Approval and Promulgation of Air Quality Implementation Plans; California; Determinations of Failure To Attain the One-Hour Ozone Standard, 82133-82146 [2011-33475]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82133-82146]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33475]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0638; FRL-9612-8]


Approval and Promulgation of Air Quality Implementation Plans; 
California; Determinations of Failure To Attain the One-Hour Ozone 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to determine that three areas 
in California, previously designated nonattainment for the now-revoked 
one-hour ozone national ambient air quality standard (NAAQS), did not 
attain that standard by their applicable attainment dates: the Los 
Angeles-South Coast Air Basin Area (``South Coast''), the San Joaquin 
Valley Area (``San Joaquin Valley''), and the Southeast Desert Modified 
Air Quality Maintenance Area (``Southeast Desert''). These 
determinations are based on three years of quality-assured and 
certified ambient air quality monitoring data for the period preceding 
the applicable attainment deadline.

DATES: Effective Date: This rule is effective on January 30, 2012.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0638 for 
this action. The index to the docket is available electronically at 
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne 
Street, San Francisco, California. While all documents in the docket 
are listed in the index, some information may be publicly available 
only at the hard copy location (e.g., copyrighted material), and some 
may not be publicly available in

[[Page 82134]]

either location (e.g., Confidential Business Information). To inspect 
the hard copy materials, please schedule an appointment during normal 
business hours with the contact listed in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Doris Lo, (415) 972-3959, or by email 
at lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. EPA's Proposed Action
    A. Background
    B. Technical Evaluation
    C. Consequences
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. EPA's Proposed Action

    On September 14, 2011 (76 FR 56694), EPA proposed to determine, 
under the Clean Air Act (CAA or ``Act''), that three areas previously 
designated nonattainment for the one-hour ozone NAAQS--the South Coast, 
the San Joaquin Valley, and the Southeast Desert--failed to attain the 
NAAQS for one-hour ozone by their applicable one-hour NAAQS attainment 
dates.

A. Background

Regulatory Context
    The Act requires us to establish NAAQS for certain widespread 
pollutants that cause or contribute to air pollution that is reasonably 
anticipated to endanger public health or welfare (sections 108 and 109 
of the Act). In 1979, we promulgated the revised one-hour ozone 
standard of 0.12 parts per million (ppm) (44 FR 8202, February 8, 
1979).\1\
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    \1\ For ease of communication, many reports of ozone 
concentrations are given in parts per billion (ppb); ppb = ppm x 
1000. Thus, 0.12 ppm becomes 120 ppb (or between 120 to 124 ppb, 
when rounding is considered).
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    An area is considered to have attained the one-hour ozone standard 
if there are no violations of the standard, as determined in accordance 
with the regulation codified at 40 CFR section 50.9, based on three 
consecutive calendar years of complete, quality-assured and certified 
monitoring data. A violation occurs when the ambient ozone air quality 
monitoring data show greater than one (1.0) ``expected number'' of 
exceedances per year at any site in the area, when averaged over three 
consecutive calendar years.\2\ An exceedance occurs when the maximum 
hourly ozone concentration during any day exceeds 0.124 ppm. For more 
information, please see ``National 1-hour primary and secondary ambient 
air quality standards for ozone'' (40 CFR 50.9) and ``Interpretation of 
the 1-Hour Primary and Secondary National Ambient Air Quality Standards 
for Ozone'' (40 CFR part 50, appendix H).
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    \2\ An ``expected number'' of exceedances is a statistical term 
that refers to an arithmetic average. An ``expected number'' of 
exceedances may be equivalent to the number of observed exceedances 
plus an increment that accounts for incomplete sampling. See, 40 CFR 
part 50, appendix H. Because, in this context, the term 
``exceedances'' refers to days (during which the daily maximum 
hourly ozone concentration exceeded 0.124 ppm), the maximum possible 
number of exceedances in a given year is 365 (or 366 in a leap 
year).
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    The Act, as amended in 1990, required EPA to designate as 
nonattainment any area that was violating the one-hour ozone standard, 
generally based on air quality monitoring data from the 1987 through 
1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6, 
1991). The Act further classified these areas, based on the severity of 
their nonattainment problem, as Marginal, Moderate, Serious, Severe, or 
Extreme.
    The control requirements and date by which attainment of the one-
hour ozone standard was to be achieved varied with an area's 
classification. Marginal areas were subject to the fewest mandated 
control requirements and had the earliest attainment date, November 15, 
1993, while Severe and Extreme areas were subject to more stringent 
planning requirements and were provided more time to attain the 
standard. Two measures that are triggered if a Severe or Extreme area 
fails to attain the standard by the applicable attainment date are 
contingency measures [section 172(c)(9)] and a major stationary source 
fee provision [sections 182(d)(3) and 185](``major source fee program'' 
or ``section 185 fee program'').
Designations and Classifications
    On November 6, 1991, EPA designated the South Coast \3\ as 
``Extreme'' nonattainment for the one-hour ozone standard, with an 
attainment date no later than November 15, 2010 (56 FR 56694). In its 
November 6, 1991 final rule, EPA designated the San Joaquin Valley \4\ 
as ``Serious'' nonattainment for the one-hour ozone standard, but later 
reclassified the valley as ``Severe'' (66 FR 56476, November 8, 2001), 
and then as ``Extreme'' (69 FR 20550, April 16, 2004) for the one-hour 
ozone standard, with the same attainment date (November 15, 2010) as 
the South Coast. In its 1991 final rule, EPA designated the Southeast 
Desert \5\ as ``Severe-17'' nonattainment for the one-hour ozone 
standard, with an attainment date no later than November 15, 2007.
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    \3\ The South Coast includes Orange County, the southwestern 
two-thirds of Los Angeles County, southwestern San Bernardino 
County, and western Riverside County (see 40 CFR 81.305).
    \4\ San Joaquin Valley includes all of Fresno, Kings, Madera, 
Merced, San Joaquin, Stanislaus, and Tulare counties, as well as the 
western half of Kern County (see 40 CFR 81.305).
    \5\ The Southeast Desert covers the Victor Valley/Barstow region 
in San Bernardino County, the Coachella Valley region in Riverside 
County, and the Antelope Valley portion of Los Angeles County (see 
40 CFR 81.305).
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    Outside of Indian country,\6\ the South Coast lies within the 
jurisdiction of the South Coast Air Quality Management District 
(SCAQMD). Similarly, with the exception of Indian country, San Joaquin 
Valley lies within the San Joaquin Valley Unified Air Pollution Control 
District (SJVUAPCD). Likewise, excluding Indian country, the Los 
Angeles portion of the Southeast Desert lies within the Antelope Valley 
Air Quality Management District (AVAQMD), the San Bernardino County 
portion of the Southeast Desert lies within the Mojave Desert Air 
Quality Management District (MDAQMD), and the Riverside County portion 
of the Southeast Desert lies within the SCAQMD.
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    \6\ ``Indian country'' as defined at 18 U.S.C. 1151 refers to: 
``(a) all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a state, and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same.''
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    Under California law, each air district is responsible for adopting 
and implementing stationary source rules, such as the fee program rules 
required under CAA section 185, while the California Air Resources 
Board (CARB) adopts and implements consumer products and mobile source 
rules. The district and state rules are submitted to EPA by CARB.
Transition From One-Hour Ozone Standard to Eight-Hour Ozone Standard
    In 1997, EPA promulgated a new, more protective standard for ozone 
based on an eight-hour average concentration (the 1997 eight-hour ozone 
standard). In 2004, EPA published the 1997 eight-hour ozone 
designations and classifications and a rule governing certain facets of 
implementation of the eight-hour ozone standard (herein referred to as 
the ``Phase 1 Rule'') (69 FR 23858 and 69 FR 23951, respectively, April 
30, 2004).

[[Page 82135]]

    Although EPA revoked the one-hour ozone standard (effective June 
15, 2005), to comply with anti-backsliding requirements of the Act, 
eight-hour ozone nonattainment areas remain subject to certain 
requirements based on their one-hour ozone classification. Initially, 
in our rules to address the transition from the one-hour to the eight-
hour ozone standard, EPA did not include contingency measures or the 
section 185 fee program among the measures retained as one-hour ozone 
anti-backsliding requirements.\7\ However, on December 23, 2006, the 
United States Court of Appeals for the District of Columbia Circuit 
determined that EPA should not have excluded these requirements (and 
certain others not relevant here) from its anti-backsliding 
requirements. South Coast Air Quality Management District v. EPA, 472 
F.3d 882 (DC Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the 
vacatur was limited to the issues on which the court granted the 
petitions for review) (referred to herein as the South Coast case).
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    \7\ Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
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    Thus, the Court vacated the provisions that excluded these 
requirements. As a result, States must continue to meet the obligations 
for one-hour ozone NAAQS contingency measures and, for Severe and 
Extreme areas, section 185 major source fee programs. EPA has issued a 
proposed rule that would remove those specific portions of 40 CFR 
51.905(e) that the court vacated, and that addresses contingency 
measures for failure to attain or make reasonable further progress 
toward attainment of the one-hour standard. See 74 FR 2936, January 16, 
2009 (proposed rule); 74 FR 7027, February 12, 2009 (notice of public 
hearing and extension of comment period).
Rationale for Proposed Action
    In our September 14, 2011 proposed rule, we explained that, after 
revocation of the one-hour ozone standard, EPA must continue to provide 
a mechanism to give effect to the one-hour anti-backsliding 
requirements that have been specifically retained. See South Coast, 47 
F.3d 882, at 903. In keeping with this responsibility with respect to 
one-hour anti-backsliding contingency measures and section 185 fee 
programs for these three California areas, on September 14, 2011, EPA 
proposed to determine that each area failed to attain the one-hour 
ozone standard by its applicable attainment date.

B. Technical Evaluation

    A determination of whether an area's air quality meets the one-hour 
ozone standard is generally based upon three years of complete,\8\ 
quality-assured and certified air quality monitoring data gathered at 
established State and Local Air Monitoring Stations (``SLAMS'') in the 
nonattainment area and entered into the EPA's Air Quality System (AQS) 
database. Data from air monitors operated by state/local agencies in 
compliance with EPA monitoring requirements must be submitted to the 
AQS database. Monitoring agencies annually certify that these data are 
accurate to the best of their knowledge. Accordingly, EPA relies 
primarily on data in its AQS database when determining the attainment 
status of an area. See 40 CFR 50.9; 40 CFR part 50, appendix H; 40 CFR 
part 53; 40 CFR part 58, appendices A, C, D and E. All data are 
reviewed to determine the area's air quality status in accordance with 
40 CFR part 50, appendix H.
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    \8\ Generally, a ``complete'' data set for determining 
attainment of the ozone is one that includes three years of data 
with an average percent of days with valid monitoring data greater 
than 90% with no single year less than 75%. See 40 CFR part 50, 
appendix I. There are less stringent data requirements for showing 
that a monitor has failed an attainment test and thus has recorded a 
violation of the standard.
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    Under EPA regulations at 40 CFR 50.9, the one-hour ozone standard 
is attained at a monitoring site when the expected number of days per 
calendar year with maximum hourly average concentrations above 0.12 
parts per million (235 micrograms per cubic meter) is equal to or less 
than 1, as determined by 40 CFR part 50, appendix H.\9\
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    \9\ The average number of expected exceedances is determined by 
averaging the expected exceedances of the one-hour ozone standard 
over a consecutive three calendar year period. See 40 CFR part 50, 
appendix H.
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    In our September 14, 2011 proposed rule, EPA proposed to determine 
that the South Coast, the San Joaquin Valley, and the Southeast Desert 
failed to attain the one-hour ozone standard by their applicable 
attainment dates based on findings that the number of expected 
exceedances at sites in each of the three nonattainment areas was 
greater than one per year in the period prior to the applicable 
attainment date. These proposed determinations were based on three 
years of quality-assured and certified ambient air quality monitoring 
data in AQS for the 2008-2010 monitoring period for the South Coast and 
the San Joaquin Valley, and quality-assured and certified data in AQS 
for 2005-2007 for the Southeast Desert.
    In so doing, in our September 14, 2011 proposed rule, we reviewed 
documents prepared by CARB and the local air districts in connection 
with the ozone monitoring networks as well as any applicable EPA 
technical systems audits to determine the comprehensiveness and 
reliability of the data reported to AQS and used by EPA to determine 
the attainment status of the areas with respect to the one-hour ozone 
standard. We then evaluated the ozone monitoring data contained in AQS 
from each area against the criterion discussed above to determine 
whether the areas attained the one-hour ozone standard by their 
applicable attainment dates.
    With respect to the South Coast, based on the monitoring data from 
29 ozone monitoring sites for the years 2008-2010, we found that, 
generally, the highest ozone concentrations in the South Coast occur in 
the northern and eastern portions of the area. We also determined that 
the highest three-year average of expected exceedances at any site in 
the South Coast Air Basin for 2008-2010 is 10.4 (at Crestline, a site 
located at 4,500 feet elevation in the San Bernardino Mountains). 
Because the calculated exceedance rate of 10.4 represents a violation 
of the one-hour ozone standard (a three-year average of expected 
exceedances less than or equal to 1), and taking into account the 
extent and reliability of the applicable ozone monitoring network, and 
the data collected therefrom, we proposed in our September 14, 2011 
action to determine that the South Coast Air Basin failed to attain the 
one-hour ozone standard (as defined in 40 CFR part 50, appendix H) by 
the applicable attainment date (i.e., November 15, 2010). Please see 
pages 56696-56698 in the September 14, 2011 proposed rule for 
additional information on the ozone monitoring network operating in the 
South Coast during the relevant period and the data collected 
therefrom.
    With respect to the San Joaquin Valley, based on the monitoring 
data from 22 ozone monitoring sites for the years 2008-2010, we found 
that, generally, the highest ozone concentrations in San Joaquin Valley 
occur in the central (i.e., in and around the city of Fresno) and the 
southern portions (i.e., southeast of Bakersfield) of the area. We also 
determined that the highest three-year average of expected exceedances 
at any site in the San Joaquin Valley for 2008-2010 is 6.6 at Arvin, a 
site located with mountains to the east, west, and south. Because the 
calculated exceedance rate of 6.6 represents a violation of the one-
hour ozone standard (a three-year average of expected exceedances less 
than or equal

[[Page 82136]]

to 1), and taking into account the extent and reliability of the 
applicable ozone monitoring network, and the data collected therefrom, 
we proposed in our September 14, 2011 action to determine that the San 
Joaquin Valley failed to attain the one-hour ozone standard (as defined 
in 40 CFR part 50, appendix H) by the applicable attainment date (i.e., 
November 15, 2010). Please see pages 56698-56699 in the September 14, 
2011 proposed rule for additional information on the ozone monitoring 
network operating in the San Joaquin Valley during the relevant period 
and the data collected therefrom.
    With respect to the Southeast Desert, based on the monitoring data 
from nine ozone monitoring sites for the years 2005-2007, we found 
that, generally, the highest ozone concentrations in the Southeast 
Desert occur in the far southwestern portion of the area, near mountain 
passes through which pollutants are transported to the Southeast Desert 
from the South Coast Air Basin. We also determined that the highest 
three-year average of expected exceedances at any site in the Southeast 
Desert for 2005-2007 is 2.3 at Palm Springs in Riverside County and 
Hesperia in San Bernardino County. Because the calculated exceedance 
rate of 2.3 represents a violation of the one-hour ozone standard (a 
three-year average of expected exceedances less than or equal to 1), 
and taking into account the extent and reliability of the applicable 
ozone monitoring network, and the data collected therefrom, we proposed 
to determine in our September 14, 2011 proposed action that the 
Southeast Desert failed to attain the one-hour ozone standard (as 
defined in 40 CFR part 50, appendix H) by the applicable attainment 
date (i.e., November 15, 2007). Please see pages 56699-56700 in the 
September 14, 2011 proposed rule for additional information on the 
ozone monitoring network operating in the Southeast Desert during the 
relevant period and the data collected therefrom.

C. Consequences

    In our September 14, 2011 proposed rule, we explained that a final 
determination of a Severe or Extreme area's failure to attain by its 
one-hour ozone NAAQS attainment date would trigger the obligation to 
implement one-hour contingency measures for failure to attain under 
section 172(c)(9) and fee programs under sections 182(d)(3), 182(f), 
and 185. Section 172(c)(9) requires one-hour ozone SIPs, other than for 
``Marginal'' areas, to provide for implementation of specific measures 
(referred to herein as ``contingency measures'') to be undertaken if 
the area fails to attain the NAAQS by the attainment date. Thus, in our 
September 14, 2011 proposed rules, we stated that a consequence of the 
proposed determinations, if finalized, would be to give effect to any 
one-hour ozone contingency measures that are not already in effect 
within the three subject California nonattainment areas.
    Section 182(d)(3) requires SIPs to include provisions required 
under section 185, and section 185 requires one-hour ozone SIPs in 
areas classified as ``Severe'' or ``Extreme'' to provide that, if the 
area has failed to attain the standard by the applicable attainment 
date, each major stationary source of ozone precursors located in the 
area must begin paying a fee [computed in accordance with section 
185(b)] to the State. Section 182(f) extends the section 185 
requirements, among others, that apply to major stationary sources of 
VOCs to major stationary sources of NOX unless EPA has 
waived such requirements for NOX sources in the particular 
nonattainment area. Thus, in our September 14, 2011 proposed rules, we 
stated that another consequence of the determinations, if finalized, 
would be to give effect to the section 185 fee requirements to the 
extent they are not already in effect within the three subject 
California nonattainment areas.
    Please see pages 56700-56701 in the September 14, 2011 proposed 
rule for additional information on the consequences of our proposed 
determinations in the three subject California one-hour ozone 
nonattainment areas.

II. Public Comments and EPA Responses

    Our September 14, 2011 proposed rule provided a 30-day comment 
period. During this period, we received three comment letters: a letter 
from the San Joaquin Valley Unified Air Pollution Control District 
(SJVUAPCD) dated October 12, 2011; a letter from the South Coast Air 
Quality Management District (SCAQMD) dated October 13, 2011; and a 
letter from Earthjustice dated October 14, 2011. None of the commenters 
challenge EPA's proposed air quality determinations themselves, nor any 
aspect of the technical basis for the proposed determinations. Rather, 
they variously challenge the necessity, rationale, and statutory basis 
for the proposed actions and the consequences that they entail. We have 
summarized the comments from each commenter's letter and provide EPA's 
responses below.

San Joaquin Valley Unified Air Pollution Control District--Comments and 
Responses

    SJVUAPCD Comment #1: The SJVUAPCD provides a number of grounds to 
support its argument that EPA should not make a determination that the 
San Joaquin Valley failed to meet its deadline for attaining the one-
hour ozone standard. The District's reasons include: the one-hour ozone 
standard has been revoked; EPA's Phase 1 Ozone Implementation rule 
stated that EPA will no longer make findings of failure to attain for 
one-hour ozone nonattainment areas, citing 69 FR 23951, at 23984 (April 
30, 2004); while certain provisions of EPA's April 2004 Ozone 
Implementation rule were vacated, the applicable provision related to 
findings of failure to attain was not challenged, and thus EPA remains 
bound by it.
    EPA Response to SJVUAPCD Comment #1: Under EPA's April 30, 2004 
Phase 1 Rule, EPA is no longer obligated, after revocation of the one-
hour ozone standard, to determine pursuant to section 179(c) or 
181(b)(2) of the CAA whether an area attained the one-hour ozone 
standard by that area's attainment date for the one-hour ozone 
standard. See 40 CFR 51.905(e)(2). EPA agrees that the relevant 
provision from EPA's Phase 1 Rule [i.e., 40 CFR 51.905(e)(2)] was not 
challenged and has not been vacated, but disagrees that this provision 
precludes EPA from making the determinations that are the subject of 
this notice. First, although the provision states that the Agency is no 
longer obligated to make certain determinations, it does not prohibit 
the Agency from exercising its discretion to do so. However, more to 
the point, EPA is not today invoking the authority of section 179(c) to 
determine that the San Joaquin Valley failed to attain the one-hour 
ozone standard by the applicable attainment date. Rather, EPA is acting 
pursuant to its obligations to give effect to two specific one-hour 
ozone anti-backsliding requirements whose implementation is dependent 
on such determinations. In doing so, EPA is complying with the DC 
Circuit's directive to formulate the Agency's procedures to dovetail 
with the required anti-backsliding measures. For the reasons explained 
in our September 14, 2011 proposed rule and further below, EPA is 
acting pursuant to its authority under section 301(a) and also the 
relevant portion of section 181(b)(2).
    SJVUAPCD Comment #2: The SJVUAPCD believes that EPA's action is 
unnecessary with respect to the San Joaquin Valley because the 
District's

