[Federal Register Volume 80, Number 44 (Friday, March 6, 2015)]
[Rules and Regulations]
[Pages 12263-12319]
[FR Doc No: 2015-04012]

Vol. 80

Friday,

No. 44

March 6, 2015

Part II

 Environmental Protection Agency

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40 CFR Parts 50, 51, 52, et al.

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

Federal Register / Vol. 80 , No. 44 / Friday, March 6, 2015 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51, 52, 70, and 71

[EPA-HQ-OAR-2010-0885; FRL-9917-29-OAR]
RIN 2060-AR34

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is establishing
a final rule for implementing the 2008 ozone national ambient air
quality standards (NAAQS) (the ``2008 ozone NAAQS'') that were
promulgated on March 12, 2008. This final rule addresses a range of
nonattainment area state implementation plan (SIP) requirements for the
2008 ozone NAAQS, including requirements pertaining to attainment
demonstrations, reasonable further progress (RFP), reasonably available
control technology (RACT), reasonably available control measures
(RACM), major new source review (NSR), emission inventories, and the
timing of SIP submissions and of compliance with emission control
measures in the SIP. Other issues also addressed in this final rule are
the revocation of the 1997 ozone NAAQS and anti-backsliding
requirements that apply when the 1997 ozone NAAQS are revoked. If the
primary or secondary ozone NAAQS are revised in the future, the EPA
expects that this rule will help facilitate implementation of any new
standards.

DATES: This final rule is effective on April 6, 2015.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2011-0885. All documents in the docket are
listed in http://www.regulations.gov. Although listed in the index,
some information is not publicly available, i.e., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the EPA
Docket Center, Room Number 3334 in the EPA William Jefferson Clinton
West Building, located at 1301 Constitution Avenue NW., Washington, DC
20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is<PHONE_NUMBER>, and the telephone number
for the Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For further general information on
this rulemaking, contact Dr. Karl Pepple, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, by phone
at<PHONE_NUMBER>, or by email at<EMAIL_ADDRESS>or Mr. Butch
Stackhouse, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, phone number (919) 54l-5208, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

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

B. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this notice will be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl under ``recent actions.''

C. How is this notice organized?

    The information presented in this notice is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related
information?
    C. How is this notice organized?
II. Background
III. What are the SIP requirements for the 2008 ozone NAAQS?
    A. What are the applicable deadlines for nonattainment areas
under the 2008 ozone NAAQS?
    B. What are the requirements for modeling and attainment
demonstration SIPs?
    C. What are the RFP requirements for the 2008 ozone NAAQS?
    D. How do RACT and RACM requirements apply for 2008 ozone NAAQS
nonattainment areas?
    E. Does the 2008 ozone NAAQS result in any new vehicle I/M
programs?
    F. How does transportation conformity apply to the 2008 ozone
NAAQS?
    G. What requirements for general conformity apply to the 2008
ozone NAAQS?
    H. What are the requirements for contingency measures in the
event of failure to meet a milestone or to attain?
    I. How do the NSR requirements apply for the 2008 ozone NAAQS?
    J. What are the emission inventory and emission statement
requirements?
    K. What are the ambient monitoring requirements?
    L. How can an area qualify for a 1-year attainment deadline
extension?
    M. How will the EPA identify whether a potential rural transport
area is adjacent to an urban area?
    N. What are the special requirements for multi-state
nonattainment areas?
    O. How will the EPA address interstate and international ozone
transport?
    P. How will the CAA section 182(f) NOX provisions be
handled?
    Q. Emissions Reduction Benefits of Energy Efficiency/Renewable
Energy Policies and Programs, Land Use Planning and Travel
Efficiency
    R. Efforts to Encourage a Multi-pollutant Approach When
Developing 2008 Ozone SIPs
    S. What are the requirements for the Ozone Transport Region
(OTR)?
    T. Are there any additional requirements related to enforcement
and compliance?
    U. What are the requirements for addressing emergency episodes?
    V. How does the ``Clean Data Policy'' apply to the 2008 ozone
NAAQS?
    W. How does this final rule apply to tribes?
    X. What collaborative program has the EPA implemented for the
2008 ozone NAAQS?
IV. What are the anti-backsliding requirements for the revoked 1997
ozone NAAQS?
    A. What is the effective date of the revocation of the 1997
ozone NAAQS?
    B. What are the applicable requirements for anti-backsliding
purposes following the revocation of the 1997 ozone NAAQS?
    C. Application of Transition Requirements to Nonattainment and
Attainment Areas
    D. Satisfaction of Anti-backsliding Requirements for an Area
    E. How will the EPA's determination of attainment (``Clean
Data'') regulation apply for purposes of the anti-backsliding
requirements?
    F. What is the relationship between implementation of the 2008
ozone NAAQS and the CAA title V permits program?
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments

    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act
    L. Determination Under CAA Section 307(d)
    M. Judicial Review
Appendix A to Preamble--Glossary of Terms and Acronyms
Appendix B to Preamble--List of Areas Nonattainment for the 2008
Ozone NAAQS in Addition to a Prior Ozone NAAQS
Statutory Authority
List of Subjects

II. Background

    On March 12, 2008,\1\ the EPA announced revisions to the primary
and secondary NAAQS for ozone to a level of 0.075 parts per million
(ppm) (annual fourth-highest daily maximum 8-hour concentration,
averaged over 3 years).\2\ Since the 2008 primary and secondary NAAQS
for ozone are identical, for convenience, we refer to both as ``the
2008 ozone NAAQS'' or ``the 2008 ozone standards.'' The 2008 ozone
NAAQS retains the same general form and averaging time as the 0.08 ppm
NAAQS set in 1997, but is set at a more stringent level.
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    \1\ See 73 FR 16436.
    \2\ For a detailed explanation of the calculation of the 3-year
8-hour average, see 40 CFR part 50, Appendix I.
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    When the EPA revises a NAAQS for a particular criteria pollutant,
it considers the extent to which existing EPA regulations and guidance
are sufficient to implement the standard and whether any revisions or
updates to those regulations and guidance would be helpful or
appropriate in facilitating the implementation of the revised standard
by states, tribes, and local agencies. The Clean Air Act (CAA or Act)
does not require that the EPA promulgate new implementing regulations
every time that a NAAQS is revised. Likewise, the CAA does not require
the issuance of additional implementing regulations or guidance by the
EPA before a revised NAAQS becomes effective. The plain language of the
CAA and existing EPA regulations may be sufficient in many cases to
enable the EPA and the states to begin working together to implement a
revised NAAQS. However, where the nature of revisions to a NAAQS
indicate that additional regulations or guidance (or revisions to
existing regulations or guidance) may be helpful, the EPA endeavors to
provide those regulations and guidance to facilitate preparation of
SIPs. It is important to note, however, that the existing EPA
regulations in 40 CFR part 51 applicable to SIPs generally and to
particular pollutants continue to apply even without such updates. This
rule revises existing regulations and guidance as appropriate to aid in
the implementation of the 2008 ozone NAAQS.
    Promulgation of a NAAQS triggers a requirement for the EPA to
designate areas as nonattainment, attainment, or unclassifiable, and to
classify the areas at the time of designation. The EPA has already
completed area designations and associated classifications for the 2008
NAAQS, and they were effective July 20, 2012 (May 21, 2012; 77 FR
30088). The EPA also issued a Classifications Rule at the same time
which established air quality thresholds for each nonattainment
classification (May 21, 2012; 77 FR 30160).
    The EPA also undertook notice and comment rulemaking on the CAA
nonattainment area provisions as they apply to the 2008 ozone NAAQS and
appropriate rules to implement those provisions, which is complete with
this final rule. The public comment period on the June 6, 2013, notice
of proposed rulemaking (NPRM) (78 FR 34178) for the SIP Requirements
Rule ran from June 6, 2013, to September 4, 2013. The EPA received 54
comment submissions on the NPRM. The preamble to this final rule
discusses the comments received and how they were considered by the EPA
in general terms. The Response to Comments document provides more
detailed responses to the comments received. The public comments
received on the NPRM and the EPA's Response to Comment document are
posted in the docket at www.regulations.gov (Docket ID No. EPA-HQ-OAR-
2011-0885).
    We are taking multiple actions in this rule pertaining to submittal
deadlines and specific CAA requirements for the content of SIPs for the
2008 ozone NAAQS. As a general matter, this final rule follows the same
basic principles and approach that the EPA applied to interpreting the
CAA's part D, subpart 2 ozone nonattainment area requirements in the
EPA's development of the implementation rules for the 1997 ozone
NAAQS.\3\ Additionally, we are revoking the 1997 ozone NAAQS for all
purposes and establishing anti-backsliding requirements for areas that
remain designated nonattainment for the revoked NAAQS.
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    \3\ See the Phase 1 (69 FR 23951, April 30, 2004) and Phase 2
(70 FR 71612, November 29, 2005) Rules.
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    Regarding the format of the following sections of this preamble, on
topics where we proposed an action, we include detailed information
about what we proposed, what we are finalizing and our rationale, as
well as responses to significant comments. With topics where we did not
propose any action, we provide guidance on that topic in the preamble.
For a comprehensive look at all comments received and responses to
those comments, please refer to the Response to Comment document in the
docket.

III. What are the SIP requirements for the 2008 ozone NAAQS?

A. What are the applicable deadlines for nonattainment areas under the
2008 ozone NAAQS?

1. What is the deadline for submitting nonattainment area SIP revisions
for the 2008 ozone NAAQS?
a. Summary of the Proposal
    For purposes of the 2008 ozone NAAQS, the EPA proposed two
alternatives regarding the deadlines for submitting the various
elements of an ozone nonattainment area SIP, including emission
inventories, RACT SIPs and emission statement SIPs, Ozone Transport
Region (OTR) RACT, 15 percent rate-of-progress (ROP) plans and Moderate
area attainment demonstrations, and the 3 percent per year RFP plans
and attainment demonstrations for Serious and higher areas. The two
proposed alternatives for SIP due dates were (1) the period of time
provided by CAA section 182, and (2) a state's choice of either
submitting all elements in accordance with the timeframe provided by
CAA section 182 or submitting all elements under a consolidated
approach, no later than 30 months after the effective date of
designation. The consolidated SIP approach would provide more time for
some SIPs, and less time for others.
    The EPA also proposed a timeframe, for Serious and higher areas, of
4 years for states to develop their attainment demonstrations and 3
percent per year RFP plans. This was a proposed change from the
approach used in the implementation of the 1997 ozone NAAQS, but is
consistent with the timeframe allowed under CAA section 182.
    Additionally, the EPA requested comment on its proposal to align
the due date of the vehicle inspection and maintenance (I/M) program
SIP with the

