MEMORANDUM

SUBJECT:

FROM:

TO:"

UNITED STATES ENVIRONMENTAL PROTECTION AGENC-I/

Office of Air Quality Planning and Standards ,. .

Research Triangle Park, North Carolina 27711

OCT 281992

State Implementation Plan (SIP)_Actions Submitted

Response to Clean Air Act fAct) .D~ines -.r-/ // '//

John Calcagni, DirectOl1' ~///.",z}:M~ Air Quality Management nfviSion,,0A6PS\(MD-15)

. " /

Director, Air, Pestici'des and T~i9-S---

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

,,~

r

The purpose of this memorandum is to clarify issues related

to redesignation requests and SIP actions submitted in response

to Act deadlines, and specifically address SIP elements that are

due November 15, 1992. The following topics are addressed below:

completeness determinations on commitment sUbmittals; requests

for parallel processing to meet,Act deadlines; effect of

redesignation requests on mandatory Act submittals; completeness

determinations on emission inventory sUbmittals; and issuing

letters to the States making a finding of failure to submit a

required SIP, or SIP element.

Completeness Determinations on Commitment Submittals

In anticipation of commitment SIP's being submitted to the

Environmental Protection Agency (EPA) as authorized by section

110(k)(4) of the Act, my staff are working with the Office of

General Counsel (OGC) to revise the completeness criteria in

Appendix V of 40 CFR Part 51. 1 Specifically, it is our intent to

include specific completeness criteria for committal SIP's.

1 A July 22, 1992 memorandum from Michael Shapiro identified a

number of statutory requirements for which EPA is inclined to

accept committal SIP's. (A clarification of that memorandum was

issued by Michael Shapiro on september 16, 1992.)
,-

2

The current completeness criteria do not address commitments

submitted under section 110(k)(4) of the Act. However, we are

interpreting section 110(k)(4) as allowing EPA to accept commitments from a state as complete submittals even though commitments

will lack some of the substantive elements required under the

current completeness criteria. consequently, committal SIP's

submitted to EPA should be reviewed against only those elements

of the completeness criteria that are directly applicable to

commitments in order to be determined complete. The elements of

the completeness criteria that are applicable to commitments are:

1. A formal letter of submittal from the Governor or his

designee requesting EPA approval of the commitment.

2. The commitment was sUbject to a pUblic hearing pursuant

to 40 CFR 51.102.

3. The submittal contains a schedule for the adoption of

the statutorily required measures.

Additionally, States should be encouraged to submit documentation

and a justification explaining the need for a commitment.

If a Regional Office receives a submittal that contains one

or more commitments in association with other rules or control

measures, the Region should consult with the responsible

Headquarters program office to determine if a commitment is

acceptable in that specific circumstance. (Please refer to my

July 9, 1992 memorandum entitled "Processing of State

Implementation Plan Submittals," specifically the part on

conditional approvals.) If EPA determines that it will consider

the commitment under the conditional approval process, the

commitment should be reviewed only as to the criteria that would

be applicable for commitments. However, if EPA determines that a

commitment cannot be used to meet the statutory requirement, the

submittal should be reviewed against all elements of the

completeness criteria.

Requests for Parallel Processing to Meet Act Deadlines

The EPA expects a number of States to request parallel

processing of draft rules as a way to meet Act deadlines. A

State request for parallel processing is not an official

submittal satisfying a statutory deadline since it is a draft

rule (i.e., the State has yet to adopt the regulation).

When the completeness criteria were promulgated with an

exception for parallel processing, EPA was not anticipating

submittals sUbject to statutory deadlines. The intent was to

continue the timesaving concept of parallel processing stateinitiated actions. However, the exceptions in the completeness

criteria could be interpreted as requiring EPA to accept draft
3

rules in order to meet statutory deadlines. As noted above,

draft submittals are not considered plan submittals under the Act

because they have not been adopted by the state. Consequently,

EPA is not precluded from making a finding of failure to submit a

required SIP element when a State submits a draft rule.

If a request for parallel processing is submitted to EPA

before the statutory deadline, EPA may agree to parallel process

~he action. However, EPA will not make a completeness finding

under section 110(k)(1) since that section applies to official

plan submittals and not draft rules. However, if the statutory

deadline passes and a State has not submitted the fully-adopted

regulation, the Regions should make a finding of failure to

submit under section 179(a)(1). This will initiate the sanctions

time clock.

SUbsequently, if a State sUbmits a fully-adopted rule or

maintenance plan, EPA will review the submittal against the

completeness criteria. The EPA will commence rulemaking action

if the submittal is complete. If the completeness criteria are

met, a finding of completeness will stop the time clock for

sanctions. If the completeness criteria are not met, EPA should

make a finding of incompleteness, thereby maintaining the

previous time clock for sanctions.

Because the parallel processing exception could be

interpreted to require EPA to accept draft rules as meeting a

statutory deadline, we are presently revising the completeness

criteria to remove the parallel processing exception. It should

be noted, however, that although parallel processing submittals

are not official plan sUbmittals, EPA will continue to use

parallel processing as an effective avenue for approving State

rules expeditiously.

Effect of Redesignation Requests on Mandatory Act Submittals

It has come to our attention that some States plan to submit

redesignation requests prior to November 15, 1992 with the

understanding that this will exempt them from implementing

mandatory Act programs due to start in November (e.g., oxygenated

fuels program, stage II vapor recovery rules, etc.). The

approvability of a redesignation request is based on the

requirements applicable as of the date of submittal of a complete

redesignation request. 2 States, however, are statutorily

2 For a redesignation request to be complete, any portions of the

redesignation request that are SIP revisions (e.g.,

maintenance plans and any additional control measures) must meet

the completeness criteria for SIP revisions. Redesignation

requests submitted for parallel processing will not be considered

official sUbmittals; therefore, they will not be treated as

complete submittals.
4

obligated to meet SIP requirements that become due any time

before an area is actually redesignated to attainment. Such

redesignation occurs when EPA has taken final rulemaking action

to approve a redesignation request.

Hence, if there is a failure by the State to meet a

statutory deadline for an area (before EPA has redesignated the

area as attainment), a finding of failure to submit should be

made. This, in turn, begins the sanctions process under section

179(a) (see september 4, 1992 memorandum, entitled "Procedures

for Processing Requests to Redesignate Areas to Attainment").

The findings letter should recognize any pending redesignation

request, note the State's statutory obligation to implement any ma~datory requirements that are due, and indicate that one of the

sanctions will be imposed after 18 months unless EPA approves the

redesignation request before the 18-month periOd has ended.

ThUS, the Regions should make all reasonable attempts to ensure

that the redesignation approval process does not take over 18

months.

Completeness Determinations on Emission Inventory Submittals

In a September 29, 1992 memorandum from William Laxton and

myself addressing pUblic hearing requirements for emission

inventory submittals, it was stated that EPA was providing a "de

minimis" deferral of the public hearing requirement for emission

inventory submittals. In that memorandum, it was also stated

that if emission inventory submittals do not meet the

completeness criteria (except for the deferred public hearing

requirement), EPA should make a finding of incompleteness.

However, that memorandum did not specify the process for making

completeness determinations on emission inventory submittals that

only lack the pUblic hearing element.

After discussion with OGC, we have determined that for the

emission inventory submittals that are only lacking evidence of a

pUblic hearing, EPA should make a finding of completeness

contingent upon the state fulfilling the public hearing

requirement. The completeness letter to the state should

indicate that the completeness determination is contingent upon

the State's fulfilling the pUblic hearing requirement by the time

identified in the September 29 memorandum. If the public hearing

requirement is not met by the time specified, then EPA will make

a finding of incompleteness on the original emission inventory

submittal. The completeness letter should further state that the

public hearing requirement must be met before or at the time of

submittal of a rate-of-progress or maintenance plan, or at the

time the inventory takes on regulatory significance such as

providing a basis for banking or trading.
5

As noted in the September 29 memorandum, EPA also is

providing 'a "de minimis" deferral of the requirement for EPA to

take action on the emission inventory submittals. The 12-month

statutory timeframe for approving or disapproving the emission

inventory submittal will start at the time the public hearing

requirement is met. If EPA has found the submittal incomplete,

EPA will not be required to take approval action on the

submittal.

Issuing Letters to the States Making a Finding of Failure to

Submit a Required SIP or SIP Element

The Regional Offices should be planning to issue findings of

failure to submit to states not meeting the November 1992 (and

other) statutory deadlines. The Agency has taken a strong stance

that such findings should be made soon after a due date has

passed. Notice that a state has failed to submit a SIP, or SIP

element, is made in the form of a letter from the Regional

Administrator to the Governor of a State. Please refer to the

July 22, 1992 Shapiro memorandum, entitled "Guidelines for State

Implementation Plan (SIP) Submittals Due November 15, 1992," for

further information. Further guidance will be made available on

the schedule and format of the findings.

If you have any questions on this memorandum, please contact

Denise Gerth at (919) 541-5550.

cc: Chief, Air Programs Branch, Regions I-X

John Cabaniss

Jeff Clark

Denise Devoe

Tom Helms

Steve Hitte

Steve Hoover

Ed Lillis

David Mobley

Rich Ossias

Joe Paisie

Lydia Wegman