UNITEDSTATESENVIRONMENTALPROTECTIONAGENCY RESEARCHTRIANGLEPARK, NC27711 16:41 '5'919 541 0824 EPA-OZONE-CO



# MAYIO1995 ..... +-+REG IV

OFFICEOf AIRQUALITYPLANNING ANDSTANDARDS**~003/009**



### MEMORANDUM

SUBJECT: Reasonable.Further Progress; and Related Requirements for Meeting the Ozone**Nationa~.,_**... FROM: John S. Seitz, Directo Office ofAir Quality P

TO: Director, Air, Pesticides andToxics Management Division, Regions I and IV Director, Air andWasteManagementDivision, Region II Director, Air, Radiation and Taxies Division, Region III Director, Air and Radiation Division, Region V Director, Air, Pesticides and Toxics Division, Region VI

. . Director, Air and Taxies Division, Regions VII,**VI~I,** IX, and X

I. Policy

This memorandum sets forth EPA's interpretation 9f certain requirements of subpart 2 ofpart 0 oftitle I ofthe Clean**A~r** 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 percentplan and attainment demonstration requirements of section 182(b)(1) for moderate and above ozone nonattainment
areas and the attainment demonstration andpost-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 ofthe severe and extreme ozone nonattainment area requirements of section 182(d)(1)(A) concerning vehicle miles traveled that are related to RFP requirements..'

. 2



# - , For the reasons describedbelow, EPAbelieves that it is reasonable to interpret theseprovisions so as not to require

areas that are meeting the ozone standardto make the SIP submissions to EPAdescribed in the provisions as long as the
areas continue to meet the standard. If such an area were to monitor a vi01ation ofthe standardpriorto being redesignated to attainment, however, the areawouldhave to address the pertinent requirements and submit the SIP revisions described in those provisions to EPA.

This memorandum also describes the process by which EPAwil1 determine that an area is attaining the ozone standard and need not make these SIP submissions.

II. Interpretation and Legal Rationale

The EPAbelieves it is reasonable to interpretprovisions regarding RFP and attainment demonstrations, along with re1ated requirements, so as notto require SIP submissions ifan ozone nonattainment area subject to those requirements is in fact attaining the ozone standard (i.e., attainment ofthe NAAQS is demonstrated with 3 consecutive years ofcomplete, qualityassured air quality monitoring data). The EPAhas previously interpreted the.general provisions ofSUbpart 1 ofpart 0 of title I (sections 171 and 172) so as not to require the submission ofSIP revisions concerning RFP, attainment demonstrations, or contingencymeasures, and EPAbelieves it is appropriate to interpret**1~e** ozone-specific provisions of SUbpart 2 in the same manner. First, with respect 1:'0 RFP, section 171(1) states that, for purposes ofpart Dof title I, RFP "means such annual incremental reductions in emissions oj; the relevant air pollutant as are required by this part ormay reasonably be required by the Administrator for the purpose of ensuring attainment ofthe applicable NAAQS by the applicable date. II 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 percentplan requirement of section 182(b)(1) and the 3 percentper yearrequirement of section 182(c){2»,1 the stated purpose ofRFP is to ensure attainment by the applicable attainment date. If an area has in fact attained the standard, the stated purpose ofthe RFP requirementwill have

lEPA notes that paragraph (1), of subsection 182(b) is entitled "PLAN PROVISIONS FORREASONABLE FURTHER PROGRESSII and that SUbparagraph (B) ofparagraph 182(c)(2) is entitled "REASONABLE FURTHER PROGRESS DEMONSTRATION," thereby making it clear that both the 15 percentplan requirement of section 182(bl(1) and the 3 percent per year requirement of section 182(c)(2) are specific varieties ofRFP requirements.

# ,-Oi)/10/95 16:43 e919 541 0824

3EPA-OZONE-CO -H-> REG IV**~004l009**



# - already been fulfilled and EPAdoes 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)

### (5) and 

### (C).

The EPAnotes-that ittookthis viewwith respectto the ',. general RFP requirement of section 172(c)(2) in the General Preamble for the Interpretation ofTitle I ofthe CleanAirAct 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 ofthe requirements-applicable to the evaluation ofrequests 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 areamust show that the area has already attained. Showingthat the State will make RFP towards attainment will, therefore, have no meaning at thatpoint" (57 FR 13564) .2 Second, withrespect 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 fo):' "such specific annual reductions in emissions • • • as necessary to attain the primary NAAQS by the attainment date applicable under this Aot... Section 182(c)(2)(A) simply requires a "demonstration thatthe plan, as revised, will provide for attainment ofthe ozone NAAQS by the applicable attainment date." As with the RFP requirements, ifan area has in faot monitored attainment ofthe standard, EPAbelieves there is no need for an area to make a further submission conta1ning additional measures to achieve attainment. This is also

- consistentwith the interpretation ofthe section 172(c) requirements provided by EPAin the General Preamble to title I,
as EPA stated there that no othermeasures to provide for attainment would be needed by areas seeking redesignation to attainment since "attainmentwill have been reachedll (57 FR 13564; see also september 4, 1992 calcagni memorandum).

Other SIP submissionrequirements are linked with these attainment demonstration andRFP requirements, and similar reasoning applies to them. The first of these additional

2Se e also IlProcedures for Processing Requests to Redesignate Areas to Attainment," fromJohn 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 standardll) (hereinafter referred to as "September 1992 Calcagni memorandum").Q5/10/95 16:44 5'919 541 0824

4EPA-OZONE-CO O+-H REG IV 

### 141005/009



# f-



# ,- requirements are the contingency measure requirements of section. 172(c)(9) and section 182(c)(9). The EPAhas previously interpreted the contingencymeasure requirement of**sec~ion** . 172(c)(9) as no 10ngerbeing applicable once an area has attained the standard since those "contingencymeasures are directed at ensuring RFP and attainment by the applicable date" (57 FR 13564;
see also September. 4, 1992 Calcagni memorandum).**Simi~arly,** as the section 182(c)(9) contingencymeasures 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(q) requirements concerning milestones that are based on the section 182(b)(1) and 182(c)(2)(B) and (e) submissions; and (3) the elements ofthe section 182(d)(1)(A) requirement for SIP revisions identifying and adopting transportation control strategies to achieve reductions inmotor 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 SUbjectto 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 extepd to requirements of subpart 2 that are not linked by the language of the Act with the attai:rument demonstration and RFP requirements. For example, this interpretation does not apply to requirements such as VOC RACT requirements, for Which, in contrast to NOxRACT requirements under section 182(f), the Act does not establish'a mechanismto grant exemptions if an area has attained the standard, or to the requirements to submit SIP revisions providing for basic or enhanced lIMprograms.
The EPA also emphasizes that the lack of a requirement to submit SIP revisions concerning these RFP, attainment demonstration, and other :t:"elatedrequirements 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**:t:"equirem~nts** 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 EPAUltimately 

## '.

.0-5/10/95 16:45 '6'919 541 0824

5EPA-OZONE-CO -H

.... REG IV I4J006/009

redesignates the area to attainment, then the area will be entirely relieved ofthese requirements to the extent the maintenance plan for the area does not.rely on them.
Also, EPA notes that in the case ofa mUltistate nonattainment area, the entiremultistate nonattainment areamust have monitoring data demonstrating attainment for the SIP submission requirements to be suspended. Thus, the requirements applicable to one part of such an areamay not be suspended on the basis of a determination only that thatpart ofthe nonattainment area is monitoring attainment. The EPA's Regional Offices should coordinate these determinations for any multistate nonattainment**~reas** that involve more than one Region.

III. Process

The EPA Regional Offices will conduct individual rulemakings concerning areas that have 3 consecutive.years ofclean air quality monitoring data demonstrating attainment ofthe ozone standard to make binding determinations thatthe areas have attained the standard and need notmake whichever ofthe SIP revisions discussed above are pertinent. Since EPAhas 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 itbelieves that a certain nonattainment area is eligible for these determinations
on the basis ofmonitored attainmentofthe ozone NAAQS.

As noted above; these determinations would be**conting~nt** on the existence ofmonitoring data for the'areas that continue to demonstrate attainment. IfEPASUbsequently 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 EPAwould notify the State ofthat 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 thepertinent SIP requirements within a reasonable amount of.time, which EPAwould establish 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 CPRpart 58, to verify the attainment status of'the area. The air quality data relied upon for the above determinations must be consistent with 40 CFRpart 58 requirements and otherrelevant EPA guidance and recorded in EPA's Aerometric Information Retrieval System (AIRS).

Determinations made by EPAin accordance with this interpretation.would not shield an area from EPAaction to require emission reductions from sources in the area where there 

## .. .



# ----_.

__..

# ------------

# - 0.5/10/95 16:45 '6'919 541 0824

6EPA-OZONE-CO -H-> REG IV 007/009

is evidence, such as photochemical grid·modeling, showing that emissions from sources in the area contribute significantly to nonattainment in, or interfere withmaintenance by, other nonattainment areas. The EPAhas authority under the Act (section 110(a)(2)(D) in 'the case ofareas in other states and section 110(a)(2)(A) in the case ofintrastate areas) to require emissions reductions if·necessary and appropriate to deal with transport situations.

IV. Consequences for Redesignations. Sanctions. and conformity

Determinations made by EPAthat an areahas attained the NAAQS and need notmake one or more ofthe SIP submissions discussed above is not equivalent to the redesignation ofthe

area to attainment. Atta:Lnment ofthe 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 ofthat section, including the requirement of a demonstration that the improvement in the area's air quality is due to permanent and enfor.ceable reductions, and the requirements that the area have a fUlly-approved SIP whichmeets all of the applicable requirements under section 110 andpart D, and a fUlly-approved maintenance plan.

If an area for Which the determination ofattainment 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**approv~d** since they would no longez' be considered applicable**requiremen~s** under section 107(d)(3)(E). Ifthe 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 would no longer meet the criterion ofhaving attained the standard.

As a consequence of a determination that an area has monitoring data demonstrating attainment ofthe ozone standard, thereby removing, at least temporarily, the pertinent SIP SUbmittal requirements discussed above, any sanction clock that had been started as a consequence ofthe 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 stqrting ofthe clockwould no longer exist.

The issuance ofa determinationpursuant 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 ofthe 

### -. .

# . ;



# . 05/10/95 16:46 U919 541 0824

7EPA-alONE-CO

......... REG IV 

### 141008/009

conformity rule), and the 15 percent SIP ifone has been submitted (and attainment/RFP SIP, if one with a bUdget has been sUbmitted)•
Since areas that are the subject ofdeterminations pursuant to this policy will not be required to submitRFP 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 generallyhave approved bUdgets until a maintenance plan is approved as part ofthe 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. (Amaintenance plan bUdget does not apply for conformity purposes until the maintenance plan has been approved, except as provided by section 51.448(i) ofthe 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, itmay 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. Ifthe submitted SIP is not withdrawn, the budget in that submission will continue to**~pply** for conformity purposes. Ifthe submitted 15 percent or·**~.** 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 planpursuant to section 51.448(i) may continue to do so, ormay 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. Ifthe applicability ofthe 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**de~ermination** 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.LO:47 U919 541 0824

8 EPA-OZONE-CO -+-H REG IV**~009/009**

conformity has lapsed for any otherreason (e.g., fai1ure to redetermine conformity

### by a certain date).

Ifyou have any questions, please feel free to call me or Sally Shaver. The·contactpersons for this po1icy are Car1a Oldham at (919) 541-3347 and Kathryn Sargeant at (313) 668-4441 for transportation conformity requirements.

cc: Rob Brenner A1an Eckert Tom He1ms Phi1 Lorang Rich ossias Margo oge Joe Paisie John seitz Sally Shaver Lydia wegman DickWilson 

## -.

.