MEMORANDUM

SUBJECT: Reasonable Further Progress, Attainment Demonstration,

and Related Requirements for Ozone Nonattainment Areas

Meeting the Ozone National Ambient Air Quality Standard

FROM: John S. Seitz, Director

Office of Air Quality Planning and Standards (MD-10)

TO: Director, Air, Pesticides and Toxics 

 Management Division, Regions I and IV

Director, Air and Waste Management Division,

 Region II

Director, Air, Radiation and Toxics Division,

 Region III

Director, Air and Radiation Division,

 Region V

Director, Air, Pesticides and Toxics Division,

 Region VI

Director, Air and Toxics Division,

 Regions VII, VIII, IX, and X

I. Policy

This memorandum sets forth EPA's interpretation of certain

requirements of subpart 2 of part D of title I of the Clean Air

Act as they relate to ozone nonattainment areas that are meeting

the ozone NAAQS. Specifically, it addresses whether such areas

must submit SIP revisions concerning reasonable further progress

and attainment demonstrations. The requirements at issue include

the 15 percent plan and attainment demonstration requirements of

section 182(b)(1) for moderate and above ozone nonattainment

areas and the attainment demonstration and post-1996 RFP

requirements of section 182(c)(2) for serious and above ozone

nonattainment areas. Related requirements include the moderate

ozone nonattainment requirements of section 172(c)(9) concerning

contingency measures, the serious ozone nonattainment area

requirements of section 182(c)(9) concerning contingency

measures, section 182(c)(5) concerning transportation control

measures and section 182(g) concerning milestones. They also

include the elements of the severe and extreme ozone

nonattainment area requirements of section 182(d)(1)(A)
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concerning vehicle miles traveled that are related to RFP

requirements.
3

 EPA notes that paragraph (1) of subsection 182(b) is 1

entitled "PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS" and

that subparagraph (B) of paragraph 182(c)(2) is entitled

"REASONABLE FURTHER PROGRESS DEMONSTRATION," thereby making it

clear that both the 15 percent plan requirement of section

182(b)(1) and the 3 percent per year requirement of section

For the reasons described below, EPA believes that it is

reasonable to interpret these provisions so as not to require

areas that are meeting the ozone standard to make the SIP

submissions to EPA described in the provisions as long as the

areas continue to meet the standard. If such an area were to

monitor a violation of the standard prior to being redesignated

to attainment, however, the area would have to address the

pertinent requirements and submit the SIP revisions described in

those provisions to EPA. 

This memorandum also describes the process by which EPA will

determine that an area is attaining the ozone standard and need

not make these SIP submissions.

II. Interpretation and Legal Rationale

The EPA believes it is reasonable to interpret provisions

regarding RFP and attainment demonstrations, along with related

requirements, so as not to require SIP submissions if an ozone

nonattainment area subject to those requirements is in fact

attaining the ozone standard (i.e., attainment of the NAAQS is

demonstrated with 3 consecutive years of complete, qualityassured air quality monitoring data). The EPA has previously

interpreted the general provisions of subpart 1 of part D of

title I (sections 171 and 172) so as not to require the

submission of SIP revisions concerning RFP, attainment

demonstrations, or contingency measures, and EPA believes it is

appropriate to interpret the ozone-specific provisions of subpart

2 in the same manner.

First, with respect to RFP, section 171(1) states that, for

purposes of part D of title I, RFP "means such annual incremental

reductions in emissions of the relevant air pollutant as are

required by this part or may reasonably be required by the

Administrator for the purpose of ensuring attainment of the

applicable NAAQS by the applicable date." Thus, whether dealing

with the general RFP requirement of section 172(c)(2), or the

more specific RFP requirements of subpart 2 for classified ozone

nonattainment areas (the 15 percent plan requirement of section

182(b)(1) and the 3 percent per year requirement of section

182(c)(2)), the stated purpose of RFP is to ensure attainment by 1
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182(c)(2) are specific varieties of RFP requirements.

