94-18572. Selection of Sequence of Mandatory Sanctions for Findings Made Pursuant to Section 179 of the Clean Air Act  

  • [Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
    [Unknown Section]
    [Page 0]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-18572]
    
    
    [[Page Unknown]]
    
    [Federal Register: August 4, 1994]
    
    
    _______________________________________________________________________
    
    Part II
    
    
    
    
    
    Environmental Protection Agency
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    40 CFR Part 52
    
    
    
    Clean Air Act Sanctions; Final Rule and Notice
    ENVIRONMENTAL PROTECTION AGENCY
    
    40 CFR Part 52
    
    [AD-FRL-5023-3]
    
     
    
    Selection of Sequence of Mandatory Sanctions for Findings Made 
    Pursuant to Section 179 of the Clean Air Act
    
    AGENCY: Environmental Protection Agency (EPA).
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: The EPA is promulgating a rule governing the order in which 
    the sanctions shall apply under the mandatory sanctions provision of 
    the Clean Air Act (Act), as amended, after EPA makes a finding of 
    failure specific to any State implementation plan (SIP) or plan 
    revision required under the Act's nonattainment area provisions. This 
    final rule provides that the offset sanction shall apply in an area 18 
    months after the date on which EPA makes such a finding with regard to 
    that area and that the highway sanctions shall apply in that area 6 
    months following application of the offset sanction. Once this rule is 
    effective, sanctions will apply automatically in the sequence 
    prescribed in all instances in which sanctions are required following 
    applicable findings that EPA has already made or that EPA will make in 
    the future, except when EPA determines through a separate rulemaking to 
    change the sanction sequence for one or more specific circumstances. 
    The public will have an opportunity to comment on any such separate 
    rulemaking.
    
    EFFECTIVE DATES: This action will become effective on September 6, 
    1994.
    
    ADDRESS(ES): The public docket for this action, A-93-28, is available 
    for public inspection and copying between 8:30 a.m. and 3:30 p.m., 
    Monday through Friday, at the Air and Radiation Docket and Information 
    Center, Room M-1500, Waterside Mall, U.S. EPA, 401 M Street, SW, 
    Washington, DC 20460. A reasonable fee may be charged for copying.
    
    FOR FURTHER INFORMATION CONTACT:
    Mr. Christopher Stoneman, Sulfur Dioxide/Particulate Matter Programs 
    Branch, Mail Drop 15, Office of Air Quality Planning and Standards, 
    U.S. EPA, Research Triangle Park, North Carolina 27711, telephone (919) 
    541-0823.
    
    SUPPLEMENTARY INFORMATION: The content of today's preamble is listed in 
    the following outline:
    
    
    I. Background
        A. Introduction
        B. Consequences of State Failure
        1. Section 179(a) Scope and Findings
        2. Section 179(b) Sanctions
        3. Applications and Timing of Section 179(b) Sanctions
        C. Notice of Proposed Rulemaking
        1. Proposal
        2. Rationale for Sanction Order
        3. Sanction Effectuation
        4. Opportunity for Comment
    II. Today's Action
        A. Final Action
        B. Summary of Comments and Responses
        1. Sanction Sequence and Rationale
        2. Sanction Effectuation
        3. Sanction Clock Policy
        4. Other Areas of Comment
        C. Summary of Changes in Rule
        1. Section 52.31(a)--Purpose
        2. Section 52.31(b)--Definitions
        3. Section 52.31(c)--Applicability
        4. Section 52.31(d)--Sanction Application Sequencing
        5. Section 52.31(e)--Available Sanctions and Methods for 
    Implementation
    III. Implications of Today's Rulemaking
        A. Implementation of the Sanctions
        B. Areas Potentially Subject to Sanctions
    IV. Miscellaneous
        A. Executive Order 12866
        B. Regulatory Flexibility Act
        1. Proposal
        2. Comments
        3. Response
        C. Paperwork Reduction Act
    
    I. Background
    
    A. Introduction
    
        On October 1, 1993, EPA proposed a rule (58 FR 51270) governing the 
    sequence of mandatory sanctions under section 179(a) (42 U.S.C. 
    7509(a)) of the amended Act. The document included extensive background 
    on the Act, some of which is briefly resummarized in this background 
    section because it relates directly to the Act's sanction provisions. 
    The information not repeated concerns the overview at pages 51270-2 of 
    the proposal provided on the Clean Air Act Amendments of 1990 (1990 
    Amendments), title I requirements of the Act, and EPA action on SIP's. 
    This background section also summarizes the proposal and the rationale.
    
    B. Consequences of State Failure
    
    1. Section 179(a) Scope and Findings
        The 1990 Amendments revised the law concerning sanctions1 to 
    address State failures to comply with the requirements of the Act. 
    Under section 179(a) of the Act, for any plan or plan revision required 
    under part D of title I or required in response to a finding of 
    substantial SIP inadequacy under section 110(k)(5) (42 U.S.C. 
    7410(k)(5)),2 the Act sets forth four findings3 that EPA can 
    make, which may lead to the application of one or both of the sanctions 
    specified under section 179(b) (42 U.S.C. 7509(b)). The four findings 
    are: (1) A finding under section 179(a)(1) that a State has failed, for 
    a nonattainment area, to submit a SIP or an element of a SIP, or that a 
    submitted SIP or SIP element fails to meet the completeness criteria 
    established pursuant to section 110(k) (42 U.S.C. 7410(k)); (2) a 
    finding under section 179(a)(2) where EPA disapproves a SIP submission 
    for a nonattainment area based on its failure to meet one or more plan 
    elements required by the Act; (3) a finding under section 179(a)(3) 
    that the State has not made any other submission required by the Act 
    (including an adequate maintenance plan) or has made any other 
    submission that fails to meet the completeness criteria or has made a 
    required submission that is disapproved by EPA for not meeting the 
    Act's requirements; or (4) a finding under section 179(a)(4) that a 
    requirement of an approved plan is not being implemented.
    ---------------------------------------------------------------------------
    
        \1\The 1990 Amendments also revised the Act's provisions 
    concerning Federal implementation plans (FIP's). Under section 
    110(c)(1), the FIP requirement is triggered by an EPA finding that a 
    State has failed to make a required submittal or that a received 
    submittal does not satisfy the minimum completeness criteria 
    established under section 110(k)(1)(A), or an EPA disapproval of a 
    SIP submittal in whole or in part. However, since FIP's are not the 
    subject of this notice, these provisions are not addressed here.
        \2\A finding of substantial inadequacy under section 110(k)(5)--
    known as a ``SIP call''--is made whenever EPA finds that a plan for 
    any area is substantially inadequate to attain or maintain the 
    relevant national ambient air quality standard (NAAQS).
        \3\Section 179(a) refers to findings, disapprovals, and 
    determinations. These will all be referred to by the one term 
    ``findings.''
    ---------------------------------------------------------------------------
    
