UNITEDSTATESENVIRONMENTALPROTECTIONAGENCY

RESEARCHTRIANGLEPARK

.NC27711

OFFICEOF 

# MAY101995

AIRQUALITYPLANNING ANDSTANDARDS MEMORANDUM

SUBJECT: Reasonable Further**Progress~** and RelatedRequirements for Meeting the Ozone**Nationa~~~**
FROM: John

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

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 (MD-10)

Director, Air, Pesticides and Toxics Division,

I. Policy Region VI

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

This memorandum sets forth EPA's interpretation pf certain requirements of subpart 2 of part D of title I of the Clean**A~r** 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 seripus and above ozone nonattainment areas. Related requirements include the moderate

ozone nonattainment requirements of section 172(c)(9) concerning contingency measures, 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 itis reasonable to interprettheseprovisions so as not to require

areas that aremeeting theozone standard tomake the SIP submissions to EPA described intheprovisions as long asthe

areas continue tomeetthe standard. If such an areawereto monitor a violationof the standardpriortobeingredesignated to attainment, however, theareawouldhave to address the pertinentrequirements and submitthe SIPrevisions described in thoseprovisions to EPA.

Thismemorandum also describes theprocessbywhich EPAwill determine that an area is attainingthe ozone standard andneed notmakethese SIP submissions.

II. Interpretation andLegal Rationale

The EPA believes it isreasonableto interpretprovl.sl.ons regardingRFP and attainmentdemonstrations, alongwith related requirements, so as not to require SIP submissions if an ozone nonattainment area subjecttothose requirements is in fact attaining the ozone standard (i.e., attainment of theNAAQS is demonstratedwith 3 consecutiveyears of complete, qualityassured air qualitymonitoringdata). The EPA has previously interpretedthegeneral provisions of subpart 1 of partDof title I (sections 171 and 172) so as not to requirethe submission of SIP revisions qoncerningRFP, attainment demonstrations, orcontingencymeasures, and EPA believes it is appropriate to interpretthe ozone-specificprovisions of subpart 2 inthe samemanner.
First, withrespect toRFP, section 171{1) statesthat,

·for purposes of partDof title I, RFP "means such annual incremental reductions in emissions of the relevant airpollutant as are required bythis part or may reasonably be required by the Administrator for thepurpose of ensuring attainment of the applicable NAAQS bythe applicabledate." 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 percentplanrequirementof section 182{b)(1) and the 3 percentperyear requirement of section 182{c)(2)), 1 

### the statedpurpose ofRFP isto ensure attainment by the applicable attainmentdate. If an area has in fact attained the standard, the statedpurpose oftheRFP requirementwillhave

1

### EPA notes thatparagraph (1) of subsection 182(b) is entitled "PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS" and that subparagraph (B) of paragraph 182{c)(2) is entitled "REASONABLE FURTHER PROGRESS DEMONSTRATION," therebymaking it clear that both the 15 percentplanrequirement of section 182(b){1) and the 3 percentper year requirement of section 182{c){2) are specific varieties of RFP requirements. 

### .. .3

already been 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)(1i and 182{c){2)(B) and (C).

The EPA notes that ittook this view with respect to the general RFP requirement of section 172{c){2) in the General Preamble for the Interpretation of Title I of the CleanAir Act Amendments of 1990 {57 FR 13498 {April 16, 1992)), and it is now extending that interpretation to the specific provisions 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 that the State will make RFP towards attainment will, therefore, have no meaning at that point" (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 primary NAAQS by the attainment date applicable under this Act." Section 182{c){2){A) simply requires a "demonstration that the plan, as revised, will provide for attainment of the ozone NAAQS by the applicable attainment date." As with the RFP requirements, if an area has in fact monitored**a~tainment** of the standard, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also · consistent with the interpretation of the section 172{c) requirements provided by EPA in the General Preamble to title I,

as EPA stated there that no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since "attainment will have been reached" (57 FR 13564; see also September 4, 1992 Calcagni memorandum}.

Other SIP submission requirements are linked with these attainment demonstration and RFP requiremen

- ts, and similar reasoning applies to them. The first of these additional

2See also "Procedures for Processing Requests to Redesignate Areas to Attainment," from John**~alcagni,** 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 onlyhave meaning for areas not attaining the standard") (hereinafter referred to as "September 1992 Calcagni memorandum"}.4


### requirements are the contingencymeasure requirements of section 172(c)(9) and section 182(c)(9). The EPA haspreviously · interpretedthe contingencymeasure requirement of section 172(c)(9) as no longer being applicable oncean area has attained the standard since those "contingencymeasures are directed at ensuring RFP and attainmentbythe applicabledate" (57 FR 13564;

see also September

.4, 1992 Calcagnimemorandum). 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)**(~)** 

### no longer applies once an area has attained the standard.

Other requirementsrelatedto the attainment demonstration andRFP provisions include: (1) the section 182(c)(5) requirement regarding the submissionof a demonstration as to whethervarious parameters related totransportation ••are consistent withthose used for the area's demonstration of attainment"; (2) the section 182(g) requirements concerning milestones that arebased on the 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 strategiesto achieve reductions inmotorvehicle emissions that relate to the RFP requirements of section 182(b)(1)(A) and 182(c)(2)(B). Inasmuch

as each of theserequirements is linkedwiththe attainment demonstration or RFP requirements of section 182(b)(1) or 182(c)(2), if an area is not subject tothe requirement to submit the underlying attainmentdemonstrationor RFP plan, it neednot submit the related SIP revision either.

The EPA emphasizes that this interpretation does not extend
to requirements of subpart 2 thatare not linked bythe language of the Act withthe attainmentdemonstrationandRFP requirements. For example, this interpretation does not applyto requirements such as VOC RACT requirements, for which, in contrastto NOx RACT requirementsunder section 182(f), the Act does not establish a mechanismto grantexemptions if an area has attained the standard, or tothe requirements to submit SIP revisions providing for basic or enhanced I/Mprograms.

The EPA also emphasizes thatthe lack of a requirement to submit SIP revisions concerningtheseRFP, attainment demonstration, andotherrelatedrequirements exists only for as long as a nonattainment area continues tomonitor attainment of the standard. If such an area experiences a violation of the NAAQS, the basis for the**requirem~nts** 

### 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

nomore than a suspension of the requirement for so long as the

area continues to attain the standard. If EPA ultimately 

### .. .5

redesignates the area to attainment, then the area will be entirely relieved of these requirements to the extent the maintenance plan for the area does not rely on them.

Also, EPA notes that in the case of a multistate nonattainment area, the entiremultistate nonattainment area must have monitoring data demonstrating attainment for the SIP submission requirements to be suspended. Thus, the requirements applicable to one part of such an area may not be suspended on the basis of a determination only that that part of the nonattainment area is monitoring attainment. The EPA's Regional Offices should coordinate these determinations for any multistate nonattainment**~reas** that involvemore than one Region.

III. Process

The EPA Regional Offices will conduct individual rulemakings concerning areas that have 3 consecutive years of clean air quality monitoring data demonstrating attainment of the**~zone** standard to make binding determinations that the areas have attained the standard and need notmake whichever of the SIP revisions discussed above are pertinent. Since EPA has the relevant air quality data in its possession, no submission from a State would be required to initiate this process. However, a State would be free to submit a petition to the appropriate EPA Regional Office to notify the 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**contingep~** on the existence of monitoring data for the

·areas that continue t9

. demonstrate attainment. If EPA subsequently determines that an

area has violated the**st~ndard,** the basis for the determination that the area need notmake the pertinent SIP revisions would no longer exist. The EPA would notify the State of that determination and would also provide notice to the public in the Federal Register. Such a determination would mean that the area would thereafter have to address the pertinent 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 State must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The air quality data relied upon for the above**determi~ations** must be consistent with 40 CFR part 58 requirements and otherrelevant EPA guidance and recorded in EPA's Aerometric Information Retrieval 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 in the area where there6

is evidence, such as photochemical grid modeling, showing that emissions from sources in the area contribute significantlyto nonattainment in, or interferewith maintenance by, other nonattainment areas. The EPA has authority under the Act (section llO(a)(2)(D) in the case of areas in other States and section llO(a)(2)(A) in the case of intrastate areas) to require emissions reductions if necessary and appropriate to deal with transport situations.

IV. Consequences for Redesignations, Sanctions, and conformity

Determinations made by EPA that an area has attained the NAAQS and need not make 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) that must be satisfied for an area to be redesignated to attainment

. To be redesignated, the State must submit and receive full approval of

a redesignation request for the area that satisfies all of the criteria of that section, including the requirement of a demonstration that the improvement in the area's air quality is due to permanent and enforceable reductions, and the requirements that the area have a fully-approved SIPwhichmeets 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 is made has submitted or subsequently submits a redesignation request, the SIP submissions discussed in this memorandum would not be required for the area's redesignation request to be approved since they would no longer be considered applicable**requiremen~~** under section 107(d)(3}(E). If the area violates the standard prior to final action on the redesignation request, however, not only would the requirements again become applicable, but the redesignation request could not be approved because the area would no longer meet 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 deficiency that had led to the starting of the clockwould no longer exist.

The issuance of a determination pursuant to this policy will 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 the 

### ..7

conformity rule), and the 15 percent SIP if one has been submitted (and attainment/RFP SIP, if one with a budget has been submitted).

Since areas that are the subject of determinations pursuant to this policy will not be required to submit RFP or attainment demonstration SIP's, those areas will not generally be in the control strategyperiod for conformity purposes (i.e., have a control strategy SIP approved and buildjno-build test no longer required) for so long as the area does not violate the standard. Those areas will not generallyhave approved budgets until a maintenance plan is approved as part of the approval of a redesignation request, so the build/no-build test and less-than1990 test--in addition to any applicable submitted budgets--will be required until then. (A maintenance plan budget does not apply for conformity purposes until the maintenance plan has been approved, except as provided by 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 determination pursuant to this policy had previously submitted a 15 percent or attainment SIP, itmay choose to withdraw the submitted SIP through the submission of a letter from the Governor or his or her designee in order to eliminate the applicability of its motor vehicle emission budget for conformity purposes. 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 in that submission will continue to apply for conformity purposes. If the submitted 15 percent or ·
. attainment SIP is withdrawn, only the build/no-build and less- · than-1990 tests would apply until a maintenance plan is approved.

However, areas that are already demonstrating conformity to

a submitted maintenance plan pursuant to section 51.448(i) may continue to do so, or may elect towithdraw the applicability of the submitted maintenance plan budget for conformity purposes until the maintenance plan is approved. The applicability may be withdrawn through the submission of a**lette~** 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 and whose 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 certaindate).

If you have any questions, please feel free to call me or Sally Shaver. The contactpersons 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