[[Page 82137]]

one-hour ozone contingency measures take effect without further action 
by the District or EPA, and because, with respect to section 185 fees, 
the DC Circuit did not specify the mechanism that EPA must use to 
trigger section 185 fees, and the District's rule implementing section 
185 has been proposed for approval by EPA.
    EPA Response to SJVUAPCD Comment #2: EPA recognizes that the 
approved one-hour ozone plan for the San Joaquin Valley relies on 
existing State and federal on- and off-road road new engine standards 
to meet the contingency measure requirements in section 172(c)(9), 75 
FR 10420, at 10432 (March 8, 2010) and that such standards are already 
being implemented and provide an estimated additional benefit in 2011 
beyond the reductions from those measures in 2010 regardless of our 
determination of failure to attain the one-hour ozone standard for the 
San Joaquin Valley. EPA also recognizes that the District's rule (i.e., 
District Rule 3170) that is intended to implement section 185 of the 
CAA in connection with the one-hour ozone standard does not condition 
its applicability upon EPA's determination of failure by the area to 
attain the one-hour ozone standard by the applicable attainment date 
and that the rule has been submitted to EPA for review.\10\ EPA, 
however, believes that a determination of failure to attain the one-
hour ozone standard is appropriate to eliminate any uncertainty as to 
whether such measures and rules must continue to be implemented in San 
Joaquin Valley for anti-backsliding purposes.
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    \10\ EPA proposed approval of SJVUAPCD Rule 3170 at 76 FR 45212 
(July 28, 2011).
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South Coast Air Quality Management District--Comments and Responses

    SCAQMD Comment #1: SCAQMD asserts that there is no need for EPA to 
make the proposed determinations. SCAQMD believes that, with respect to 
the South Coast, there is no need for a ``trigger mechanism'' which 
would inform the area that, due to its failure to attain, the area must 
implement section 185 fees and contingency measures because the related 
section 185 fees rule (SCAQMD Rule 317) has been adopted and submitted 
to EPA and because the contingency measures have already been 
implemented.
    EPA Response to SCAQMD Comment #1: We recognize that SCAQMD Rule 
317 has already been adopted by the District and submitted to EPA by 
CARB as a revision to the California SIP. As is true for the 
corresponding SJVUAPCD rule, SCAQMD Rule 317 does not condition 
applicability on EPA making a determination of failure to attain the 
one-hour ozone standard (by the applicable attainment date), and thus, 
the rule is in effect regardless of EPA's determination herein. EPA has 
not yet acted to approve this SIP revision.
    Furthermore, prior to today's action, there has been no final 
determination of the area's failure to attain, which is what 
establishes the requirement to implement a rule developed to comply 
with section 185. Without a dispositive determination that 
implementation is required, it would be difficult if not impossible to 
clearly establish and enforce the obligation, and to assess when it may 
cease. Moreover, because EPA has not yet taken final action to approve 
SCAQMD Rule 317, and if we were to disapprove the rule, or if we were 
to approve SCAQMD Rule 317, but find that the SCAQMD is not 
administering and enforcing the rule, EPA could be under an obligation 
to implement the fee program required under section 185 [see CAA 
section 185(d)]. Thus, in order to comply with the process set forth in 
section 185, and to provide a legal basis for the State and/or EPA as 
appropriate to collect fees, EPA must ensure that the necessary 
determination for application of section 185 has been made. Thus, EPA 
concludes that, in the circumstances presented, the agency must make 
the determination that triggers the obligation to implement section 
185, and we do so today in this document.
    Moreover, the Agency has grounds to make today's determination 
other than for purposes of implementing contingency measures. EPA's 
determination is also linked to implementation of anti-backsliding 
requirements under section 185. Thus, today's action is not aimed 
solely at one-hour ozone contingency measures.
    SCAQMD Comment #2: Even if it were necessary for EPA to have a 
``trigger mechanism'' to cause an area to implement its section 185 
fee, or to implement contingency measures, the SCAQMD believes it is 
not necessary to use a formal determination of failure to attain. The 
SCAQMD states that there is nothing in the South Coast case that 
indicated that a formal determination of failure to attain is necessary 
and that, as a result, EPA could simply send the affected districts a 
letter informing them that those obligations had been triggered based 
on submitted monitoring data.
    EPA Response to SCAQMD Comment #2: EPA's established practice for 
making a determination whether an area has attained, or failed to 
attain, the NAAQS is to conduct a rulemaking under the Administrative 
Procedure Act (APA), not to issue a letter, a list or some other 
informal document. In other words, if there has not been a rulemaking 
providing notice and an opportunity for comment, there has not been an 
attainment determination. EPA's longstanding practice in this regard 
was explicitly recognized and upheld more than a decade ago by the 
United States Court of Appeals for the DC Circuit. The Court rejected 
the Sierra Club's arguments that means other than rulemaking were 
sufficient for this purpose, especially when a determination results in 
additional obligations for an area. See Sierra Club v. Whitman, 285 
F.3d 63, at 66 (DC Cir. 2002). In determining through notice and 
comment rulemaking that the South Coast failed to attain the one-hour 
ozone standard by the applicable attainment date, EPA is acting 
consistently with its established practice and applicable 
administrative procedure law in making such determinations.
    SCAQMD Comment #3: The SCAQMD asserts that the CAA does not 
authorize EPA to make the proposed determinations. In support of this 
assertion, the SCAQMD argues that:
     While CAA sections 179(c) and 179(d) require EPA to 
determine whether an area attained the standard by the applicable 
attainment date and that a new attainment demonstration requirement is 
triggered by a determination of failure to attain the standard by the 
applicable attainment date under those provisions, the one-hour ozone 
standard has been revoked and, as a result, the one-hour ozone standard 
is no longer a ``standard'' for the purposes of section 179(c) and 
section 179(d);
     EPA's past statements, such as those from EPA's April 30, 
2004 Phase 1 Rule, indicate that areas would no longer have the 
obligation to demonstrate attainment of the revoked one-hour ozone 
standard if the area had an approved one-hour ozone attainment 
demonstration; and
     The recent decision published by the U.S. Court of Appeals 
for the Ninth Circuit (Association of Irritated Residents v. EPA, 632 
F.3d 584 (9th Cir. 2011) that appears to require EPA to assure that 
California demonstrate attainment of the one-hour ozone standard for 
the South Coast was rendered without consideration of the fact that the 
plan in issue there was aimed at attaining the one-hour ozone standard, 
which had been revoked by the time EPA acted on the plan, and that the 
decision is pending appeal and not yet final.

