated with the area’s new attainment deadline, or January 1 of the third year after the through the same process as other SIP developing and submitting certification associated SIP revision submittal deadline, revisions. They argue the certification SIP elements will be a significant and whichever is earlier (see Section IV.B of this process is redundant and therefore a unnecessary drain on state resources. preamble).

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would be eligible for the first 1-year ties consideration of an attainment date 2. Final Rule extension if, for the attainment year, the extension for CO to a state’s The EPA is finalizing modeling area’s fourth highest daily maximum 8- ‘‘substantial’’ efforts to reduce requirements as outlined in the hour average is at or below the level of emissions. proposal, and adopted at 40 CFR the standards. The area would be Response: We disagree with the 51.1308. The EPA continues to believe eligible for the second 1-year extension commenter that the EPA should codify the modeling requirements established if the area’s fourth highest daily instructions or develop separate in the final 2008 Ozone NAAQS SIP maximum 8-hour value, averaged over guidance for granting attainment date Requirements Rule are reasonable, both the original attainment year and extensions under an ozone NAAQS. primarily because photochemical the first extension year, is at or below CAA section 181(a)(5)(A) requires a modeling is generally available and the level of the standards. For the state to have complied with all reasonable to employ. However, this second 1-year extension, the area’s applicable SIP requirements and requirement also explicitly allows for fourth highest daily maximum 8-hour commitments to qualify for an another analytical method, determined average for each year (the attainment attainment date extension. As discussed by the Administrator to be at least as year and the first extension year) must previously, the EPA has long interpreted effective as photochemical modeling, to be determined using the monitor which, CAA section 181(a)(5)(A) as permitting for that year, has the fourth highest be substituted for or used to supplement the agency to rely upon the certified daily maximum 8-hour average of all the a photochemical modeling-based statements of our state counterparts that monitors that represent that area (i.e., assessment of an emissions control a state has complied with all applicable the area’s fourth highest daily maximum strategy. Any alternative analysis should ozone SIP requirements and 8-hour average for each year could be be based on technically credible commitments to qualify for an derived from a different monitor). methods that allows for the timely In addition to demonstrating that an attainment date extension. In practice, submittal of the attainment area meets these general eligibility we have found this approach for ozone demonstration. States should review the criteria, an air agency must demonstrate NAAQS implementation to be EPA modeling guidance 11 and consult that it has complied with all reasonable and sufficient, and do not their appropriate EPA Regional office requirements and commitments intend to develop separate 1-year before proceeding with alternative pertaining to the area in the applicable attainment deadline extension guidance analyses. Under CAA section 182(a), SIP, per CAA section 181(a)(5)(A). for the ozone NAAQS at this time. states are not required to submit an Given the state and federal partnership D. Modeling and Attainment attainment demonstration SIP for in implementing the CAA, it is Demonstration Requirements Marginal areas. The EPA offers reasonable for the EPA to interpret CAA assistance to states as they consider the section 181(a)(5)(A) as permitting the 1. Summary of Proposal most appropriate course of action for agency to rely upon the certified Marginal areas that may be at risk of The EPA proposed to retain our failing to meet the NAAQS within the statements of our state counterparts, and existing modeling and attainment the EPA has long interpreted the applicable 3-year timeframe. If demonstration requirements, which are necessary, states can choose to adopt provision to be satisfied by such codified for the 2008 ozone NAAQS in statements.8 In practice, in conjunction additional controls for such areas or 40 CFR 51.1108, and to establish criteria they can request a voluntary with a request for an extension, a state and due dates for attainment air agency’s Executive Officer, or other reclassification to a higher classification demonstrations and implementation of category. The EPA believes that senior individual with equivalent control measures for the 2015 ozone responsibilities, signs and affirms that voluntary reclassification for areas that NAAQS. Due dates for attainment are not likely to attain by their the state is complying with its demonstrations are established relative applicable federally approved SIP. attainment date may facilitate quicker to the effective date of area designations, attainment, including through the 3. Comments and Responses and all control measures in the development of the attainment plans Comment: The EPA received general attainment demonstration must be required of Moderate and higher support for retaining the current 1-year implemented no later than the classified areas. attainment date extension approach. beginning of the attainment year ozone 3. Comments and Responses One commenter requested that either season, notwithstanding specific RACT the EPA codify clear and specific and/or RACM implementation deadline Comment: One commenter stated that instructions on the criteria that must be requirements. For reference, the final the EPA should finalize our 2014 draft met, beyond the monitoring 2008 Ozone NAAQS SIP Requirements modeling guidance. Another commenter requirements in proposed section Rule provides an extensive discussion stated that the use of photochemical 51.1307, or that the EPA update of attainment demonstration elements grid modeling (or equivalent) for guidance for ozone to correspond with and related modeling protocols (80 FR attainment demonstrations should be the carbon monoxide (CO) attainment 12268; March 6, 2015). The EPA’s left to a state’s discretion. date extension guidance 9 since the EPA current procedures for modeling are Response: The EPA acknowledges the well developed and described in the need to update modeling guidance and 8 See ‘‘Procedures for Processing Bump Ups and EPA’s ‘‘Modeling Guidance for has recently released an updated Extension Requests for Marginal Ozone Demonstrating Attainment of Air (November 2018) version, as described Nonattainment Areas,’’ Memorandum from D. Kent Quality Goals for Ozone, PM2.5, and previously. Berry, Acting Director, Air Quality Management Regional Haze’’ (November 2018).10 Division, U.S. EPA, February 3, 1994. 9 The CO guidance referenced is contained in the 11 The modeling guidance can be found in the Sally Shaver memo, ‘‘Criteria for Granting 19951023_shaver_attainment_extension_co_ EPA’s ‘‘Guidance on the Use of Models and Other Attainment Date Extensions, Making Attainment naa.pdf. Analyses for Demonstrating Attainment of Air 10 Determinations, and Determinations of Failure to Modeling guidance, tools and supporting Quality Goals for Ozone, PM2.5, and Regional Attain the NAAQS for Moderate CO Nonattainment documents for SIP attainment demonstration are Haze,’’ available at: https://www3.epa.gov/ Areas’’ (10/23/95), available at: https:// available at: http://www3.epa.gov/scram001/ scram001/guidance/guide/final-03-pm-rh- www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/ guidance_sip.htm. guidance.pdf.

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In regard to the use of photochemical nonattainment SIPs (80 FR 12271; meet the 3 percent per year RFP grid modeling, the EPA is retaining the March 6, 2015). requirement. same modeling and attainment In general terms, ozone nonattainment The EPA proposed that the default demonstration requirements as areas must achieve RFP toward baseline year for RFP would be the established in the final 2008 Ozone attainment of the ozone NAAQS, as calendar year for the most recently NAAQS SIP Requirements Rule. CAA established in the RFP provisions of available triennial emissions inventory section 182(c)(2)(A) contains specific subparts 1 and 2 of part D of the CAA. at the time ROP/RFP plans are requirements for states to use Section 172(c)(2) of subpart 1 requires developed (e.g., 2017 for initial photochemical modeling or another that nonattainment SIPs must provide designations effective in 2018). We analytical method determined to be at for RFP, defined in CAA section 171(1) further proposed that states may use an least as effective in their SIPs for as ‘‘such annual incremental reductions alternative year (i.e., a year other than Serious and higher classified in emissions’’ as required by CAA part 2017) between the year of the revised nonattainment areas. Since D or as required by the Administrator NAAQS issuance (2015) and the year in photochemical modeling is the most for ensuring attainment of the NAAQS. which nonattainment designation is scientifically rigorous technique to Subpart 2 establishes specific percent effective. Consistent with our approach determine NOX and/or VOC emissions reduction targets for ozone for the 2008 ozone NAAQS, we reductions needed to show attainment nonattainment areas. For Moderate and proposed that all states associated with of the NAAQS and is readily available, higher classified areas, CAA section a multi-state nonattainment area must we are requiring photochemical 182(b)(1) requires a 15 percent consult and agree on a single RFP modeling (or another analytical method reduction in VOC emissions from the baseline year for the area. The EPA also determined to be at least as effective) for baseline anthropogenic emissions invited comment on an alternative all attainment demonstrations within 6 years after November 15, 1990 approach of requiring that states use the (including Moderate areas). We (this RFP requirement is also referred to year of the effective date of an area’s continue to believe that photochemical as ROP). The 15 percent ROP designation as the baseline year for the modeling is the most technically requirement must be met by the end of emissions inventory for the RFP credible method of estimating future the 6-year period regardless of when the requirements. year ozone concentrations based on nonattainment area attains the NAAQS. 2. Final Rule projected VOC and NO precursor For an area that already has an approved X The EPA is finalizing most aspects of emissions. SIP providing for the 15 percent ROP requirement for VOC under either the 1- our proposals for implementing the E. Requirements for RFP hour ozone NAAQS or a prior 8-hour CAA’s RFP provisions for purposes of the 2015 ozone NAAQS, as adopted at 1. Summary of Proposal ozone NAAQS, the EPA proposed that the area would not need to meet that 40 CFR 51.1310. In general, the EPA is The EPA proposed in general to retain requirement again. Instead, such areas following essentially the same our existing approach for RFP would be treated like areas covered interpretation of CAA subpart 2 requirements and to add new regulatory under CAA section 172(c)(2) if they are requirements for RFP as was applied to provisions codifying statutory classified as Moderate for the 2015 areas for the 2008 and 1997 8-hour ozone standards, with exceptions noted requirements for RFP milestone ozone NAAQS. The EPA proposed to in this section. Areas classified compliance demonstrations (MCDs) (see retain our existing interpretation of CAA Moderate for the 2015 ozone NAAQS Section IV.A of this preamble). The EPA section 172(c)(2) to require such areas to that had SIPs previously approved to also sought comment on requiring states obtain 15 percent reductions in ozone meet the ROP requirements for the 1- to use the year of an area’s designation precursor emissions over the first 6 hour, 1997 8-hour or 2008 8-hour ozone as nonattainment as the baseline year years after the baseline year. For areas NAAQS would be treated like areas for the emissions inventory for the RFP classified Serious and higher, the EPA covered under CAA section 172(c)(2), requirement. proposed to retain our existing and would need to meet the 3 percent The existing RFP requirements for the interpretation of CAA section 2008 ozone NAAQS are codified in 40 per year RFP requirements under CAA 182(c)(2)(B) to require such areas to section 182(c)(2)(B) if they are classified CFR 51.1110 and are organized by the obtain 18 percent ozone precursor following major subjects: Submission Serious or higher for the 2015 standards. emission reductions in that 6-year For the purposes of the 2015 ozone deadline for SIP revisions; RFP period.13 For areas classified Serious 12 NAAQS, the EPA continues to interpret requirements for affected areas; and higher, CAA section 182(c)(2)(B) creditability of emission control CAA section 172(c)(2) as requiring requires an additional 3 percent per year Moderate areas with an approved SIP measures; creditability of out-of-area reduction from baseline VOC emissions, emissions reductions; calculation of under the 1-hour ozone NAAQS or prior averaged over consecutive 3-year 8-hour ozone NAAQS to achieve 15 non-creditable emissions reductions; periods, beginning 6 years after and baseline emissions inventories for percent ozone precursor (NOX and/or November 15, 1990, and applying each VOC) emission reductions over the first RFP plans. For reference, the final 2008 year until the attainment date. CAA Ozone NAAQS SIP Requirements Rule 6 years after the RFP baseline year for section 182(c)(2)(B) also allows NOX provides an extensive discussion of the the 2015 ozone NAAQS. For areas reductions to be substituted for VOC classified Serious and higher, the EPA EPA’s rationale and approach for how reductions under certain conditions to air agencies can provide for RFP in their continues to interpret CAA section 182(c)(2)(B) to require such areas to 13 Similar interpretations were made for the 1997 12 40 CFR 51.1110(a)(2)–(4) establish three ozone NAAQS in the Phase 2 Ozone obtain 18 percent ozone precursor separate sets of RFP requirements for: (1) Areas Implementation Rule (70 FR 71615, November 29, emission reductions in that 6-year with an approved 1-hour or 1997 ozone NAAQS 15 2005), which were upheld in NRDC v. EPA, 571 period. This interpretation was recently percent VOC ROP plan; (2) areas for which an F.3d 1245 (D.C. Cir. 2009), and for the 2008 ozone upheld in a challenge to the 2008 Ozone approved 15 percent VOC ROP plan for the 1-hour NAAQS in the 2008 Ozone NAAQS SIP or 1997 ozone NAAQS exists for only a portion of Requirements Rule (80 FR 12271, March 6, 2015), NAAQS SIP Requirements Rule in the area; and (3) areas without an approved 1-hour which were upheld in South Coast II, 882 F.3d 1138 South Coast II, 882 F.3d at 1153. The or 1997 ozone NAAQS 15 percent VOC ROP plan. (D.C. Cir. 2018). EPA also continues to interpret CAA

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section 182(c)(2)(B) for the 2015 ozone triennial emissions inventory preceding is the ‘‘most recent year for which the NAAQS as requiring an additional 3 the year of the area’s effective date of EPA’s Air Emissions Reporting percent per year reduction from baseline nonattainment designation. For Requirements (AERR) (40 CFR part 51, emissions, averaged over consecutive 3- example, states with areas designated subpart A) requires submission of on- year periods, beginning 6 years after the nonattainment in 2018 would use 2017 road mobile source emissions RFP baseline year, and applying each as the RFP baseline year, which would inventories as of the effective date of year until the attainment date. be the year of the most recent triennial designations.’’ For nonattainment areas For the RFP baseline year for the 2015 emissions inventory. for the 2015 ozone NAAQS, 2017 is the ozone NAAQS, we are specifying that For purposes of the 2015 ozone baseline year for transportation the baseline year shall be the calendar NAAQS, states may also use an conformity purposes. year for the most recently available alternative RFP baseline year that The calendar year 1990 is tied to the triennial emissions inventory preceding corresponds with the year of the November 15, 1990, date of passage of the year of the area’s effective date of effective date of an area’s designation. the 1990 CAA Amendments, which ‘‘is designation as a nonattainment area. This adopted approach for the 2015 the date on which Congress specified This approach was recently upheld by ozone NAAQS revises the approach that the initial designations/ the D.C. Circuit in South Coast II. provided in the 2008 Ozone NAAQS SIP classifications . . . under the 1990 Alternatively, states may choose to use Requirements Rule, which allowed the amendments would take effect.’’ NRDC the year that corresponds with the year state to select an alternative RFP v. EPA, 777 F.3d 456 (D.C. Cir. 2014) of the effective date of an area’s baseline year between the year of the (citing 42 U.S.C. 7407(d)(1)(C), nonattainment designation for the RFP revised NAAQS issuance (i.e., 2008) and 7511(a)(1)). Thus, for the 1-hour baseline year. the year in which nonattainment standard, the RFP baseline year was For purposes of the 2008 ozone designations were effective (i.e., 2012), ‘‘calendar year 1990,’’ which was both NAAQS, the EPA selected 2011 as a so long as the state could explain why the year of the initial emissions baseline year because it is tied to the 3- the alternative year was appropriate. inventory required by CAA section year statutory cycle for emissions The EPA’s creation of the state-selected 182(a)(1) and the year of designations. inventories, and preceded the year in alternative RFP baseline year option for However, for future promulgations and which nonattainment area designations the 2008 Ozone NAAQS SIP revisions of NAAQS, the year of for the 2008 ozone NAAQS were Requirements Rule was rejected by the designations and the year of the most effective (i.e., 2012). The D.C. Circuit in court in South Coast II, because the recent triennial emissions inventory South Coast II upheld this approach as court found that the EPA failed to may not coincide—and for the 2015 reasonable, because the chosen baseline provide a statutory justification for why ozone NAAQS, they do not. Where they year was tied to the triennial emissions alternative baselines were appropriate. do not coincide, no single year can be inventory states must prepare. South South Coast II, 882 F.3d at 1153. As selected that presents both the attributes Coast II, 882 F.3d at 1152. Further, we noted previously, the EPA sought that 1990 did in the context of the note that the EPA has historically comment on an alternative approach Amendments and the subsequent interpreted RFP ‘‘baseline emissions’’ that would have required states to use implementation process. Accordingly, (CAA section 182(b)(1)(B)) as the year of the effective date of an area’s we believe that in the context of corresponding with the initial emissions designation (designation year) as the implementing a NAAQS for which these inventory in CAA section 182(a) (see, baseline year for the RFP emissions 2 years do not coincide, the textual e.g., 80 FR 12290; March 6, 2015).14 For inventory instead of the triennial reference in the RFP requirement’s an ozone NAAQS revision occurring emissions inventory year. ‘‘baseline emissions’’ provision after the CAA was amended in 1990, we As explained earlier, for purposes of reference to the ‘‘calendar year 1990’’ interpret the periodic triennial the 2015 ozone NAAQS, we are (CAA section 182(a)(1)) can be inventory required by CAA section specifying that the baseline year shall be reasonably read to refer to that year 182(a)(3) as effectively supplanting the the calendar year for the most recently either as an area’s year of initial initial emissions inventory required by available triennial emissions inventory designation or as the year of the relevant preceding the year of the area’s effective CAA section 182(a)(1), because the emissions inventory. We therefore date of designation as a nonattainment revised periodic inventory must meet believe it is a reasonable interpretation area, but also allowing an alternative the same requirements as the initial of the statute that states should be able approach that provides states the option emissions inventory. We therefore to use an area’s designation year for the to use an area’s designation year as the believe it is a reasonable interpretation 2015 ozone NAAQS as the RFP baseline baseline year for RFP. This alternative of the CAA that RFP baseline year year, as an alternative to the calendar option is grounded in our interpretation emissions may correspond with the year for the most recent triennial of the RFP requirement in CAA section calendar year and contents of the emissions inventory. All states 182(b)(1)(B), which defines ‘‘baseline triennial inventory required by CAA associated with a multi-state emissions’’ in terms of total VOC and section 182(a)(3). We are finalizing our nonattainment area must consult and NO emissions in the area ‘‘during the approach that states shall use an RFP X agree on using the alternative baseline calendar year 1990.’’ There is clear year. baseline year for the 2015 ozone ambiguity in the statutory language at NAAQS that corresponds with the issue, since we do not believe Congress 3. Comments and Responses calendar year for the most recent intended 1990 to be the baseline year for Comment: The EPA received broad RFP requirements for all future ozone support for our proposal to retain the 14 CAA section 182(b)(1)(B) defines ‘‘baseline emissions’’ as the total amount of actual VOC or NAAQS. Therefore, the EPA must existing flexible approach to NOX emissions from anthropogenic sources in the develop a reasonable interpretation of establishing an RFP baseline year. area during calendar year 1990, which we have the baseline year provisions at issue. Commenters noted that an RFP baseline interpreted as corresponding with the emissions Note that section 93.119(e)(4) of the year fixed to an area’s designation may inventory for the area as of November 15, 1990; the development of an emissions inventory with that EPA’s transportation conformity rule not synchronize with the most recently reference date was required under CAA section requires that for any NAAQS available triennial emissions inventory 182(a)(1). promulgated after 1997 the baseline year at the time ROP/RFP plans are

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developed, may not be representative of ROP requirement for the 2015 ozone 1990 associated with the then-current 1- ozone-producing conditions for the area, NAAQS. The EPA applied this hour NAAQS. A 1990 baseline year for and/or would not account for early interpretation previously for purposes of areas designated in 2018 would be actions to reduce ozone precursor the 1997 and 2008 8-hour ozone impractical and an absurd result, emissions. A fixed RFP baseline year standards. The commenter claimed that especially for areas that were not could necessitate preparing separate the proposed 15 percent ROP nonattainment for the ozone NAAQS in emissions inventories, e.g., for requirement illegally allows ‘‘paper- 1990 and thus never subject to a past attainment demonstration modeling and only’’ reductions to substitute for the requirement to develop and use a 1990 RFP, at additional time and cost for air actual emission reductions intended by nonattainment area emissions inventory agencies with limited resources. Congress and articulated in the general for purposes of RFP. Assessing 15 Response: As discussed previously, rule for creditability of ROP reductions percent ROP only during the period the EPA’s creation of the state-selected in CAA section 182(b)(1)(C) (i.e., the 1990–1996 would be meaningless for a alternative RFP baseline year option for required reductions are creditable ‘‘to nonattainment area that must in 2018 the 2008 Ozone NAAQS SIP the extent they have actually begin achieving emissions reductions to Requirements Rule was rejected by the occurred’’). meet an ozone NAAQS with an court in South Coast II, because the Another commenter objected to the 15 attainment date in a year after 2018. court found that the EPA failed to percent ROP requirement in general, Comment: A number of commenters provide a statutory justification for why describing it as outdated, not disagreed with the EPA’s proposed alternative baselines were appropriate. necessitated under the current ozone requirement that creditable emission We agree with the commenter that standards, and increasingly difficult to reductions for 15 percent ROP and 3 under certain circumstances a single achieve given the decreases in ozone percent RFP must be obtained from fixed RFP baseline year could increase precursor emissions that have occurred sources within the nonattainment area. resource burden for air agencies. Thus, since the CAA was amended in 1990. If Several of the commenters referenced we are adopting an approach for the the EPA continues to implement the 15 our proposed requirement regarding 2015 ozone NAAQS that syncs the RFP percent ROP requirement, the control measures for out-of-area sources baseline with triennial emissions commenter argues that required in a state’s jurisdiction (see Section IV.C inventory reporting years, but permits emission reductions should be of this preamble), and questioned states to alternatively choose the year of measured against the 1990 baseline in whether it was reasonable that the EPA designation. all cases, and that states should have could require out-of-area emission Comment: One commenter argued discretion to apply NO or VOC X reductions for attainment purposes, that the EPA’s existing RFP baseline reductions toward the initial 15 percent while not crediting those reductions year approach is illegal because the Act (VOC) ROP increment. plainly specifies the RFP baseline year Response: The EPA disagrees that a toward RFP. in CAA section 182(b)(1)(B) (i.e., state must demonstrate that an area Response: The EPA disagrees with the calendar year 1990), and that RFP actually achieved the 15 percent ROP commenters. The proposed requirement requirements would therefore be within 6 years of the baseline year for that emission reductions must be triggered—and the RFP baseline year a prior NAAQS. Consistent with the obtained from within the nonattainment would be set—by the date an area is decision in NRDC v. EPA, 571 F.3d 1235 area to be creditable for ROP and RFP designated for the revised NAAQS. The (D.C. Cir. 2009), we continue to is the same as that adopted in the 2008 commenter claimed that where Congress maintain that if a state has already met Ozone NAAQS SIP Requirements Rule, wanted to authorize variation in the requirement to submit for approval which was challenged and upheld in implementing the ozone NAAQS, it did and to implement a nonattainment area South Coast II. The court in South Coast so expressly (e.g., allowing the ROP/RFP emissions reduction plan to II declared that the related statutory text Administrator to adjust SIP deadlines meet the requirements of CAA section is unambiguous, noting that RFP is for reclassified areas under CAA section 182(b)(1)(A) for either the 1-hour measured from ‘‘baseline emissions,’’ 182(i)). standard or a prior 8-hour standard, the which is defined in the CAA as ‘‘the Response: As discussed previously, state will not have to meet it again for total amount of actual VOC or NOX the court in South Coast II upheld the the 2015 ozone NAAQS. As noted emissions from all anthropogenic EPA’s selection of 2011, i.e., the most previously, the court in South Coast II sources in the area during the’’ baseline recent year from the 3-year statutory affirmed this approach for purposes of year.15 The court noted the singular cycle for emissions inventories, as the the 2008 Ozone NAAQS SIP term ‘‘the area’’ appears in a CAA default RFP baseline year for the 2008 Requirements Rule. section titled ‘‘Moderate Areas,’’ and not ozone NAAQS as reasonable. We are We also disagree with the comment a greater area (CAA section 182(b); see adopting this same approach for the that the 15 percent ROP is not necessary also CAA section 182(c)). The court 2015 ozone NAAQS, while also under current ozone standards and that, concluded, in considering the grammar allowing states to choose an alternative if required by the EPA, it should be and context of the CAA’s RFP RFP baseline year corresponding with measured against the 1990 baseline in provisions, that ‘‘in the area’’ an area’s designation year. For the all cases. The RFP regulation must unambiguously refers to baseline reasons cited previously, we believe comply with the CAA, and section emissions within the nonattainment both options are reasonable 182(b)(1) of the CAA explicitly requires area. South Coast II, 882 F.3d at 1146– interpretations of the CAA’s RFP that ozone nonattainment areas 47. Accordingly, the EPA concludes, as provisions in adapting those provisions classified as Moderate or higher submit we did in the 2008 Ozone NAAQS SIP to revised ozone NAAQS. an ROP plan to achieve a 15 percent Requirements Rule, that we have no Comment: A commenter objected to reduction in VOC baseline emissions legal basis for allowing RFP credits for the EPA’s proposed interpretation of over a 6-year period following the reductions outside the nonattainment CAA section 182(b)(1) that would baseline year. We continue to believe it area. consider areas with an approved 15 is reasonable to interpret that baseline percent ROP plan under a prior ozone year as the one associated with the 15 See CAA sections 182(b)(1)(A), (b)(1)(B), NAAQS to have satisfied the 15 percent revised ozone NAAQS and not the year (c)(2)(B), (d) and (e).

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F. Requirements for RACT and RACM states are not required to demonstrate we are retaining it for purposes of the RACT-level controls on a source-by- 2015 ozone NAAQS. The court held that 1. RACT source basis. This approach for ‘‘the plain language [of the CAA]—in a. Summary of Proposal. The EPA demonstrating RACT through area-wide the context of the interrelationship proposed to retain our existing general average emissions rates was recently between [42 U.S.C. sections] 7511a(b)(2) RACT requirements, which are codified upheld in South Coast II, 882 F.3d at and 7502(c)(1)—does not mandate for the 2008 ozone NAAQS at 40 CFR 1154. The EPA is also finalizing new RACT for each individual source.’’ 51.1112, and to add new deadline submittal and implementation deadlines South Coast II, 882 F.3d at 1154. In requirements for certain RACT SIP for certain RACT SIP revisions, as addition to holding that the CAA does submissions (see Section IV.B of this discussed in Section IV.B of this not require the approach advanced by preamble). For reference, the final 2008 preamble. the commenters, the court further held Ozone NAAQS SIP Requirements Rule c. Comments and Responses. that the EPA’s area-wide emissions provides an extensive discussion of the Comment: Two commenters stated that averaging approach for the 2008 ozone EPA’s rationale and approach for how the EPA should extend the submittal NAAQS, which is adopted again here air agencies can provide for RACT in deadline for RACT SIPs from 24 months for the 2015 ozone standards, is their nonattainment SIPs (80 FR 12278; to 36 months following the effective reasonable. Id. (‘‘The EPA’s March 6, 2015). date of a nonattainment area’s interpretation reasonably allows b. Final Rule. The EPA is retaining designation. nonattainment areas to meet RACT-level our existing general RACT requirements Response: The EPA has considered emissions requirements through for purposes of the 2015 ozone NAAQS. the comments regarding an extended averaging within a nonattainment These requirements, which are being submittal deadline for RACT SIP area.’’). codified at 40 CFR 51.1312(a) and (b), revisions, but, given the uncertainty address the content and timing of RACT regarding the statutory basis for 2. RACM SIP submittals and implementation, as providing such flexibility, does not a. Summary of Proposal. The EPA well as major source criteria for RACT interpret CAA section 182(b)(2) to allow proposed to retain our existing RACM applicability.16 Underlying these extending the deadline for RACT SIP requirements, which are codified for the general RACT requirements are well- submissions triggered by initial 2008 ozone NAAQS at 40 CFR 51.1112. established EPA policies and guidance, nonattainment area designations. We are The EPA also proposed to codify the including existing control techniques instead adopting an interpretation existing requirement under CAA section guidelines (CTGs) and alternative consistent with the requirement in the 172(c)(6) that, in addition to impacts of control techniques (ACTs).17 Consistent 2008 Ozone NAAQS SIP Requirements emissions from sources inside an ozone with the EPA’s prior guidance (80 FR Rule that RACT SIP submissions 12279; March 6, 2015), when triggered by initial nonattainment area nonattainment area, air agencies must determining what is RACT for a designations must be submitted based also consider the impacts of emissions particular source or source category, air on the timeframe provided in CAA from sources outside an ozone agencies should also consider all other section 182(b)(2), i.e., no later than 24 nonattainment area but within a state’s relevant information (including recent months after the effective date of boundaries, and to require such other technical information and information nonattainment designation for a specific measures for emissions reductions from received during the state’s public ozone NAAQS. As discussed in Section these intrastate sources as needed to comment period) that is available at the IV.B of this preamble, the EPA is attain the ozone NAAQS by the time they develop their RACT SIPs. The adopting an alternative approach for applicable attainment date (see Section EPA’s adopted RACT approach includes RACT SIP revisions triggered by IV.C of this preamble). For reference, the our longstanding policy with respect to nonattainment area reclassifications or final 2008 Ozone NAAQS SIP ‘‘area wide average emission rates.’’ the issuance of a new CTG. Requirements Rule describes the EPA’s This policy recognizes that states may Comment: Several commenters current rationale and approach for how demonstrate as part of their NOX RACT objected to the EPA proposing to retain air agencies can provide for RACM in SIP submission that the weighted our ‘‘area wide average emission rates’’ their nonattainment SIPs (80 FR 12282; average NOX emission rate of all sources approach for RACT. They contend that March 6, 2015). in the nonattainment area subject to the emissions averaging policy violates b. Final Rule. The EPA is retaining RACT meets NOX RACT requirements; the clear terms of the CAA, which they our existing general RACM argue requires each individual source to requirements for purposes of the 2015 16 The EPA has defined RACT as the most meet the NOX RACT requirement. One ozone NAAQS, as codified at 40 CFR stringent emission limitation that a particular commenter provided a legal analysis of 51.1312(c). The EPA interprets the source is capable of meeting by the application of control technology that is reasonably available statutory language and legislative RACM provision to require a considering technological and economic feasibility. history as confirming the source-specific demonstration that an air agency has See related discussion in ‘‘Guidance for basis of RACT requirements. The same adopted all reasonable measures Determining Acceptability of SIP Regulations in commenter also pointed to the EPA’s (including RACT) to meet RFP Non-Attainment Areas,’’ Memorandum from Roger 18 Strelow, Assistant Administrator for Air and Waste previous RACT guidance and the NOX requirements and to demonstrate Management, to Regional Administrators (December RACT exemption provisions of CAA attainment as expeditiously as 9, 1976) (Strelow Memorandum) and the proposed section 182(f)(1) and (2) as further practicable and, thus, that no additional General Preamble Supplement in 44 FR 53762 evidence of RACT’s source-specific measures that are reasonably available (September 17, 1979). Availability and feasibility may differ across sources in the same category. See basis. will advance the attainment date or 19 20 21 ‘‘Criteria for Determining RACT in Region IV,’’ Response: The EPA disagrees with the contribute to RFP for the area. Memorandum from John Calcagni, Chief, Economic commenters. As mentioned previously, Analysis Branch, to G.T. Helms, Jr., Chief, Control the D.C. Circuit recently upheld the 19 ‘‘State Implementation Plans; General Preamble Programs Operations Branch (June 19, 1985). RACT emissions averaging policy with for Proposed Rulemaking on Approval of Plan 17 The EPA’s CTGs and ACTs are available at: Revisions for Nonattainment Areas’’ 44 FR 20375 https://www.epa.gov/ozone-pollution/control- respect to the 2008 ozone NAAQS, and (April 4, 1979). ‘‘State Implementation Plans; techniques-guidelines-and-alternative-control- General Preamble for the Implementation of Title I techniques-documents-reducing. 18 See Strelow Memorandum. Continued

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Further, the EPA requires that air NAAQS do not relieve an area from for comments related to the EPA agencies consider all available CAA section 182(f) NOX obligations restating our existing policy on ozone measures, including those being under the 2015 ozone NAAQS. IPT. implemented in other areas, but must Consistent with current EPA policy, I. Ambient Monitoring Requirements adopt measures for an area only if those existing NOX exemptions for prior measures are economically and ozone standards remain valid for The EPA did not propose any changes technologically feasible and will purposes of determining applicable to the existing ozone ambient advance the attainment date, or if those requirements for implementing those monitoring requirements that are measures are necessary for RFP. The prior standards.22 codified in 40 CFR part 58. Monitoring EPA is retaining our existing general 3. Comments and Responses rule amendments published on October RACM requirements for the 2015 ozone NAAQS based on the current rationale The EPA received no significant 17, 2006 (71 FR 61236), established and approach articulated in the final adverse comments regarding our minimum ozone monitoring 2008 Ozone NAAQS SIP Requirements proposal to retain our existing NOX requirements based on population and Rule, and the requirements of CAA exemption provisions under CAA levels of ozone in an area to better section 172(c)(6). section 182(f) for purposes of the 2015 prioritize monitoring resources. The c. Comments and Responses. The EPA ozone NAAQS. minimum monitoring requirements are received no adverse comments on our H. General Nonattainment NSR contained in Table D–2 of appendix D proposal to retain our existing general Requirements to part 58. The Photochemical RACM requirements for purposes of the Assessment Monitoring Station (PAMS) 2015 ozone NAAQS. Our responses to 1. Summary of the Proposed Rule program collects ambient air comments regarding consideration of With one significant exception, the measurements in accordance with the other measures for emissions reductions EPA proposed to retain our NNSR enhanced monitoring requirements of from intrastate sources under CAA requirements contained at 40 CFR CAA section 182(c)(1). The rulemaking section 172(c)(6) are provided in Section 51.165 and part 51 Appendix S, which for the final 2015 ozone NAAQS IV.C of this preamble. include provisions for the included revisions to the PAMS preconstruction review and issuance of G. CAA Section 182(f) NOX Exemption requirements at 40 CFR part 58 (80 FR Provisions permits to proposed new major 65416; October 26, 2015). The revisions stationary sources and major were intended to provide a more 1. Summary of Proposal modifications locating in ozone spatially dispersed monitoring network, The EPA proposed to retain our nonattainment areas. The one exception reduce potential redundancy and existing NOX exemption provisions pertained to a proposal to address improve data value while providing under CAA section 182(f), which are interprecursor trading (IPT) for meeting monitoring agencies flexibility in codified for the 2008 ozone NAAQS at the offset requirement for ozone, which collecting additional information is discussed further in Section IV.D of 40 CFR 51.1113. These provisions needed to understand their specific this preamble. would allow a person or an air agency ozone issues. The EPA received no to petition the Administrator for an 2. Final Rule adverse comments on the existing part exemption from NOX obligations for the 58 ozone ambient monitoring 2015 ozone NAAQS under CAA section The EPA is adopting general NNSR requirements for the 2015 ozone requirements, and makes no changes to 182(f) for any area designated these existing requirements in this final nonattainment and for any area in an NAAQS at 40 CFR 51.1314, as proposed. As explained in Section IV.D of this rule. OTR. The EPA proposed that NOX exemptions granted for a previous ozone preamble, the EPA is restating our J. Requirements for an OTR NAAQS would not apply to relieve an existing policy on ozone IPT, which is currently codified at 40 CFR 1. Summary of Proposal area from CAA section 182(f) NOX obligations under the 2015 standards. 51.165(a)(11) and part 51 Appendix S, section IV.G.5, in response to a petition The EPA proposed to retain our 2. Final Rule for reconsideration. A basic existing OTR requirements, and to add The EPA is finalizing our proposal to understanding of how the NNSR new deadline requirements for certain RACT SIP revisions (see Section IV.B of retain the existing NOX exemption requirements would otherwise apply to provisions under CAA section 182(f) for the 2015 ozone NAAQS can be obtained this preamble). The OTR requirements purposes of the 2015 ozone NAAQS, as from the preamble discussion at Section for the 2008 ozone NAAQS, which are codified in 40 CFR 51.1116, establish codified at 40 CFR 51.1313. NOX VIII.C in the final rule establishing the exemptions granted for any prior ozone 2015 ozone NAAQS. See 80 FR 65442 the general applicability of CAA (October 26, 2015). sections 176A (interstate transport commissions) and 184 (control of of the Clean Air Act Amendments of 1990; 3. Comments and Responses Proposed Rule.’’ 57 FR 13560 (April 16, 1992). interstate ozone air pollution), and 20 ‘‘Guidance on the Reasonably Available The EPA received no significant stipulate the criteria and timing for Control Measures (RACM) Requirement and adverse comments regarding our RACT SIP submittals and RACT Attainment Demonstration Submissions for Ozone proposed general NNSR requirements. Nonattainment Areas,’’ Memorandum from John S. implementation for those portions of Seitz, Director, OAQPS. November 30, 1999. Please see Section IV.D of this preamble states located in an OTR (see 80 FR Available at: https://www3.epa.gov/ttn/naaqs/ 12295; March 6, 2015). With the _ _ _ 22 aqmguide/collection/cp2/19991130 seitz racm ‘‘Guidance on Limiting Nitrogen Oxides (NOX) guide_ozone.pdf. Requirements Related to 8-Hour Ozone exception of additional submission and 21 ‘‘Additional Submission on RACM from States Implementation,’’ Memorandum from Stephen D. implementation deadlines for certain with Severe One-Hour Ozone Nonattainment Area Page, Director, OAQPS, to Air Directors, Regions I– RACT SIP revisions (see Section IV.B of SIPs,’’ Memorandum from John S. Seitz, Director, X (January 14, 2005), available at: https:// this preamble), the EPA proposed to OAQPS, December 14, 2000, available at: https:// www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/ www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/ 20050114_page_guidance_8-hr_ozone_nox_ retain the same requirements for the 20001214_seitz_additional_racm_submissions.pdf. exemptions.pdf. 2015 ozone NAAQS, without revision.

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2. Final Rule (subpart AA of part 51) shall replace the emissions sources outside of the U.S., The EPA is finalizing the proposed implementation provisions for the and through CAA section 179B OTR requirements. The adopted previous 1997 standards (subpart X of (‘‘International Border Areas’’), Congress requirements for purposes of the 2015 part 51) after revocation of the 1997 provided the EPA with the authority to ozone NAAQS are codified at 40 CFR NAAQS, except for anti-backsliding address the impact of international 51.1316. purposes. The EPA proposed to retain emissions in areas designated the same applicability provision for nonattainment. Specifically, Congress 3. Comments and Responses purposes of the 2015 ozone NAAQS, provided that the EPA could approve The EPA received no adverse except that the proposed new attainment plans for areas that could comments specific to the proposed OTR implementation provisions (to be attain the relevant NAAQS by the requirements. codified in subpart CC of part 51) would statutory attainment date ‘‘but for’’ replace those for the 2008 ozone emissions emanating from outside the K. Fee Programs for Severe and Extreme NAAQS (subpart AA) if the 2008 U.S. When applicable, this CAA Nonattainment Areas That Fail To standards are revoked for all purposes, provision relieves states from imposing Attain except for anti-backsliding purposes. control measures on emissions sources 1. Summary of Proposal As discussed in Section II of this in the state’s jurisdiction beyond those preamble, the EPA is not taking any required to address reasonably For the 2015 ozone NAAQS the EPA final action regarding our approach for controllable emissions from within the proposed to retain without revision our revoking a prior ozone NAAQS and U.S. Specifically, CAA section 179B(a) existing fee program SIP submission establishing anti-backsliding provides that the EPA shall approve an requirements for ozone nonattainment requirements; the agency intends to attainment plan for such an area if: (i) areas classified Severe or Extreme, address any revocation of the 2008 The attainment plan meets all other which are codified for the 2008 ozone ozone NAAQS and any potential anti- applicable requirements of the CAA, NAAQS in 40 CFR 51.1117. backsliding requirements in a separate and (ii) the submitting state can 2. Final Rule future rulemaking. As a result, we are satisfactorily demonstrate that, ‘‘but for not finalizing the proposed applicability emissions emanating from outside the The EPA is finalizing the proposed provision discussed in this section at United States,’’ the area would attain requirements. The adopted fee program this time, which would be dependent on and maintain the relevant NAAQS. In provisions, codified for the 2015 ozone the particular approach that we take to addition, CAA section 179B(b) applies NAAQS at 40 CFR 51.1317, require any revocation action for 2008 ozone specifically to the ozone NAAQS and states with ozone nonattainment areas NAAQS that we may issue in the future. provides that if a state demonstrates that classified Severe or Extreme to submit a M. International Transport an ozone nonattainment area would SIP revision that meets the requirements have timely attained the NAAQS by the of CAA section 185 (Enforcement for Domestic ozone air quality can be applicable attainment date ‘‘but for Severe and Extreme ozone influenced by emissions sources located emissions emanating from outside of the nonattainment areas for failure to attain) outside of the U.S. These contributions United States,’’ then the area need not to U.S. ozone concentrations from within 10 years of the effective date of apply for an extension of the ozone sources outside of the U.S., which can an area’s nonattainment designation. attainment dates pursuant to CAA be from nearby sources in a bordering For nonattainment areas reclassified to section 181(a)(5), and is not subject to country or from sources many Severe or Extreme from a lower the stationary source fee program thousands of miles away,23 can affect to classification after the date of their provisions of CAA section 185 and the varying degrees the ability of some areas initial nonattainment designation, the mandatory reclassification provisions to attain and maintain the 2015 ozone EPA retains the ability to set an under CAA section 181(b)(2) 24 for areas NAAQS. The EPA continues to work alternative deadline for the section 185 that fail to attain the ozone NAAQS by with air agencies and other countries to SIP submission, if appropriate, in the the applicable attainment date. Section better understand the extent and final action reclassifying the area. We 179B, thus, can be an important tool implications of transboundary flows of anticipate that adjusting the section 185 that provides states relief from the air pollutants and, where possible, to SIP submission deadline could be requirement to demonstrate mitigate their impact on U.S. domestic appropriate in situations where the attainment—and from the more air quality. reclassification action occurs on a date stringent planning requirements that that is unreasonably near to or past the In most areas in the U.S. with monitors that exceed the NAAQS, would result from failure to attain—in 10-year deadline applicable to areas areas where, even though the air agency initially designed Severe or Extreme. modeling studies demonstrate that the exceedances are due primarily to has taken appropriate measures to 3. Comments and Responses anthropogenic emissions sources within address air quality in the affected area, emissions from outside of the U.S. The EPA received no adverse the U.S. However, Congress recognized prevent attainment. comments on the proposed the possibility that in some requirements. nonattainment areas the ability to attain 1. Summary of Proposal the NAAQS may be impacted by L. Applicability The EPA proposed a requirement that all demonstrations under CAA section The EPA proposed to retain the 23 Observational and modeling studies have 179B(b), regardless of an area’s provision that establishes applicability shown that international ozone precursor emissions can lead to ozone formation within the atmospheric of the current ozone NAAQS boundary layer over far-upwind areas. When 24 The EPA’s longstanding view is that CAA implementation provisions with respect meteorological conditions are favorable, this ozone section 179B(b) contains an erroneous reference to to the prior ozone NAAQS, which is can be transported within the mid- and upper section 181(a)(2), and that Congress actually codified for the 2008 ozone NAAQS at troposphere where ozone lifetimes can exceed one intended to refer here to section 181(b)(2). See week. Eventually, these ozone plumes can mix ‘‘State Implementation Plans; General Preamble for 40 CFR 51.1119. This applicability down to the surface and contribute to local ozone the Implementation of Title I of the Clean Air Act provision states that the implementation concentrations within the U.S. Task Force on Amendments of 1990,’’ 57 FR 13498, 13569 n. 41 provisions for the 2008 ozone standards Hemispheric Transport of Air Pollution, 2010. (April 16, 1992).

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classification (including nonattainment The EPA encourages air agencies to Response: The EPA is not finalizing areas classified as Marginal), must coordinate with their EPA Regional our proposed requirement that all include a showing that the air agency office to identify approaches to evaluate demonstrations under CAA section has adopted all RACM, including RACT, the potential impacts of international 179B(b) must include a showing that the for the area in accordance with CAA transport and to determine the most air agency adopted all RACM, including section 172(c)(1), 42 U.S.C. 7502(c)(1). appropriate information and analytical RACT. The Act does not require We also asked for comment on whether methods for each area’s unique implementation of RACM/RACT in the opportunity for air agencies to situation. The EPA will also work with Marginal ozone nonattainment areas submit demonstrations under CAA air agencies that are developing under the relevant implementation section 179B should be limited to attainment plans for which CAA section provisions in subpart 2, and nothing in nonattainment areas adjoining 179B is relevant, and ensure the air 179B alters the statutory requirements international borders, and on any agencies have the benefit of the EPA’s with respect to RACM/RACT obligations technical and legal basis for determining understanding of international transport in subpart 2. The EPA believes the whether it is appropriate to have, or of ozone and ozone precursors. Air CAA’s specific provisions for ozone conversely whether it is appropriate not agencies are encouraged to consult with Marginal areas in section 182(a) rather to have, such a geographic limitation. their EPA Regional office to establish than general nonattainment provisions The proposal noted that the science appropriate technical requirements for in section 172(c)(1) prescribe the review supporting the 2015 ozone these analyses. In addition, the EPA is specific SIP revision requirements for NAAQS suggested that the influence of currently developing supplementary such areas. In section 182(a), the CAA international sources on U.S. ozone technical information and guidance to states ‘‘Each state [with a Marginal area] levels will be largest in locations near assist air agencies in preparing shall . . . submit to the Administrator the borders of Mexico or Canada (80 FR demonstrations that meet the the state implementation plan revisions 65292, 65444; October 26, 2015) and requirements of CAA section 179B. (including the plan items) described that, historically, only states with under this subsection . . .’’ (emphasis 3. Comments and Responses nonattainment areas in the immediate added). Subsection 182(a) does not list vicinity of the Mexican border have Comment: The EPA received RACM/RACT as a plan item. This is in submitted CAA section 179B numerous comments on our proposed clear contrast to the provisions in demonstrations to the EPA (81 FR RACM/RACT requirement for all subsection 182(b) for Moderate and 81303; November 17, 2016). demonstrations under CAA section higher classified areas, which identifies 179B(b) (including for Marginal areas), specific RACT requirements (e.g., 2. Final Rule and providing feedback on whether section 182(b)(2)) and plan submissions The EPA is not finalizing our CAA section 179B applicability should that ‘‘provide such specific annual proposed requirement that all be limited to nonattainment areas reductions in emissions . . . as demonstrations under CAA section adjoining international borders. There necessary to attain . . .’’ For this final 179B(b) must include a showing that the was broad objection to both approaches, rule, we are adopting our existing air agency adopted all RACM, including which many commenters interpreted as approach grounded in the plain RACT. restricting the potential use of CAA language of CAA section 179B(b), which The EPA is choosing to not adopt our section 179B for attainment plans under applies specifically to the ozone proposal for this final rule because the the 2015 ozone NAAQS. NAAQS and does not explicitly modify Act does not require states to implement Response: As discussed previously, the subpart 2 planning requirements in RACM/RACT in Marginal ozone the EPA is not interpreting CAA section CAA section 182 to require RACM/ nonattainment areas. For purposes of 179B as requiring that demonstrations RACT for Marginal areas. CAA section 179B demonstrations for under CAA section 179B(b) for Marginal IV. Provisions of the 2008 Ozone the 2015 ozone NAAQS, we are areas include a showing that the air NAAQS Implementing Regulations To maintaining the approach used for prior agency adopted all RACM, including Be Retained With Specific Revisions ozone standards that only areas RACT. We are also finalizing our classified Moderate and higher must existing approach that does not restrict For purposes of implementing the show that they have implemented the use of CAA section 179B 2015 ozone NAAQS, we are RACM/RACT. demonstrations to areas adjoining promulgating several regulatory In the proposal, the EPA also solicited international borders. provisions that are similar to the comment on whether—but did not Comment: Several commenters corresponding implementation propose that—demonstrations under supported the proposed RACM/RACT provisions for the 2008 ozone NAAQS, CAA section 179B should be limited requirement for all demonstrations but with modifications to reflect only to nonattainment areas adjoining under CAA section 179B(b). One application to the 2015 ozone NAAQS, international borders. After considering commenter stated that CAA section as explained later. The existing comments received, we are not adopting 179B does not alter the subpart 1 implementation provisions for the 2008 any geographic limitation on the use of requirement in CAA section 172(c)(1) standards are codified at subpart AA of CAA section 179B for purposes of the that all SIPs provide for implementation 40 CFR part 51, and the corresponding 2015 ozone NAAQS. We are instead of RACM/RACT as expeditiously as provisions for the 2015 standards will clarifying that a demonstration prepared practicable. The same commenter also now be codified at subpart CC of part under CAA section 179B could consider argued that failure to require RACM/ 51. The revised provisions for the 2015 emissions emanating from North RACT for Marginal areas seeking relief standards address SIP requirements American or intercontinental sources under CAA section 179B would upset pertaining to MCD for RFP; the and is not restricted to areas adjoining the subpart 2 scheme for reclassification submission and implementation international borders, consistent with and implementation of basic reasonable deadlines for RACT SIP revisions; the the approach articulated in the control measures, and prevent consideration of intrastate pollution preamble of the 2008 Ozone NAAQS attainment of the NAAQS as sources outside of a nonattainment area SIP Requirements Rule. expeditiously as practicable. for attainment planning purposes;

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NNSR IPT for ozone; and emissions 1. Summary of Proposal The EPA is adopting a similar inventories and emissions statements. The EPA proposed that an air agency approach for MCDs for the 2015 ozone NAAQS. We interpret CAA sections A. Requirements for RFP: Milestone will have the option to demonstrate 182(g)(1) and 182(g)(2) as imposing two Compliance Demonstrations milestone compliance in terms of either: separate obligations on an air agency: (1) The EPA proposed to revise our RFP (1) Compliance with control measures requirements in an RFP plan that To determine whether an affected provisions for purposes of the 2015 nonattainment area has achieved an ozone NAAQS to address MCDs complies with the requirements of the CAA (e.g., percent implementation), or incremental emissions reduction required under CAA section 182(g) for corresponding with the RFP milestone; ozone nonattainment areas classified (2) actual emissions reductions, as demonstrated with periodic emissions and (2) to demonstrate to the Serious or higher. The RFP regulatory satisfaction of the Administrator that the inventory data required under CAA provisions for the 2008 ozone NAAQS RFP milestone has been met. We believe section 182(a)(3)(A). In considering the characterize the emissions reductions it would be sufficient for purposes of form and content of an ozone MCD and time intervals that constitute RFP CAA section 182(g)(2) for an air agency submittal, the EPA referenced the milestones, but do not address the to demonstrate milestone compliance in parallel regulatory requirements for fine requirements for demonstrating terms of compliance with control particulate matter (PM ), which were compliance with these milestones. 2.5 measures requirements in the approved added in the 2016 final implementing CAA section 182(g)(1) requires that RFP plan (e.g., percent implementation), regulations for the PM NAAQS.25 The states demonstrate whether 2.5 because the approach is grounded in SIP nonattainment areas classified Serious, EPA also considered the amount of time provisions that correlate control Severe or Extreme have achieved allowed in the statute for states to make measures and resulting emissions incremental RFP emission reductions the required submittal. reductions. As an alternative, an air needed to ensure attainment of the 2. Final Rule agency could rely on periodic, triennial NAAQS by the prescribed applicable emissions inventory data for The EPA is finalizing MCD time intervals (i.e., milestones). The demonstration purposes where the requirements for RFP as proposed. statute establishes an initial milestone appropriate data are obtainable within These requirements, codified at 40 CFR date of 6 years after November 15, 1990, the 90-day MCD submittal timeframe.29 51.1310(c), are consistent with the PM and at intervals of 3 years thereafter. 2.5 In all cases, the EPA would review each SIP Requirements Rule.26 Similar to the These milestones are established in the RFP plan submission on a case-by-case statutory requirements for ozone, CAA general RFP requirements of CAA basis to determine whether the section 189(c)(1) establishes a 3-year sections 182(c)(2)(B) for Serious areas. milestones contained in the plan are cycle for PM milestones. For both Sections 182(d) and 182(e) incorporate 2.5 specific enough to provide an objective pollutants, the CAA provides those requirements for, respectively means for evaluating the area’s progress Severe and Extreme areas. Accordingly, Administrator discretion in setting the toward attainment, consistent with the the timeline for Serious areas provided form and content of the milestone 27 statutory requirements of CAA section in section 182(c)(2)(B) also applies to demonstration submittal. 182(g). Severe and Extreme areas. The PM2.5 SIP Requirements Rule We are providing additional guidance CAA section 182(g)(2) requires that requires that the quantitative milestones on the MCD submission process in this states submit to the Administrator a be constructed such that they can be final rule. Consistent with the EPA’s tracked, quantified and/or measured demonstration that an RFP milestone process for PM2.5 quantitative has been met, not later than 90 days adequately in order for an air agency to milestones, the EPA believes it would after the applicable milestone date. meet its milestone reporting obligations, be appropriate for MCD to be submitted Section 182(g) refers to the required which come due 90 days after a given from the Governor or Governor’s emissions reduction for the time milestone date. For PM2.5, the EPA designee to the Regional Administrator interval as the ‘‘applicable milestone.’’ interprets CAA section 189(c) to allow of the respective EPA Regional office Section 182(g)(2) of the CAA states that air agencies to identify milestones that serving the submitting state. The EPA the form, manner of submittal and are suitable for the specific facts and will notify the state of our contents of the required compliance circumstances of the attainment plan for determination (regarding whether or not demonstration shall be set by the a particular area, so long as they provide the state’s demonstration is adequate) by Administrator by rule. an objective means to measure RFP.28 sending a letter to the appropriate CAA sections 182(g)(3) and (g)(5) 25 establish measures a state ‘‘shall elect’’ See ‘‘Fine Particulate Matter National Ambient as percent implementation of control strategies, to implement if the state fails to submit Air Quality Standards: State Implementation Plan percent compliance with implemented control Requirements’’ 81 CFR 58063–64; August 24, 2016), a MCD by the due date or the EPA measures and adherence to a compliance schedule. hereafter PM2.5 SIP Requirements Rule. This list was not exclusive or exhaustive but determines that a milestone was not 26 See id. reflected the EPA’s view that the purpose of the met. For Serious and Severe areas, an air 27 CAA sections 182(g)(2) and 189(c)(2) share the quantitative milestone requirement is to provide an agency shall elect within 90 days of the same basic milestone demonstration submittal objective way to determine whether the area is failure or determination to: (1) Have the requirements, i.e., not later than 90 days after the making the necessary progress towards attainment applicable milestone date, each State in which all by the applicable attainment date (59 FR 41998 at area reclassified to the next higher or part of such area is located shall submit to the 42016; August 16, 1994). classification; (2) implement additional Administrator a demonstration that the milestone 29 Triennial emissions reporting periods are set by measures to meet the next milestone per has been met. A demonstration shall be submitted regulation in the AERR at 40 CFR part 51, subpart the applicable contingency plan; or (3) in such form and manner, and shall contain such A. The most recent and upcoming reporting years information and analysis, as the Administrator shall adopt an economic incentive program as are 2017, 2020, 2023 and 2026, where the reports require. For PM2.5, the statute further qualifies that are due to the EPA by December 31 of the calendar described in CAA section 182(g)(4). For the submittal must also demonstrate that all year that follows the reporting year. As discussed an Extreme area, an air agency shall measures in the SIP have been implemented. in Section IV.E of this preamble, the adopted within 9 months of the failure or 28 In the Addendum to the General Preamble, the regulations for the 2015 ozone NAAQS provide that EPA suggested (for implementation of the PM10 states may use the most recent triennial report determination submit a SIP revision to NAAQS) possible metrics that ‘‘support and period emissions inventory to satisfy the implement a CAA section 182(g)(4) demonstrate how the overall quantitative nonattainment area reporting requirements of CAA economic incentive program. milestones identified for an area may be met,’’ such section 182(a)(3)(A). See 40 CFR 51.1315(b).

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Governor or Governor’s designee or, provides an objective means to measure after the effective date of initial area alternatively, by publishing a notice in RFP. designations, and implementation of the the Federal Register. The EPA Comment: Two commenters RACT SIP revisions no later than encourages states to submit MCDs, supported the EPA’s proposed MCD January 1 of the fifth year after the including supporting documents, requirements and urged the agency to effective date of initial designations. through the agency’s electronic SIP issue related guidance. One of the Regarding mandatory reclassifications submission system 30 in order to commenters noted that the proposed pursuant to CAA section 181(b)(2), CAA simplify the process and reduce MCD regulations were silent on the form section 182(i) allows the Administrator resource burden on all sides. The EPA and manner of submittal, and requested to adjust applicable deadlines believes it is consistent with statutory that the EPA clarify who is required to (excluding attainment dates), including requirements to not consider MCDs to submit the MCD, whether the those for SIP submissions and be formal SIP revisions subject to CAA submission is considered a SIP revision, implementation. For voluntary public notice and comment and whether public notice would be reclassifications, CAA section 181(b)(3) requirements. required for the MCD. The same does not establish a precise timeframe commenter further requested that the for submitting SIP revisions. The EPA’s 3. Comments and Responses EPA clarify whether historical general practice is to establish SIP emissions inventory data can be used revision submission deadlines as part of Comment: One commenter argued for MCDs where the required RFP the action granting an air agency’s that an ‘‘actual emissions reductions’’ reduction was achieved in advance of request for voluntary area approach using emissions inventory the applicable milestone date. reclassification. data is the only lawful and rational Response: The EPA has provided The EPA is retaining these general approach for demonstrating RFP additional guidance on the MCD RACT provisions for purposes of the milestone compliance. Because the Act submission process in this final rule 2015 ozone NAAQS, based on the defines RFP baseline emissions in terms preamble, as explained earlier, and rationale articulated in the final 2008 of actual VOC or NOX emissions (see intends to develop more detailed Ozone NAAQS SIP Requirements Rule CAA section 182(b)(1)(B)), the guidance for preparing RFP MCD for (see Section III.F of this preamble). commenter contended that RFP can ozone and PM2.5. Regarding the use of However, the existing RACT provisions only be satisfied by actual emission historical emissions inventory data in do not specify deadlines for some RACT reductions. This interpretation, they MCDs, we believe our adopted MCD SIP revision submittal and claimed, is supported by the CAA’s requirements would accommodate this implementation requirements triggered legislative history and the EPA’s approach, so long as the MCD by events occurring after initial area General Preamble. Further, the submission provided a sufficiently designations, including area commenter notes that RFP must address objective means for evaluating the area’s reclassifications and the issuance of ‘‘any growth in emissions after’’ the progress toward attainment, consistent new CTGs. The following sections baseline year (see CAA sections with the statutory requirements of CAA address the RACT submittal and 182(b)(1)(A)(i) and 182(c)(2)(B)) and, section 182(g). implementation deadlines for these therefore, only actual emissions would post-designation scenarios. be sufficient to gauge compliance with B. Requirements for RACT: Deadlines an RFP baseline. for Submittal and Implementation of 1. RACT SIP Revision Submittal and RACT SIP Revisions Implementation Deadlines for Newly Response: The EPA disagrees with the Reclassified Areas commenter that actual emissions The EPA proposed new RACT SIP reductions are the only possible basis revision submission and a. Summary of Proposal. The EPA for demonstrating RFP milestone implementation deadlines for specific proposed default submission and compliance under CAA section 182(g). kinds of triggering events that may implementation deadlines for SIP occur after the EPA has initially For PM the statute requires revisions resulting from area 2.5, designated areas under a revised ozone quantitative milestones that reclassifications that occur after initial NAAQS. The RACT provisions demonstrate RFP, whereas for ozone area designations under an ozone established in the 2008 Ozone NAAQS 31 CAA section 182(g)(1) uses the term NAAQS. This includes mandatory SIP Requirements Rule address RACT ‘‘applicable milestone’’ to refer to the reclassification to a higher classification SIP revision submission and required RFP emissions reduction. upon failure to attain (pursuant to CAA implementation deadlines for areas However, CAA section 182(g)(2) section 181(b)(2)) and voluntary (including portions of a state located in specifically provides the Administrator reclassification to a higher classification an OTR) subject to initial designation upon an air agency’s request (pursuant the authority and discretion to establish and existing RACT requirements, to CAA section 181(b)(3)). We proposed the ‘‘form and manner’’ of MCDs, and including requirements described in that, following a reclassification action, the EPA is exercising this authority and existing CTGs. CAA section 182(b)(2) RACT SIP revisions be submitted no discretion through the regulations establishes that a state shall submit a later than 24 months after the effective adopted in this final rule. We encourage SIP revision to provide for date of reclassification, or by an air agencies to work with their EPA implementation of RACT by 2 years alternative deadline established by the Regional office to develop a MCD after November 15, 1990, and provide Administrator as part of the action suitable for the specific facts and for RACT implementation as circumstances of the attainment plan for expeditiously as practicable, but no later 31 For purposes of this preamble discussion, a particular area (addressing, as than May 31, 1995 (approximately 54 ‘‘reclassification’’ is assumed to encompass appropriate, the potential emissions nonattainment areas being reclassified to a higher months from the enactment date of the growth noted by the commenter), which classification, attainment areas being redesignated 1990 CAA Amendments). As codified as nonattainment and assigned an initial for the 2008 ozone NAAQS at 40 CFR classification of Moderate or higher, and new OTR 30 State Planning Electronic Collaboration System 51.1112, the EPA interpreted this CAA assignments. Similarly, ‘‘RACT SIP revision’’ is (SPeCS) for SIPs. For more information see https:// assumed to encompass initial RACT SIPs triggered www.epa.gov/air-quality-implementation-plans/ timeframe to require submittal of RACT by an initial area classification of—or submit-sips-online. SIP revisions no later than 24 months reclassification to—Moderate or higher.

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reclassifying an area. We proposed that 51.1312(a)(3)(ii) incorrectly omitted the flexibility within the fixed outer bound the RACT SIP revisions be implemented alternative implementation deadline— of an area’s maximum attainment date, as expeditiously as practicable, but no i.e., it omitted the phrase ‘‘start of the by retaining the Administrator’s later than the start of the attainment attainment year ozone season associated discretion under CAA section 182(i) to year ozone season associated with the with the area’s new attainment set alternative RACT SIP submission area’s new attainment deadline, or deadline’’—and we have added this and implementation deadlines where January 1 of the third year after the language to the final rule regulatory text, appropriate. This discretion could associated SIP revision submittal consistent with the discussion in the potentially apply to the extended deadline, whichever is earlier. We also preamble to the proposed rulemaking. submission and implementation proposed that the Administrator would These default deadlines are grounded in deadlines suggested by some retain existing authority to establish a the construct of the overall RACT SIP commenters, though the degree of different implementation deadline as revision submission and flexibility would be dictated by the part of the action reclassifying an area. implementation timeframe articulated available compliance timeframe, This proposed approach would apply to in section 182(b)(2) of the CAA, and are bounded by a reclassified area’s nonattainment area reclassifications. also intended to, where possible, maximum attainment date. For example, b. Final Rule. The EPA is finalizing provide at least one full ozone season in an air agency that anticipates an area the proposed deadlines with advance of an area’s maximum will not timely attain can request a clarifications, as codified at 40 CFR attainment date for implemented voluntary reclassification under CAA 51.1312(a)(2) and (3). To address controls to achieve emission reductions. section 181(b)(3), which would provide reclassification scenarios, we are c. Comments and Responses. more time and potential flexibility for adopting default submission and Comment: Several commenters required RACT SIP submissions and implementation deadlines for resulting expressed the general concern that the implementation than would a later SIP revisions. Following a default timelines would not provide mandatory reclassification under CAA reclassification action, RACT SIP sufficient time for submission and/or section 181(b)(2) upon actual failure to revisions must be submitted no later implementation of RACT SIP revisions attain. than 24 months after the effective date triggered by reclassification actions, At the same time, the EPA believes it of reclassification, or by an alternative with some commenters suggesting that is important to provide default deadline established by the air agencies should have 3 years to submission and implementation Administrator as part of the action prepare and submit the required SIP deadlines grounded in our overall reclassifying an area. RACT SIP revision. Another commenter said that approach for RACT SIP revisions revisions must be implemented as the EPA should not establish RACT outlined in CAA section 182(b), in the expeditiously as practicable, but no later deadlines more stringent than those for event that the Administrator does not than the start of the attainment year similarly classified areas, and that it exercise his or her discretion to set ozone season associated with the area’s should be a state’s responsibility to alternative deadlines in a new attainment deadline, or January 1 determine what is ‘‘as expeditiously as reclassification action. Regarding the of the third year after the associated SIP practicable’’ as it relates to the schedule comment that the EPA should not revision submittal deadline, whichever for submitting its required SIP revision. establish RACT deadlines more is earlier. We are clarifying that the term Response: The EPA acknowledges the stringent than those for similarly ‘‘ozone season attainment year’’ used in commenters’ general concern that classified areas, we disagree and note the preamble to the proposed mandatory reclassification actions can that (particularly for mandatory rulemaking should read ‘‘attainment limit the time available to submit and reclassification actions) the year ozone season’’ as correctly implement required RACT SIP Administrator cannot alter the presented in the proposed regulatory revisions, but emphasizes that CAA reclassified area’s maximum attainment definition at 40 CFR 51.1300(i). The section 182(i) does not allow the EPA to date, which necessarily provides a Administrator retains authority to extend the maximum attainment date shorter RACT SIP timeframe than for establish different RACT SIP revision corresponding with an area’s new areas initially assigned the same submission and implementation classification. We have noted this classification. The EPA disagrees with deadlines as part of the action statutory constraint previously in the comment that it should be a state’s reclassifying an area. establishing the SIP revision submission responsibility to determine what is ‘‘as We are also in this final rule clarifying expeditiously as practicable’’ as it deadline for nonattainment areas the implementation deadline for RACT relates to the schedule for submitting reclassified to Moderate after failing to SIP revisions triggered by their required SIP revision. The attain the 2008 ozone NAAQS by the reclassification actions that occur after language of CAA section 182(b)(2) Marginal attainment date of July 20, initial area designations. As presented clearly establishes the statutory basis for 2015. In the face of the impending in the preamble to the proposed RACT SIP submission deadlines, while Moderate area attainment date (July 20, rulemaking, these RACT SIP revisions qualifying that the SIP revisions shall 2018), the EPA exercised our authority must be implemented as expeditiously provide for implementation of required under CAA section 182(i) to set a as practicable, but no later than the start measures as expeditiously as uniform SIP submission deadline for of the attainment year ozone season practicable, but not later than a date that associated with the area’s new affected areas at the latest date the EPA interprets relative to the attainment deadline, or January 1 of the compatible with the RACT Moderate area attainment date. third year after the associated SIP implementation deadline for Moderate Comment: A commenter remarked 32 revision submission deadline, areas (81 FR 26699; May 4, 2016). that the proposed default deadlines for whichever is earlier. The Administrator Our adopted requirements are RACT SIP revisions triggered by also has the authority to establish a intended to maximize planning reclassification actions could result in different implementation deadline as implementation deadlines occurring 32 That latest compatible date for the 2008 ozone part of the reclassification action (81 FR NAAQS was no later than January 1 of the 5th year after a reclassified area’s maximum 81293; November 17, 2016). The after the effective date of designation for the attainment date. The commenter proposed regulatory text in 40 CFR NAAQS, i.e., January 1, 2017. provided an example scenario where a

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nonattainment area initially classified as potentially be January 1 of the third year alternative submission deadline as part Marginal (e.g., in 2017) fails to attain by after the associated SIP revision of a CTG action. the Marginal attainment date (in 2020) submission. This approach is While CAA section 182(b)(2) and is reclassified to Moderate (in compatible with the statutory addresses the submission requirements 2021), with its RACT SIP submission requirement for areas initially classified for RACT SIP revisions triggered by new due 2 years later (in 2023). The Serious and higher, which must CTGs, the CAA is otherwise silent commenter goes on to illustrate how implement RACT no later than January regarding the schedule for applying a default RACT 1 of the fifth year after the effective date implementation of those RACT SIP implementation deadline of no later of designation (i.e., the attainment year revisions triggered by new CTGs. When than January 1 of the third year after the for Moderate areas), and are thus new CTGs are issued, these RACT SIP associated SIP revision submission afforded additional time for revisions would be applicable to areas deadline would place that default implemented controls to achieve classified Moderate or higher, and to implementation deadline later than the emission reductions. any portion of a state located in an OTR. 2023 attainment date for Moderate 2. RACT SIP Revision Submittal and For CTGs in effect at the time of initial areas. The commenter noted it was Implementation Deadlines Associated area designations for a revised NAAQS, arbitrary and unlawful for the EPA to With New Control Techniques the EPA has interpreted the relevant propose default deadlines that Guidelines CAA provisions to require contravene statutory structure in this implementation of related RACT SIP manner. a. Summary of Proposal. The EPA revisions as expeditiously as Response: The EPA disagrees with the proposed two approaches for practicable, but no later than January 1 commenter that our default submission establishing submission and of the fifth year after the effective date and implementation deadlines for RACT implementation deadlines for SIP of initial designations for the revised SIP revisions triggered by area revisions triggered by new CTGs issued NAAQS (80 FR 12279; March 6, 2015). reclassifications contravene the CAA. by the EPA after the promulgation of For RACT SIP revisions triggered by The default submission deadline of no initial area designations under a revised new CTGs issued after initial area later than 24 months after the effective ozone NAAQS. Under the first designations, we are adopting the date of reclassification is grounded in approach, we proposed a RACT SIP proposed default implementation our longstanding interpretation of the submission deadline of no later than 24 deadline of no later than January 1 of RACT SIP submission timeframe in months after the effective date of the the third year after the associated SIP CAA section 182(b)(2). As discussed action issuing the CTG, or the deadline revision submission deadline. We previously, we are clarifying and established by the Administrator in the anticipate that this adopted default adopting in this final rule our proposed action issuing the CTG, and that RACT implementation deadline will provide default implementation deadline that SIP revisions must be implemented no an overall RACT schedule similar to requires RACT SIP revisions to be later than January 1 of the third year that for sources subject to CTG implemented as expeditiously as after the associated SIP revision requirements upon initial area practicable, but no later than the start of submission deadline. Under the second designations. the attainment year ozone season approach, we also articulated the We are also articulating in this final associated with the area’s new Administrator’s authority to establish a rule the Administrator’s authority to attainment deadline, or January 1 of the deadline for implementing RACT SIP establish an alternative to the default third year after the associated SIP revisions as part of the action issuing a deadline for implementing RACT SIP revision submission deadline, new CTG. These proposed approaches revisions, as part of the action issuing a whichever is earlier. The EPA agrees would apply to covered sources in new CTG. Under this option, setting a with the commenter that applying the nonattainment areas and portions of a RACT SIP revision implementation latter implementation deadline (i.e., state located in an OTR subject to new deadline as part of a CTG action would January 1 of the third year after the RACT SIP obligations. allow the Administrator to tailor the associated SIP revision submission) b. Final Rule. The EPA is finalizing a implementation timeframe to the would exceed the area’s maximum combination of the proposed particular technical considerations and attainment date in the commenter’s approaches, as codified at 40 CFR attainment objectives associated with Marginal-to-Moderate hypothetical 51.1312(a)(2) and (3). For CTGs issued the sources subject to the CTG and the mandatory reclassification scenario. We between November 15, 1990, and the overall attainment schedule. The note, however, that the earlier date of attainment, CAA section adopted approaches for establishing alternative default deadline (i.e., 182(b)(2) requires a state to submit the RACT SIP submission and implementation by the start of the associated RACT SIP revision, where implementation deadlines would apply attainment year ozone season) would applicable, within the timeframe to covered sources in nonattainment instead apply in this case, and would be established by the Administrator in areas and portions of a state located in compatible with the RACT issuing the CTG. The EPA interprets this an OTR subject to new RACT SIP implementation occurring before the provision as authorizing the obligations. area’s attainment date passes. In the Administrator to set a SIP submission c. Comments and Responses. case where an air agency requests a deadline in the action issuing any future Comment: Several commenters stated voluntary reclassification beyond a CTG. However, the agency is also that a default submission deadline is not single level (e.g., Marginal to Serious or establishing a default submission necessary for RACT SIP revisions Moderate to Severe),33 the earlier deadline of no later than 24 months triggered by the issuance of a CTG after default implementation deadline could after the effective date of the action initial area designations. They noted issuing the CTG, which is grounded in that the CAA expressly authorizes the 33 For example, the state of California requested our overall approach for RACT SIP Administrator to set a RACT SIP and was granted voluntary reclassifications beyond submission deadline as part of the a single level for several nonattainment areas for the revisions outlined in CAA section 1997 ozone NAAQS (see 81 FR 81285; November 182(b), in the event that the related CTG document, and that a 17, 2016). Administrator does not set an default deadline is either redundant or

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could be interpreted to restrict the 172(c)(6) requires that SIP provisions outside a designated nonattainment area Administrator’s authority. include enforceable emission that are in addition to, and beyond Response: The EPA agrees with limitations and other control measures, those, otherwise required on sources commenters that CAA section 182(b)(2) means or techniques as may be located the nonattainment area, if authorizes the Administrator to set a necessary or appropriate to attain a necessary or appropriate for purposes of RACT SIP submission deadline as part standard by the applicable attainment attainment by the attainment date. of the related CTG document. As date. The EPA interprets this provision Comment: Some commenters discussed previously, CAA section to include ‘‘additional reasonable contended that emissions from sources 182(b)(2) expressly requires that states measures,’’ which are those measures outside a nonattainment area, if nearby submit RACT SIP revisions triggered by and technologies that can be applied to and affecting a nonattainment area’s new CTG issuance within a period any emissions source within the state’s ability to timely attain, should be established by the Administrator, and jurisdiction, including those outside of accounted for in setting nonattainment we interpret this provision to a nonattainment area. Upwind sources area boundaries as part of the authorize—but not require—the within a state may have a significant designations process under CAA section Administrator to set a RACT SIP impact on air quality in a downwind 107(d). submission deadline in the action nonattainment area, and failure to Response: The EPA agrees with issuing the CTG. As a result, we are consider and require, as appropriate, commenters that a designated adopting the proposed default SIP reasonable control measures for these nonattainment area should already submission deadline of no later than 24 sources may preclude attainment of a include the nearby sources that, at the months after the effective date of the NAAQS by the attainment date. Though time of designations, were determined action issuing the CTG, in addition to not directly a part of a nonattainment to be contributing to violations in the affirming in this final rule the area RACM analysis, the EPA has area. But we disagree that the Administrator’s existing authority to set addressed this ‘‘other control measures’’ designations process under CAA section an alternative RACT SIP submission provision in the preamble discussions 107(d) is the exclusive approach for deadline as part of the action issuing the for previous NAAQS implementation identifying relevant contributing CTG. rulemakings,34 and for clarity is sources for a nonattainment area, as codifying this interpretation in this final there may be additional contributing C. Requirements for RACM: rule at 40 CFR 51.1312(c). As discussed sources within a state that were not Consideration of Sources of Intrastate in Section III.F of this preamble, the sufficiently ‘‘nearby’’ the area, or were Transport of Pollution EPA is otherwise adopting all RACM otherwise not identified in the 1. Summary of Proposal requirements for purposes of the 2015 nonattainment area designations process ozone NAAQS, based on the rationale as contributing to violations in the area. As discussed in Section III.F.2 of this and approach articulated in the final Consistent with our existing policy, the preamble, the EPA proposed to require 2008 Ozone NAAQS SIP Requirements EPA interprets CAA section 172(c)(6) as that, for each nonattainment area for Rule. imposing a separate obligation to which an attainment demonstration is consider and control sources located required (see Section III.D of this 3. Comments and Responses outside of a nonattainment area but preamble), an air agency shall submit Comment: A number of commenters within a state’s jurisdiction, if necessary with the attainment demonstration a SIP opposed the EPA’s interpretation of or appropriate to attain a standard by revision demonstrating that it has CAA section 172(c)(6) as applying to the applicable attainment date. adopted all RACM necessary to emissions sources outside of designated Comment: Multiple commenters demonstrate attainment as expeditiously nonattainment areas. As one commenter interpreted the EPA’s proposal as as practicable and to meet any RFP stated, the plain language of CAA imposing a mandatory requirement for requirements. The EPA further proposed section 172 in general focuses its states to consider and implement to codify the existing requirement under discussions and references to sources emission controls for intrastate sources CAA section 172(c)(6) that, in addition within a designated nonattainment area, located outside of a designated to sources located in an ozone and makes no mention of requiring nonattainment area. Some commenters nonattainment area, air agencies must emission reductions for sources outside characterized the proposal as requiring also consider the impacts of emissions the nonattainment area. RACM outside a nonattainment area, from sources outside an ozone Response: The EPA disagrees with the where other commenters requested that nonattainment area (but within a state’s commenters concerning the proper we further clarify a state’s discretion, boundaries), and must require other application of CAA section 172(c)(6). under CAA section 172(c)(6), to control measures on these intrastate Unlike other SIP requirements under consider and require ‘‘other control sources if doing so is necessary to CAA section 172(c)(1), such as RACM/ measures’’ for sources located outside of provide for attainment of the applicable RACT-level controls on sources located a nonattainment area. ozone NAAQS within the area by the in a nonattainment area, CAA section Response: The EPA believes our applicable attainment date. This 172(c)(6) is not limited by its terms to interpretation of CAA section 172(c)(6), proposed rulemaking provision is sources located in the nonattainment under certain circumstances, establishes consistent with SIP elements required area. Upwind sources within a state may a mandatory requirement for states to under the CAA, as well as existing EPA have a significant impact on air quality consider and implement emission interpretations of CAA section 172(c)(6) in a nonattainment area, and CAA controls for sources inside the state but as articulated in previous NAAQS section 172(c)(6) imposes a potential outside of a designated nonattainment implementation rulemakings. obligation upon states to impose area. The language of the statute, and emission controls on sources located our adopted regulatory text in 40 CFR 2. Final Rule 51.1312(c), describe a conditional The EPA is finalizing the requirement 34 See the Phase 2 proposed rulemaking (68 FR requirement for placing controls such regarding consideration of ‘‘other 32829; June 2, 2003) and final rule to implement the sources, i.e., states are required to 8-hour ozone NAAQS (70 FR 71623; November 29, control measures’’ for intrastate sources 2005), and the final rule to implement the PM2.5 impose controls on sources located of pollution, as proposed. CAA section NAAQS (81 FR 58035; August 24, 2016). outside of a nonattainment area but

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within the state’s jurisdiction, only in The proposal noted the EPA’s showing that such ratio(s) provide an circumstances where that is necessary continued interpretation that the CAA equivalent or greater air quality benefit or appropriate to provide for attainment accommodates the use of technically with respect to ground level ozone by the attainment date, because the supported IPT to satisfy the NNSR offset concentrations in the ozone emission controls required on sources requirement. As discussed in greater nonattainment area than an offset of the within the nonattainment area are not detail in the Comments and Responses emitted precursor would achieve. sufficient to provide for attainment by section that follows, the EPA stated at The EPA recommended that each air that date. This qualification indicates proposal that the CAA allows the total agency implementing an IPT program that the obligation is tied to the annual tonnage of emissions of one consult with the appropriate EPA attainment needs of the nonattainment ozone precursor to be offset by Regional office as the air agency area in question and does not apply reductions in total actual annual develops a modeling protocol to more broadly. Further, the EPA emissions of another ozone precursor establish a default IPT ratio or ratios 41 emphasizes that we do not interpret (in units of tons per year (tpy)) pursuant for a nonattainment area. The EPA section 172(c)(6) to automatically to an IPT ratio that shows the reductions sought comments on the proposed require states to conduct an evaluation will have an equivalent or greater air contents of the plan submission and the of all sources and all potential controls quality benefit. The proposal explained approach for establishing any default throughout the entire state regardless of that the authority to permit IPT is based IPT ratios. attainment needs. However, if necessary on the language of section 173(c)(1) of When the EPA published our NNSR to achieve attainment by the applicable the CAA and the definition of ‘‘air implementation rules for PM2.5 in 2008, attainment date, the EPA believes the pollutant’’ in section 302(g) of the CAA, we indicated that, while the new CAA obligates states to place emission and that ozone is the regulated pollutant implementation rules allowed air controls on significant emissions at issue (rather than NOX or VOC, which agencies to adopt IPT programs to sources elsewhere within the state as are both recognized precursors to the satisfy the NNSR offset requirements for needed to achieve the necessary formation of ground-level ozone PM2.5, such IPT was not permissible for reductions. concentrations). netting purposes. See 73 FR 28340 (May 16, 2008). Consistent with that policy, D. Nonattainment NSR Offset The EPA proposed that states interested in implementing an ozone in the proposal the EPA proposed that Requirement: Interprecursor Trading for an IPT program could not be used for Ozone Offsets IPT program must submit the following to the EPA as part of a plan for approval: purposes of netting under the NNSR 1. Summary of Proposal (1) IPT provision(s), including area- program. The EPA also indicated in the In response to a petition for specific default IPT ratio(s),39 40 where proposal that we have interpreted the reconsideration granted on November 5, applicable; (2) a description of the air CAA to preclude the use of ozone IPT 2015, the EPA proposed to reaffirm our quality model(s) used to develop any where an air agency chooses to include longstanding policy regarding IPT for default IPT ratio(s); and (3) an accompanying modeling demonstration emissions reductions attributable to the ozone, which is currently codified at 40 NNSR air permitting in its initial 15 CFR 51.165(a)(11) and part 51 Appendix 35 existing requirements include the statutory offset percent ROP plan for those Moderate or S, section IV.G.5, by re-proposing the higher ozone nonattainment areas that existing regulatory provisions with ratios applicable in specific ozone nonattainment areas (based on an area’s classification for ozone), are satisfying this ROP requirement for revised text, and adding specific criteria geographic restrictions as to where creditable the first time under CAA section for developing and implementing an IPT emissions reductions may be obtained and other 182(b)(1)(A)(i). This interpretation 36 criteria concerning the creditability of emissions program. In addition, the EPA results from the fact that the CAA indicated that the re-proposed IPT reductions to be used as offsets. 39 An IPT ratio sets the appropriate proportion for requires that a state’s initial ROP plan provision, when finalized, would the amounts of each precursor in tpy of emissions, can be satisfied only via reductions in supersede any previous ozone IPT which is intended to ensure that the substitution of VOC emissions. Hence, the EPA policy articulated in earlier EPA one ozone precursor for another in an offset proposed that such a plan could not guidance.37 Further, the November 17, transaction provides an equivalent or greater air quality benefit with respect to ground level ozone count emission reductions attributable 2016, proposal explained that the EPA concentrations in the ozone nonattainment area. to a NNSR permitting program utilizing proposed no other changes to the The IPT ratio is separate and distinct from the IPT flexibilities, for ROP purposes.42 existing requirements in the NNSR statutory offset ratios contained in the CAA that are Finally, the EPA in the November 17, regulations.38 directly associated with area classifications for ozone nonattainment areas. See e.g., CAA Section 2016, proposal also explained that IPT 182(b)(5) (establishing an offset ratio of 1.15 to 1 for could be implemented in several ways; 35 The EPA originally added these provisions Moderate areas). Both ratios must be applied in the primary variable being the method specific to ozone to the NNSR regulation in 2015 determining the appropriate emissions offset that in which the IPT ratio for ozone as part of the final 2008 Ozone NAAQS SIP must be applied for a particular offset transaction Requirements Rule. See 80 FR 12264 at 12288. if one ozone precursor is being used to offset a precursors is established by an air 36 See 81 FR at 81295–8. different ozone precursor. An example of a simple agency or permit applicant and applied 37 The EPA’s prior guidance concerning the use offset calculation with the application of an IPT in a particular ozone nonattainment of IPT to satisfy the NNSR requirements for ratio would be a major NNSR proposed source in area. That is, the EPA proposed that emissions offsets was contained in a 2001 EPA a Moderate area seeking to offset a 200 tpy NOX document titled ‘‘Improving Air Quality with increase with reductions in VOC from another states be allowed to choose any of the Economic Incentive Programs’’ (January 2001). The source or the respective SIP approved Emission options presented in the proposal. EPA’s policy on IPT for ozone, as finalized through Reduction Credit Bank. First, the 200 tpy NOX offset Accordingly, with the goal of providing this rulemaking, supersedes the information is subject to the 1.15 Moderate area offset ratio, then flexibility to air agencies and sources, contained in that earlier document specifically with the product is multiplied by the IPT ratio (either respect to IPT. area-wide or case-specific derived from technical the EPA proposed and sought comment 38 In the proposal, the EPA did not propose to demonstration). If we assume the IPT ratio in this 41 change or seek comment on any existing NNSR case is 5, the resulting equation is: (200 tpy NOX) The draft Technical Guidance Document × × emissions offsets requirements contained in the (1.15(Moderate area offset ratio)) (5 VOC/NOX (IPT ratio provided in the docket supports the division of a NNSR regulations at 40 CFR 51.165 and part 51 applied)) = 1,150 tpy total NOX (offset) required for nonattainment area into sub-areas with a technical Appendix S. Existing NNSR emissions offset NNSR permitting purposes. demonstration substantiating the need for separate requirements are based largely on part D of title I 40 Hereafter referred to as default IPT ratio(s) or ratios in specific portions of a nonattainment area. of the CAA’s nonattainment requirements. These default ratio(s). 42 See section III.E of this preamble.

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on the following implementation a default IPT ratio, while at the same IPT ratio must be conducted every 5 options: time allowing an individual permit years, rather than every 3 years as a. Case-specific Permit Ozone IPT applicant to propose an alternative case- proposed. Ratios. Under a case-specific IPT ratio specific IPT ratio (if it can demonstrate The EPA acknowledges, based on option, state plans would generally to the satisfaction of both the reviewing comments received, that the require each permit applicant who authority and the EPA that such requirement of EPA approval of IPT chooses to use ozone IPT as the means alternative ratio is appropriate for the ratios could impose additional burdens for satisfying the NNSR emissions offset proposed offsetting transaction for a and result in permit delays. Hence, in requirement to calculate and submit to specific permit application). the final rule, the EPA is eliminating the reviewing authority the appropriate d. Limitations for Implementing this approval requirement for the case- IPT ratio. In choosing this option, the Ozone IPT under Appendix S. In the specific ratios and for default ratios that state would be required to include for specific case where a state lacks an are not included in state regulations and the EPA’s approval a plan submission approved NNSR program and issues the SIP. In the spirit of cooperative addressing NNSR program provisions NNSR permits under the requirements federalism, the EPA encourages air that explicitly authorize case-specific contained in the EPA’s Emission Offset agencies to both work with the EPA in IPT ratios for the particular ozone Interpretative Ruling at 40 CFR part 51, the development of IPT ratios and notify nonattainment area(s). Also, such a plan Appendix S (Appendix S), the EPA the EPA after the development of any submission must include the procedures proposed that states would be limited to initial or revised area-specific default by which permit applicants may use the use of case-specific IPT ratios. IPT ratio for a particular ozone IPT, including a description of the In addition to the four options nonattainment area. Finally, the EPA model(s) that will be used, the proposed for implementing the IPT will, of course, also have an opportunity calculation of the IPT ratio, and a program for ozone, the EPA proposed to to review and comment on the demonstration that such IPT ratio require air agencies to review any application of any IPT ratio (default or provides an equivalent or greater air default IPT ratio(s) that is included in case-specific) to a particular source or quality benefit for ozone concentrations their EPA-approved IPT program at least location during the public comment in the ozone nonattainment area. The every 3 years (from the air agency’s period afforded as part of the NNSR EPA also proposed that the state’s IPT prior plan submission containing any permitting process. provision must provide that any IPT such area-specific default IPT ratio(s)) to An air agency may choose to include ratio that an applicant proposes for an ensure that the ratio continues to be a numerical default ratio in its NNSR individual permit must be approved by valid for IPT offsets in the area. To meet regulations and the SIP to make that both the reviewing authority and the this proposed requirement an air agency ratio controlling. Alternatively, if an air EPA. would need to submit new modeling to agency chooses not to include any b. Area-specific Default Ozone IPT confirm that the ratio still defines an numerical default IPT ratios in its Ratio. Under the proposed area-specific equivalent or greater air quality benefit regulations and SIP, EPA approval of default IPT option, the EPA proposed relationship between VOC and NOX the numerical default ratio is no longer that a state plan could include a default emissions regarding ozone formation in required. However, for any such air IPT ratio that may be used by permit the particular ozone nonattainment area. agency, the final rule still requires the applicants to obtain IPT offsets for all At proposal, the EPA included a draft SIP to include (1) the authority to applicable NNSR permits issued in a TGD in the docket. The purpose of this implement IPT; (2) a description of the particular ozone nonattainment area. TGD was to provide air agencies with air quality model(s) that may be used to Under this proposed option, the state’s guidance on a technical approach to develop any default IPT ratio; and (3) a plan submission would be required to determine ozone impacts from precursor description of the approach that the air provide a description of the model(s) emissions for a specific nonattainment agency will use to develop any default used, the calculated ratio and the area or for case-by-case determinations. IPT ratio, which must show that such technical demonstration substantiating ratios provide an equivalent or greater 2. Final Rule and Rationale the equivalent or greater ozone benefit ozone air quality benefit in the in that nonattainment area. The EPA In this final rule, the EPA is applicable ozone nonattainment area. further proposed that a ratio that has promulgating a discretionary IPT The final rule also requires air agencies become part of an approved plan and program for ozone with changes from with IPT programs that authorize case- has undergone public comment during the proposed rulemaking based on specific IPT ratios to require permit the plan approval process would not comments received. The final rule applicants to include along with the require further EPA approval or be allows states to implement their IPT submittal of the proposed case-specific subject to additional public comment program using any of the proposed ratio similar information pertaining to each time that ratio is utilized by implementation options as follows: (1) the development of the ratio. individual permit applicants. Default IPT ratios, (2) case-specific IPT A default IPT ratio that is not in a c. Combination of an Area-specific ratios or (3) a combination of the two state regulation and an approved SIP Default Ozone IPT Ratio and Case- options, whereby a proposed source would be subject to public comment for specific IPT Ratios. As explained in the may, at the approval of the reviewing each use in individual permits. proposed rulemaking, the EPA believes authority, propose a case-specific ratio Therefore, states may want to include that it is reasonable for air agencies to in lieu of an available default IPT ratio. numerical default IPT ratios in their have the option of implementing as part The following changes are being made regulations and submit them to the EPA of their NNSR programs either a case- in response to comments received: (1) for approval as part of the SIP. In such specific IPT ratio or a default IPT ratio. Air agencies will not be required to an instance, the regulation containing The EPA also believes that air agencies obtain EPA approval of IPT ratios when the area-specific default IPT ratio would with EPA-approved NNSR programs implementing a case-specific IPT be reviewed by the EPA as part of the should have the option of implementing program or when applying default IPT SIP submission and, if approved, would a combination of the two proposed ratios that are not included in the state provide states and other stakeholders options. Such a combined program regulations and the SIP; and (2) the with greater certainty that the IPT ratio would enable an air agency to develop required periodic review of any default will be applicable to all permit

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applications. The validity of a default determine ozone impacts from precursor believed that the EPA’s approval of the IPT ratio that has become part of an emissions for a specific nonattainment SIP containing the authority to use IPT approved plan and has undergone area or for case-specific determinations. and the methodology for developing an public comment during the plan The TGD provides a framework and IPT ratio would be sufficient. The approval process would not be subject associated general methodology to apply commenters claimed that the EPA’s to additional public comment with existing or new empirical relationships approval of SIPs containing rules regard to its numerical value each time between ground level ozone authorizing IPT is sufficient for that ratio is utilized by individual concentrations and the two precursors— compliance with the CAA requirements permit applicants. NOX emissions and VOC emissions—to for EPA approval of SIPs, while the On the other hand, default ratios that develop the required IPT ratios.43 Air specific ratios applied to IPT should be are not included in a state regulation agencies may use existing modeling a matter of NNSR permitting. The and SIP, and, therefore, are not subject analyses or generate their own modeling commenters stated that the CAA assigns to the EPA’s approval, may be replaced analyses to provide the basis for the the EPA a substantive role in approving more rapidly in situations where the development of IPT ratios.44 SIPs but generally reserves NNSR ratio is no longer valid, e.g., as a result In addition, recent changes to the permitting decisions to states. They of a periodic review. An air agency can EPA’s Guideline for Air Quality Models, thereby concluded that the replace such a ratio with a revised value published as Appendix W to 40 CFR determination of specific IPT ratios that will not have to be processed part 51, provides greater clarity should be considered the province of through rulemaking and a plan revision. regarding the use of chemical transport the air agency and should not require Also, if an air agency determines modeling to estimate single-source EPA approval. One commenter, while through a periodic review that an ozone impacts from precursors. generally opposing the proposed IPT existing default ratio is no longer valid Appendix W provides guidelines for provisions, argued that EPA approval of and must be revised, the air agency may area-specific assessments of precursor ratios would provide minimal, if any, decide not to revise it but to rely solely emissions impacts on ozone and these benefit and that the EPA lacked the on case-specific permit ratios to guidelines may also support the resources sufficient for such a process to continue implementing IPT provided development of case-specific IPT ratios be successful. that the SIP contains the necessary or area-specific IPT ratios for ozone Response: The EPA has considered authority to implement case-specific precursors. the commenters’ concerns about the ratios as part of the NNSR program for Finally, the final rule attempts to proposed requirement for EPA approval ozone. Unlike the default IPT ratios, strike a balance between providing of all IPT ratios for ozone. As a result, case-specific IPT ratios will not require flexibility for the offset requirement in we have concluded that it would be periodic review because the ratio used NNSR permitting and compliance with appropriate to eliminate the proposed for each individual permit will be based the CAA’s air quality protections. While EPA approval requirement as part of the on the most current data representing EPA approval of ratios is no longer final rule while retaining the following the ozone chemistry for the area of required, the EPA believes that the SIP safeguards: The final rule requires the concern. requirements for air agencies to comply SIP to include (1) the authority to This final rule does not discourage or with the criteria for development of implement IPT; (2) a description of the preclude an air agency desiring EPA default IPT ratios and to conduct air quality model(s) that may be used to approval from electing to either submit periodic reviews of each default ratio, develop any default ratio; and (3) a numerical default IPT ratio(s) to EPA for along with the opportunity for the EPA description of the approach that the air review and approval into its SIP, seek to review the application of a ratio for agency will use to develop any default EPA approval of any case-specific IPT a specific permit during the public IPT ratio, which will show that such ratio or to simply seek consultation with comment period, afford adequate ratio(s) provide an equivalent or greater the EPA on the development of any IPT safeguards. In particular, the mandatory ozone air quality benefit in the ratio for ozone. periodic review conducted by the air applicable ozone nonattainment area. For any state that lacks an approved agency will ensure that each area- Accordingly, the final rule does not NNSR program for ozone, the state may specific ratio either continues to require EPA approval of any IPT ratio. issue an NNSR permit pursuant to the adequately reflect the correct The EPA agrees that the process of EPA NNSR requirements for ozone contained relationship between VOC and NO approval could lengthen the time in 40 CFR part 51 Appendix S, which X emissions with respect to the formation required for SIP approval (in the case of includes an IPT program. The final rule of ground level ozone in a particular default IPT ratios) and for individual provides that the IPT program under ozone nonattainment area or will result permit processing (in the case of case- Appendix S may be implemented only in such ratio being eliminated (and specific IPT ratios). by using case-specific IPT ratios. In revised if so desired). However, the EPA also believes that addition, the final rule includes a SIP approved default IPT ratios have provision in Appendix S that requires 3. Comments and Responses great potential in burden reduction for permit applicants to include along with Comment: Six commenters expressed both proposed projects as well as the the submittal of the proposed case- concerns about the administrative state through an initial up-front effort in specific ratio information pertaining to burden associated with the proposed providing the technical demonstration the development of that ratio. Moreover, requirement for the EPA to approve all supporting the desired default ratio with each case-specific permit IPT ratio IPT ratios for ozone. These commenters an equivalent or greater air quality would not require EPA approval but benefit for such ratio’s use in NNSR only the approval of the air agency. 43 Please refer to the TGD included in this final permitting. A SIP approved default IPT The EPA is including a revised final rule docket and the section of the Response to ratio could be used to provide a greater TGD in the docket for this rulemaking. Comments document related to the proposed TGD degree of certainty for projects each time The purpose of this TGD is to provide for further information. it is used in an NNSR permit, since it 44 The EPA has not added any regulatory air agencies and source owners or provisions in the NNSR regulations to require would be presumed to be appropriate operators, where applicable, with permitting authorities to use the data or methods for each individual NNSR permit in that guidance on a technical approach to described in the TGD. nonattainment area. To avail this greater

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certainty of default IPT ratios, an air equivalent or greater ozone air quality intend to limit the flexibility afforded to agency could choose to obtain formal benefit in a nonattainment area, which states with respect to how they can approval of any default ratio by is an essential component of an implement ozone IPT provisions (which including it in its SIP submission. acceptable ozone IPT ratio, nor has the includes the approach indicated by The EPA recommends that air commenter provided such methodology these commenters). As previously agencies consult with the EPA and refer for consideration. Moreover, a ratio that explained, the EPA proposed three to the TGD for assistance in developing relied upon NOX and VOC emissions options for states that choose for the technical demonstration supporting inventories, as recommended by one implementing an IPT program for ozone: IPT as providing an equivalent or commenter, would not be based on an (1) Procedures to develop an area-wide greater air quality benefit in the air quality relationship between the two IPT ratio; (2) procedures to allow case- nonattainment area, whether ozone precursors and would lack specific ozone IPT ratios applicable to implementing a case-specific or area- elements of the required technical single permits; or (3) a combination of specific default ratio. The EPA also demonstration to substantiate the the first two options with an area- offers direct assistance to air agencies in required equivalent or greater air quality specific default ratio that can be the development of default IPT ratios benefit for the ozone nonattainment area replaced by a case-specific ratio as upon request. than a reduction (offset) of the emitted proposed by the applicant. The EPA’s Comment: Seven commenters precursor would achieve. intent is to maximize flexibility so that advocated that the EPA take greater Comment: One commenter air agencies can choose a different responsibility for the development of recommended the EPA not allow case- option for each nonattainment area, default IPT ratios. Five of the seven specific IPT ratios because such ratios rather than choose one option to apply specifically recommended that the EPA could not be set in advance of the at the statewide level, which means that provide the area-specific IPT ratios for permitting process, although permit two nonattainment areas in the same ozone nonattainment areas to the air applicants need to know the appropriate state could apply different options for agencies. Two of the commenters, amount of the precursor offsets that ozone IPT ratios. The IPT program for supporting a greater EPA responsibility, would be required in order to decide ozone is not a mandatory program for called upon the EPA to provide whether to apply for an NNSR permit. air agencies to adopt. However, air assistance to the states in developing Response: Any major NNSR permit agencies that choose to use any form of default IPT ratios. All seven applicant would be required to do IPT program for ozone using the options commenters generally agreed that the preliminary analysis to determine the provided in the final rule will need to process to develop default IPT ratios is Lowest Achievable Emissions Rate revise their SIPs to ensure that their too burdensome for the states to conduct (LAER) and the amount of emissions NNSR rules satisfy the minimum on their own. A state air agency offsets required. The EPA recognizes the requirements contained in the final rule. commenter recommended that the EPA importance of an applicant of knowing, Comment: Twelve commenters provide a mechanism to establish an in advance of applying for a permit to opposed the proposed requirement for a alternative ratio ‘‘that does not rely construct, the amount of emissions 3-year periodic review of any area-wide upon overly burdensome modeling reductions that will be needed to satisfy IPT ratios. Several of these commenters exercises.’’ The same commenter the NNSR offset requirement. If a state opposed any review at all unless there suggested that the EPA could instead has chosen to provide a default ratio, is a specific basis (e.g., a new or revised rely upon a ratio of NOX and VOC then that information is readily attainment demonstration) to justify the inventories rather than photochemical available to the applicant when need for review. Most of the remaining modeling. contemplating a proposed construction commenters recommended that a longer Response: While the EPA continues to project. If, however, a state also allows review period (generally 5–10 years) support the concept of a default ratio for case-specific IPT ratios and the would be more appropriate than the a particular ozone nonattainment area, applicant believes that a lower, less proposed 3-year frequency. The primarily for resource reasons it is not conservative ratio may be more commenters generally indicated that the feasible at this time for the EPA to appropriate for the proposed project at proposed 3-year review would be overly assume the responsibility for a particular location within a burdensome and likely not reflect establishing ratios for all ozone nonattainment area, then the applicant appreciable inventory changes. The nonattainment areas across the country. may elect to propose in advance of the commenters further noted that updating Additionally, it is not clear whether all submittal of a permit application a case- an ozone IPT ratio every 3 years after states will adopt the discretionary IPT specific IPT ratio that would apply only initial SIP approval requires months of provisions or whether they will prefer to that source project. Thus, the case- modeling along with many weeks to default or case-specific IPT ratios. specific IPT ratio remains a valid option follow public notice requirements and Taking into account these for permit applicants that find it useful. other applicable state requirements. considerations, and the considerable Comment: Some commenters Response: The EPA considered the resources required to conduct research expressed concern that the final rule comments concerning the proposed and data analyses to establish IPT ratios would only allow one approach for periodic review and the 3-year review for every nonattainment area, the EPA developing the required IPT ratio. One cycle and has concluded that it is believes that it is more appropriate for commenter was concerned that states appropriate to make certain changes to states to assume the responsibility for with more than one ozone the proposed approach. Specifically, the developing IPT ratios for nonattainment nonattainment area would be required requirement for a periodic review of any areas if they decide to implement the to select one approach to apply to all default ratio is being retained; however, voluntary IPT program. nonattainment areas within the state. such reviews will be required every 5 Concerning the commenters’ Response: These commenters appear years rather than the proposed 3 years. recommendation for a mechanism for an to have misunderstood the EPA’s The EPA notes that the requirement for alternative ratio that can be derived proposal concerning the different periodic review does not apply to case- without reliance on a modeling options described for states to consider specific IPT ratios established for demonstration, the EPA is not aware of in developing or revising IPT ratios for individual permits since each such ratio an alternate methodology to show NNSR permitting. The EPA did not will be based on the relevant technical

