I \. UNITEDSTATESENVIRONMENTALPROTECTIONAGENCY

RESEARCHTRIANGLEPARK.NC27711

OFFICEOF 

# M.4Yl01995

AIRQUALITYPLANNING ANDSTANDARDS MEMORANDUM

SUBJECT: Reasonable Further**Progress~** and Related Requirements for Meeting the Ozone Nationa

FROM: John

### s. Seitz, Directo Office of Air Quality P

TO: Director, Air, Pesticides and Taxies Management Division, Regions I and IV Director, Air and WasteManagement Division, Region II Director, Air, Radiation and Taxies Division, Region III Director, Air and Radiation Division, Region V (MD-10)

Director, Air, Pesticides and Taxies Division,

I. Policy Region VI

. Director, Air and Taxies Division, Regions VII, VIII, IX, and X

This memorandum sets forth EPA's interpretation of certain requirements of subpart 2 of part Dof title I of the Clean Air Act as they relate to ozone nonattainment areas that are meeting the ozone NAAQS. Specifically, it addresses whether such areas must submit SIP revisions concerning reasonable further progress and attainment demonstrations. The requirements at issue include the 15 percent plan and attainment demonstration requirements of section 182(b)(1) for moderate and above ozone nonattainment

areas and the attainment demonstration and post-1996 RFP requirements of section 182(c)(2) for serious and above ozone nonattainment areas. Related requirements include the moderate

ozone nonattainment requirements of section 172(c)(9) concerning contingencymeasures, the serious ozone nonattainment area requirements of section 182(c}(9) concerning contingency

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

measures and section 182(g} concerning milestones. They also include the elements of the severe and extreme ozone nonattainment area requirements of section 182(d)(1}(A) concerning vehicle miles traveled that are related to RFP requirements.2

For the reasons describedbelow, EPA believes that it is reasonable to interpret theseprovisions so as not to require

areas that are meeting the ozone standardtomake the SIP submissions to EPA described inthe provisions as long as the

areas continue tomeet the standard. If such an area were to monitor a violation of the standardpriorto beingredesignated
to attainment, however, the areawould have to address the pertinentrequirements and submit the SIP revisions described in thoseprovisions to EPA. ·

This memorandum also describes the process bywhich EPA will determine that an area is attaining the ozone standard and need
not make these SIP submissions.

II. Interpretation and Legal Rationale

The EPA believes it is reasonable to interpretprov1s1ons regarding RFP and attainment demonstrations, alongwithrelated requirements, so as not to require SIP submissions if an ozone nonattainment area subject to those requirements is in fact attaining the ozone standard (i.e., attainment of the NAAQS is demonstratedwith 3 consecutive years of complete, qualityassured air qualitymonitoring data)

. The EPA has previously interpreted the general provisions of subpart 1 of part Dof title I (sections 171 and 172) so as not to require the' submission of SIP revisions concerningRFP, attainment demonstrations, or contingencymeasures, and EPA believes it is appropriate to interpret the ozone-specificprovisions of subpart 2 in the samemanner.

First, with respect toRFP, section 171(1) states that, for purposes of part Dof title I, RFP "means such annual incremental reductions in emissions of the relevant airpollutant as are required by this part ormay reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date." Thus, whether dealing with the general RFP requirement of section 172{c)(2), or the

more specificRFP requirements of subpart 2 for classified ozone nonattainment areas (the 15 percent plan requirement of section 182{b)(1) and the 3 percent peryear requirement of section 182(c)(2)), 1 the statedpurpose of RFP is to ensure attainment by the applicable attainment date. If an area has in fact attained the standard, the statedpurpose of theRFP requirementwill have

1EPA notes that paragraph (1) of subsection 182(b) is ent,itled "PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS" and that subparagraph (B) of paragraph 182(c)(2) is entitled "REASONABLE FURTHER PROGRESS DEMONSTRATION, 11 therebymaking it clear that both the 15 percent plan requirement of section 182(b)(1) and the 3 percent peryear requirement of section 182(c)(2) are specific varieties of RFP requirements.

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alreadybeen fulfilled and EPA does not believe that the area need submit revisions providing for the further emission reductions described in the RFP provisions of section 182(b)(1) and 182(c)(2)(B) and (C).