[[Page 82138]]

    EPA Response to SCAQMD Comment #3: In making today's final 
determinations, we are not acting pursuant to section 179(c) nor 
triggering the related requirements under section 179(d). Neither of 
these provisions was retained as a 1-hour ozone anti-backsliding 
requirement, and the relevant provisions of the anti-backsliding rule 
in this respect were not challenged. As explained in our September 14, 
2011 proposed rule, we are acting here in accordance with our 
obligation to enforce specific one-hour ozone anti-backsliding 
requirements, and the DC Circuit's instruction to us in the South Coast 
case that we determine the process necessary for that purpose. Thus, as 
explained in our proposal and elsewhere in this notice, we are acting 
here pursuant to our general authority in section 301(a) and the 
relevant portion of section 181(b)(2) concerning attainment 
determinations (i.e., not the portion concerning reclassifications, 
which the commenter correctly notes was not retained for anti-
backsliding purposes), and for the purpose of effectuating the two 
anti-backsliding provisions that are triggered by a determination of 
failure to meet the attainment deadline--contingency measures and 
section 185 fees.
    EPA believes that the Ninth Circuit's decision in the Association 
of Irritated Residents (AIR) case cited by SCAQMD has no bearing on the 
question raised in this rulemaking regarding whether EPA must invoke 
section 179 when it seeks to make a determination regarding 1-hour 
ozone contingency and fee anti-backsliding measures. The AIR case 
centers on EPA's duties under section 110(l) of the CAA when it reviews 
a SIP revision, particularly, a SIP revision that includes an 
attainment demonstration. It does not pertain to the issue raised in 
this rulemaking--whether section 179, though not preserved in EPA's 
anti-backsliding provisions, should nonetheless be tacked on for the 
first time here as an additional anti-backsliding requirement to impose 
yet further planning for a revoked standard. In contrast to AIR, which 
considers EPA's duty at the time it reviews a plan, the question raised 
in this rulemaking is not whether the plan's faults were known at the 
time of plan review. The question here regarding section 179(c) 
concerns only whether that section's provision, which was not preserved 
as an anti-backsliding requirement, can be applied to extract an 
additional round of planning based on a subsequent failure to attain. 
As EPA explains elsewhere in this notice, the answer is that it cannot. 
Section 179's requirement for additional planning was not included in 
the anti-backsliding measures that were exhaustively litigated, 
reviewed and dispositively determined by the DC Circuit. As noted, the 
exclusion of section 179, and in particular the additional planning 
requirements in section 179(d), from the list of applicable 
requirements that continue to apply for anti-backsliding purposes was 
not challenged and remains the current law. Above all, sections 179(c) 
and (d) are not necessary to the enforcement of any of the anti-
backsliding requirements which are included.
    SCAQMD Comment #4: SCAQMD acknowledges that EPA's proposal 
described the consequences of the determinations only in terms of 
section 185 fees and contingency measures, but is concerned that if EPA 
finalizes the proposed action, it will be used in an effort to compel 
SCAQMD to submit a plan to attain the revoked one-hour standard.
    EPA Response to SCAQMD Comment #4: EPA's final determinations in 
this rulemaking are intended to effectuate only those 1-hour anti-
backsliding requirements that have been specifically retained, and 
which are activated by a finding of failure to attain. For the reasons 
set forth at length elsewhere in these responses, EPA is not acting 
pursuant to section 179, and does not believe that section's provisions 
can be invoked to require additional rounds of planning for the revoked 
1-hour standard. EPA and the states are implementing the one-hour 
standard, which has been revoked, by means of the specified one-hour 
anti-backsliding requirements. While EPA agrees that it must continue 
to make determinations of attainment or failure to attain the one-hour 
ozone standard by the applicable attainment date, it is for the sole 
purpose of ensuring implementation of those one-hour ozone anti-
backsliding requirements (section 185 fees and contingency measures) 
and not to trigger new attainment demonstration plans or 
reclassifications for the revoked one-hour ozone standard. EPA's 
reasoning is elaborated further in its responses below to the comments 
of Earthjustice.
    SCAQMD Comment #5: SCAQMD states that it has recently initiated the 
2012 Air Quality Management Plan (AQMP) development process. SCAQMD 
anticipates that the 2012 AQMP will be submitted to EPA by the end of 
2012 and will include a demonstration of attainment of the 24-hour 
PM2.5 standard and an update to the ``black box'' commitment 
under CAA section 182(e)(5) for attainment of the 1997 8-hour ozone 
standard. SCAQMD asserts that this plan will necessarily include all 
feasible measures and believes that it is doubtful that additional 
measures could be identified solely for the purposes of addressing the 
revoked one-hour ozone standard. SCAQMD also asserts that the 
strategies for emissions reductions would essentially be the same for 
both the one and eight-hour ozone standards. SCAQMD argues that no 
separate additional plan for the revoked one-hour ozone standard should 
be required, since the 2012 plan for the eight-hour standard will 
evaluate future one-hour ozone design values and, all feasible measures 
are being taken, and the additional resource needed to prepare such a 
demonstration would divert resources away from the effort to 
demonstrate attainment with the current NAAQS. Thus, SCAQMD believes 
that requiring a new attainment demonstration for the one-hour ozone 
standard is not necessary and is overly burdensome given the upcoming 
2012 AQMP.
    EPA Response to SCAQMD Comment #5: As stated above, EPA believes 
that the anti-backsliding requirements applicable for the revoked 1-
hour ozone standard are limited to those specified in EPA's regulations 
and the South Coast decision, and do not and should not compel 
additional planning for the one-hour standard here. We agree that 
requiring a new attainment demonstration for the one-hour ozone 
standard for the South Coast is not necessary or required by a final 
determination today that the South Coast failed to attain the one-hour 
ozone standard by the applicable attainment date. As set forth in our 
September 14, 2011 proposed rule and elsewhere in this document, we are 
making today's determination pursuant to our authority under CAA 
section 301(a) and also under the relevant portion of section 
181(b)(2), in order to ensure implementation of only those measures 
specifically identified as one-hour ozone anti-backsliding 
requirements--in this case--contingency measures and section 185 fees.
    SCAQMD Comment #6: SCAQMD requests that EPA clarify that a final 
determination of failure to attain does not trigger any obligation to 
submit an attainment demonstration for the revoked one-hour ozone 
standard.
    EPA Response to SCAQMD Comment #6: In this final rule, EPA explains 
and responds to comments concerning the statutory basis and rationale 
set forth in our September 14, 2011 proposed rule for the determination 
of failure to attain the one-hour ozone standard by the applicable 
attainment date. EPA is taking this action under its authority to

[[Page 82139]]

ensure implementation of one-hour ozone anti-backsliding requirements 
under CAA section 301(a) and the relevant portion of section 181(b)(2). 
Thus, EPA is stating plainly that today's determination does not 
trigger any requirement for the State of California to prepare and 
submit a new attainment demonstration for the one-hour ozone standard 
under section 179(c) and (d) for any of the three subject California 
nonattainment areas. As EPA has stated elsewhere, a new additional 
attainment demonstration triggered by a failure to attain the one-hour 
ozone standard by the attainment date is not an ``applicable 
requirement'' for the purposes of anti-backsliding in 40 CFR 51.905 and 
40 CFR 51.900(f).
    SCAQMD Comment #7: The SCAQMD requests that EPA separate the 
Coachella Valley from the remainder of the Southeast Desert Air Basin 
and determine that the Coachella Valley has attained the one-hour ozone 
standard. SCAQMD acknowledges that the Coachella Valley still exceeded 
the revoked one-hour ozone standard in the three-year period before 
2007, but believes that Coachella Valley can now show it has attained 
the revoked one-hour standard based on data from the 2008-2010 period.
    EPA Response to SCAQMD Comment #7: The air quality determinations 
that are the subject of this rulemaking focus solely on whether the 
areas attained the one-hour ozone standard by the applicable attainment 
dates. Whether an area is currently attaining the standard is not 
relevant to these determinations. In the case of the South Coast and 
the San Joaquin Valley, the applicable attainment date was November 15, 
2010, and the determination of whether the areas attained by the 
applicable attainment date is based on data from 2008-2010. For the 
Southeast Desert, the determination of whether the area met its 
attainment date is based on data for 2005-2007. As a Severe-17 area, 
the area's applicable attainment date for the one-hour ozone standard 
was November 15, 2007.
    In today's rulemaking, EPA is not addressing current attainment of 
the one-hour ozone standard in these areas or making a determination 
regarding current attainment of any area. Should the SCAQMD wish to 
seek a revision of the boundary of the Southeast Desert one-hour ozone 
nonattainment area in order to establish a separate Coachella Valley 
one-hour ozone nonattainment area and a determination by EPA that this 
area is currently attaining the one-hour ozone standard, the SCAQMD 
should work with CARB to prepare and submit a request for a boundary 
redesignation under CAA section 107(d)(3)(D) and for a related 
attainment determination. EPA would then consider such requests in a 
separate rulemaking.
    SCAQMD Comment #8: SCAQMD states that it believes that, for the 
sake of consistency and to avoid future litigation, EPA should make 
determinations similar to today's determinations for all areas in the 
United States that failed to attain the revoked ozone standard by their 
applicable attainment dates.
    EPA Response to SCAQMD Comment #8: By mid-2012, EPA intends to make 
a determination of attainment or failure to attain the one-hour ozone 
standard for approximately 20 areas throughout the country, consisting 
of almost every one-hour ozone nonattainment area that was classified 
as Moderate or above on June 15, 2005 (the date of revocation of the 
one-hour ozone standard) and that is currently designated as 
nonattainment for the 1997 8-hour ozone standard. The only two 
exceptions, Portsmouth-Dover-Rochester, New Hampshire and Providence, 
Rhode Island were classified as ``Serious'' for the one-hour ozone 
standard, and thus not subject to section 185 fee requirements, and EPA 
has determined through rulemaking that they are attaining the 1997 
eight-hour ozone standard. See 75 FR 64949 (October 21, 
2010)(Providence, RI); and 76 FR 14805 (March 18, 2011) (Portsmouth-
Dover-Rochester, NH).
    The areas for which EPA has made determinations regarding 
attainment of the one-hour ozone standard, or for which EPA is 
committed to make determinations, are: South Coast (CA); San Joaquin 
Valley (CA); Southeast Desert (CA); Chicago-Gary-Lake County (IL-IN); 
Houston-Galveston (TX); Milwaukee-Racine (WI); New York-N. New Jersey-
Long Island (NY-NJ-CT); Baltimore (MD); Baton Rouge (LA); Philadelphia-
Wilmington-Trenton (PA-NJ-DE-MD); Sacramento Metro (CA); Ventura County 
(CA); Metropolitan Washington (DC-MD-VA); Beaumont-Port Arthur (TX); 
Boston-Lawrence-Worcester (MA-NH); Dallas-Fort Worth (TX); El Paso 
(TX); Greater Connecticut (CT); Springfield (Western MA); Atlantic City 
(NJ); and Poughkeepsie (NY).

Earthjustice--Comments and Responses

    Earthjustice Comment #1: Earthjustice states that it assumes that 
EPA's failure to cite the relevant sections of the CAA and fully 
explain the implications of a failure to attain is an oversight because 
it contends that the requirements in CAA sections 179(c) and 181(b)(2) 
plainly mandate EPA to determine whether a nonattainment area attained 
the standard by the applicable attainment date.
    EPA Response to Earthjustice Comment #1: For a number of reasons, 
EPA does not agree that it is compelled to act under the authority of 
CAA sections 179(c) and 181(b)(2) when making determinations for the 
revoked one-hour ozone standard. CAA section 179(c) requires, in 
relevant part, that EPA determine, based on the area's air quality as 
of the attainment date, whether the area attained the standard by that 
date. CAA section 179(c) applies to all of the NAAQS whereas CAA 
section 181(b)(2), in relevant part, largely mirrors section 179(c) and 
applies specifically to the ozone standard.
    Both section 179(c) and 181(b)(2) refer to the ``standard,'' which 
doubtless applies to the NAAQS, but which does not clearly apply to a 
revoked standard, such as the one-hour ozone standard, which was 
revoked after promulgation of the 1997 eight-hour ozone standard, one 
year after the effective date of designations for the 1997 ozone 
standard. See 40 CFR 50.9(b). Based on an effective date of June 15, 
2004 for designations for the eight-hour ozone standard (see 69 FR 
23951, April 30, 2004), the date for revocation of the one-hour ozone 
standard was June 15, 2005. Because we are well past that date, the 
revoked one-hour ozone NAAQS no longer constitutes a ``standard'' for 
the purposes of sections 179(c) or 181(b)(2).
    Moreover, not all CAA provisions that applied prior to revocation 
of the one-hour standard were preserved as anti-backsliding 
requirements. Only specified requirements were identified and retained 
as applicable requirements. While EPA's identification of these 
requirements was challenged in the South Coast litigation, the DC 
Circuit's decisions in that case disposed of those challenges and 
closed the door on the issue of what constitutes an anti-backsliding 
requirement. The provisions of the rule indicating that EPA would not 
be obligated to make determinations under section 179(c) for purposes 
of future planning or section 181(b)(2) for purposes of 
reclassifications were not challenged and stand as promulgated. Even 
more significantly, the consequences of determinations set forth in 
portions of those provisions--reclassification and additional one-hour 
planning--were not retained as anti-backsliding requirements. This 
aspect of the anti-backsliding regime was not challenged by litigants 
or addressed by the South Coast Court. The court vacated only those 
portions of EPA's implementation rule that it addressed in

