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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
JUL 9 1992
MEMORANDUM
SUBJECT: Processing of State Implementation Plan (SIP) Submittals
FROM:
John Calcagni, Director
Air Quality Management Division, OAQPS (MD-15)
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
This memorandum provides guidance concerning the processing of
SIP submittals. In general, there are three situations that can
occur related to each required submittal: the State may fail to
submit the required plan, the State may make a submittal that is
not complete, or the State may make a complete submittal. Once a
State submits a SIP and the Environmental Protection Agency (EPA)
has determined that the submittal is complete, EPA must either approve
or disapprove the submittal within a specified time period. However,
if the State fails to make a required submittal or makes a submittal
that is determined to be incomplete, the sanctions and Federal implementation
plan (FIP) provisions of sections 179 and 110(c), respectively,
will be triggered. In addition, disapproval of a submittal also
triggers the sanctions and FIP provisions. These provisions are
discussed in further detail in this memorandum.
There are, however, three alternatives to full approval or full
disapproval of a complete SIP submittal: partial approval, limited
approval, and conditional approval. Each of these is discussed in
more detail below along with some guidance as to when each might
be used. In addition, Attachment 1 to this memorandum contains several
examples of how these may be used. Attachment 2 to this memorandum
is a table that summarizes the requirements discussed below.
Partial Approval/Disapproval
Section 110(k)(3) of the amended Clean Air Act (Act) addresses
the situation in which an entire submittal, or a separable portion
of a submittal, meets all applicable requirements of the Act. Where
the entire submittal meets all the requirements of the Act, EPA
will fully approve the entire submittal. In the case where a separable
portion of the submittal meets all of the applicable requirements,
partial approval may be used to approve that part of the submittal
and disapprove the remainder. It is important that the two parts
of the submittal be separable. By separable, EPA means that the
action it anticipates taking will not result in the approved rule(s)
being more stringent than the State anticipated. See Bethlehem Steel
Corp. v. Gorsuch, 742 F. 2d 1028 (7th Cir. 1984); Indiana and Michigan
Elec. Co. v. U.S. E.P.A., 733 F. 2d 489 (7th Cir. 1984). For example,
EPA cannot approve part of a submittal that specifies control measures
and disapprove the part that specifies the test methods associated
with those control measures. The EPA has frequently taken a partial
approval approach in the past to process groups of rules that are
submitted together. The EPA can approve some of the rules and disapprove
the rest as long as the rules that are disapproved do not affect
those that are approved. The disapproval of any part of a required
SIP submittal starts the clocks discussed above for sanctions and
FIP'S.
Limited Approval/Disapproval
In some cases, a submittal may contain certain provisions that
meet the applicable requirements of the Act along with other provisions
that do not meet the requirements, and the provisions are not separable.
Although the submittal may not meet all of the applicable requirements,
EPA may want to consider whether the submittal as a whole has a
strengthening effect on the SIP. If that is the case, limited approval
may be used to approve a rule that strengthens the existing SIP
as representing an improvement over what is currently in the SIP
and as meeting some of the applicable requirements of the Act.
The Act does not expressly provide for limited approvals. Rather,
EPA is using its "gap-filling" authority under section 301(a) of
the Act in conjunction with the section 110(k)(3) approval provision
to interpret the Act to provide for this type of approval action.
Through a limited approval, EPA would concurrently, or within
a reasonable time thereafter, disapprove the rule, under the relevant
provision(s) of Part D, for not meeting all of the applicable requirements
of the Act. As with the limited approval action the limited disapproval
is a rulemaking action, and it is subject to notice and comment.
Under section 110(k), EPA must take final rulemaking action on SIP
submittals within 12 months of the date EPA determines the submittal
is complete or the submittal is automatically deemed to be complete
if EPA fails to make a completeness determination. As a general
matter, although the statute directs EPA to act within that timeframe,
EPA's failure to finalize the disapproval portion of the action
within that 12-month timeframe will not affect the validity of any
prior or subsequent limited approval or limited disapproval.[See
footnote 1] The EPA's failure to take action prior to the expiration
of the 12-month period could, however, subject EPA to a lawsuit
to compel such an action.
A key distinction between the limited approval and a partial approval
is that under a limited approval EPA's approval action goes to the
entire rule. In other words, although portions of a rule prevent
EPA from finding that the rule meets a certain requirement of the
Act, EPA believes that the rule, as a whole, strengthens the SIP.
Therefore, EPA approves the entire rule--even those portions that
prohibit full approval. Likewise, when EPA issues the limited disapproval,
the disapproval applies to the entire rule as failing to meet a
specific requirement of the Act. The rule remains a part of the
SIP, however, under the limited disapproval, because the rule strengthens
the SIP. The disapproval only applies to whether the submittal meets
a specific requirement of the Act and does not affect incorporation
of the rule into the approved, federally enforceable SIP.
The primary advantage to using the limited approval approach is
to make the State submittal federally enforceable and to increase
the SIP's potential to achieve additional reductions. Therefore,
limited approval should not be used to approve any rule that is
unenforceable for all situations--for example, a rule that lacks
a test method. These rules and any other rules that do not have
an overall strengthening effect on the SIP should be disapproved.
Limited approval can be used, however,
_______________
Footnote 1. The March 22, 1991 memorandum from John Calcagni discussed
the potential impact of Abramowitz v. U.S. E.P.A., 832, F. 2d 1071
(9th Cir. 1988), on EPA's decision to split the approval and disapproval
portions of a limited approval. After reevaluating that case, we
believe it may have a narrower impact than initially described and,
therefore, generally would not impact the timing of limited approval/disapproval
actions where the rule is unenforceable for some limited number
of situations but is enforceable for the majority of situations,
if the rule, as a whole, strengthens the SIP.
The disapproval coinciding with (or following) the limited approval
also starts the sanctions and FIP clocks discussed above. With the
limited approval EPA may or may not have a commitment from the State
to correct the deficiency. The EPA may choose to use the limited
approval approach (instead of conditional approval) in the case
where the State has submitted a commitment as part of a rule but
EPA has reason to believe that the State will not be able to meet
the commitment (as discussed below). Where a limited approval/disapproval
approach is taken, the notice of proposed rulemaking (NPR) should
clearly identify which requirements have not been met and what action
would be required on the part of the State to meet those requirements.
Conditional Approval
Under section 110(k)(4) of the Act EPA may conditionally approve
a plan based on a commitment from the State to adopt specific enforceable
measures within 1 year from the date of approval. If the State fails
to meet its commitment within the 1-year period, the approval is
treated as a disapproval. We expect that conditional approvals will
be used only in rare situations that merit special consideration.
We will evaluate specific types of SIP submittals [e.g., reasonably
available control technology (RACT) catch-ups, particles with an
aerodynamic diameter less than or equal to a nominal 10 micrometers
(PM-10) SIP'S] to determine whether certain elements of that type
of submittal, or that type of submittal as a whole, merit conditional
approval. For this reason and to ensure consistency, Regions should
not use conditional approvals without input from Headquarters as
to whether such an approach is appropriate. Furthermore, as any
statutory deadline approaches, we may issue guidance regarding the
appropriate use of conditional approval with respect to that specific
requirement.
once a determination has been made that a specific type of submittal
can be considered for conditional approval, Regions must make a
determination of whether an individual State submittal should be
conditionally approved. The first consideration should be whether
the State has made (or agrees to make) a commitment to adopt specific
enforceable measures within 1 year of EPA approval. The commitment
must be made in writing by the party responsible for adopting the
specified measures before the plan is conditionally approved, and
the commitment must be submitted by the State.[See footnote 2]
In addition, to the extent that the commitment materially alters
the existing rule (in respects that the public could not reasonably
have anticipated would result from the public review of the existing
rule), or is a commitment to adopt an entire rule or set of rules,
the commitment must be a SIP revision submittal by the State. In
many cases, the determination of whether the commitment materially
alters the underlying rule may be based on whether a similar issue
was raised during the earlier State proceedings on the submitted
rule. In general, each commitment will need to be examined to determine
whether it materially alters the submitted rule. As with any SIP
revision, in order for EPA to accept the commitment as a SIP revision,
the State must have provided notice and public hearing on the submitted
commitment. However, EPA has the discretion to parallel process
commitments and in limited circumstances may propose conditional
approval of the commitment and allow the State process to proceed
on a parallel track.
As a general matter, the greater the extent to which a submittal
is lacking in important plan elements, the less appropriate the
use of conditional approval may be. It should be noted, however,
that there may be circumstances under which EPA would accept a SIP
revision consisting of a commitment only (without specifically adopted
rules) as a candidate for conditional approval. In such cases, the
commitment should also be accompanied by a work plan detailing any
specific measures to be adopted, the steps that will be taken to
adopt the measures, and the schedule for adoption of those measures.
As stated earlier, a submittal that consists entirely of a commitment
will be considered a SIP revision that is subject to the State process
for submitting SIP revisions, e.g., notice and a public hearing.
Where the submittal contains specifically adopted rules that need
some revisions or corrections to be fully-approvable, the commitment
may not need to be as comprehensive. The commitment should, however,
be as explicit as possible concerning the measures that will be
adopted, the steps that will be taken to adopt the measures, and
the schedule for adoption of those measures.
_______________
Footnote 2. Although the commitment must identify the measures to
be adopted and contain a schedule for adopting such measures, it
is not necessary for the commitment itself to be enforceable in
a State court.
Because the conditional approval relies on a commitment from the
State, EPA would need some level of confidence that the State would
be able to meet such a commitment. In making a determination as
to whether a State could reasonably be expected to meet its commitment,
EPA would need to consider a number of factors such as:
- the amount of technical work necessary for the measures to
be adopted;
- whether adoption of the measures is expected to be controversial;
- the average length of the State adoption process;
- how far along in the process the State is; and
- the State's past track record.
It should be noted that these are only some of the factors that
should be considered. Each Region, in making a determination regarding
the credibility of the State's commitment, may have to look at a
number of other factors. The Region should clearly explain, either
in the NPR or in a technical support document, the rationale for
these determinations.
In addition to the determination of whether the State's commitment
is credible, the Region must make a determination as to whether
it is appropriate to conditionally approve a revision on the merits
of that revision. Conditional approval might typically be used in
the same types of situations as the limited approval. As with the
limited approval, one of the main advantages of the conditional
approval approach is to make the State submittal (where the submittal
contains control requirements and not just a commitment to adopt
enforceable measures) federally enforceable and to increase its
potential to achieve additional reductions. Because the conditionally
approved submittal will become a part of the SIP, the Region should
be certain that the approval of the commitment will hot weaken the
existing SIP. The Region may also want to consider when the plan
(or plan element) that has been submitted was due.
The NPR for a conditional approval should clearly identify which
requirements are the subject of the commitment and, therefore, have
not been met. In addition, both the NPR and the State's commitment
should clearly identify what action is required on the part of the
State. Unlike the limited approval/disapproval, the conditional
approval does not immediately start the sanctions and FIP clocks.
These clocks start if and when the approval is converted to a disapproval.
There are at least two ways that the conditional approval may
be converted to a disapproval.[See footnote 3] First, if the State
fails to adopt and submit the specified measures by the end of 1
year (from the final conditional approval), or fails to submit anything
at all, EPA will have to issue a finding of disapproval but will
not have to propose the disapproval. That is because in the original
proposed and final conditional approval, EPA will have provided
notice and an opportunity for comment on the fact that EPA would
directly make the finding of disapproval (by letter) if the State
failed to submit anything.[See footnote 4] Therefore, at the end
of 1 year from the conditional approval, the Regional Administrator
(RA) will send a letter to the State finding that it had failed
to meet its commitment and that the SIP submittal is disapproved.
The 18-month clock for sanctions and the 2-year clock for a FIP
start as of the date of the letter. Subsequently, a notice to that
effect will be published in the Federal Register, and appropriate
language will be inserted in the Code of Federal Regulations. Similarly,
if EPA receives a submittal addressing the commitment but determines
that the submittal is incomplete, the RA will send a letter to the
State making such a finding. As with the failure to submit, the
sanctions and FIP clocks will begin as of the date of the finding
letter.