 See also "Procedures for Processing Requests to Redesignate 2

Areas to Attainment," from John Calcagni, Director, Air Quality

Management Division, to Regional Air Division Directors,

September 4, 1992, at page 6 (stating that the "requirements for

reasonable further progress . . . will not apply for

redesignations because they only have meaning for areas not

attaining the standard") (hereinafter referred to as "September

1992 Calcagni memorandum").

the applicable attainment date. If an area has in fact attained

the standard, the stated purpose of the RFP requirement will have

already been fulfilled and EPA does not believe that the area

need submit revisions providing for the further emission

reductions described in the RFP provisions of section 182(b)(1)

and 182(c)(2)(B) and (C).

The EPA notes that it took this view with respect to the

general RFP requirement of section 172(c)(2) in the General

Preamble for the Interpretation of Title I of the Clean Air Act

Amendments of 1990 (57 FR 13498 (April 16, 1992)), and it is now

extending that interpretation to the specific provisions of

subpart 2. In the General Preamble, EPA stated, in the context

of a discussion of the requirements applicable to the evaluation

of requests to redesignate nonattainment areas to attainment,

that the "requirements for RFP will not apply in evaluating a

request for redesignation to attainment since, at a minimum, the

air quality data for the area must show that the area has already

attained. Showing that the State will make RFP towards

attainment will, therefore, have no meaning at that point" (57 FR

13564).2

Second, with respect to the attainment demonstration

requirements of section 182(b)(1) and 182(c)(2), an analogous

rationale leads to the same result. Section 182(b)(1) requires

that the plan provide for "such specific annual reductions in

emissions . . . as necessary to attain the primary NAAQS by the

attainment date applicable under this Act." Section 182(c)(2)(A)

simply requires a "demonstration that the plan, as revised, will

provide for attainment of the ozone NAAQS by the applicable

attainment date." As with the RFP requirements, if an area has

in fact monitored attainment of the standard, EPA believes there

is no need for an area to make a further submission containing

additional measures to achieve attainment. This is also

consistent with the interpretation of the section 172(c)

requirements provided by EPA in the General Preamble to title I,

as EPA stated there that no other measures to provide for
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attainment would be needed by areas seeking redesignation to

attainment since "attainment will have been reached" (57 FR

13564; see also September 4, 1992 Calcagni memorandum).

Other SIP submission requirements are linked with these

attainment demonstration and RFP requirements, and similar

reasoning applies to them. The first of these additional

requirements are the contingency measure requirements of section

172(c)(9) and section 182(c)(9). The EPA has previously

interpreted the contingency measure requirement of section

172(c)(9) as no longer being applicable once an area has attained

the standard since those "contingency measures are directed at

ensuring RFP and attainment by the applicable date" (57 FR 13564;

see also September 4, 1992 Calcagni memorandum). Similarly, as

the section 182(c)(9) contingency measures are linked with the

RFP requirements of section 182(b)(1) and 182(c)(2), the

requirement of section 182(c)(9) no longer applies once an area

has attained the standard. 

Other requirements related to the attainment demonstration

and RFP provisions include: (1) the section 182(c)(5)

requirement regarding the submission of a demonstration as to

whether various parameters related to transportation "are

consistent with those used for the area's demonstration of

attainment"; (2) the section 182(g) requirements concerning

milestones that are based on the section 182(b)(1) and

182(c)(2)(B) and (C) submissions; and (3) the elements of the

section 182(d)(1)(A) requirement for SIP revisions identifying

and adopting transportation control strategies to achieve

reductions in motor vehicle emissions that relate to the RFP

requirements of section 182(b)(1)(A) and 182(c)(2)(B). Inasmuch

as each of these requirements is linked with the attainment

demonstration or RFP requirements of section 182(b)(1) or

182(c)(2), if an area is not subject to the requirement to submit

the underlying attainment demonstration or RFP plan, it need not

submit the related SIP revision either.

The EPA emphasizes that this interpretation does not extend

to requirements of subpart 2 that are not linked by the language

of the Act with the attainment demonstration and RFP

requirements. For example, this interpretation does not apply to

requirements such as VOC RACT requirements, for which, in

contrast to NOx RACT requirements under section 182(f), the Act

does not establish a mechanism to grant exemptions if an area has

attained the standard, or to the requirements to submit SIP

revisions providing for basic or enhanced I/M programs. 

The EPA also emphasizes that the lack of a requirement to

submit SIP revisions concerning these RFP, attainment
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demonstration, and other related requirements exists only for as

long as a nonattainment area continues to monitor attainment of

the standard. If such an area experiences a violation of the

NAAQS, the basis for the requirements not being applicable would

no longer exist. Therefore, the area would again be subject to a

requirement to submit the pertinent SIP revision or revisions and

would need to address those requirements. Thus, a determination

that an area need not submit one of the SIP submittals amounts to

no more than a suspension of the requirement for so long as the

area continues to attain the standard. If EPA ultimately

redesignates the area to attainment, then the area will be

entirely relieved of these requirements to the extent the

maintenance plan for the area does not rely on them.

Also, EPA notes that in the case of a multistate

nonattainment area, the entire multistate nonattainment area must

have monitoring data demonstrating attainment for the SIP

submission requirements to be suspended. Thus, the requirements

applicable to one part of such an area may not be suspended on

the basis of a determination only that that part of the

nonattainment area is monitoring attainment. The EPA's Regional

Offices should coordinate these determinations for any multistate

nonattainment areas that involve more than one Region.

III. Process

The EPA Regional Offices will conduct individual rulemakings

concerning areas that have 3 consecutive years of clean air

quality monitoring data demonstrating attainment of the ozone

standard to make binding determinations that the areas have

attained the standard and need not make whichever of the SIP

revisions discussed above are pertinent. Since EPA has the

relevant air quality data in its possession, no submission from a

State would be required to initiate this process. However, a

State would be free to submit a petition to the appropriate EPA

Regional Office to notify the office that it believes that a

certain nonattainment area is eligible for these determinations

on the basis of monitored attainment of the ozone NAAQS.

As noted above, these determinations would be contingent on

the existence of monitoring data for the areas that continue to

demonstrate attainment. If EPA subsequently determines that an

area has violated the standard, the basis for the determination

that the area need not make the pertinent SIP revisions would no

longer exist. The EPA would notify the State of that

determination and would also provide notice to the public in the

Federal Register. Such a determination would mean that the area

would thereafter have to address the pertinent SIP requirements

within a reasonable amount of time, which EPA would establish
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taking into account the individual circumstances surrounding the

particular SIP submissions at issue. 

The State must continue to operate an appropriate air

quality monitoring network, in accordance with 40 CFR part 58, to

verify the attainment status of the area. The air quality data

relied upon for the above determinations must be consistent with

40 CFR part 58 requirements and other relevant EPA guidance and

recorded in EPA's Aerometric Information Retrieval System (AIRS).

Determinations made by EPA in accordance with this

interpretation would not shield an area from EPA action to

require emission reductions from sources in the area where there

is evidence, such as photochemical grid modeling, showing that

emissions from sources in the area contribute significantly to

nonattainment in, or interfere with maintenance by, other

nonattainment areas. The EPA has authority under the Act

(section 110(a)(2)(D) in the case of areas in other States and

section 110(a)(2)(A) in the case of intrastate areas) to require

emissions reductions if necessary and appropriate to deal with

transport situations.

IV. Consequences for Redesignations, Sanctions, and Conformity

Determinations made by EPA that an area has attained the

NAAQS and need not make one or more of the SIP submissions

discussed above is not equivalent to the redesignation of the

area to attainment. Attainment of the standard is only one of

the criteria set forth in section 107(d)(3)(E) that must be

satisfied for an area to be redesignated to attainment. To be

redesignated, the State must submit and receive full approval of

a redesignation request for the area that satisfies all of the

criteria of that section, including the requirement of a

demonstration that the improvement in the area's air quality is

due to permanent and enforceable reductions, and the requirements

that the area have a fully-approved SIP which meets all of the

applicable requirements under section 110 and part D, and a

fully-approved maintenance plan.

If an area for which the determination of attainment is made

has submitted or subsequently submits a redesignation request,

the SIP submissions discussed in this memorandum would not be

required for the area's redesignation request to be approved

since they would no longer be considered applicable requirements

under section 107(d)(3)(E). If the area violates the standard

prior to final action on the redesignation request, however, not

only would the requirements again become applicable, but the

redesignation request could not be approved because the area
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would no longer meet the criterion of having attained the

standard.

As a consequence of a determination that an area has

monitoring data demonstrating attainment of the ozone standard,

thereby removing, at least temporarily, the pertinent SIP

submittal requirements discussed above, any sanction clock that

had been started as a consequence of the failure to make such a

submission, the incompleteness of such a submission, or the

disapproval of such a submission, would be stopped since the

deficiency that had led to the starting of the clock would no

longer exist.

The issuance of a determination pursuant to this policy will

have no immediate impact on the way conformity is demonstrated. 

Areas will continue to demonstrate conformity using the build/nobuild test and less-than-1990 test (section 51.436-51.446 of the

conformity rule), and the 15 percent SIP if one has been

submitted (and attainment/RFP SIP, if one with a budget has been

submitted).

Since areas that are the subject of determinations pursuant

to this policy will not be required to submit RFP or attainment

demonstration SIP's, those areas will not generally be in the

control strategy period for conformity purposes (i.e., have a

control strategy SIP approved and build/no-build test no longer

required) for so long as the area does not violate the standard. 

Those areas will not generally have approved budgets until a

maintenance plan is approved as part of the approval of a

redesignation request, so the build/no-build test and less-than1990 test--in addition to any applicable submitted budgets--will

be required until then. (A maintenance plan budget does not

apply for conformity purposes until the maintenance plan has been

approved, except as provided by section 51.448(i) of the

conformity rule (which applies to areas that are required to

submit a 15 percent SIP but submit a maintenance plan instead).)

 

If an area receiving a determination pursuant to this policy

had previously submitted a 15 percent or attainment SIP, it may

choose to withdraw the submitted SIP through the submission of a

letter from the Governor or his or her designee in order to

eliminate the applicability of its motor vehicle emission budget

for conformity purposes. This is because that area would not be

subject to the 15 percent and attainment demonstration

requirements of section 182(b)(1) for so long as the area

continues to attain the standard. If the submitted SIP is not

withdrawn, the budget in that submission will continue to apply

for conformity purposes. If the submitted 15 percent or
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attainment SIP is withdrawn, only the build/no-build and lessthan-1990 tests would apply until a maintenance plan is approved.

However, areas that are already demonstrating conformity to

a submitted maintenance plan pursuant to section 51.448(i) may

continue to do so, or may elect to withdraw the applicability of

the submitted maintenance plan budget for conformity purposes

until the maintenance plan is approved. The applicability may be

withdrawn through the submission of a letter from the Governor or

his or her designee. If the applicability of the submitted

maintenance plan budget is withdrawn for conformity purposes, the

build/no-build and less-than-1990 tests will apply until the

maintenance plan is approved.

For areas which receive a determination pursuant to this

policy and whose conformity status has lapsed due to a failure to

submit a 15 percent SIP or to the submission of an incomplete 15

percent SIP without a protective finding, the lapse imposed by

section 51.448(b) and (c)(1)(ii) will be removed. However, the

conformity status of the plan and TIP cannot be restored if

conformity has lapsed for any other reason (e.g., failure to

redetermine conformity by a certain date).

If you have any questions, please feel free to call me or

Sally Shaver. The contact persons for this policy are Carla

Oldham at (919) 541-3347 and Kathryn Sargeant at (313) 668-4441

for transportation conformity requirements.

cc: Rob Brenner

Alan Eckert

Tom Helms

Phil Lorang

Rich Ossias

Margo Oge

Joe Paisie

John Seitz

Sally Shaver

Lydia Wegman

Dick Wilson

 

OAQPS/AQSSD/OPSG/COLDHAM/3347/MD-15/lmetcalf/5551/5/5/95