The EPA notes that ittook thisviewwithrespect tothe general RFP requirement of section 172(c)(2) inthe General Preamble for the Interpretation of Title I of the CleanAirAct Amendments of 1990 (57 FR 13498 (April 16, 1992)), and it is now extendingthatinterpretationto the specificprovis'lons of subpart 2. In the General Preamble, EPA stated, in the context of a discussion of the requirements applicable to the evaluation of requests to redesignate nonattainment areas to attainment, that the "requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing thatthe Statewillmake RFP towards attainment will, therefore, have no meaning atthatpoint" (57 FR 13564)•2

Second, with respect to the attainment demonstration requirements of section 182(b)(1) and 182(c)(2), an analogous rationale leads to the same result. Section 182(b)(1) requires that the plan provide for "such specific annual reductions in emissions

. . . as necessary to attain the primaryNAAQS by the attainment date applicable under thisAct." Section 182(c)(2)(A) simply requires a "demonstrationthat the plan, as revised, will provide for attainment of the ozone NAAQS by the applicable attainment date." As with the RFP requirements, if an areahas in fact monitored attainment of the standard, EPA believes there is no need for an area tomake a further submission containing additional measures to achieve attainment. This is also consistentwith the interpretationof the section 172(c) requirements providedby EPA in the General Preambleto title I,

as EPA stated there that no othermeasures toprovide for attainment would be needed by areas seeking redesignation to attainment since "attainmentwill have been reached" (57 FR 13564; see also September 4, 1992 Calcagni memorandum).

Other SIP submission requirements are linkedwith these attainment demonstration and RFP requirements, and similar reasoning applies to them. The first of these additional

2See also "Procedures for Processing Requests to Redesignate Areas to Attainment," from John Calcagni, Director, Air Quality Management Division, to Regional Air Division Directors, September 4, 1992, at page 6 (stating that the "requirements for reasonable further progress

. . . will not apply for redesignations because they onlyhavemeaning for areas not attaining the standard") (hereinafterreferred to as "September 1992 Calcagni memorandum").

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requirements are the contingencymeasure requirements of section 172{c){9) and section 182{c)(9). The EPA has previously interpreted the contingencymeasure requirement of section 172(c)(9) as no longer being applicable once an area has attained the standard since those "contingencymeasures are directed at ensuringRFP and attainment by the applicable date" (57 FR 13564;

see also September.4, 1992 Calcagni memorandum)• Similarly, as the section 182(c)(9) contingencymeasures are linkedwith 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 attainedthe 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 relatedto transportation "are consistentwith those used for the area's demonstration of attainment"; (2) the section 182(g) requirements concerning milestones that are based onthe section 182(b)(1) and 182(c)(2)(B) and (C) submissions; and (3) the elements of the section 182(d)(1)(A) requirement for SIP revisions identifying and adopting transportation control strategies to achieve reductions 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 subject to the requirement to submit the underlying attainment demonstration or RFP plan, itneed not submit the related SIP revision either.

The EPA emphasizes thatthis interpretationdoes not extend
to requirements of subpart 2 that are not linked by the language of the Act with the attainment demonstration and RFP requirements. For example, this interpretation does not applyto requirements such as

### voc RACT requirements, for which, in
contrast to NOx RACT requirements under section 182(f), the Act does not establish a mechanism to grant exemptions if an area has attained the standard, or to the requirements to submit SIP revisions providing for basic or enhanced I/M programs.

The EPA also emphasizes that the lack of a requirement to submit SIP revisions concerningthese RFP, attainment demonstration, and other related requirements exists only for as long as a nonattainment area continues to monitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the requirements not being applicablewould

no longer exist. Therefore, the area would again be subject to a requirement to submit the pertinent SIP revision or revisions and would need to address those requirements. Thus, a determination that an area need not submit one of the SIP submittals amounts to

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

area continues to attain the standard. If EPA ultimately

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redesignates the area to attainment, then the areawill be entirelyrelieved of these requirements to the extent the maintenanceplan for the area does not rely on them.

Also, EPA notes that in the case of a 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 onepart of such an area may not be suspended on the basis of a determination only that thatpart of the nonattainment area ismonitoring attainment. The EPA's Regional Offices should coordinate these determinations for anymultistate nonattainment**~reas** that involvemore than one Region.

III. Process

The EPA Regional Offices will conduct individual rulemakings concerning areas thathave 3 consecutive years of clean air qualitymonitoring data demonstrating attainment of the ozone standard tomake bindingdeterminations that the areas have attained the standard and need notmake whichever of the SIP revisions discussed above arepertinent. Since EPA has the relevant airquality data in its possession, no submission from a Statewould berequired to initiate this process.**Howe~er,** a Statewould be free to submit a petitionto the appropriate EPA Regional Office to notifythe office that it believes that a certain nonattainment area is eligible for these determinations

on the basis of monitored attainment of the ozone NAAQS.

As noted above, these determinations would be contingent on the existence ofmonitoring data for the·areas that continue to demonstrate attainment. If EPA subsequently determines that an

area has violated the standard, the basis for the determination that the area need not make the pertinent SIP revisions would no longer exist. The EPA would notify the State of that determination and would also provide notice to thepublic in the Federal Register. Such a determination wouldmean that the area would thereafter have to address thepertinent SIP requirements within a reasonable amount of time, which EPA would establish taking into account the individual circumstances surrounding the particular SIP submissions at issue.

The Statemust continue to operate an appropriate air qualitymonitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The airquality data relied upon for the above determinations must be consistentwith 40 CFR part 58 requirements and otherrelevant EPA guidance and recorded in EPA's Aerometric InformationRetrieval System (AIRS).