Second, where the State does make a complete submittal by the
end of the 1-year period, EPA will have to evaluate that submittal
to determine if it may be approved and take final action on the
submittal within 12 months after the date EPA determines the submittal
is complete. If the submittal does not adequately address the deficiencies
that were the subject of the conditional approval, and is therefore
not approvable, EPA will have to go through notice-and-comment rulemaking
to disapprove the submittal. The 18- month clock for sanctions and
the 2-year clock for a FIP start as of the date of final disapproval.
If EPA determines that the rule is approvable, EPA will propose
approval of the rule. In either instance, whether EPA finally approves
or disapproves the rule, the conditional approval remains in effect
until EPA takes its final action.
_______________
Footnote 3. It should be noted that this disapproval can be a limited
approval/disapproval. In some cases, the Regions may want to use
such an approach to retain the enforceability of control measures.
The NPR should indicate if this approach is planned.
Footnote 4. To provide for this contingency, in the final conditional
approval, EPA would need to provide, for example, "If the State
fails to make a submittal or makes only an incomplete submittal
during the time period for submittal of the rule, EPA will issue
a letter to the State which converts the conditional approval to
a disapproval."
It should be noted that EPA will conditionally approve a certain
rule only once. Subsequent submittals of the same rule that attempt
to correct the same specifically identified problems will not be
eligible for conditional approval.
Sanctions and FIP Requirements
Actions that Trigger the Sanctions and FIP Requirements
The actions EPA has the authority to take under the sanctions
and FIP provisions of the Act correspond to the different steps
EPA must follow as it reviews and processes SIP submittals. As discussed
previously, the Act in section 179[See footnote 5] requires EPA
to impose sanctions based on four types of actions (findings[See
footnote 6]) provided in section 179(a):
(1) a finding that a State has failed to submit a SIP, a SIP element,[See
footnote 7] or has submitted a SIP or SIP element that does not
satisfy the completeness criteria;
(2) that EPA disapproval of a SIP submission for A nonattainment
area based on its failure to meet one or more elements required
by the Act;
(3) a determination that the State has not made any other submission,
has made an inadequate submission (as required by the Act), or
that EPA disapproves such a submission; or
(4) a finding that a requirement of an approved plan is not
being implemented.
_______________
Footnote 5. Section 110(m) grants EPA broad authority to apply either
sanction listed in section 179(b) " . . . at any time (or at any
time after) a finding . . . " under section 179(a) with respect
to any portion of the State, with certain exceptions. This memorandum
is intended to address the application of sanctions under section
179. The section 179 sanctions apply only to the area for which
a finding has been made.
Footnote 6. Although subsections (1)-(4) refer to findings, determinations
and disapprovals, for simplicity these four actions will be referred
to as "findings."
Footnote 7. Since EPA does not intend to issue a list of such
elements per se, to ensure that such findings are consistently applied,
findings of failure to submit SIP elements should be decided on
a case-by-case basis in conjunction with Headquarters. The basis
for the finding should be clear and well-supported.
Under section 110(c)(1), EPA is required to promulgate a FIP based
on two types of findings:[See footnote 8]
The Sanctions and FIP Clocks
Although EPA may make any of the findings discussed above to trigger
the 179(a) sanctions and 110(c)(1) FIP requirements, these findings
do not require the immediate imposition of sanctions or promulgation
of a FIP. Instead the Act provides a "clock" for sanctions and FIP'S.
For plan submittals required under Part D or in response to a SIP
call, section I 179(a) allows for up to 18 months for the State
to correct the deficiency that is the subject of a finding or disapproval
before EPA is required to impose sanctions. Section 110(c)(1) provides
for up to 2 years for the State to correct the deficiency and for
EPA to approve a new submittal before EPA is obligated to promulgate
a FIP.
The Administrator has delegated the authority to make findings
of failure to submit to the RA's. The findings are made via letters
from the RA's to State governors or other State officers to whom
authority has been delegated. The letter itself triggers the sanctions
and FIP clocks. For disapprovals, the Federal Register notice in
which EPA takes final action triggers the sanctions and FIP clocks.
