8/23/93 

MEMORANDUM

SUBJECT: Guidance on Issues Related to 15 Percent Rate-of-Progress Plans 

FROM: Michael H. Shapiro 

Acting Assistant Administrator 

 for Air and Radiation (ANR-443) 

TO: Director, Air Pesticides and Toxics 

 Management Division, Regions I and IV 

 Director, Air and Waste Management Division, 

 Region II 

 Director, Air, Radiation and Toxics Division, 

 Region III 

 Director, Air and Radiation Division, 

 Region V 

 Director, Air, Pesticides and Toxics Division, 

 Region VI 

 Director, Air and Toxics Division, 

 Regions VII, VIII, IX, and X 

 As you know, section 182(b)(1) of the Clean Air Act (Act) requires States to submit, by 

November 15, 1993 for all ozone nonattainment areas classified as moderate and above, a State 

implementation plan (SIP) that provides for a 15 percent reduction in emissions of volatile 

organic compounds (VOC) by November 15, 1996. The purpose of this memorandum is to 

provide guidance related to these SIP submissions. 

Committal SIP's for 15 Percent Plan Control Measures

 Several States asked to what extent will the Environmental Protection Agency (EPA) 

accept committal SIP's for the measures necessary to achieve the 15 percent reduction. Under 

section 110(k)(4) of the Act, EPA has the authority to conditionally approve a SIP submittal 

based on a commitment by the State to adopt specific enforceable measures by a date certain. A 

previous memorandum identified specific cases in which EPA would accept commitments for 

submittals which were due by November 15, 1992. For the 15 percent rate-of-progress plans, 

EPA will not accept commitments to adopt the measures needed to meet the 15 percent reduction 

requirement and any such plans would not be considered approvable. In fact, EPA may 
determine such submittals to be incomplete, which would trigger a findings letter starting the 

clock for mandatory sanctions. The only exception would be for the State of Texas where EPA 

Headquarters, based on initial views at the time, indicated a commitment would be acceptable. 

NOx Substitution for Contingency Measures

 Section 172(c)(9) of the Act requires moderate and above ozone nonattainment areas to 

adopt contingency measures by November 15, 1993. These measures would have to be 

implemented if the area fails to make reasonable further progress (RFP) or to attain the national 

ambient air quality standards (NAAQS) by the applicable attainment date. In addition, section 

182(c)(9) of the Act requires serious and above areas to adopt contingency measures which 

would be implemented if the area fails to meet any applicable milestone. When triggered, the 

contingency measures must be implemented without further action by the State or the EPA. 

 The "General Preamble for the Implementation of Title I of the Clean Air Act 

Amendments of 1990" (57 FR 13498, April 16, 1992) requires that the contingency measures 

generally must provide reductions of 3 percent of the emissions from the adjusted base year 

inventory. The reductions must be achieved in the year following that in which the failure has 

been identified. Three percent represents 1 year's worth of reductions under the post-1996 rateof-progress requirement. 

 The contingency measures that are required to be adopted by November 15, 1993 are for 

both failure to achieve RFP and failure to attain. While the contingency measures to address 

failure to achieve RFP must be for VOC, the contingency measures for failure to attain may be 

for VOC and/or NOx. Since these measures will be implemented after 1996, and because these 

measures serve two purposes (i.e., failure to achieve RFP and failure to attain), the contingency 

measures could provide for less than 3 percent in VOC reductions as long as some of the 

measures are for VOC and the area would have the difference (up to 3 percent) in NOx 

reductions. Based on discussions with EPA's Office of General Counsel, we have determined 

that States must adopt a minimum of 0.3 percent in VOC measures of the 3 percent contingency 

measure requirement to be legally defensible. Therefore, in an area that has demonstrated that 

NOx controls are needed for attainment, 2.7 percent of the required 3 percent could be NOx 

contingency measures; at least 0.3 percent must still be VOC to cover the contingency 

requirement for meeting RFP. Note that this applies to moderate areas as well; moderate areas 

must submit an approvable plan that shows how they will achieve the 15 percent requirement but 

are not required to submit a demonstration that the milestone was achieved. Moderate areas, of 

course, must demonstrate that they have attained the NAAQS for ozone by November 15, 1996. 

 In order for NOx contingency measures to be acceptable, the State must adhere to EPA's 

forthcoming guidance on NOx substitution. In addition, States must show with modeling 

evidence that NOx reductions are needed in a particular nonattainment area. Therefore, in order 

to give States enough time to consult EPA's guidance on NOx substitution and to determine if 

NOx reductions are needed, EPA will accept committals for contingency measures that are due 

November 15, 1993. If the contingency measures themselves are not included with the 

November 15, 1993 submittal, that submittal must include a commitment, with schedule, for 

contingency measures to be adopted by November 15, 1994. 
 We believe that this is acceptable due to the fact that the earliest a contingency measure 

would be implemented would be in 1997. The first attainment date and milestone date for areas 

that are required to adopt contingency measures is November 15, 1996. The EPA will expect all 

actions needed to make the measures fully effective to occur within 60 days after EPA notifies 

the State of its milestone failure or within 6 months of its attainment failure. Therefore, the State 

would not need to implement the contingency measures until 1997 and EPA could accept 

measures that could not be implemented until 1997. 

 Upon activation of the contingency measures, reductions of up to 3 percent (or such 

lesser percentage that will cure the identified failure) must be achieved 1 year following the date 

on which the failure had been identified. The State must achieve these reductions while 

conducting additional control measure development and implementation as necessary to correct 

the shortfall if it is beyond the 3 percent the State would have already adopted. In determining 

what measures should be implemented if less than 3 percent reduction is needed to cure the 

failure, all VOC contingency measures should be required first followed by the appropriate 

percentage of NOx measures that will correct the shortfall. 

15 Percent Waiver Provision

 Under section 182(b)(1)(A)(ii), areas can submit plans demonstrating less than a 15 

percent emission reduction if the following conditions are met. First, the State must demonstrate 

that the area has a new source review program equivalent to the requirement in extreme areas 

[section 182(e)], except that a "major source" must include any source that emits, or has the 

potential to emit, 5 tons per year (tpy) of VOC. Second, all major sources (down to those with 

emissions of 5 tpy of VOC or greater) in the area must be required to have RACT-level controls. 

Third, the State must demonstrate that the SIP includes all measures (both stationary and mobile) 

that are achieved in practice by sources in the same source category in nonattainment areas of the 

next higher classification. Fourth, the plan must include all measures that can be feasibly 

implemented in the area, in light of technological achievability and cost. 

 If an area chooses to meet the requirements of section 182(b)(1)(A)(ii) to get a waiver of 

the 15 percent provision, EPA interprets title V to require operating permits for all VOC sources 

in that area that emit or have the potential to emit 5 tpy of VOC. This is because the definition of 

"major source" in title V expressly refers to "major stationary source" as defined in part D of title 

I. Since, under the waiver provision, "major stationary source" would be defined as having the 

potential to emit 5 tpy for the purposes of title I, this would become the definition of major 

source for the purposes of title V. 

 I suggest that you provide a copy of this memo to your affected State and local agencies. 

Inquiries may be directed to John Silvasi at (919) 541-5666.