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information applicable to that particular recommended that states be allowed to term ‘air pollutant’ is used.’’ (Emphasis permitting situation. The EPA disagrees continue the implementation of pre- added).48 Further, CAA section 109(a) with those commenters recommending existing ozone IPT programs without directs the Administrator to promulgate that IPT review only occur at the states’ including revised IPT provisions as part NAAQS for ‘‘each air pollutant for discretion. The EPA is establishing a of any other required revisions to the which air quality criteria have been periodic review requirement for area- ozone NNSR regulations. issued. . . .’’ The criteria pollutant in wide IPT ratios based on a 5-year review Response: Existing provisions in an this context is ozone—not its cycle to address the potential for EPA-approved SIP remain in effect until precursors. Further, in accordance with changes in atmospheric conditions in an any revisions to those provisions are CAA section 107(d)(4), the air pollutant area, and to ensure that the requirement approved by the EPA as a revision to the for which the area is designated for equivalent or greater ozone benefits SIP. Accordingly, states that already nonattainment is ozone, and there is no implement a SIP-approved ozone IPT continues to be satisfied. mention of NOX or VOC. The increase in the length of the program can continue to implement that review was supported by commenters in approved program until the program is While an area’s attainment response to the proposal. Commenters revised. States are required to submit a designation is made for the criteria air supporting a review period specifically SIP revision regarding the state’s NNSR pollutant ozone, the control of ground noted that the 3-year period was too program. Even if a state believes that its level concentrations of ozone has short. Many of the commenters noted pre-existing IPT program is sufficient to occurred largely through regulation of the procedural challenges in their own meet the requirements established in its precursor emissions, which are NOX rulemaking process and that other this rulemaking, the state’s SIP and VOC. Both the CAA and the EPA’s contributing elements to the submittal must demonstrate this to be so NNSR regulations identify emissions of nonattainment area air shed do not by including information to support the NOX and VOC as precursors for ozone, change significantly enough to justify implementation of IPT subject to the and, as such, NOX and VOC are both the effort of the review.45 They requirements of this rule. In the case of regulated under NNSR as part of the concluded that a 3-year review cycle any default ratios that are already in a regulation of ozone (see 40 CFR would be too burdensome to adopt as a SIP, this includes a technical 51.165(a)(xxxvii)(C)(1)). Thus, when provision. Further, recent research demonstration supporting an equivalent applied to ozone, the term ‘‘air suggests ozone formation in an area or greater ozone air quality benefit for pollutant’’ in section 173 of the Act may changes over time but is typically fairly the existing default IPT ratio, and a 5- be read to describe both NOX emissions consistent in a given 3 to 5-year year periodic review. and VOC emissions. The EPA, therefore, period.46 Therefore, the EPA has Comment: Two commenters objected reads the Act to allow the total annual decided to increase the proposed 3-year to the proposed ozone IPT provisions on tonnage of emissions of one ozone review period to a 5-year review period the grounds that allowing IPT is precursor to be offset by reductions in in order to provide air agencies a more unlawful. One of the commenters claims total annual emissions of another ozone reasonable period of time to satisfy the the IPT provision would put human precursor (in tpy) pursuant to an IPT requirement and to afford sufficient health at risk because it contributes to ratio that demonstrates that the time to reflect inventory changes. It is delays in attaining the standards. The reductions will have an equivalent or important to note that the final rule other commenter provides a detailed greater air quality benefit with respect to would also not require EPA approval of argument claiming that the proposed ground level concentrations of the periodically reviewed ratios that are not ozone IPT provision violates the express ambient air pollutant ozone. Further, included in regulations and the SIP. terms of the CAA. This commenter section 173(a)(1)(A) of the CAA requires This will enable an air agency to interprets the offset requirement under an NNSR permitting offset to be effectuate an updated default ratio more CAA Section 173(c)(1), which consistent with RFP (as defined in CAA quickly, but such a default ratio will be specifically refers to an ‘‘air pollutant,’’ section 171(1)). Specifically, this subject to public comment as part of the to apply only to the particular precursor provision requires that the offsetting NNSR permitting process. However, emitted (VOC or NOx), rather than to the emissions reductions are such that the similar to the development of the initial ambient air pollutant (ozone) for which total allowable emissions in the area, default ratio, the EPA encourages air the region is in nonattainment, noting including the proposed source or agencies to both work with the EPA in that the Act establishes VOC-specific modification when the source the development of a revised default IPT offset ratios required for ozone commences operation, will be ratio for a particular ozone permitting. sufficiently less than the emissions from nonattainment area and notify the EPA Response: The EPA disagrees with the the total emissions of existing sources after such a ratio has been developed. commenters’ narrow interpretation of before the permit application, to Comment: Five commenters ‘‘air pollutant’’ under CAA Section represent RFP when considered together advocated that the EPA provide a 173(c)(1).47 CAA section 302(g), which with the provisions of the reasonable transition period for any pre- defines ‘‘air pollutant,’’ provides that nonattainment SIP. Section 171(1) of the existing IPT programs that a state may the term includes ‘‘. . . any precursors CAA defines RFP as ‘‘annual be currently implementing. Some of to the formation of any air pollutant, to incremental reductions in emissions of these commenters explicitly the extent the Administrator has the relevant air pollutant . . . for the identified such precursor or precursors purposes of the applicable NAAQS by 45 See Section VIII.B of the Response to Comments document for further information. for the particular purpose for which the the applicable date.’’ This requirement 46 Evaluating a Space-Based Indicator of Surface serves as insurance that IPT offsets must 47 Ozone-NOx-VOC Sensitivity Over Midlatitude Section 173(c)(1) of the CAA states that the not interfere with NAAQS attainment Source Regions and Application to Decadal Trends, NNSR offset requirement shall ‘‘assure that the total for ozone. Xiaomeng Jin, Arlene M. Fiore, Lee T. Murray, tonnage of increased emissions of the air pollutant Lukas C. Valin, Lok N. Lamsal, Bryan Duncan, K. from the new or modified source shall be offset by Folkert Boersma, Isabelle De Smedt, Gonzalo an equal or greater reduction, as applicable, in the 48 See 57 FR 55620, November 25, 1992, at page Gonzalez Abad, Kelly Chance, and Gail S. actual emissions of such air pollutant from the 55621 and 55624 (PSD and NNSR Applicability), Tonnesen, Journal of Geophysical Research: same or other sources in the area.’’ (Emphases and 1991 Memo ‘‘New Source Review Program Atmospheres, October 5, 2017. added.) Transitional Guidance’’ at page 5.

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Additionally, the commenters note a prior NAAQS in this action, and thus context, Congress specifically that the Act establishes VOC-specific section 172(e) does not apply. authorized the substitution because it offset ratios required for ozone As the EPA has stated, the IPT related to a VOC-specific requirement. permitting. The IPT provisions at issue approach outlined in the proposal and The IPT provisions in this final rule, in this rulemaking are for the NNSR being finalized here represents the relate to the ambient air pollutant permitting offset requirement for ozone longstanding policy of the EPA.50 ozone, and, thus, as discussed and stem from the CAA section 173(c) Therefore, it is not ‘‘less stringent’’ than previously, specific authorization to requirement to offset ‘‘increased the agency’s prior approach. Moreover, substitute precursors is not necessary as emissions of any air pollutant’’ rather the commenter provided no analysis or part of the section 173(c) offset than a requirement that specifically support for the assertion that this rule requirement because, as discussed identifies the precursor at issue.49 Of would allow ‘‘a new major source to be earlier, CAA section 302(g) defines ‘‘air note, the EPA is not suggesting that a constructed and emit increased levels of pollutant’’ to include ‘‘any precursors to VOC-specific SIP requirement where a pollutant that would have been barred the formation of any air pollutant.’’ Congress has not permitted NOX under prior rules.’’ However, section 182(c)(2)(C) is substitution can be satisfied by utilizing The EPA also disagrees with noteworthy because it formalizes either precursor interchangeably. commenter’s claims that the proposed Congress’ acknowledgement that, Specifically, in CAA section 182(b)(1), rulemaking would put human health at contrary to the commenter’s assertions, for newly listed Moderate and higher risk and that IPT fails to assure IPT can be implemented in a manner classified nonattainment areas, there is equivalent or greater ozone reduction which assures equivalent or greater a requirement that a reduction in VOC benefits. In both the proposed and final ozone reductions. emissions of 15 percent be achieved. In rule, the use of any IPT ratio is predicated on a demonstration that E. Emissions Inventory and Emissions the case of a nonattainment area Statement Requirements (Moderate and higher classified) that assures exactly that. See, e.g., 40 CFR has not previously achieved the 15 51.165(a)(11)(i)(B)(I) and (C). The The EPA proposed to clarify our percent VOC ROP reduction and is commenter claimed that the ‘‘proposal emissions inventory and emissions seeking to utilize NNSR permitting as nowhere finds or demonstrates that any statement requirements for purposes of one of the methods by which it will specific trading ratios will be sufficient the 2015 ozone NAAQS by adding 40 achieve the required VOC reductions, to assure equivalent or greater ozone CFR 51.1315. CAA sections 182(a)(1) the state is not allowed to utilize IPT in reductions in any particular ozone and 182(a)(3)(A) require states to submit emissions inventories to the EPA. To its NNSR program. nonattainment areas, nor does it specify with precision the methods and clarify these statutory requirements Comment: One commenter argued supporting data required to make such within the context of implementing the that the IPT provision for ozone violates a demonstration.’’ These critiques are 2008 ozone NAAQS, the EPA added 40 the CAA’s anti-backsliding requirements premature and would only be germane CFR 51.1115 (80 FR 12264, 12314; because ‘‘[a] rule that allows a new if the commenter sought to dispute the March 6, 2015). For purposes of the major source to be constructed and emit approval of a specific IPT ratio. As 2015 ozone NAAQS, we proposed to increased levels of a pollutant that discussed earlier in response to add 40 CFR 51.1315, to clarify would have been barred under prior comments requesting that the EPA requirements for the emissions rules is by definition less stringent.’’ directly develop ratios for each inventories required by CAA sections Additionally, the commenter asserted nonattainment area as part of this final 182(a)(1) and 182(a)(3)(A). We also that the IPT provision would put human rule, the EPA maintains that we cannot, provided a preamble discussion in the health at risk and fails to assure and will not endeavor to, identify all proposed rulemaking to clarify the equivalent or greater ozone reduction possible specific trading ratios for all emissions statement requirements of benefit. areas. Rather, the EPA has defined three 182(a)(3)(B), and are finalizing 40 CFR Response: The commenter did not different procedural approaches for 51.1315 consistent with that discussion identify any specific CAA requirements implementing IPT and provided in this final rule. technical guidance to assist air agencies in their comments with regard to anti- 1. Emissions Inventories backsliding. Based on the commenter’s (and permit applicants, where statement that the proposed rulemaking applicable) in the establishment of such a. Summary of Proposal. The EPA ‘‘unlawfully and arbitrarily authorize[s] ratios. proposed to retain our existing approach controls for that pollutant that are less Furthermore, the ability of an IPT to the general emissions inventory stringent than required under the ratio to assure equivalent or greater requirements for purposes of the 2015 pre-existing NAAQS,’’ the commenter ozone reductions has been ozone NAAQS, as articulated in the appears to be referencing the EPA’s acknowledged by Congress. CAA final 2008 Ozone NAAQS SIP 51 application of section 172(e); however, section 182(c)(2)(C) permits air agencies Requirements Rule. We also proposed this provision applies to relaxation of a to demonstrate that substituting NOX revisions to point source reporting prior NAAQS. The EPA is not relaxing emissions for VOC emissions to satisfy thresholds in the AERR (codified in 40 the VOC-specific requirements of CAA CFR 51, subpart A) to be consistent with the major source thresholds for ozone 49 If anything, the statement in section section 182(c)(2)(B) ‘‘would result in a 182(c)(2)(C) permitting NOX substitution that reduction in ozone concentrations at nonattainment areas. ‘‘would result in a reduction in ozone least equivalent to that which would The emissions inventory requirements concentrations at least equivalent to that which result from the amount of VOCs for the 2008 ozone NAAQS, found at 40 would result from the amount of VOC emission emission reductions required.’’ In that CFR 51.1115, describe the criteria and reductions required under subparagraph (B)’’ timing for base year and periodic evidences Congress’s understanding that NOX reductions, when properly calculated, can be 50 See Louisiana; Final Rule: 67 FR 61260, utilized to result in equivalent ozone reductions as September 30, 2002 (proposed at 67 FR 48090, July 51 The preamble to the final 2008 Ozone NAAQS VOC emissions; a contention which the 23, 2002); Texas; Final Rule: 71 FR 52664, SIP Requirements Rule provides an extensive commenters dispute and is discussed below in September 6, 2006 (proposed at: July 23, 2001); discussion of the EPA’s rationale and approach for addressing the commenters’ ‘‘anti-backsliding’’ Mass Emissions Cap and Trade Program proposal emissions inventories (80 FR 12289; March 6, comments. (66 FR 38240; July 23, 2001). 2015).

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inventories required under CAA source inventories used for 2015 ozone tpy) and 182(e) (Extreme areas, 10 tpy). sections 182(a)(1) and 182(a)(3)(A), NAAQS implementation, states should Section 184 of the CAA does not respectively. To support the periodic use the latest emissions models include NOX requirements for major emissions inventory requirement, the available at the time that the attainment stationary sources of VOC in an OTR, EPA proposed revisions to the AERR plan inventory is developed.53 In while CAA section 184(b)(2) specifically point source reporting thresholds in general, for states other than California provides that major stationary sources of AERR Table 1 (40 CFR 51, subpart A, that choose to fulfill various modeling VOC (i.e., at least 50 tpy VOC) would be appendix A) to be consistent with the requirements by using the latest EPA subject to requirements applicable to major source thresholds for ozone emissions model, the latest approved major stationary sources in a Moderate nonattainment areas. These reporting version of the MOtor Vehicle Emissions nonattainment area. The EPA’s thresholds are in tons of potential Simulator (MOVES) model should be proposed revision of the OTR NOX emissions per year. The existing AERR used to estimate emissions from onroad reporting threshold was intended to Table 1 includes Moderate area and certain nonroad transportation establish a parallel, consistent basis for thresholds of 100 tpy for NOX and VOC, sources. States should use the latest emissions reporting requirements for which are the same as the triennial available planning emission inputs VOC and NOX sources in an OTR. thresholds for all areas. The existing including, but not limited to, vehicle However, after considering comments AERR table also includes lower VOC miles traveled, speeds, fleet mix, SIP received (see later), the EPA has thresholds for Serious, Severe and control measures and fuels. The current determined that our proposal Extreme areas of 50, 25 and 10 tpy. With version of MOVES is available at: incorrectly interpreted the interaction the proposed revision, the AERR table https://www.epa.gov/moves. Other between CAA sections 182 and 184 as would be updated to also explicitly appropriate methods should be used to requiring a NOX reporting threshold of include these same Serious, Severe and estimate emissions of nonroad sources 50 tpy in the OTR. CAA section 182(f) Extreme area thresholds for NOX. The not included in the model. For states that the planning requirements for California, consult with the EPA Region same thresholds as have existed for VOC ozone nonattainment areas that apply to also apply for NO , consistent with 9 for information on the latest approved X major stationary sources of VOCs will definition of ‘‘major source’’ in both 40 version of the EMFAC (EMission also apply to major stationary sources of CFR 70.2 and 40 CFR 71.2. In addition, FACtors) model. EMFAC2014 is the NO but it does not say the major the emission thresholds also depend on most recently approved model.54 X, stationary source definition for VOCs whether the source is within an OTR in The EPA is finalizing the proposed (such as the 50 tpy threshold contained accordance with CAA 184(b)(2). The updates to AERR Table 1 that explicitly in 184(b)(2) for stationary sources in the EPA proposed to include in the AERR include the same Serious, Severe and OTR) shall also apply to determining table a 50 tpy potential-to-emit (PTE) Extreme area thresholds for NOX as major stationary sources of NO . VOC threshold for sources within an currently exist for VOC. We are also X Instead, section 182(f) specifically OTR and a 50 tpy PTE NO threshold removing the 100 tpy PTE CO threshold X defines major stationary sources of NO for sources both within an OTR and from Appendix A for ozone X with reference to the general definition within a Moderate ozone nonattainment nonattainment areas, as proposed. contained in CAA section 302, which area, proposing to apply the same We are not finalizing our proposal to applies a 100 tpy emission threshold definition noted earlier in 40 CFR 70.2 revise the NOX reporting threshold for (see 42 U.S.C. 7602(j)), and the and 40 CFR 71.2. Finally, the proposal sources within an OTR from 100 tpy to thresholds for Serious, Severe and removed the 100 tpy PTE CO threshold 50 tpy. This revision would have Extreme nonattainment areas contained from the AERR tables in Appendix A for aligned the NOX reporting threshold in CAA section 182(c), (d) and (e) (i.e., ozone nonattainment areas because with that for VOC sources in an OTR, 50, 25 and 10 tpy, respectively). there is no corresponding major source which is established as 50 tpy in CAA Interpreting CAA section 182(f) as threshold for CO in the existing or section 184(b)(2) and in subsection 3(ii) establishing a 100 tpy threshold for proposed implementing regulations for of the definition of ‘‘major source’’ in 40 major stationary sources of NO in the the ozone NAAQS. CFR 70.2 and 40 CFR 71.2. For X b. Final Rule. The EPA is finalizing nonattainment areas, CAA section OTR is consistent with the EPA’s the proposed emissions inventory 182(f)(1) applies the planning longstanding position regarding the requirements for major stationary interaction between section 182 and requirements, with the exception of the 55 proposed AERR Table 1 reporting sources of VOC to NOX sources within 184. We are therefore not finalizing our proposal to revise the NOX reporting threshold for NOX sources within an nonattainment areas classified Serious OTR, as explained more fully later. In and higher. Major stationary sources of threshold for sources within an OTR, general, we are providing that air NOX for nonattainment areas are thus and are retaining the existing general agencies may rely, when appropriate, on defined by the same corresponding NOX reporting threshold of 100 tpy. their 3-year cycle inventory as described emissions thresholds for VOC sources Major stationary sources within an OTR by the AERR to meet the 182(a)(3)(A) under CAA sections 182(c) (Serious that are also located in ozone periodic inventory obligations, with areas, 50 tpy), 182(d) (Severe areas, 25 nonattainment areas classified Serious additional requirements for the and higher would be subject to the reporting of ozone season day emissions emissions-inventory-guidance-implementation- ozone-and-particulate-matter. 55 See 57 FR 55620, 55622 (November 25, 1992) and treatment of partial-county 53 Section 172(c)(3) of the CAA requires that 52 (stating that section 184(b)(2) ‘‘is specifically inventories. For all of the mobile emissions inventories be based on the most limited to VOC sources because section 182(f) does comprehensive, accurate and current information not refer to the section 184 definition in describing 52 States should consult the guidance document available. To do so, air agencies should use the the major stationary source definitions applicable titled ‘‘Emissions Inventory Guidance for most up-to-date method for estimating emissions. for NOX purposes’’); Region 1 EPA New England 54 Implementation of Ozone and Particulate Matter The EPA is aware that EMFAC2017 has been NOX RACT Summary (stating that for ‘‘Marginal National Ambient Air Quality Standards (NAAQS) made available by the California Air Resources and Moderate nonattainment areas and attainment and Regional Haze Regulations,’’ EPA–454/B–17– Board and is currently reviewing that model. areas in the OTR, a major NOX source is one with 003, July 2017, and any subsequent updates to that However, EMFAC2017 should not be used for any the potential to emit 100 tpy or more of NOX’’), guidance that the EPA may make available at: conformity analyses until the EPA officially https://www3.epa.gov/region1/airquality/ https://www.epa.gov/air-emissions-inventories/ approves the model for that purpose. noxract.html.

