### Dated 12/14/00

MEMORANDUM

SUBJECT: Additional Submission on RACM from States with Severe 1

-hour Ozone

Nonattainment Area SIPs

FROM: Mr. John S. Seitz, Director

Office of Air Quality Planning and Standards

Ms. Margo Oge, Director
Office of Tra

nsportation and Air Quality

TO: Regional Air Division Directors, Regions I, II, III, V and VI

SUMMARY

In order for States to demonstrate attainment of a national ambient air quality standard (NAAQS), EPA’s long

-standing policy has been that States m ust address whether there are reasonably available control measures (RACM) that may advance the attainment date. In December 1999, EPA proposed action on 1

-hour ozone attainment demonstration SIPs submitted by 14 States for 10 serious
and severe 1

-hour oz

one nonattainment areas. The purpose of this memorandum is to ask the Regions
to work with their States that have severe ozone nonattainment areas to ensure that the State’s current submission (or a revised submission) meets the Clean Air Act requirement that areas attain the NAAQS as expeditiously as practicable, including consideration of the availability of RACM that may advance the attainment date. Attachment 1 provides background on this issue and guidance.

ACTION

There are several actions that n eed to be taken for severe areas, that are described below. It is important to remember that failure to address this issue could result in disapproval of the attainment
demonstration SIPs for areas within the State. Under the terms of a recent consent decree, EPA would be obligated to propose by October 15, 2001 and promulgate by June 14, 2002 attainment demonstration Federal Implementation Plans (FIPs) if EPA has not fully approved attainment demonstration SIPs by the relevant dates.

### First, the Regional Offices should inform each State as soon as possible that comments have

been raised regarding RACM. Second, the Region should work with their States to develop a supplement to the docket and/or a SIP revision that addresses whether TCMs and other possible stationary measures are RACM. 1



### The EPA believes that the docket should be supplemented no later than May 31, 2001. At that time, EPA will issue a supplemental notice of proposed rulemaking, providing the public with an opportunity to comment before EPA would be required to fully approve the SIP or propose a FIP in
October 2001.

Existing EPA guidance provides some help in identifying the type of measures that might be considered. For example, the General Preamble contains a discussion of the relationship between the RACM requirement of section 172(c)(1) and the list of TCMs in section 108(f) (see Attachment 2). The thrust of this guidance is that section 108(f) TCMs are not presumptively RACM, but these should be considered in assessing whether they have applied RACM. Also, the General Preamble states:

. . . any measure that a commenter indicates during a public comment period is reasonably available for a given area should be closely reviewed by the planning agency to
determine if it is in fact reasonably available for implementation in the area in light of local
circumstances.

Comments on the EPA proposed rulemaking on all of these SIPs included a list of measures that the commenter believes should be considered RACM; the relev ant portions of one of these comments appears in Attachment 3. The General Preamble also contains a citation to an EPA

-generated list of TCMs other than those in section 108(f). Our proposals in December included a document containing
a list of measures to be considered by States needing additional measures to cover a shortfall.

The Regional Offices should make clear that States need to give serious consideration to additional measures that might be reasonably available and advance the attainment date.

It is important for the Regional Offices to support and work closely with the States as they address this issue. Our staff will be available to provide any necessary assistance. Additionally, the environmental organizations that raised this comment have indicated that they are willing to assist the States in their efforts and other stakeholders may also be willing to provide assistance.

1

### For purposes of the attainment demonstration SIPs, measures could be justified as not meeting RACM if a measure (a) is not technologically or economically feasibl e, or (b) does not advance the
attainment date for the area. Questions on this memorandum may be directed to John Silvasi of OAQPS at 919

-541

-5666 or Mark Simons of OTAQ at 734

-214

-4025.