        The EPA makes section 179(a) findings of failure to submit and 
    findings of incompleteness via letters from EPA Regional Administrators 
    to State governors or other State officers to whom authority has been 
    delegated.4 The letter itself triggers the sanctions clock. To 
    make findings of failure to submit and findings of incompleteness under 
    section 179(a)(1) and section 179(a)(3)(A), EPA is not required to go 
    through notice-and-comment rulemaking.5 For section 179(a)(2) and 
    section 179(a)(3)(B) findings of disapproval, the Federal Register 
    document in which EPA takes final action disapproving the submittal 
    (after notice and comment) initiates the sanctions clock. For section 
    179(a)(4) findings of nonimplementation, the sanctions clock starts 
    when EPA makes a finding of nonimplementation in the Federal Register 
    through notice-and-comment rulemaking. For both disapprovals and 
    findings of nonimplementation, the clock actually starts on the date 
    the final Federal Register actions are effective.
    ---------------------------------------------------------------------------
    
        \4\7-62, Finding of Failure to Submit a Required State 
    Implementation Plan or Any Other Required Submission of the Act, 
    Clean Air Act, Delegations Manual, 12/13/91.
        \5\Notice and comment considerations vis-a-vis findings of 
    failure to submit and incompleteness are discussed in the proposal 
    at page 51272, footnote 7, and in section IV.G. of this document.
    ---------------------------------------------------------------------------
    
    2. Section 179(b) Sanctions
        Under section 179(b), two sanctions are available for selection by 
    EPA following a section 179(a) finding.6 One available sanction is 
    a restriction on highway funding, as provided in section 179(b)(1) (42 
    U.S.C. 7509(b)(1)), which is discussed in the proposal at pages 51273-
    51274. The other available sanction is the offset sanction, as provided 
    in section 179(b)(2) (42 U.S.C. 7509(b)(2)), which is also discussed in 
    the proposal at page 51274.
    ---------------------------------------------------------------------------
    
        \6\In addition, section 179(a) provides for an air pollution 
    grant sanction that applies to grants the EPA may award under 
    section 105. However, since it is not a sanction provided under 
    section 179(b), it is not one of the sanctions that automatically 
    apply under section 179(a).
    ---------------------------------------------------------------------------
    
    3. Application and Timing of Section 179(b) Sanctions
        Although application of section 179(b) sanctions may become 
    mandatory when EPA makes a finding under section 179(a) (if the State 
    does not correct the deficiency), it is not immediate. Instead, section 
    179(a) provides for a sanction ``clock,'' which is described in the 
    proposal at page 51274. Generally, under section 179(a)'s sanction 
    clock, the sanction selected by EPA applies if the deficiency that 
    prompted the finding is not corrected before the sanction clock 
    expires. (The sanction clock is further discussed in section II.B.3. of 
    this document.)
    
    C. Notice of Proposed Rulemaking
    
    1. Proposal
        In the proposal, EPA proposed that the section 179(b)(2) offset 
    sanction would apply in an area 18 months from the date when EPA makes 
    a finding under section 179(a). Furthermore, EPA proposed that the 
    section 179(b)(1) highway sanction would apply in an area 6 months 
    following application of the offset sanction. The EPA proposed to 
    sequence the application of sanctions under section 179(a) in this 
    manner in all cases unless EPA determines, through individual notice-
    and-comment rulemaking, that the highway sanction will apply first.
        The proposal addressed the sequence in which sanctions shall apply 
    as required under section 179(a) with respect to a finding made under 
    subsections (1)-(4) specific to any implementation plan or plan 
    revision required under part D or any implementation plan or revision 
    required under part D found substantially inadequate pursuant to 
    section 110(k)(5). In general, part D plans and plan revisions are 
    required for areas designated nonattainment under section 107.7 
    The proposal did not encompass findings EPA can make under section 
    179(a) regarding SIP calls for non-part D plans or plan revisions or 
    the sanction provisions in section 110(m) of the Act.8 It also 
    does not encompass any findings EPA may make under other titles of the 
    Act (e.g., section 502(d) for operating permitting programs).
    ---------------------------------------------------------------------------
    
        \7\While part D generally applies to nonattainment areas, some 
    requirements extend to other areas. For example, section 184(a) 
    specifically created at enactment an ozone transport region, called 
    the Northeast Ozone Transport Region (NOTR), which is comprised of 
    several mid-Atlantic and New England States and the Consolidated 
    Metropolitan Statistical Area containing the District of Columbia 
    (see ``General Preamble for the Implementation of Title I of the 
    Clean Air Act Amendments of 1990'' at page 13527 (57 FR 13498)). 
    Though areas within some of these States may not be designated 
    nonattainment, the States must submit revisions to their SIP's by 
    certain statutory deadlines to include specific part D measures for 
    these areas (e.g., enhanced vehicle inspection and maintenance 
    program, reasonably available control technology for volatile 
    organic compounds (VOC) sources).
        \8\Section 110(m) of the Act grants EPA broad discretionary 
    authority to apply either sanction listed in section 179(b) ``at any 
    time (or at any time after) the Administrator makes'' a finding 
    under section 179(a) with respect to any portion of the State, 
    subject to certain limitations (57 FR 44534, Sept. 28, 1993). The 
    selection of sanctions being made by this action, however, does not 
    apply to the imposition of sanctions by EPA under section 110(m). 
    Note that sanction selection for section 110(m) findings will be 
    made through notice-and-comment rulemaking independent from this 
    action.
    ---------------------------------------------------------------------------
    
