40 CFR § 1090.290 - Changes to RFG covered areas and procedures for opting out of RFG.

(a) New RFG covered areas.

(1) Effective 1 year after an area has been reclassified as a Severe ozone nonattainment area under 42 U.S.C. 7511(b), such Severe area will become a covered area under the RFG program as required by 42 U.S.C. 7545(k)(10)(D). The geographic extent of each such covered area must be the nonattainment area boundaries as specified in 40 CFR part 81, subpart C, for the ozone NAAQS that was the subject of the reclassification.

(2) Any classified ozone nonattainment area identified in 40 CFR part 81, subpart C, as Marginal, Moderate, Serious, or Severe may be included as a covered area upon the request of the governor of the state in which the area is located. EPA must do all the following:

(i) Publish the governor's request in the Federal Register upon receipt.

(ii) Establish an effective date that is not later than 1 year after the request is received unless EPA determines that there is insufficient capacity to supply RFG as required by 42 U.S.C. 7545(k)(6)(A)(ii).

(3) Any ozone attainment area in the ozone transport region established by 42 U.S.C. 7511c(a) may be included as a covered area upon petition by the governor of the state in which the area is located as required by 42 U.S.C. 7545(k)(6)(B)(i). EPA must do all the following:

(i) Publish the governor's request in the Federal Register as soon as practicable after it is received.

(ii) Establish an effective date that is not later than 180 days after the request is received unless EPA determines that there is insufficient capacity to supply RFG as required by 42 U.S.C. 7545(k)(6)(B)(iii).

(b) Opting out of RFG. Any area that opted into RFG under 42 U.S.C. 7545(k)(6)(A) or (B) and has not subsequently been reclassified as a Severe ozone nonattainment area may opt out of RFG using the opt-out procedure in paragraph (d) of this section.

(c) Eligibility for opting out of RFG. The governor of the state in which a covered area under 42 U.S.C. 7545(k)(10)(D) is located may request that EPA remove the prohibition specified in 42 U.S.C. 7545(k)(5) in such area by following the opt-out procedure specified in paragraph (d) of this section upon one of the following:

(1) Redesignation to attainment for such area for the most stringent ozone NAAQS in effect at the time of redesignation.

(2) Designation as an attainment area for the most stringent ozone NAAQS in effect at the time of the designation. The area must also be redesignated to attainment for the prior ozone NAAQS.

(d) Procedure for opting out of RFG. EPA may approve a request from a state asking for either the removal of an RFG opt-in area (or portion of an RFG opt-in area), or the removal of a covered area (or portion of a covered area) under 42 U.S.C. 7545(k)(10)(D) that meets the criteria in paragraph (c) of this section, from the list of RFG covered areas in § 1090.285 if it meets the requirements of paragraph (d)(1) of this section. If EPA approves such a request, an effective date will be set as specified in paragraph (d)(2) of this section. EPA will notify the state in writing of EPA's action on the request and the effective date of the removal when the request is approved.

(1) An opt-out request must be signed by the governor of a state, or the governor's authorized representative, and must include all the following:

(i) A geographic description of each RFG area (or portion of each RFG area) that is covered by the request.

(ii) A description of all the means in which emissions reductions from RFG are relied upon in any approved SIP or any submitted SIP that has not yet been approved by EPA.

(iii) For an RFG area covered by the request where emissions reductions from RFG are relied upon as specified in paragraph (d)(1)(ii) of this section, the request must include all the following information:

(A) Identify whether the state is withdrawing any submitted SIP that has not yet been approved.

(B)(1) Identify whether the state intends to submit a SIP revision to any approved SIP or any submitted SIP that has not yet been approved, which relies on emissions reductions from RFG, and describe any control measures that the state plans to submit to EPA for approval to replace the emissions reductions from RFG.

(2) A description of the state's plans and schedule for adopting and submitting any revision to any approved SIP or any submitted SIP that has not yet been approved.

(C) If the state is not withdrawing any submitted SIP that has not yet been approved and does not intend to submit a revision to any approved SIP or any submitted SIP that has not yet been approved, describe why no revision is necessary.

(iv) The governor of a state, or the governor's authorized representative, must submit additional information upon request by EPA.

(2)

(i) Except as specified in paragraph (d)(2)(ii) of this section, EPA will set an effective date of the RFG opt-out as requested by the governor, or the governor's authorized representative, but no less than 90 days from EPA's written notification to the state approving the RFG opt-out request.

(ii) Where emissions reductions from RFG are included in an approved SIP or any submitted SIP that has not yet been approved, other than as a contingency measure consisting of a future opt-in to RFG, EPA will set an effective date of the RFG opt-out as requested by the governor, or the governor's authorized representative, but no less than 90 days from the effective date of EPA approval of the SIP revision that removes the emissions reductions from RFG, and, if necessary, provides emissions reductions to make up for those from RFG opt-out.

(iii) Notwithstanding the provisions of paragraphs (d)(2)(i) and (ii) of this section, for an area in the ozone transport region that opted into RFG under 42 U.S.C. 7545(k)(6)(B), EPA will not set the effective date for removal of the area earlier than 4 years after the commencement date of opt-in.

(4) EPA will publish a notice in the Federal Register announcing the approval of an RFG opt-out request and its effective date.

(5) Upon the effective date for the removal of an RFG area (or portion of an RFG area) included in an approved request, such geographic area will no longer be considered an RFG covered area.

(e) Revising list of RFG covered areas. EPA will periodically publish a final rule revising the list of RFG covered areas in § 1090.285.