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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Proposed Rules
for ozone nonattainment areas classified as moderate or higher. Section 182b2
of the CAA sets forth requirements regarding RACT for the ozone NAAQS
for VOC sources. Section 182f subjects major stationary sources of NOX to the same RACT requirements applicable to major stationary sources of VOC.1
Section 184b1B of the CAA
applies the RACT requirements in section 182b2 to nonattainment areas classified as marginal and to attainment areas located within ozone transport regions established pursuant to section 184 of the CAA. Section 184a of the CAA established by law the current Ozone Transport Region OTR
comprised of 12 eastern states, including Pennsylvania. This requirement is referred to as OTR RACT.
As noted previously, a major source is defined based on the sources potential to emit PTE of NOX, VOC, or both pollutants, and the applicable thresholds differ based on the classification of the nonattainment area in which the source is located. See sections 182cf and 302 of the CAA.
Since the 1970s, EPA has consistently defined RACT as the lowest emission limit that a particular source is capable of meeting by the application of the control technology that is reasonably available considering technological and economic feasibility.2
EPA has provided more substantive RACT requirements through implementation rules for each ozone NAAQS as well as through guidance. In 2004 and 2005, EPA promulgated an implementation rule for the 1997 8-hour ozone NAAQS in two phases Phase 1
of the 1997 Ozone Implementation Rule and Phase 2 of the 1997 Ozone Implementation Rule. 69 FR 23951
April 30, 2004 and 70 FR 71612
November 29, 2005, respectively.
Particularly, the Phase 2 Ozone Implementation Rule addressed RACT
statutory requirements under the 1997
8-hour ozone NAAQS. See 70 FR 71652
November 29, 2005.
On March 6, 2015, EPA issued its final rule for implementing the 2008 8hour ozone NAAQS the 2008 Ozone SIP Requirements Rule. 80 FR 12264.
At the same time, EPA revoked the 1997
8-hour ozone NAAQS, effective on April khammond on DSKJM1Z7X2PROD with PROPOSALS

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major source is defined based on the sources potential to emit PTE of NOX or VOC, and the applicable thresholds for RACT differs based on the classification of the nonattainment area in which the source is located. See sections 182cf and 302 of the CAA.
2 See December 9, 1976 memorandum from Roger Strelow, Assistant Administrator for Air and Waste Management, to Regional Administrators, Guidance for Determining Acceptability of SIP
Regulations in Non-Attainment Areas, and also 44
FR 53762 September 17, 1979.

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6, 2015.3 The 2008 Ozone SIP
Requirements Rule provided comprehensive requirements to transition from the revoked 1997 8-hour ozone NAAQS to the 2008 8-hour ozone NAAQS, as codified in 40 CFR part 51, subpart AA, following revocation.
Consistent with previous policy, EPA
determined that areas designated nonattainment for both the 1997 and 2008 8-hour ozone NAAQS at the time of revocation, must retain implementation of certain nonattainment area requirements i.e., anti-backsliding requirements for the 1997 8-hour ozone NAAQS as specified under section 182 of the CAA, including RACT. See 40 CFR 51.1100o. An area remains subject to the anti-backsliding requirements for a revoked NAAQS
until EPA approves a redesignation to attainment for the area for the 2008 8hour ozone NAAQS. There are no effects on applicable requirements for areas within the OTR, as a result of the revocation of the 1997 8-hour ozone NAAQS. Thus, Pennsylvania, as a state within the OTR, remains subject to RACT requirements for both the 1997
8-hour ozone NAAQS and the 2008 8hour ozone NAAQS.
In addressing RACT, the 2008 Ozone SIP Requirements Rule is consistent with existing policy and Phase 2 of the 1997 Ozone Implementation Rule. In the 2008 Ozone SIP Requirements Rule, EPA requires RACT measures to be implemented by January 1, 2017 for areas classified as moderate nonattainment or above and all areas of the OTR. EPA also provided in the 2008
Ozone SIP Requirements Rule that RACT SIPs must contain adopted RACT
regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations stating that there are no sources in the nonattainment area covered by a specific control technique guidelines CTG source category. In the preamble to the 2008 Ozone SIP Requirements Rule, EPA clarified that states must provide notice and opportunity for public comment on their RACT SIP
submissions, even when submitting a certification that the existing provisions remain RACT or a negative declaration.
3 On February 16, 2018, the United States Court of Appeals for the District of Columbia Circuit D.C.
Cir. Court issued an opinion on the 2008 Ozone SIP Requirements Rule. South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138 D.C. Cir. 2018.
The D.C. Cir. Court found certain parts reasonable and denied the petition for appeal on those. In particular, the D.C. Cir. Court upheld the use of NOX averaging to meet RACT requirements for 2008
8-hour ozone NAAQS. However, the Court also found certain other provisions unreasonable. The D.C. Cir. Court vacated the provisions it found unreasonable.

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States must submit appropriate supporting information for their RACT
submissions, in accordance with the Phase 2 of the 1997 Ozone Implementation Rule. Adequate documentation must support that states have considered control technology that is economically and technologically feasible in determining RACT, based on information that is current as of the time of development of the RACT SIP.
In addition, in the 2008 Ozone SIP
Requirements Rule, EPA clarified that states can use weighted average NOX
emissions rates from sources in the nonattainment area for meeting the major NOX RACT requirement under the CAA, as consistent with existing policy.4 EPA also recognized that states may conclude in some cases that sources already addressed by RACT
determinations for the 1979 1-hour and/
or 1997
8-hour ozone NAAQS may not need to implement additional controls to meet the 2008
8-hour ozone NAAQS RACT
requirement. See 80 FR 12278 and 12279 March 6, 2015.
C. Applicability of RACT Requirements in Pennsylvania As indicated earlier, RACT
requirements apply to any ozone nonattainment areas classified as moderate or higher serious, severe or extreme under CAA sections 182b2
and 182f. Pennsylvania has outstanding ozone RACT requirements for both the 1997 and 2008 8-hour ozone NAAQS. The entire Commonwealth of Pennsylvania is part of the OTR
established under section 184 of the CAA and thus is subject statewide to the RACT requirements of CAA sections 182b2 and 182f, pursuant to section 184b.
At the time of revocation of the 1997
8-hour ozone NAAQS effective April 6, 2015, only two moderate nonattainment areas remained in the Commonwealth of Pennsylvania for this standard, the Philadelphia and the Pittsburgh Areas. As required under EPAs anti-backsliding provisions, these 4 EPAs NO RACT guidance Nitrogen Oxides X
Supplement to the General Preamble 57 FR
55620; November 25, 1992 encouraged states to develop RACT programs that are based on area wide average emission rates. Additional guidance on area-wide RACT provisions is provided by EPAs January 2001 economic incentive program guidance titled Improving Air Quality with Economic Incentive Programs, available at https
www.epa.gov/sites/production/files/2015-07/
documents/eipfin.pdf. In addition, as mentioned previously, the D.C. Cir. Court upheld the use of NOX averaging to meet RACT requirements for 2008
8-hour ozone NAAQS. South Coast Air Quality Mgmt. Dist. v. EPA, No. 151115 D.C. Cir. February 16, 2018.

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