    2. Rationale for Sanction Order
        At pages 51274-51275 of the proposal, EPA described the purpose 
    sanctions can serve. One function is to encourage compliance with the 
    Act's requirements. A second function of sanctions is to protect and 
    preserve air quality in areas until the deficiency prompting the 
    sanctions-initiating finding can be corrected.
        In the proposal at page 51275, for three reasons, EPA proposed 
    that, as a general matter, the offset sanction apply at 18 months 
    followed by the highway sanction 6 months thereafter. First, EPA stated 
    that conceptually the offset sanction will, in general, provide a more 
    certain air quality benefit in the shorter and longer term than the 
    highway sanction.
        Second, the proposal stated the offset sanction provides greater 
    potential for more significant air quality protection because it 
    potentially affects all categories of stationary sources and, depending 
    on the pollutant(s) addressed in the deficiency prompting the finding, 
    may affect all criteria pollutants (i.e., pollutants for which EPA has 
    promulgated national ambient air quality standards (NAAQS) such as 
    carbon monoxide (CO), PM-10 (particles with an aerodynamic diameter 
    less than or equal to a nominal 10 micrometers), etc.). By contrast, 
    the highway sanction would affect only mobile sources and pollutants 
    emitted by mobile sources. (Mobile sources are not, for instance, 
    regarded as significant emitters of lead and sulfur dioxide 
    (SO2).)
        Third, in addition to air quality considerations, the 2-to-1 offset 
    sanction is less complicated to implement and administer than the 
    highway sanction by its very nature and because of the manner in which 
    EPA intends to effectuate it, as discussed in the proposal at pages 
    51275-51277.
        In addition, EPA noted in the proposal that it does not regard 
    sanctions as a long-term solution to air quality problems but rather 
    intends to work with States to resolve deficiencies as rapidly as 
    possible. Thus, by applying the offset sanction at 18 months, if the 
    State corrects the deficiency prompting the finding prior to 6 months 
    thereafter, then the highway sanction would not apply and EPA and other 
    affected agencies (most notably the Department of Transportation (DOT)) 
    would not be faced with its comparatively greater implementation and 
    administration burden.
        The EPA, therefore, proposed, as a general matter, that the offset 
    sanction apply before the highway funding sanction following a section 
    179(a) finding. The EPA recognized, however, that in specific cases the 
    particular circumstances may lead EPA to conclude that it is more 
    appropriate for the highway sanction to apply first. Therefore, EPA has 
    specifically noted that it may go through notice-and-comment rulemaking 
    for the highway sanction to apply after 18 months and the offset 
    sanction 6 months thereafter. (The sanction sequence rationale is 
    further discussed in section II.B.1. of this document.)
    3. Sanction Effectuation
        At pages 51275-51277 of the proposal, EPA describes how the offset 
    sanction applies and notes that, under the highway sanction, EPA 
    imposes a prohibition on approval by the Secretary of DOT of certain 
    highway projects and grants. Thus, the highway sanction is not directly 
    implemented by EPA. However, EPA noted that it is in the process of 
    developing procedures with DOT to provide for the coordinated 
    implementation of the highway sanction. (Sanction effectuation is 
    further discussed in section II.B.2 of this document.)
    4. Opportunity for Comment
        As discussed above, under section 179(a), the Act requires that 
    sanctions apply if the deficiency that prompted EPA's finding is not 
    corrected within the timeframes prescribed. The only discretion 
    afforded EPA is which of the two section 179(b) sanctions applies at 18 
    months and which 6 months thereafter. The proposal noted that if in the 
    future EPA makes exceptions to this rule, then in individual notice-
    and-comment rulemakings EPA will seek comment on whether the highway 
    sanction shall apply after 18 months and the offset sanction shall 
    apply 6 months thereafter given the circumstances at hand.
        The proposal also noted that the Administrative Procedure Act (APA) 
    provides citizens with a means that could be used to petition EPA to 
    propose that the highway sanction apply first. The APA, 5 U.S.C. 
    553(e), provides that ``Each agency (including EPA) shall give an 
    interested person the right to petition for the issuance, amendment, or 
    repeal of a rule.'' This provision could conceivably be invoked by a 
    citizen to petition EPA to propose that the highway sanction apply 
    first with respect to a section 179(a) finding covered by this action.
    
    II. Today's Action
    
    A. Final Action
    
        By this document, EPA is promulgating a rule which provides that 
    the section 179(b)(2) offset sanction shall apply in an area 18 months 
    from the date when EPA makes a finding under section 179(a) with regard 
    to that area if the deficiency prompting the finding is not corrected 
    within such period. The final rule also provides that the section 
    179(b)(1) highway sanction shall apply in an area 6 months following 
    application of the offset sanction in cases where the deficiency has 
    still not been corrected within that period. The section 179(b) 
    sanctions shall be sequenced in this manner in all cases unless EPA 
    proposes the highway sanction to apply first through separate notice-
    and-comment rulemaking. This final rule applies to plan or plan 
    revisions required under part D but does not apply to plans or plan 
    revisions required under part D found substantially inadequate pursuant 
    to section 110(k)(5). The proposed rule applied to both types of SIP's; 
    a discussion of why the latter type of SIP's--commonly known as part D 
    ``SIP calls''--are not covered by the final rule is in section II.C.3. 
    This rule also has the immediate effect of applying the offset sanction 
    on September 6, 1994 in affected areas for which the Administrator has 
    not determined that the 18-month sanction clock has expired by that 
    date and for which the deficiency prompting the finding has not been 
    corrected by that date. Specifically, in the notice section of today's 
    Federal Register, EPA is providing a list of areas that will be 
    potentially subject to sanctions on September 6, 1994.
        Note that the proposed rule did include tables in which EPA 
    intended to list areas subject to sanctions. In the final rule, EPA has 
    removed the tables from the rule and decided to provide information on 
    areas that will be potentially subject to sanctions in the separate 
    notice mentioned above. (Sections II.C.5. and III.B. below include a 
    discussion of why the tables were removed from the proposed rule and 
    why such removal does not carry any substantive significance.)
    
