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Federal Register / VoL 44, No. 66 / Wednesday, April 4, 1979 I Proposed Rules

ENVIRONMENTAL PROTECTION

ENVIRONMENTAL PROTECTION

AGENCY

[40 CFR Part 52]

State Implementation Plans; GeneralPreamble for Proposed Rulemaking on

Approval of Plan Revisions for

Nonattalnment Areas

AGENCY: Environmental Protection

Agency.

ACTION: General preamble for proposed

rulemaking.

SUMMARY: Provisions of the Clean Air

Act enacted in 1977 require states to

revise their State Implementation Plans

for all areas that have not attained

National Ambient Air Quality

Standards. States are to have sibmitted

the necessary plan revisions to EPA by

January 1, 1979. During the next several

months, EPA will be publishing

proposals inviting public comment on

whether each of the submittals 'should

be approved. This General Preamble

supplements these proposals by

identifying the major considerations that

will guide EPA's evaluation of the

submittals.

COMMENTS: As State plan submittals are

received, EPA Regional Administrators

will publish Federal Register proposals

inviting comment on whether the

submittals should be approved. Even

before the formal EPA proposal is

published, in some instances Regional

Administrators are publishing notices

announcing receipt of SIP submittals,

and availability of the submittals for

public inspection. Each proposal or

other notice inviting comment will state

the address and closing date for.

submittal of comments to the

appropriate EPA Regional Office.

For Further Information Contact the

Appropriate EPA Regional or Headquarters Office

Betsy Home, Air Branch, EPA Region 1; JFK

Federal Building, Boston, Mass. 02203, (617)

223-4448 (Connecticut, Maine,

Massachusetts; New Hampshire, RhodeIsland, Vermont).

William S. Baker, Chief, Air Programs

Branch, EPA Region II, 26 Federal Plaza, New

York, N.Y. 10007, (212) 264-2517 (New York,

New Jersey, Puerto Rico, Virgin Islands).

Howard Heim, Chief, Air Programs Branch,

EPA Region III, Curtis Building, Sixth and

Walnut Streets, Philadelphia, Pa. 19106, (215)

597-8175 (Delawaie, Maryland, Pennsylvania,

Virginia, West Virginia, District of Columbia).

Walter H. Bishop, Air Programs Branch, EPA

Region IV, 345 Courtland Street, N.E.,.

Atlanta, Ga. 30308, (404] 881-3286 (Alabama,

Georgia, Florida, Kentucky, Mississippi,

North Carolina, Tennessee, South Carolina).

Debra Costello, Air Programs Branch, EPA

Region V, 230 South Dearborn Street,

Chicago, IMI. 60604, (312) 353-2205 (Indiana,

Illinois, Michigan, Minnesota, Ohio,

Wisconsin].

Jerry Stubberfield, Chief, SIP Section, Air

Programs Branch, EPA Region VI, 1201 Elm

Street, Dallas, Tex. 75270, (214) 767-2742

(Arkansas, Louisiana, Oklahoma, New

Mexico, Texas).

William Spratlin, Chief, Air Support Branch.

EPA Region VII, 324 East 11th Street, Kansas

City, Mo. 64106, (816) 374-3791 (Nebraska,

Iowa, Kansas, Missouri].

Robert DeSpain, Chief, Air Branch, EPA

-Region VIII, 1860 Lincoln Street, Denver,

Colo. 80295, (303) 837-3471 (Montana, Utah,

North Dakota, South Dakota, Wyoming.

Colorado).

Douglas Grano, Chief, Regulatory Section, Air

Technical Branch, EPA Region IX, 215

Fremont Street, San Francisco, Calif. 94105.

(415) 556-2938 (California, Nevada, Arizona,

Hawaii, American Samoa, Guam, Northern

Mariana Islands).

Clark Gaulding, Chief, Air Programs Branch,

EPA Region X, 1200 Sixth Avenue, Seattle,

Wash. 98101, (206) 442-1230 (Alaska,

Washington, Oregon, Idaho).

G. T.Hehns, Chief, Control Programs

Operations Branch, Control Programs

Development Division, EPA Office of Air

Quality Planning and Standards (MD-15),

Research Triangle Park, North Carolina

27711, (919) 541-5365 or 541-5226

(Headquarters).

SUPPLEMENTARY INFORMATION:

Outline

I.Background

I1. Approval of Individual SIP Elements

A. Basic-Requirements

B. Further Guidance

* 1. Enforceability

2. Stringency

3. Relaxation orRevocation

m. Approval of a Revised SIP as Satisfying

Part D Requirements

A. Basic Requirements

1. Requirements'for All Part D.SIPS

2. Additional Requirements for Ozone or

Carbon Monoxide SIPs with Attainment

Dates After 1982

B. Further Guidance

1. Need for All RACM

2. Schedules

3. Ozone Control Strategy

4. Inspection/Maintenance

5. Transportation Control Measures

6. Ozone Standard

7. Interstate and International Issues

8. Secondary Standards

9. Fugitive Dust

10. Preconstruction Review

a. Basic Statutory Requirements

b. Requirements From the Emission Offset

Interpretative Ruling

c. Geographic Applicability

d. Exempted Types of Sources

e. Banking

f. Prohibition on New Construction

11. Changes in Designation

IV. Approval of revised SIP as Satisfying

Non-Part D Requirements

I. Background

In the 1970 amendments to the Clean

Air Act,' Congress directed EPA to

establish primary National Ambient Air

Quality Standards (NAAQS) to protect

the public health, and secondary'

NAAQS to protect the public welfare,

and directed the states to develop and

adopt State Implementation Plans (SIPs)

to attain and maintain the standards,

EPA was given responsibility for

reviewing SIPs and either approving

them, or disapproving them and

promulgating substitutes.

In 1971 EPA promulgated NAAQS for

sulfur oxides, particulate matter, carbon

monoxide, ozone (originally called

photochemical oxidants], and nitrogen

dioxide.2 SIPs were developed and

placed into effect. To meet statutory

deadlines, the NAAQS were to have

been attained in most regions by 1975,

with some extensions until 1977.

By 1976 it became apparent that,

despite significant progress, SIPs were

inadequate to achieve the NAAQS in

many areas of the country. EPA.

therefore issued numerous calls for

states to revise their SIPs to provide for

attainment. Questions also arose as to

whether, and under what circumstances,

new stationary sources might legally be

permitted to construct in areas where

the NAAQS were not being met. In

response to these questions, EPA

published its Emission Offset

Interpretative Ruling,3 which allowed

new construction in areas where

NAAQS were violated as long as

stringent conditions were met that

would assure further progress toward

attainment of the standards.

In August 1977 Congress amended the

Act to (among other things] establish a

statutory approach to permit growth in

polluted areas, while requiring

attainment of the NAAQS by specific

deadlines. 4 Congress first instructed

'The Clean Air Act, as amended, Is codified at 42

U.S.C. 7401 et seq. 240 CFR Part 50. EPA also promulgated a

hydrocarbons standard "for use as a guide In

devising implementation plans to achieve oxidant

standards." 40 CFR 50.10. On October 5.1070, EPA

published an NAAQS for lead. 40 CFR 50.12, as added 43 FR 45258. However, Part D of the Act

(discussed in the text below) does not require SIP

submittals now due to Implement the lead standard,

The requiremdnts that now govern lead SiPs were promulgated along with the standard. 40 CFR Part

51, as amended 43 FR 46269. 3 Originally promulgated on December 21.1970.

the Ruling was recently revised. 40 CFR Part 51,

Appendix S. as revised 44 FR 3274 (anuary 10,

1979). 4Sections 107(d) and 172 of the Act (42 U.S.C,

7407(d) and 7502); sections 129 (a) and (c) of the

Footnotes continued on next page

2037Z

HeinOnline -- 44 Fed. Reg. 20372 1979
Federal Register / VoL 44, No. 66 / Wednesday. April 4, 1979 / Proposed Rules

each state to list those areas where

NAAQS were still not attained as of

August 7,1977 (nonattainment areas],

and instructed EPA to promulgate the

list with any necessary changes. Each

state then had to submit a SIP revision

by January 1, 1979, providing for

attainment of the NAAQS as ' expeditiously as practicable, and for

primary standards no later.than the end

of 1982 (or the end of 1987 for areas with

particularly difficult ozone or carbon

monoxide problems). Congress also

provided that EPA's Offset Ruling would

govern new source construction until

July 1.1979, after which date proposed

major sources are to be reviewed under

the provisions of a revised SIP that

meets the requirements of Part D.s

A list of nonattainment areas was

promulgated on March 3, 1978, with

some subsequent modification, and for

these areas states are now in the

process of submitting adopted SIP

revisions to EPA for approval.6 During

the next several months, EPA will be

publishing proposals soliciting public

comment on whether each. of the

submittals should be approved. This

General Preamble supplements these

proposals, by identifying the major

considerations that are guiding EPA's

evaluation of the submittals.

The fundmental requirements for

approval of SIPs are set out in Title I of

the Clean Air Act, and in EPA's

regulations at 40 CFR Part 51. On

February 24,1978, the Administrator of

EPA issued a memorandum,

summarizing the elements that an

approved SIP must contain by July 1,

1979, to satisfy the Act's requirements

for nonattainment areas. The Agency

-has also prepared guidance on how to

satisfy these basic requirements, and

clarifying the requirements where

necessary.

7

Footnotes continued from last page 1977 Amendments, Pub. L No. 95-95 (notes under 42

U.S.C. 7502). 1

There are some circumstances under which the

Offset Ruling will still apply. See note 36 below.

6 EPA promulgated intitial designations and

invited public comment. 43 FR 8962 (March 3,,197).

In response to the comment received, EPA modified

the designations in certain areas of the country, and

is in the process of modifying designations in some additional areas. 43 FR 40412 (September 11. 1978) (EPA Regions L IV. VL VIII. X; 43 FR 40502

(September 12.1978) (EPA Region 11); 43 FR 45993

(October 5.1978) (EPA Region V); 44 FR 5119

(January 25.1979) (EPA Region I). 7

Title I of the Act is codified at 42 U.S.C. Chap.

85. Subchap. L The sections most relevant to this

General Preamble. sections 107 through 128 and 171

through 176 of the Act. are codified at sections 7407

through 7428 and 7501 through 7506, respectively, of

42 U.S.C. The Administrator's memorandum on criteria for approval was reproduced in the Federal

Register at 43 FR 21673 (May 19.1978). The guidance

material has been collected together for public

inspection, and a notice of availability was published at 44 FR 8311 (February 9,1979).

The purpose of this General Preamble

is to summarize the principal

requirements, In order to assist the

public in preparing comments oathe

approvability of the submittals.

However, there are additional, more

detailed requirements and explanations

in the statute, regulations, and guidance,

which interested parties may consult in

preparing comments.

For each nonattainment SIP submittal

EPA must make two decisions: whether

each individual element of the submittal

should be approved as a revision to the

SIP; and whether the revised SIP, as a

whole, satisfies the requirements of Part

D of Title I of the Clean Air Act. In

addition, EPA must review the rvvised

SIP as soon as possible to determine

whether it satisfies all other pertinent.

non-Part D requirements of the Act.

II. Approval of Individual SIP Elements

The effect of approving each element

of a submittal as a SIP revision is to add

to or alter the "applicable

implementation plan"--that Is, the

collection of SIP provisions approved or

promulgated by EPA and enforceable

under federal law (see sections 110(d)

and 113(a) of the Act). Even if EPA

accepts the entire SIP submittal, EPA

may find that the overall revised SIP is

inadequate because it did not go far

enough. If a submittal does not

accomplish enough, EPA will ordinarily

approve the submitted SIP elements that

are acceptable, but will disapprove the

SIP in part. to the extent that more

provisions are needed.

A. Basic Requirements The 1977 Amendments to the Act did

not alter the principles governing -

revisions to the applicable

implementation plan. The basic criteria

for approving any individual element of

a submitted plan revision, under section

110(a)(3)(A) of the Act. are that it must-

* Be legally adopted by the state.

" Be adopted after reasonable notice

and public hearing by the state.5

* Be enforceable.

* Not interfere with assuring

attainment and maintenance of the

NAAQS by the required deadline, or

with satisfying the Act's other

requirements.

B. Further Guidance

1. Enforceability. In determining

whether a SIP provision Is enforceable,

emission limitations and other

requirements will be reviewed for

clarity and specificity. Emission

limitations and other controlling terms

ONotice and hearing nra required for all SIP

revisions except non-regulatory redsions that ara so insignificant that they wil not affect the program

for attainment or maintenance of the NAAQS. S&c

40 FR 28M col. 25331 col 2 (July 8. 197).

must be well defined, and must clearly

state which sources and processes are

being regulated, when the required

actions are to be taken and by whom,

and what specifically is to be done. In

addition, the provision must specify any

necessary test method by which

compliance is to be assessed, and. if the

provision requires compliance at a

future date, it must contain an adequate

schedule for compliance.

2. Stringency. It is EPA's policy to

encourage and assist states n adopting

economically efficient pollution control

methods.9 However, the Agency has no

authority under the Act to reject a

requirement adopted by a state because

it is too costly or too stringent.10

("Stringency" refers to both the controls

required and how quickly they must be

implemented.) However, EPA must

reject any individual requirement that

would interfere with attaining and

maintaining the NAAQS by the required

deadline or with achieving the other

requirements of the Act."

3. Relaxation or Revocation. Even

when a new requirement is being added

to a SIP, the existing requirement may

not ordinarily be relaxed or revoked.

The new requirement does not

5For example, EPA encourages atates to corri de

allowir 3 p! to placn lfes control on proeses where the marg n cost of con trol f3 hlh in retu.

for plzacn 3 greater control where cost L3 lov. s" that

the total control catlsfies SIP req urezent. Seenrce

10 below oa alternative e 4 seon reduct

("bubb!-") optfons; Preamble to Emfz;ns OffMet

itepre ativa Rulin 44 Fed, Re-, 3W4. 3276 cal 3 Oaninxay 10 1973k discusson in station IIB. of ti

text 1 below. on Xedfos-AILRAMC 7

0 lThrefom EPA may cat disappove, a

requirement on t' g-ound that It is costly or even economically or tesht.gically infeasi . or t

ground that theo .all plan 13 mare strin3ent than

federal law require. S2 Union Eectric Cempany v. EPA. 427 U.S. Z40.26 (197. Of co-use to the

extent even full effoart to imple-e..it and enfe-ce a measure cannot brin ab ut the emiss!on red.:_toas

called for. EPA may deny credit for thase redactirns

in de=ntratfons ofreasoab!e ufiztir p-ogresa

and attalnncnt or may reject the measure as une Mfoeab!a. For example. a wubmtt ed p ns.a calling for an alteratian of transpacatiaa pattern3 that simply cannat be ach;eved may be denied

Credit or rejected. is For example, a submitted em.-2sa limitation

;auld have to ba rulrated if a ma-e stringent

emisIn limitaton is needed under the Act aad if opp'lication: of" techna." to meet the subm/ttd

omizia.n liminaff .owoon'r , akoofixr, of

tochnnte, to n'eet thA redemi aeia. 8itaioa wora difficulL Likewise. a relatively s!ow s:hsdule

for implementatiola of ins ecton[mantenance, must

be rejected to the extent that a more eqeditiou

schedula 1 requircd un dr the Act (,se s_-ti n I11..4 in tha text below, on I=pectfo&/

Molntonoco). As discussed in sactf.a 111.1 of the

text below, on M-edfo-AlRA1. states often

have flexibility to obtain more cr Ls3 e=i33in

reduction from any one measure, as loagas a group

of mzasurs In the plan 3 adequate. Therefono.

review of an indiidual requirement to determine

whether It will interfere Ath attain.mntof the

NAAQS and other Act requirements must often be

conducted together with review of the entire SIP to

dete.mina whether It I, adequate ovealL.

ZM3

HeinOnline -- 44 Fed. Reg. 20373 1979
Federal Register / Vol. 4, No. 66 [ Wednesday, April 4. 1979 / Proposed Rules

supersede or replace the old

requirement until the source comes into

compliancewith the new requirement

Instead, the existing requirement must

remain an enforceable provision of the

SIP, and'must co-exist with the new

requirement in the applicable

implementation plan. The present

emission control requirement must be

retained because the source must be

prevented from operating without

controls (or with less stringent controls]

while it is moving toward compliance

with (or challenging) the new

requirement. 2

There are some exceptions, however.

A state may submit a relaxation or

revocation of an existing requirement

(or, for an existing requirement

promulgated by EPA, have EPA relax or

revoke it), if the requirement is in one or

more of the following categories:

(a) Any existing requirem'ent that

conflicts with a new, more stringent

requirement, making it highly impratical

for a source to comply with the old

requirement. 3 Any exemption granted

must be drawn as nrarrowly as possible.

(b) Any indirect source review

program revocable under section

110(a)(5)(A)(iii) of the Act, 14 and any

bridge toll requirement revocable under

section h10(c(5)(A] of the Act.

(c) Any existing inspection/

maintenance or transportation control

measure, to the extent the measure is

demonstrated not to be reasonably

available, if the revised SIP satisfies all

Part D requirements (Part D

requirements are discussed in section IM

below).Is

1

2 lfexisting requirements could be relaxed or

superseded, recalcitrant sources could be relieved,

of obligations established under the Act preceding

the 1977 Amendments. However, the 1977

Amendments were intended to provide additional

time for'additional controls to be applied, not to

permit relaxation of existing requirements.

Therefore, failure of a source to meet applicableexisting requirements is subject to approprrate

enforcement action, including assessment of

noncompliance penalties. Furthermore, if there is

any instance of delay or lapse in the applicability or,

enforceability of the new requirements, because of a court order or for any other reason, the existing

requirements will be applicable and enforceable.

13 For example, equipment needed to satisfy

existing requirements may have to be disconnected

before more efficient equipment needed to satisfy

new requirements under the 1977 Amendments- can

be installed. In such a situation, the existing

requirement may be suspended insofar as necessary to permit installation of the more efficient

equipment.

"EPA's interpretation of this provision is

published at 44 FR 5427 (January 26,1979).

1

5 "Inspectiontmaintenance" programs are measures providing for emission-control inspection

and maintenance of motorvehicles. "Transportatiorr

control" measures are measures directed toward

reducing emissions of air pollutants from

transportation sources: Although some early

transportation control plans included various

stationary source control measures (such as vapor

(dy Any new requirement in a 1979 SIP

submittal designed for the 0.08 ozone

level as long as the control measures in

the revised SIP satisfy all requirements

for the 0.12 level (as discussed in section

M.B.6 below, on Ozone Standard).

A relaxation or revocation is also

premissible- if it will not contribute, to

concentrations of pollution where there

is a violation of a NAAQS or of a

Prevention of Significant Air Quality

Deterioration (PSD) increment. 16 Where

recovery from filling-of vehicular tanks or other

storage containers, control of degreasing and

surface coating activities, and others (see. e.g., 3a

Fed. Reg. 3123Z (November 12, 1973)), these

stationary source control measures are not

transportation control measures.

See the discussion in section 1I.B.5 of the text

below, on reasonable availability. To tfie extent

deadlines for compliance are not practicable. they

may be relaxed.The fact that a measure has

actuili been implemented will ordinarily indicate

that the measure is reasonably ivailable and the

deadlines are practicable. As explained in section

IIi.B.4 of the text below (on Inspection/

Maintenance] a revised SIP with an attainment

date after 198Z must meet certain minimum

requirements for inspectionimaintenance.

In 1973 EPA promulgated inspection/maintenance

and transportation control measures for numerous- .areas of the country, including requirements that

states implement the measures. Several states

sought judicial review of EPA's authority to

promulgate these requirements. The courts of

appeals reached inconsistent decisions, and the.

Supreme Court has not resolved the issue.

Pennsylvania v. EPA, 500 F.2d 246, 257, 261 (3d Cir.

1974). Maryland v. EPA, 530 F.2d 215,226-27 (4th

Cir. 1975); Brown v. EPA, 521 F.2d 827. 831 (9th Cir.

1975; District of Columbia v.Train, 521 F.2d 971, 986

(D.C. Cir. 1975]. All except the Pennsylvania case were vacated and remandedsubnam. EPA v. Brown, 431 U.S. 99 (19771. On remand. Brown v.

EPA, 566 F.2d 665 (9th Cir. 1977]; Maryland v. EPA,

Nos. 74-1007 etal. [4th Cir.,'filed October 13,1977];

District of Columbia v. Costle, 567 F.2d 1091 (D.C.

CirF 1977).

Underihe most recent D.C. Circuit decision. EPA must conduct substantial additional rulemaking

proceedings before the regulations will be ready for

further judicial consideration. However, rulemaking

over the pastyear and a half after D.C- Circuit

decision would have distracted the states, EPA, and

interested.members. of the public from devoting

their full efforts and attention to development of the

plan revisions now due, including anynecessary

inspection/maintenance and transportation control

measures. The Agency therefore decided not to

proceed for the time being with the litigation and

related administrative proceedings involving the

1973 regulations.

However, EPA still believes that the Clean Air

Act provides a basis for promulgating enforceable

transportation control measures requiring state

implementation. The Agency has therefore not

altered its enforcement policy for the 1973

regulations that are notsubject tojudicial review.

After the 1979 SIP revisions have been submitted

and evaluated. EPAwill reconsider what further

proceedings. on the 1973 regulations are necessary, if

any.

1

6 PSD increments are the amounts of

deterioration. ofair quality better than the NAAQS

that is permitted under section 163 of the Act (42

U.S.C. 74731 and 40 CFR 51.24, 52.21, as revised 43

FR 26380. 26388 (June 19, 1978].

Under EPA's Alternative Emission Reduction

("Bubble"J proposaL.controls for individual

processes withir a plant may be relaxed if

alternative control requirements are applied so that

relaxation of a requirement is allowed,

but where the deadline for compliance is

not relaxed, the new requirement must

call for compliance no later than the

existing deadline for compliance, so that

there is no gap in enforceability,

Any submitted relaxation or

elimination of an existing requirement

that does not fall within one of these

permissible categories may be

disapproved by EPA. A disapproved

submittal will not affect the federal

enforceability of the existing

requirement in the applicable

implementation plan.

III. Approval of Revised SIP as

Satisfying Part I Requirements

The second major question that EPA

must address is whether the revised

applicable implementation plan satisfies

the requirements of PartD of Title I of

the Act. This is a critical determination

under the Act, because, for

nonattainment areas, there is to be

major source construction under permits

applied for after June 30, 1979, unless

the approved SIP satisfies Part D

requirements. Furthermore, certain

federal highway and air pollution

control program grants are to be

withheld if EPA finds after July 1, 1979

that the SIP submittal does not consider

all Part D requirements or reasonable

efforts toward submitting such a SIP

submittal are not being made."7

A. Basc-Requirements.

The following are, in general terms,

the requirements a plan niust meet to

satisfy Part D. After each item is a

citation to the applicable section of the

Act and the applicable paragraphs of

the Administrator's February 24, 1978

total plant emissions do not increase and other

requirements aremet. See Memorandum from the

Administrator of EPA to Directors of State Air

Programs. on "Implementing The Alternative

Emission Reduction ('Bubble') Approach"

(December2Z. 19781: Proposed Policy Statement on Alternative Emission Reduction Options Within

State Implementation Plans, 44 FR 3740 (anuaryl0, 1979).

"The "requirements of Part D" are the

requirements of sections 110(a](3]D, 10(c)15)(B),

and 171-174 of the Act. (The requirements of

sections 11O(a)(3](DJ and 110(c(5](B] are to be

treated as requirements of Part V, even though these

sections are not physically within Part D of Title I of

the Act.)-Theserestrictions on construction, grants,

and funds where SIPs are inadequate are found In

sections 110(a](2)(), 113(a)(51, and 176(a] of the Act.

Even If the SIP itself is adequate, failure to

implement and carry out the SIP will result In

withholding of new source permits and airpollutlon

control program grants, under sections 173(4),

113(a)(5], and 176(b) of the Act In addition, section

316 of the-Act (42 U.S.C. 7616] provides that the

Administratormay withhold; condition or restrict

sewage treatment plant construction grants If he

determines that the air emissions reasonably

anticipated to result from the growth associated

with the expanded sewage treatment capacity Is not

being adequately anticipated and compensated for

under the SI.

20374

HeinOnline -- 44 Fed. Reg. 20374 1979
Federal Revister I Vol. 44. No. /8 I ednesday. April 4. 1979 1 Proposed Rules207

memorandum on Criteria for Approval

of 1979 SIP Revisions:" s

1. Requirements for All Part D SIPs:

• Demonstrate that both primary and

secondary NAAQS will be attained

within the nonattainment area as

expeditiously as practicable, but for

primary NAAQS no late than the

following final deadlines: (§ 172(a); S 1,

3, 5.)

-For sulfur oxides, particulate

matter, and nitrogen dioxide, December

31, 1982.

.-For ozone or carbon monoxide,

December 31, 1982, except, if the state

demonstrates that attainment by

December 31, 1982 is impossible despite

implementation of all reasonably

available measures, December 31, 1987.

• Require reasonable further progress

in the period before attainment,

including regular, consistent reductions

sufficient to assure attainment by the

required date, (§ 172(b)(3); 6.)

* Provide for implementation of all

reasonably available control measures

(RACM)l as expeditiously as practicable,

insofar as necessary to assure

reasonable further progress and

attainment by the required date. This

includes reasonably available control

technology (RACT) for stationary

sources and reasonably available

transportation control measures.

(§ § 172(b)(2), (8); S 4-5.)

9 Include an accurate, current

inventory of emissions that havre an

impact on the nonattainment area, and

provide for annual updates to indicate

emissions growth and progress in

reducing emissions from existing

sources. (§ 172(b)(4); IS 2, 7-8.)

* Expressly quantify the emissions

growth allowance, if any, that will be

allowed to result from new major

sources or major modifications of

existing sources, which may not be so

large as to jeopardize reasonable further

progress or attainment by the required

date. (§§ 172(b)(3] and (5); 17.)

* Require preconstruction review

permits for new major sources and

major modifications of existing sources,

to be idhued in accordance with section

173 of the-Act. (§ 172(b)(6); 9.)

"See citations innte 7 above. For the items in

subsection I of the text below, the paragraph

numbers refer to paragraphsin'the section of the

Administrator's memorandum entitled "General

Requirements ofa1I 1979 SIP Revisions." For items

"in subsection 2 of the text below, paragraph

numbers refer to paragraphs in the section of the

memorandum entitled "Additional Requirements for

Carbon Monoxide and Oxidant SIP Revisions

which Provide for Attainment of the Primary

Standards Later Than 1982," except that paragraph

numbers identified by the word "Oxidant" refer to

paragraphs in the section of the memorandum

entitled "Carbon Monoxide and Oxidant."

e Include the following additional SIP

elements: (§§ 172(b)(7), (9-10); S[ 4, 10-

11.) 19

-Identification and commitment of

the necessary resources to carry out the

Part D provsions of the plan.

-Evidence of public, local

government, and state legislative

involvement and consultation in

accordance with section 174 of the Act.

-Identification and brief analysis of

the air quality, health, welfare,

economic, energy, and social effects of

the plan provisions chosen and the

alternatives considered, and a summary

of the public comment on the analysis.

-Written evidence that the state and

other governmental bodies have

adopted the necessary requirements in

legally enforceable form.

-Written evidence that the state and

other governmental bodies are

committed to implement and enforce the

appropriate elements of the SIP.

2. Additional Requirements for Ozone

or Carbon Monoxide SIPs with

Attainment Dates After 1982:

e Include an adequate on-going

vehicle emission control inspection/

maintenance program, or establish a

specific schedule endorsed by and

committed to by the governor (or the

chief executive of the local or regional

governmental unit, if it is responsible for

implementation) for the development

adoption, and implementation of such a

program as expeditiously as practicable.

(§ 172(b](11)[B); 1 2.)

e Present a program for selecting a

package of transportation control

measures (and any other necessary

measures) to attain the emission

reductions target ascribed in the SIP to

the package, including adopted

schedules for expeditious

implementation of currently planned

"These SP elements are required for all SIP

provisions needed to satisfy Part D. except for

provisions that were approved or promulgated. and

implemented, prior to enactment of the 17

Amendments (August 7.1977. The elements

required by section 110(a)(21(F][W (that I.

assurances of adequate personnel funding and

authority) are needed for all SIP provisions.

Under sections 17Z(b)(10) and 174 of the Act. the

SIP may provide that local governmments or regional

agencies, rather than the state itselL Is responsible

for implementing and enforcing particular plan

provisions. Where this is done, (1) the plan

provisions mut still be adopted by the state and

submitted to EPA by the Governor. (2) the state

must evidence Its determination that the local or

regional body has legal authority to implement the

provision, and (3) the local or regional body must

evidence its commitment of necessary resources,

adoption of enforceable requirements, and

commitment to implement and enforce the plan

elements. For some elements, such as inspection/

maintenance provisions. Item (3) will also require a

certification by the local or regional body that it has

adopted necessary ordinances or other legislative

authorization. See the last paragraph of note 27

below, on nspection/maintenance.

reasonable transportation control

measures, and schedules for analysis

and adoption of additional

transportation control (and other

necessary) measures. (§§ 110(a)(3](D,

172(b)(2] & (11)(C); Oxidant I 1-5.)

9 Include a commitment to establish,

expand, or improve public

transportation measures to meet basic

transportation needs as expeditiously as

practicable, including a commitment to

use necessary federal grants and state

and local funds. (§§ 110(a]3](D),

* Establish a program that requires,

before issuance of a preconstruction

review permit, an analysis of alternative

sites and other factors which

demonstrates that the benefits of the

proposed source significantly outweigh

any environmental and social costs.

(§ 172[b]1l])(A); .]

B. Further Guidance.

1. NeedforAIRACM. Part D requires

the SIP to provide for that level of

control necessary to assurelattainment

of the standards as expeditiously as

practicable, andno later than the

specified deadlines, andreasonable

further progress in the interim. It does

not require that all sources apply RACM

if less than all RACM will suffice for

reasonable further progress and

attainment. Therefore, if a state adopts

less than all RACM and demonstrates

(a) that reasonable further progress and

attainment of the NAAQS are assured.

and (b) that application of all RACM

would not result in attainment any

faster, then a plan with less than all

RACM may be approved. An exception

is that most ozone SIPs must include, as

a minimum, RACT requirements for

certain stationary sources (discussed in

subsection 3 below, on Ozone Control

Strategy).

2. Schedules. Ordinarily all necessary

measures must be adopted in legally

enforceable form. However, for certain

classes of measures, EPA interprets the

Act to allow approval of plans

containing schedules for expeditious

development, adoption, submittal, and.

implementation of these measures.

Schedules may be used for the

following: (a) Measures to control

particulate matter sources that EPA has

not traditionally treated as causes of

NAAQS violations ("nontraditional"

sources-for example, sources of urban

fugitive dust, resuspendedroad dust,

and dust from construction, as

distinguished from fugitive and stack

process emissions from stationary

sources]; (b) RACT requirements for

stationary volatile organic compound

(VOC) sources for -which EPA has not

issued a Control Techniques Guideline

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by January 1978; (c) inspection]

maintenance programs; and (d)

transportation 'control measures.

Schedules must provide for • implementation of measures quickly

enough to assure that the SIP will

provide for reasonable further progress

and attainment by the required date.

Schedules for control-of stationary VOC

sources and for inspection/maintenance

programs also must meet, at a minimum,

the deadlines and other specific

requirements for these kinds of

measures established in EPA guidance, which.are summarized below (in

subsections 3 and 4, on Ozone Control

Strategy and-Inspection/Maintenance).

For controls of nontraditional

particulate matter sources and for

transportation controls, where analysis,

selection, and adoption cannot be

completed in time to be approved by

July 1, 1979, schedules may provide for

expeditious completion of analysis,

selection, and adoption. By the

applicable deadline in the schedule, the

state must idopt the necessary

measures in legally enforeceable form,

along with any necessary additional

schedules for expeditious

implementation of the measures.

Each schedule must contain key milestones to be used for evaluating

progress in completing the scheduled

tasks, including as precise a description

as possible of what must be' -

accomplished by each key milestone. In

order to contribute to the demonstration

of reasonable further progress and

attainment, each schedule must include

a target of how much emission reduction

will result, and when, from each

,)measure or group of related measures.