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corresponding major source thresholds elements that are required by the EPA timber sale.58 The challenges with for those area classifications. (the existing requirements at 40 CFR applying the traditional nonattainment c. Comments and Responses. 51.1115 and the requirements finalized planning framework discussed here are Comment: Two commenters did not in this rule at 40 CFR 51.1315). An air particular to wildland fire and support the EPA’s proposed revision of agency must submit the emissions prescribed fire on wildlands. The EPA the NOX reporting threshold for sources statement regulation required by CAA believes that addressing these other uses within an OTR from 100 tpy to 50 tpy. section 182(a)(3)(B), or a written of prescribed fire does not present The commenters contended that any statement certifying a previously nearly the same level of challenge as changes to reporting thresholds in AERR approved regulation, to the EPA as a SIP does addressing wildland fire, and, Table 1 must be consistent with major revision for approval (see Section III.A.2 thereby, can still be accommodated source definitions established in the of this preamble). CAA section 110, in within the nonattainment planning CAA and regulation. conjunction with 40 CFR 51.102, 51.103 framework. For example, where these Response: We agree with the and Appendix V, establishes the other types of burning currently commenters and are not finalizing the procedure for submitting a SIP revision. contribute to ozone levels in a proposed revision. As discussed nonattainment area, air agencies may, previously, we have determined that V. Additional Considerations with an adequate technical CAA section 182(f) does not apply the This section addresses several demonstration, be able to take credit for major stationary source threshold for important SIP-related topics for which reductions in ozone concentrations VOCs contained in 184(b)(2) to major the EPA did not propose specific resulting from improvement in smoke stationary sources of NOX in an OTR. regulatory provisions due to lingering management techniques for these types of prescribed fire where the 2. Emissions Statements legal issues, scientific unknowns and uncertainties associated with improvement results in a demonstrated For nonattainment areas, air agencies developing and implementing new reduction in impacts in the must develop, and include in their SIPs, regulatory requirements and/or policies. nonattainment area. emission reporting programs for certain The EPA is using this final rule notice, The EPA also wants to clarify that we VOC and NOX sources in accordance however, to articulate our existing continue to encourage federal, state, with CAA section 182(a)(3)(B).56 The requirements and policies pertaining to local and tribal agencies and private required state program defines how air these topics and to inform possible land owners, to take situation- agencies obtain emissions data directly future actions. appropriate steps to minimize impacts from certain facilities, and these data, from prescribed fire emissions on along with other information, are then A. Managing Emissions From Wildfire wildland. The EPA encourages all land reported to the EPA as part of SIP and Wildland Prescribed Fire owners and managers to apply inventories required under CAA a. Proposed Recommendation. The appropriate basic smoke management sections 182(a)(1) and 182(a)(3)(A). This preamble to the proposal for this rule practices (BSMP) to reduce emissions state program is generally referred to as recognized both that prescribed fires are from prescribed fires, especially where an emissions statement regulation, and a source of emissions that can have a an air agency has determined that it outlines how certain facilities must greater or lesser impact on ozone prescribed fires are a significant source report emissions and facility activity concentrations depending on how and affecting air quality. The EPA data to an air agency, typically a state when the prescribed fire is conducted, understands that the federal land agency. Reports submitted to air and that a prescribed fire program can managers (FLMs) apply these measures agencies must be accompanied by ‘‘a be a way to reduce emissions from routinely and will be available to certification that the information catastrophic wildfires which can impact consult with other agencies and private contained’’ in the report is ‘‘accurate to ozone concentrations. In the preamble land owners interested in doing the the best knowledge’’ of the facility.57 To to the proposal, the EPA proposed to same. properly implement the emissions recommend, as guidance to air agencies, However, for several reasons, the EPA reporting requirements, emissions that in their attainment demonstrations does not believe it would be effective statement regulations should be they account for emissions from wildfire policy or technically appropriate to coordinated carefully with the data and wildland prescribed fire as recommend that control measures for wildland fire be adopted into SIPs as described in the final PM2.5 SIP 56 CAA section 182(a)(3)(B)(2) allows that air Requirements Rule. enforceable measures and credited for agencies may waive, with the EPA’s approval, the b. Final Recommendation. The EPA emissions reductions (of ozone and requirement for emission statements for classes or precursors) that would help the area categories of sources with less than 25 tpy of actual continues to recommend that air attain the standard.59 Instead, the EPA plant-wide NOX or VOC emissions in agencies use the approach described in nonattainment areas, provided the class or category the final PM2.5 SIP Requirements Rule is included in the base year and periodic 58 The EPA notes that some wildland logging inventories required under CAA sections 182(a)(1) when accounting for emissions from operations are conducted for the same purposes as and 182(a)(3)(a), respectively. Emissions in this case wildfire and wildland prescribed fire. prescribed fire (e.g., reducing fuel load, ecosystem must be calculated using emission factors Before explaining this recommendation benefits). The fact that some of the removed trees established by the EPA, or other methods further, the EPA wishes to emphasize may be sold as timber does not make commercial acceptable to the EPA. We emphasize that the 25 timber sale the primary purpose of such operations. tpy emissions threshold applies separately for that this recommendation is focused on 59 These reasons include concerns raised by purposes of emissions statement requirements, and wildland fire management. There are commenters on the PM2.5 SIP Requirements Rule does not relate to the major stationary source other uses of prescribed fire and other about the difficulties associated with requiring (or reporting thresholds for emissions inventories in types of burning that may occur in even encouraging) states to incorporate wildland AERR Table 1. fire emissions into existing nonattainment planning 57 Additional details on developing emissions nonattainment areas, or that may affect procedures and practices under the CAA; high year- statement regulations can be found in the guidance downwind nonattainment areas, such as to-year variability and unpredictability with document titled ‘‘Guidance on the Implementation burning of land clearing debris, emissions from wildland fires; uncertainty in the of an Emission Statement Program (DRAFT),’’ (July agricultural burning and burning of amount of credit to give for reduced wildfire within 1992) available at: https://www.epa.gov/air- the planning period and in the amount of benefit emissions-inventories/implementation-emission- logging slash on land where the primary that exists after accounting for increases in statement-program. purpose of the logging is for commercial Continued

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recommends that ozone nonattainment Air agencies have flexibility in when and where prescribed fire is plans (and in particular the attainment determining how best to represent appropriate for particular wildlands and demonstrations) not account for wildland fire emissions. As noted how to identify and implement expected air quality changes over the earlier, base year emissions inventories appropriate mitigation measures. The planning period resulting from changes for the nonattainment areas should guidance in this preamble simply makes in the use of wildland prescribed fire or represent the conditions leading to clear the EPA’s view regarding our other wildland fire management nonattainment and be consistent with recommendation for RACM for wildland practices to reduce future wildfires, or inventories used for modeling. For fires, fires. air quality changes over the planning the EPA additionally encourages air c. Comments and Responses period resulting from changes in agencies to use a representative mix of wildland fire emissions due to a prescribed fire and wildfire in their Comment: The EPA received program of prescribed fire or due to any inventories. Using ozone as an example, comments expressing agreement with other cause, including climate change. some plans under previous ozone the EPA’s recommended approach to In most cases, state attainment NAAQS have estimated the actual fire managing emissions from wildfire and demonstration modeling should assume emissions and temporal and spatial wildland prescribed fires. A few that wildland prescribed fire and patterns from a given year and used this commenters took positions on wildfire emissions in the attainment same estimate as part of the assumed specifically how to define RACM for year will be equal to, and have the same future baseline inventory for planning, wildfires, ranging from suggesting that temporal and geographic pattern as, while others have used average the EPA require smoke management those assumed in the baseline inventory emissions over multiple years. Other plans to simply stating that prescribed year. approaches may be appropriate as well. fires themselves are RACM with no The EPA acknowledges that some Moreover, regardless of the approach further measures required. Some level and temporal and spatial patterns used, the EPA still encourages air commenters disagreed with our position of fire emissions must still be assumed agencies to submit actual wildfire and that states not take credit in the SIP for in the attainment demonstration in prescribed fire activity data that are emission reductions attributable to a order to ensure that the required air critical to developing emissions reduced incidence of wildfire if the state quality modeling results in a realistic estimates to the NEI, as suggested in the can demonstrate that the measures in physical and chemical environment and AERR. the SIP can be expected to reduce a correspondingly realistic model A consequence of the emissions from wildfire events that response against which to analyze the recommendation of not expressly would ordinarily not be excluded from changes from source categories where accounting for changes in wildland fires the design value for the area. Other express accounting of emissions in attainment demonstrations is that commenters disagreed with our changes is being done. This final rule measures to reduce emissions from recommendation that wildfire emissions does not constrain the options for states wildland fires, such as prescribed fire to be kept constant in projections for the regarding the appropriate assumptions prevent catastrophic wildfires or smoke attainment demonstration. to make for fire emissions. Rather, the management programs and BSMP for Response: In light of the fact that the guidance in this preamble simply prescribed fires in wildland, need not be EPA did not propose specific guidance recommends that once this base level is included as RACM for the respective on defining RACM for wildfires and fire types. This is because the changes established, ozone plans should not typically does not define RACM for in emissions due to such measures attempt to project changes over the specific categories, and the fact that the would not be accounted for in planning period in emissions from EPA is not recommending that states determining what is necessary for wildfires or prescribed fires on wildland include RACM for wildland fires, we are attainment and/or what would advance within the nonattainment area, or in not providing further guidance in the attainment date, which is how the upwind areas included in the modeling response to those comments. The basis EPA is recommending that RACM be domain, that are due to variability in for recommending that wildfire determined. So, for example, in an area wildfire occurrence or changes in the emissions be kept constant in baseline that can attain in 6 years with measures use of wildland prescribed fire or other projections is explained earlier and is that do not address wildland fire, the driven by the uncertainties (e.g., wildland fire management practices. EPA does not recommend that states Moreover, the EPA anticipates that patterns, timing and variability) in attempt to quantify whether increased predicting fire emissions that affect changes in spatial and temporal patterns prescribed fire could advance the of wildfire will likewise be too ozone levels in in nonattainment areas. attainment date by 1 year, due to the This recommendation is only guidance, uncertain for them to be allowed to have aforementioned difficulties associated the effect of reducing or increasing the and is not binding on the states or the with such quantification. EPA. In our actions on individual SIPs, control requirement on conventional To be clear, nothing about this the public will have the opportunity to anthropogenic sources. The EPA, recommendation regarding RACM is make similar comments and we will therefore, recommends that wildland intended to suggest that prescribed fires consider those comments in the context fire emissions generally should be held should be ignited in wildland (or of those actions. constant in the air quality modeling elsewhere) without regard to the air over the planning period, regardless of quality or public health consequences. B. Transportation Conformity and whether wildland fire management As noted earlier, the EPA believes these General Conformity practices by land managers are consequences are important to address, expected, and possibly encouraged or and intends to engage in dialogue with 1. What is conformity? required, to change. the FLMs, air agencies, tribes, state and Conformity is required under CAA private land owners and other section 176(c) to ensure that federal prescribed fires within the planning period; and the stakeholders at appropriate times, such actions are consistent with (‘‘conform fact that air quality data actually influenced by fire to’’) the applicable state, tribal or federal events may ultimately be excluded for regulatory as during the process for the purposes under the provisions of the Exceptional development of land management plans, implementation plan (collectively Events Rule (40 CFR 50.14). about how land managers determine referred to as the SIP in the remainder

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of this section). Conformity to the ensures that federal actions not related for revoking the 2008 ozone NAAQS for applicable implementation plan means to highway and transit funding and all purposes and, where applicable, that federal activities will not cause or approval actions will not interfere with establishing anti-backsliding contribute to new violations of the the appropriate implementation plan. requirements. We are not taking any standards, worsen existing violations or General conformity also fosters final action regarding an approach for delay timely attainment of the relevant communications between federal revoking a prior ozone NAAQS and NAAQS or interim reductions and agencies and state and local air quality establishing anti-backsliding milestones. Conformity applies to areas agencies, provides for public requirements; the EPA intends to that are designated nonattainment and notification of and access to federal address any revocation of the 2008 nonattainment areas redesignated to agency general conformity ozone NAAQS and any potential anti- attainment that are required to have a determinations and allows for air backsliding requirements in a separate CAA section 175A maintenance plan quality review of individual federal future rulemaking. We note here that the after 1990 (‘‘maintenance areas’’). actions. More information on the CAA requires transportation and general Because certain provisions of section general conformity program is available conformity determinations in areas that 176(c) apply only to highway and mass at https://www.epa.gov/general- are designated nonattainment or transit funding and approval actions, conformity. maintenance for a given pollutant and the EPA published two sets of 2. Why is the EPA discussing standard, which at this time includes regulations to implement section 176(c). the 2008 ozone NAAQS. The EPA’s Transportation Conformity transportation and general conformity in Rule (40 CFR 51.390 and part 93, this final rulemaking? 4. Are there any other impacts related to subpart A) establishes the criteria and The EPA is discussing transportation general conformity based on procedures for determining whether and general conformity in this implementation of the 2015 ozone transportation activities conform to the rulemaking in order to provide affected NAAQS? SIP. These activities include adopting, parties with information on when As air agencies develop SIP revisions funding or approving transportation conformity must be implemented after for the 2015 and future ozone NAAQS, plans, transportation improvement areas are designated nonattainment for the agency recommends that state and programs and federally supported the 2015 ozone NAAQS. The local air quality agencies work with highway and transit projects. The EPA information presented here is consistent federal agencies with large facilities first promulgated the Transportation with existing conformity regulations (e.g., commercial airports, ports and Conformity Rule on November 24, 1993 and statutory provisions that are not large military bases) that might take (58 FR 62188), and subsequently addressed by this ozone implementation actions subject to the general conformity published several amendments. We rulemaking. Affected parties include regulations to establish an emissions subsequently restructured the state, local and tribal transportation and budget in the SIP for those facilities in Transportation Conformity Rule so that air quality agencies, metropolitan order to facilitate future general existing transportation conformity planning organizations and federal conformity determinations. Such a requirements apply for any new or agencies including the U.S. Department budget could be used by federal revised NAAQS (77 FR 14979; March of Transportation (DOT), the U.S. agencies in determining conformity or 14, 2012). The Transportation Department of Defense (DOD), the U.S. identifying mitigation measures for Conformity Rule, therefore, does not Department of Interior (DOI) and the particular projects at those facilities, but need to be updated to reflect the 2015 U.S. Department of Agriculture (USDA). only if the budget level is included and ozone NAAQS. The EPA in June 2018 3. When would transportation and identified in the SIP. issued an update to existing general conformity apply to areas In a few cases, tracts of land under transportation conformity guidance designated nonattainment for the 2015 federal management may also be related to the implementation of the ozone NAAQS? included in nonattainment and revised ozone NAAQS. The guidance is maintenance area boundaries. The role available at: https://www.epa.gov/state- Transportation and general conformity will apply 1 year after the of prescribed fire in these areas should and-local-transportation/policy-and- be assessed in concert with those federal technical-guidance-state-and-local- effective date of nonattainment designations for the 2015 ozone land management agencies. In such transportation. For further information areas the EPA encourages air agencies to on transportation conformity NAAQS. CAA section 176(c)(6) provides consider including, in any baseline, rulemakings, policy guidance and a 1-year grace period from the effective modeling and SIP attainment inventory outreach materials, see the EPA’s date of initial designations for any new used and/or submitted, emissions website at https://www.epa.gov/state- or revised NAAQS before transportation expected from projects subject to and-local-transportation. and general conformity apply in The EPA’s general conformity nonattainment areas. The grace period general conformity, including emissions regulations (40 CFR part 51, subpart W applies even if the area had been from wildland fire that may be and 40 CFR part 93, subpart B) establish designated nonattainment for a prior reasonably expected in the area. Where the criteria and procedures for ozone NAAQS. For additional appropriate, air agencies may consider determining whether activities not information on transportation developing plans for addressing addressed by the transportation conformity requirements and the 1-year wildland fires in collaboration with conformity rule conform to the grace period please refer to the EPA’s land managers and owners. Information appropriate implementation plan. The transportation conformity guidance for is available from DOI and USDA Forest EPA first promulgated general the 2015 ozone NAAQS available at: Service on the ecological role of fire and conformity regulations in November https://www.epa.gov/state-and-local- on smoke management programs and 60 1993 (58 FR 63214; November 30, transportation/policy-and-technical- BSMP. 1993)). Subsequently, the EPA finalized guidance-state-and-local-transportation. 60 USDA Forest Service and Natural Resources revisions to the general conformity As discussed in Section II of this Conservation Service, Basic Smoke Management regulations on April 5, 2010 (75 FR preamble, the EPA proposed and sought Practices Tech Note, October 2011, available at: 17254). The general conformity program comment on two alternative approaches Continued

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C. Requirements for Contingency attainment plans that rely, in part, on (5th Cir. 2004) (LEAN); see also 40 CFR Measures in the Event of Failure To the future development of new control 56.5(b). Meet a Milestone or To Attain technologies or improvements of existing control technologies, where 3. Comments and Responses 1. Summary of Proposal certain conditions are met. This Comment: A commenter noted that For purposes of the 2015 ozone discretion can be applied as long as an the EPA acknowledges the Bahr v. EPA NAAQS, the EPA proposed no changes air agency has demonstrated that: All decision, but declines to abide by it. The to the requirements for contingency RACM, including RACT, have been commenter asserts that Bahr was measures articulated in the final 2008 included in the plan; the area’s RFP properly decided, and the EPA must Ozone NAAQS SIP Requirements Rule demonstration during the first 10 years follow it with regards to contingency (80 FR 12285; March 6, 2015). As after designation does not rely on required by the CAA, states must measures required under CAA sections anticipated future technologies; and the 172(c)(9), 182(c)(9) and 182(e)(5). include in their nonattainment area SIPs air agency has submitted enforceable contingency measures that are commitments to timely develop and Response: The appropriateness of consistent with CAA section 172(c)(9). adopt contingency measures to be relying on already-implemented For areas classified Serious or higher, implemented if the anticipated future reductions to meet the contingency states must also include contingency technologies do not achieve planned measures requirement has been measures that are also consistent with reductions. The EPA is continuing to addressed in two federal circuit court CAA section 182(c)(9), with a limited allow air agencies to submit, for decisions. See LEAN, 382 F.3d at 586; exception for Extreme nonattainment Extreme nonattainment areas, Bahr, 836 F.3d 1218. The EPA believes areas relying on plan provisions enforceable commitments to develop that the language of sections 172(c)(9) approved under CAA section 182(e)(5). and adopt contingency measures and 182(c)(9) is ambiguous with respect 2. Final Rule meeting the requirements of 182(e)(5) to to this issue, and that it is reasonable for satisfy the requirements for attainment the agency to interpret the statutory The EPA is finalizing the proposed contingency measures in CAA sections language to allow approval of already requirements. Contingency measures 172(c)(9) and 182(c)(9). These implemented measures as contingency required under CAA sections 172(c)(9) enforceable commitments must obligate measures, so long as they meet other and 182(c)(9) must be fully adopted the air agency to submit the required parameters such as providing excess rules or measures that can take effect contingency measures to the EPA no emissions reductions that the state has without further action by the state or the later than 3 years before any applicable not relied upon to make RFP or for EPA upon failure to meet milestones or implementation date, in accordance attainment in the nonattainment plan attain by the attainment deadline. Per with CAA section 182(e)(5).62 We note for the NAAQS at issue. Until the Bahr 61 the EPA guidance, these measures that this does not, however, relieve air decision, under the EPA’s longstanding should provide 1 year’s worth of agencies from obligations to submit interpretation of CAA section 172(c)(9) emissions reductions, or approximately contingency measures as required by and 182(c)(9), states could rely on 3 percent of the baseline emissions CAA sections 172(c)(9) and 182(c)(9) for control measures that were already inventory. Once triggered, if these periods in the first 10 years after implemented (so called ‘‘early adopted contingency measures are designation. triggered’’ contingency measures) as a insufficient to attain the standard, an air valid means to meet the Act’s agency must conduct additional control As noted in the November 17, 2016, contingency measures requirement. The measure development and proposed rulemaking, the EPA implementation for the area as acknowledges that the U.S. Court of Ninth Circuit decision in Bahr has necessary to correct the shortfall. Appeals for the Ninth Circuit issued an created a split among the federal circuit Regarding content of the 1 year’s opinion in Bahr v. EPA, 836 F.3d 1218 courts, with the Fifth Circuit upholding worth of reductions covered by the (9th Cir. 2016), cert. denied, 199 L. Ed. the agency’s interpretation of section contingency measures, the EPA is 2d 525, 2018 U.S. LEXIS 58 (Jan. 8, 172(c)(9) to allow early triggered continuing to allow contingency 2018), which rejected the EPA’s contingency measures and the Ninth measure emissions reductions to be longstanding interpretation of CAA Circuit rejecting that interpretation. section 172(c)(9) in the context of a SIP based entirely or in part on NOX States located in circuits other than controls if the area has completed the for particulate matter standards that the Ninth may elect to rely on the EPA’s initial 15 percent ROP VOC reduction allowed states to rely on control longstanding interpretation of section required by CAA section 182(b)(1)(A)(i) measures that are already in effect as a 172(c)(9) allowing early triggered and an air agency’s analyses have valid means to meet the contingency measures to be approved as contingency measure requirement. The EPA does not demonstrated that NOX substitution measures, in appropriate circumstances. (entirely or in part) would be effective currently plan to alter the agency’s The EPA’s revised Regional Consistency in bringing the area into attainment. longstanding interpretation outside of regulations pertaining to SIP provisions the Ninth Circuit, especially in light of With respect to Extreme ozone authorize the agency to follow this a prior decision from the U.S. Court of nonattainment areas, CAA section interpretation of section 172(c)(9) in Appeals for the Fifth Circuit upholding 182(e)(5) allows the agency to exercise circuits other than the Ninth. See 40 that interpretation. See Louisiana Envt’l discretion in approving Extreme area CFR part 56. To ensure that early Action Network v. EPA, 382 F.3d 575 triggered contingency measures _ http://www.nrcs.usda.gov/internet/FSE appropriately satisfy all other relevant DOCUMENTS/stelprdb1046311.pdf. 62 For example, where a state intends to rely on 61 ‘‘Guidance on Issues Related to 15 Percent CAA section 182(e)(5) commitments to satisfy the CAA requirements, the EPA will Rate-of-Progress Plans,’’ Memorandum from CAA section 182(c)(9) contingency measure carefully review each such measure Michael H. Shapiro, Acting Assistant Administrator requirement for an RFP milestone in year 2027, the contained in an air agency’s submission, for Air and Radiation, to Regional Air Directors commitments must obligate the state to submit and intends to consult with air agencies (August 23, 1993), available at: http:// adopted contingency measures to the EPA no later www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/ than 2024 (i.e., 3 years before RFP contingency considering such measures early in the 19930823_shapiro_15pct_rop_guidance.pdf. measures for 2027 would be implemented). attainment plan development process.

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D. Background Ozone Administration’s Health and Air Quality air agencies to incorporate the NOX 68 With respect to the larger issue of Applied Sciences Team. Each of these emission impacts into ozone RFP and background ozone (or U.S. background efforts includes workshops for attainment demonstration SIPs. (USB)), the EPA has solicited input from stakeholders and development of States and other authorities have air agencies, tribes and interested scientific products that inform the requested the EPA’s assistance in stakeholders on aspects of USB that are EPA’s understanding of USB. However, accounting for the emissions reductions relevant to attaining the 2015 ozone the EPA is not adopting requirements achieved through EE/RE programs in NAAQS in a manner consistent with the regarding background ozone with this NAAQS SIPs and tribal implementation provisions of the CAA.63 To establish a rulemaking. plans (TIPs), and the EPA has common understanding and foundation The EPA also in 2016 recently responded to those requests by for discussion, the EPA released a white finalized revisions to the Exceptional developing several resources, including paper titled, ‘‘Implementation of the Events Rule to further facilitate review the ‘‘Roadmap for Incorporating EE/RE and approval of exceptional events that Programs and Policies in NAAQS SIPs/ 2015 Primary Ozone NAAQS: Issues 70 Associated with Background Ozone’’ in contribute to USB, such as stratospheric TIPs’’ (released August 2012) and the December 2015, and held a workshop in ozone intrusions and wildfires (81 FR AVoided Emissions geneRation Tool February 2016 to discuss information in 68216; October 3, 2016). Guidance is (AVERT), a tool for quantifying NOX, 64 currently available for demonstrations SO2 and CO2 avoided emissions the white paper. Workshop attendees 71 included representatives of state, local of exceptional events for high wind (released February 2014). The and tribal air agencies and other dust, and the EPA finalized guidance for Roadmap describes four pathways interested stakeholders. General ozone associated with wildfire events in (baseline emissions projection, control concerns expressed by attendees that September 2016.69 The EPA expects to strategy, emerging/voluntary measures commented were that the EPA is make available similar guidance for and weight of evidence determination) underestimating the magnitude and stratospheric ozone intrusions by the by which EE/RE policies and programs effects of USB, that available policy end of 2018. However, the EPA is not could be included in a SIP. Each solutions do not provide meaningful revising the Exceptional Events Rule or pathway is appropriate in certain relief from nonattainment designations guidance with this rulemaking. circumstances (existing vs. new EE/RE, control vs. voluntary measures etc.) and in affected areas, and that USB can E. Additional Policies and Programs for the Roadmap can help decision-makers make meeting nonattainment area Achieving Emissions Reductions consider their options as they decide requirements unreasonably difficult or which pathway(s) to pursue for costly.65 1. Multi-Pollutant Planning incorporating EE/RE policies and The EPA continues to engage with Increasingly, state air agencies are stakeholders and the academic programs into SIP/TIP demonstrations. considering multi-pollutant emission The Roadmap’s Appendix I also community to refine and conduct reduction strategies. States have national and global model simulations presents several methods available for expressed interest in a number of those quantifying the avoided NO emissions to better characterize USB, and is X strategies, ranging from energy from fossil fuel generation as a result of actively evaluating the need for further efficiency and renewable energy (EE/RE) electricity savings from EE/RE policy/ guidance and/or rules to address USB programs to land use planning and program implementation.72 based on feedback received and new travel efficiency programs. This section The EPA’s tool, AVERT, can help understandings that may emerge from discusses EE/RE, and Sections E.2 and planners in quantifying the emissions ongoing research and analysis. In 2017 E.3 that follow discuss the latter reductions that result from EE/RE and 2018, the EPA activities include programs. policies and programs. AVERT outputs participation in the Background Ozone In recent years, states have expressed are readily available for Sparse Matrix Science Assessment organized by the increased interest in EE/RE programs Operator Kernel Emissions formatting to Western States Air Resources Council, when assessing compliance options for incorporate the emission impacts into the Western Regional Air Partnership ozone RFP and attainment air quality models. 66 and the American Petroleum Institute, demonstration SIPs. Many states are The EPA recognizes that states may the United Nations’ Hemispheric already implementing cost-effective EE/ now have at their disposal other 67 Transport of Air Pollutants task force RE requirements that reduce all types of quantification tools. An update of the and the U.S. National Air and Space power generation-related emissions ‘‘Air Emissions Inventory Guidance for (including NAAQS-related air Implementation of Ozone and 63 For purposes of NAAQS implementation, the Particulate Matter NAAQS and Regional EPA considers USB to be any ozone formed from pollutants such as NOX, PM2.5, and sources or processes other than U.S. manmade sulfur dioxide (SO2) and other air Haze Regulations’’ (released July 2017) emissions of NOX, VOCs, methane and CO. pollutants, such as hazardous air provides examples of tools that states 64 The white paper and other workshop details pollutants). Effectively assessing these can use to quantify the power sector are available at: https://www.epa.gov/ozone- approaches will require strong working emissions and EE/RE.73 In this pollution/background-ozone-workshop-and- guidance, the EPA does not limit the information. relationships between state energy and 65 A high-level summary of workshop feedback is environmental officials. As state public types of tools states can use, so long as available at: https://www.epa.gov/sites/production/ utility commissions (PUCs) and state files/2016-03/documents/bgo3-high-level- energy offices implement, increase the 70 Roadmap for Incorporating EE/RE Programs summary.pdf. Additional written comments from and Policies in NAAQS SIPs/TIPs available at: interested parties are located in a separate EPA stringency of or adopt new EE/RE https://www.epa.gov/sites/production/files/2016– docket available at http://www.regulations.gov requirements, their expertise can assist 05/documents/eeremanual_0.pdf. (Docket ID No. EPA–HQ–OAR–2016–0097). 71 AVERT available at: http://www3.epa.gov/ 66 A summary of this Background Ozone Science 68 Details about these Health and Air Quality avert/. Assessment workshop is available at: https:// Applied Sciences Team workshops and projects are 72Available at https://www.epa.gov/sites/ www.wrapair2.org/pdf/BOSA_March_28-29_ available on the website: https://haqast.org. production/files/2016-05/documents/ workshop_agenda.pdf. A related journal article is 69 Guidance documents and more information appendixi_0.pdf. currently undergoing peer review. about exceptional events can be found at: https:// 73 Available at: https://www.epa.gov/air- 67 A work plan and list of publications is www.epa.gov/air-quality-analysis/exceptional- emissions-inventories/air-emissions-inventory- available on the website: www.htap.org. events-rule-and-guidance. guidance-implementation-ozone-and-particulate.

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states appropriately document their programs 80 will avoid nearly 17 tons report about transportation control 81 assumptions. per summer day of NOX in 2020. measures that have been implemented across the country for a variety of State PUCs, primarily through their 2. Land Use Planning utilities, have in recent years been purposes, including reducing emissions Air agencies may also wish to related to criteria pollutants. All of these rapidly increasing resources devoted to consider strategies that foster more documents are available on the EPA’s EE programs. In the 5 years spanning efficient urban and regional Office of Transportation and Air Quality 2006 to 2011, budgets for EE programs development patterns as a long-term air website.83 more than tripled, from $1.6 billion to pollution control measure. Resources $5.9 billion. Additionally, EE spending include the U.S. Department of Housing F. Additional Requirements Related to is projected to continue to grow at a and Development–DOT–EPA Enforcement and Compliance substantial rate.74 As of March 2015, 23 Partnership for Sustainable CAA section 172(c)(6) requires states have mandatory energy efficiency Communities, as well as the policy and nonattainment SIPs to ‘‘include requirements, two states have voluntary technical guidance documents on land enforceable emission limitations, and targets, and two states allow energy use and related travel efficiency such other control measures, means or efficiency as a compliance option for available on the EPA’s Office of techniques . . . as well as schedules their renewable portfolio standard Transportation and Air Quality and timetables for compliance, as may (RPS).75 website.82 These documents provide be necessary or appropriate to provide Also, state-level RE requirements have communities with the information they for attainment . . .’’ The EPA’s ‘‘Guidance on Preparing Enforceable been implemented in 29 states plus need to better understand the link Regulations and Compliance Programs Washington, DC, representing all between air quality, transportation and land use, and how certain land use for the 15 Percent Rate-of-Progress regions of the country.76 Between the policies have the potential to help local Plans’’ (EPA–452/R–93–005, June years 2020 and 2030, many state-level areas achieve and maintain healthy air 1993) 84 is still relevant to rules adopted RPS programs require electric utilities to quality. The documents also include for SIPs under the 2015 ozone NAAQS serve from 15 to 40 percent of their and should be consulted for purposes of 77 methods to help communities account retail sales with renewable power. for the air quality benefits of their local developing appropriate enforceable To further help states assess the land use in their air quality plans. nonattainment plan provisions under effects of these programs, the EPA If wildfire impacts are significant in a CAA section 172(c)(6). The EPA did not developed a counterfactual EE/RE particular area, air agencies and propose, and is not adopting, any scenario for two areas that were communities may be able to lessen the additional specific regulatory provisions nonattainment for the 2008 ozone impacts of wildfires by working related to compliance and enforcement NAAQS, including the New York-New collaboratively with land managers and for implementing the 2015 ozone Jersey-Connecticut area.78 In these land owners to employ various NAAQS, and received no adverse illustrative examples the EPA used mitigation measures including taking comments on the existing recommended AVERT to approximate the potential steps to minimize fuel loading in areas approach and related guidance. emissions that would have been emitted vulnerable to fire. G. Applicability of Final Rule to Tribes into the atmosphere without current 3. Travel Efficiency Section 301(d) of the CAA authorizes state-level EE/RE requirements. For the Areas may also consider incorporating the EPA to approve eligible Indian tribes New York-New Jersey-Connecticut area, in their SIPs travel efficiency strategies, to implement provisions of the CAA on the EPA estimated that the current state- such as new or expanded mass transit Indian reservations and other areas level RE requirements 79 will avoid over 85 options, commuter strategies, system within the tribes’ jurisdiction. The 24 tons per summer day of NO in 2020, X operations (e.g., ramp metering), pricing Tribal Authority Rule (TAR) (40 CFR and the current state-level EE (e.g., parking fees, congestion pricing, part 49.1–49.11), which implements roadway tolls), real-time travel CAA section 301(d), sets forth the 74 American Council for an Energy-Efficient information and multimodal freight criteria and process for tribes to apply Economy (ACEEE) 2013 State Energy Efficiency to the EPA for eligibility to administer Scorecard (November 2013), available at: http:// strategies. The EPA has released several www.aceee.org/state-policy/scorecard/. documents that could be useful to air CAA programs (40 CFR 49.6, 49.7). As 75 U.S. EPA 2015. Energy and Environmental agencies that want to evaluate emissions discussed in detail in the proposed 2008 Guide to Action, Chapter 4 available at: https:// reductions from travel efficiency www.epa.gov/statelocalenergy/energy-and- strategies. These documents provide 83 See https://www.epa.gov/state-and-local- environment-guide-action-chapter-4-energy- transportation/policy-and-technical-guidance-state- efficiency-policies. information on analysis methods and and-local-transportation. 76 RE requirements include Renewable Portfolio the potential effectiveness of different 84 Available at: http://nepis.epa.gov/Exe/ Standards or state-enacted RE requirements on a combinations of travel efficiency ZyPURL.cgi?Dockey=00002TCM.txt. Mega-Watt (MW) basis. Database of State Incentives measures for reducing emissions. 85 On January 17, 2014, the United States Court for Renewables and Efficiency, March 2013, Additionally, the EPA has compiled a of Appeals for the District of Columbia Circuit available at: http://www.dsireusa.org. issued a decision vacating the EPA’s 2011 rule 77 U.S. EPA. 2015 Energy and Environment Guide titled ‘‘Review of New Sources and Modifications to Action, Chapter 5 available at: https:// 80 The EE programs used in each state are in Indian Country’’ (76 FR 38748) with respect to www.epa.gov/statelocalenergy/energy-and- different. Connecticut’s estimated annual efficiency non-reservation areas of Indian country (See, environment-guide-action-chapter-5-renewable- savings is 2.8 percent, New York’s target was 15 Oklahoma Department of Environmental Quality v. portfolio-standards. percent savings from baseline by 2015 and New EPA, 740 F.3d 185 (D.C. Cir. 2014)). Under the 78 This area encompasses eight counties in New Jersey incentivized efficiency improvements court’s reasoning, with respect to CAA SIPs, a state York, 12 counties in New Jersey and three counties through a funding program of $265 million in has primary regulatory jurisdiction in non- in Connecticut. The EPA’s analysis is described in FY2014. reservation areas of Indian country (i.e., Indian the Technical Support Document ‘‘Demonstrating 81 For context, the RFP plan for the New York- allotments located outside of reservations and NOX Emission Reduction Benefits of State-Level New Jersey-Connecticut 1997 ozone NAAQS dependent Indian communities) within its Renewable Energy and Energy Efficiency Policies,’’ nonattainment area included a 2008 NOX emissions geographic boundaries unless the EPA or a tribe has available in the docket for this rulemaking. projection of 269 tons per summer day. demonstrated that a tribe has jurisdiction over a 79 The 2020 RE requirements in each state are 82 See http://www.epa.gov/otaq/stateresources/ particular area of non-reservation Indian country different and range from 20 percent to 30 percent. policy/pag_transp.htm. within the state.

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Ozone NAAQS SIP Requirements Rule and implementation of federal requests that the EPA require states to (78 FR 34209; June 6, 2013), tribes are environmental programs, the February utilize specific measures when not required to submit TIPs under the 2014 ‘‘OAR Handbook for Interacting developing attainment plans, updating TAR. However, should a tribe choose to with Tribal Governments’’ and the ‘‘EPA yearly monitoring plans and initiating develop a TIP, this rule is intended to Policy on Consultation and the permitting process for overburdened serve as a guide for addressing key Coordination with Indian Tribes.’’ 86 communities. implementation issues for areas of Consistent with these policies, the EPA Indian country, particularly for any intends to meet with tribes on activities Response: The EPA is not making any areas of Indian country that may be potentially affecting the attainment and changes to its proposed approach in designated as nonattainment areas maintenance of the 2015 ozone NAAQS response to the commenter’s request separate from surrounding state areas. in Indian country, including our actions that the EPA require states to utilize It is important for state and local air on SIPs. As such, it would be helpful for specific measures directed to minority, agencies and tribes to work together to states to work with tribes whose land low-income and indigenous people to coordinate planning efforts where that is part of the same general air help address ground-level ozone. In the nonattainment areas include both quality area during the SIP development CAA’s framework of cooperative Indian country and state land. States process and to coordinate with tribes as federalism, states are primarily need to incorporate Indian country they develop their SIPs, regardless of responsible for developing plans for emissions in their base emissions whether the tribe’s area of Indian achieving NAAQS in areas within their inventories if Indian country is part of country is separately designated. jurisdiction, based on planning rules an attainment or nonattainment area. VI. Environmental Justice and guidance promulgated by the EPA. Tribes and states should coordinate Considerations These planning requirements include their planning activities as appropriate (but are not limited to) provisions for to ensure that neither is adversely The EPA believes this action does not implementing emissions controls, affecting attainment of the NAAQS in have disproportionately high and tracking progress toward attainment and the area as a whole. Coordinated adverse human health or environmental monitoring and reporting air quality planning in these areas will help ensure effects on minority, low-income or data, with the overarching goal of indigenous populations because it does that the planning decisions made by the attaining and maintaining the NAAQS not negatively affect the level of state and local air agencies and tribes as expeditiously as practical, but no complement each other and that the protection provided to human health or later than the CAA’s maximum nonattainment area makes reasonable the environment under the 2015 ozone attainment date. In the PM2.5 SIP progress toward attainment and NAAQS, which are set at levels to Requirements Rule, the EPA encouraged ultimately attains the 2015 ozone protect sensitive populations with an NAAQS. In reviewing and approving adequate margin of safety.87 These states to consider various tools to help individual TIPs and SIPs, we will regulations help clarify the SIP users identify areas with minority and/ determine if together they are consistent requirements and the NNSR permitting or low-income populations, potential with the overall air quality needs of an requirements to be met by air agencies environmental quality issues, a area. in order to attain the 2015 ozone combination of environmental and States have an obligation to notify NAAQS as expeditiously as practicable. demographic indicators that is greater other states in advance of any public These requirements are designed to than usual and other factors that may be hearing(s) on their state plans if such protect all segments of the general of interest. The EPA included these plans will significantly impact such population and do not adversely affect tools in the PM2.5 SIP Requirements other states. 40 CFR 51.102(d)(5). Under the health or safety of minority, low- Rule because areas designated CAA section 301(d) and the TAR, tribes income or indigenous populations. nonattainment for the PM2.5 standards may become eligible to be treated in a Comment: One commenter on the can contain sources of directly emitted manner similar to states (TAS) for this proposed rulemaking stated that the pollutants that can have adverse purpose (40 CFR 49.6–49.9). Affected implementation rule must identify impacts on a local neighborhood scale. states and tribes with approved TAS specific measures directed to minority, By contrast, elevated levels of ambient must also be informed of the contents of low-income and/or indigenous people. ozone are the result of secondary urban- such state plans and given access to the The commenter noted that the EPA scale atmospheric formation involving documentation supporting these plans. identified such measures in the PM2.5 emissions from ubiquitous sources of SIP Requirement Rule. The commenter In addition to this mandated process, ozone precursors (VOC and NOX) we encourage states to extend the same including motor vehicles, large and notice to all affected tribes, regardless of 86 Tribal guidance documents are available at: https://www.epa.gov/sites/production/files/2018- small industrial processes and their TAS status. 01/documents/oar_handbook_updated_1.24.18_ consumer products which result in Executive Orders and the EPA’s .pdf and http://www.epa.gov/tribal/forms/ more regional scale impacts further Indian policies generally call for the consultation-and-coordination-tribes. down wind. The EPA encourages states 87 The EPA conducted a regulatory impact EPA to coordinate and consult with to work with communities to develop tribes on matters that affect tribes. analysis (RIA) of its final action establishing the 2015 ozone NAAQS. The demographic analysis ozone-related control strategies that Executive Order 13175, titled, conducted as part of the RIA found that in areas most effectively reduce emissions that ‘‘Consultation and Coordination with with poor air quality relative to the revised contribute to elevated ozone levels. Indian Tribal Governments’’ requires standards, the representation of minority the EPA to develop a process to ensure populations was slightly greater than in the U.S. as a whole (see Chapter 9, section 9.10 and Appendix VII. Statutory and Executive Order ‘‘meaningful and timely input by tribal 9A of the RIA). Because the air quality in these Reviews officials in the development of areas does not currently meet the revised standards, regulatory policies that have Tribal populations in these areas would be expected to Additional information about these benefit from implementation of the strengthened statutes and Executive Orders can be implications.’’ In addition, the EPA’s standards. The RIA is available at https:// policies include the agency’s 1984 www3.epa.gov/ttn/ecas/docs/20151001ria.pdf and found at http://www2.epa.gov/laws- Indian Policy relating to Indian tribes in the RIA docket (EPA–HQ–OAR–2013–0169). regulations/laws-and-executive-orders.

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A. Executive Order 12866: Regulatory submission requirement appears in 40 ultimately decide to impose economic Planning and Review and Executive CFR 51.1312, which implements CAA impacts on small entities, that is not Order 13563: Improving Regulation and subsections 172(c)(1) and 182(b)(2), (c), required by this rule and would only Regulatory Review (d), and (e). occur at the discretion of the state. This action is a significant regulatory Air agencies with areas that have been previously designated nonattainment E. Unfunded Mandates Reform Act action that was submitted to the Office should already have information from (UMRA) of Management and Budget (OMB) for many emission sources, as facilities This action does not contain any review. Any changes made in response should have provided this information unfunded mandate as described in to OMB recommendations have been to meet 1-hour, 1997 and/or 2008 ozone UMRA, 2 U.S.C. 1531–1538, and does documented in the docket. NAAQS SIP requirements, operating not significantly or uniquely affect small B. Executive Order 13771: Reducing permit program requirements and/or governments. The action imposes no Regulations and Controlling Regulatory emissions reporting requirements. enforceable duty on any state, local or Costs The annual burden for information tribal governments or the private sector. collection averaged over the first 3 years This action is not subject to Executive The CAA imposes the obligation for of the ICR is estimated to be a total of Order 13771 because this final rule is states to submit attainment plans to 41,800 labor hours per year at an annual expected to result in no more than de implement the ozone NAAQS. In this labor cost of $2.5 million (present value) minimis costs. rule, the EPA is clarifying those or approximately $107,000 per state for requirements. Therefore, this action is C. Paperwork Reduction Act (PRA) the estimated 23 state air agency not subject to the requirements of The information collection activities respondents. The ICR Supporting sections 202, 203 and 205 of the UMRA. Statement for the 2015 8-hour Ozone in this final rule have been submitted F. Executive Order 13132: Federalism for approval to OMB under the PRA. NAAQS Implementation Rule, EPA ICR The ICR document that the EPA No. 2347.03, provided in the docket, This action does not have federalism prepared has been assigned the EPA ICR provides the details for the 23 state air implications. It will not have substantial No. 2347.03 and OMB Reference No. agencies that would be required to direct effects on the states, on the 2060–0695. You can find a copy of the provide the estimated 66 SIP revisions relationship between the national ICR in the docket for this rule, and it is for the 57 hypothetical areas designated government and the states, or on the briefly summarized here. The nonattainment for the 2015 ozone distribution of power and information collection requirements are standard. The average annual reporting responsibilities among the various not enforceable until OMB approves burden is 633 hours per response, with levels of government. approximately 2.87 responses per state them. G. Executive Order 13175: Consultation The EPA is finalizing these for 66 state responses from the state air agencies. There are no capital or and Coordination With Indian Tribal implementing regulations for the 2015 Governments ozone NAAQS so that air agencies will operating and maintenance costs This action does not have tribal know what CAA requirements apply to associated with the proposed implications as specified in Executive their nonattainment areas when the air rulemaking requirements. An agency may not conduct or Order 13175. It would not have a agencies develop their SIPs or SIP sponsor, and a person is not required to substantial direct effect on one or more revisions for attaining and maintaining respond to, a collection of information Indian tribes, since no tribe is required the NAAQS. The intended effect of unless it displays a currently valid OMB to develop a TIP under these regulatory these implementing regulations is to control number. The OMB control revisions. Furthermore, these regulation provide certainty to air agencies numbers for the EPA’s regulations in 40 revisions do not affect the relationship regarding their planning obligations. For CFR are listed in 40 CFR part 9. When or distribution of power and purposes of analysis of the estimated OMB approves this ICR, the agency will responsibilities between the federal paperwork burden,88 the EPA assumed announce that approval in the Federal government and tribes. The CAA and 57 nonattainment areas,89 some of Register and publish a technical the TAR establish the relationship of the which must prepare an attainment amendment to 40 CFR part 9 to display federal government and tribes in demonstration as well as submit an RFP the OMB control number for the developing plans to attain the NAAQS, and RACT SIP. The attainment approved information collection and these revisions to the regulations do demonstration requirement appears in activities contained in this final rule. nothing to modify that relationship. 40 CFR 51.1308, which implements Thus, Executive Order 13175 does not CAA subsections 172(c)(1), 182(b)(1)(A) D. Regulatory Flexibility Act (RFA) apply to this action. and 182(c)(2)(B). The RFP SIP I certify that this action will not have Although there were no substantial submission requirement appears in 40 a significant economic impact on a direct impacts on tribes, consistent with CFR 51.1310, and the RACT SIP substantial number of small entities the February 2014 ‘‘OAR Handbook for under the RFA. This action will not 88 Interacting with Tribal Governments,’’ Burden is defined at 5 CFR 1320.3(b). impose any requirements on small and the ‘‘EPA Policy on Consultation 89 The EPA developed a hypothetical list of nonattainment areas for estimating the burden for entities. Entities potentially affected and Coordination with Indian Tribes.’’ states to meet their 2015 ozone nonattainment area directly by this rule include state and the EPA briefed tribal officials during requirements. The hypothetical nonattainment local governments and none of these the development of this action. areas were based on the preliminary 2013–2015 air governments are small governments. quality data available. The hypothetical Other types of small entities are not H. Executive Order 13045: Protection of nonattainment areas include multiple counties for Children From Environmental Health most areas based on the existing 2008 and 1997 8- directly subject to the requirements of hour ozone nonattainment areas, Combined this rule because this action only and Safety Risks Statistical Area, or Core Based Statistical Area addresses how a SIP will provide for The EPA interprets Executive Order boundary associated with a violating monitor. Note that these areas are used for analytical purposes adequate attainment and maintenance of 13045 as applying only to those only. Actual nonattainment areas and boundaries the NAAQS and meet the obligations of regulatory actions that concern are determined through the designations process. the CAA. Although some states may environmental health or safety risks that

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the EPA has reason to believe may venue for petitions of review of final of this rule for the purposes of judicial disproportionately affect children, per agency actions by the EPA under the review nor does it extend the time the definition of ‘‘covered regulatory CAA. This section provides, in part, that within which a petition for judicial action’’ in section 2–202 of the petitions for review must be filed in the review may be filed and shall not Executive Order. This action is not U.S. Court of Appeals for the District of postpone the effectiveness of such rule subject to Executive Order 13045 Columbia Circuit (i) when the agency or action. Under section 307(b)(2) of the because it implements a previously action consists of ‘‘nationally applicable Act, the requirements of this final action promulgated health or safety-based regulations promulgated, or final actions may not be challenged later in civil or federal standard established pursuant to taken, by the Administrator’’ or (ii) criminal proceedings to enforce these the CAA. when such action is locally or regionally requirements. applicable, if ‘‘such action is based on I. Executive Order 13211: Actions a determination of nationwide scope or VIII. Statutory Authority Concerning Regulations That effect and if in taking such action the Significantly Affect Energy Supply, The statutory authority for this action Administrator finds and publishes that Distribution or Use is provided by sections 109; 110; 172; such action is based on such a 181 through 185B; 301(a)(1) and This action is not a ‘‘significant determination.’’ 501(2)(B) of the CAA, as amended (42 energy action’’ because it is not likely to The EPA is determining that this rule U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C. have a significant adverse effect on the for the 2015 ozone NAAQS SIP 7502; 42 U.S.C. 7511–7511f; 42 U.S.C. supply, distribution or use of energy. requirements is ‘‘nationally applicable’’ 7601(a)(1); 42 U.S.C. 7661(2)(B)). J. National Technology Transfer and within the meaning of CAA section Advancement Act (NTTA) 307(b)(1). First, the rulemaking List of Subjects in 40 CFR Part 51 addresses implementation of the This rulemaking does not involve NAAQS that applies to all states and Environmental protection, Air technical standards. territories in the U.S. Second, the pollution control, Intergovernmental rulemaking addresses planning relations, Nitrogen oxides, Ozone, K. Executive Order 12898: Federal Particulate matter, Transportation, Actions To Address Environmental requirements for potential Volatile organic compounds. Justice in Minority Populations and nonattainment areas in states across the Low-Income Populations U.S. that are located in various EPA Dated: November 7, 2018. The EPA believes that this action does regions and numerous federal circuits. Andrew R. Wheeler, not have disproportionately high and Third, the rulemaking addresses a Acting Administrator. common core of knowledge and analysis adverse human health or environmental For the reasons stated in the involved in formulating the decisions effects on minority populations, low- preamble, Title 40, Chapter I of the Code and a common interpretation of the income populations and/or indigenous of Federal Regulations is amended as requirements of the CAA being applied populations as specified in Executive follows: Order 12898 (59 FR 7629, February 16, to potential nonattainment areas in 1994). The documentation for this states across the country. Courts have PART 51—REQUIREMENTS FOR decision is contained in Section VI of found similar implementation PREPARATION, ADOPTION, AND this preamble. rulemaking actions to be nationally SUBMITTAL OF IMPLEMENTATION applicable.90 PLANS L. Congressional Review Act (CRA) Under section 307(b)(1) of the Act, This action is subject to the CRA, and petitions for judicial review of this ■ 1. The authority citation for part 51 the EPA will submit a rule report to action must be filed in the United States continues to read as follows: each House of the Congress and to the Court of Appeals for the District of Columbia Circuit by February 4, 2019. Authority: 23 U.S.C. 101; 42 U.S.C. 7401– Comptroller General of the United 7671q. States. This action is not a ‘‘major rule’’ Any such judicial review is limited to only those objections that are raised as defined by 5 U.S.C. 804(2). ■ 2. In Appendix A to subpart A of part with reasonable specificity in timely 51: revise Table 1 to read as follows: M. Judicial Review comments. Filing a petition for Section 307(b)(1) of the CAA indicates reconsideration by the Administrator of Appendix A to Subpart A of Part 51— which Federal Courts of Appeal have this final rule does not affect the finality Tables

TABLE 1 TO APPENDIX A OF SUBPART A—EMISSION THRESHOLDS 1 BY POLLUTANT FOR TREATMENT AS POINT SOURCE UNDER 40 CFR 51.30

Every-year Triennial Pollutant Type A Type B sources NAA sources 3 sources 2

(1) SO2 ...... ≥2500 ≥100 ...... ≥100...... PM2.5 (Serious) ≥70. (2) VOC ...... ≥250 ≥100 ...... ≥100...... within OTR 4 ≥50 ...... within OTR ≥50...... O3 (Serious) ≥50...... O3 (Severe) ≥25...... O3 (Extreme) ≥10...... PM2.5 (Serious) ≥70.

90 See, e.g., Texas v. EPA, 2011 U.S. App. LEXIS to be nationally applicable and thus transferring the case to the U.S. Court of Appeals for the D.C. 5654 (5th Cir. 2011) (finding SIP call to 13 states Circuit in accordance with CAA section 307(b)(1)).

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TABLE 1 TO APPENDIX A OF SUBPART A—EMISSION THRESHOLDS 1 BY POLLUTANT FOR TREATMENT AS POINT SOURCE UNDER 40 CFR 51.30—Continued

Every-year Triennial Pollutant Type A Type B sources NAA sources 3 sources 2

(3) NOX ...... ≥2500 ≥100 ...... ≥100...... O3 (Serious) ≥50...... O3 (Severe) ≥25...... O3 (Extreme) ≥10...... PM2.5 (Serious) ≥70. (4) CO ...... ≥2500 ≥1000 ...... ≥1000...... CO (all areas) ≥100. (5) Lead ...... ≥0.5 (actual) ...... ≥0.5 (actual). (6) Primary PM10 ...... ≥250 ≥100 ...... ≥100...... PM10 (Serious) ≥70. (7) Primary PM2.5 ...... ≥250 ≥100 ...... ≥100...... PM2.5 (Serious) ≥70. (8) NH3 ...... ≥250 ≥100 ...... ≥100...... PM2.5 (Serious) ≥70. 1 Thresholds for point source determination shown in tons per year of potential to emit as defined in 40 CFR part 70, with the exception of lead. Reported emissions should be in actual tons emitted for the required time period. 2 Type A sources are a subset of the Type B sources and are the larger emitting sources by pollutant. 3 NAA = Nonattainment Area. The point source reporting thresholds vary by attainment status for SO2, VOC, NOX, CO, PM10, PM2.5, and NH3. 4 OTR = Ozone Transport Region (see 40 CFR 51.1300(k)).

* * * * * presumed to be appropriate for each proposed by a permit applicant to be ■ 3. In § 51.165, revise paragraph (a)(11) permit application in the area, absent used for a particular permit, the to read as follows: contrary information in the record of an following information shall be individual permit application, or case- submitted to the reviewing authority to § 51.165 Permit requirements. specific ratios established for individual support approval of the ratio: (a) * * * permits. (1) The description of the air quality (11) Interpollutant offsetting, or (B)(1) Where a state seeks to use a model(s) used to propose a case-specific interpollutant trading or interprecursor default IPT ratio that is not part of the ratio; and trading or interprecursor offset approved plan, the plan shall include (2) the proposed ratio for the substitution—The plan shall require the following to authorize the precursor substitution and that in meeting the emissions offset development of a default ratio for a accompanying calculations; and requirements of paragraph (a)(3) of this particular ozone nonattainment area, (3) a modeling demonstration section, the emissions offsets obtained including a revised default ratio showing that such ratio(s) as applied to shall be for the same regulated NSR resulting from the periodic review the proposed project and credit source pollutant unless interprecursor required under paragraph (a)(11)(i)(B)(2) will provide an equivalent or greater air offsetting is permitted for a particular of this section: quality benefit with respect to ground pollutant as specified in this paragraph. (i) A description of the model(s) that level concentrations in the ozone (a)(3) of this section, the emissions will be used to develop any default nonattainment area than an offset of the offsets obtained shall be for the same ratio; emitted precursor would achieve. regulated NSR pollutant unless (ii) A description of the approach that (ii) The plan may allow the offset interprecursor offsetting is permitted for will be used to analyze modeling data, requirements in paragraph (a)(3) of this a particular pollutant as specified in this ambient monitoring data, and emission section for direct PM2.5 emissions or paragraph. inventory data to determine the emissions of precursors of PM2.5 to be (i) The plan may allow the offset sensitivity of an area to emissions of satisfied by offsetting reductions in requirement in paragraph (a)(3) of this ozone precursors in the formation of direct PM2.5 emissions or emissions of section for emissions of the ozone ground-level ozone; and any PM2.5 precursor identified under precursors NOX and VOC to be satisfied, (iii) A description of the modeling paragraph (a)(1)(xxxvii)(C) of this where appropriate, by offsetting demonstration that will be used to show section if such offsets comply with the reductions of actual emissions of either that the default ratio provides an interprecursor trading hierarchy and of those precursors, if all other equivalent or greater air quality benefit ratio established in the approved plan requirements contained in this section with respect to ground level for a particular nonattainment area. for such offsets are also satisfied. concentrations in the ozone * * * * * (A) The plan shall indicate whether nonattainment area than an offset of the ■ 4. In § 51.1300 add paragraphs (f) such precursor substitutions for ozone emitted precursor would achieve. through (q) to read as follows: precursors are to be based on an area- (2) The plan shall require that for any specific default ratio (default ratio) for default ratio for ozone, the reviewing § 51.1300 Definitions. the applicable ozone nonattainment authority shall evaluate that ratio at * * * * * area, established in regulations as part least every 5 years to determine whether (f) 2008 ozone NAAQS means the of the approved plan, or default IPT current conditions support the 2008 8-hour primary and secondary ratios for an applicable ozone continued use of such ratio. ozone NAAQS codified at 40 CFR 50.15. nonattainment area established in (C) The plan shall require that, for any (g) Attainment year ozone season advance by an air agency that are case-specific permit ratio for ozone shall mean the ozone season

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immediately preceding a nonattainment Subpart CC—Provisions for Implementation (1) For the first 1-year extension, the area’s maximum attainment date. of the 2015 Ozone National Ambient Air area’s 4th highest daily maximum 8- (h) Initially designated means the first Quality Standards hour average in the attainment year is designation that becomes effective for * * * * * no greater than the level of that NAAQS. an area for a specific NAAQS and does 51.1304–51.1305 [Reserved] (2) For the second 1-year extension, not include a redesignation to 51.1306 Redesignation to nonattainment the area’s 4th highest daily maximum 8- following initial designations. attainment or nonattainment for that hour value, averaged over both the 51.1307 Determining eligibility for 1-year original attainment year and the first specific NAAQS. attainment date extensions for an 8-hour extension year, is no greater than the (i) Nitrogen Oxides (NOX) means the ozone NAAQS under CAA section sum of nitric oxide and nitrogen dioxide 181(a)(5). level of that NAAQS. in the flue gas or emission point, 51.1308 Modeling and attainment (b) For purposes of paragraph (a)(1) of collectively expressed as nitrogen demonstration requirements. this section, the area’s 4th highest daily dioxide. 51.1309 [Reserved] maximum 8-hour average for a year 51.1310 Requirements for reasonable shall be from the monitor with the (j) Ozone season means for each state further progress (RFP). highest 4th highest daily maximum 8- (or portion of a state), the ozone 51.1311 [Reserved] hour average for that year of all the monitoring season as defined in 40 CFR 51.1312 Requirements for reasonably monitors that represent that area. part 58, appendix D, section 4.1(i) for available control technology (RACT) and (c) For purposes of paragraph (a)(2) of that state (or portion of a state). reasonably available control measures (RACM). this section, the area’s 4th highest daily (k) Ozone transport region (OTR) maximum 8-hour value, averaged over 51.1313 Section 182(f) NOX exemption means the area established by CAA both the original attainment year and section 184(a) or any other area provisions. 51.1314 New source review requirements. the first extension year, shall be from established by the Administrator 51.1315 Emissions inventory requirements. the monitor in each year with the pursuant to CAA section 176A for 51.1316 Requirements for an Ozone highest 4th highest daily maximum 8- purposes of ozone. Transport Region. hour average of all monitors that (l) Reasonable further progress (RFP) 51.1317 Fee programs for Severe and represent that area. means the emissions reductions Extreme nonattainment areas that fail to required under CAA sections 172(c)(2), attain. § 51.1308 Modeling and attainment 182(c)(2)(B), 182(c)(2)(C), and § 51.1310. 51.1318 Suspension of SIP planning demonstration requirements. The EPA interprets RFP under CAA requirements in nonattainment areas that (a) An area classified Moderate under have air quality data that meet an ozone § 51.1303(a) shall submit an attainment section 172(c)(2) to be an average 3 NAAQS. percent per year emissions reduction of 51.1319 [Reserved] demonstration that provides for such either VOC or NOX. specific reductions in emissions of (m) Rate-of-progress (ROP) means the Subpart CC—Provisions for VOCs and NOX as necessary to attain 15 percent progress reductions in VOC Implementation of the 2015 Ozone the primary NAAQS by the applicable emissions over the first 6 years after the National Ambient Air Quality attainment date, and such baseline year required under CAA Standards demonstration is due no later than 36 section 182(b)(1). months after the effective date of the * * * * * (n) I/M refers to the inspection and area’s designation for the 2015 ozone maintenance programs for in-use §§ 51.1304–51.1305 [Reserved] NAAQS. vehicles required under the 1990 CAA (b) An area classified Serious or Amendments and defined by subpart S § 51.1306 Redesignation to nonattainment higher under § 51.1303(a) shall be of 40 CFR part 51. following initial designations. subject to the attainment demonstration requirement applicable for that (o) Current ozone NAAQS means the For any area that is initially classification under CAA section 182(c), most recently promulgated ozone designated attainment for the 2015 and such demonstration is due no later NAAQS at the time of application of any ozone NAAQS and that is subsequently than 48 months after the effective date provision of this subpart. redesignated to nonattainment for the 2015 ozone NAAQS, any absolute, fixed of the area’s designation for the 2015 (p) Base year inventory for the ozone NAAQS. nonattainment area means a date applicable in connection with the requirements of this part other than an (c) An attainment demonstration due comprehensive, accurate, current pursuant to paragraph (a) or (b) of this inventory of actual emissions from attainment date is extended by a period of time equal to the length of time section must meet the requirements of sources of VOC and NOX emitted within Appendix W of this part and shall the boundaries of the nonattainment between the effective date of the initial designation for the 2015 ozone NAAQS include inventory data, modeling area as required by CAA section results, and emission reduction analyses 182(a)(1). and the effective date of the redesignation, except as otherwise on which the state has based its (q) Ozone season day emissions provided in this subpart. The maximum projected attainment date; the adequacy means an average day’s emissions for a attainment date for a redesignated area of an attainment demonstration shall be typical ozone season work weekday. would be based on the area’s demonstrated by means of a The state shall select, subject to EPA classification, consistent with Table 1 in photochemical grid model or any other approval, the particular month(s) in the § 51.1303. analytical method determined by the ozone season and the day(s) in the work Administrator, in the Administrator’s week to be represented, considering the § 51.1307 Determining eligibility for 1-year discretion, to be at least as effective. conditions assumed in the development attainment date extensions for an 8-hour (d) Implementation of control of RFP plans and/or emissions budgets ozone NAAQS under CAA section 181(a)(5). measures. For each nonattainment area for transportation conformity. (a) A nonattainment area will meet for which an attainment demonstration ■ 5. Adding §§ 51.1304 through 51.1319 the requirement of CAA section is required pursuant to paragraph (a) or to subpart CC to read as follows: 181(a)(5)(B) pertaining to 1-year (b) of this section, the state must Sec. extensions of the attainment date if: provide for implementation of all

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control measures needed for attainment meet the criteria in CAA section on the creditability of emission control as expeditiously as practicable. All 182(c)(2)(C). measures listed in § 51.1310(a)(5), control measures in the attainment plan (3) RFP requirements for areas for creditable emission reductions for fixed and demonstration must be which an approved 15 percent VOC percentage reduction RFP must be implemented no later than the ROP plan for a prior ozone NAAQS obtained from emissions sources located beginning of the attainment year ozone exists for only a portion of the area. An within the nonattainment area. season, notwithstanding any alternate area that contains one or more portions (7) Calculation of non-creditable RACT and/or RACM implementation for which the EPA fully approved a 15 emissions reductions. The following deadline requirements in § 51.1312. percent VOC ROP plan for a prior ozone four categories of control measures NAAQS (as well as portions for which listed in CAA section 182(b)(1)(D) are § 51.1309 [Reserved] the EPA has not fully approved a 15 no longer required to be calculated for § 51.1310 Requirements for reasonable percent plan for a prior ozone NAAQS) exclusion in RFP analyses because the further progress (RFP). shall meet the requirements of either Administrator has determined that due to the passage of time the effect of these (a) RFP for nonattainment areas paragraph (a)(3)(i) or (ii) of this section. (i) The state shall not distinguish exclusions would be de minimis: classified pursuant to § 51.1303. The between the portion of the area with a (i) Measures related to motor vehicle RFP requirements specified in CAA previously approved 15 percent ROP exhaust or evaporative emissions section 182 for that area’s classification plan and the portion of the area without promulgated by January 1, 1990; shall apply. such a plan, and shall meet the (ii) Regulations concerning Reid vapor (1) Submission deadline. For each requirements of paragraph (a)(4) of this pressure promulgated by November 15, area classified Moderate or higher section for the entire nonattainment 1990; pursuant to § 51.1303, the state shall area. (iii) Measures to correct previous submit a SIP revision no later than 36 (ii) The state shall treat the area as RACT requirements; and months after the effective date of two parts, each with a separate RFP (iv) Measures required to correct designation as nonattainment for the target as follows: previous I/M programs. 2015 ozone NAAQS that provides for (A) For the portion of the area without (b) Baseline emissions inventory for RFP as described in paragraphs (a)(2) an approved 15 percent VOC ROP plan RFP plans. For the RFP plans required through (4) of this section. for a prior ozone NAAQS, the state shall under this section, at the time of (2) RFP requirements for areas with submit a SIP revision as required under designation as nonattainment for an an approved prior ozone NAAQS 15 paragraph (a)(4) of this section. ozone NAAQS the baseline emissions percent VOC ROP plan. An area (B) For the portion of the area with an inventory shall be the emissions classified Moderate or higher that has approved 15 percent VOC ROP plan for inventory for the most recent calendar the same boundaries as an area, or is a prior ozone NAAQS, the state shall year for which a complete triennial entirely composed of several areas or submit a SIP as required under inventory is required to be submitted to portions of areas, for which the EPA paragraph (a)(2) of this section. the EPA under the provisions of subpart fully approved a 15 percent plan for a (4) ROP Requirements for areas A of this part. States may use an prior ozone NAAQS is considered to without an approved prior ozone alternative baseline emissions inventory have met the requirements of CAA NAAQS 15 percent VOC ROP plan. (i) provided that the year selected section 182(b)(1) for the 2015 ozone For each area, the state shall submit a corresponds with the year of the NAAQS and instead: SIP revision consistent with CAA effective date of designation as (i) If classified Moderate, the area is section 182(b)(1). The 6-year period nonattainment for that NAAQS. All subject to the RFP requirements under referenced in CAA section 182(b)(1) states associated with a multi-state CAA section 172(c)(2) and shall submit shall begin January 1 of the year nonattainment area must consult and a SIP revision that: following the year used for the baseline agree on using the alternative baseline (A) Provides for a 15 percent emission emissions inventory. year. The emissions values included in reduction from the baseline year within (ii) For each area classified Serious or the inventory required by this section 6 years after the baseline year; and higher, the state shall submit a SIP shall be actual ozone season day (B) Relies on either NOX or VOC revision consistent with CAA section emissions as defined by § 51.1300(q). emissions reductions (or a combination) 182(c)(2)(B). The final increment of (c) Milestones—(1) Applicable to meet the requirements of paragraph progress must be achieved no later than milestones. Consistent with CAA (a)(2)(i)(A) of this section. Use of NOX the attainment date for the area. section 182(g)(1) for each area classified emissions reductions must meet the (5) Creditability of emission control Serious or higher, the state shall criteria in CAA section 182(c)(2)(C). measures for RFP plans. Except as determine at specified intervals whether (ii) If classified Serious or higher, the specifically provided in CAA section each area has achieved the reduction in area is subject to RFP under CAA 182(b)(1)(C) and (D), CAA section emissions required under paragraphs sections 172(c)(2) and 182(c)(2)(B), and 182(c)(2)(B), and 40 CFR 51.1310(a)(6), (a)(2) through (4) of this section. The shall submit a SIP revision no later than all emission reductions from SIP- initial determination shall occur 6 years 48 months after the effective date of approved or federally promulgated after the baseline year, and at intervals designation providing for an average measures that occur after the baseline of every 3 years thereafter. The emissions reduction of 3 percent per emissions inventory year are creditable reduction in emissions required by the year: for purposes of the RFP requirements in end of each interval shall be the (A) For the first 6-year period after the this section, provided the reductions applicable milestone. baseline year and all remaining 3-year meet the requirements for creditability, (2) Milestone compliance periods until the year of the area’s including the need to be enforceable, demonstrations. For each area subject to attainment date; and permanent, quantifiable, and surplus. the milestone requirements under (B) That relies on either NOX or VOC (6) Creditability of out-of-area paragraph (c)(1) of this section, not later emissions reductions (or a combination) emissions reductions. For purposes of than 90 days after the date on which an to meet the requirements of (a)(2)(ii)(A). meeting the RFP requirements in applicable milestone occurs (not Use of NOX emissions reductions must § 51.1310, in addition to the restrictions including an attainment date on which

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a milestone occurs in cases where the for implementation of such RACT as § 51.1314 New source review ozone standards have been attained), expeditiously as practicable, but no later requirements. each state in which all or part of such than the start of the attainment year The requirements for nonattainment area is located shall submit to the ozone season associated with the area’s NSR for the ozone NAAQS are located Administrator a demonstration that the new attainment deadline, or January 1 in § 51.165. For each nonattainment milestone has been met. The of the third year after the associated SIP area, the state shall submit a demonstration under this paragraph revision submittal deadline, whichever nonattainment NSR plan or plan must provide for objective evaluation of is earlier; or the deadline established by revision for a specific ozone NAAQS no RFP toward timely attainment of the the Administrator in the final action later than 36 months after the effective ozone NAAQS in the area, and may take issuing the area reclassification. date of the area’s designation of the form of: (iii) For RACT required pursuant to nonattainment or redesignation to (i) Such information and analysis as nonattainment for that ozone NAAQS. needed to quantify the actual reduction issuance of a new CTG under CAA in emissions achieved in the time section 183, the state shall provide for § 51.1315 Emissions inventory interval preceding the applicable implementation of such RACT as requirements. expeditiously as practicable, but either milestone; or (a) For each nonattainment area, the (ii) Such information and analysis as no later than January 1 of the third year state shall submit a base year inventory needed to demonstrate progress after the associated SIP submission as defined by § 51.1300(p) to meet the achieved in implementing the approved deadline or the deadline established by emissions inventory requirement of SIP control measures, including RACM the Administrator in the final action CAA section 182(a)(1). This inventory and RACT, corresponding with the issuing the CTG. shall be submitted no later than 24 reduction in emissions achieved in the (b) Determination of major stationary time interval preceding the applicable months after the effective date of milestone. sources for applicability of RACT designation. The inventory year shall be provisions. The amount of VOC and selected consistent with the baseline § 51.1311 [Reserved] NOX emissions are to be considered year for the RFP plan as required by separately for purposes of determining § 51.1310(b). § 51.1312 Requirements for reasonably available control technology (RACT) and whether a source is a major stationary (b) For each nonattainment area, the reasonably available control measures source as defined in CAA section 302. state shall submit a periodic emissions (RACM). (c) RACM requirements. For each inventory of emissions sources in the (a) RACT requirement for areas nonattainment area required to submit area to meet the requirement in CAA classified pursuant to § 51.1303. (1) For an attainment demonstration under section 182(a)(3)(A). With the exception each nonattainment area classified § 51.1308(a) and (b), the state shall of the inventory year and timing of Moderate or higher, the state shall submit with the attainment submittal, this inventory shall be submit a SIP revision that meets the demonstration a SIP revision consistent with the requirements of VOC and NOX RACT requirements in demonstrating that it has adopted all paragraph (a) of this section. Each CAA sections 182(b)(2) and 182(f). RACM necessary to demonstrate periodic inventory shall be submitted no later than the end of each 3-year (2) SIP submission deadline. (i) For a attainment as expeditiously as period after the required submission of RACT SIP required pursuant to initial practicable and to meet any RFP nonattainment area designations, the the base year inventory for the requirements. The SIP revision shall state shall submit the RACT SIP for each nonattainment area. This requirement include, as applicable, other control area no later than 24 months after the shall apply until the area is redesignated measures on sources of emissions of effective date of designation for a to attainment. ozone precursors located outside the specific ozone NAAQS. nonattainment area, or portion thereof, (c) The emissions values included in (ii) For a RACT SIP required pursuant the inventories required by paragraphs to reclassification, the SIP revision located within the state if doing so is necessary or appropriate to provide for (a) and (b) of this section shall be actual deadline is either 24 months from the ozone season day emissions as defined attainment of the applicable ozone effective date of reclassification, or the by § 51.1300(q). deadline established by the NAAQS in such area by the applicable (d) In the inventories required by Administrator in the reclassification attainment date. paragraphs (a) and (b) of this section, action. § 51.1313 Section 182(f) NOX exemption the state shall report emissions from (iii) For a RACT SIP required provisions. pursuant to the issuance of a new point sources according to the point Control Techniques Guideline (CTG) (a) A person or a state may petition source emissions thresholds of the Air under CAA section 183, the SIP revision the Administrator for an exemption Emissions Reporting Requirements, 40 CFR part 51, subpart A. deadline is either 24 months from the from NOX obligations under CAA date of CTG issuance, or the deadline section 182(f) for any area designated (e) The data elements in the emissions established by the Administrator in the nonattainment for a specific ozone inventories required by paragraphs (a) action issuing the CTG. NAAQS and for any area in a CAA and (b) of this section shall be (3) RACT implementation deadline. section 184 ozone transport region. consistent with the detail required by 40 (i) For RACT required pursuant to initial CFR part 51, subpart A. Since only (b) The petition must contain nonattainment area designations, the emissions within the boundaries of the adequate documentation that the criteria state shall provide for implementation nonattainment area shall be included as in CAA section 182(f) are met. of such RACT as expeditiously as defined by § 51.1300(q), this practicable, but no later than January 1 (c) A CAA section 182(f) NOX requirement shall apply to the of the fifth year after the effective date exemption granted for a prior ozone emissions inventories required in this of designation. NAAQS does not relieve the area from section instead of any total county (ii) For RACT required pursuant to any NOX obligations under CAA section requirements contained in 40 CFR part reclassification, the state shall provide 182(f) for a current ozone NAAQS. 51, subpart A.

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§ 51.1316 Requirements for an Ozone the Administrator in the final action The revisions read as follows: Transport Region. issuing the area reclassification. (iii) For RACT required pursuant to Appendix S to Part 51—Emission Offset (a) In general. CAA sections 176A and Interpretative Ruling 184 apply for purposes of the 2015 issuance of a new CTG under CAA ozone NAAQS. section 183, the state shall provide for * * * * * (b) RACT requirements for certain implementation of such RACT as IV. * * * portions of an ozone transport region. expeditiously as practicable, but either G. * * * 5. Interpollutant offsetting, or (1) The state shall submit a SIP revision no later than January 1 of the third year after the associated SIP submission interpollutant trading or interprecursor that meets the RACT requirements of trading or interprecursor offset substitution. CAA section 184(b) for all portions of deadline or the deadline established by the Administrator in the final action In meeting the emissions offset requirements the state located in an ozone transport of paragraph IV.A, Condition 3 of this Ruling, region. issuing the CTG. the emissions offsets obtained shall be for the (2) SIP submission deadline. (i) For a § 51.1317 Fee programs for Severe and same regulated nonattainment NSR pollutant RACT SIP required pursuant to initial Extreme nonattainment areas that fail to unless interprecursor offsetting is permitted nonattainment area designations, the attain. for a particular pollutant as specified in this state shall submit the RACT SIP revision For each area classified Severe or paragraph IV.G.5 and the reviewing authority no later than 24 months after the chooses to review such trading on a case by Extreme for a specific ozone NAAQS, case basis as described in this section. effective date of designation for a the state shall submit a SIP revision (i) A reviewing authority may choose to specific ozone NAAQS. within 10 years of the effective date of satisfy the offset requirements of paragraph (ii) For a RACT SIP required pursuant designation for that ozone NAAQS that IV.A, Condition 3 of this Ruling for emissions to reclassification, the SIP revision meets the requirements of CAA section of the ozone precursors NOX and VOC by deadline is either 24 months from the 185. offsetting reductions of emissions of either effective date of reclassification, or the precursor, if all other requirements contained § 51.1318 Suspension of SIP planning in this Ruling for such offsets are also deadline established by the requirements in nonattainment areas that Administrator in the reclassification satisfied. For a specific permit application, if have air quality data that meet an ozone the implementation of IPT is acceptable by action. NAAQS. the reviewing authority, the permit applicant (iii) For a RACT SIP required Upon a determination by the EPA that shall submit to the reviewing authority for pursuant to the issuance of a new CTG an area designated nonattainment for a approval a case-specific permit IPT ratio for under CAA section 183, the SIP revision specific ozone NAAQS has attained that determining the required amount of deadline is either 24 months from the NAAQS, the requirements for such area emissions reductions to offset the proposed date of CTG issuance, or the deadline to submit attainment demonstrations emissions increase when considered along with the applicable offset ratio as specified established by the Administrator in the and associated RACM, RFP plans, action issuing the CTG. in paragraphs IV.G.2 through 4 of this Ruling. contingency measures for failure to As part of the ratio submittal, the applicant (3) RACT implementation deadline. attain or make reasonable progress, and shall submit the proposed permit-specific (i) For RACT required pursuant to initial other planning SIPs related to ozone IPT ratio to the reviewing authority, nonattainment area designations, the attainment of the ozone NAAQS for accompanied by the following information: state shall provide for implementation which the determination has been (a) A description of the air quality model(s) of RACT as expeditiously as practicable, made, shall be suspended until such that were used to propose a case-specific but no later than January 1 of the fifth time as: The area is redesignated to ratio; and year after the effective date of attainment for that NAAQS, at which (b) The proposed ratio for the precursor designation. substitution and accompanying calculations; time the requirements no longer apply; and (ii) For RACT required pursuant to or the EPA determines that the area has (c) A modeling demonstration showing that reclassification, the state shall provide violated that NAAQS, at which time the such ratio(s) as applied to the proposed for implementation of such RACT as area is again required to submit such project and credit source will provide an expeditiously as practicable, but no later plans. equivalent or greater air quality benefit with than the start of the attainment year respect to ground level concentrations in the ozone season associated with the area’s § 51.1319 [Reserved] ozone nonattainment area than an offset of new attainment deadline, or January 1 ■ 6. In appendix S to part 51, revise the emitted precursor would achieve. of the third year after the associated SIP paragraphs IV.G.5. introductory, and * * * * * revision submittal deadline, whichever IV.G.5(i) and remove and reserve section [FR Doc. 2018–25424 Filed 12–4–18; 8:45 am] is earlier; or the deadline established by VII. BILLING CODE 6560–50–P

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