due date of the attainment demonstration SIP so that both are due at
the same time. This was similarly a proposed change from the current I/
M SIP deadline for ozone nonattainment areas (1 year after the
effective date of designation and classification under a revised ozone
standard).
    We proposed that states with areas initially classified as Severe
or Extreme for the 2008 ozone NAAQS would be required to submit a CAA
section 185 SIP no later than 10 years after the effective date of
designation and classification for the 2008 ozone NAAQS.
    Finally, the EPA proposed that all SIP due date timeframes would
run from the effective date of nonattainment designations for the 2008
ozone NAAQS.
b. Final Action
    We are finalizing the approach that the SIP elements listed in the
proposal are due based on the timeframes provided in CAA section 182.
That is, states with areas designated nonattainment have 2 years from
the effective date of nonattainment designation \4\ to submit emission
inventories (required by CAA section 182(a)(1)), RACT SIPs (CAA section
182(b)(2)) and emission statement SIPs \5\ (CAA section 182(a)(3)(B));
3 years to submit 15 percent ROP plans (CAA section 182(b)(1)) and
Moderate area attainment demonstrations (CAA section 182(b)(1)); and 4
years to submit 3 percent per year \6\ RFP plans (CAA section
182(c)(2)) and attainment demonstrations (CAA section 182(c)(2)) for
Serious and higher areas. This approach conforms to the manner in which
the 1997 ozone NAAQS was implemented, with the exception of the 4th
year provided to areas classified Serious and higher to develop
attainment demonstration SIPs for the 2008 ozone NAAQS. Additionally,
we note that OTR states that owe SIPs due to CAA section 184 must meet
the same SIP due dates listed previously.
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    \4\ The effective date of designations was July 20, 2012. See 77
FR 30088.
    \5\ See section III.J.2 of this rule for additional information
on emission statements.
    \6\ Typically submitted in 3-year increments, thus as 9 percent
RFP plans that produce average reductions of 3 percent per year.
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    The EPA is also finalizing the alignment of the vehicle I/M program
SIP due date with the due date for the attainment demonstration SIP for
the area. This will be achieved by revising 40 CFR 51.372(b)(2) of the
vehicle I/M rule \7\ to replace the current 1-year deadline for vehicle
I/M program SIP submissions with a deadline of no later than the due
date for submitting the area's attainment demonstration SIP.
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    \7\ See 71 FR 17705, April 7, 2006.
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    The EPA is also finalizing the due date of the CAA section 185
penalty fee program SIPs from areas initially classified as Severe or
Extreme for the 2008 ozone NAAQS as 10 years from the effective date of
designations. For areas that are reclassified to Severe or Extreme
after the original 2008 designations and classifications, the EPA will
establish an appropriate fee program SIP submission deadline as part of
the reclassification action.
    We note that in the proposed SIP Requirements Rule, the EPA did not
include a specific due date for nonattainment NSR SIPs for the 2008
ozone NAAQS. This final rule includes a due date of 3 years from the
effective date of designation for states with nonattainment areas for
the 2008 ozone NAAQS to submit their nonattainment NSR SIPs as a
logical outgrowth of the proposed rule and the comments submitted.
Additional discussion of this due date and our rationale for that date
are provided in the following Comments and Responses section, which
discusses NSR requirements in greater detail.
    As proposed, the EPA is finalizing that these various SIP due dates
are established based on the effective date of designations for the
2008 ozone NAAQS. For areas initially designated nonattainment, this
effective date was July 20, 2012.\8\
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    \8\ See 77 FR 30088, May 21, 2012; and 77 FR 34221, June 11,
2012.
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c. Rationale
    After considering comments questioning the legal supportability of
the consolidated approach, the EPA has concluded that we do not have a
sufficient statutory basis to provide this flexibility.\9\ Therefore,
the EPA is finalizing the approach that the various SIP elements are
due based on the timeframes provided in CAA section 182.
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    \9\ The EPA believes that the recent ruling by the D.C. Circuit
Court on the Classifications Rule (77 FR 30160, May 21, 2012)
impacts the level of flexibility EPA is able to provide regarding
SIP due dates. See NRDC v. EPA (D.C. Cir. No. 12-1321, Dec 23,
2014).
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    When implementing the 1997 ozone NAAQS, the EPA provided areas
classified as Serious and higher only 3 years to develop and submit
attainment demonstration SIPs. The EPA is now providing the maximum of
4 years to develop and submit these SIPs, consistent with the CAA. The
policy reasons that existed at the time the Phase 2 rule was developed
(i.e., the need for timing consistency between subpart 1 and subpart 2
areas within the same region, the timing of the large-scale interstate
transport modeling underway at the time, and the option of coordinated
planning with the similarly timed PM2.5 SIPs) are not
generally circumstances faced currently by the Serious and higher
areas. Thus, the EPA concludes that it is not appropriate to shorten
the time period allowed by the Act to submit these SIPs.
    Regarding the alignment of due dates for attainment demonstration
SIPs and vehicle I/M program SIPs, the EPA believes this allows the
best use of state resources. Areas need to determine together the total
amount of emissions reductions needed for attainment and the amount of
emissions reductions to achieve from different sectors and strategies
(including vehicle I/M), before designing a vehicle I/M program capable
of achieving the necessary reductions to demonstrate attainment.
Requiring submittal of a vehicle I/M program in advance of an
attainment demonstration for the current or future ozone standard could
result in significant unnecessary work on modeling and SIP revisions if
revisions to the vehicle I/M program are later deemed necessary to
integrate with the overall attainment strategy. Although no new vehicle
I/M programs are required under the initial designations and
classifications for the 2008 ozone NAAQS, this change will apply to any
current Marginal areas that may be required to adopt vehicle I/M as a
result of missing an attainment deadline and being reclassified to a
higher nonattainment classification in the future.
    We believe the submittal date for the CAA section 185 penalty fee
program SIPs is consistent with section 182(d)(3) of the CAA, which
provided slightly more than 10 years for submission of the fee program
SIP revision for areas designated as nonattainment and classified as
Severe or Extreme by operation of law in 1990 for the 1-hour ozone
NAAQS.
    The EPA has historically based the due date of the SIPs discussed
previously from the effective date of designations and sees no reason
to depart from that practice here.
d. Comments and Responses
    Comment: Several commenters supported the idea of a consolidated
SIP submittal, but thought that the 30 months provided in the proposal
for the consolidated submittal was not sufficient to entice any states
to take advantage of the option. Many commenters expressed a concern
that the EPA did not have a sufficiently firm legal basis to allow
states to delay any of the required SIP submissions beyond

the timeframes provided in the statute, nor to require early submittal
of any SIPs.
    Response: The EPA proposed the consolidated approach in an attempt
to provide flexibility and a potential burden reduction option to
states. After considering the comments questioning the legal
supportability of this approach, we concluded that at this time we do
not have a sufficient basis to support this flexibility. Thus, we are
not finalizing the consolidated approach.
    Comment: One commenter disagreed with the EPA's proposal that the
SIP submittal due dates in subpart 2 should run from the effective date
of designations. The commenter believed that the SIP due dates must run
from the date the designations are signed.
    Response: We disagree with the commenter that the CAA mandates the
SIP submittal due dates in subpart 2 must run from the date the
designations are signed instead of the effective date of designations.
The EPA believes that its historic practice of establishing SIP due
dates that run from the effective dates of designations, as it did for
the 1997 ozone NAAQS, is appropriate and legally supportable.
Therefore, we are not deviating from this practice.
    Comment: Two commenters supported the EPA's proposal to align the
vehicle I/M program SIP and attainment SIP deadlines, while two other
commenters stated that any change to the vehicle I/M program SIP
deadline needs to be consistent with the deadlines prescribed in the
CAA and not delay implementation of required I/M programs.
    Response: The EPA's decision to align the I/M SIP submittal
deadline with the deadline for submitting the attainment demonstration
will not impact the emission reductions achieved through the vehicle I/
M program requirement because we are not changing the deadline by which
affected areas must begin testing and repairing vehicles. Further, the
EPA believes that it must, of necessity, provide a reasonable
interpretation of the CAA's vehicle I/M program SIP submission deadline
because the Act's basic vehicle I/M program SIP submission requirement
of ``immediately upon enactment'' of the CAA is impossible to meet.
Lastly, given the degree to which the overall attainment demonstration
will rely on emission reductions derived from vehicle I/M, it is
reasonable and cost-effective to allow states to coordinate these two
planning requirements.
    Comment: One commenter noted that the proposal was silent about the
due date of the nonattainment NSR SIP. The commenter stated that the
EPA should clearly establish the associated due dates for nonattainment
NSR SIP submittals.
    Response: The commenter is correct that the discussion of SIP
submittal deadlines in the proposed SIP Requirements Rule did not
include the date on which states must submit for the EPA's approval the
required nonattainment NSR SIP applicable to the 2008 ozone NAAQS. This
final rule includes a deadline of 3 years from the date of designation
for states to submit their nonattainment NSR program SIPs for the 2008
ozone NAAQS. This date is consistent with the submittal date that the
EPA provided states to develop an approvable nonattainment NSR program
for the 1997 ozone NAAQS in the Phase 2 Rule, and is consistent with
CAA section 172(b), which states that the EPA shall establish a date no
later than 3 years from the date of the nonattainment designation.\10\
Consequently, the EPA does not believe it has discretion to set a date
longer than 3 years, and also concludes that states may need up to 3
years to develop and submit any necessary SIPs.
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    \10\ See 70 FR 71612 at 71672 and 71683 (November 29, 2005).
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    In the Phase 2 Rule, we indicated that the 3-year SIP deadline
facilitates coordination of NSR program changes with the submission of
the attainment plan, which was also due within 3 years. We recognize
that CAA section 182(a)(2)(C)(i), under the heading ``Corrections to
the State implementation plans--Permit programs'' contains a
requirement for states to submit NSR SIP revisions to meet the
requirements of CAA sections 172(c)(5) and 173 within 2 years after the
date of enactment of the 1990 CAA Amendments. As explained in our Phase
2 rulemaking, we believe the submission of NSR SIPs due on November 15,
1992, fulfilled this CAA requirement.\11\ Accordingly, we do not
believe that the 2-year deadline contained in CAA section
182(a)(2)(C)(i) applies to subsequent NSR SIPs for revised ozone
standards, including the nonattainment NSR SIPs for implementing the 8-
hour ozone NAAQS. In addition, we note that while CAA section 182
specifies the offset ratios or major source thresholds to be included
in the revised NSR SIP, it is silent as to the SIP submission deadline
(see, e.g., CAA section 182(a)(4), CAA section 182(b)(5) and CAA
section 182(c)). Given this gap in CAA section 182, we believe it is
reasonable to look to CAA section 172(b) in establishing a deadline for
submission of the nonattainment NSR SIP. While the EPA did not propose
a date on which states must submit for the agency's approval the
required nonattainment NSR SIP, stakeholders could have anticipated
that we would continue our prior practice unless we proposed to take a
different course. In this rule, we are continuing our prior practice,
as reflected in the Phase 2 rule for the 1997 ozone NAAQS, of including
a deadline of 3 years from the date of designation for states to submit
their nonattainment NSR program SIPs.
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    \11\ Ibid.
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2. What are the attainment dates for the 2008 ozone NAAQS?
a. Background
    For purposes of the 2008 ozone NAAQS, the EPA proposed two options
for establishing the maximum attainment dates for areas in each
nonattainment classification in its separate Classifications Rule
issued on May 21, 2012.\12\ Under the first option, the attainment
dates would be the precise number of years specified in Table 1 with
such time period running from the effective date of designation. Under
the second option, the attainment dates would be December 31 of the
year that is the specified number of years in Table 1 after
designation. The first option was the same approach we took for the
1997 NAAQS, where we would interpret ``year'' in the subpart 2
classification table to mean consecutive 365-day periods,\13\ and we
would substitute ``after the effective date of designation'' for the
``after November 15, 1990'' language in the subpart 2 classification
table. Under this approach the attainment deadline would fall a precise
number of years after the effective date of designation. Specifically,
the initial area designations for the 2008 ozone NAAQS became effective
on July 20, 2012, and the attainment dates would run from July 20,
2012, such that the 3-year attainment deadline for Marginal areas would
be July 20, 2015.
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    \12\ See the proposal (77 FR 8197; February 14, 2012) and the
final (77 FR 30160; May 21, 2012) Classifications Rule for the 2008
ozone NAAQS.
    \13\ Except in the case of a leap year, where the year would be
a rolling 366 day period.
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    For the second option, which the EPA promulgated in the final May
2012 Classification Rule (77 FR 30160), the attainment date would be
specified as a certain number of years from the end of the calendar
year in which an area's nonattainment designation is effective. In
other words, since the effective date of designations for the 2008
ozone NAAQS is July 20, 2012, the 3-year

attainment deadline for Marginal areas would be December 31, 2015.
    The end of calendar year attainment date in the May 2012
Classifications Rule was challenged in NRDC v. EPA (D.C. Cir. No. 12-
1321). On December 23, 2014, the U.S. Court of Appeals for the District
of Columbia Circuit issued an opinion holding that the EPA's decision
to run the attainment periods from the end of the calendar year in
which areas were designated was unreasonable. While recognizing that
there is a ``gap'' in the statute since the CAA runs the attainment
periods from the date of enactment of the CAA Amendments of 1990, the
Court concluded that nothing in the statute or congressional intent
authorized the EPA to establish the attainment dates for designated
ozone nonattainment areas as December 31st of the relevant calendar
years, but rather that such deadlines are more appropriately calculated
as annual periods running from the date of designation and
classification as the EPA had done in past ozone implementation rules.
b. Action on Attainment Dates
    To provide clarity to states after the DC Circuit court decision,
the EPA is modifying 40 CFR 51.1103 consistent with that decision to
establish attainment dates that run from the effective date of
designation, i.e., July 20, 2012.\14\ This is the same approach the EPA
used in past ozone implementation rules and the approach the court
indicated was consistent with Congressional intent.\15\ The maximum
attainment dates for nonattainment areas in each classification under
the 2008 NAAQS based on the July 20, 2012, effective date are as
follows: Marginal--3 years from effective date of designation;
Moderate--6 years from effective date of designation; Serious--9 years
from effective date of designation; Severe--15 years (or 17 years) from
effective date of designation; and Extreme--20 years from effective
date of designation. In addition to being consistent with the court
decision, this outcome was supported by several commenters on the EPA's
February 2012 proposed Classifications Rule (77 FR 8197, February 14,
2012). These supporting commenters believed this outcome to be a plain
reading of the CAA, and less likely to result in further delays in
implementing controls in nonattainment areas (see 77 FR 30160 at 30166,
May 21, 2012).
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    \14\ We are finalizing this approach without additional notice-
and-comment. As noted, we took comment in the original proposal on
two approaches: The option we promulgated and which the court
rejected, and the option we are promulgating here. Moreover, the
court decision strongly indicates that the approach we are
promulgating here is the only approach that is consistent with
Congressional intent. In light of the need for certainty for the
states and regulated parties, the fact that we previously solicited
comment on the approach we are adopting here, and the limited
discretion the court believes EPA has been provided under the Act,
we believe additional comment is unnecessary and contrary to the
public interest.
    \15\ We note that during the comment period on the May 2012 rule
establishing the attainment dates, a few commenters claimed that the
attainment period should run from the time the designations actions
were signed by the Administrator rather than the effective date of
designation. In the final May 2012 rule, we responded to this
comment explaining why we believed the arguments the commenters
raised were not supported by the statute. Regardless we note that
whether the attainment date runs from the date of signature or the
effective date of designation, the attainment year will be the same,
as an attainment showing is based on the most recent three full
years of ozone data available. Thus, for example, under either
approach, the relevant years for demonstrating attainment for a
Marginal area will be 2012-2014 and for a Moderate area, 2015-2017.
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B. What are the requirements for modeling and attainment demonstration
SIPs?

1. Marginal Areas
    Under CAA section 182(a), Marginal areas have up to 3 years from
the effective date of designation to attain the NAAQS, and are not
required to submit an attainment demonstration SIP. The EPA offers
assistance to states as they consider the most appropriate course of
action for Marginal areas that may be at risk of failing to meet the
NAAQS within the applicable 3 year timeframe. States can choose to
adopt additional controls for such areas or they can seek a voluntary
reclassification to a higher classification category. The EPA believes
that voluntary reclassification for areas that are not likely to attain
by their attainment date is an appropriate action that will facilitate
focus on developing the attainment plans required of Moderate and above
areas.
2. Moderate Areas
a. Summary of the Proposal
    The EPA proposed to continue to require states with an area
classified as Moderate to submit an attainment demonstration,\16\ due
no later than 3 years from the effective date of an area's designation,
based on photochemical modeling or another equivalent analytical method
that is determined to be at least as effective as that which is
required under the Act for Serious and above areas and multi-state
nonattainment areas.\17\ This is the same approach used in the
implementation rules for the 1997 ozone NAAQS. 40 CFR 51.908(c).
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    \16\ An attainment demonstration consists of: (1) Technical
analyses, such as base year and future year modeling of emissions
which identifies sources and quantifies emissions from those sources
that are contributing to nonattainment; (2) analyses of future year
emissions reductions and air quality improvement resulting from
existing (i.e., already-adopted or ``on the books'') national,
regional and local programs, and potential new local measures needed
for attainment, including RACM and RACT for the area; (3) a list of
adopted measures (including RACT) with schedules for implementation
and other means and techniques necessary and appropriate for
demonstrating attainment as expeditiously as practicable but no
later than the outside attainment date for the area's
classification; and (4) a RACM analysis to determine whether any
additional RACM measures could advance attainment by 1 year.
    \17\ State plans for single nonattainment areas that include
more than one state (multi-state nonattainment areas) are also
required to have photochemical modeling (see CAA section
182(j)(1)(B)).
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b. Final Action and Rationale
    The EPA is finalizing requirements for Moderate areas as proposed.
The EPA continues to believe the requirements for Moderate areas are
reasonable, primarily because photochemical modeling is generally
available and reasonable to employ. However, this requirement also
explicitly allows for alternative analytical methods to be substituted
for or used to supplement a photochemical modeling-based assessment of
an emissions control strategy. Any alternative analysis should be based
on technically credible methods and provide for the timely submittal of
the attainment demonstration and implementation of SIP controls. States
should review the EPA modeling guidance \18\ and consult their
appropriate EPA Regional Office before proceeding with alternative
analyses.
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    \18\ The modeling guidance can be found in the EPA's ``Guidance
on the Use of Models and Other Analyses for Demonstrating Attainment
of Air Quality Goals for Ozone, PM2.5, and Regional
Haze,'' at the following Web site: http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
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c. Comments and Responses
    Comment: Some commenters believed that the EPA exceeds its
authority to require states with Moderate nonattainment areas to use
photochemical modeling and thus, undermines states' discretionary
options allowed under the statute.
    Response: The EPA disagrees with the commenters and believes that
we have the authority to require states to use appropriate modeling to
predict the effect of emissions on air quality of any NAAQS as we did
for the 1997 ozone NAAQS. CAA section 182(c)(2)(A) contains specific
requirements for states to use photochemical modeling or another
similarly effective equivalent modeling method in their SIPs for

Serious and above nonattainment areas. Additionally, CAA section
182(b)(1)(A)(i) requires RFP plans for Moderate areas to provide for
such specific annual reductions in emissions of VOC and NOX
as necessary to attain the NAAQS by the applicable attainment date. The
EPA has interpreted this as a requirement for Moderate areas to submit
an attainment demonstration. Since photochemical modeling is the most
scientifically rigorous technique to determine NOX and/or
VOC emissions reductions needed to show attainment of the NAAQS and is
readily available, we are requiring photochemical modeling (or a
similarly effective equivalent modeling method) for all attainment
demonstrations (including Moderate areas). The authority for this
requirement for Moderate areas is derived from CAA section
110(a)(2)(k), which gives the Administrator the authority to require
air quality modeling for the purpose of predicting the effect on
ambient air quality of emissions of any air pollutant for which there
is an established NAAQS.
    Comment: One commenter stated that allowing up to 3 years to submit
an attainment demonstration is not sufficient time to allow for the
emissions inventory development and modeling required for an attainment
demonstration. The commenter wanted the EPA to allow ``the original
four year timeline'' to submit attainment demonstrations.
    Response: CAA Section 182 contains two attainment demonstration
submittal dates that depend on an area's classification. For Moderate
areas, CAA section 182(b)(1)(A) requires a plan within 3 years of the
designation date. For Serious and above areas, CAA section 182(c)(2)
requires a plan within 4 years of the designation date. In the Phase 2
Rule, 70 FR 71612, at 71639, the EPA required all attainment
demonstrations to be submitted within 3 years of designation. However,
for this rule, the EPA proposed to allow the original CAA deadlines of
up to 3 years for Moderate areas and up to 4 years for Serious areas,
78 FR 34178, at 34183. While the EPA agrees that the development of
emissions inventories and modeling for attainment demonstrations can be
a lengthy process, the statute does not allow for more than 3 years for
a Moderate area attainment demonstration. However, since the statute
does allow up to 4 years to submit a Serious (and above) area
attainment demonstration, in this rule we are allowing the maximum
amount of time provided by the statute for such areas. Therefore, the
EPA is finalizing the attainment demonstration submittal dates as
proposed; up to 3 years from the effective date of designation for
Moderate areas and up to 4 years from the effective date of designation
for Serious and above areas.
    Comment: One commenter stated that there are now a number of rural
areas in the country with wintertime ozone attainment issues, and
recommended that the EPA exempt rural wintertime ozone nonattainment
areas from this requirement because a wintertime photochemical grid
model or proven alternative analytical method has not been developed.
The commenter argued that it is the EPA's responsibility to develop and
test models that can be used consistently across the nation.
    Response: The EPA recognizes that the causes of rural wintertime
ozone exceedances are different than typical summer exceedances.
However, the CAA does not distinguish between summer and winter ozone
areas. Areas with wintertime violations are designated as nonattainment
based on the same classification thresholds as all other nonattainment
areas. They therefore must meet all of the appropriate CAA requirements
for their particular nonattainment classification. Nonattainment areas
classified as Moderate and above, even those that may experience
wintertime ozone problems, are required to submit an attainment
demonstration. However, there is flexibility in determining analytical
methods to be used in developing the demonstration. The EPA will
consider the nature of the ozone problem in reviewing available models
and potential alternative methods for demonstrating attainment. There
is also ongoing research that has successfully identified enhancements
in modeling science which have improved photochemical model performance
in wintertime ozone situations. Some of these science updates may be
available for states to use in their attainment demonstrations by the
time modeling is needed for areas with wintertime ozone problems.
3. Serious and Above Areas
    For Serious and higher-classified areas, CAA section 182(c)(2)(A)
states that attainment demonstrations must be submitted within 4 years
of the designation date and be based on photochemical grid modeling or
an equivalent effective method. We continue to believe that
photochemical modeling is the most technically credible method of
estimating future year ozone concentrations based on projected VOC and
NOX precursor emissions. Therefore, consistent with the CAA
and previous implementation rules, states with areas classified as
Serious and higher are required to submit attainment demonstrations
within 4 years of the effective date of designation, based on
photochemical modeling or an alternative analytical method determined
by the Administrator to be at least as effective.
4. What guidance is there for using models to demonstrate attainment?
    The procedures for modeling ozone as part of an attainment
demonstration are well developed and described in the EPA's ``Guidance
on the Use of Models and Other Analyses for Demonstrating Attainment of
Air Quality Goals for Ozone, PM2.5, and Regional Haze.''
\19\ This guidance document, as it currently exists, can be used by
states for purposes of developing attainment demonstration SIPs for the
2008 ozone NAAQS.
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    \19\ The modeling guidance can be found at the following Web
site: http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------

    Commenters requested that the EPA update its modeling guidance
pertinent to ozone and that it be made available in advance of SIP
submission deadlines. The EPA agrees with this comment and is therefore
currently updating the modeling guidance, and we intend to issue the
updated guidance prior to the attainment demonstration SIP deadlines.
5. Capturing High Emissions Days in Inventories
    In the proposed SIP Requirements Rule, the EPA did not propose
changes to modeling requirements for modeling high emissions days. The
current modeling guidance addresses, among many other considerations,
episode selection and accounting for variability in emissions and
meteorology.
    The EPA recognizes that there are time periods with relatively
higher NOX emissions from electric utilities during high
energy demand periods, i.e., High Electricity Demand Days (HEDD). Since
NOX emissions from electric power generation are a
significant contributor to the total NOX emissions for many
ozone nonattainment areas, states that experience these situations
should ensure that these emissions are included in photochemical
modeling of episode days on which the HEDD situations occurs. In order
to properly account for HEDD emissions in the modeling, careful
attention should be paid to the temporalization of emissions to the
specific day and hour of the day when these emissions occur. We note
that the

EPA's current modeling guidance \20\ already addresses episode
selection and development of accurate emissions input information
during peak ozone periods. Some commenters urged the EPA to update the
current modeling guidance. The EPA is in the process of updating the
current modeling guidance and intends to more specifically address
modeling of HEDD in that guidance.
---------------------------------------------------------------------------

    \20\ http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
---------------------------------------------------------------------------

    The EPA did not propose changes in this rule to the emission
inventory requirements for capturing high emissions days but received
many comments on the rule requirements that should have been directed
to EPA guidance documents under development for ozone emission
inventories (see section III.J of this preamble). They will be
considered when these guidance documents are reviewed. The EPA does
address the comments referring to the emission inventory guidance in
the Response to Comments document for this rule. The comments do not
directly impact the outcome of this rule. The EPA responses are
provided for completeness and to provide these commenters with more
information regarding the EPA's intentions for guidance development
related to HEDD emissions.
6. Modeled Attainment Test
    The EPA's attainment demonstration modeling guidance addresses the
modeled attainment test for ozone, which uses a combination of ambient
ozone data and modeled ozone concentrations to estimate future year air
quality. The attainment test is applied at each monitor location within
or near a designated nonattainment area. Models are used in a relative
sense to estimate the response of measured air quality to anticipated
future changes in emissions. Future air quality is estimated by
adjusting recent monitored values by the modeled relative response to
projected future changes in emissions.\21\ The EPA additionally
recommends application of an attainment test to be performed in
unmonitored areas. The recommended attainment test methodology for
unmonitored areas has been used in 8-hour ozone SIPs developed for the
1997 ozone NAAQS. To make it easier for states to apply the attainment
tests, both the monitor-based test and the unmonitored area test have
been incorporated in a software package called the ``Modeled Attainment
Test Software'' (MATS). The MATS is available for no charge at: http://www.epa.gov/scram001/modelingapps_mats.htm.
---------------------------------------------------------------------------