Findings of nonimplementation have traditionally been processed
as rulemaking actions through Headquarters. The sanctions clock
will start when EPA makes a finding of nonimplementation in the
Federal Register after soliciting comment on the proposal (the FIP
clock is not triggered by such a finding). Although the findings
of failure to submit and SIP disapproval start both the sanctions
and FIP clocks, what is required to stop the clocks differs; therefore,
they are discussed separately. Note that in some cases the sanctions
clock may be stopped while EPA remains under an obligation to promulgate
a FIP.
_______________
Footnote 8. Since the deficiency is a failure to implement after
a State has submitted a plan and EPA has approved it, it is unnecessary
for this finding to trigger a requirement that EPA develop the required
rule (i.e., prepare a FIP) and section 110(c)(1) does not require
it.
Sanctions Clock
Under section 179(a), in order to stop the sanctions clock, the
State must correct the "deficiency" prompting the finding. The EPA
must apply one of the two sanctions available under section 179(b)
within 18 months after the date of the finding and both sanctions
at 24 months, unless the deficiency has been corrected. Section
179(a) also requires EPA to apply both sanctions after 18 months
if EPA finds a lack of good faith on the part of the State.
Attachment 3 provides seven scenarios illustrating how the sanctions
clock operates, including examples of what constitutes a deficiency
correction (and hence a stopping of the clock). In brief, for purposes
of the sanctions clock, findings of failure to submit plans or complete
plans are corrected when EPA finds the submittal complete[See footnote
9] [although the FIP clock, is still running (see FIP clock discussion)]
and disapprovals are corrected when EPA takes final rulemaking action
approving the plan. In addition, findings of nonimplementation are
corrected when EPA makes a finding in the Federal Register that
the State is now implementing that provision.
FIP Clock
Under the FIP provisions, either a SIP must be approved or a FIP
must promulgated within 2 years of one of the two findings discussed
above. In other words, EPA must approve the State submittal in order
to stop the FIP clock. Where the sanctions and FIP clocks were started
by EPA disapproval of a plan, the clocks will run concurrently.
In this case, to correct the deficiency for purposes of the sanctions
clock, the State must make a submittal which EPA finds approvable.
Such a determination is not made until EPA issues a final approval
of the plan. Final approval of a plan is also what is needed to
stop the FIP clock. Attachment 3 provides seven scenarios of how
the FIP clock operates.
_______________
Footnote 9. Where EPA made a finding of failure to submit and subsequently
finds that the State has made a complete submittal for the plan
or plan element that was the subject of the finding, the letter
that makes the finding of completeness will notify the State that
the sanctions clock is stopped as of the date of that letter. The
Region should periodically announce any such findings that represent
corrections of failure to submit in the Federal Register.
Available Sanctions
For plan submittals required under Part D or in response to a
SIP call, if the State does not correct the specific deficiency
within the 18-month period allowed under section 179(a), EPA must
apply at least one of the two sanctions available under section
179(b)[See footnote 10] as described:
(1) Highway funding sanctions. The EPA may impose a prohibition
on the approval by the Secretary of Transportation of certain projects,
or the awarding of certain grants.
(2) Offset sanctions. A ratio of at least 2-to-1 will be required
for emissions reductions within the nonattainment area to offset
emissions from new or modified major facilities (as required under
section 173).
Regions should determine which of the sanctions will be applied at
the 18- and 24-month milestones on a case-by-case basis. As discussed
previously, EPA must apply both sanctions at the 18-month mark if
it finds there is a lack of good faith effort. Such a determination
should be made on a case-by-case basis in consultation with Headquarters.
In addition, once one of the sanctions has been imposed, EPA must
impose the second sanctions if the deficiency has not been corrected
within 6 months (regardless of the State's efforts). Headquarters
will issue a proposal of the sanctions and the Regional Office will
issue the final rule imposing sanctions.
