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A a 0 UNITEDSTATES ENVIRONMENTAL PROTECTIONAGENCY WASHINGTON, D.C. 20460 Z c 'I'T qC PROt G~~

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## SEP - 7 2005 OFFICE OF AIR ANDRADIATION 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 SIPrevision approval/disapproval actions. Anumber of Regions have used this process to gain feedback and consensus fromother regions and headquarters on proposals to deviate fromestablished 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. Dueto 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, reviewthe existing SIPConsistency 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 ofGeneral 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 mechanismthe Region uses to informits 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 followthe revised consistency process.

Internet Address (URL) " http://www .epa.gov Recycled/Recyclable "Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum50%Postconsumer content)Should you have any questions on the SIP Consistency process, please contact Donald

Cooke, Co-chair, National SIPProcessing 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 AirProgramManagers, Regions I - X OAQPS Desk Officers

# SIP Consistency Process e ional SIP Review ' Potential ' Consistency Issue Identified byRegional Air jDirector (AD), Yes

APM sends CIP to workgroup memberswith a cc to otherAPMs,ADDs and OGC Region drafts SIPConsistency Issue Paper (CIP) in prescribed format OAQPSDesk Officer notified of process

discussed on nextregular call ofexisting workgroup Petitioning Region assures that CIPwill be

All RA's and appropriate NPM briefed s

Dissenting Regions submitcomments to 1fWorkgroupor APMs discuss issue on call

No

Region prepares appropriate Action Memo for handling inconsistency Petitioning Region andcc: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 ADDtrys to resolve Issue with otherADs and appropriate NPM via scheduled conference call

"

Petitioning Regional Administrator briefed

f ' Does ' Petitioning Regional Administrator wish to
, continue? , Notify appropriate National ProgramManager (NPM)

Yes Does awork groupexist that dealswith identified
, issue? ,

Do all Regional representatives agreewith Proposal of Petitioning Region? Dec, 200z

Region Processes SIP

Record of Decision finalized and incorporated intoAction Memo

Petitioning Region notifies other

ADsIAPMs Petitioning Region assures that CIP will be previewed on monthlyAPM call and a special APM

call scheduled to discuss

draft Record of Decision sentto ADDs for concurrencewith cc to APMs and OGCAttachment B 

### SIPConsistency Process (Revised June 2005) When a Region wishes to pursue an action that may require a change in the way aregulation 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 followthe 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 Bto develop a Consistency Issue Paper (CIP) . The Desk Officer working with the initiating Region should determine ifthere is an applicable work group to address the CIP, or if it should be addressed by the Air ProgramManagers2 . The initiating Region and the Desk Officer should develop a general schedule for discussing the CIP, including procedures for keeping all Division Directors3, appropriate HQand Regional Officer managers, and OGCinformed 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 SIPProcessing Manual and to the Lotus Notes Quick Place site, AirComm

. " In the Action Memorandumprepared 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 fromhaving 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 FOIAWITHOUT APPROPRIATE REVIEW .

1The OAQPS Desk Officers have been designated, per theSIP Improvement Workgroup Final Report andsubsequent briefings with the Assistant Administrator, to serve as objective facilitators oftheconsistency process. Their role is to serve as a resource ofinformation regardingthe process, ensuring that the steps of the process are being followed, that issues areaddressed in a timely manner, and that all decisions on proposed Alternative Interpretations are properly documented by the initiating Region

2There maybe 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 thegroup to initiate discussion and request that it be discussedduring the next monthlyAPM conference call

3When a Regional Office initiates the SIPConsistency Process, the Division Directors oftheother Regions and Headquarters program offices involved have agreed to make agood faith effort not to prejudge the initiating Region's rationale for an Alternative Interpretation until the Division Directors have had achance 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 ofthe regulation/policy/interpretation/guidance set precedent?

Any Pending Litigation or Historical Litigation: Prepared by Region (Date) Date and Citation of FRrulemaking 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 SIPrevision. Include name of state, the applicable regulation/policy/interpretation/guidance, pollutant(s), attainment versus nonattainment area, etc. * This termmeans 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 EPAregulation/policy/interpretation/guidance is warranted for this SIPrevision. What are the consequences of not allowing the "alternative" application? Include the time frame by which the Region needs a decision. 4 . Is thesituation 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 allowEPAto make the case that a first time or different application of guidance/regulation/policy/interpretation for this particular SIPrevision would not then cascade to other situations. Can thefirst time or alternative approach be "walled off' such that it does not set a precedent (simply by beingfirst) or constitute a precedent setting change in that EPA regulation/policy/interpretation/guidance? 5 . If this `1irst time" approach or "alternative" application ofthe regulation/policy/ interpretation/guidance does for all practical purposes set precedent, what has been the initial reaction you have already received on this topic fromother Regions? Describe why the time may have come to allowfor 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 EPAcurrently in litigation, or has it litigated in the past, issues coveredby the regulation/policy/interpretation/guidance? For example, has EPA disapproved or approved a SIPrevision 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 FRrulemaking 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 thefirst time or different approach, it would add the dates and citations of its rulemaking notices for the SIPrevision to the one-pager here. These one-pagers will be housed in apassword protected location for future reference.

### Attachment C 

### Consistency Process Record

Consistency Issue Title: Identifier:seq# - yr BriefDescription 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 allowthe "alternative" approach, please describe the mechanismby 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 FRnotices that disapproved the SIP . Consistency Process Record Prepared By: (Name and Number) Date: