State Implementation Plan Submittal Deadlines and Implementation Requirements for Reclassified Nonattainment Areas Under the Ozone National Ambient Air Quality Standards

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” means the EPA.

Table of Contents

I. Public Participation

II. Overview and Basis of Proposal

A. Overview of Proposal

B. What is the background for the proposed actions?

C. What is the statutory authority for the proposed actions?

III. What is the EPA proposing and what is the rationale?

A. Default Deadlines for Reclassified Nonattainment Areas Under the Ozone NAAQS

1. Default Deadlines for Nonattainment Areas Reclassified as Moderate or Serious

2. Default Deadlines for Nonattainment Areas Reclassified as Severe

B. Status of Certain Requirements of Former Classification

1. Introduction

2. Leftover SIP Requirements

C. Serious Area SIP Revisions for the 2015 Ozone NAAQS

1. Required Submission Elements

2. Submission and Implementation Deadlines

IV. Environmental Justice Considerations

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All

K. Judicial Review

I. Public Participation

Written comments: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2024-0333, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI or PBI and then identify electronically within the digital storage media the specific information that is claimed as CBI or PBI. In addition to one complete version of the comments that includes information claimed as CBI or PBI, you must submit a copy of the comments that does not contain the information claimed as CBI or PBI directly to the public docket through the procedures outlined in Instructions. If you submit any digital storage media that does not contain CBI or PBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI or PBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI or PBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Our preferred method to receive CBI or PBI is for it to be transmitted to electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office using the email address, oaqpscbi@epa.gov, and should include clear CBI or PBI markings as described earlier. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI or PBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2024-0333. The mailed CBI or PBI material should be double wrapped and clearly marked. Any CBI or PBI markings should not show through the outer envelope.

II. Overview and Basis of Proposal

A. Overview of Proposal

The EPA is proposing default SIP submittal and implementation deadlines for the current and future ozone NAAQS that would apply for mandatory reclassifications ( e.g., from Marginal to Moderate, Moderate to Serious, and Serious to Severe), and also for areas voluntarily reclassified as Moderate, Serious, and Severe. These default reclassification SIP submittal and implementation deadlines would apply only in cases where the otherwise applicable deadlines that apply to areas initially designated nonattainment have passed or are less than 18 months in the future from the effective date of such a reclassification. In the near term, if these default deadlines are finalized as proposed, they will apply to any nonattainment areas that are reclassified as Serious under the 2015 ozone NAAQS for failing to attain the standard by the Moderate attainment date of August 3, 2024, unless otherwise established in a separate notice-and-comment rulemaking.

The EPA is proposing a general default SIP submittal deadline for such reclassified areas as the sooner of 18 months from the effective date of the reclassification notice or January 1 of the new classification attainment year, except for SIP revisions addressing Clean Air Act (CAA) section 185. For the CAA section 185 fee program SIP submittals for areas reclassified as Severe, the EPA is proposing a default deadline of the sooner of 36 months after the effective date of reclassification to Severe or January 1 of the Severe area attainment year. The EPA recognizes that in certain circumstances, states and areas may seek an adjustment of these default deadlines; the EPA therefore proposes that the default SIP submission deadlines could be adjusted where such adjustment is appropriate or necessary, through future notice-and-comment rulemaking in specific EPA actions. Further discussion of these proposed default deadlines is provided in section III.A. of this document.