Conclusion
General comments on this memorandum should be directed to Pam
Johnson of the Regional Operations Branch at (919) 541-5270. Comments
related specifically to ozone or carbon monoxide should be directed
to Carla Oldham at (919) 541-3347. Comments related to particulate
matter, sulfur dioxide, or lead should be directed to Chris Stoneman
at (919) 541-0823.
cc: Regional Air Counsels, Regions I-X Chief, Air Programs Branch,
Regions I-X Jane Armstrong, OMS (Ann Arbor) William Becker, STAPPA/ALAPCO
Denise Devoe, OAQPS (ANR-443)
_______________
Footnote 10. In addition, section 179(a) provides for an air pollution
grant sanction that applies to grants EPA may award under section
105. However, since it is not a sanction provided under section
179(b), it is not one of the sanctions EPA must impose after the
18-month period.
Tom Helms, AQMD (MD-15) Bill Laxton, TSD (MD-14) Ed Lillis, AQMD
(MD-15) Rich Ossias, OGC (LE-132A) Joe Paisie, AQMD (MD-15) John
Rasnic, SSCD (EN-341W) John Seitz, OAQPS (MD-10) Paula Van Lare,
OMS (ANR-445) Lydia Wegman, OAQPS (MD-10)
Attachment 1
Example 1
A State submits a SIP revision containing four rules: (1) control
requirements for bulk gasoline plants, (2) control requirements
for gasoline dispensing facilities (Stage I), (3) leak detection
requirements for gasoline tanks trucks, and (4) test methods that
apply to these three rules. The EPA review of the rules shows that
all of the rules except the Stage I rule meet the applicable requirements
of the Act. The Stage I rule fails to require submerged fill loading
for all storage tanks. This is inconsistent with EPA's RACT guidance
and the State has failed to propose an alternative that it has demonstrated
is RACT for the applicable sources.
Partial Approval
Under the partial approval option, EPA can approve the rules for
bulk terminals and tank truck leaks, approve the test methods, and
disapprove the Stage I rule. These rules are separable from the
Stage I rule. Disapproval of the Stage I rule does not affect the
stringency of the other three rules. Therefore, the other three
rules may be approved under this provision. However, the submittal
as a whole would only be partially approved.
Limited Approval of Stage I Rule
Under the limited approval approach, EPA could approve the Stage
I rule as being an improvement over what is currently in the SIP
and, at the same time or within a reasonable time after the approval
(but no later than 12 months after the submittal is complete), disapprove
the rule because it does not represent RACT. The sanctions and FIP
clocks would start upon the final disapproval of the rule.
Conditional Approval
Alternatively, EPA could conditionally approve the Stage I rule
if the State committed to revise the rule, within 1 year of the
conditional approval, to require submerged fill loading. If the
State then failed to make such a revision, EPA would issue a finding
converting the conditional approval to a disapproval.
Example 2
If in example 1 the first three rules (containing control requirements)
are all approvable but the fourth (containing the test methods)
is either deficient or has not been submitted, then the submittal
would have to be handled differently. Because a test method is critical
in determining the stringency of a control requirement and is needed
for the requirements to be enforceable, these rules cannot be considered
separable and, therefore, partial approval would not be an option.
In addition, because the control requirements will not be enforceable
without a test method, it would not be appropriate to use either
the limited or conditional approval approach. Example 3
A State submits a SIP revision that contains four PM-10 rules,
two for controlling emissions of fugitive dust and two for the control
of residential wood combustion. The rules represent reasonable available
control measures (RACM) and include (1) paving or stabilizing unpaved
roads, (2) developing a traffic reduction plan for unpaved roads,
(3) a mandatory episode curtailment program for residential wood
combustion, and (4) encouraging changeover to new source performance
standards and wood stoves. The third rule is deficient in that it
does not provide a communication strategy on which the curtailment
program is dependent.
Partial Approval
The EPA may approve the three rules which satisfy RACM but disapprove
the episode curtailment program as failing to meet the RACM requirement.
These rules are separable because disapproval of the curtailment
program will not have any effect on the stringency or enforceability
of the remaining rules.
Limited Approval
The EPA may approve the episode curtailment plan as strengthening
the SIP by providing enforceable measures in a SIP which currently
has no curtailment program. At the same time or within a reasonable
time after the approval (but no later than 12 months after the submittal
is complete), EPA must disapprove the rule as not representing RACM.