### 3

Attachments

cc: Regional Air Division Directors, Regions IV, VII, VIII, IX, X, John Silvasi, Denise Gerth, Rich Ossias, Kevin McLean, Jan Tierney, Sara Schneeberg, Tom Helms, Sharon Reinders, Meg Patulski, Laura Berry, M. Simons, M. Zaw

-Mon

Bcc via email: Dave Conroy, Bob Judge, Bill Baker, Ray. Werner, Rudy Kapichak, Paul Truchan,

Marcia Spink, Dave Arnold, Chris Cripps, Kay Prince, Karen Borel, Ed Doty, Jay Bortzer, Tom Diggs, Guy Donaldson

EPA/OAR/OAQPS/AQSSD/OPSG/JSILVASI\ LLassiter: NCM Rm 510A:(MD

- 15) 1

-5526
File Name: I:

\SEC\SILVASI

\ RACM.MEM November 14, 2000/Rev. December 7,

2000/Rev. December 13, 2000

### ATTACHMENT 1

BACKGROUND ON RACM REQUIREMENT ISSUE

During the comment period on the 1

-hour attainment demonstrations and, in some instances, the separate comment period on the adequacy of the SIP for purposes of conformity, comments were received that questioned whether the States considered RACM. In general, the comments claimed that EPA cannot find the emissions budgets associated with the attainment demonstrations to be adequate because the attainment demonstrations are not approvable, in part because the SIP does not contain all RACM. The comments specifically focused on the failure of the SIPs to address transportation contr ol measures (TCMs) that are RACM, but the comment was directed to stationary source measures as well. In light of EPA’s existing guidance, the comments contend that RACM is necessary to ensure that the attainment date is “as expeditious as practicable,” a nd therefore EPA cannot approve an attainment
date

–and its associated attainment demonstration

–without having all RACM in the SIP. The comments also pointed out that some candidate TCMs have been included in transportation improvement programs (TIPs)

--butnot in the SIP

–and the comments claim that at a minimum such measures are reasonably available and should be in the SIP.

The EPA policy stated in the General Preamble, 57 FR13498 at 13560 (Apr. 16, 1992) (which interpreted the court’s decision in the Del aneycase, 898 F.2d 687 (9th

### Cir.)), is that States must consider available control measures, adopt such measures as are reasonably available, and provide a justification why

measures that may be available were not considered RACM and adopted in the SIP (see Attachment 2). The EPA reconfirmed that policy in a November 30, 1999 policy memorandum from John Seitz that reiterates the statutory requirement for States to adopt as part of their attainment demonstrations all RACM necessary to advance the area’s at tainment date.2

### The memo further provides:

In order for the EPA to determine whether a State has adopted all RACM necessary for attainment as expeditiously as practicable, the State will need to provide a justification as to why measures within the arenaof potentially reasonable measures have not been adopted. The justification would need to support that a measure was not “reasonably

2

### Memorandum, “Guidance to Clarify EPA’s Policy on What Constitutes ‘As Expeditiously as Practicable’ for Purposes of Attaining the One

-Hour Ozone Standard for Serious and Severe Ozone
Nonattainm

ent Areas.” John S. Seitz, Director, Office of Air Quality Planning and Standards.
November 1999.

### available” for that area and could be based on technological or economic grounds. Sources of

potentially reasonable measures include measures adopted in other nonattainment areas and measures that the EPA has identified in guidelines or other documents. [Emphasis added]

In response to comments regarding the adequacy of the SIP budgets for purposes of conformity, EPA prov

ided that “as long as EPA is fairly certain that the attainment demonstration will result in attainment consistent with the statutory requirement of attainment as expeditiously as practicable, but no later than certain prescribed dates, EPA can find the motor vehicle emission budget adequate.”

However, for purposes of fully evaluating the approvability of the attainment demonstrations, EPA will need to ensure that sufficient evidence exists in the docket for the rulemaking to determine
whether there are r

easonably available measures that could advance the attainment date. Because we
believe that the SIPs for the severe 1

-hour ozone nonattainment areas on which EPA proposed action in December do not contain sufficient analysis of RACM, the docket will need to be supplemented to
address this issue.

Note that EPA’s guidance provides that even measures that are included in a TIP may possibly be determined to not be RACM if they do not meet the RACM tests outlined in EPA guidance and the
Clean Air Act.

### ATTACHMENT 2
GENERAL PREAMBLE EXCERPT ON RACM

### Federal Regiter / Vol. 57, No. 74 / Thursday, April I6, 1992 

### I Proposed Rules

guidelines that specify how revenues generated by the plan provisions shall be used (section 182(g)(4(B)). These rules will address issues such as setting baselines, banking provisions, administrative requirements and consistency with the title V Permitting Program, title VU Enhanced Monitoring and Compliance Certification Program and other provisions discussed elsewhere in this notice. The EPA currently views these rules as guidance that is intended to encourage early implementation of appropriate economic incentive programs to potentially avoid such faihres in the future. The EPA hopes that the rules will stimulate innovative, market-based approaches, where appropriate, in meeting long-term milestones and goals. The EPA also will give consideration to using these rules

as guidance in developing Federal rules and FIP strategies when necessitated by State failures in meeting RFP milestones. The EPA will solicit comments on its economic incentive progam rules at the time ofproposal of that rulemaking.

The EPA encourages the development of economic incentive programs that increase flexibility and stimulate the use ofmore cost-effective strategies, as well

as provide incentives for continuing to develop and implement innovative emissions reductions technology and strategies beyond those specifically mandated through standards and regulations. However, EPA believes that the implementation of economic incentive programs must also meet the standards of enforceability currently found in traditional regulatory programs.

The Agency wishes to clarify its position regarding mobile/stationary

source trading. The agency is very supportive of efforts to trade emission reductions among mobile and stationary

sources to the extent such trades would result in a less costly mix of measures to attain the standards and would meet the relevent Clean Air Act requirements. EPA will work with states and individual sources to highlight and develop such trading opportunities and will be taking various steps to encourage such trades.

In particular, EPA wilt clarify which Clean Air Act requirements can be met by trading emission reductions among mobile and stationary sources and how such trading can be implemented, through guidance it will Issue as part of the economic Incentive rles and elsewhere as necessary. This guidance will encomuge states to consider such trades as they develop their state Implementation plans.

MWble moce programs which could generate tradeable credt, Include, but

are net limited tr * An accelerated vehicle retirement
program, * A program to convert cars or fleets
to cleaner fuels, and * A program to expand the geographic coverage of inspection and maintenance programs.

States can allow stationary sources to

use these reductions on an individual basis to meet certain emission reduction requirements or to generate tradeable offsets to help meet new source review requirements where not prohibited by the statute.

5. Section 172(c)(1) Requirement for All Reasonably Available Control Measures (RACM)

Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable. The EPA interprets this requirement to impose a duty on all nonattaimnent areas to consider all available control measures and to adopt and implement such

measures as are reasonably available for implementation in the area as components of the area's attainment demonstration.

The EPA has previously interpreted the RACM provisions of the preamended Act. The EPA is today changing its prior interpretation and adding specific interpretations with respect to Il%-10, The following discussion explains the origins ofEPA's past interpretation and the rationale for the current changes to that interpretation.

The EPA previously interpreted this provision under the pre-amended Act in its guidance at 44 FR 20372, 20375 (Aprirl 4, 1979). The EPA there indicated that where measures that might in fact be available for implementaton in the nonattainment area could not be implemented on a schedule that would advance the date for attainment in the

area, EPA would not consider it reasonable to require implementation of such measures. The EPA continues to take this interpretation of the RACM requirement.

Also in the 1979 guidance, EPA created a presumption that all of the TCM's listed in section 108(f) were RACM for all areas, and required areas to specifically justify a determination that any measure was not reasonably available based on local circumstances. The EPA reiterated that guidance at 46 FR 7182, 7187 (January 2Z, 1981).