The EPA is also proposing default deadlines for implementation of emissions control measures required by mandatory reclassifications ( e.g., from Marginal to Moderate, Moderate to Serious, and Serious to Severe), and also for voluntary reclassifications to Moderate, Serious, and Severe. The EPA is proposing a default control implementation deadline of the sooner of 18 months after the proposed SIP submittal deadline or the beginning of the relevant attainment year ozone season. Similar to the SIP deadlines, the EPA proposes that these default control measure implementation deadlines could be adjusted where such adjustment is appropriate or necessary subject to notice-and-comment rulemaking in specific EPA actions. Further discussion of these proposed default deadlines is provided in section III.A. of this document. In addition to establishing default SIP submittal and related implementation deadlines, the EPA is proposing regulations to codify its existing interpretation that, following reclassification, a state is no longer required to submit SIP revisions addressing the following requirements related to the prior classification level for an ozone nonattainment area: (1) a demonstration of attainment by the prior attainment date, (2) a reasonably available control measures (RACM) analysis tied to the prior attainment date; and (3) for areas that are voluntarily reclassified before the lower classification's attainment date, contingency measures specifically related to the area's failure to attain by the prior attainment date. As a general matter, this interpretation applies with respect to areas reclassified by operation of law from (1) Marginal to Moderate, (2) Moderate to Serious, and (3) Serious to Severe, and also to any voluntary reclassification request granted by the EPA for these classifications.

Under the CAA, the EPA is required to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain ( see CAA section 181(b)(2)). For a concentration-based standard, such as the 2015 ozone NAAQS, a determination of attainment is based on a nonattainment area's design value (DV). In separate actions, the EPA will determine whether areas classified as Moderate for the 2015 ozone NAAQS factually attained the standard by the applicable attainment date of August 3, 2024, based on their DV as of the attainment date. As required under CAA section 181(b)(2)(A), where the EPA determines that areas failed to timely attain, those areas will be reclassified by operation of law as Serious upon the effective date of the EPA's determination. The reclassified areas will then be required to attain the 2015 ozone NAAQS as expeditiously as practicable, but not later than August 3, 2027 ( see CAA section 181(a)(1) (table 1) and 40 CFR 51.1303(a) (table 1)). States with jurisdiction over such areas will be required to submit to the EPA the SIP revisions for these areas that satisfy the statutory and regulatory requirements applicable to Serious areas established in CAA section 182(c) and in the 2015 Ozone NAAQS SIP Requirements Rule ( see83 FR 62998, December 6, 2018, and 40 CFR 51.1300 et seq.).

The EPA proposes in this action to articulate applicable requirements and establish deadlines for submitting SIP revisions that will apply to these reclassified areas, consistent with CAA section 182(i). If the proposed default deadlines discussed in section III.A. of this document are finalized, new SIP revisions for nonattainment areas reclassified as Serious under the 2015 ozone NAAQS would be due to the EPA no later than 18 months after the effective date of the relevant reclassification notice or January 1, 2026, whichever is sooner.

Under the CAA and the Tribal Authority Rule (TAR), tribes may, but are not required to, submit implementation plans to the EPA for approval ( see CAA section 301(d) and 40 CFR part 49). Accordingly, for tribal nonattainment areas, a tribe is not required to submit any tribal implementation plan (TIP) revisions applicable to Serious areas established in CAA section 182(c) and in the 2015 Ozone NAAQS SIP Requirements Rule. Tribes that are part of multi-jurisdictional nonattainment areas are also not required to submit implementation plan revisions applicable to Serious nonattainment areas.

If the proposed default deadlines discussed in section III.A. are finalized as proposed, states would be required to implement any new reasonably available control technology (RACT) required for reclassified Serious areas under the 2015 ozone NAAQS no later than 18 months from the RACT submittal deadline or the beginning of the 2026 attainment year ozone season for that area, whichever is earlier. Additionally, the deadline for any new or revised Enhanced vehicle inspection and maintenance (I/M) programs (for areas that do not need I/M emission reductions to demonstrate attainment by the attainment date or to meet reasonable further progress (RFP) milestones) to be fully implemented would be as expeditiously as practicable but no later than 4 years after the effective date of the reclassification. Lastly, the deadline for submitting the first transportation control demonstration, as required by CAA section 182(c)(5), would be 2 years after the attainment demonstration due date.

B. What is the background for the proposed actions?

On October 26, 2015, the EPA issued its final action to revise the NAAQS for ozone to establish a new 8-hour standard ( see80 FR 65452, October 26, 2015). In that action, the EPA promulgated identical tighter primary and secondary ozone standards designed to protect public health and welfare that specified an 8-hour ozone level of 0.070 ppm. Specifically, the standards require that the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration may not exceed 0.070 ppm.