Determinations made by EPA in accordance with this interpretation.would not shield an area from EPA action to require emission reductions from sources inthe area where there6

is evidence, such as photochemical gridmodeling, showing that emissions from sources in the area contribute significantlyto nonattainment in, or interferewithmaintenance by, other nonattainment areas. The EPA has authorityunder theAct {section 110{a){2){D) in the case of areas in other States and section 110{a){2){A) in the case of intrastate areas) to require emissions reductions if necessary and appropriateto deal with transport situations.

IV. Consequences for Redesiqnations, Sanctions, and Conformity

Determinationsmade by EPA that an areahas attainedthe NAAQS and need notmake one ormore of the SIP submissions discussed above is not equivalent to the redesignation of the

area to attainment. Attainment of the standard is only one of the criteria set forth in section 107(d){3)(E) thatmust be satisfied for an area to be redesignated to attainment. To be redesignated, the Statemust submit and receive full approval of

a redesignationrequest for the area that satisfies all of the criteria of that section, including the requirement of a demonstration that the improvement inthe area's air quality is due to permanent and enforceable reductions, and the requirements that the areahave a fully-approved SIP whichmeets all of the applicable requirements under section 110 and part D, and a fully-approved maintenance plan. '

If an area for which the determination of attainment ismade has submitted or subsequently submits a redesignation request, the SIP submissions discussed in this memorandum would not be required for the area's redesignationrequest to be approved since they would no longer be considered applicable requirements under section 107{d)(3)(E). If the area violates the standard prior to final action on the redesignation request, however, not onlywould the requirements again become applicable, but the redesignation request could not be approved because the area would no longermeet the criterion of having attained the standard.

As a consequence of a determination that an area has monitoring data demonstrating attainment of the ozone standard, thereby removing, at least temporarily, the pertinent SIP submittal requirements discussed above, any sanction clock that had been started as a consequence of the failure to make such a submission, the incompleteness of such a submission, or the disapproval of such a submission, would be stopped since the deficiencythathad ledto the starting of the clockwould no longer exist.

The issuance of a determinationpursuant to this policywill have no immediate impact on the way conformity is demonstrated. Areas will continue to demonstrate conformity using the build/nobuild test and less-than-1990 test (section 51.436-51.446 of theI 

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conformityrule), and the 15 percent SIP if onehas been submitted (and attainment/RFP SIP, if one with a budgethas been submitted)

.
Since areas that are the subject of determinations pursuant to this policywill not be required to submitRFP or attainment demonstration SIP's, those areas will not generally be inthe control strategyperiod for conformitypurposes (i.e., have a control strategy SIP approved and build/no-buildtest no longer required) for so long as the area aoes notviolate the standard. Those areas will not generallyhave approvedbudgetsuntil a maintenanceplan is approved as part of the approval of a redesignation request, so thebuild/no-buildtest and less-than1990 test--in additionto any applicable submitted budgets--will be required until then. (A maintenance plan budget does not apply for conformitypurposes until the maintenance planhas been approved, except as providedby section 51.448(i) of the conformity rule (which applies to areas that are required to submit a 15 percent SIP but submit a maintenance plan instead).)

If an area receiving a determinationpursuant to this policy had previously submitted a 15 percent or attainment SIP, itmay choose to withdrawthe submitted SIP through the submission of a letter from the Governor or his or her designee in order to eliminate the applicability of itsmotor vehicle emission budget for conformitypurposes. This is because that area would not be subject to the 15 percent and attainment demonstration requirements of section 182(b){1) for so long as the area continues to attain the standard. If the submitted SIP is not withdrawn, the budget inthat submission will continue to apply for conformity purposes. If the submitted 15 percent or attainment SIP is withdrawn, only the build/no-build and lessthan-1990 tests would apply until a maintenanceplan is approved.

However, areas that are already demonstrating conformityto

a submittedmaintenanceplanpursuant to section 51.448{i) may continue to do so, ormay electtowithdraw the applicability of the submittedmaintenance plan budget for conformitypurposes until the maintenance plan is approved. The applicabilitymay be withdrawn through the submission of a letter from the Governor or his or her designee. If the applicability of the submitted maintenance plan budget is withdrawn for conformity purposes, the build/no-build and less-than-1990 tests will apply until the maintenance plan is approved.

For areas which receive a determination pursuant to this policy andwhose 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/ ( 8

conformity has lapsed for any other reason {e.g., failure to redetermine conformity by a certain date).

If you have any questions, please feel free to call me or Sally Shaver. The contact persons for this policy are Carla Oldham at {919) 541-3347 and Kathryn Sargeant at {313) 668-4441 for transportation conformity requirements.

cc: Rob Brenner Alan Eckert Tom Helms Phil Lorang Rich Ossias Margo Oge Joe Paisie John Seitz Sally Shaver Lydia Wegman Dick Wilson