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 Transportation 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 must 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 ozone 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 need 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 relevant 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 feasible, 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 control 

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,” and 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)--but not 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 Delaney case, 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 attainment 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 arena of potentially reasonable measures have not been 

adopted. The justification would need to support that a measure was not “reasonably 

 

2Memorandum, “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 

Nonattainment 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 provided 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 reasonably 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 of proposal of that rulemaking.

The EPA encourages the development

of economic incentive programs that

increase flexibility and stimulate the use

of more 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 of EPA'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 of interacting 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 of TCM's

States should consider in developing the

TCM portion of their 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

Delaney v. EPA. 898 F. 2d 68 (1990%. 13,

Cong. Rec. SI6971 Cdai4 ed. Oct. 27,

1990). In that case, the court herd that

1=60

HeinOnline -- 57 Fed. Reg. 13560 1992
Federal 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 of historical

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 Delaney v. 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 of the 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 of the

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 of the

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) Requests submitted beforb

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

HeinOnline -- 57 Fed. Reg. 13561 1992
ATTACHMENT 3

EXCERPTS FROM COMMENT LETTER ON RACM