draft 7/30/02

f. How will EPA treat attainment dates for the 8-hour ozone standard?

(1) Background

Under subpart 2 of the Clean Air Act, maximum attainment dates are fixed as a function of a nonattainment area's classification under Table 1. The Act provides that attainment dates approved in SIPs must be "as expeditious as practicable but no later than" the dates prescribed in the statute. The dates are calculated as the number of years from enactment of the Clean Air Act (November 15, 1990) for this reason. One might initially believe that the subpart 2 classifications, with their associated attainment dates, should not apply for the 8-hour standard. The Supreme Court, however, rejected such a conclusion, although it noted that these dates "make no sense" for many areas classified post-1997. 121 S.Ct. at 918. As such, where applying the statute as written would produce absurd results, EPA must look to discern Congressional intent. In this case, section 181(b) provides such guidance. Section 181(b)(1) addresses areas that were designated attainment or unclassifiable under the provisions of the 1990 CAA Amendments and that subsequently are redesignated to nonattainment. This section provides that for these areas, "any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time between the date of the enactment of the Clean Air Act Amendments of 1990 and the date the area is classified under this paragraph." Thus, if an area were redesignated to nonattainment for the 1-hour ozone standard in January 2002 and classified as moderate, the area's attainment date would be 6 years following January 2002, i.e., January 2008.

EPA believes that the most reasonable approach for establishing attainment dates for areas classified under subpart 2 for the 8-hour standard would be to run the attainment period from the date the area is originally classified under subpart 2. Similarly, section 172(a)(2) provides for attainment dates to be calculated from the time the area is designated nonattainment.

For areas under subpart 2, the attainment date periods (running from date of designation/classification) under this interpretation are 3-20 years after designation/classification, depending upon the area's classification as follows:

•	marginal – 3 years

•	moderate – 6 years

•	serious – 9 years

•	severe – 15 or 17 years

•	extreme – 20 years (no areas in this category)

Note that the CAA requires each SIP to demonstrate attainment as expeditiously as practicable, regardless of maximum statutory periods.

Subpart 2 provides more time than subpart 1 for the most heavily polluted areas to attain. However, the graduated attainment deadlines in subpart 2 provide EPA with less discretion than subpart 1 to set longer attainment deadlines for less polluted areas even if EPA believes that circumstances warrant such extensions.

EPA realizes that some areas that would be classified marginal or moderate will feel they need more time to attain than the subpart 2 time frames provide, either because of local problems or transport.