MEMORANDUM

SUBJECT:

FROM:

TO:" UNITED STATES ENVIRONMENTALPROTECTIONAGENC-I/ OfficeofAirQualityPlanningandStandards

,. . ResearchTrianglePark,NorthCarolina27711


# OCT2

# 81992

State Implementation Plan (SIP)_Actions Submitted Response to Clean AirAct fAct)**.D~ines** 

### -.r-/// '//
John Calcagni, DirectOl1'

## ~///.",z**}:M~** Air QualityManagementnfviSion,,0A6PS\(MD-15)

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## / Director, Air, Pestici'des and**T~i9-S---** ManagementDivision, Regions I and IV Director, Air andWaste Management Division, Region II Director, Air, Radiation, andToxics Division, Region III Director, Air andRadiation Division, Region V Director, Air, Pesticides, andToxics Division, RegionVI Director, Air andToxics Division, Regions VII, VIII, IX, andX**,,~** r The purpose ofthis memorandum is to clarify issues related
to redesignation requests and SIP actions submitted in response to Actdeadlines, and specifically address SIP elements that are due November 15, 1992. The following topics are addressedbelow: completeness determinations on commitment sUbmittals; requests for parallel processing to meet,Actdeadlines; effectof redesignation requests onmandatory 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 ofcommitment SIP's being submittedto the Environmental ProtectionAgency (EPA) as authorizedby section 110(k)(4) ofthe Act, my staffare working withthe Office of General Counsel (OGC) to revise the completeness criteria in Appendix Vof 40 CFRPart 51. 1 Specifically, it is our intentto include specific completeness criteria for committal SIP's.

1 AJuly 22, 1992memorandumfromMichael Shapiro identified a number of statutory requirements for which EPA is inclinedto accept committal SIP's. (Aclarification ofthatmemorandumwas issuedbyMichael Shapiro on september 16, 1992.)

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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 EPAto 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 EPAdetermines 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 EPAdetermines that a commitment cannot be used to meet the statutory requirement, the submittal should be reviewed against all elements ofthe completeness criteria.

Requests for Parallel Processing to Meet Act Deadlines

The EPAexpects 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, EPAwas not anticipating submittals sUbject to statutory deadlines. The intentwas to continue the timesaving concept of parallel processing stateinitiated actions. However, the exceptions in the completeness criteria could be interpreted as requiring EPAto accept draft3

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, EPAmay agree to parallel process**~he** action. However, EPAwill 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, EPAwill review the submittal against the completeness criteria. The EPAwill 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. Ifthe 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 EPAto accept draft rules as meeting a statutory deadline, we are presently revising the completeness criteriato remove the parallel processing exception. It should be noted, however, that although parallel processing submittals

are not official plan sUbmittals, EPAwill 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

obligatedto meet SIP requirements thatbecome due any time before an area is actually redesignated to attainment. Such redesignation occurs when EPAhas taken final rulemaking action
to approve a redesignation request.

Hence, ifthere is a failure by the State to meet a statutory deadline for an area (before EPAhas redesignated the

area as attainment), a finding of failure to submit shouldbe made. This, in turn, begins the sanctions process under section 179(a) (see september 4, 1992 memorandum, entitled "Procedures for ProcessingRequests 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 ofthe sanctions will be imposed after 18 months unless EPA approves the redesignation requestbefore the 18-monthperiOdhas ended. ThUS, the Regions shouldmake 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 fromWilliamLaxton and myself addressing pUblic hearing requirements for emission inventory submittals, itwas stated that EPAwas providing a "de minimis" deferral ofthe public hearing requirement for emission inventory submittals. In thatmemorandum, itwas also stated that ifemission inventory submittals do notmeet the completeness criteria (except for the deferredpublic hearing requirement), EPA shouldmake a finding of incompleteness. However, thatmemorandumdid not specify the process for making completeness determinations on emission inventory submittals that only lackthe pUblic hearing element.

After discussion with OGC, wehave determined that for the emission inventory submittals that are only lacking evidence ofa pUblic hearing, EPA shouldmake a finding ofcompleteness contingentupon the state fulfilling the public hearing requirement. The completeness letter to the state should indicate that the completeness determination is contingentupon the State's fulfilling the pUblic hearing requirementby the time identified in the September 29 memorandum. Ifthe public hearing requirement is notmetby the time specified, then EPAwill make

a finding of incompleteness on the original emission inventory submittal. The completeness letter should further state thatthe public hearing requirementmustbe metbefore or atthe time of submittal of a rate-of-progress ormaintenance plan, or at the time the inventory takes on regulatory significance such as providing a basis for banking or trading.5

As noted inthe September 29 memorandum, EPA also is providing'a "de minimis" deferral ofthe requirement for EPAto take action on the emission inventory submittals. The 12-month statutory timeframe for approving ordisapproving the emission inventory submittal will start at the time the public hearing requirement is met. IfEPAhas found the submittal incomplete, EPAwill notbe requiredto take approval action onthe submittal.

Issuing Letters to the States Making a Finding ofFailure to Submit a Required SIP or SIP Element

The Regional Offices shouldbe planning to issue findings of failure to submitto states not meeting the November 1992 (and other) statutory deadlines. TheAgency has taken a strong stance that such findings shouldbe made soon after a due date has passed. Notice that a state has failed to submit a SIP, or SIP element, is made inthe form of a letter from the Regional Administratorto the Governor of a State. Please refer to the July 22, 1992 Shapiro memorandum, entitled "Guidelines for State Implementation Plan (SIP) Submittals DueNovember 15, 1992," for further information. Furtherguidancewill bemade available on the schedule and format ofthe findings.

Ifyou have any questions onthis memorandum, please contact Denise Gerth at (919) 541-5550.

cc: Chief, Air Programs Branch, Regions I-X John Cabaniss JeffClark Denise Devoe TomHelms Steve Hitte SteveHoover EdLillis DavidMobley Rich Ossias Joe Paisie LydiaWegman