    \21\ The EPA recommends using ambient design values that are
consistent with the official design values as calculated according
to 40 CFR part 50 Appendix N (PM2.5 NAAQS) and Appendix P
(8-hour ozone NAAQS). This includes flagging and removing event-
influenced data that meet the requirements set forth in the
Exceptional Events Rule (40 CFR 50.14). In general, air agencies
flag data that they believe may qualify for removal as an
exceptional event and are then responsible for developing and
providing documentation to the EPA to support these requests for
exclusion. EPA Regional Offices review exceptional events claims and
decide whether to concur with each individual claim. Once the EPA
concurs with an air agency's request, the event-influenced data are
officially noted and removed from the data set used to calculate
official design values. In some cases, historical ambient data may
meet the requirements of the Exceptional Events Rule, but remain in
the data set used to calculate official design values. Air agencies
may not have flagged these data as being potentially influenced by
exceptional events, or may have flagged these data but not submitted
the required documentation. Air agencies sometimes do not closely
examine potential event-influenced data that do not affect
attainment/nonattainment decisions. However, the influence of
potential event-influenced data may affect future year projections
that are part of the modeled attainment demonstration. If potential
exceptional event-influenced data from the historical record are
likely to affect the outcome of the modeled attainment
demonstration, we encourage air agencies to consult with their EPA
regional office to determine how best to handle this situation.
---------------------------------------------------------------------------

7. What future year(s) should be modeled in attainment demonstrations?
a. Summary of the Proposal
    The EPA proposed that for the 2008 ozone NAAQS, control measures
relied upon to demonstrate attainment should be implemented by the
beginning of the last full ozone season prior to the area's attainment
date. Accordingly, the future year attainment modeling should not
extend beyond that time period.
b. Final Action and Rationale
    The EPA is finalizing this action as proposed. The EPA stated in
the proposal that the future modeling year should be selected such that
all emissions control measures relied on for attainment will have been
implemented by that year. This same approach was used for the 1997
ozone NAAQS and we continue to believe it is an appropriate approach
for modeling of control measures. To demonstrate attainment, the
modeling results for the nonattainment area must predict that emissions
reductions implemented by the beginning of the last full ozone season
preceding the attainment date will result in ozone concentrations that
meet the level of the standard.\22\
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    \22\ Note that for purposes of the 2008 ozone NAAQS, a
determination of attainment (or failure to attain), which the EPA is
required to make after the attainment date has passed, is based on
the most recent 3 complete years of ambient data prior to the area's
attainment date. Attainment date extensions are only available if
the 4th maximum 8-hour average ozone concentration in the attainment
year is below the level of the standard.
---------------------------------------------------------------------------

    Because an area must attain ``as expeditiously as practicable,''
additional considerations are necessary before a future attainment date
can be established. For example, although the latest attainment date
under the CAA for a Moderate area designated in 2012 would be 6 years
after the effective date of designation, July 20, 2018, under the
Classifications Rule, see NRDC v. EPA, the state would need to conduct
an analysis of reasonably available control measures (RACM) (CAA
section 172(c)(1)) to determine if it can advance the area's attainment
date by at least a year.\23\ Results of the RACM analysis may indicate
attainment can be achieved earlier through implementation of reasonably
available control measures prior to July 20 of an earlier year. For
instance, if emission reductions sufficient to demonstrate attainment
are implemented prior to July, 2016, then in this example the
attainment year and the future projection year should be 2016. The
proposal for this rulemaking also stated \24\ that, in determining the
attainment date that is as expeditious as practicable, the state should
consider impacts on the nonattainment area of intrastate transport of
pollution from sources within its jurisdiction, and potential
reasonable measures to reduce emissions from those sources.
---------------------------------------------------------------------------

    \23\ See section III.D.2 of this proposal for a discussion of
RACM analysis requirements.
    \24\ See 78 FR 34178 at p. 34191 (June 6, 2013).
---------------------------------------------------------------------------

    We strongly recommend that the state discuss the selection of the
future year(s) to model with the appropriate EPA Regional Office as
part of the modeling protocol development process.
c. Comments and Responses
    Comment: Many commenters supported the EPA's proposal; however, one
commenter believed that it should not matter when the control measure
is implemented if the demonstration shows attainment by the attainment
date. The commenter provided a specific example of when a large point
source plans to shut down in the middle of an ozone season.
    Response: The EPA continues to believe that modeling the emission
reductions implemented by the beginning of the last full ozone season
preceding the final year of the statutory attainment date is
reasonable. The effect on attainment of the NAAQS of emissions
reductions that may occur sometime after the start of an ozone season
is necessarily uncertain, and

cannot be reliably counted on to ensure modeled attainment in that
year. Information about source shutdowns or other emissions reductions
that are not accounted for in the modeling can be used as part of a
weight of evidence demonstration (i.e., qualitative adjustment based on
reductions from additional measures) if necessary to demonstrate timely
attainment.
    Comment: One commenter supported the proposal to allow modeling of
up to the last year of the statutory attainment date, but disagreed
with the RACM requirement to evaluate if attainment can be advanced.
The commenter disagreed with anything that would require the
demonstration of attainment to be earlier than is required by statute.
    Response: The EPA disagrees with the commenter. A demonstration of
attainment would not be required earlier than is required by statute.
The statute provides maximum dates by which attainment must be
achieved, but in all cases the statute requires that attainment must be
achieved as expeditiously as practicable but no later than the maximum
date. Therefore, a RACM analysis to examine whether the attainment date
can be advanced is required by the statute as part of all attainment
demonstrations. Note that a RACM analysis is not required for Marginal
nonattainment areas since an attainment demonstration is not required
for those areas.
8. Multi-State Nonattainment Areas
    Under CAA section 182(j), each state located in a portion of a
multi-state ozone nonattainment area is required to use photochemical
grid modeling (or any other analytic method determined by the
Administrator to be at least as effective) and to take all reasonable
steps to coordinate, substantively and procedurally, the development,
submittal and implementation of SIPs applicable to the various states
within the nonattainment area. The EPA interprets CAA section 182(j) to
require coordination on all aspects of nonattainment SIPs, including
the development of an attainment demonstration. The EPA did not propose
any changes to this longstanding policy, and we did not receive adverse
comments on this item.

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

1. Overview of RFP Requirements
    Areas that are designated nonattainment for ozone must achieve RFP
toward attainment of the ozone NAAQS. Part D of the CAA contains three
separate provisions regarding RFP. Under CAA subpart 1, section
172(c)(2) contains a general requirement that nonattainment SIPs must
provide for reasonable further progress; RFP is defined in CAA section
171(1) as ``such annual incremental reductions in emissions'' as
required by CAA part D or as required by the Administrator for ensuring
attainment of the NAAQS. CAA sections 182(b)(1) and 182(c)(2)(B) under
subpart 2 contain specific percent reduction targets for ozone
nonattainment areas classified as Moderate and above and Serious and
above, respectively. For Moderate and above areas, CAA section
182(b)(1) requires a 15 percent reduction in VOC emissions from the
baseline anthropogenic emissions within 6 years after November 15,
1990. We often refer to this RFP requirement as rate-of-progress (ROP).
For Serious and above areas, CAA section 182(c)(2)(B) requires an
additional 3 percent per year reduction in VOC emissions, averaged over
consecutive 3-year periods, starting within 6 years after November 15,
1990 and until the attainment date. CAA section 182(c)(2)(B) allows
NOX reductions to be substituted for VOC reductions under
certain conditions to meet this RFP requirement. Note that the 15
percent requirement must be met by the end of the 6-year period
regardless of when the nonattainment area attains the NAAQS. The 3
percent per year RFP requirement for Serious and above areas applies
each year until the attainment date.
    The EPA previously interpreted the requirements of subpart 2 as
they would apply to areas for the 1997 ozone NAAQS, and we proposed to
follow essentially the same interpretation with regard to the 2008
ozone NAAQS. With respect to RFP requirements, we interpret the 15
percent VOC emission reduction requirement in CAA section 182(b)(1)
such that an area that has already met the 15 percent requirement for
VOC under either the 1-hour ozone NAAQS or the 1997 ozone NAAQS (for
the first 6 years after the RFP baseline year for the prior ozone
NAAQS) would not have to fulfill that requirement again. Instead, such
areas would be treated like areas covered under CAA section 172(c)(2)
if they are classified as Moderate for the 2008 ozone NAAQS, and would
need to meet the RFP requirements under CAA section 182(c)(2)(B) if
they are classified as Serious or above for the 2008 ozone NAAQS.\25\
For the purposes of the 2008 ozone NAAQS, the EPA is interpreting CAA
section 172(c)(2) to require such Moderate areas to obtain 15 percent
ozone precursor emission reductions over the first 6 years after the
baseline year for the 2008 ozone NAAQS, and is interpreting CAA section
182(c)(2)(B) to require such Serious and above areas to obtain 18
percent ozone precursor emission reductions in that 6 year period.
Under the CAA section 172(c)(2) and CAA section 182(c)(2)(B) RFP
requirements, NOX emission reductions could be substituted
for VOC reductions.
---------------------------------------------------------------------------

    \25\ Similar interpretations were made for the 1997 ozone NAAQS
in the Phase 2 Ozone Implementation Rule, (70 FR 71615, November 29,
2005) and were upheld in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir.
2009).
---------------------------------------------------------------------------

    With the intent of providing direction and/or flexibility to states
in satisfying RFP requirements, we proposed a number of provisions to
address issues relevant to implementing RFP under the 2008 ozone NAAQS:
(1) Allowing states the option of selecting either the EPA's
recommended baseline year or an alternate baseline year, if justifiable
and appropriate; (2) restricting emission reduction measures that can
be used to fulfill the RFP requirements; (3) fulfilling ROP/RFP
requirements with emission reductions from sources located outside the
nonattainment area; (4) removing RFP creditability determination
requirements for certain pre-1990 control measures that currently
achieve de minimis reductions; (5) requiring 15 percent VOC reductions
from the nonattainment area emissions inventory baseline during a 6-
year period after designation; (6) providing that areas that had
previously met the 15 percent requirement for the 1-hour or 1997 ozone
NAAQS would be subject to the RFP requirement of CAA section 172(c)(2)
(if classified as Moderate) or 182(c)(2)(B) (if classified as Serious
or above) and consistent with those provisions could substitute
NOX for VOC; and (7) satisfying ROP/RFP requirements when a
2008 NAAQS nonattainment area is comprised of portions that have an
EPA-approved RFP plan for a previous NAAQS. Through this rulemaking,
the EPA is finalizing actions that address the aforementioned issues.
2. What baseline year may states use for the emission inventory for the
RFP requirement?
a. Summary of Proposal
    The baseline year inventory for RFP is used as the starting point
from which creditable reductions are determined to meet RFP
requirements. For the 2008 ozone NAAQS, the EPA proposed that states
should use as the baseline year for