[[Page 82140]]

its South Coast decision. In accordance with EPA's Phase 1 Ozone 
Implementation Rule, EPA is no longer obligated, after revocation of 
the one-hour ozone standard, to determine pursuant to section 179(c) or 
section 181(b)(2) of the CAA whether an area attained the one-hour 
ozone standard by that area's attainment date for the one-hour ozone 
standard. See 40 CFR 51.905(e)(2). While EPA remains obligated to 
ensure implementation of those one-hour ozone anti-backsliding measures 
that were retained as applicable requirements, EPA is not obligated to, 
and has elected not to apply section 179(c) to make determinations 
whether an area attained the one-hour ozone standard by the applicable 
attainment date. EPA is undertaking these determinations expressly and 
solely to give effect to the anti-backsliding requirements for 
contingency measures and section 185 fees that have been retained as 
applicable requirements and which are linked to such determinations, 
under our authority under CAA section 301(a) and the relevant portion 
of section 181(b)(2) consistent with the South Coast decision. The only 
anti-backsliding requirements related to attainment planning for the 
one-hour ozone standard are contained in EPA's regulation 40 CFR 
51.905(a), which does not include any obligations for subsequent 
planning rounds under section 179(d). Section 179(d) prescribes 
consequences that were not retained for purposes of anti-backsliding 
after revocation of the one-hour ozone standard.
    Earthjustice Comment #2: Earthjustice states its belief that the 
consequences of a failure to attain are plainly enumerated in the Act--
a new plan meeting the requirements of section 110 and 172 [see section 
179(d)], contingency measures approved under section 172(c)(9) and 
section 185 fees.
    EPA Response to Earthjustice Comment #2: As stated on page 56700 of 
our September 14, 2011 proposed rule, we agree that a final 
determination that a Severe or Extreme area failed to attain by its 
one-hour ozone NAAQS attainment date triggers a State's obligation to 
implement one-hour contingency measures for failure to attain under 
section 172(c)(9) and fee programs under sections 182(d)(3), 182(f), 
and 185. Because the South Coast, San Joaquin Valley, and Southeast 
Desert areas are classified as Extreme (or Severe in the case of the 
Southeast Desert) for the one-hour ozone standard, today's final 
determinations of failure to attain by the applicable attainment date 
trigger the obligation to implement such one-hour contingency measures 
and fee programs.
    We do not agree, however, that these determinations re-activate a 
requirement to prepare and submit an additional round of one-hour 
attainment planning pursuant to CAA section 179(d). Section 179(d) was 
not retained as an anti-backsliding requirement, and as explained in 
Response to Comment 1, above, EPA is not applying section 179 
in order to make the determinations of failure to attain for the three 
subject California areas under section 179(c). For these and other 
reasons set forth elsewhere in this notice, the additional plan 
requirements under section 179(d) are not triggered.
    Earthjustice Comment #3: Earthjustice cites the decision by the 
Court of Appeals for the DC Circuit in the South Coast Air Quality 
Mgmt. Dist. v. EPA case (472 F.3d 882, 903-904 (DC Cir. 2007) in 
asserting that EPA unsuccessfully attempted to delete certain statutory 
requirements (i.e., new plan under section 179(d), contingency measures 
under section 172(c), and section 185 fees) in the Agency's 2004 Phase 
1 Rule.
    EPA Response to Earthjustice Comment #3: We agree that the South 
Coast case, cited above, vacated the provisions of EPA's Phase 1 Rule 
that excluded section 172(c)(9) contingency measures and section 185 
fees from the list of applicable requirements for purposes of anti-
backsliding after revocation of the one-hour ozone standard. We 
disagree, however, that the South Coast decision preserves EPA's 
obligations under CAA section 179(c) or the related State obligations 
under CAA section 179(d) after revocation of the one-hour ozone 
standard. EPA's authority to revoke the one-hour ozone standard was 
specifically challenged in the South Coast case but upheld by the DC 
Circuit. See South Coast, 472 F.3d 882, at 899 (``Therefore, EPA 
retains the authority to revoke the one-hour standard so long as 
adequate anti-backsliding provisions are introduced.'') As we have 
noted, the claim that all the specific requirements of sections 179(c) 
and (d) and 181(b)(2) should be retained and imposed as anti-
backsliding measures was not raised in the South Coast case and cannot 
be resurrected at this time. Because the one-hour ozone standard has 
been revoked, it is no longer a ``standard'' for the purposes of CAA 
section 179(c) and thus the statutory requirements of section 179(d) 
also no longer apply. While EPA is obliged to make those determinations 
necessary to effectuate the contingency measure and fee anti-
backsliding requirements, there is nothing that requires EPA to make 
those determinations under section 179 or 181, or that dictates the 
imposition of the consequences formerly imposed by those sections 
before revocation, i.e., reclassification, second-round attainment 
planning. These were not retained as anti-backsliding requirements and 
40 CFR 51.905(e)(2) made that explicit, was never challenged, and was 
not vacated by the South Coast decision. Commenters are conflating 
EPA's obligation to determine whether an area attained by its one-hour 
ozone attainment date with the terms of section 179, which exceed the 
limits of, and are not necessary for purposes of anti-backsliding 
requirements.
    Earthjustice Comment #4: Earthjustice observes that EPA 
promulgated, as part of the Agency's Phase 1 Rule, a provision that 
states in essence that, after revocation, EPA is no longer obliged to 
determine pursuant to section 179(c) or section 181(b)(2) whether an 
area attained the one-hour ozone standard by that area's attainment 
date for the one-hour ozone standard, but asserts that EPA has never 
interpreted the statute or EPA's regulations as allowing EPA to avoid 
making the required determinations under sections 179(c) or 181(b)(2) 
when needed to fulfill the obligations of the CAA. In support of this 
contention, Earthjustice points to the text found in EPA's one-hour 
ozone attainment determinations for Washoe County [as citing both 
179(c) and 181(b)(2)], Philadelphia and District of Columbia [as citing 
section 181(b)(2)], Southern New Jersey [as citing section 181(b)(2)] 
and Milwaukee [as citing section 181(b)(2)].
    EPA Response to Earthjustice Comment #4: First, the only example 
that Earthjustice claims as evidence that EPA has conceded that it 
remains obligated after revocation of the one-hour ozone standard to 
make attainment determinations for the one-hour ozone standard under 
section 179(c), is an attainment determination that was made before the 
one-hour ozone standard was revoked. EPA's one-hour ozone attainment 
determination for Washoe County, Nevada was published on May 3, 2005 
(70 FR 22803), the one-hour ozone standard was revoked on June 15, 
2005. Therefore, EPA's determination for Washoe County proves nothing 
about EPA's obligation to make attainment determinations under section 
179(c) of the Act after revocation. To the contrary, 40 CFR 
51.905(e)(2) clearly provides: ``Upon revocation of the 1-hour NAAQS 
for an area, EPA is no longer obligated (A) To determine pursuant to 
section 181(b)(2)

[[Page 82141]]

or section 179(c) of the CAA whether an area attained * * *.''
    Second, although after revocation, on a number of occasions, EPA 
has cited section 181(b)(2)--but never section 179--when determining 
that areas attained the one-hour ozone standard by the applicable 
deadline, all of these rulemakings were determinations of attainment 
rather than determinations of failure to attain. Because the areas met 
their attainment deadlines, EPA was not determining or imposing the 
consequences of failure to attain. Moreover, when EPA invoked section 
181(b)(2) in determining that areas had attained the one-hour ozone 
deadline, EPA made clear in those actions that the only portion of 
section 181(b)(2) applicable for purposes of the one-hour ozone anti-
backsliding requirements was the obligation to make the determination 
itself, since the portions of the section prescribing the consequence 
of reclassification had not been retained. 40 CFR 51.905(e).
    For example, in one of the determinations of attainment, EPA noted 
that:

    ``EPA remains obligated under section 181(b)(2) to determine 
whether an area attained the one-hour ozone NAAQS by its attainment 
date. However, after the revocation of the one-hour ozone NAAQS, EPA 
is no longer obligated to reclassify an area to a higher 
classification for the one-hour NAAQS based upon a determination 
that the area failed to attain the one-hour NAAQS by the area's 
attainment date for the one-hour NAAQS. (40 CFR 51.905(e)(2)(i)(B).) 
Thus even if we make a finding that an area has failed to attain the 
one-hour ozone NAAQS by its attainment date, the area would not be 
reclassified to a higher classification.'' 73 FR 42727, at 42728 
(July 23, 2008).

    As EPA has noted, after revocation, the only possible anti-
backsliding requirements triggered by a failure to attain the one-hour 
ozone attainment deadline are the requirements of sections 172(c)(9) 
(i.e., contingency measures) and 185 (i.e., fees). Thus, even if EPA 
were to invoke section 181(b)(2) as the statutory basis under which EPA 
is obligated to make determinations of attainment or failure to attain 
the one-hour ozone standard in the South Coast, San Joaquin Valley, and 
Southeast Desert, no requirement for new plans would be triggered for 
these areas. None of EPA's post-revocation determinations regarding 
one-hour attainment deadlines cite section 179(c). All of the post-
revocation rulemakings determining attainment by the attainment 
deadline that cite section 181(b)(2) do so only with respect to the 
obligation to make the requisite air quality determination for the sole 
purpose of the applicable one-hour anti-backsliding requirements linked 
to such determinations, i.e., contingency measures and section 185 
fees. An additional round of one-hour attainment planning is not one of 
these ``applicable requirements.'' See 40 CFR 51.900(f) and 
51.905(a)(1). One could also conclude that the requirement and 
corresponding obligation to adopt and implement a new one-hour 
attainment plan for failure to attain the one-hour ozone standard by 
the applicable attainment date, in contrast to the obligation to adopt 
and implement contingency measures and fees, could not be an 
``applicable requirement'' for anti-backsliding purposes for the 
purposes of 40 CFR 51.900(f) and 51.905(a)(1) in the South Coast, San 
Joaquin Valley and Southeast Desert because the only applicable 
attainment dates that could trigger new planning requirements for these 
areas were well after June 15, 2004, the date of designation for the 
eight-hour ozone standard and the date that determines which 
``applicable requirements'' apply to any given eight-hour ozone 
nonattainment area. As such, new planning requirements triggered by a 
failure to attain by the applicable attainment date could not have been 
a requirement on that date, and thus could not be an ``applicable 
requirement'' for the purposes of anti-backsliding.
    Earthjustice Comment #5: Earthjustice contends that, between the 
plain language of the CAA and EPA's consistent interpretation of these 
provisions, there is no question that section 179(c) or section 
181(b)(2) is the appropriate authority for making the determinations 
that the South Coast, San Joaquin Valley, and Southeast Desert one-hour 
ozone nonattainment areas have failed to attain the applicable 
attainment dates but notes that EPA cites neither one, but instead 
cites section 301(a) as providing the authority for EPA's 
determination. Earthjustice faults the September 14, 2011 proposed rule 
for failing to explain how or why section 301(a) provides the 
appropriate authority for the action, what regulations are being 
``prescribed'' under section 301(a), and why such regulations are 
``necessary'' given the statutory and regulatory commands.
    EPA Response to Earthjustice Comment #5: Section 301(a)(1) of the 
CAA, in relevant part, provides that: ``The Administrator is authorized 
to prescribe such regulations as are necessary to carry out his 
functions under this chapter.'' Today's final rule is a regulation that 
included EPA review and evaluation of air quality information in 
relation to a standard and that followed the procedural requirements of 
the Administrative Procedure Act, including publication of a proposed 
rule and the consideration of public comments.
    EPA's invocation of section 301(a) is appropriate because the South 
Coast Court required EPA to determine the procedures necessary to 
enforce the contingency measures and section 185 fees requirements, but 
did not specify those procedures. In the words of the South Coast 
court: ``While EPA maintains that it would be impractical to enforce 
[section 185 fees] because EPA will no longer make findings of 
attainment * * *, section 172(e) does not condition its strict distaste 
for backsliding on EPA's determinations of expediency; EPA must 
determine its procedures after it has identified what findings must be 
made under the Act.'' South Coast, 472 F.3d 882, at 903. The court's 
decision in South Coast did not compel EPA to make determinations for 
the one-hour ozone standard under any specific provision of the 
statute, much less CAA sections 179(c) or 181(b)(2). Nor did the 
Court's decision vacate 40 CFR 51.905(e)(2), which relieves EPA of the 
obligation to make determinations under sections 181(b) and section 
179. The South Coast decision simply required EPA to identify the 
procedures to make the findings related to anti-backsliding measures.
    In response, EPA has identified a determination of attainment or 
failure to attain the one-hour ozone standard by the applicable 
attainment date, made through notice and comment rulemaking, as the 
necessary and appropriate procedure to be followed to effectuate the 
specific one-hour ozone anti-backsliding measures of sections 172(c)(9) 
and 185. EPA believes that section 301(a) therefore provides 
appropriate authority for EPA to promulgate the necessary procedures to 
fulfill the objective of ensuring implementation of anti-backsliding 
measures and be consistent with 40 CFR 51.905(e)(2). EPA also believes 
that it would not bring about any different result were EPA instead to 
invoke that portion of section 181(b)(2) that addresses such attainment 
determinations. To this extent, EPA agrees with the suggestion of the 
commenter that it may also rely on authority of section 181(b)(2) as a 
basis for continuing to make determinations for the limited purpose of 
effectuating one-hour ozone contingency measures and section 185 fees. 
After revocation, the other portions of section 181(b)(2) regarding 
consequences of these determinations, including

[[Page 82142]]

reclassifications, are no longer applicable under 40 CFR 51.905(e)(2). 
Conversely, there is no need or justification for reliance on section 
179(c), which has played no role with respect to the one-hour standard 
since revocation of the standard. For the purpose of ensuring the 
contingency measure and fee anti-backsliding measures, it is not 
necessary for EPA to trigger the obsolete planning requirements of 
section 179(d) with which section 179(c) was linked, nor is EPA 
obligated to do so. In these circumstances, section 179 should not be 
used to revive an additional one-hour planning obligation that has not 
been preserved as an anti-backsliding requirement.
    We recognize that, subsequent to revocation of the one-hour ozone 
standard, we have cited section 181(b)(2) as pres