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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Rules and Regulations
EPAs implementation rules for the 1997
and 2008 ozone NAAQS. For all of the foregoing reasons, this interpretation is reasonable and appropriate.
We also disagree with the commenters suggestion that the EPA
would be required to re-propose and take comment on our rationale for reconciling the subpart 1 and subpart 2
contingency measures requirements. As described above, our approach in this action reflects the EPAs longstanding interpretation of the statutory requirements as set out in the General Preamble and in the ozone NAAQS
implementation rules, including the implementation rule for the 2008 ozone NAAQS, for which the EPA solicited and received public comment on our proposed approaches to RFP, contingency measures, and other topics.
Comment 2: CBD notes that the milestone provisions at CAA 182g provide an enforceable tracking and triggering mechanism for subpart 2
contingency measures, and asserts that because the EPA has conflated attainment RFP contingency measures and VOC RFP contingency measures, it has not created any separate, enforceable mechanism for tracking and triggering the subpart 1 contingency measures. CBD asserts that the EPA
cannot reasonably approve contingency measures that cannot be triggered, and argues that the EPAs failure to provide an enforceable tracking and triggering mechanism for the subpart 1
contingency measures is an impermissible interpretation of CAA
172c9 because it is unmoored from the purposes and concerns of that part.
CBD asserts that without an enforceable commitment by the state to track and report on annual emission reductions, the EPAs discretionary authorities, such as a SIP call under CAA 110k5, are inadequate to address this failure, and that those authorities do not allow the EPA to trigger the subpart 1
contingency measures by determining that attainment RFP has not been met.
Response to Comment 2: Under CAA
172c9, attainment contingency measures are triggered by the EPAs finding under CAA 181b2 that an area has failed to attain a NAAQS by the applicable attainment date. This finding is based on the design value for the area as of the attainment date, which represents ambient ozone concentration data collected for the area. A finding of failure to attain by the attainment date triggers contingency measures to be implemented in the area, without further action by the state or the EPA.35
Therefore, the enforceable tracking and 35 See
General Preamble, 57 FR 13498, 13512.

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triggering mechanism for attainment contingency measures are the EPAs determinations under CAA 181b2
regarding whether the ozone nonattainment areas are in attainment by their applicable attainment date.
Further, contingency measures are also triggered by an areas failure to reach an RFP milestone, as described by the commenter.
As explained above, the RFP
requirements for the 2008 ozone NAAQS are described in the 2008 ozone SRR 36 and codified at 40 CFR 51.1110.
These requirements incorporate the subpart 1 and subpart 2 RFP
requirements as they apply to nonattainment areas for the 2008 ozone NAAQS, depending on classification and whether the area has an approved 15 percent rate-of-progress plan for the 1-hour or 1997 ozone NAAQS. The percentage reductions described therein represent the applicable subpart 1 and subpart 2 obligations for an area to demonstrate RFP for the 2008 ozone NAAQS,37 and a failure to meet these obligations will trigger RFP contingency measures as described above and in the proposed rule. Accordingly, we disagree with the commenter that there is not an enforceable mechanism for tracking and triggering the RFP contingency measures under subpart 1.
Comment 3: CBD recounts the backgrounds and outcomes of the Bahr decision and the recent Sierra Club decision from the D.C. Circuit Court of Appeals,38 and discusses policy implications of those decisions. CBD
also negatively critiques the LEAN
decision from the Fifth Circuit Court of Appeals,39 which the commenter asserts was in error.
Response to Comment 3: Our proposed rule explains that we have reviewed the contingency measures element of the 2018 Western Nevada County Ozone Plan in light of the Bahr decision which is applicable within the jurisdiction of the Ninth Circuit Court of Appeals. The more recent Sierra Club decision, issued after our proposed rule, is consistent with the Bahr decisions treatment of contingency measures. For the purposes of our review and action 36 80

FR 12264, 12263 March 6, 2015.
General Preamble, 57 FR 13498, 13510 and 13518 explaining that an area that meets the RPF
milestones specified in subpart 2 will also satisfy the general RFP requirements of section 172c2
for the time period discussed..
38 Sierra Club v. EPA, 985 F.3d 1055 D.C. Cir.
2021.
39 Louisiana Environmental Action Network v.
EPA, 382 F.3d 575 5th Cir. 2004 LEAN
upholding contingency measures that were previously required and implemented where they were in excess of the attainment demonstration and RFP SIP.
37 See
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on the 2018 Western Nevada County Ozone Plan, we agree that the Bahr and Sierra Club decisions govern our review of the contingency measures element.
Comment 4: CBD notes that longstanding EPA policy states contingency measures should equal one year of RFP, and states that the EPA is nonetheless proposing to conditionally approve contingency measures that fall far short of this amount, based on surplus emission reductions from already-implemented measures. CBD
asserts that consideration of surplus emissions reductions from alreadyimplemented measures in evaluating the adequacy of contingency measures is functionally no different than simply approving the already-implemented measures as contingency measures, which the commenter says is inconsistent with the Bahr and Sierra Club decisions.
CBD views the EPAs consideration of surplus reductions from alreadyimplemented measures as relying on a factor Congress has not intended the Agency to consider in evaluating the adequacy of contingency measures under CAA section 172c9. According to CBD, the plain language of sections 172c9 and 182c9, as explained by the Bahr and Sierra Club decisions, explicitly limits the factors that the EPA
may consider by prohibiting use of already implemented measures either as de jure or de facto contingency measures. CBD indicates that it disagrees with the EPAs response to recent similar comments that CBD
submitted for our action on the Ventura County 2008 ozone plan.40
Response to Comment 4: Neither the CAA nor the EPAs implementing regulations for the ozone NAAQS
establish a specific amount of emissions reductions that implementation of contingency measures must achieve.
However, consistent with our longstanding guidance, we agree that contingency measures should generally provide for emissions reductions approximately equivalent to one years worth of progress, which, for Serious ozone nonattainment areas such as Western Nevada County, amounts to reductions of 3 percent of the RFP
baseline emissions inventory for the nonattainment area.
As we described in the prior response document referenced in this comment, in recommending that contingency measures typically achieve one years worth of RFP, the EPA considers the overarching purpose of such measures in the context of attainment planning.
The purpose of emissions reductions 40 85

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FR 38081, 38084 June 25, 2020.

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