Each schedule must be adopted as

part of the SIP, and each state or other

governmental body responsible for

implementation must be committed to

meet the key milestones.20 The state and

other'governmental bodies must -

2Failure to meet a key milestone to which the

state or other governmental body is committed may

be treated as a failure to "implement!' and "carry

out" the SIP under sections'173(4), 176(b), and

316(bj(2) of the 'Act, and under some circumstances

may be treated as a "violation" of a requirement of

the SIP under section -113(a)(1). Furthermore, certain

milestones In each schedule will be deadlines for

submitting additional necessary elements of the SIP,

such as certification of adequate legal authority,

evidence that the necessary requirements have been,

adopted In legally enforceable form. or evidence

that the state or local government is committad.to

Implement and enforce the appropriate plan

elements. Regardless of whether the'state or other

governmental body is committed to mreting these

milestones for submitting additional elements, - failure to meet them may render the SIP no longer

adequate to satisfy the requirements of Part D under.

section 110(aj(2J(l of the Act, and in'some.

circumstances may be treated as h failure to submit

a plan that considers an element required by Part D under section 176[a) of the Act.

therefore be committed to analyze,

select, adopt, and implement measures'

necessary to achieve the emission

reductions ascribed to the schedules. - There is a partial exception for ozone

and carbon monoxide measures that are

not reasonably available for

implementation before -the end of 1982:

The tafe and other governmental

bodies must be committed to meeting

the key milestones for 'analyzing and

selecting such measures for the post1982 period, but need not submit the'

adopted enforceable measures, and

schedules and commitments to

implement them, until, at the.latest, July

-1, 1982.21

" 3. Ozone Control Strategy. Although

an ozone SIP must assure reasonable

further progress and attainment in all

nonattainment areas, the SIP need not

include a specific demonstration of

reasonable further progress and

attainment in rural areas. (A designated

nonattainment area may consist of one

or more "urbanized areas" surrounded

by "rural areas.") 2 Such a

demonstration in all urbanized areas,

along with atleast the minimum

stationary-source requirements

described below, should assure

reasonable further progress and

attainment in the rural areas by

minimizing the pollutants transported

from urbanized to rural areas.

Because it is often difficult to develop

precise ozone control strategies, and

because sections 172(a)(2) and (b)(3)

require minimum levels of control -

21 Section 172(c) of the Act establishes a July 1,

.1982 deadline for the SIP to contain all enforeceable measures necessary for attainment-by the end of

.1987. The July 1. "1982 deadline applies only to measures not reasonably available earlier. The

state may not delay adoption and implementation of measures that are reasonably available earlier on account of section 172(c). See Clean Air

-Amendments of 1977, Conference Report to

accompany H.R. 6161, H.R. Rep. No. 95-564,95th

Cong, 1st Sess. i57 (August 3, 1977).

2For purposes of ozone plan development.

"urbanized area" means a central city and

* surrounding closely settled areas with population of

200,00 or more, according to the 1970 Census, plus

any adjacent fringe areas of development. Any

other area Is a 'rural area."

Since reasonable further progress and attainment

need not be demonstrated in a rural area, ozone SIPs that satisfy all Part D requirements under EPA

guidance for a ruil area and for the urbanized areas that cause the nonattanment problem in the

'rural area will provide an inherent emissions

growth allowance for new major'sources in the rural area. This means that a permit may be Issued for

major sources of VOC in such rural areas, under

section 173 of the Act, without a specific

demonstration that the new-emissions will be

accommodated under section 173(l) (See discussion

in subsection 10.a'below. on Preconstruction

Revleiv. If extensive growth changes the

demographic character of an area from rural to .urbanized, a demonstration of reasonable further

progress and attainment may then be called for in

the newly urbanized area.

technology, the minimum acceptable

level of stationary source control for

ozone SIPs is the following: Ozone SIPs

being revised now must include adopted

RACT requirements for VOC sources

covered by Control Techniques

Guidelines (CTGs) that EPA issued by

January 1978, and schedules to adopt

and submit by each future January

,additional requirements for the sources

covered by CTGs issued by the previous

January. For SIPs with attainment dates

after 1982, these RACT requirements

must apply in urbanized areas to all

sources covered by each CTG, and In

rural areas to all "major" sources (that'

is, over 100 tons/year potential

emissions) " covered by each CTG.

(Such SIPs must also provide for the

control of additional sources where

necessary to achieve reasonable further

,progress, as discussed below,) For SIPs

with attainment dates before the end of

1982 that do not use photochemical

dispersion modeling, these RACT

requirements must apply to all major

sources covered by each CTG, and in

urbanized areas to enough additional

sources covered by each CTG to provide

for reasonable further progress and -

attainment as expeditiously as

practicable. In SIPs with attainment

dates before the end of 1982 that do use

photochemical dispersion modeling,

these RACT requirements must apply to

enough sources covered by each GTG to

provide for reasonable further progress

and attainment as expeditiously as

practicable., 4

""Potential" to emit means the maximum

capacity to emit a pollutant absent air pollution

control equipment. See sections II.A.1 through 5 of

the Offset Ruling, note 3 above. 1

4

The above sets forth the minimum level of

stationary source control that must be Included not

only in the SIP, but also In the demonstration that

attainment is impossible by the end of 19OZ despite

Implementation of all reasonably available

measures, which Is necessary under section

172(a)(2) to qualify for an attainment dait after the

end of 1982.

Linear rollback techniques for determining

needed emission reductions are acceptable for use in 1979 SIP submittals. Plans with attainment dates

after 1982, however, must be revised by July 1, 1982

to use more rigorous techniques.

'That is, the SIP must do the following to the

extent necessary to achieve straight.line reductions

at the end of 1982: (1) Include al RACT, Includlng

RACT for source categories In addition to those that

will be covered by EPA's CTG series, and, for source categories that will be covered by CTCs.

adopt RACT requirements sooner than would be

required by EPA's CTG program described In the

text above; (2) provide for especially expeditious

and ambitious reasonably available transportation

control measures: and (3) permit new major sources and major modifications only with case-by-case

offsetting emission reductions (see discussion on Preconstruclion Review In subsection 10 below of

the text). As a practical matter, a SIP that requires

application of all RACT and Includes no emissions

growth allowance for new major sources should assure straight-line reductions at the end of 1552 for

even the most seriously polluted area.

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An ozone plan with an attainment

date after 1982 will satisfy the

requirement for reasonable further

progress if the SIP requires at least (1) "straight-line reductions" at the end of

1982, or (2) reductions that reflect

application of all RACM as

expeditiously as practicable through the

end of 1982 with no emissions growth

allowance for new major sources.

"Straight-line reductions" mean

reductions atthe end of 1982 at least as

great as if equal annual reductions were

required b6tween 1979 and the

attainment date, which can be

represented graphically by a straight

line. Until the end of 1982, allowable

emissions may remain above the

straight line to accommodate the time

required for compliance.

4. Inspection/Maintenance. An

acceptable inspection/maintenance

program or schedule is required in

urbanized areas for every ozone or

carbon monoxide SIP with an

attainment date after 1982.26 In addition,

for SIPs with attainment dates by the

end of 1982, states may find that

inspectionlmaintenance is helpful to assure reasonable further progress and

attainment by the required date, or even.

to provide an emissions growth

allowance for new major sources. For

urbanized areas with attainment dates

after 1982, the SIP must contain a

commitment of the state, local

government, or regional agency to

implement the program as expeditiously

as practicable. EPA has determined that

the final deadline for submitting

assurances of adequate legal authority

to carry out theprogram is June 30, 1979,

2That is, the SIP must do the following to the

extent necessary toachieve straight-line reductions

at the end of 1982: (1) Include al RACT including

RACT for source categories in addition to those that

will be covered-by EPA's CTG series, and, for source categories that willbe covered by CTGs.

adopt RAC requirements sooner than would be

required by EPA's CTG program described in the

text above; (2] provide for especially expeditious

and ambitious reasonably available transportation

control measures; and (3] permit new major sources and major modifications only with case-by-case

offsetting emission reductions (see discussion on Preconstruction Review in subsection 10 below of

the text). As a practical matter, a SIP that requires

application of all PACT and includes no emissions

growth allowance for new major ources should assure straight-line reductions at the end of 1982 for even the most seriously polluted area. 21"Urbanized area" is defined in note 22 above.

