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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Rules and Regulations
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same.29 Similarly, while CAA 172c9
establishes the general requirement for nonattainment plans to provide contingency measures that are triggered in the event that the area fails to make RFP or to attain a NAAQS by the applicable attainment date, CAA
182c9 specifies that a Serious area nonattainment plan for an ozone NAAQS must provide for the implementation of contingency measures to address a failure to meet a milestone, which, per the terms of CAA
182g, is the same as failing to make RFP. Likewise, for CO nonattainment areas, section 187a3 of subpart 3
addresses contingency measure provisions based on consistency between previously projected and actual or subsequently projected VMT levels, as well as failure to attain by the required deadline. These pollutantspecific contingency measure provisions are described in the EPAs General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 General Preamble, which explains that the additional contingency measure provisions in subparts 2 and 3
are similar to the general contingency measure requirements at CAA 172c9, except that the focus is on the planning requirements applicable to ozone and CO.30
As CBD notes, CAA 182c9 specifies that plans for ozone nonattainment areas classified as Serious or above must provide for the implementation of contingency measures for failure to meet an ozone RFP milestone, in addition to the contingency provisions required under CAA 172c9. The commenter argues that this language requires states to submit contingency measures specifically allocated to address the section 182c9 RFP milestones, in addition to other separate contingency measures to address the general RFP
and attainment requirements in CAA
172c9. This interpretation is based upon the commenters related interpretation of the subpart 2 RFP
milestones as distinct requirements separate from the general RFP
requirements in subpart 1, reflected in the commenters distinction of attainment RFP and VOC RFP.
These interpretations run counter to the EPAs longstanding approach to the RFP and contingency measure provisions for the ozone NAAQS, and we disagree that the statutory text 29 See CAA 182g1 explaining that an applicable milestone is the emissions reduction required to be achieved by the end of an interval pursuant to the RFP provisions at CAA 182b1
and the corresponding RFP requirements of 182c2B and C for Serious areas.
30 57 FR 13498, 13511 April 16, 1992.

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compels the commenters suggested approach. Contrary to the commenters suggestion, an area that is subject to the subpart 2 RFP milestones is not subject to any separate milestones or requirements for demonstrating ozone RFP under the general RFP provisions in subpart 1. This point is specifically addressed in the General Preamble, which specifies that a state that meets the specific subpart 2 milestones will also satisfy the general RFP
requirements of section 172c2 for the time period discussed. 31 This approach is retained in the implementation rules for the 1997 and 2008 ozone NAAQS, which specify RFP
milestones for ozone nonattainment areas that incorporate both the general RFP requirements in subpart 1 as well as the ozone-specific RFP requirements in subpart 2, depending on the areas classification and whether the area already has an approved 15 percent rateof-progress plan for a prior ozone NAAQS.32
We disagree with the commenter that the subpart 1 and subpart 2 RFP
requirements have distinct purposes that require the EPA to establish separate milestones or requirements for each. Under either subpart, the purpose of RFP is to ensure attainment by the applicable attainment date.33 As described above, the RFP requirements in CAA 182b1 and 182c2B define specific RFP milestones applicable to, respectively, Moderate and above and Serious and above ozone nonattainment areas, for purposes of demonstrating compliance with the general RFP
requirement at CAA 172c2.
Because there are no separate milestones or requirements for demonstrating ozone RFP under the general RFP provisions in subpart 1, and because the purposes of RFP are the same under each subpart, we similarly disagree with the commenter that a state would be required to submit separate contingency measures to address the RFP and milestone requirements of subparts 1 and 2. The commenter asserts that the language in CAA 182c9
stating the requirements for contingency 31 General Preamble, 57 FR 13498, 13510 for CAA 182b1 milestones; id. at 13518 for 182c2B milestones.
32 40 CFR 51.1110; see also 70 FR 71612, 71615
November 29, 2005; 80 FR 12264, 12271 March 6, 2015.
33 See CAA 1711; see also 70 FR 71612, 71648
November 29, 2005 Whether dealing with the general RFP requirement of section 172c2, or the more specific RFP requirements of subpart 2 for classified ozone nonattainment areas i.e., the 15
percent plan requirement of section 182b1 and the 3 percent per year requirement of section 182c2, the purpose of RFP is to ensure attainment by the applicable attainment date..

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measures in Serious and above ozone nonattainment areas are in addition to the contingency provisions required under section 172c9 refers to both the triggers for contingency measures and the contingency measures themselves. In other words, the commenter asserts that the EPA must require the state to submit contingency measures to address RFP failures under subpart 1 and additional contingency measures to address such failures under subpart 2.
As explained above, CAA 182c9
requires state nonattainment plans for Serious and above ozone nonattainment areas to provide for the implementation of contingency measures to be undertaken if an area fails to meet an applicable milestone, i.e., RFP. Because a milestone, as the term is used in CAA section 182g, is applicable only to areas classified as Serious and above, CAA 182c9 represents an additional requirement that states must address in an ozone nonattainment plan submission for these areas. Section 182c9 requires that certain state submissions must provide for the implementation of contingency measures in the event of a failure to meet a milestone; it does not require the state to submit separate and distinct contingency measures allocated exclusively for a failure to meet a milestone. Serious and above areas remain subject to the general contingency measure requirement described at CAA 172c9, including the requirement for contingency measures to take effect in the event of a failure to attain the NAAQS by the applicable attainment date which is not provided for in CAA 182c9, as well as the requirement for contingency measures to address a failure to make RFP i.e., under CAA 182c9, a failure to meet an applicable milestone under CAA 182g. CAA 182c9 therefore applies a more specific requirement in addition to the general requirements at CAA 172c9, by establishing failure to meet a CAA 182g milestone as a specific trigger for contingency measures in Serious and above ozone nonattainment areas.34
This is consistent with the EPAs longstanding interpretation of the contingency measure requirements, as set out in the General Preamble and the 34 As explained above and in the proposed rule, the District and CARB have met this requirement by committing to supplement the contingency measures element by submitting, within one year of our final conditional approval action, a SIP revision that establishes contingency measures that will be triggered if the area fails to meet an RFP milestone for the 2008 ozone NAAQS or fails to reach attainment by the applicable attainment date. See 86 FR 2318, 2320.

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