Final disapproval of the rule would start the sanctions and FIP
clocks.
Conditional Approval
The EPA may conditionally approve the rule if the State submits
a commitment to submit a revised rule within 1 year of the approval.
If the State then failed to make such a revision, EPA would issue
a finding converting the conditional approval to a disapproval.
Attachment 2
Type of Approval |
Separability |
Commitment |
Act Requirements |
SIP Strengthening |
Partial |
rules must be separable |
no commitment necessary |
part to be approved must meet all applicable requirements |
part to be approved must strengthen the SIP |
Limited |
deficient portion of submittal is not separable |
no commitment necessary |
does not have to meet all applicable requirements |
submittal as a whole must strengthen the SIP |
Conditional |
deficient portion of submittal is not separable |
State must commit to correct within 1 year |
does not have to meet all applicable requirements |
submittal as a whole must strengthen the SIP |
Attachment 3: Sanctions and FIP Clocks Scenarios
Scenario 1: The EPA receives a SIP and finds it incomplete prior
to the statutory due date of the SIP.
Although a finding that the State submitted an incomplete SIP
is one of the section 179(a) findings, the sanctions and FIP clocks
will not begin to run until after a submittal is due. This is because
the finding must be based on the failure to submit a complete required
SIP or SIP element and the submittal is not required until it is
due under the statute. If a SIP submitted prior to a due date is
still incomplete by the due date, then EPA will notify the State
by letter that the plan remains incomplete and that the 18-month
sanctions clock and the 2-year FIP clock have started.
Scenario 2: The EPA receives a SIP and finds it incomplete on
or after the statutory due date of the SIP.
If EPA receives a SIP and finds it incomplete pursuant to section
110(k) on or after the statutory due date of the SIP, then, as in
scenario 1, the State has failed to make a complete submittal under
section 179(a). The EPA will notify the State by letter that the
plan is incomplete and that the 18-month sanctions clock and the
2-year FIP clock have started.
Scenario 3: The EPA receives no submittal at the due date.
If EPA receives no submittal from a State to meet a statutory
due date, then it may make a finding of failure to submit under
section 179(a)(1), triggering the 18-month sanctions clock and the
2-year FIP clock.
Scenario 4: After the due date, EPA receives a SIP for which it
originally made a finding of failure to submit.
Upon receiving the plan, the sanctions clock will continue to
run during the completeness review and be stopped if EPA finds the
plan complete and continue if EPA finds the plan incomplete. If
the 18 months elapse during the time EPA is doing its completeness
review, EPA will not impose sanctions unless it determines the plan
incomplete. If sanctions have been imposed prior to the State's
submittal, the sanctions will remain in place until EPA determines
the submittal complete.
The FIP clock continues to run while EPA makes its completeness
determination.
Scenario 5: The EPA originally makes a finding of failure to submit,
then receives a SIP, finds it complete, but disapproves it in final
rulemaking.
Upon a determination that the SIP is complete, the State corrects
the deficiency that prompted the finding of nonsubmittal and the
sanctions clock stops. A new sanctions clock will start upon the
final SIP disapproval rulemaking. The new sanctions clock will not
stop until EPA has taken final action to approve the revised SIP
submittal.
Even after the submittal is determined to be complete, EPA remains
under obligation to promulgate a FIP. Therefore, the disapproval
of the SIP does not start a new FIP clock.
Scenario 6: The EPA originally makes a finding of failure to submit,
then receives a SIP, finds it complete, and approves it in final
rulemaking.
Upon a determination that the SIP is complete, the State corrects
the deficiency prompting the finding of nonsubmittal and the sanctions
clock stops. The EPA remains under obligation to promulgate a FIP
until EPA takes final rulemaking action to approve the SIP.
Scenario 7: The EPA finds that a State has failed to implement
a SIP or SIP provision.
The EPA will make a finding of nonimplementation in the Federal
Register after soliciting comment on the proposal. The sanctions
clock will start upon EPA taking final action and stop when EPA
makes a finding in the Federal Register after notice-and-comment
rulemaking that the State has corrected the deficiency that prompted
the finding. A finding of nonimplementation does not start a FIP
clock.
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