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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

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SEP - 7 2005 

OFFICE OF 

AIR AND RADIATION 

MEMORANDUM 

SUBJECT: Revisions to the State Implementation Plan (SIP) Consistency Process 

FROM: William L. Wehrum 

Acting Assistant Admi(ni 

TO: Air Division Directors, Regions I - X 

The original State Implementation Plan (SIP) Consistency process was established in 

1995 as part of the delegation to Regional Administrators of SIPs and SIP revision 

approval/disapproval actions. A number of Regions have used this process to gain feedback 

and consensus from other regions and headquarters on proposals to deviate from established 

national policy on an individual action or to otherwise set precedent. However, the process 

failed to establish definitive time frames for decision making or to define procedures for 

resolving apparent impasses . Due to these deficiencies, it has not been fully utilized over the 

last several years, a fact which could compromise the delegation . 

The Regional Air Division Directors requested that Regional Air Program Managers, 

with the assistance of OAQPS, review the existing SIP Consistency process and make 

recommendations for its improvement. Over the last several months, a revised process has 

been developed and approved by all involved, including the Office of General Counsel . The 

revised consistency process (Attachments A, B & C) is attached to this memo. 

To ensure the delegation process is adhered to in all SIP approval/disapproval actions, a 

Region should address the issue of consistency in the action memo that accompanies the 

Federal Register notice (or by whatever mechanism the Region uses to inform its Regional 

Administrator of a planned SIP action .) Once a Region decides that it wishes to pursue a 

proposal to set a new precedent, it must follow the revised consistency process . 

Internet Address (URL) " http://www.epa .gov 

Recycled/Recyclable " Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 50% Postconsumer content) 
Should you have any questions on the SIP Consistency process, please contact Donald 

Cooke, Co-chair, National SIP Processing work group (617) 918-1668, or Jerry Stubberfield, 

OAQPS at (919) 541-0876. 

Attachment A: SIP Consistency Process Flowchart 

Attachment B: SIP Consistency Process 

Attachment C: Consistency Process Record 

cc : Steve Page 

Greg Green 

Lydia Wegman 

Kevin McLean 

Richard Ossias 

Kay Holt 

Jerry Stubberfield 

Regional Air Program Managers, Regions I - X 

OAQPS Desk Officers 
SIP Consistency 

Process 

e ional SIP Review 

' Potential ' 

Consistency 

Issue Identified 

by Regional Air 

jDirector (AD), 

Yes 

APM sends CIP to workgroup members with a cc 

to other APMs, ADDs and OGC 

Region drafts SIP Consistency Issue Paper 

(CIP) in prescribed format 

OAQPS Desk Officer notified 

of process 

discussed on next regular call of existing workgroup 

Petitioning Region assures that CIP will be 

All RA's and appropriate 

NPM briefed 

s 

Dissenting Regions submit comments to 1fWorkgroup or APMs discuss issue on call 

No 

Region prepares 

appropriate Action 

Memo for handling 

inconsistency 

Petitioning Region and cc:Desk Officer 

No 

4- 

Yes 

No 

Region prepares Action Memo 

certifying no .consistency issue 

No 

Yes 

ADD's notified of inability to reach 

workgrouplAPM agreement 

Petitioning Region ADD trys to resolve Issue 

with other ADs and appropriate NPM via 

scheduled conference call 

" 

Petitioning Regional 

Administrator briefed 

f 

' Does ' 

Petitioning 

Regional 

Administrator 

wish to 

, continue? , 

Notify appropriate National 

Program Manager (NPM) 

Yes 

Does a work 

group exist that 

deals with 

identified 

, issue? , 

Do all Regional 

representatives 

agree with 

Proposal of 

Petitioning 

Region? 

Dec, 200z 

Region Processes SIP 

Record of Decision finalized and 

incorporated into Action Memo 

Petitioning Region notifies other 

ADsIAPMs 

Petitioning Region assures that CIP will be 

previewed on monthly APM call and a 

special APM call scheduled to discuss 

draft Record of Decision sent to ADDs for 

concurrence with cc to APMs and OGC 
Attachment B 

SIP Consistency Process 

(Revised June 2005) 

When a Region wishes to pursue an action that may require a change in the way a regulation 

or policy has been applied in the past, change a current Agency interpretation, or pursue an action 

where a policy has not yet been developed, the Region is to follow the process as described in the 

attached flowchart. (Attachment A) 

Operating Principles 

" To gain resolution pertaining to a SIP action, the initiating Region should work with their 

OAQPS Desk Officer' once the Region decides that the Consistency Process should be used. 

The initiating Region should use the format described in Attachment B to develop a 

Consistency Issue Paper (CIP). The Desk Officer working with the initiating Region should 

determine if there is an applicable work group to address the CIP, or if it should be addressed 

by the Air Program Managers2. The initiating Region and the Desk Officer should develop a 

general schedule for discussing the CIP, including procedures for keeping all Division 

Directors3, appropriate HQ and Regional Officer managers, and OGC informed and if 

necessary, ensuring that Regional Administrators are kept abreast of issues in the event 

resolution must occur at the National Program Manager or higher level . 

" The initiating Region should prepare a Consistency Process Record (see Attachment C) 

documenting the results of the decision, including any potential remaining policy and/or legal 

issues, and distribute it to the other Regions and Headquarters Offices. OAQPS will add the 

decision document to the on-line SIP Processing Manual and to the Lotus Notes Quick Place 

site, AirComm. 

" In the Action Memorandum prepared to accompany a SIP action, the Region shall include 

either a certification that the SIP Consistency Process is not applicable or summarize the 

conclusions derived from having invoked the Consistency Process. 