    B. Summary of Comments and Responses
    
        With one exception, this section consists of a brief summary of the 
    comments received on the proposal and EPA's responses. A more detailed 
    summary of comments and EPA's responses can be found in the docket in a 
    document entitled `` Selection of Sequence of Mandatory Sanctions for 
    Findings Made Pursuant to Section 179 of the Clean Air Act: Detailed 
    Summary of Comments and EPA's Responses'' (herein referred to as 
    ``Detailed Summary of Comments''). The one exception is for the 
    sanction clock policy; a detailed summary is provided here, as well as 
    in the companion document, in order to fully explain in the Federal 
    Register the changes EPA has made to the final rule in this area and 
    because of the complexity of this issue.
    1. Sanction Sequence and Rationale
        a. Summary of Comments. The EPA's proposal for the sequence of 
    mandatory sanctions and the rationale are provided in sections I.C.1. 
    and I.C.2. of this document, as well as in the proposal at pages 51274-
    5. The EPA received 14 comments on this part of the proposed rule. 
    Comments on the sanction sequence and rationale can generally be 
    considered in four groups: (1) Commenters who believe the sequence 
    should be reversed with the highway sanction applying first, (2) 
    commenters who believe that EPA should determine sanction order on a 
    case-by-case basis, (3) commenters who believe that the nature of the 
    deficiency should be considered in determining sanction sequence, and 
    (4) commenters who support the sequence as proposed.
        Four commenters stated that the sequence in which sanctions apply 
    should be reversed with the highway sanction generally applying first. 
    Several of the commenters contend that the highway sanction will be 
    more effective at compelling State correction of SIP deficiencies 
    because it would have greater economic impact, and it will be more 
    effective at addressing political and statewide failures. One commenter 
    disagrees with EPA's rationale that the offset sanction is more likely 
    to produce a greater air quality benefit, arguing instead that the 
    highway sanction better encourages early State compliance. Several 
    commenters challenge EPA's rationale that the offset sanction 
    potentially applies to all criteria pollutants; the commenters argue 
    that the fact that stationary sources emit more types of pollutants is 
    irrelevant since, in the proposed rule, the offset sanction applies 
    only to the pollutant(s) in the deficiency. The commenters also raise 
    an argument that EPA's proposed sequence unfairly burdens industry when 
    the SIP deficiency is State-caused and that sources will be unfairly 
    penalized due to project location and timing.
        Four commenters believe that EPA should determine sanction order on 
    a case-by-case basis. These commenters express concern that EPA's 
    streamlined approach provides insufficient notice of sanctions and 
    leaves many sanction application details unclear. One commenter argues 
    that EPA should streamline its own rulemaking processes rather than 
    deny notice to affected parties. These commenters were also concerned 
    that general application of the offset sanction would negatively impact 
    stationary sources. One commenter argues economic competitiveness and 
    air quality will deteriorate under the offset sanction. Two commenters 
    were concerned that because of the length of the EPA rulemaking process 
    stationary sources will bear the brunt of the sanction burden.
        Two commenters believe that the nature of the SIP deficiency should 
    be considered in determining sanction sequence. One commenter believes 
    that the sanction chosen should be linked to the SIP deficiency and 
    that EPA must conduct notice-and-comment rulemaking to determine 
    whether the highway sanction applies first as to specific types of SIP 
    deficiencies. The commenter is concerned that stationary sources will 
    bear the brunt of the sanctions burden, and that this result could 
    stifle economic development.
        Three commenters support the proposed sequence of sanctions. One 
    commenter supports the position that the link between the highway 
    sanction and air quality benefits is uncertain and another commenter 
    agrees that the offset sanction provides a quantifiable and more likely 
    air quality benefit. Another commenter supported EPA's concerns 
    regarding the administrative and implementation burdens of the highway 
    sanction as a basis for the offset sanction applying first.
        b. Response to Comments. In this final rule, EPA has maintained the 
    proposed sanction sequence with the offset sanction generally applying 
    first and the highway sanction second. The EPA continues to believe 
    this sequence is supported by the proposed rationales that the offset 
    sanction (compared to the highway sanction) will:
        (1) Provide a more certain and direct air quality benefit,
        (2) Potentially affect more criteria pollutants, and
        (3) Be easier to implement and administer. The EPA disagrees with 
    the comments that highway sanctions will always more effectively 
    address SIP-related deficiencies and should, therefore, be generally 
    applied first. In addition, EPA does believe that the offset sanction 
    will more likely produce a net air quality benefit. In some cases, the 
    offset sanction may be more effective at resolving SIP deficiencies. 
    For example, in an area that is undergoing significant economic growth, 
    the offset sanction could help bring pressure through stationary 
    sources wishing to expand or locate in the area and which are faced 
    with the need for an additional emission offset increment. Furthermore, 
    offsets achieved by such a sanction would benefit air quality in the 
    affected area. However, in particular instances, the EPA does not deny 
    that the offset sanction may not be as effective because, for example, 
    the area may be economically depressed and not experiencing growth. In 
    such a case, there may be less air quality benefit and perhaps less 
    pressure to correct the deficiency in applying the offset sanction 
    first.
        Nonetheless, overall EPA continues to believe that conceptually the 
    offset sanction (compared to the highway sanction) provides a more 
    certain, direct air quality benefit in the near and long term and 
    potentially covers more pollutants. An increased new source review 
    (NSR) offset ratio necessarily reduces air pollutant emissions as 
    sources modify or locate in an area under the offset sanction. By 
    contrast, the highway sanction may not directly reduce overall motor 
    vehicle emissions in the near term and any air quality benefits 
    resulting from the highway sanction would be indirect, as application 
    of the highway sanction would not necessarily prevent motorists from 
    driving, nor even necessarily result in overall emissions reductions, 
    at least in the short term. The EPA recognizes that in some instances 
    it may be more appropriate for the highway sanction to apply to address 
    a political failure and believes there are adequate mechanisms provided 
    under the rule to address these instances.9
    ---------------------------------------------------------------------------
    
        \9\ As noted in section I.C.4. of this notice, under the APA 
    citizens can petition the EPA for rulemaking to propose the highway 
    sanction to apply first.
    ---------------------------------------------------------------------------
    
        The EPA did not intend to suggest in the proposal that the offset 
    sanction will apply, in every case, to all criteria pollutants. The 
    offset sanction will apply only to all criteria pollutants (and their 
    precursors) for which the area is subject to the section 173 (42 U.S.C. 
    7503) offset requirement when the SIP deficiency is general in nature. 
    When the finding is specific to one or more pollutants (and its/their 
    precursor(s)), the sanction applies only to those pollutants (and/or 
    precursor(s)). The statement in the proposal intended that the offset 
    can potentially affect all criteria pollutants, either because of 
    pollutant-specific findings or general findings. This means that, 
    regardless of whether the finding is pollutant-specific or general, the 
    offset sanction will generally apply at least to the pollutants of 
    direct concern, and sometimes to others as well. On the other hand, the 
    highway sanction will potentially affect only those pollutants mobile 
    sources emit significantly and not, for instance, lead or SO2. 
    However, EPA also realizes that since CO nonattainment area problems 
    are due primarily to mobile sources, arguably application of the offset 
    sanction may not address the more significant sources contributing to 
    CO nonattainment problems. Nonetheless, the offset sanction still 
    applies to CO for nonattainment NSR purposes and thus will affect 
    sources subject to nonattainment NSR that wish to locate or expand in a 
    CO nonattainment area, which would provide some air quality benefit in 
    the area under the offset sanction. Therefore, EPA continues to believe 
    that overall the offset sanction is more likely to produce a greater 
    air quality benefit than the highway sanction because, as sources 
    locate in an area, direct emission reductions will be achieved through 
    the 2-to-1 offset for potentially any of the criteria pollutants.
        With respect to imposing sanctions on a case-by-case basis, EPA 
    believes there are two main disadvantages to this approach which have 
    led EPA to reject it. First, the individual notice-and-comment 
    rulemakings that would be needed for implementing the sanctions on a 
    case-by-case basis would impose significant demands on EPA's resources. 
    These resources could otherwise be spent on activities that more 
    directly serve the goal of the Act, namely, clean air. Second, the 
    approach taken in the final rule will provide certainty and sufficient 
    notification to the parties affected about the details of sanction 
    application and consistency in the implementation of section 179. These 
    details are further discussed in section III.A. and in the detailed 
    summary of comments document.
        As to establishing a rule that links the first sanction to the 
    deficiency on which the sanction is based, EPA believes that approach 
    fails to consider other important considerations with respect to 
    sanctions such as which sanction is more likely to yield the greater 
    air quality benefit. The EPA believes, as a general matter, that the 
    sanction that results in the greater air quality benefit is a more 
    important consideration than selecting the sanction sequence based 
    primarily on the nature of the deficiency.
        At the same time, EPA recognizes that in some cases it may be more 
    appropriate to apply the highway sanction first if the circumstances of 
    the deficiency warrant and the offset sanction is unlikely to yield 
    significant air quality benefits. The EPA believes the rule provides 
    the flexibility to do so. Additionally, EPA cannot predict, across all 
    sanction findings, which sanction will more effectively address State 
    inaction and thus could not base the general sanction sequence proposal 
    on that factor. Fundamentally, EPA has based its sanction sequencing 
    rationale primarily on the basis of which sanction EPA believes is 
    likely to yield the greater air quality benefit. It is impossible to 
    gauge the impact since the universe of areas which will be sanctioned 
    and for what duration are not known.
        The EPA does not disagree that the offset sanction has the 
    potential to impact industry and that this burden may be greater on 
    industry than on the transportation sector. However, by including the 
    offset sanction in the Act, Congress clearly intended that certain 
    sources, by virtue of the timing and location of their projects, would 
    be impacted.
    2. Sanction Effectuation
        A discussion of EPA's approach for effectuating the offset and 
    highway sanctions is provided in section I.C.3. of this document and at 
    pages 51275-7 of the proposal. The following is a brief summary of 
    major comments and EPA's responses.
        a. Major Comments. (1) Offset Sanction. Comments on offset sanction 
    effectuation addressed both the source and pollutant applicability 
    aspects of EPA's proposal. One commenter objects to the timing of the 
    applicability of the offset sanction and believes EPA's proposed 
    approach is contrary to past EPA practice. The commenter argues that 
    applying the increased offset ratio to all sources that have not 
    received a permit as of the date the sanction begins would stop many 
    sources during the permitting process for reasons beyond their control. 
    The commenter believes that in the past EPA has avoided these problems 
    by applying tighter NSR requirements only where permit applications 
    were not complete when the requirements became effective. The commenter 
    recommends EPA continue with this approach.
        Two comments concern the pollutant applicability of the offset 
    sanction. One commenter objects to the application of the offset 
    requirement to both ozone precursors (nitrogen oxides (NOX) and 
    volatile organic compounds (VOC)) even when the deficiency relates only 
    to one of the pollutants. In support, the commenter notes the broad 
    nature of section 179 and the manner in which NOX emissions are 
    treated under the Act vis-a-vis VOC emissions. Regarding PM-10 
    precursors, the commenter argues that the offset sanction should apply 
    to precursors only in those areas where EPA has approved a PM-10 SIP 
    control strategy imposing the offset requirement on PM-10 precursors.
        Another commenter believes that regardless of the SIP deficiency 
    the offset sanction should apply to all criteria pollutants and 
    precursors. In support, the commenter argues that section 179 
    references section 173, which applies to all offset requirements in 
    title I of the Act, and that this reflects a clear Congressional intent 
    to apply the offset sanction to these pollutants. The commenter also 
    believes that areas that have not yet received a section 182(f) (42 
    U.S.C. 7511a(f)) NOX exemption from the section 173 offset 
    requirements should remain subject to the increased offset ratio for 
    NOX until EPA grants an exemption.
        (2) Highway Sanction. One commenter requests that the rule include 
    a requirement that EPA notify several government entities of highway 
    sanctions to focus multi-agency resources on resolving SIP 
    deficiencies. Another commenter believes that the flow of flexible 
    funds for certain programs (e.g., congestion mitigation air quality 
    improvement program) should continue to flow if sanctions apply because 
    the funds are important for achieving the Act's goals by improving 
    transit.
        b. Response to Comments. (1) Offset Sanction Applicability. 
    Regarding offset sanction source and pollutant applicability, in the 
    final rule, EPA has maintained the approaches in the proposal.
        On source applicability, EPA believes it is important to maximize 
    the air quality benefit of the offset sanction by requiring that 
    sources whose permits are issued after the date the offset sanction 
    applies comply with a 2-to-1 emission offset requirement. Contrary to 
    the comment, the source applicability definition is not a departure 
    from all past EPA practices because historically EPA has not always 
    used the ``complete application'' definition. (The different source 
    applicability definitions EPA has used in the past are discussed in the 
    detailed response to comments document.) Therefore, EPA believes that 
    past practice does not constrain it from determining today that it is 
    important to enhance the effectiveness of the offset sanction by 
    defining source applicability on a permit issuance basis.
        Moreover, EPA believes that once the offset sanction applies, it 
    would be a violation of the sanction for a permit to be issued with an 
    emission offset of less than 2-to-1. The plain language of section 
    179(a) and section 179(b)(2) does not provide for nor contemplate any 
    grace period based on whether a source has submitted a complete 
    application.
        Regarding pollutant applicability of the offset sanction, EPA 
    believes the proposed applicability is reasonably supported and will 
    have the potential to effectively protect air quality. Section 
    179(b)(2) generally references the offset requirements of section 173 
    and does not restrict EPA's ability to base the applicability of the 
    sanction on a pollutant or pollutants (and its/their precursor(s)). 
    Moreover, pollutant-specific application of the offset sanction is 
    consistent with the requirements of section 179. Section 179(b)(2)'s 
    language providing that ``the ratio of emission reductions to increased 
    emissions shall be at least 2 to 1'' is general enough such that EPA 
    can determine the most reasonable method to apply the sanction. While 
    section 179(b)(2) references the broader section 173 requirement, EPA 
    believes it is more reasonable, with one caveat,10 to apply the 
    offset sanction to the criteria pollutants specifically related to the 
    SIP deficiency in question. Pollutant-specific application of the 
    offset sanction will encourage the State to correct its SIP 
    deficiencies and will provide reductions in emissions of the relevant 
    pollutant in the interim, without unnecessarily punishing stationary 
    sources in cases where the State's program for other pollutants is 
    adequate.
    ---------------------------------------------------------------------------
    
        \1\0Where the SIP deficiency is general, the offset sanction 
    applies to the criteria pollutant(s) (and its/their precursor(s)) 
    for which the area is required to meet the section 173 NSR 
    requirements. (This pollutant applicability definition for general 
    SIP deficiencies is also discussed in section II.C.5. below.)
    ---------------------------------------------------------------------------
    
        Regarding ozone and PM-10 precursors, EPA is maintaining the 
    approach in the proposal that the sanction applies to ozone and PM-10 
    precursors. The caveat to that general rule has expanded in one minor 
    respect with respect to the ozone precursor NOX. As provided in 
    the proposed rule, sources will need to achieve the increased offset 
    ratio for VOC and NOX when the finding concerns an ozone 
    requirement unless EPA approves a section 182(f) demonstration that the 
    Act's NOX nonattainment NSR requirements should not apply. In 
    addition, EPA has added the exception that if the area otherwise is not 
    subject to the section 173 offset requirement for NOX (e.g., 
    submarginal ozone nonattainment areas), then sources in that area would 
    not be subject to that requirement under the offset sanction (see 
    sections 182(f) and 182(b)(2)). This exception is necessary in light of 
    the specific language of the offset provision, which ties the offset 
    sanction specifically to offsets required under section 173. For PM-10 
    precursors, EPA has retained the caveat for cases in which EPA has made 
    a section 189(e) (42 U.S.C. 7513a(e)) determination for an area that 
    PM-10 precursors are not significant.
        (2) Highway Sanction Effectuation. The issues raised by the 
    commenters are not a subject of this rulemaking. The DOT has primary 
    responsibility for implementing the highway sanction and EPA is 
    coordinating with DOT on the development of procedures for that 
    purpose.
    
    3. Sanction Clock Policy
    
        a. Summary of Proposal. In the proposal, EPA described its proposed 
    policy with respect to the sanctions clock at pages 51272-51273.11 
    Under that interpretation, once the sanctions clock has started upon 
    EPA making a finding under section 179(a), in order to stop the clock, 
    EPA must determine that the State has corrected the deficiency that 
    prompted the finding. Similarly, to remove section 179(b) sanctions 
    applied under section 179(a), EPA must determine that the State has 
    come into compliance by correcting the deficiency that prompted the 
    finding that resulted in the application of one or both sanctions.
    ---------------------------------------------------------------------------
    
        \1\1For general guidance on EPA's interpretation, at the time of 
    proposal, of how the sanctions clock functions and what is necessary 
    to stop it, see the memorandum entitled ``Processing of State 
    Implementation Plan (SIP) Submittals'' from John Calcagni to Air 
    Division Directors, Regions I-X, July 9, 1992. A copy of this 
    memorandum has been placed in the docket for this rulemaking.
    ---------------------------------------------------------------------------
    
        For a finding that a State has failed to submit a SIP or an element 
    of a SIP, or that the SIP or SIP element submitted fails to meet the 
    completeness criteria of section 110(k), the proposal provided that EPA 
    will stop the sanctions clock or remove any sanctions applied upon 
    EPA's determination that the State has submitted the missing plan or 
    plan element and that the submittal meets the completeness criteria 
    established pursuant to section 110(k)(1). Note that EPA's July 9, 1992 
    SIP processing guidance indicated that if the 18-month sanction clock 
    elapses during a completeness review, sanctions would not be imposed 
    unless and until EPA determined the plan to be incomplete.12 In 
    such a case, the 18-month clock would continue to run so that if EPA 
    determined the plan to be incomplete after 18-months had elapsed, 
    sanctions would immediately apply.
    ---------------------------------------------------------------------------
    
        \1\2The policy also provided that, following findings of 
    nonsubmittal and incompleteness, sanctions which had applied would 
    continue to apply upon State submittal until the submittal was 
    determined to be complete.
    ---------------------------------------------------------------------------
    
        The proposal provided that if EPA disapproves a SIP submission 
    based on its failure to meet one or more plan elements required by the 
    Act, to correct the deficiency for purposes of stopping the sanctions 
    clock or removing the sanction, the State must submit a revised SIP to 
    EPA and EPA must approve that submittal pursuant to section 110(k). For 
    a finding that a requirement of an approved plan is not being 
    implemented, the proposal provided that the sanctions clock would stop 
    or sanctions would be removed through notice-and-comment rulemaking 
    determining that the State is implementing the approved plan or part of 
    a plan.
        b. Summary of Comments. Two commenters raise both practical and 
    legal issues with respect to the proposal's sanction clock policy where 
    it indicates that EPA must fully approve SIP submittals before 
    sanctions clocks that are started by disapprovals can be stopped.
        The first commenter's practical concern is time. With respect to a 
    sanctions clock started by a disapproval, because of the length of the 
    State's regulatory development, approval and adoption processes and 
    EPA's review period, the interpretation in the proposed rule could 
    result in sanctions being imposed even if a State had fully adopted and 
    submitted the corrective rule. Sanctions would remain in effect until 
    EPA finished its rulemaking approving the corrected rule. The commenter 
    is concerned that the rule could have an adverse impact solely because 
    EPA had not had time to act on SIP revisions that are fully approvable.
        The commenter further believes that EPA's policy is not supported 
    by the language of the Act. The commenter argues that the Act elsewhere 
    explicitly distinguishes between correcting the deficiency and EPA's 
    process of approving a SIP. Section 110(c)(1)(B) states that the 
    Administrator must promulgate a Federal implementation plan (FIP) 
    within two years of SIP disapproval ``* * * unless the state corrects 
    the deficiency, and the Administrator approves the plan or plan 
    revision * * *.'' Section 179(a), though, merely provides that 
    sanctions shall apply ``unless such deficiency has been corrected * * 
    *'' and does not include the phrase regarding EPA plan approval. The 
    commenter believes that EPA cannot ignore the difference between 
    sections 110 and 179 because to do so would constitute ``reading out'' 
    or rendering meaningless the additional phrase of section 110(c)(1)(B).
        To support its legal argument, the commenter states that principles 
    of statutory construction provide that effect must be given to each 
    word in a statutory provision, and that every effort must be made to 
    avoid an interpretation which renders other provisions of the same 
    statute inconsistent, meaningless, or superfluous (Boise Cascade Corp. 
    v. United States Environmental Protection Agency, 942 F.2d 1427, 1432 
    (9th Cir. 1991)). The commenter also notes that an agency cannot ignore 
    or ``read out'' part of a statute (Natural Resources Defense Council v. 
    United States Environmental Protection Agency, 822 F.2d 104, 113 (D.C. 
    Cir. 1987)).
        As an alternative to EPA's proposal, the commenter recommends that 
    the sanctions clock policy for disapprovals follow the process in the 
    proposal for findings of nonsubmittal and incompleteness. The commenter 
    states that under that alternative policy the clock would be stopped if 
    a new submittal is received, pending EPA's determination of whether the 
    deficiency has been corrected. The commenter urges EPA to adopt a 
    consistent policy to stop sanction clocks in all cases upon receiving a 
    revised SIP submittal. If EPA's preliminary review indicates the 
    deficiency has been corrected, then the clock would remain stopped and 
    EPA would proceed to approve the plan through rulemaking. If the 
    deficiency was not corrected initially, the clock would restart via a 
    letter to the State.
        A second commenter raised similar concerns with EPA's proposal that 
    actual approval was needed to stop a sanctions clock started by a 
    disapproval. According to the commenter, the clock should be suspended 
    with the submittal to EPA of a completed rulemaking and remain 
    suspended unless EPA disapproves the SIP. The commenter notes that EPA 
    has the opportunity to participate in the State's rulemaking process to 
    ensure the deficiency is corrected.
        c. Response to Comments. In response to the comments received, EPA 
    reevaluated its proposed sanction clock policy and made two 
    changes.13
    ---------------------------------------------------------------------------
    
        \1\3The EPA is also making a clarification to the sanction clock 
    policy which is discussed in section II.C.4.
    ---------------------------------------------------------------------------
    
        (1) Overview of Change One. For the reasons stated in subsection 
    (4) of this section II.B.3.c., EPA does not adopt the exact approach 
    set forth by the commenters, which would actually stop a sanctions 
    clock started by a disapproval upon State submittal of a SIP. However, 
    EPA has determined that it is reasonable to temporarily defer and/or 
    stay the application of sanctions, as appropriate,14 following SIP 
    disapprovals, where EPA proposes to fully approve a SIP revision or 
    proposes to conditionally approve a SIP.15 In addition, EPA has 
    determined that such deferral and/or staying of sanction application is 
    reasonable following findings of nonimplementation16 where EPA 
    proposes to find that a State is implementing its SIP. Simultaneous 
    with such proposed approval or finding of SIP implementation, EPA will 
    issue a separate, interim final determination that the State has 
    corrected the deficiency that prompted the finding that started the 
    sanctions clock. In all these cases, whether sanctions are deferred 
    and/or stayed depends on the timing of EPA's proposed action vis-a-vis 
    the sanction clocks.
    ---------------------------------------------------------------------------
    
        \1\4As discussed below under change two, the proposed sanction 
    clock policy specifically provided for the deferral of sanctions 
    during completeness reviews of SIP's submitted following 
    nonsubmittal and incompleteness findings, but not staying the 
    sanctions. The concept set forth here for initial disapprovals and 
    findings of failure to implement is carried forth from this process 
    developed in the proposal for initial findings of failure to submit 
    or of incompleteness. In carrying this concept over, EPA believes 
    that it is logical and necessary that if the effect of sanction 
    application is to be deferred that sanctions actually applied should 
    be stayed.
        \1\5Note that a proposed partial or limited approval would not 
    result in the deferral and/or staying of the application of 
    sanctions because such actions are associated with proposed partial 
    or limited disapprovals. (For a discussion of partial and limited 
    approvals/disapprovals, see the memorandum entitled ``Processing of 
    State Implementation Plan (SIP) Submittals'' from John Calcagni to 
    Air Division Directors, Regions I-X, July 9, 1992.)
        \1\6Although the comments focused on a clock started by a 
    disapproval, EPA has extended its changes to a clock started by a 
    finding of failure to implement, finding no reason to treat findings 
    of failure to implement differently.
    ---------------------------------------------------------------------------
    
        For initial SIP disapprovals where EPA subsequently fully approves 
    the revised SIP, sanctions would be deferred and/or stayed unless and 
    until EPA's proposed full approval was reversed by a proposed 
    disapproval or final disapproval of the revised SIP in whole or in 
    part. At that point, the interim final determination that the 
    deficiency had been corrected would be rescinded or reversed. For 
    initial SIP disapprovals where EPA subsequently proposes to 
    conditionally approve the revised SIP, sanctions would be deferred and/
    or stayed unless and until EPA reverses its proposed conditional 
    approval by a proposed disapproval or final disapproval of the revised 
    SIP in whole or in part. For initial SIP disapprovals where EPA 
    subsequently conditionally approves the revised SIP in final, sanctions 
    would be deferred and/or stayed unless and until the conditional 
    approval converts to a disapproval, or EPA proposes to disapprove in 
    whole or in part the revised SIP the State submits to fulfill the 
    commitment in its conditionally-approved SIP.17 When any of these 
    events occur with respect to a proposed or final conditional approval, 
    the interim final determination that the deficiency had been corrected 
    would be rescinded or reversed.
    ---------------------------------------------------------------------------
    
        \1\7On July, 9, 1992, EPA issued a policy that included a 
    discussion of how conditional approvals convert to disapprovals (see 
    memorandum entitled ``Processing of State Implementation Plan (SIP) 
    Submittals'' from John Calcagni to Air Division Directors, Regions 
    I-X, July 9, 1992). But note that, by this action, EPA is 
    withdrawing the part of the July 1992 guidance that addresses how 
    conditional approvals convert to disapprovals. In the near future, 
    EPA intends to issue additional guidance to address this aspect of 
    the conditional approval policy.
    ---------------------------------------------------------------------------
    
