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Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Proposed Rules
a. The Jefferson County SO2
Nonattainment Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA
General SIP requirements. General SIP
elements and requirements are delineated in section 110a2 of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing;
provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;
implementation of a source permit program; provisions for the implementation of part C requirements Prevention of Significant Deterioration PSD and provisions for the implementation of part D requirements New Source Review NSR permit programs; provisions for air pollution modeling; and provisions for public and local agency participation in planning and emissions control rule development.
Section 110a2D requires that SIPs contain certain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, the EPA has required certain States to establish programs to address the interstate transport of air pollutants.
The section 110a2D requirements for a State are not linked with a nonattainment areas designation and classification in that State. The EPA
believes that the requirements linked with a nonattainment areas designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP
submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one area in the State. Thus, the EPA does not believe that the CAAs interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.
In addition, the EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an areas attainment status are applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110
and part D requirements which are linked with an areas designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with the EPAs existing policy on applicability i.e., for redesignations of
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conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements.14
Title I, part D, applicable SIP
requirements. Section 172c of the CAA
sets forth the basic requirements of attainment plans for nonattainment areas that are required to submit them pursuant to section 172b. Subpart 5 of part D, which includes section 191 and 192 of the CAA, establishes requirements for SO2, nitrogen dioxide and lead nonattainment areas. A
thorough discussion of the requirements contained in sections 172c can be found in the General Preamble for Implementation of Title I.15
Section 172 and subpart 5
requirements. Section 172c1 requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and to provide for attainment of the NAAQS. The EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the areas attainment demonstration. Under section 172, States with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements.
The EPAs longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not applicable for purposes of CAA section 107d3Eii and v and therefore need not be approved into the SIP before the EPA
can redesignate the area. In the 1992
General Preamble for Implementation of Title I, the EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard.16 The EPA noted that the requirements for RFP and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements have no meaning for an area that has already attained the standard.17 This 14 See Reading, Pennsylvania, proposed and final rulemakings 61 FR 5317453176, October 10, 1996, 62 FR 24826, May 7, 2008; ClevelandAkron-Loraine, Ohio, final rulemaking 61 FR
20458, May 7, 1996; and Tampa, Florida, final rulemaking at 60 FR 62748, December 7, 1995. See also the discussion on this issue in the Cincinnati, Ohio, redesignation 65 FR 37890, June 19, 2000, and in the Pittsburgh, Pennsylvania, redesignation 66 FR 50399, October 19, 2001.
15 See 57 FR 13498.
16 See 57 FR 13498, 13564.
17 Id.

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interpretation was also set forth in the Calcagni Memo. The EPAs understanding of section 172 also forms the basis of its Clean Data Policy, which was articulated with regard to the 2010
1-hour SO2 NAAQS in the EPAs 2014
SO2 Guidance, and suspends a States obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172c9. Courts have upheld the EPAs interpretation of section 172c1 for reasonably available control measures and control technology as meaning only those controls that advance attainment, which precludes the need to require additional measures where an area is already attaining.18
Therefore, because the Jefferson County SO2 nonattainment area is currently attaining the 2010 1-hour SO2
NAAQS, no additional measures are needed to provide for attainment, and section 172c1 requirements for an attainment demonstration and RACM
are not part of the applicable implementation plan required to have been approved prior to redesignation per CAA section 107d3Eii and v.
The other section 172 requirements that are designed to help an area achieve attainmentthe section 172c2
requirement that nonattainment plans contain provisions promoting reasonable further progress, the requirement to submit the section 172c9 contingency measures, and the section 172c6 requirement for the SIP
to contain control measures necessary to provide for attainment of the NAAQS
are also not required to be approved as part of the applicable implementation plan for purposes of satisfying CAA
section 107d3Eii and v.
Section 172c3 requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. The requirement for an emissions inventory can be satisfied by meeting the inventory requirements of the maintenance plan.19 However, when the State withdrew its attainment plan for the area in March 2018, it did not withdraw the baseline emissions inventory submitted with that plan. On November 23, 2018, the EPA published a notice of proposed rulemaking in the Federal Register proposing to approve that the State met the section 172c3
18 NRDC v. EPA, 571 F.3d 1245, 1252 D.C. Cir.
2009; Sierra Club v. EPA, 294 F.3d 155, 162 D.C.
Cir. 2002; Sierra Club v. EPA, 314 F.3d 735, 744
5th Cir. 2002; Sierra Club v. EPA, 375 F.3d 537
7th Cir. 2004. But see Sierra Club v. EPA, 793 F.3d 656 6th Cir. 2015.
19 Calcagni Memo at 6.

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