Statewide programs are encouraged, especially for

states that are smalland highly urbanized. EPA will

review the need for inspection/maintenance in non- urbanized areas after the 1979 SIP revisions are submitted andwill consider additional requirements

at that time. For some carbon monoxide SIPs.

regardless ofwhether attainment will be after 1982,

inspection/maintenance for non/urbanized areas may now-be necessary to demonstrate reasonable

further progress and attainment.

with limited exceptions." Final

implementation of the program

(including adoption and submission to

EPA of all necessary requirements for

mandatory inspection and repair of

failed vehicles) must be scheduled for

no later than the end of 1982 for a

centralized program, or the end of 1981

for a decentralized program. " Failure to

submit by the required deadlines the

legal authority and all regulatory

requirements necessary for mandatory

inspection and mandatory repair of

-rLimlted exceptions to the June 30.197 deadline

for supplying certification of adequate leg3l

authority may be possible if the state (or other

governmental body) can demonstrate that the

legislature has had no opportunity to consider any

necessary enabling legislation between enactment

of the 1977 Amendments (August 7,1977) and June

30.1979. Extension beyond June 30.1979 Is an exceptional remedy, and EPA will grant no extension if the legislature has had an opportunity

to consider enabling legislation but has not given

such legislation serious consideration. (EPA had

also contemplated extensions for situations where

there had been insufficient opportunity to conduct

necessary technical analyses; however, as far as EPA is aware, the needed information is now available.] Inno case may the assurances of

adequate legal authority be supplied later than July

1. 1980. Where legislative action will occur after the

SIP has been upproved. submittal of assurances of

adquate legal authority must be Included as a key

milestone in the schedule for mplementation of the

program.

Legal authority by the required deadline Is

necessary to satisfy the requirements of sections

=2(b)[7) and (10) of the Act, which call for evidence

that the state or other governmental body has

legally adopted the necessary requirements and

schedules and timetables for compliance, Is

committed to implement and enforce the elements

of the SIP, and has committed the necessary resources to carry out the SIP. If legal authority Is

provided but is later withdrawn or found to be

inadequate to authorize Implementation of the

required program, the SIP will then no longer satisfy

the requirements of section 172(b]1) and 110).

See note 19 above. on commitments by

governmental bodies other than the state. Where a local or regional body will Implement the program

the deadline for certification that such a body has

necessary legal authority is the same as for a state-that is, June 30.1979. with limited exceptions. !A "centralized" program is one where

inspection testing Is conducted at facilities owned

and operated by a state, local, or regional

governmental agency, or a contractor working for

the agency. A "decentralized" program is one where

testing Is conducted at private garaocs licrnsed to

conduct the tests by the state. local, or regional

agency. The deadlines for Implementation apply

regardless of when authorizing legislation is

obtained. The Administrator's memorandum on criteria for approval (note 7 above) had provided

that the deadline for Implementation would be

earlier for areas that obtain legislation earlier.

However. the Agency has modified this policy. EPA

believes that the uniform deadlines stated in the

text, for obtaining legislative authority and for

implementing the necessary programs, will foster

equity among states and coordination In

administering programs In Interstate metropolitan

areas, and that compliance with the deadlines'wiill

constitute Implementation of the programs as expeditiously as practicable. See also note 21

above, explaining that the July 1.1982 deadline

under section 172[c) of the Act is Irrelevant to

Inspection/maintenance legislation, which is now reasonably available.

failed vehicles will make the SIP no

longer adequate to satisfy the

requirements of Part D.

5. Transportation Control Measures.

For urbanized areas, each SIP with an

attainment date after 1982 must contain

schedules for implementation of

currently planned reasonably available

transportation control measures, and

schedules for analysis, selection and

adoption of additional transportation

control measures, sufficient to achieve

the emission reductions target ascribed

to transportation control in the

demonstration of reasonable further

progress and attainment As noted

above, by the applicable deadlines in

the schedules, the state must adopt the

necessary measures, along with any

necessary additional schedules and

commitments for expeditious

impleipentation of the measures. It is

EPA's policy that each area will be

required to schedule a representative

selection of reasonable transportation

control measures for implementation at

least on a pilot or demonstration basis

before the end of 1980.

The determination of what

transportation control measures are

reasonably available must be made on a

case-by-case basis. The measures listed

in section 108(f)(1)(A) of the Act are

presumed to be reasonably available- If

a state or local government believes that

in its particular situation any of the

measures listed (except inspection/

maintenance) is not feasonably

available, the burden is on the state or

local government to demonstrate the

unavailability of the measure, based on

the local situation. A demonstration that

a measure is not reasonably available

must be based on substantial

widespread and long-term adverse

impact that would result from the

measure, and on the time needed to

analyze, develop and implement the

measure. These factors bear both on

whether a measure is reasonable and on

whether a schedule calls for

implementation as expeditiously as

practicable.

6. Ozone Standard. EPA recently

changed the required level under the

primary and secondary NAAQS for

ozone from 0.08 to 0.12 parts per million

(and changed the designation of the

NAAQS from "photochemical oxidants"

to "ozone").2A SIP is now acceptable if

it meets all Part D requirements for the

NAAQS at a level of 0.12 or below. A

state may, if it wishes, relax new

requirements in a 1979 SIP submittal

designed for a level below 012, so long

in40 CFR 50.9. as revised 44 FR 8220 (February 8,

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as the revised SIP meets all -

requirements for the 0.12 level.

Being a relaxation, the revision to the

ozone standard does not affect the

schedule for submittal of SIP revisions

required under Part D. Section 110(a](1)

of the Act requires that SIP revisions be -

submitted within 9 months after a

standard is revised. This refers only to

SIP revisions legally required because of

the revision to the standard. However,

where a standard is relaxed; no SIP

revisior is required by law, since states

may have more stringent controls than

necessary if they choose.30 tis optional

with the state whether-to relax new

requirements back to the 0.12 level, and'

the state may therefore determine its

own schedule for accomplishing this.

The relaxation of the ozone NAAQS

may alw some areas now designated

nonattainment to have their

designations changed" under.section

107(d)(5) of the Act. In order to clear up

any questions about what is a'

nonattainment area beforeffhe July 1,

1979 deadline for having approved Part

D SIPs,31 states are urged to promptly

submit lists of areas that may be'

redesignated, along with supporting

documentation. EPA will then

promulgate the revised lists as soon as

possible, with any necessary

modifications.

7. Interstate and International Issues.

Pollutants entering a state from sources'

in neighboring statqs, countries, or

bodies of water, and coptributing-to the

violation of a NAAQS in.a 

nonattainment area, must be included in

the demonstration of reasonable 'further

progress and attainment. For purposes - of SIP development (although not for

purposes of making nonattainment

designations under section 107(d) of the

Act), states may assume that the

NAAQS will be attained by the'

appropriate deadlines under the Act in

neighboring states, countries, and bodies

of water, and that all SIP requirements

in neighboring states will be met. For

interstate (and intrastate) urbanized

areas that are nonattainment for ozone,

the highest pollutant concentration for

fhe entire area must be used in

3OAn adequate SIP designed for an ozone level

below 0.12 will be at least stringent enough to

satisfy requirements for the 0.12 level, as required

by July 1.1979. . ='The revised standard Is immediately effective

for determining whether a proposed-new source would cause or contribute to a violation of the

standard, for purposes of preconstruction review,

regardless of the designations. However, the

requirement to have a revised SIP that satisfies Part D remains In effect for all nonattainment areas until

EPA promulgates a different designation. See the

discussion In subsbction 11 of the text below, on Changea in Designation.

determining the'necessary level of

control.

8. Secondary Standards. Particulate

matter and sulfur oxides are the only

pollutants for which secondary NAAQS

are more stringent than primary

NAAQS. These secondary standardsmust be attained as expeditiously as

practicable, but no later than the end of

1982 where application of all RAQT by

the end of 1982 will result in

attainment.32 Where application of all

RACT will not be sufficient, or where

the state shows that good cause exists

for postponing its application, then an

attainment date later than 1982 may be

provided forin the SIP. This date must,

'be as expeditious as practicable

considering the amount of emission

reductions needed and the problems.

involved in obtaining them.

The January 1, 1979 deadline for

deadline for submittal of the SIP

revision and the July 1, 1979 deadline for

its approval may be extended up to 18-

months for a secondary NAAQS.re The

state must request an extension, and

include a showing that attainment will

require emission reductions greater than

those that would result from application

of all RACT.

9. Fugitive'Dust. "Rural areas" (as

defined according to EPA's Fugitive

Dust Policy)3 4 experiencing particulate

matter violations that can be attributed

to fugitive dust (that is, native airborne

soil uncontaminated by man-made

sources) can under certain cor'ditions be

designated as attaining the NAAQS.

Areas so designated do not need SIPs

that satisfy the requirements of Part D.

Non-rural areas that experience

particulate matter violations, even if

attributed to airborne soil, must be

designated as non-attainment and must

have SIPs that satisfy the requirements

of Part D. "Rural"areas are defined for

these purposes as those that have (1) a

lack of major industrial development or

the absence of significant industrial

particulate emissions, and (2) low

urbanized population. All other areas

are "non-rural" areas.

Where fugitive dust in non-rural areas

causes or contributes to particulate

matter violations SIPs must include

sufficient controls to demonstrate

reasonable further progress and

-See 40 CFR 51.13(b).

' .See section 110(b) of the Act; 40 CFR 151.31. 34 See memorandum from Edward F. Tuerk EPA

acting Assistant Administrator for Air & Waste

Management, to EPA Regional Administrators, on "Guidance on SIP Development and New Source

Review in Areas Impacted by Fugitive Dust"

(August 16,1977). and the attachment entitled

Fugitive Dust Policy SIP's andNew Source Review

(August 1, 1977); Preamble to initial designations of

attainment status, 43 FR 8963 col. 1, (March 3, 1978);

section ILA.8 of the Offset Ruling, note 3 above.

attainment of the standard by the

required date. SIPs for non-rural urban

areas must contain adopted RACT

requirements for traditional sources and

either adopted requirements or

schedules for study and subsequent

adoption of requirements for - nontraditional sources. (See subsection

2 above, on Schedulee.) Controls of

fugitive dust sources in non-rural areas

must be included, if controls to be

applied to other sources are not

sufficient to demonstrate reasonable

further progress and attainment.

10. Preconstruction Review.

a. Basic Statutory Requirements. To

satisfy the-requirements of Part D,3 a

preconstruction review program must

assure that permits for proposed major

sources and major modifications may be

issued only if the following conditions of

sections 172(b)(1)[A) and 173 of the Act

are satisfiedi. Requirements for all Part D SIPs:

* The proposed major source or

major modification is accommodated by

one or both of the following approaches:

(A) There are sufficient case-by-case

offsetting emission reductions (offsets)

and other emission reductIons'required

under the SIP, so that allowable

emissions from all sources when the

proposed major source or major

modification is to commence operation

representseasonable further progress, or

(B) Emissions resulting from the

proposed major source or major

modification are accommodated by the

emissions growth allowance for major

new sources.

* Any emission reductions required

under paragraph (A) must be legally

binding and enforceable before the

permit may be issued. (§ 173{1) and the

sentence of § 173 after subsection (4).)

* The proposed major source or

major modification must comply with

the lowest achievable emission rate

(LAER), as that term is defined In

section 171(3) of the Act. (§ 173(2).)

o All major sources in the state

owned or operated by the owner or

operator of the proposed major source

or major modification must be in

compliance (or on a ichedule for

compliance) with the Act. (§ 173(3).)

ii. Additional requirements for ozone

and carbon monoxide SIPs with

attainment dates after 1982:

* An analysis must have been

conducted of alternative sites, sizes,

production processes, and

environmental control techniques for the

proposed major source or major

-'There are several other preconstruction review

requirements under the Act that are not PartD

requirements. E.g., section 110(a)(2J(D) of the Act

and section I.B of the Offset Ruling, note 3 above.

L I

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modification which demonstrates that

benefits significantly outweigh any

environmental and social costs.

(§ 172(b)(11)(A).)

The submitted preconstruction review

program must be legally enforceable,

and may satisfy the requirements of Part

D by referring to these requirements of

the Act and stating that permits will be

issued only in compliance with them, or

by restating these requirements (or

requirements more stringent). Aside from the specific requirements

discussed above, a state preconstruction

review program along with other SIP

provisions must impose enough controls.

on new and existing sources that

resonable further progress and

attainment will actually occur as

required. If this does not happen, major

source and major modifications may be

unable to obtain permits in the future,

existing sources may have to apply even

more stringent controls, and the overall

SIP may be found not to satisfy Part D

requirements. The state preconstruction

review program must therefore be

adequate, considering the particular

circumstances of the overall SIP and the

area to which it applies, to assure

reasonable further progress -and

attainment.

b. Requirements From the Emission

Offset Interpretative Ruling. EPA's

recently revised Emission Offset

Interpretative Ruling now governs preconstruction review of any major

source or major modification that would

cause or contribute to a violation of a

NAAQS:Under the statute, the Ruling is

to be superseded for nonattainment areas after June 30, 1979, by

preconstruction review provisions of the

revised SIP, if the SIP meets the

requirements of Part D. If the SIP does

not meet the requirements-of Part D, the

Ruling is to be superseded by a

prohibition on major source construction

under the applicable'SIP and section

110(a)(2)(I) of the Act (discussed below

in subsection f, on Prohibition on New

Construction. The Ruling will remain in

effect to the extent not superseded

under the Act. 36

"See section 129(a)(1) of the 1977 Amendments

(note under 42 U.S.C. 7502); section I of the Offset

Ruling, note 3 above. The Ruling is therefore to

apply after July 1.1979, in the following situations:

(a) To proposed major sources in one state that

would contribute to a violation of a NAAQS only in

another state, (b] during the time allowed for the

development and approval of a revised SIP in an area that is designated as nonattainment after

March 3,1978. and Cc) during any extended time

allowed under secton 110B) for development of a SIP revision for an area that violates the secondary

NAAQS but not the primary NAAQS for a pollutant.

Furthermore, the Ruling applies everwhere in the

state, regardless of the applicable designation under

section 107(d) of the Act See sections E.D and E of

the Ruling. For any areas in the state where neither

The revised Ruling and accompanying

Federal Register preamble set forth

EPA's views on several issues that are

relevant under Part D. Many of the

approaches used by the Agency in

revising the Ruling may be used by the

states as guidance in developing

provisions under Part D. But to establish

uniform minimum requirements and

consistent statutory definitions, EPA

requires that state programs apply

certain fundamental policies that EPA

adopted in revising the Ruling (or be

more stringent): 37

* The SP must require permits for

the construction and operation of all

proposed "major sources" and "major

modifications," with those terms given

definitions equivalent to those in the

Ruling. (Ruling §§ ILA.A through 5.]

* Permits may be issued without

satisfying the requirements under

sections 172(b)(11)(A) and 173(1), (2] and

(3) of the Act, for proposed major

sources and major modifications that do

not have allowable emissions exceeding

50 tons per year, 1000 pounds per day, or

100 pounds per hour, whichever is most

restrictive. (Ruling § ll.C.)

* Permits may be issued without

satisfying the requirements under

sections 172(b](11)(A} and 173(1], (2] and

(3) of the Act for proposed major

modifications of existing facilities (that

is, modifications of identifiable pieces of

process equipment) with accompanying

offsets within the same source (intrasource offsets) such that there is no net

increase in allowable emissions. (As

explained in the preamble to the revised

Ruling, this requirement is more lenient

than that found in the Ruling itself. 44

FR at 3276-3277.)

* In determining the lowest

achievable emission rate (LAER], the

reviewing authoritymay consider

transfer of technology from one source

type to another where such technology

is applicable. (44 FR at 3280-3281.)

If a state adopts a regulation in the

SIP that is not inconsistent with these

mandatory policies, EPA proposes to

assume that the state intends to

implement its preconstruction review

program in accordance with these

policies. EPA proposes to conduct its

enforcement activities accordingly.

Alternatively, the state may adopt

a Part D preconstructlon review program nor a

section 110(aJ(2][l) prohibition on issuance of

permits applies, the Ruling will not be superseded

and will continue to apply to every source that

would cause or contribute to a NAAQS violation.

3See the preamble to the revised Ruling 44 FR

3276 coLl. (january 10,19"9). EPA considered

comment received before publication of the revised

Ruling. and the Agency Invited additional comment.

As soon as EPA has completed re%iewing and

responding to these latter comments, it will publish a response.

regulations that expressly incorporate

these mandatory policies (or approaches

more stringent).

c. Geographic Applicability. At a

minimum, the program must apply to

any major source 33 in the state that

would cause or contribute to a violation

of the NAAQS within the designated

nonattainment area. 35The Ruling

establishes certain exemptions for a

source locating at a site where the

NAAQS is not actually violated.

Although sections 172(b](l1](A] and 173

do not expressly allow exemptions from

a preconstruction review program, EPA

interprets the Act lo allow exemptions

like those in the Ruling. A state may

therefore make the following provision

for major sources locating at sites where

the NAAQS is not violated (as of the

new source start-up date]:

9 A source whose allowable

emissions would not cause or

significantly contribute a violation of the

NAAQS may be exempted from all

requirements under sections

172(b)(11)(A and 173(1], (2], and (3].

(Ruling §§ J11) andE.)

* A source that would cause a new

violation of the NAAQS maybe

exempted from all requirements under

sections 172(b(11)(A and 173(1], (2),

and (3), except that it must have

sufficient offsets so that allowable

emissions from the new source and

existing sources will not, in fact, cause a

violation. (Ruling § M.),

* For a source that would contribute

significantly to an existing violation,

emissions that result from the source

must be accommodated under section

173(1) only to the extent that those

emissions would actually contribute to

the violation. All other applicable

requirements (including the requirement

under section 173(1i]A to accommodate

certain emissions that do not result from

the source] must be satisfied in full.

(Ruling § § 1. D and E.

d. Exempted Types of Sources. In

addition to the exemptions discussed

above involving location of a source, the

revised Ruling provides that certain

types of major sources may be

exempted fror6 the requirement for

offsets. In adopting its preconstruction

review program, the state may exempt

similar types of sources from the

requirement of section 173(1] that

emissions be accommodated by offsets

or by the emission growth allowince, as

long as the exemptions established by

the state cover classes of sources no

"Except where the context indicates otherwise.-

reference to any "major source" includes any major

modification.

"See the preamble to the revised Ruling. 44 FR

35 col 3 January .19791.

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broader than those .exempted under the

Ruling. The types of-sources exempted

under the Ruling are: (i) Resource

recovery facilities burningmunicipal

solid wast, (ii) sources that-must switch

fuels due to lack-of adequate fule

supplies or where a source is required to

be modified as a resultof EPA

regulations andno exemption from such

regulation is availalle to the source, (iii)

temporary emission sources, and (iv)

emissions resulting from the

construction phase of a new source.

(Ruling § IV.B.)

As under the Ruling, exemptions for

resource recovery facilities and sources

that must switch fuels may iepermitted

only if fA) the new emissions are

charged against the emissions grovth

increment for major new sources to the

extent there is any. (B) the applicant

demonstrates that itinade its best

' efforts to obtain sufficient offsets, (C)

.the applicant applies alluoffsets that-are

available, and .(D) ,the applicant will

continue to seek the necessaryoffsets

and apply them when they-become

available. Issuance of-a permit under an

exemption forxesource recovery

facilities or sources thatmust switch

fuels will ordinarily..cause the -inventory.

of allowable 'emissions.to exceed what

is permitted for reasonable further

progress. Therefore, -no furtherpermits

for major sources may be issuedunder

section 173(1) until the deficit'is made

up by either additional offsets or a-SIP

ievision, to provide additional control -of

existing sources.

e,.Baiking. Under the policy

expressed in the Offset Ruling f§ WVC.5),

the state mnay allow emissionreductions

to be banked forlater use underthe

Ruling and under-the states

preconstruction xeview program under

Part D. The SIP-should provide

procedures forinanaging banked

emission reductions, such-as SIP

revisions or permit conditions. Banked

emission reductions may be used for

case-by-case offsets under section

173(1)(A), by contributing part or all of

the required offsetting reductions in

allowable emissions. To be sufficient

under that section, the nffsetting

reductions in -allowable emissions,

including any banked emission

reductions being-used, mustlbe sufficient

to reprqsent reasonable further progress.

Alternatively, banked-emission

reductions may be preserved for use

under section 173(1) (B), by beimg added

to the emissions growth allowance for

new major sources. Adding to -the

allowance requires a SIP revision, and

will be approved by EPA only if the

enlarged allowance 'will not interfere

with reasonable further progress and

attainment by the -requiredtdate.

f. Prohibition on New .Construction.

Sections 110-a2)(I), 113[a)(5), and

173(4) of the Act andsection ILof:the

Ruling provide that mewmnajor sources

- and major modifications hat would

cause or contribute to a NAAQS

violation -within the uonattainment area

'are not to -be constructed if-either-of-the

folloking circumstances applies:

i.L If there is a period after June 30,

1979 when a SIPdoesnmot satisfy the

requirements of Part D, no major source

or major modification is -to be

constructed-under a permit applied for

during that period, until after the

approved -SIP meets Part D

requirements. If the -permit was -applied,

for before July 1,1979, or before the

period when the SIP-fails to satisfyPart -

D requirements, constructionds not -

restricted by any failure of the -SIP'to

- satisfy PartD-requirements'[as long as

-requirements ofthe Ruling orof an

adequate Part Dpreconstruction review

program, whichever is applicable, are

satisfied).

ii. If there is aperiod alter June 30,

1979 when a SIP is mot being carried out

in accordance ,with thexeguirements of

Part'-D,no permits arelo be issued until

the SIP is .carried out in accordance with

those requirements. To the exteft-hat

thes tate does not -carry nut these -

prohibitions against newconstruction

under sections i,010a(2J)I], 113(a)(5J,.and

173(4], the Act provides for-fEPA to Bo

SO.

11. Changesin Designation. .In

develbping a Part D SIP revision for a

designated nonattainment area, the

state may determine that the

designation is inappropriate. If this

occurs, the state may submit to EPA a

revised-designation -with supporting

material. Until EPA finds the revised

designation acceptable and promulgates

it, the July 1 deadline for-approval of a

SIPrevision satisfying.Part D will

continue to apply. iHowever, ,the SIP

submittal may simplydemonstrate that

the standard is -attained and that no

additional .emission reductions cdr

preconstruction review.-requirements

need to be includedin the SIP.40

The July 1 deadline applies only -for

areas desigiated as nonattainment in

4

0 For purposes of-preconstruction review, the

determination of whetheraa proposed new source

would cause or contributeloa violation of-the

standard may be made withoutxegard tohe -

applicable designation.See subsections 10.c and'! of

the text-above, in thediscssion on Pxeconstruction

Review; discussion onEFMECT'OF.

DESIGNATIONSON ZLEAN AIRAMCT

REQUIRM NTS in tlh general preambleon

revised designationsofattainment status. 43 FR -

40412-13 [September 11. 1978). -

the initial March 3, 297B promulgation. 4

'

For any area .designated -as

nonattainment after:March 3, 1978,'tho

state will have nine months after the

new designation is promulgated to

submit a :SIP revision satisfying the

requirements -of Part D. -No additional

time is available, however, when an

area boundary is adjusted, ut the same

air quality problem and sources

contributing to the problem are

addressed.

IV. Approval of Revised SIP as Satilsfyng

Non-Part D Requirements

The final question 1hat EPA -must

-determine in reviewing a SiPsubmittal

is whether the xevised applicable

-implementation plan sptisfiesall

requirements in the Act that are mot Part

D requirements. A state's failure to

satisfy non-Part D requirements creates

an.obligation under Sectlonl10(c)o flhe

Act for EPA to promulgate substitute SIP

'provisions to satisfy those requirements,

but does not-require withholdingof-new

source permits and bighway and air

pollution control program-grants,' 2

Many states are submitting SIP

provisions to satisfy non-'art D

requirements along with theirPartD

submittals. EPA must review these

submittals as soon as possible-o

determine whether they should be

approved, and must Teview all

applicable implementation plans -as

soon as possible to determine whatnonPart D requirements remain-unsatisfied,

In some cases EPA will -consider nonPart D submittals along'with Part D

submittals, and in other cases EPA will

defer consideration of non-Part D

submittals until later.T"heFedoral

Register proposals referring to

individual state plans -will -identify any

non-Part D decisions to be made nnd the

relevant considerations.

(Secs. 110(aJ, 172, Clean AirAct, as amended

(42 U.S.C. 7410(a), 7502))

Dated: March 23,1979.'

David G-Hawkins,

Assistant Adrniniastror orAir. Noisonddadloea.

[FRL 1 9o-1 l

[FR Dec. 79-10227 Filed 4-3-79-,8:43 aml

BILUNG CODE '6550I-M

"'See note 0 above. 4 2 Several SIP revisions are requiredby the 077

Amendmentsto theAct but nra not-Part D

requirements. These Includelhe requirements of

sections 128lstate boards), l10(e)(ZIlE) and 120

.(interstatepollutlon). 127(publiciollflcatlon), 1G0 01

seg. IPSD).110 (a)(ZJ(lK) (permit leesj, 123:(stack

heights inother than nonattainment areas). 11

,(consultation), and 110(a)(0) (pay reduction],

20380

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