However, based on experience with implementing TCM's over the years. EPA now believes that local circumstances vary to such a degree from city-to-city that it Is inappropriate
to presume that all section ?08{f) measures are reasonably available in all

areas. It is more appropriate for States

to consider TCM's on an area-specific,
not national, basis and to consider
groups ofinteracting measures, rather than individual measures.

The section 108(fQ measures should be considered by States as potential air quality control options. Further, the list should not be viewed as exhaustive, but rather indicative of the types ofTCM's States should consider in developing the TCM portion oftheir control strategy. A

recent study for EPA identified more than 70 individual measures within broad TCM categories that could be considered as potential controls (SAT, IT, PES 9-90). In addition, any measure that a commenter indicates during the public comment period is reasonably available for a given area should be closely reviewed by the planning agency to determine if it is in fact reasonably available for implementation in the area in light of local circumstances.

Local circmustances relevant to the reasonableness of any potential control

measure invokve practical considerations that cannot be made through a national presumption. Various TCM's ust be locally coordinated to minimize cmitradisetry results and maximize mutually suppo tive

outcomes. Feasilikty of TCM implementation can thus be particutarly complicated, and EPA recognizes the importance of assessing candidate TCM's in the corAext of each particular area's stuation.

Final, with resped to TCM's or any other controf measues, EPA does not believe tt Congress hytended the RACM requirement to compel the adoptiem 

### of measures that are absurd, unenforceable, or impracticable (see 55 FR 3832(k September 18, I990).

The EPA, therefore, concludes that it is inappropriate to create a presumption that aff of the measures listed in section 106(f) are per se reasonably available for all nonattainment areas. All States must, at a minimum, address the section 108(f) measures. The EPA believes that
at least some of the measures will be reasonably available for implementation in many nonattainment areas. Where a section 108(f] measure is reasonably available, section 172(c)(11 requires its implementation.

The Senate managers' explanation of the new transportation control provisions includes a statement endorsing EPA's 1979 guidance on RACM,as recently construed by the. Court of Appeals for the Nintk Circuit in Delaneyv. EPA. 898 F. 2d 68 (1990%. 13, Cong. Rec. SI6971 Cdai4 ed. Oct. 27, 1990). In that case, the court herd that 

### 1=60Federal Register / Vol. 57, No. 74 / Thursday, April 16, 1992 / Proposed Rules

EPA was bound to apply its thenapplicable 1979 RACM guidance by its

own terms, whiph created the presumption that all section 108(f)

measures were reasonably available. However, the court did not hold that the
statute required such an interpretation of the RACM requirement, nor that EPA could not in the future revise its RACM guidance. The EPA remains free to alter its past guidance consistent with a reasonable interpretation of statutory requirements in light ofhistorical experience implementing TCM's.

The legislators who cited the Delaney

v. EPA decision had lobbied in the Senate Committee bill for a requirement that all section 108(f) measures be implemented in severe ozone nonattainment areas. This position was however abandoned in the final Senate bill. Any statements in the subsequent Senate debates concerning implementation of all section 108(f)

measures therefore do not necessarily reflect the views of the Senate as a whole, let alone the entire Congress.

Finally, EPA also notes that it believes the court in Delaneyv. EPA mischaracterized EPA's guidance in one respect. The court stated that in light of the previous presumption that section 108(f) measures were reasonably available, "a state can reject one of these measures only by showing that the

measure either would not advance attainment, would cause substantial widespread and long-term adverse impact, or would take too long to implement." Delaney,at 692. In the case before the court, EPA had argued that certain measures would have substantial widespread and long-term adverse impact. However, EPA believes that its revised RACM interpretation would provide for the rejection of control measures as not reasonably available for various reasons related to local conditions even where such costs fell short of substantial widespread impact. This is especially true in the absence of a presumption that any given

measure is per se reasonably available.

