Clean Air Act Advisory CommitteeSection 185 Work Group Close OutOctober 6-7, 2009Kimber ScavoArlington, Virginia2CAAAC Section 185 Task ForceCAAAC Task Force convened in early 2009 todiscuss section 185 program implementation.On May 15, 2009, the Task Force identified 10areas of potential state discretion and asked ifthey were legally permissible under eithersection 185 or section 172(e) of the CAA.The Task Force urged EPA to issue promptguidance on alternative options to section 185.3Review of CAA Section 185Section 185 applies as an obligation for severe andextreme ozone nonattainment areas that fail to attain bytheir attainment date.Major stationary sources of VOC and NOx in such an areaare subject to fees ($5,000 per ton adjusted for inflation)for emissions that are above 80 percent of the attainmentyear emissions baseline.Fees accrue for“each calendar year beginning after theattainment date”and continue“until the area isredesignated as an attainment area for ozone.”EPA is required to collect the fees if a state’s SIP does notmeet the requirements of section 185, or if a state is notadministering and enforcing a section 185 SIP.4Review of CAA Section 185The due date for states to submit section 185 fee program SIPs was12/31/2000 for the 1-hour NAAQS and 6/15/2014 for the 1997 8-hour ozone NAAQS.D.C. Circuit Court opinion ( 

# South Coast v. EPA , December 23, 2006)identifies section 185 fees as acontrol requirement that must beimplemented by former 1-hour ozone severe and extreme areas toprevent backsliding per CAA section 172(e).EPA released “Guidance on Establishing Emissions Baselines underSection 185 of the CAA for Severe and Extreme OzoneNonattainment Areas that Fail to Attain the 1-hour Ozone NAAQS bytheir Attainment Date” on March 21, 2008.Addresses alternative baseline calculation for when a source’semissions are cyclical, irregular,or otherwise vary from year toyear.Areas required to implement a section 185 feeprogram because of failure to attain the 1-hourNAAQS by the statutory attainment date...AreaAttainment DateBaltimore, MD(severe 15)11/15/2005Baton Rouge, LA(severe 15)11/15/2005Sacramento, CA(severe 15)*11/15/2005New York, NY-NJ-CT(severe 17)11/15/2007Houston, TX(severe 17)11/15/2007Southeast Desert, CA(severe 17)11/15/2007Coachella Valley, CA(severe 17)* 11/15/2007AreaAttainment DateLA South Coast, CA(extreme)11/15/2010San Joaquin Valley, CA(extreme)* 11/15/2010Areas that may need to implement...*These areas have adopted full or partial section 185 programs.6Task Force List of Options: Areasof Potential State DiscretionAggregation of emissions amongcommonly-owned facilitiesAggregation of VOC and NOx emissions.Consideration of pre-attainment year orattainment year installation of BACT orLAERConsideration of pre-attainment year orattainment year installation of retrofitcontrols7Task Force List of Options: Areas ofPotential State Discretion (cont.)Consideration of market-based programsCredit sources for post-attainment yearemissions-reducing or air qualityinvestmentsPost-attainment year new sourcesUse of program revenuesEquivalent programsProgram Sunset8Response to Task ForceEPA does not believe that many of thepoints raised by the Task Force would beapprovable under section 185.Formal letter will be sent to the CAAACwith our response at the time EPA releasesthe guidance memo.9Guidance on Developing FeePrograms Required by Section 185EPA is close to releasing the guidancememo.The guidance addresses the followingtopics:Applicability of section 185 to former 1-hourozone NAAQS nonattainment areasApplies to all severe and extreme ozonenonattainment areas, e.g., 1-hour and 1997 8-hourozone areasSummary of section 185 requirements10Guidance on Developing FeePrograms (cont.)The guidance addresses (cont.):When the fees begin to applyFor 1-hour severe-15 areas, the fees began in 2006.For 1-hour severe-17 areas, the fees began in 2008.When the section 185 fee obligation endsSection 172(e) and alternatives to section 185fee programsInflation adjustment for Section 185 FeesResponse to CAAAC Task Force Options11QuestionsQuestions on section 185 can besubmitted in writing to:gerth.denise@epa.gov.