Effective on August 3, 2018, the EPA designated 51 areas throughout the country as nonattainment for the 2015 ozone NAAQS ( see83 FR 25776, June 4, 2018). In a separate action, the EPA assigned classification thresholds and attainment dates based on the severity of an area's ozone levels, determined by the area's design value (DV) ( see83 FR 10376, March 9, 2018). In addition, the EPA established the attainment date for Marginal, Moderate, Serious, Severe, and Extreme nonattainment areas as 3 years, 6 years, 9 years, 15 years, and 20 years, respectively, from the effective date of the final designations. Thus, the attainment dates for each nonattainment area classification for the 2015 ozone NAAQS are as follows: August 3, 2021, for Marginal areas; August 3, 2024, for Moderate areas, August 3, 2027, for Serious areas; August 3, 2033, for Severe areas; and August 3, 2038, for Extreme areas. The EPA also promulgated a rulemaking interpreting the CAA's ozone nonattainment area implementation requirements for the 2015 ozone NAAQS. The implementation rulemaking articulated the Act's substantive requirements for ozone nonattainment areas for each classification level and established deadlines for submission of plan revisions to address those requirements that were triggered off of the date of the areas' initial designations for the 2015 ozone NAAQS ( e.g., 24 months from the effective date of designation).

C. What is the statutory authority for the proposed actions?

The statutory authority for the actions proposed in this document is provided by the CAA, as amended (42 U.S.C. 7401 et seq.). Relevant portions of the CAA include, but are not necessarily limited to, CAA sections 172, 181, 182, and 301(a).

CAA section 107(d) provides that when the EPA establishes or revises a NAAQS, the agency must designate areas of the country as nonattainment, attainment, or unclassifiable based on whether an area is not meeting (or is contributing to air quality in a nearby area that is not meeting) the NAAQS, meeting the NAAQS, or cannot be classified as meeting or not meeting the NAAQS, respectively. Part D of title I of the CAA establishes the plan requirements that apply to all areas designated nonattainment. The purpose of these plan requirements is ensuring that these areas achieve attainment of the applicable NAAQS by the applicable area attainment date. Subpart 1 of part D sets out the plan requirements for nonattainment areas in general, and subpart 2 of part D of title I of the CAA governs the classification, state planning, and emissions control requirements for any areas designated as nonattainment for a revised primary ozone NAAQS. In particular, CAA section 181(a)(1) requires each area designated as nonattainment for a revised ozone NAAQS to be classified at the same time as the area is designated based on the extent of the ozone problem in the area (as determined based on the area's DV). Classifications for ozone nonattainment areas range from Marginal to Extreme. CAA section 172 (in subpart 1) covers nonattainment area plan provisions in general, and CAA section 182 (in subpart 2) provides the specific attainment planning and additional requirements that apply to each ozone nonattainment area based on its classification. Subparts 1 and 2 also establish the timeframes by which air agencies must submit and implement SIP revisions to satisfy the applicable attainment planning elements, and require that such plans “shall provide for attainment of the NAAQS,” and that the “primary standard attainment date for ozone shall be as expeditiously as practicable” but not later than a maximum attainment date measured from the effective date of the area's designation. The EPA has also promulgated regulations interpreting these requirements for the 2008 ozone NAAQS and the 2015 ozone NAAQS at 40 CFR part 51, subparts X and CC, respectively.

CAA section 182(i) governs the Act's requirements for areas reclassified by operation of law. Specifically, CAA section 182(i) states that areas that are reclassified due to failure to timely attain by the attainment date “shall meet such requirements of subsections (b) through (d) of this section as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the submissions.” Subsections (b) through (d) of CAA section 182 cover the required SIP revisions for Moderate (182(b)), Serious (182(c)), and Severe (182(d)), and those requirements are generally cumulative ( see, e.g., CAA section 182(b) (requiring Moderate areas to make submissions relating to Marginal areas in addition to the revisions for the Moderate classification)). The SIP revisions, control measures, and timing of such submissions and controls are intended to, among other things, ensure that areas will attain the NAAQS as expeditiously as practicable, but no later than the applicable attainment date. As discussed in more detail later in this document, most SIP requirements are not dependent on the attainment date itself, but certain SIP requirements are inherently tied to the applicable attainment date and therefore are no longer required for the lower classification after the area is reclassified.

As noted, CAA section 182(i) also provides the Administrator with authority to adjust applicable deadlines (other than attainment dates) for areas that are reclassified as a result of failure to attain the NAAQS under CAA section 182(b)(2), “to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” In proposing the adjustment of applicable deadlines for reclassified areas, the EPA considered the timeframes provided under the statute for the submission and implementation of requirements for initial area designations and classifications. Unsurprisingly, many of the nonattainment plan requirements in subparts 1 and 2 establish timing of the submission and implementation of controls such that those plans and controls will influence attainment of the NAAQS within the area by the attainment date. The EPA's proposed submission and implementation schedules for reclassified areas in this document are consistent with the overall schedule of the submission of substantive requirements that are associated with a classification, but adjusts those schedules to fit the abbreviated timeframe available to reclassified areas before the next applicable attainment date. In particular, the EPA's proposed deadlines for implementation of controls and SIP submissions are informed by the need to ensure that the reductions resulting from the Act's requirements are consistently due in time to influence an area's attainment by the attainment date, to the extent the applicable controls are necessary to achieve attainment by that date.

While some areas are reclassified due to failure to attain by the attainment date, others may be reclassified as a result of a state's request. CAA section 181(b)(3) states that “[t]he Administrator shall grant the request of any State to reclassify a nonattainment area in that State . . . to a higher classification.” In some cases, states may seek voluntary reclassification to a higher classification early in the designation and planning cycle, and in those cases, the existing SIP submittal and implementation deadlines for the higher classification would continue to apply. In other instances, states may request a voluntary reclassification under CAA section 181(b)(3) where the SIP submittal and implementation deadlines have already passed or will occur in the near future. CAA section 182(i) specifically provides authority to the EPA to adjust applicable deadlines, other than attainment dates, for areas that are reclassified as a result of a failure to attain under CAA section 181(b)(2), but section 182(i) does not specifically reference areas that are voluntarily reclassified under CAA section 181(b)(3). Per CAA section 301(a)(1), the EPA has determined that regulations are necessary to prescribe the SIP submittal and implementation deadlines for such voluntarily reclassified areas, where the deadlines associated with the requested higher classification have already passed or will occur in the near future ( i.e., less than 18 months from the effective date of the reclassification).

The EPA's proposed deadlines in this document were also informed by the amount of time that the CAA prescribes when new implementation plans are required to be submitted under various circumstances ( see, e.g., CAA section 110(k)(5) (allowing EPA to “establish reasonable deadlines (not to exceed 18 months)” after notification that a SIP is inadequate); CAA section 179(d) (subpart 1 requirement that within one year of a finding that a nonattainment area has failed to attain by its attainment date, States must submit a new SIP revision addressing nonattainment plan requirements)).

III. What is the EPA proposing and what is the rationale?

A. Default Deadlines for Reclassified Nonattainment Areas Under the Ozone NAAQS

The EPA is proposing to establish default SIP submittal and implementation deadlines for reclassifications by operation of law pursuant to section 181(b)(2) and voluntary reclassification requests pursuant to section 181(b)(3) for areas reclassified as Moderate, Serious, and Severe for all current and future ozone NAAQS. States responsible for areas initially designated as nonattainment are required to prepare and submit SIP revisions by deadlines relative to the effective date of the rule establishing area designations, and the submission deadlines vary depending on the SIP element required ( e.g., the statute provides 3 or 4 years from initial nonattainment designation to submit SIPs for some requirements and 2 years for others). Areas initially designated as nonattainment are also required to implement RACT as expeditiously as practicable, but no later than January 1 of the fifth year after the effective date of designations.

The EPA recognizes that upon reclassification, especially when under CAA section 181(b)(2), a state can be faced with limited time to submit and implement required SIP revisions prior to the next attainment date. In addition, in some cases, the SIP submission and implementation deadlines associated with areas initially classified at a level may have already passed at the time of reclassification, making it impossible to apply, for example, the Moderate area SIP submission and implementation deadlines to areas that are mandatorily reclassified to Moderate upon failure to attain by the Marginal area attainment date. In light of these considerations, the EPA has historically adjusted deadlines pursuant to the general rulemaking authority granted under CAA section 301(a) to prescribe regulations as are necessary to carry out the functions of the Act, and the specific authority granted by CAA section 182(i). The EPA has promulgated these adjustments of SIP submission and implementation deadlines that apply to reclassified areas with the intent to ensure consistency amongst submissions, encourage meaningful reductions towards expeditious attainment of the NAAQS, and promote planning flexibility where possible, within the fixed outer bound of an area's new maximum attainment date.

We recognize that because the adjustments in these deadlines are not made until after an area's attainment date under a lower classification, the time between reclassification and a reclassified area's new attainment date will inherently provide less time than the period of time provided between initial designation and classification and that classification's initial attainment date. For example, an area that is initially classified as Marginal is afforded 3 years to attain the NAAQS per CAA section 181(a)(1). If that area fails to attain by the Marginal area attainment date, and the EPA timely issues its finding 6 months after the attainment date per CAA section 181(b)(2), then the area has no more than 2.5 years from that point in time to plan for and attain the NAAQS by its new Moderate area attainment date, which is far less than the 6 years that areas initially classified as Moderate are allotted.

In some cases, though, particularly where a state requests a voluntary reclassification pursuant to CAA section 181(b)(3) and does so well before the area's attainment date, the existing deadlines associated with the higher classification's requirements will not have passed and it will be practicable for the state to meet those deadlines without adjustment. The EPA is therefore proposing that, where the existing deadlines are 18 months or more from the effective date of reclassification, the EPA will not adjust such applicable deadlines or set new ones under its CAA section 182(i) and 301(a) authority. The 18-month timeframe is the outer boundary of what the CAA sets as a “reasonable deadline” for SIP revisions required following a finding of inadequacy ( see CAA section 110(k)(5)), and where that period of time remains for SIP development for a reclassified area, we do not think adjustment is necessary, nor is it needed to assure expeditious attainment of the NAAQS or that the required submissions will be implemented consistently with the Act's structure. The Act's establishment of 18 months as an outer boundary in CAA section 110(k)(5) also indicates that Congress judged that this timeframe would be sufficient for states to identify and develop control measures, to draft revisions to address attainment plans and other requirements, and to complete the required public notice process, adopt such revisions, and to submit them to the EPA.

However, we note that the Act does not guarantee states will have 18 months to revise their SIPs following a finding of inadequacy, and nor does this proposal establish that states are entitled to have 18 months to revise plans to address requirements of the new classification. Expeditious attainment of the NAAQS and ensuring that requirements are in place in time to influence attainment by the attainment date will, in many cases, require that states are afforded much less than 18 months to revise SIPs. This will be particularly true where areas fail to attain by their attainment date, especially for the lower classifications where the interval between attainment dates is only 3 years, and where states fail to request a voluntary reclassification early in the implementation schedule.

The EPA invites comments on its proposal to adjust applicable deadlines where the existing classification deadline has either passed or is less than 18 months away, and whether a different remaining time period for an existing deadline should be considered. The proposed default adjustment of deadlines that would apply in these circumstances will provide advance notice and certainty to any states with nonattainment areas that may fail to attain an ozone NAAQS by the applicable attainment date in the future. Because many of these same timing-related pressures will exist with voluntary reclassifications, the EPA is proposing to also set the same default SIP submission and implementation deadlines to provide certainty to any states that are contemplating making such requests. The proposed default deadlines are listed in table 1 for clarity.