Section 177 permits a State to adopt and enforce new motor vehicle emission standards that are identical to those adopted by California and for which a waiver under section 209(a) has been granted. The EPA is not able at this time
to specify the emissions reduction credits that may be available to a State that adopts emissions standards identical to California's so-called "Low Emission Vehicle (LEV) program." The EPA is presently developing the updated version of its mobile emissions modelMOBILE5--which will include EPA's estimates ofthe SIP credits available to States adopting the LEV standards. The EPA plans to complete work on the model in June 1992, at which time it will be made available to States and the public.

The EPA has recently been asked whether a State. which requires under section 177, that new vehicles sold in the State comply with the California standards, must also require that those vehicles use the fuel or fuels upon which they were certified as meeting the California standards. The EPA is undertaking a legal and policy review of this question.

PM-10 is different from 03 and CO in that here may be many PM-10 areas where mobile sources do not significantly contribute to the nonattainment problem in the area. Section 190 of the Act, which applies specifically to PM-10, recognizes this distinction. Section 190 specifies those source categories for which EPA is required to issue guidance on RACM. Section 190 also provides that EPA shall examine other categories of sources contributing to nonattainment ofthe PM-10 standard and determine whether additional guidance on RACM is needed. Section 190 represents a statutory expression of those sources generally deemed to contribute to the PM-10 nonattainment problem and requires that EPA determine whether other sources contribute to the PM-l0 nonattainment problem and, as necessary, issue RACM guidance for such sources. Thus, in the discussion addressing PM-10 RACM, EPA takes the position that the available control

measures EPA has identified in its guidance issued under section 190 are the suggested starting point for determining RACM. Accordingly, the affected State should evaluate these

measures and other measures that a
commenter demonstrates may well be reasonably available in an area considering their technological and economic feasibility in the area to which the SIP applies.

The EPA received comments requesting that additional control

measures, including the TCM's identified in section 108(0 ofthe amended Act, be added to EPA's guidance on control measures issued under section 190. At this time, EPA has insufficient information to conclude that the sources addressed by these

measures contribute to the PM-10 problem in a sufficient number of areas in the nation such that section 190 guidance is necessary. Thus, EPA does

not presently believe that each of these

measures should be added to the list of

measures which is the suggested starting point for the RACM analysis for each of the PM-10 nonattainment areas in the nation. This is not to suggest that States should ignore such measures. In those PM-10 nonattainment areas where mobile sources do significantly contribute to the PM-10 air quality problem, consistent with the statement above regarding section 108(f) measures, the State must, at a minimum, address the section 108(f) measures. Similarly, it follows that where a section 108(f)

measure is reasonably available, sections 189(a)(1)c) and 172(c)(1) require its implementation.

6. Redesignations

Section 107(d)(3) of the Act specifies the procedures and reqirements for changing an area's designation. Subparagraphs (A), (B), and (C) describe the requirements and schedules for such changes when initiated by the Administrator. An additional discussion of the reqirements and schedules is provided in 56 FR 16274 (April 22, 1991) describing the notification of States that certain PM-10, SO, and lead areas should be redesignated.

Section 107(d)(3)(E) specifies the conditions under which the Administrator may approve a Governor's request [submitted in accordance with section 107(d)(3)(D)J for redesignating an area from nonattainment to attainment. These conditions are as follows:

(1)The Administrator has determined that the NAAQS has been attained.

(2) The Administrator has fully approved the applicable implementation plan under section 110(k). (3)The Administrator has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementing the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions. (4) The Administrator has fully approved the maintenance plan for the

area as specified in section 175A.

(5) The State has met all applicable requirements for the area under section 110 and part D.

The remainder of this discussion describes how EPA will review a State request to redesignate an area from nonattainment to attainment, and what criteria EPA will use in determining whether the above conditions have been
met.

(a) Requestssubmittedbeforb

enactment.Some States had submitted requests for redesignation prior to
enactment of the 1990 CAAA that EPA I I II I II I I I II

.. . .. . . . 13561

### ATTACHMENT 3
EXCERPTS FROM COMMENT LETTER ON RACM