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. 
3

 The March 22, 1991 memorandum from John Calcagni 1

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.

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. The 1

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.
4

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, 

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
5

 Although the commitment must identify the measures to 2

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.

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.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,
6

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. 

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
7

 It should be noted that this disapproval can be a 3

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.

 To provide for this contingency, in the final 4

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."

should be certain that the approval of the commitment will not

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. First, if the State fails to 3

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. Therefore, at 4

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
8

 Section 110(m) grants EPA broad authority to apply 5

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.

 Although subsections (1)-(4) refer to findings, 6

determinations and disapprovals, for simplicity these four

actions will be referred to as "findings."

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.

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 1795

requires EPA to impose sanctions based on four types of actions

(findings ) provided in section 179(a): 6

(1) a finding that a State has failed to submit a SIP, a
9

 Since EPA does not intend to issue a list of such 7

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.

 

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.

SIP element, or has submitted a SIP or SIP element 7

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.

 

Under section 110(c)(1), EPA is required to promulgate a FIP

based on two types of findings:8

(1) a finding that a State has failed to make a required

submittal or that a submittal does not satisfy the

minimum completeness criteria established under section

110(k)(1)(A), or 

(2) the EPA disapproval of a SIP submittal in whole or in

part. 

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 179(a) allows
10

 Where EPA made a finding of failure to submit and 9

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

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.

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 [although the FIP clock is still 9
11

letter. The Region should periodically announce any such

findings that represent corrections of failure to submit in the

Federal Register.

 In addition, section 179(a) provides for an air 10

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. 

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. 

 

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) as described: 10

(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.
12

(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)

 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)
13

OAQPS:AQMD:ROB:RAS:PJohnson:JFlowers:629-5270:MD-15:7/7/92

Johnson--a:cond.app retyped JClevenger 6/23/92
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.
16

Attachment 2

Type of Approval Separability Commitment Act SIP

Requirements Strengthening

Partial rules must be no commitment part to be part to be

separable necessary approved approved must

must meet strengthen

all the SIP

applicable

requirements

Limited deficient no commitment does not submittal as

portion of necessary have to meet a whole must

submittal is all strengthen

not separable applicable the SIP

requirements

Conditional deficient State must does not submittal as

portion of commit to have to meet a whole must

submittal is correct within all strengthen

not separable 1 year applicable the SIP

requirements
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 noticeand-comment rulemaking that the State has corrected the

deficiency that prompted the finding. A finding of

nonimplementation does not start a FIP clock.