CONFIDENTIAL: THIS IS AN INTERNAL AGENCY DOCUMENT WHICH MAY CONTAIN 

PRE-DECISIONAL, DELIBERATIVE, ATTORNEY-CLIENT, OR OTHERWISE PRIVILEGED MATERIAL. DO 

NOT RELEASE UNDER FOIA WITHOUT APPROPRIATE REVIEW. 

1 

The OAQPS Desk Officers have been designated, per the SIP Improvement Workgroup Final Report and subsequent briefings with the 

Assistant Administrator, to serve as objective facilitators of the consistency process. Their role is to serve as a resource of information regarding the 

process, ensuring that the steps of the process are being followed, that issues are addressed in a timely manner, and that all decisions on proposed 

Alternative Interpretations are properly documented by the initiating Region 

2 There may be situations where there is no existing workgroup to deal with a specific issue. In this case, the Region raising the issue, 

should use the Air Program Managers (APM) as the group to initiate discussion and request that it be discussed during the next monthly APM 

conference call 

3 When a Regional Office initiates the SIP Consistency Process, the Division Directors of the other Regions and Headquarters program 

offices involved have agreed to make a good faith effort not to prejudge the initiating Region's rationale for an Alternative Interpretation until the 

Division Directors have had a chance to discuss the proposal in a collective deliberation. The Directors will give the initiating Region a reasonable 

opportunity to explain the merits of its interpretation before concluding their deliberations on the proposal . 
SIP CONSISTENCY ISSUE PAPER (CIP) 

Issue: 

Making the Case: 

Is the situation unique (explain)? 

Will the new or different application of the regulation/policy/interpretation/guidance set 

precedent? 

Any Pending Litigation or Historical Litigation : 

Prepared by Region 

(Date) 

Date and Citation of FR rulemaking notices : 
Procedures for Completing the SIP CONSISTENCY ISSUE PAPER (CIP) 

1. Please include the language provided regarding the fact that the document is pre-decisional 

and deliberative . All recipients are to treat it as such. 

2. Issue: Describe the first time approach* or the different approach/application to existing EPA 

regulation/policy/interpretation/guidance that is facing the Region with regard to approving/ 

disapproving or advising a state on the content of a SIP revision . Include name of state, the 

applicable regulation/policy/interpretation/guidance, pollutant(s), attainment versus nonattainment 

area, etc . 

* This term means that in so far as the Region is aware, no other Region has yet taken any form of SIP action or provided 

advice to states on the issue/subject and no regulation/policy/interpretation/guidance exists . It does not mean the first 

time a Region advises or takes action to implement a regulation/policy/interpretation/guidance. 3. Making the case: Describe the circumstances that led the Region to believe that its preferred 

"first time" or "alternative" application of EPA regulation/policy/interpretation/guidance is warranted 

for this SIP revision . What are the consequences of not allowing the "alternative" application? 

Include the time frame by which the Region needs a decision . 

4. Is the situation unique or will this "first time" approach or "alternative" application of the 

regulation/policy/interpretation/guidance set precedent? Describe the unique situation/ 

extenuating circumstances that would allow EPA to make the case that a first time or different 

application of guidance/regulation/policy/interpretation for this particular SIP revision would not then 

cascade to other situations . Can the first time or alternative approach be "walled off' such that it does 

not set a precedent (simply by being first) or constitute a precedent setting change in that EPA 

regulation/policy/interpretation/guidance? 

5. If this `1irst time" approach or "alternative" application of the regulation/policy/ 

interpretation/guidance does for all practical purposes set precedent, what has been the initial 

reaction you have already received on this topic from other Regions? Describe why the time 

may have come to allow for a change in regulation/policy/interpretation/guidance. Describe, to the 

extent known, whether there is any adverse impact (environmentally/legally/politically or associated 

with implementation or enforcement) to another Region. Has another Region insisted on their states 

adhering to the regulation/policy/interpretation/guidance in the face of similar circumstances? What 

would a change in regulation/policy/interpretation/guidance mean in that Region now? 

6. Any pending litigation or historical litigation : Is EPA currently in litigation, or has it litigated 

in the past, issues covered by the regulation/policy/interpretation/guidance? For example, has EPA 

disapproved or approved a SIP revision anywhere in the county with this 

regulation/policy/interpretation/guidance as its rationale, and then been sued? Is that litigation 

pending? If completed, how does the settlement agreement (Consent Degree) or Court's opinion treat 

the issue? 

7. Prepared by Region - (Date) 

8. Date and Citation of FR rulemaking notices : This section would be completed later and not at 

the time of the inter-regional discussion of 2 - 7, above. If a Region gets the green light and proceeds 

to rulemaking implementing the first time or different approach, it would add the dates and citations 

of its rulemaking notices for the SIP revision to the one-pager here. These one-pagers will be housed 

in a password protected location for future reference. 
Attachment C 

Consistency Process Record 

Consistency Issue Title: 

Identifier: 

seq# - yr 

Brief Description of Issue: 

Consistency Process Invoked By: (Provide Region) 

Date Consistency Process Concluded: 

Description of the Outcome: (This description should document the decision itself and include 

information as to what level in the Consistency Process the outcome was reached and by whom). 

Implementation of Outcome: 

If decision was to move ahead with the "alternative" approach, please provide dates and citations of 

FR - Proposed and Final Rules that approved the SIP 

If decision was made to not allow the "alternative" approach, please describe the mechanism by 

which the Region informed the state. e.g ., verbally on (date) by whom to whom, letter dated 

from whom to whom, or dates/citations of FR notices that disapproved the SIP. 

Consistency Process Record Prepared By: (Name and Number) 

Date: