[Federal Register Volume 62, Number 99 (Thursday, May 22, 1997)]
[Rules and Regulations]
[Pages 27968-27972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13484]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5828-6]
Approval and Promulgation of Air Quality Implementation Plans;
Revised Format of 40 CFR Part 52 for Materials Being Incorporated by
Reference
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of administrative change.
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SUMMARY: EPA is revising the format of 40 CFR part 52 for materials
submitted by states that are incorporated by reference into their
respective state implementation plans (SIPs). This format revision will
primarily affect the ``Identification of plan'' sections assigned to
each subpart (i.e., state or territory) of 40 CFR part 52, as well as
the format of the SIP materials that will be available for public
inspection at the Office of the Federal Register, the Air and Radiation
Docket and Information Center located in Waterside Mall, Washington,
D.C., and the originating Regional Offices. The revised format will;
better serve to help the public in determining the applicable state
provisions, rules and regulations that comprise the respective
Federally-enforceable SIP's; streamline the format of the documents
that will be available for public inspection at the above-mentioned
locations; streamline the IBR review process followed by the Office of
the Federal Register in reviewing state material for incorporation by
reference into 40 CFR part 52; and assure continued compliance with the
provisions of the Clean Air Act, which requires EPA to periodically
publish comprehensive SIP documents for each state. The sections of 40
CFR part 52 pertaining to provisions promulgated by EPA or state-
submitted materials not subject to IBR review remain unchanged.
EFFECTIVE DATE: This action is effective May 22, 1997.
ADDRESSES: SIP materials which are incorporated by reference into 40
CFR part 52 are available for inspection at (1) the Office of Air and
Radiation, Docket and Information Center (Air Docket), EPA, 401 M
Street, SW., Room M1500, Washington, DC 20460; and (2) the Office of
the Federal Register, 800 North Capitol Street, NW., Suite 700,
Washington, DC.
In addition, all SIP materials listed in the ``Identification of
plan'' sections of each 40 CFR part 52 subpart are available at the
appropriate EPA Regional Office as listed below:
(i) Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,
and Vermont. Environmental Protection Agency, Region 1, One Congress
Street, Boston, MA 02203.
(ii) New York, New Jersey, Puerto Rico, and Virgin Islands.
Environmental Protection Agency, Region 2, 290 Broadway, New York, NY
10007-1866.
(iii) Delaware, District of Columbia, Pennsylvania, Maryland,
Virginia, and West Virginia. Environmental Protection Agency, Region 3,
841 Chestnut Building, Philadelphia, PA 19107.
(iv) Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee. Environmental Protection
[[Page 27969]]
Agency, Region 4, 61 Forsyth Street, S.W., Atlanta, GA 30303.
(v) Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, IL 60604-3507.
(vi) Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Environmental Protection Agency, Region 6, Fountain Place, 1445 Ross
Avenue, Suite 700, Dallas TX 75202-2733.
(vii) Iowa, Kansas, Missouri, and Nebraska. Environmental
Protection Agency, Region 7, 726 Minnesota Avenue, Kansas City, KS
66101.
(viii) Colorado, Montana, North Dakota, South Dakota, Utah, and
Wyoming. Environmental Protection Agency, Region 8, 999 18th Street,
Suite 500, Denver, CO 80202-2466.
(ix) Arizona, California, Hawaii, Nevada, American Samoa, and Guam.
Environmental Protection Agency, Region 9, 75 Hawthorne Street, San
Francisco, CA 94105.
(x) Alaska, Idaho, Oregon, and Washington. Environmental Protection
Agency, Region 10, 1200 6th Avenue Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Ms. Montel Livingston, Chair, Agency
SIP Workgroup Steering Committee at (206) 553-0180, or Mr. Harold A.
Frankford, Leader, IBR Reform Team at (215) 566-2108.
SUPPLEMENTARY INFORMATION:
Background
Each state is required to have a SIP which contains the control
measures and strategies which will be used to attain and maintain the
national ambient air quality standards (NAAQS). The SIP is extensive,
containing such elements as emission inventories, monitoring network,
attainment demonstrations, and enforcement mechanisms. The control
measures and strategies must be formally adopted by each state after
the public has had an opportunity to comment on them. They are then
submitted to EPA as SIP revisions on which EPA must formally act.
Once these control measures are approved by EPA after notice and
comment, they are incorporated into the SIP and are identified in part
52 (Approval and Promulgation of Implementation Plans), Title 40 of the
Code of Federal Regulations (40 CFR part 52). The actual state
regulations which are approved by EPA are not reproduced in their
entirety in 40 CFR part 52, but are ``incorporated by reference,''
which means that the citation of a given state regulation with a
specific effective date has been approved by EPA. This format allows
both EPA and the public to know which measures are contained in a given
SIP and insure that the state is enforcing the regulations. It also
allows EPA and the public to take enforcement action, should a state
not enforce its SIP-approved regulations.
The SIP is a living document which can be revised by the state as
necessary to address the unique air pollution problems in the state.
Therefore, EPA from time to time must take action on SIP revisions
which may contain new and/or revised regulations as being part of the
SIP. On May 31, 1972 (37 FR 10842), EPA approved, with certain
exceptions, the initial SIPs for 50 states, four territories and the
District of Columbia.
(Note: EPA approved an additional SIP--for the Northern Mariana
Islands--on November 10, 1986 (51 FR 40799)).
Since 1972, each state and territory has submitted numerous SIP
revisions, either on their own initiative, or because they were
required to as a result of various amendments to the Clean Air Act
(CAA).
Within 40 CFR part 52, there are 58 subparts (subparts A through
FFF). Subpart A contains general requirements applicable to all states
and territories, while subparts B through DDD and FFF contain
requirements that are specific to a given state or territory. Subpart
EEE contains historical information pertaining to EPA action on SIP
material originally submitted by states to the National Air Pollution
Control Administration, Department of Health Education and Welfare in
1970.
The first or second section of each state-submitted subpart within
40 CFR part 52 (other than subparts A and EEE) is called
``Identification of plan.'' This section summarizes state-developed
requirements which EPA has approved as part of a given SIP since May
31, 1972. The state material became federally-enforceable at the time
of EPA approval through a procedure known as incorporation by reference
(IBR) under procedures prescribed in 1 CFR part 51. Originally, this
``Identification of plan'' section contained descriptions of both
regulatory and non-regulatory state requirements that were applicable
to a state SIP. However, state submittals that were approved by EPA on
or after July 1, 1982 were required to undergo a different type of IBR
review before they could be listed in the ``Identification of plan''
section. Under these procedures, EPA was required to provide the Office
of the Federal Register (OFR) the following documentation associated
with each SIP revision:
(1) A crossout/underlined version of the state document showing all
of the revisions being acted upon by EPA. All material that was
extraneous to the IBR documents was to be crossed out.
(2) The specific cross-reference in the respective Identification
of plan sections of all state citations or the individual source of the
documents being IBR'ed.
During a given year, EPA usually requests the OFR to perform
between 150 and 200 IBR reviews per year. While the use of the IBR
review process and the detailed citation descriptions found in 40 CFR
part 52 has helped interested parties keep track of the revised SIP
provisions for each subpart, both the EPA and the OFR have found the
IBR process for SIP revisions (as it currently exists) to be
inefficient and time consuming, given the frequency of the part 52
revisions subject to IBR. The necessary OFR review often has resulted
in a delay of three weeks or more before the final EPA action was
published in the Federal Register. In addition, the amount of IBR
material that EPA has been required to submit to the OFR and maintain
at the Air and Radiation Docket and Information Center at Waterside
Mall is voluminous in comparison to its overall utility. While the
interested public has access to all material that is IBR'ed in 40 CFR
part 52, the available material, in many cases, consists of a piecemeal
series of plan revisions (emphasis added) rather than integrated
amendments. Thus, EPA has found that it is no longer conducive for
providing the public with a sense of what comprises the comprehensive
SIP for each state, district and territory whose Federally-enforceable
regulations are listed in 40 CFR part 52. Furthermore, the current
format of the ``Identification of plan'' sections in 40 CFR part 52 is
inconsistent with the intent of section 110(h)(1) of the CAA which
requires EPA to ``assemble and publish a comprehensive document for
each state setting forth the requirements of the applicable
implementation plan of such State'' at periodic intervals. The initial
comprehensive compilation was due November 15, 1995, with updates
required every three years thereafter.
Revised Part 52 Format/IBR Document
As a result of consultations between EPA and OFR, EPA has begun the
process of developing (1) a revised SIP document for each state that
would be incorporated by reference under the provisions of 1 CFR part
51; (2) a revised mechanism for announcing EPA approval of revisions to
an applicable SIP and updating both the IBR
[[Page 27970]]
document and the CFR, and (3) a revised format of the ``Identification
of plan'' sections for each applicable subpart to reflect these revised
approval and IBR procedures. The description of the revised SIP
document, IBR procedures and ``Identification of plan'' format are
listed below in more detail.
Content of Revised IBR Document
The new SIP compilations will contain the Federally-approved
portion of regulations submitted by the various state agencies. The
compilations will be stored in 3-ring binders and updated primarily on
an annual basis. If no significant changes are made for any state to
the SIP during the year, an update will not be made during that year.
On the other hand, if significant changes occur during the year an
update could be done on a more frequent basis, as applicable.
Typically, only the revised section of the compilation will be updated.
Complete resubmittals of a state SIP compilation will be done on an as-
needed basis.
Each compilation will contain a table of contents identifying each
section of the regulations, including an adoption or effective date for
the regulations. The table of contents in the compilation will
correspond to the table of contents published in 40 CFR part 52 for
that particular state. A copy of the full text of each state's current
compilation will be maintained at the Office of Federal Register and
EPA's Air Docket and Information Center. Each EPA Regional Office will
maintain a compilation for the states within its jurisdiction. The EPA
Regional Offices will have the primary responsibility for ensuring
accuracy and updating the compilations.
EPA will publish an informational document in the rules section of
the Federal Register when updates are made to the SIP compilations.
These updates will generally be done on an annual basis, or more
frequently if needed. This notice will identify the specific sections
of the compilations being updated. It is envisioned that updates may be
for only one section, or for up to the whole compilation, depending on
the extent of revisions done during that year.
EPA will now begin phasing in SIP compilations for individual
states, and expects to complete the conversion of the revised
``Identification of plan'' format and IBR documentation for all states
by May 24, 1999. This revised format is consistent with the SIP
compilation requirements of section 110(h)(1) of the CAA; however, EPA
regards this part 52 reorganization as a separate streamlining effort
with no formal legal connection to the CAA section 110(h)(1)
requirements.
Revised Format of the ``Identification of Plan'' Sections in Each
Subpart
In order to better serve the public, EPA is revising the
organization of the ``Identification of plan'' section and including
additional information which will make it clearer as to what provisions
constitute the enforceable elements of the SIP.
The revised Identification of Plan section will contain five
subsections: (a) Purpose and scope, (b) Incorporation by reference, (c)
EPA approved regulations, (d) EPA approved source specific permits, and
(e) EPA approved nonregulatory provisions such as transportation
control measures, statutory provisions, control strategies, monitoring
networks, etc.
(a) Purpose and scope: Identifies the authority under which EPA is
approving the SIP revisions.
(b) Incorporation by reference: Lets the public know that the OFR
granted EPA approval to incorporate materials by reference which were
submitted by the states to fulfill CAA requirements, after notice and
comment. It also certifies that materials incorporated by reference are
exact duplicates of the state regulations as submitted by EPA to the
OFR.
(c) EPA approved regulations: This is a table that lists all of the
state regulations which have been submitted for inclusion in the SIP by
the state for the purpose of attaining and maintaining the NAAQS, and
which have been approved by EPA for those purposes. These regulations
have gone through state rulemaking process and the public was given an
opportunity to participate in the rulemaking. A comment field is
provided in the tables to describe any Agency limitations or
qualifications on EPA's approval action. Several of EPA's Regional
Offices have included similar tables as separate sections in part 52 in
the past, see Secs. 52.1031, 52.1605, and 52.1679. This format provides
a single location where interested parties can locate the applicable
state approved regulations which are included in the SIP. In the past,
interested parties would have to search the ``Identification of Plan''
section to determine which state regulations were currently approved as
part of the SIP. As EPA receives and acts on new SIP revisions which
affect the entries in the tables, upon final approval the entry would
be updated to reflect the latest state effective date and EPA's latest
approval date along with the FR citation. The full text of approved
regulations will not be included in the CFR but will become part of
those IBR documents described previously at the time of the next annual
update.
(d) EPA approved source specific permits: This table lists all the
source specific permits which have been submitted for inclusion in the
SIP by the state. These permits have gone through state rulemaking
process and the public was given an opportunity to participate in the
rulemaking. EPA also took rulemaking action on these permits and those
which have been approved or conditionally approved by EPA are listed
along with any limitations on their approval, if any. This provides a
single location where interested parties can locate the applicable
source specific state and EPA approved permits which are included in
the SIP. Should a permit be revised or a new permit submitted, after
EPA rulemaking on such revision the table entry would be revised to
reflect the new information.
(e) EPA-approved nonregulatory control measures: This table lists
all of the nonregulatory control measures which have been submitted for
inclusion in the SIP by the state. These control measures have gone
through state rulemaking process and the public was given an
opportunity to participate in the rulemaking. EPA also took rulemaking
action on these control measures and those which have been EPA-approved
or conditionally approved are listed along with any limitations on
their approval, if any. This provides a single location where
interested parties can locate the applicable nonregulatory control
measures which are included in the SIP.
Note: Because the documents and materials listed in subsection
(e) are nonregulatory, they will not undergo the IBR process under 1
CFR part 51. Therefore, these documents will be available for public
inspection only at the Regional Offices listed in the ADDRESSES
section above.
An example of the revised ``Identification of plan'' format appears
below:
Subpart XX--State Name
Sec. 52.xxxx Identification of plan.
(a) Purpose and scope.
This section sets forth the applicable state implementation plan
for [insert state name] under section 110 of the CAA, 42 U.S.C. 7401-
7671q and 40 CFR part 51 to meet national ambient air quality
standards.
(b) Incorporation by reference.
(1) Material listed as incorporated by reference in section 52.xxxx
(c) and (d) was approved for incorporation by reference by the Director
of the Federal Register in accordance with 5 U.S.C.
[[Page 27971]]
552(a) and 1 CFR part 51. Material incorporated as it exists on the
date of the approval, and notice of any change in the material will be
published in the Federal Register.
(2) EPA Region ____ certifies that as of July 1, 1997 the rules/
regulations provided by EPA at the addresses below are an exact
duplicate of the officially promulgated state rules/regulations which
have been approved as part of the state implementation plan.
(3) Copies of the materials incorporated by reference may be
inspected at the Office of Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC. Copies of the materials incorporated by
reference may also be inspected at the EPA, Air and Radiation Docket
and Information Center, Air Docket (6102), 401 M Street, SW.,
Washington, DC. 20460 and the appropriate Environmental Protection
Agency Regional Office listed in the ADDRESSES section of this
document.
(c) EPA approved regulations.
[Insert table of approved regulations, see example below.]
EPA APPROVED [insert state name] REGULATIONS.
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State citation Title/subject State effective date EPA approval date Comments
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The name of the state A unique date that The date EPA
regulations which the state uses to publishes its
are approved are identify different approval and the FR
listed in This versions of their citation.
column. regulations.
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(d) EPA-approved State Source specific permits.
[Insert table of approved source specific permits, see example
below.]
EPA-APPROVED [Insert state name] SOURCE-SPECIFIC PERMITS.
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State effective
Name of source Permit number date EPA approval date Comments
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Name of source requesting and Unique state The date state The date EPA
receiving specific limitations. identifying approved the publishes its
number. permit. approval and the
FR citation.
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(e) EPA approved nonregulatory provisions and quasi-regulatory
measures. Examples of nonregulatory SIP provisions include, but are not
limited to, the following subject matter:
SIP Narratives
PM10 Plans
CO Plans
Ozone Plans
Maintenance plans
I/M SIP's
Emissions Inventories
Monitoring Networks
State Statutes
Part D plans
Attainment demonstrations
Transportation control measures (TCM's)
Committal measures
Contingency Measures
Nonregulatory & Non-TCM Control Measures
15% Rate of Progress Plans
Emergency episode plans
Visibility plans
[Insert table of approved nonregulatory measures, etc., see example
below.]
EPA-APPROVED [insert state name] NONREGULATORY PROVISIONS.
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Applicable State submittal
Name of nonregulatory SIP geographic or date/effective EPA approved date Comments
provision nonattainment area date
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Name of control measures........ The geographic and/ The date state The date EPA
or nonattainment approved the publishes its
area were the control measure. approval and the
control measure CFR citation.
applicable.
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Revised Mechanism for EPA Approval
Under the current EPA approval/IBR procedures, EPA utilizes the
following procedure to revise 40 CFR part 52:
EPA revises subsection ( c) of the appropriate Identification of
plan section found in each subpart by adding or amending a numbered
paragraph. Each paragraph contains two major subparagraphs: An
``Incorporation by reference'' portion which describes the submittal
date, state agency/official, effective date of the rule in the
pertinent state, and a description of the rule (either section citation
or source name), and an ``Additional materials'' portion, which
references the remaining pertinent material (e.g., public hearing
information, control strategy demonstration, etc.) of that particular
state submittal. A copy of the official state document which reflects
the ``Incorporation by reference'' materials is sent to the OFR for
review. Each revision must undergo a thorough IBR review by the OFR.
Under the revised mechanism, EPA will indicate approval action of a
state submittal by amending the appropriate charts (see above)
describing the title of the regulation at the time of final EPA
approval of the submittal as published in the Federal Register. At the
outset under the revised mechanism, EPA will provide the full text of
the comprehensive SIP compilation described above for each state and
territory to the Office of Federal Register, along with a master table
of contents, which will constitute the base IBR document. Supplements
to this comprehensive IBR document will be submitted to the OFR for IBR
review approximately once per year, reflecting the changes made over
the course of the year to the individual tables, including the full
text of the currently approved SIP through the separate EPA rulemaking
actions. If no significant changes are made during the year, no updates
will be submitted to the OFR for IBR review.
Enforceability and Legal Effect
This change to the procedures for incorporation by reference
announced today will not alter in any way the enforceability or legal
effect of approved SIP materials, including both those approved in the
past or to be approved in the future. All material identified in the
Code of Federal Regulations (CFR) and approved by EPA into a SIP after
[[Page 27972]]
notice-and-comment rulemaking is federally enforceable, both by EPA
under CAA section 113 and by citizens under CAA section 304, where
applicable. This includes all materials listed for incorporation by
reference in the new section (c ) (all federally-approved state
regulations) and new section (d) (all source-specific SIP revisions),
as well as those identified in new section (e) (all non-regulatory SIP
provisions and quasi-regulatory measures). With respect to the
documents listed in section (e), since no regulatory material is
associated with these revisions these provisions are fully enforceable
upon EPA approval into the SIP, without any incorporation by reference.
To facilitate enforcement of previously approved SIP provisions and
provide a smooth transition to the new SIP processing system, EPA will
be retaining the current Identification of Plan section, previously
appearing in the CFR as the first or second section of part 52 for each
state, in an appendix to each state CFR section for a period of at
least two years. This appendix will include the Identification of Plan
section as it appeared in part 52 prior to adoption of the new system;
it will not add any newly submitted SIP revisions to the appendix.
After the initial two year period, EPA will review its experience with
the new system and enforceability of previously approved SIP measures,
and will decide whether or not to retain the Identification of Plan
appendices for some further period.
All SIP revisions approved in the future under the revised
``Identification of plan'' format and IBR procedure will be federally
enforceable as of the effective date of the final rulemaking in which
EPA approves the SIP revision. Specifically, as of the effective date
of the final rule, all provisions identified in the Federal Register
notice announcing the SIP approval will be fully enforceable under
sections 110 and 113 of the CAA, although they may not yet appear in 40
CFR part 52. Such provisions will be included in the next annual update
of the CFR described above. Thus, it is not necessary that regulatory
language associated with a SIP requirement have been actually
incorporated by reference into the CFR to render a SIP requirement
enforceable from the time of EPA approval.
In conclusion, EPA believes that the revised SIP document/IBR
procedures/40 CFR part 52 format described above represents an
improvement that benefits both the Government (by streamlining the
current procedures and reducing the size of the documents that must be
kept on file) and the interested public (by providing a clearer
description as to what constitutes the applicable SIP for each state at
any given moment in time). As explained above, the revised procedures
do not affect federal enforceability of the SIP, while at the same
time, is consistent with the requirements of section 110(h)(1) of the
CAA concerning comprehensive SIP publication. In addition, these
revised procedures are consistent with the goals of the Agency's
national performance review (NPR) designed to streamline EPA's
regulatory requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: May 14, 1997.
Carol M. Browner,
Administrator
[FR Doc. 97-13484 Filed 5-21-97; 8:45 am]
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