RFP the calendar year for the most recently available triennial
emission inventory at the time ROP/RFP plans are developed. As
discussed in section III.C.3 of the proposal, ROP plans for areas
designated nonattainment in 2012 would be due in 2015, and we proposed
the baseline year would be 2011 for these areas. We explained that this
approach was analogous to the approach provided for RFP in the CAA. 78
FR 34178, at 34190 (June 6, 2013). The CAA required a 1990 baseline for
the 15 percent ROP requirement which lined up with the 1996 attainment
date for Moderate areas under the 1-hour NAAQS. For the 2008 ozone
NAAQS, initial area designations were effective in 2012 and the 6-year
RFP period from a baseline of 2011 (i.e., January 1, 2012-December 31,
2017) would line up reasonably well with the Moderate attainment date
of 2018.
    However, we also proposed that states have the option of selecting
an appropriate and justifiable alternate year as a baseline year for
RFP. In the proposal, we proposed that if states choose a pre-2011
baseline year, the 6-year period for achieving the 15 percent reduction
starts in January of the year following the selected baseline year.
When a year prior to 2011 is chosen as the baseline year, the 6-year
period thus concludes more than 1 year prior to the start of the
attainment year for the area. In this situation, the EPA proposed that
the area is responsible for an additional 3 percent emissions reduction
each year after the initial 6-year period has concluded up to the
beginning of the attainment year.
    The EPA also proposed that for a multi-state nonattainment area,
all states associated with the nonattainment area must consult and
agree on the same year to use as the baseline year for RFP.
b. Final Action and Rationale
    For the 2008 ozone NAAQS, the EPA is providing that states should
use as the baseline year for RFP, the calendar year for the most
recently available triennial emission inventory at the time ROP/RFP
plans are developed, which in the case of areas designated
nonattainment in 2012 translates to 2011. We finalized this same
interpretation for purposes of implementing the 1997 ozone NAAQS. 40
CFR 51.910(d). We are also allowing an alternate year to be used. In
determining the appropriate alternate years, the EPA recognizes that
some states may have initiated certain control strategies between the
year the standard was finalized (2008) and the most recently available
triennial emission inventory year (2011), and that it would be
appropriate to recognize these investments in implementing early
reductions to achieve improved air quality. We also believe that
allowing alternate baseline years prior to 2008 (e.g., 1990 and 2007)
would not be appropriate because we believe that it is necessary for
RFP credit for attainment planning to be tied as directly as possible
to promulgation of the 2008 ozone NAAQS. Emission reduction measures
adopted into the SIP prior to promulgation of the 2008 NAAQS are
certainly helpful for improving air quality, and consequently may lower
the nonattainment classification of an area and the baseline inventory.
However, they are not readily tied to attainment planning for the
specific standard and associated nonattainment designation that did not
yet exist when the measures were adopted, and therefore are not
appropriate to be credited for fulfilling nonattainment area RFP
requirements for the 2008 ozone NAAQS. We also recognize that since we
designated most areas on April 30, 2012, with an effective date 60 days
after publication in the Federal Register, that 2012 (the designation
year) is an appropriate alternative baseline year consistent with the
subpart 2 structure. With these considerations, the EPA is finalizing
that states may use an alternate year (i.e., other than 2011) between
the years of 2008 to 2012 that the state justifies as appropriate. We
are also finalizing as proposed that states selecting a pre-2011
alternate baseline year must achieve 3 percent emission reductions each
year after the initial 6-year period has concluded up to the beginning
of the attainment year. For example, if 2009 is chosen as a baseline
year for a Moderate area that has an attainment date of July 20, 2018,
the 15 percent reductions cover the period from January 1, 2010, to
December 31, 2015. The state would need to generate an additional 3
percent emissions reduction per year for the area for the years 2016
and 2017.
    We are also finalizing that for a multi-state nonattainment area,
all states associated with the nonattainment area must consult and
agree on the same year to use as the baseline year for RFP.
c. Comments and Responses
    Comment: We received mixed comments regarding the appropriate
baseline year for RFP. Some commenters believed that 2011 would be the
most suitable year to use as a baseline year for ROP/RFP plans and
others urged the EPA to allow states the option of justifying an
alternative baseline year, including 2012, 2008, 2007 and 1990. One
commenter argued that the CAA does not provide flexibility in allowing
a choice of baseline year for RFP and that the EPA must set the
baseline year as 2012.
    Response: While 2011 may be the most suitable year for many areas,
we believe it is appropriate to provide some flexibility to choose an
alternate year that falls between the year the NAAQS was established
(2008) and the year of designation (2012 for the initial area
designations). The EPA disagrees with the comment suggesting that the
CAA does not provide the flexibility to allow states to choose the
appropriate baseline year and that the EPA must set the baseline year
as 2012. While the CAA does identify a specific year to use as the
baseline for purposes of the 1-hour NAAQS that was in place when the
CAA Amendments of 1990 were enacted, we believe use of that year (1990)
as the baseline would produce absurd results if used for a revised
NAAQS that is being implemented more than 20 years later. Thus, the EPA
has discretion in determining how to interpret this provision of the
statute for purposes of implementing the 2008 ozone NAAQS. Nothing in
the statute explicitly or implicitly suggests that all areas must use
the same baseline year. The purpose of the RFP requirement is to ensure
areas achieve percentage reductions in emissions that will help an area
attain the NAAQS and to not delay emission reductions until close to
the attainment date. Thus, we believe a baseline year that is
reasonably close to the designation date and within the implementation
timeframe of the revised NAAQS will ensure that the goal of the RFP
provisions is met. We note also, that regardless of the baseline year
selected, the final regulations provide that areas must continue to
achieve annual percentage reductions up to the attainment year. This
will further ensure that the purpose of the RFP provisions is
fulfilled. We do not believe it is reasonable to select as a baseline
year for RFP purposes a year that predates both the revisions to the
NAAQS in 2008 and the nonattainment designations in 2012.
    Comment: One commenter noted that the EPA's proposal would require
areas selecting a pre-2011 baseline, to achieve 3 percent emission
reduction each year after the initial 6-year period has concluded up to
the beginning of the attainment year. The commenter urged the EPA to
apply the same requirement to Moderate areas selecting 2011 as a
baseline year and require an additional 3 percent emissions reduction
for the final year before the attainment deadline. Comments varied on
our proposal for areas to achieve 3 percent emission reductions when
selecting a

pre-2011 baseline year. Commenters generally supported the alternate
baseline year proposal, however, opposing commenters stated the
proposed 3 percent reduction requirement seemed to penalize states
selecting a pre-2011 baseline year.
    Response: The first commenter correctly identifies that the EPA's
selection of the 2011 baseline year creates a gap period of up to 12
months between the end of the 6 year ROP period and the latest
attainment date for Moderate areas. The final rule specifies that RFP
for this 1-year gap period is whatever additional emissions reductions
are needed to achieve the goal of attainment. We believe that requiring
Moderate areas using 2011 as a base year to obtain an additional 3
percent per year during the 2018 attainment year where doing so is not
necessary to attainment would be more than Congress intended to require
through the RFP requirements under Part D of Subchapter 1 of the CAA
Amendments of 1990. However, because a pre-2011 baseline would be
voluntarily selected by a state and would create a larger gap period
before the attainment date than a 2011 baseline (as much as 2 to 4
years), we believe the language ``whatever additional emissions
reductions are needed for attainment'' is not specific enough to ensure
annual incremental progress through the latest attainment date.
Therefore, we are finalizing as proposed an additional 3 percent per
year as a reasonable RFP reduction requirement for a state that chooses
to take advantage of the regulatory flexibility this regulation offers
by selecting a pre-2011 baseline. CAA section 171(1) defines reasonable
further progress under Subpart D to include such annual reductions as
``may reasonable be required by the Administrator for the purpose of
ensuring attainment of the applicable national ambient air quality
standard by the applicable date.'' Consistent with that, if a state
chooses to use an earlier baseline year, its total RFP emission
reduction obligation should be to ensure that additional reductions
averaging 3 percent per year for each year beyond the first 6 years
until the year before the attainment year are provided for in the RFP
plan. However, the EPA continues to believe the 2011 NEI reporting year
is the preferred baseline year for RFP planning purposes.
    Comment: Comments were mixed in relation to the proposal that
states associated with multi-state nonattainment areas must consult and
agree on the same alternate year to use as the baseline year for RFP.
Commenters generally agreed with our proposal, however, several
commenters indicated that RFP demonstrations are state specific and do
not necessarily rely on a regional inventory.
    Response: The EPA believes that the CAA requires that RFP be
demonstrated for a nonattainment area as a whole. Thus, in order to
effectively analyze RFP reductions and ensure that the entire
nonattainment area achieves the RFP requirements, it is critical that
the same baseline be used for all portions of the area. We note that
CAA section 182(j), requires that states in a multi-state nonattainment
area take all reasonable steps to coordinate their plan.
3. Can emission reductions from sources located outside the
nonattainment area boundary apply toward ROP and RFP?
a. Summary of Proposal
    The EPA proposed that for the 2008 ozone NAAQS states may not take
credit for VOC or NOX reductions occurring outside the
nonattainment area for purposes of meeting the 15 percent ROP
requirement and 3 percent RFP requirements of CAA sections 172(c)(2),
182(b)(1) and (c)(2)(B). In the preamble to the proposal, the EPA noted
that it would be sound policy to allow areas to use reductions coming
from outside the area to meet ROP/RFP requirements, but concluded that
in light of the reasoning used in Natural Resources Defense Council
(NRDC) v. EPA, 571 F.3d 1245 (D.C. 2009), and the language of the CAA,
there is no legal basis for states to credit emissions reductions from
sources outside the nonattainment area for satisfying ROP/RFP
requirements. In the proposed rule, we also stated that if the EPA
received comment providing a clear legal justification for allowing
areas to take credit in their RFP plan for reductions outside the
nonattainment area, we would consider adopting that approach in the
final rule.
b. Final Action and Rationale
    The EPA is finalizing the interpretation that states may not take
credit for VOC or NOX reductions occurring from sources
outside the nonattainment area for purposes of meeting the 15 percent
ROP and 3 percent RFP requirements of CAA sections 172(c)(2), 182(b)(1)
and (c)(2)(B). This approach means that ROP credit for meeting the 15
percent VOC requirement for Moderate and above ozone nonattainment
areas in CAA section 182(b)(1), and the additional 3 percent per year
RFP requirement for Serious and above ozone nonattainment areas in CAA
section 182(c)(2)(B), or for meeting the RFP requirement of CAA section
172(c)(2) for Moderate areas that met the 15 percent requirement for a
previous NAAQS, can come only from emission reductions from sources
located within the nonattainment area.
    The ROP/RFP requirements in CAA sections 182(b)(1)(A)(i) and
182(c)(2)(B) require that nonattainment SIPs provide for emission
reductions from ``baseline emissions.'' CAA section 182(b)(1)(B)
defines baseline emissions as ``the total amount of actual VOC or
NOX emissions from all anthropogenic sources in the area.''
(emphasis added) The ROP/RFP language in 182(b)(1)(B) and 182(c)(2)(B)
is almost identical to the language in the CAA's RACT provision that
the D.C. Circuit Court has interpreted as requiring emission reductions
to come from within the nonattainment area and not ``from sources
outside the nonattainment area.'' NRDC v. EPA, 571 F.3d 1245, 1256
(D.C. Cir. 2009). Accordingly, for reasons explained more fully in the
proposal, 78 FR 34178, at 34191 (June 6, 2013), the EPA has concluded
that there is no legal basis allowing states to credit reductions
achieved at sources outside the nonattainment area toward meeting ROP/
RFP requirements.
c. Comments and Responses
    Comment: Several commenters suggested that the EPA allow credit
toward meeting ROP/RFP for emission reductions from an area larger than
the nonattainment area but related to or affecting it, such as the same
airshed or an air quality control region or a ``transport couple
area.'' These comments emphasized the close connection between air
quality within the nonattainment area and emissions from outside that
area and argued that controlling emissions from an area outside a
nonattainment area may be a very effective way to improve air quality
within the nonattainment area. They argued that statutory references to
``the area'' do not necessarily refer only to the ``nonattainment
area.'' A commenter suggested that CAA section 107(c) provides the EPA
the authority to allow outside-the-area reduction credits for
satisfying RFP requirements. Other commenters note that CAA section
182(b)(1)(B), viewed in isolation, does not directly refer to sources
in the nonattainment area, but rather to ``sources in the area,'' and
that NRDC v. EPA addresses sources in the nonattainment area only for
purposes of meeting RACT nonattainment SIP requirements under CAA
section 172(c)(1). Other commenters took the opposite view, arguing
that the EPA had no legal basis for allowing states to use

out of area reductions to meet RFP requirements.
    Response: As explained more fully in the Response to Comments
document in the docket, to some extent, the comments in support of
allowing out-of-area credits were either policy arguments or
suggestions about how best to implement a program allowing such
credits. The EPA agrees that some of these are good policy arguments,
but does not see a legal basis to allow this approach. While some
commenters did provide legal arguments, upon examination the EPA does
not believe they overcome the restrictions in the combined language of
CAA section 182(b)(1)(B) with CAA sections 182(b)(1)(A)(i) and
182(c)(2)(B), and the reasoning in NRDC v. EPA concerning reductions
within the nonattainment area. (See the Response to Comments document,
located in the docket, for detailed responses to all of the arguments
presented and explaining why the EPA believes the statutory provisions
taken as a whole clearly support the interpretation that these RFP
reductions must occur within the nonattainment area).
4. Restrictions on Emission Reduction Measures That Can Fulfill the
ROP/RFP Requirement
a. Summary of Proposal
    The EPA proposed that, except as specifically provided in CAA
section 182(b)(1)(D) of the CAA, all SIP-approved or federally
promulgated emissions reductions that occur after the baseline
emissions inventory year are creditable for purposes of the ROP/RFP
requirements, provided that the reductions meet the standard
requirements for creditability. That is, to receive SIP credit, the
reductions must be enforceable, quantifiable, permanent and surplus.
b. Final Action and Rationale
    We are finalizing, as proposed, that all SIP-approved or federally
promulgated emissions reductions that occur after the baseline
emissions inventory year from sources located in the nonattainment area
are creditable for purposes of the ROP/RFP requirements, provided the
reductions meet the standard requirements for creditability and are not
prohibited by section 182(b)(1)(D) of the CAA.
    For the reasons provided in the preamble to the proposed rule, 78
FR 34178, at 34187 (June 6, 2013), the EPA believes it is appropriate
to credit emissions reductions that actually occur during the relevant
ROP/RFP period and after the baseline year. We promulgated a regulatory
provision adopting this same interpretation for purposes of
implementing the 1997 ozone NAAQS. 40 CFR 51.910(a)(2). No significant
comments were received.
5. How should states account for non-creditable reductions when
determining compliance with the ROP/RFP emission reduction
requirements?
a. Summary of Proposal
    CAA Section 182(b)(1)(D) specifies four categories of control
measures that are not creditable toward the 15 percent ROP requirement
under CAA section 182(b)(1)(A): (i) Measures related to motor vehicle
exhaust or evaporative emissions promulgated by January 1, 1990; (ii)
regulations concerning Reid vapor pressure (RVP) promulgated by
November 15, 1990; (iii) measures to correct previous RACT
requirements; and (iv) measures required to correct I/M programs. As
noted in the proposal, with the exception of the first category,
reductions from these measures were achieved many years ago, so the
question of creditability is moot for RFP credits for the 2008 ozone
NAAQS. Citing an assessment that at this point in history the ongoing
emissions reductions from pre-1990 control measures in the first
category are de minimis the EPA proposed that states would no longer
need to perform the complicated calculations for these control measures
to ensure that they are not credited toward the 15 percent ROP
requirements under CAA section 182(b)(1)(D). (See 78 FR 34178 at 34189)
b. Final Action and Rationale
    Consistent with the proposal, the EPA is finalizing the approach
that eliminates any obligation for states to continue to perform
emissions reduction calculations for the pre-1990 control measures
listed under CAA section 182(b)(1)(D)(i).
    The CAA section 182(b)(1)(D)(i) provides that motor vehicle
emission reductions resulting from measures promulgated ``by January 1,
1990,'' (which can only come from pre-1990 vehicles), are ``not
creditable.'' The EPA is aware that making the calculations necessary
to ensure a state does not take credit for these measures would be ``a
very resource intensive process requiring multiple modeling runs and
extensive staff time,'' as we stated in the proposal for this
rulemaking. \26\ Furthermore, the EPA recognizes that emissions from
pre-1990 vehicles are a very small and diminishing part of the total
emissions inventory for any RFP-related year associated with
implementation of the 2008 ozone NAAQS (which under the final
implementation rules could start, at earliest, in 2008). This final
action will relieve states of the burden of doing the calculations
``based on the de minimis nature'' of the potential credits.\27\
---------------------------------------------------------------------------

    \26\ See 78 FR 34178, at 34190 (June 6, 2013).
    \27\ Ibid.
---------------------------------------------------------------------------

c. Comments and Responses
    Comment: A majority of commenters supported removing the
calculations requirement. However, one commenter argued that the EPA
cannot remove the calculation requirement because the provision in
182(b)(1)(D) that certain emission reductions are ``not creditable''
toward RFP reductions ``is the sort of extraordinarily rigid statutory
provision that does not allow for de minimis exceptions.'' The
commenter further asserts that the EPA has not demonstrated that the
non-creditable reductions will always be de minimis because the EPA
failed to review the impact of this exception on any specific
nonattainment areas, relying instead on national modeling from which
the EPA has claimed that local results may vary.
    Response: The EPA thanks the commenters that support this approach.
The EPA disagrees, however, with the commenter who argued that the EPA
cannot relieve states of this burden based on the de minimis impact of
the measures.
    CAA section 182(b)(1)(C) established a general rule allowing credit
toward RFP requirements for emission reductions under a SIP that would
occur within the 6 years following November 1990. CAA section
182(b)(1)(D) established four narrow exceptions to that general rule,
three of which are currently entirely moot because they have already
occurred and are not ongoing reductions for future RFP purposes. The
comment concerns the motor vehicle emission reduction measures imposed
on pre-1990 motor vehicles. The EPA has concluded that these reductions
are ever diminishing as each year the motor vehicle fleet continues to
replace older vehicles with new vehicles. The EPA estimates that by
2017 the control measures that apply to the pre-1990 portion of the
nationwide vehicle fleet would account for only between 0.2 and 0.6
percent of total on-road VOC or NOX emissions, or between
about 0.1 and 0.3 percent of total VOC or NOX emissions
inventories. Because calculating those emissions reductions would be
very resource intensive, the EPA proposed not to require states to
calculate them based on the de minimis nature of the reductions. Courts
recognize that agencies generally have

discretion to overlook circumstances that in context can fairly be
considered de minimis such as requirements whose literal application
would mandate pointless expenditures ``when the burdens of regulation
yield a gain of trivial or no value.'' \28\ The EPA does not believe
that the creditability exemption in 182(b)(1)(D)(i) is so
``extraordinarily rigid'' as to preclude a de minimis exception.
---------------------------------------------------------------------------

    \28\ See Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C.
Cir. 1979).
---------------------------------------------------------------------------

    The comment also claims that the EPA has not demonstrated that
these circumstances are de minimis. Without disputing the EPA's
conclusions as to either the share of the emissions inventory or the
resource burdens of the calculations, the comment nevertheless claims
that ``local results may vary,'' and the EPA must assess reductions in
``specific nonattainment areas.'' The comment does not identify any
area where, or any evidence that, the impact of the credits anywhere
would be more than de minimis. Moreover, the EPA implicitly accounted
for local variations when it concluded in the proposal that reductions
associated with pre-1990 vehicles ``everywhere'' will be ``a very small
fraction of the total on-road VOC emissions inventory by 2017.''
6. What are the RFP plan requirements for 2008 ozone nonattainment
areas for which no portion of the area has previously been required to
meet the 15 percent ROP requirement for VOC in section 182(b)(1) of the
CAA?
a. Summary of Proposal
    We proposed that newly designated 2008 nonattainment areas,\29\
namely 2008 ozone nonattainment areas for which a state has never
adopted and implemented a SIP providing for the CAA section 182(b) 15
percent VOC emission reductions, will be subject to the 15 percent ROP
requirement in CAA section 182(b)(1).
---------------------------------------------------------------------------

    \29\ Hereafter in the discussion of RFP requirements within this
section, when we use the term ``2008 nonattainment area'' we mean
``nonattainment area classified as Moderate or higher under the 2008
ozone NAAQS.''
---------------------------------------------------------------------------

    We also proposed that for any 2008 ozone nonattainment area, a
state could meet the 15 percent ROP requirement in whole or in part
with NOX reductions in lieu of VOC reductions if that state
could demonstrate that the area had in fact achieved a 15 percent
reduction in VOC emissions within 6 years from a 1990 baseline.
    We also proposed that if we did not finalize the proposal to allow
any area to substitute NOX reductions for VOC reductions
where a state can demonstrate that the area achieved a 15 percent
reduction in VOC emissions from a 1990 baseline, then we would allow
such substitution only for new 2008 nonattainment areas located in the
OTR that would be subject to the 15 percent ROP requirement for the
first time.
b. Final Action and Rationale
    We are finalizing that the ROP plan for a 2008 nonattainment area
that has not previously adopted and implemented a SIP providing for a
15 percent reduction in VOC emissions consistent with CAA section
182(b)(1) must provide for a 15 percent reduction in VOC emissions from
the area's baseline emissions in the 6 years following the baseline
emissions inventory year. This is consistent with the CAA section
182(b)(1) requirement and the prior approach for the 1997 ozone NAAQS.
40 CFR 51.910(a)(1)(i). The EPA is not finalizing either of the
additional approaches that would have allowed areas to meet the 15
percent ROP requirement in whole or in part with NOX
reductions in lieu of VOC reductions. After reviewing all comments
submitted the EPA does not believe that it has the authority under the
CAA to allow NOX substitution for VOC emissions reductions
for the 15 percent ROP requirement in any area that has not previously
met the 15 percent reduction requirement, including an area in the OTR.
c. Comments and Responses
    Comment: Several commenters raised objections to the EPA's proposal
that would allow only areas in the OTR to meet the RFP requirements by
allowing NOX substitutions. The commenters argued that it
would be better to allow all areas to take advantage of this
alternative.
    Response: Although attainment areas in the OTR were not required to
adopt 15 percent RFP plans under section 184 of the CAA, we discussed
certain VOC reduction measures in the proposal. We expected that the
VOC reductions from those measures would account for a significant
portion of the 15 percent requirement for areas designated
nonattainment. We reasoned that since attainment areas in the OTR are
required to adopt and implement many of the same measures applied in
nonattainment areas such areas should be treated as having met the 15
percent VOC reduction requirement if they can demonstrate that they
did, in fact, achieve a 15 percent reduction in VOC emissions during
the relevant time period, even though they of course would not have
submitted a 15 percent plan as they were not subject to the 15 percent
requirement at that time. The EPA has reconsidered its proposal and now
believes it does not have authority under the CAA to allow
NOX substitution for VOC emissions reductions for the 15
percent ROP in any area, including an area located in the OTR, unless
the area has previously submitted, adopted and implemented a SIP
providing for a 15 percent VOC reduction in emissions from the area's
baseline emissions. These emissions reductions would have to have been
produced in the 6 years following the baseline emissions inventory year
consistent with the requirement in CAA section 182(b)(1) and the prior
approach for the 1997 ozone NAAQS. 40 CFR 51.910(a)(1)(i).
    Comment: One commenter supported the proposed alternative that
would allow areas to substitute NOX for VOC, in part or in
whole, in the 15 percent ROP plans because the scientific understanding
of the relative roles of VOC and NOX control has improved.
However, numerous commenters stated their understanding that new
nonattainment areas become subject to CAA section 182(b)(1) and are
therefore subject to the 15 percent VOC-only ROP emission reduction
requirement which does not provide for any NOX substitution.
    Response: The EPA agrees that the current understanding of the role
of NOX reductions in reducing ozone would suggest that, in
some areas, it would be relatively more efficient to focus attainment
planning efforts on achieving reductions in NOX rather than
VOC emissions. However, for new nonattainment areas, CAA section
182(b)(1) expressly requires the 15 percent ROP plans to reduce
emissions of VOC. It does not provide discretion to meet these
requirements by reducing emissions of other pollutants. Where Congress
intended to allow such a substitution, it specifically provided so,
such as in CAA section 182(c)(2)(C) which allows NOX to be
substituted for VOC in the 3 percent annual RFP plans for Serious and
above areas. Absent a showing of absurd results which the record for
this action does not support, the EPA does not believe it has
discretion to allow NOX substitution in this case.

7. What are the ROP/RFP plan requirements for 2008 ozone NAAQS
nonattainment areas that consist entirely of one or more areas that
fulfilled the 15 percent ROP plan requirement for VOC for a former
ozone NAAQS?
a. Summary of Proposal
    We proposed that any 2008 nonattainment area which consists
entirely of a nonattainment area, or portions of nonattainment areas,
for which we previously approved an RFP plan as meeting the 15 percent
ROP plan requirement for VOC in section 182(b)(1) of the CAA would not
need to submit such an ROP SIP. Such a 2008 nonattainment area could
consist of one or more 1-hour nonattainment areas, one or more
nonattainment areas under the 1997 ozone NAAQS, or a combination of
nonattainment areas for either the 1-hour or 1997 ozone NAAQS.\30\
Consistent with our approach for the 1997 ozone NAAQS, we proposed to
interpret the CAA's RFP provisions to mean that a 2008 nonattainment
area that had already achieved a 15 percent reduction in VOC emissions
per an approved 182(b)(1) ROP SIP, would instead be subject to the RFP
requirement of CAA section 172(c)(2) (which the EPA has interpreted to
represent 15 percent emissions reductions over the first 6-year period)
if classified as Moderate, or the 3 percent per year requirement of CAA
section 182(c)(2)(B), if classified as Serious or above, and under
those requirements could substitute NOX emission reductions
for VOC emission reductions.
---------------------------------------------------------------------------

    \30\ The following nonattainment areas were nonattainment for
both the 1-hour and the 1997 ozone NAAQS, and remained the same size
under the 2008 ozone NAAQS compared to the 1997 ozone NAAQS:
Baltimore, MD; Los Angeles-San Bernardino Counties (West Mojave
Desert), CA; Los Angeles-South Coast Air Basin, CA; Riverside County
(Coachella Valley), CA; Sacramento Metro, CA; San Joaquin Valley,
CA; and Ventura County, CA.
---------------------------------------------------------------------------

b. Final Action and Rationale
    We are finalizing as proposed, such that 2008 nonattainment areas
that have previously met the CAA requirement for a 15 percent ROP VOC
reduction plan for the entire area are not required to fulfill that
requirement again. This is consistent with the approach we used for the
1997 NAAQS, and the D.C. Circuit Court's decision in NRDC v. EPA.\31\
In that case, concerning the EPA's same interpretation for implementing
the 1997 ozone NAAQS, the Court held that CAA section 182(b)(1) is
ambiguous under these circumstances and that it was reasonable for the
EPA to interpret it not to require areas that had already met the 15
percent VOC emission reduction requirement to obtain another 15 percent
reduction in VOC emissions. Instead, for purposes of the 1997 ozone
NAAQS and for purposes of the 2008 ozone NAAQS, the EPA interprets the
RFP requirement of CAA section 172(c)(2) to require an area classified
as Moderate to achieve an average 3 percent annual reduction in VOC
and/or NOX emissions for the first 6 years following the
baseline year, and the RFP requirement in CAA section 182(c)(2)(B) to
require the same thing for areas classified as Serious or higher. Under
these circumstances, RFP requirements may be satisfied with reductions
in either NOX or VOC emissions. As explained in the
proposal, we believe there are two policy reasons for interpreting this
ambiguous provision in this manner. First, both our understanding of
the effects of reductions of VOC and NOX on ambient ozone
levels and the technical tools to help predict what combinations of
reductions of ozone precursors will be most effective for ozone
reduction in any area have improved. Since the purpose of the RFP
provisions in CAA sections 172 and 182 is to foster the achievement of
reasonable further progress toward attainment, we believe that it makes
the most sense to allow states to credit toward the RFP requirement
those reductions that an area most needs to reach attainment. Second,
as explained more fully in the proposal, the mix of emissions across
the country and in specific areas is very different than it was in 1990
because of various measures and developments that have substantially
reduced the anthropogenic VOC emissions inventory such that additional
area-specific VOC reductions will be increasingly difficult to achieve.
---------------------------------------------------------------------------

    \31\ See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
---------------------------------------------------------------------------

c. Comments and Responses
    Comment: Numerous commenters agreed with the EPA's proposal that
2008 nonattainment areas that have already met the CAA requirement for
a 15 percent VOC reduction plan are not required to fulfill that VOC
requirement again. Two commenters generally supported the EPA's
approach but argued for reducing the showing a state must make or
giving states more latitude in determining how to treat new
nonattainment areas. However, one commenter stated that although the
Court in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), held that the EPA
could permissibly read the statute as requiring SIPs to provide for the
15 percent VOC reduction only once, the Court did not address the
question of whether mere EPA approval of a prior 15 percent ROP SIP
would satisfy the 15 percent requirement for a subsequent NAAQS, or
whether the area would have to show it actually achieved the 15 percent
VOC reduction within the 6 years required by the statute. The commenter
stated that to be creditable, the 15 percent reduction must have
actually occurred within 6 years of November 15, 1990, due to
implementation of measures required under the SIP, rules promulgated by
the EPA, or title V permits. Accordingly, the commenter believed the
EPA cannot treat previously approved ROP plans as satisfying the 15
percent ROP requirement unless the state also shows that the required
VOC reductions were actually achieved as required by CAA section
182(b)(1)(C).
    Response: The EPA thanks the commenters for their supporting
comments. The EPA disagrees, however, that states must demonstrate that
they achieved the 15 percent reduction within 6 years of the baseline
for a previous NAAQS. We have consistently maintained that if an area
has already met the requirement to submit for approval and to implement
a plan for reducing VOC emissions by 15 percent within 6 years of the
baseline year for either the 1-hour or the 1997 ozone NAAQS, then the
area should not be required to meet that requirement a second time for
the 2008 ozone NAAQS but instead will be subject to the other
applicable RFP provisions of the CAA.
8. What are the RFP plan requirements for 2008 ozone NAAQS
nonattainment areas that include portions consisting of all or a piece
of one or more nonattainment areas for a previous NAAQS that fulfilled
the 15 percent ROP plan requirement for VOC for that previous NAAQS and
portions that have never been subject to or have never submitted the 15
percent ROP plan for VOC for a previous NAAQS?
a. Summary of Proposal
    For those areas that include all or part of a nonattainment area
under a former ozone NAAQS that fulfilled the 15 percent ROP plan
requirement for VOC and all or part of an area that was not subject to
or did not meet the 15 percent requirement for a former ozone NAAQS, we
proposed that a state may choose between two approaches for addressing
the 15 percent ROP requirement. First, the state could choose to treat
the entire area as an area that never met the 15 percent requirement
and submit a new

15 percent plan for the entire area. Second, the state could choose to
treat the 2008 nonattainment area as divided into two portions: The
non-ROP plan portion and the former ROP plan portion. For the non-ROP
plan portion of the 2008 nonattainment area, the plan would establish a
separate 15 percent ROP VOC reduction requirement under CAA section
182(b)(1) of subpart 2. However, VOC emissions reductions to meet the
15 percent requirement could come from across the entire 2008
nonattainment area, provided that the former ROP plan portion of the
area also has a VOC reduction target as part of its ROP plan for the
2008 ozone NAAQS. If the 2008 ozone NAAQS ROP plan for the former ROP
plan nonattainment area relies solely on NOX reductions,
then the portion of the nonattainment area never before subject to
nonattainment requirements is still responsible for the full 15 percent
VOC reductions. We also stated in the proposal that for the former RFP
plan portion of the 2008 nonattainment area, the RFP requirements in
CAA section 172(c)(2) will apply to Moderate nonattainment areas and
the RFP requirements of CAA section 182(c)(2) apply to areas classified
as Serious and above. These areas may both substitute NOX
for the VOC reductions in the manner specified in CAA section
182(c)(2)(C).
b. Final Action and Rationale
    We are finalizing the two proposed approaches that a state may
choose between for addressing the 15 percent ROP requirement where a
portion of the area submitted and implemented a 15 percent ROP plan for
a previous ozone NAAQS and a portion did not. First, the state may
choose to treat the entire area as an area that never met the 15
percent ROP VOC reduction requirement in CAA section 182(b)(1). Second,
the state may choose to treat the 2008 nonattainment area as divided
into two portions: The non-ROP plan portion and the former ROP plan
portion. For the non-ROP plan portion of the 2008 nonattainment area,
the plan would establish a separate 15 percent VOC reduction
requirement under CAA section 182(b)(1) of subpart 2. However,
divergent from our proposal that would have allowed creditable VOC
reductions to come from across the entire 2008 nonattainment area, the
final rule requires that VOC emission reductions to satisfy the CAA
section 182(b)(1) 15 percent requirement must come entirely from within
the non-ROP plan area.
    For the former ROP plan portion of the 2008 nonattainment area, the
RFP requirements in CAA section 172(c)(2) apply if the 2008
nonattainment area is classified as Moderate. CAA section 182(c)(2)(B)
RFP requirements apply if the 2008 ozone NAAQS nonattainment area is
classified as Serious or higher.
    The EPA believes that nonattainment areas with a previously
approved 15 percent plan developed to satisfy previous ozone NAAQS
standards are not required to adopt a second 15 percent VOC ROP plan
under CAA section 182(b)(1) for purposes of the 2008 ozone NAAQS. The
EPA believes that if a portion of the nonattainment area was not
subject to an approved 15 percent plan for previous ozone standards,
then CAA section 182(b)(1) applies to that portion of the 2008
nonattainment area. We are offering two options, as described
previously, and states can select the appropriate option to meet the
RFP requirements. However, due to significant comments received
regarding the source of reductions to satisfy the 15 percent
requirement for the non-ROP portion of the area, we are requiring that
VOC emissions reductions to meet the 15 percent requirement must come
from within the boundaries of the non-ROP plan portion rather than from
across the entire nonattainment area as we proposed. Additionally, the
ROP plan for the 2008 ozone NAAQS for the new non-ROP plan portion must
provide for 15 percent VOC reductions.
c. Comments and Responses
    Comment: One commenter opposed both of the EPA's proposed options,
believing that they are not permissible under the CAA because a prior
ROP plan for just part of a 2008 nonattainment area cannot be deemed to
satisfy the ROP plan requirement--that ``area'' is different from the
area encompassed by the prior ROP plan. The commenter argued that the
prior ROP plan could not have provided the 15 percent baseline
emissions reduction in an ``area'' that was not even defined at the
time of the prior ROP plan. The commenter also argued that the statute
does not allow the EPA to divide up ``the area'' into multiple sub-
areas with separate ROP plans or requirements. The commenter also
argued that it would be illegal and arbitrary to allow a sub-area to
claim credit for emission reductions from outside the sub-area without
having to also add emissions from outside the sub-area to its baseline.
The commenter stated that unless the EPA is proposing to require that
the non-former ROP sub-area assure a net 15 percent cut from new
baseline emissions for the entire 2008 nonattainment area, it cannot
allow the sub-area to claim credit for reductions outside the sub-area.
The commenter believed that for sub-areas within the nonattainment
area, each with its own 15 percent reduction obligation, that the
required VOC emission reductions must come from inside each sub-area
respectively.
    Response: The EPA recognizes that a prior ROP plan would not
necessarily encompass the newly designated portion of a 2008
nonattainment area and that the newly designated portion may not have
previously been covered by an approved 15 percent ROP VOC plan. In
light of this comment, the EPA has reconsidered the proposal and now
believes that if a portion or portions of a nonattainment area for the
2008 ozone NAAQS was/were not subject to an approved 15 percent ROP
VOC-only plan for either the 1-hour or the 1997 ozone NAAQS, then CAA
section 182(b)(1) requirements apply to that new portion of the 2008
NAAQS nonattainment area.
    The EPA disagrees with the commenter's assertion that the statute
does not allow areas to be divided into former ROP plan areas and new
non-ROP areas. Consistent with the reasoning in the Phase 2 Rule,
upheld in NRDC v. EPA, we believe that an area, or a sub-area that has
never met the 15 percent requirement must do so, but that an area (or
sub-area) that has previously met the requirement need not be subjected
to it for a second time. Based on similar reasoning, we have
reconsidered our proposal that would have allowed emission reductions
from across the entire nonattainment area to be creditable toward
achieving the 15 percent ROP VOC reductions for the non-ROP portion(s)
of the area. We now believe it is important to recognize that VOC
emissions reductions to meet the 15 percent ROP VOC reduction
requirement must come from within the boundaries of the non-ROP plan
portion. Accordingly, the ROP plan for the 2008 ozone NAAQS for the new
non-ROP plan portion must demonstrate achievement of 15 percent VOC
reductions from that sub-area's baseline.
9. Alternative Approaches to Achieving RFP
a. Summary of Proposal
    We requested comment on two alternative approaches to achieve RFP:
(1) An air quality-based approach that would measure RFP in terms of
ambient air quality improvements tied to an area's percent emission
reduction; and, (2) an approach that would adjust (or ``weight'') the
amount of RFP credit given for reductions of individual species (or
similar groups) of VOC based

on their ozone forming potential (i.e., photochemical reactivity).
    For each of these alternative approaches, the EPA sought comment on
the usefulness and practicality of the approach, and specifically on
whether there is an adequate legal basis under the CAA to approve SIPs
that would employ it.
b. Final Action and Rationale
    The EPA is not taking final action on these alternative approaches.
The EPA may further consider such alternatives in the future. The EPA
believes that more time is needed to better understand the scientific
and legal issues involved in allowing and implementing these
approaches. In the meantime, use of these approaches may be considered
on a case-by-case basis. If states wish to pursue either of these
approaches, then we encourage them to work closely on developing such
an approach with their respective EPA Regional Offices. If a state
submits an alternative approach to achieving RFP, then the EPA will
address the submittal in a separate notice and comment rulemaking
action.
c. Comments and Responses
    Comment: Some commenters, while supporting the approaches, believed
that the EPA must provide more information on how both the VOC-weighted
approach and the air quality-based approach would be implemented, a
stronger legal justification for allowing these alternatives, and more
scientific support for practical implementation. There were commenters
that supported the air quality-based approach. One commenter stated
that the air quality alternative would better reflect the air quality
progress being made in areas adjacent to an upwind nonattainment area,
whereby the downwind areas must rely on large upwind emission
reductions to attain the ozone standard. The commenter also argued that
states should have the opportunity to demonstrate that such an approach
is equivalent to or better than an emission reduction target and
believes it would qualify as an equivalent planning procedure under CAA
section 172(c)(8) and should be included in the final rule. The
commenter indicated a similar approach was included in the
implementation rules that govern SIP development for the
PM2.5 NAAQS (40 CFR 51.1009(g) and (h)). Other commenters
pointed out that the VOC-weighted reactivity method has already been
adopted in other national, state and local ozone regulations, such as
the current national aerosol coatings rule and a highly-reactive VOC
emissions cap-and-trade program and these may serve as legal and
administrative precedents for other reactivity-based standards.
Commenters also cautioned the EPA that such approaches should not be
mandated, and must be left to the state's discretion.
    There were commenters that did not support these alternative
approaches, stating that the CAA clearly requires a percentage
reduction from baseline emissions for purposes of RFP.
    Response: The EPA appreciates the comments it has received on these
alternative approaches. As noted above, the EPA believes more time is
needed to better understand the scientific and legal issues involved
before finalizing any alternative approaches to achieving RFP. We
encourage states interested in an alternative approach to work closely
with their respective EPA Regional Offices, who may consider these
approaches on a case-by-case basis. Any such actions would be addressed
through separate notice and comment rulemaking including analysis of
appropriate legal and technical justifications.

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

1. Reasonably Available Control Technology
a. Summary of the Proposal
    The EPA indicated in the proposal that RACT SIPs must contain
adopted RACT regulations, certifications where appropriate that
existing provisions are RACT,\32\ and/or negative declarations that
there are no sources in the nonattainment area covered by a specific
CTG source category. The EPA also indicated that states must provide
notice and opportunity for public comment on their RACT submission even
where the state determines it is appropriate to certify that the
existing provisions remain RACT or where the state submits a negative
declaration. States must also submit appropriate supporting information
for their RACT submission as described in the Phase 2 Rule. See 70 FR
71652.
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    \32\ The EPA has defined RACT as the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility (December 9, 1976 memorandum
from Roger Strelow, Assistant Administrator for Air and Waste
Management, to Regional Administrators, ``Guidance for Determining
Acceptability of SIP Regulations in Non-Attainment Areas'' and also
in 44 FR 53762; September 17, 1979). Availability and feasibility
may differ across sources in the same category (June 9, 1985,
memorandum from John Calcagni, Chief, Economic Analysis Branch, to
G.T. Helms, ``Criteria for Determining RACT in Region IV.'')
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    The EPA proposed a number of items regarding RACT submittals.
First, the EPA proposed that states should use current EPA guidance
[including existing control techniques guidelines (CTGs) and
alternative control techniques (ACTs)] and any other information
available in making RACT determinations.\33\ The EPA recognized in the
proposal that existing CTGs and ACTs for many source categories have
not been revised in a number of years. However, in many cases, more
recent technical information is available in other forms. The EPA
proposed that as part of their RACT SIP submission, states should
provide adequate documentation that they have considered control
technology that is economically and technologically feasible. The
analysis of economic and technological feasibility should be based on
information that is current as of the time of development of the RACT
SIP for the 2008 ozone NAAQS. Additionally, the EPA noted that states
should consider information submitted as part of the public comment
period associated with the RACT SIP.
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    \33\ The EPA's CTGs and ACTs are located at http://www.epa.gov/air/ozonepollution/SIPToolkit/ctgs.html.
---------------------------------------------------------------------------

    The EPA proposed that in some cases, states may conclude that
sources already addressed by RACT determinations for the 1-hour and/or
1997 ozone NAAQS may not need to implement additional controls to meet
the 2008 ozone NAAQS RACT requirement.
    The EPA proposed to follow the EPA's existing policy with respect
to ``area wide average emission rates.'' This policy recognizes that
states may demonstrate as part of their NOX RACT SIP
submittal that the weighted average NOX emission rate from
all sources in the nonattainment area subject to RACT meets
NOX RACT requirements.
    The EPA proposed that as part of their RACT submissions, states
have the option of conducting a technical analysis for a nonattainment
area considering the emissions controls required by a regional cap-and-
trade program, and demonstrating that compliance by certain sources
participating in the cap-and-trade program results in actual emission
reductions in the particular nonattainment area that are equal to or
greater than the emission reductions that would result if RACT were
applied to an individual source or source category within the
nonattainment area.

The EPA provided legal reasoning for this approach.
    The EPA proposed to follow its current policy that for VOC sources
subject to MACT standards, states would be allowed to streamline their
RACT analysis by including a discussion of the MACT controls and
considerations relevant to VOC RACT. Historically, in many cases,
states have been able to rely on MACT standards for purposes of showing
that a source has met VOC RACT.
    The EPA also noted that a state has discretion to require beyond-
RACT reductions from any source, and has an obligation to demonstrate
attainment as expeditiously as practicable. Thus, states may require
VOC and NOX reductions that are ``beyond RACT'' if such
reductions are needed in order to provide for timely attainment of the
ozone NAAQS.
    The EPA solicited comment on modifying existing guidance to provide
additional flexibility in implementing the CAA section 182(b)(2) RACT
requirements. In particular, the EPA solicited comments on whether it
would be appropriate for states, as part of their RACT determinations
regarding what is ``reasonable,'' to consider the effect (or lack
thereof) of VOC emission reductions on reductions in ozone
concentrations when assessing economic feasibility. The EPA solicited
comments on this approach because in some nonattainment areas,
additional reductions of anthropogenic VOC emissions have been
scientifically demonstrated to have a limited impact on reducing ozone
concentrations.
    The EPA took comments on the following: (1) Whether state RACT
determinations could take into consideration, in the evaluation of what
is economically feasible, the potential air quality benefit (or lack
thereof) of further VOC controls; (2) the specific circumstances and
limitations to which an air quality benefit factor would apply; (3)
specific examples of where modeling has demonstrated that anthropogenic
VOC reductions have ``negligible effect, '' (commenters were also asked
to provide a defensible threshold for defining ``ineffective,'' and
define a test for concluding that the effect of additional VOC
reductions would be ``negligible.''); (4) input regarding whether this
flexibility should be provided on an individual source basis, or also
on a source category basis; (5) that any approaches suggested by
commenters should also address how public health and welfare will be
impacted; and (6) an explanation as to the specific legal basis for
supporting the suggested approach.
    Finally, the EPA proposed a specific deadline by which RACT
measures are to be implemented for the 2008 ozone NAAQS, which is
consistent with the timeline specified in CAA section 182(b)(2). For
the 2008 ozone NAAQS, we proposed that areas must implement RACT
measures as expeditiously as practicable, but no later than January 1
of the 5th year after the effective date of a nonattainment
designation. Nonattainment designations for all areas of the country
were effective July 20, 2012. RACT measures for areas classified
Moderate or above and all areas of the OTC would be required to be
implemented by January 1, 2017. This would allow a comparable amount of
time for sources to meet RACT requirements as originally anticipated
under the 1990 CAA Amendments, consistent with the Moderate area
attainment date of July 20, 2018.
b. Final Action and Rationale
    The EPA is finalizing the approach where states should refer to the
existing CTGs and ACTs for purposes of meeting their RACT requirements,
as well as all relevant information (including recent technical
information and information received during the public comment period)
that is available at the time that they are developing their RACT SIPs
for the 2008 ozone NAAQS. We believe that there is sufficient
information available to states to inform their RACT determinations.
    The EPA is finalizing the approach allowing in some cases for
states to conclude that sources already addressed by RACT
determinations for the 1-hour and/or 1997 ozone NAAQS do not need to
implement additional controls to meet the 2008 ozone NAAQS RACT
requirement. We believe that, in some cases, a new RACT determination
under the 2008 standard would result in the same or similar control
technology as the initial RACT determination under the 1-hour or 1997
standard because the fundamental control techniques, as described in
the CTGs and ACTs, are still applicable.\34\ In cases where controls
were applied due to the 1-hour or 1997 NAAQS ozone RACT requirement, we
expect that any incremental emissions reductions from application of a
second round of RACT controls may be small and, therefore, the cost for
advancing that small additional increment of reduction may not be
reasonable. In contrast, a RACT analysis for uncontrolled sources would
be much more likely to find that new RACT-level controls are
economically and technically feasible.
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    \34\ See existing guidance in RACT Questions and Answers 2006
(May 18, 2006, Note from William Harnett to Regional Air Division
Directors), Questions 17 and 18, regarding RACT certifications.
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    The EPA is finalizing the proposed approach with respect to ``area
wide average emission rates.'' This approach is consistent with the
EPA's existing policy.
    The EPA is finalizing the proposed approach, where states have the
option of conducting a technical analysis for a nonattainment area
considering the emissions controls required by a regional cap-and-trade
program, and demonstrating that compliance by certain sources
participating in the cap-and-trade program results in actual emission
reductions in the particular nonattainment area that are equal to or
greater than the emission reductions that would result if RACT were
applied to an individual source or source category within the
nonattainment area. This approach is consistent with the Court's
reasoning in NRDC v. EPA regarding the NOX SIP Call.
Additionally, we note that in August 2013, the Court granted EPA's
request for voluntary vacatur of the CAIR-RACT presumption for the 1997
ozone NAAQS. The approach we are finalizing is not inconsistent with
the vacatur decision.
    The EPA is finalizing the proposed approach for VOC sources subject
to MACT standards, such that states would be allowed to streamline
their RACT analysis by including an assessment of the MACT controls and
how they relate to VOC RACT considerations. This approach is consistent
with the EPA's current policy.
    The EPA is finalizing the proposed approach to provide states with
the discretion to require beyond-RACT reductions from any source, and
that states have an obligation to demonstrate attainment as
expeditiously as practicable. We believe it may be necessary in some
cases for states to achieve ``beyond RACT'' reductions in order to
demonstrate attainment as expeditiously as practicable.
    The EPA is not modifying existing guidance for meeting the
182(b)(2) RACT requirements for the 2008 ozone NAAQS through this
action. There is scientific information available that indicates that
in some locations ozone formation is NOX-limited, and
changes in anthropogenic VOC emissions will have little effect on ozone
concentrations. However, the EPA is not prepared at this time to
establish a specific definition of ``negligible effect,'' and believes
that legal support for modifying the existing RACT guidance needs to be
further explored. States, therefore, will continue to conduct

RACT determinations as they historically have. Additionally, we do not
anticipate that any current NOX-limited nonattainment areas
will immediately need to develop substantive new VOC RACT SIP
submissions. Therefore, we do not expect that retaining the current
RACT guidance will have any near-term impact on states or VOC sources
in current NOX-limited nonattainment areas. However, the EPA
received potentially useful information from commenters regarding the
definition of ``negligible effect,'' which we will consider in the
future as we further assess whether to modify the existing RACT
guidance.
    The EPA is finalizing the proposed approach that areas must
implement RACT measures as expeditiously as practicable, but no later
than January 1 of the 5th year after the effective date of a
nonattainment designation. For the nonattainment designations that were
effective July 20, 2012, RACT measures (for areas where they are
required) must be implemented by January 1, 2017. This allows a
comparable amount of time for sources to meet RACT requirements as
originally anticipated under the 1990 CAA Amendments, and ensures that
RACT measures are required to be in place no later than the last ozone
season prior to the Moderate area attainment date of July 20, 2018.
c. Comments and Responses
    Comment: Several commenters supported the proposed approach that in
some cases, states may conclude that sources already addressed by RACT
determinations for the 1-hour and/or 1997 ozone NAAQS may not need to
implement additional controls to meet the 2008 ozone NAAQS RACT
requirement. Several other commenters generally did not support this
conclusion. One commenter requested clarification regarding situations
where a state may conclude that existing RACT controls meet RACT for
the 2008 ozone NAAQS.
    Response: The EPA generally agrees with the supporting comments.
The EPA disagrees with the comments opposing the proposed approach. In
areas previously subject to the RACT requirement under the 1-hour and/
or 1997 ozone NAAQS, states have previously addressed the RACT
requirement with respect to these NAAQS. We believe that, in some
cases, a new RACT determination under the 2008 standard would result in
the same or similar control technology as the initial RACT
determination under the 1-hour or 1997 standard because the fundamental
control techniques, as described in the CTGs and ACTs, are still
applicable.
    We appreciate the commenter's request for more information
regarding the specific situations where this approach may be
reasonable. In cases where controls were applied due to the 1-hour or
1997 ozone NAAQS RACT requirement, the incremental emissions reductions
from application of updated RACT controls may be small and, therefore,
the cost for advancing that small additional increment of reduction may
not be reasonable. In contrast, a RACT analysis for uncontrolled or
partially controlled sources would be more likely to find that updated
RACT-level controls under the 2008 ozone NAAQS are economically and
technically feasible.
    In portions of 2008 nonattainment areas where control technologies
for major sources or source categories were previously reviewed and
controls applied to meet the RACT requirement under the 1-hour or the
1997 ozone NAAQS, states should review and, if appropriate, accept the
initial RACT analysis as meeting the RACT requirements for the 2008