Title 40—Protection of Environment--Volume 1
PART 56—REGIONAL CONSISTENCY
§ 56.1   Definitions.
As used in this part, all terms not defined herein have the meaning given them in the Clean Air Act.
Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq. ).
Administrator, Deputy Administrator, Assistant Administrator, General Counsel, Associate General Counsel, Deputy Assistant Administrator, Regional Administrator, Headquarters, Staff Office, Operational Office, and Regional Office are described in part 1 of this title.
Mechanism means an administrative procedure, guideline, manual, or written statement.
Program directive means any formal written statement by the Administrator, the Deputy Administrator, the Assistant Administrator, a Staff Office Director, the General Counsel, a Deputy Assistant Administrator, an Associate General Counsel, or a division Director of an Operational Office that is intended to guide or direct Regional Offices in the implementation or enforcement of the provisions of the act.
Responsible official means the EPA Administrator or any EPA employee who is accountable to the Administrator for carrying out a power or duty delegated under section 301(a)(1) of the act, or is accountable in accordance with EPA's formal organization for a particular program or function as described in part 1 of this title.
§ 56.2   Scope.
This part covers actions taken by:
(a) Employees in EPA Regional Offices, including Regional Administrators, in carrying out powers and duties delegated by the Administrator under section 301(a)(1) of the act; and
(b) EPA employees in Headquarters to the extent that they are responsible for developing the procedures to be employed or policies to be followed by Regional Offices in implementing and enforcing the act.
§ 56.3   Policy.
It is EPA's policy to:
(a) Assure fair and uniform application by all Regional Offices of the criteria, procedures, and policies employed in implementing and enforcing the act;
(b) Provide mechanisms for identifying and correcting inconsistencies by standardizing criteria, procedures, and policies being employed by Regional Office employees in implementing and enforcing the act; and
(c) Insure an adequate quality audit for each State's performance in implementing and enforcing the act.
(d) Recognize that only the decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to “nationally applicable regulations . . . or final action,” as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly, and to provide for exceptions to the general policy stated in paragraphs (a) and (b) of this section with regard to decisions of the federal courts that arise from challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)).
§ 56.4   Mechanisms for fairness and uniformity—Responsibilities of Headquarters employees.
(a) The Administrator shall include, as necessary, with any rule or regulation proposed or promulgated under parts 51 and 58 of this chapter 1 mechanisms to assure that the rule or regulation is implemented and enforced fairly and uniformly by the Regional Offices.
1 Part 51 is entitled, “Requirements for Preparation, Adoption, and Submittal of Implementation Plans.” Part 58 is entitled, “Ambient Air Quality Surveillance.”
(b) The determination that a mechanism required under paragraph (a) of this section is unnecessary for a rule or regulation shall be explained in writing by the responsible EPA official and included in the supporting documentation or the relevant docket.
(c) The Administrator shall not be required to issue new mechanisms or revise existing mechanisms developed under paragraphs (a) of this section to address the inconsistent application of any rule, regulation, or policy that may arise in response to the limited jurisdiction of either a federal circuit court decision arising from challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), or a federal district court decision.
§ 56.5   Mechanisms for fairness and uniformity—Responsibilities of Regional Office employees.
(a) Each responsible official in a Regional Office, including the Regional Administrator, shall assure that actions taken under the act:
(1) Are carried out fairly and in a manner that is consistent with the Act and Agency policy as set forth in the Agency rules and program directives,
(2) Are as consistent as reasonably possible with the activities of other Regional Offices, and
(3) Comply with the mechanisms developed under § 56.4 of this part.
(b) A responsible official in a Regional office shall seek concurrence from the appropriate EPA Headquarters office on any interpretation of the Act, or rule, regulation, or program directive when such interpretation may result in application of the act or rule, regulation, or program directive that is inconsistent with Agency policy. However, the responsible official in a Regional office will not be required to seek such concurrence from the appropriate EPA Headquarters office for actions that may result in inconsistent application if such inconsistent application is required in order to act in accordance with a federal court decision:
(1) Issued by a Circuit Court in challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), if that circuit court has direct jurisdiction over the geographic areas that the Regional office official is addressing, or (2) Issued by a district court in a specific case if the party the Regional office official is addressing was also a party in the case that resulted in the decision.
(c) In reviewing State Implementation Plans, the Regional Office shall follow the provisions of the guideline, revisions to State Implementation Plans—Procedures for Approval/Disapproval Actions, OAQPS No. 1.2-005A, or revision thereof. Where regulatory actions may involve inconsistent application of the requirements of the act, the Regional Offices shall classify such actions as special actions.
§ 56.6   Dissemination of policy and guidance.
The Assistant Administrators of the Offices of Air, Noise and Radiation, and of Enforcement, and the General Counsel shall establish as expeditiously as practicable, but no later than one year after promulgation of this part, systems to disseminate policy and guidance. They shall distribute material under foregoing systems to the Regional Offices and State and local agencies, and shall make the material available to the public. Air programs policy and guideline systems shall contain the following:
(a) Compilations of relevant EPA program directives and guidance, except for rules and regulations, concerning the requirements under the Act.
(b) Procedures whereby each Headquarters program office and staff office will enter new and revised guidance into the compilations and cause superseded guidance to be removed.
(c) Additional guidance aids such as videotape presentations, workshops, manuals, or combinations of these where the responsible Headquarters official determines they are necessary to inform Regional Offices, State and local agencies, or the public about EPA actions.
§ 56.7   State agency performance audits.
(a) EPA will utilize the provisions of subpart B, Program Grants, of part 35 of this chapter, which require yearly evaluations of the manner in which grantees use Federal monies, to assure that an adequate evaluation of each State's performance in implementing and enforcing the act is performed.
(b) Within 60 days after comment is due from each State grantee on the evaluation report required by § 35.538 of this chapter, the Regional Administrator shall incorporate or include any comments, as appropriate, and publish notice of availability of the evaluation report in the Federal Register.