        For initial findings of nonimplementation, sanctions would be 
    deferred and/or stayed unless and until EPA reversed its proposed 
    finding that the State was implementing its SIP by proposing to find or 
    finally finding that the State was not implementing its SIP or by 
    withdrawing its proposed finding that the State was implementing its 
    SIP. At the point of that subsequent action, the interim final 
    determination that the State had corrected the deficiency would be 
    rescinded or reversed. (Exactly how the application of sanctions would 
    be deferred and/or stayed following SIP disapprovals and 
    nonimplementation findings is discussed in greater detail below in this 
    section. Change one is reflected in the rule in Sec. 52.31 (d)(2), 
    (d)(3), and (d)(4).)
        The rationale for the deferring and staying of sanctions in these 
    cases is that the proposed full or conditional approval or proposed 
    finding that the State is implementing its SIP would be the basis for 
    EPA's interim final determination that the State has corrected the 
    deficiency.18 When EPA issues this proposal, the Agency indicates 
    that it believes it is more likely than not that the State is complying 
    with the relevant requirements of the Act. The EPA believes it would be 
    inequitable for sanctions to apply in situations where EPA has made 
    such an affirmative finding, even though it is only preliminary. 
    Moreover, EPA believes it would be unfair to apply sanctions merely 
    because the clock had expired before EPA is able to take final action 
    on the submittal in these situations given the length of the rulemaking 
    process.
    ---------------------------------------------------------------------------
    
        \1\8The EPA's final conditional approval would merely continue 
    any stay or deferral initiated by EPA's proposed conditional 
    approval and EPA's simultaneous interim final determination the 
    deficiency has been corrected.
    ---------------------------------------------------------------------------
    
        (2) Overview of Change Two. The second change to the rule concerns 
    the guidance discussed in the preamble to the proposed rule at page 
    51273, footnote 9, where EPA indicated that if the sanction clock 
    started by a finding of failure to submit or incompleteness expires 
    during a completeness review for a subsequent SIP submittal, the 
    sanction would not apply unless and until EPA found the submittal 
    incomplete. In this instance, EPA intended that the sanction clock 
    would not temporarily stop, but instead would continue to run. During 
    that time, EPA would simply defer the application of the sanction while 
    it reviewed the SIP submittal to determine whether or not the State had 
    corrected the deficiency prompting the finding. Thus, if and when EPA 
    found the SIP incomplete after expiration of the 18-month clock, the 
    sanction would apply on the date EPA found the plan incomplete.19
    ---------------------------------------------------------------------------
    
        \1\9 Note that this specific aspect of the proposed sanction 
    clock policy was not actually reflected in the regulatory language 
    of the proposed rule but was discussed in the preamble only.
    ---------------------------------------------------------------------------
    
        After further analysis of this aspect of the sanction clock policy 
    in the context of addressing comments, EPA has determined that it is 
    inappropriate to defer and/or stay sanctions when sanction clocks 
    elapse during review for completeness of plans submitted by States 
    following findings of nonsubmittal and incompleteness. Therefore, EPA's 
    rule provides that the temporary deferral and staying of the 
    application of sanctions occurs only when EPA takes an affirmative 
    action in which it indicates the Agency's belief that the State has 
    corrected the deficiency prompting the finding (e.g., that the State 
    has corrected the finding of nonsubmittal or incompleteness). The EPA 
    believes this change is necessary since, upon further reflection, EPA 
    realizes that in such a situation there has been no prior affirmative 
    action by EPA preliminarily or finally determining that the State has, 
    in fact, corrected the deficiency. A proposed approval of a revised SIP 
    following a disapproval constitutes such an action as does a proposed 
    finding that a State is implementing its SIP following a finding of 
    nonimplementation. However, mere EPA receipt of a SIP submittal from a 
    State following a nonsubmittal or incompleteness finding does not 
    constitute such an action, since EPA takes no affirmative action 
    preliminarily indicating that the State has submitted a complete SIP, 
    and there is nothing to give rise to an interim final determination 
    that the State has corrected the deficiency.
        Under this change, sanctions will apply if a sanction clock expires 
    during a completeness review of a SIP submitted following a 
    nonsubmittal or incompleteness finding. An example illustrates the 
    implications of this change. Suppose EPA finds that a State failed to 
    submit a SIP and then at month 17 the State submits a SIP which the 
    Agency then starts reviewing for completeness. Month 18 arrives and EPA 
    is still reviewing the submittal. Under the approach in the proposal, 
    application of the offset sanction at month 18 would be deferred unless 
    and until EPA found the plan incomplete. Under the final rule, the 
    sanction will apply at month 18 and only be lifted once EPA takes 
    affirmative action finding the plan complete.
        For EPA to continue with the proposed policy of deferring sanctions 
    following nonsubmittal and incompleteness findings, EPA would have to 
    view mere receipt of a submittal from the State as a preliminary 
    correction of the deficiency. However, EPA's view is that receipt of a 
    State plan does not constitute an affirmative EPA determination that 
    the revised SIP is complete.20 Therefore, it is inappropriate to 
    defer and/or stay sanctions following nonsubmittal and incompleteness 
    findings. Furthermore, once EPA has affirmatively determined the plan 
    is complete, any sanctions clock or any applied sanctions would be 
    permanently stopped. Therefore, it is inappropriate to defer or stay 
    sanctions following nonsubmittal and incompleteness findings until EPA 
    has affirmatively determined the plan is complete.21 The EPA 
    believes this change, as well as change one, makes the Agency's 
    approach in deferring and staying the application of sanctions more 
    consistent with the requirements of the Act.
    ---------------------------------------------------------------------------
    
        \2\0Arguably, EPA could make an interim final determination that 
    the State's submittal is complete. However, such an interim 
    determination is impractical and inappropriate for at least two 
    reasons. One, the short time period provided under the Act for EPA 
    to make completeness determinations (i.e., 60 days) indicate that 
    Congress did not intend for EPA (nor contemplate for EPA) to make 
    preliminary completeness determinations. Two, the nature of the 
    completeness review does not lend itself to EPA making preliminary 
    and final determinations. The completeness review is intended as a 
    straightforward exercise to determine if the SIP revision includes 
    the basic elements to warrant further review for overall adequacy. 
    Therefore, there is no room for a preliminary determination; any 
    review sufficient to make such a preliminary determination would be 
    sufficient for EPA's final completeness determination.
        \2\1A clarification is being made in the final rule which was 
    not specifically addressed in the proposed rule. Following 
    nonsubmittal and incompleteness findings, the final rule effectively 
    provides that sanction clocks can be stopped (and sanctions lifted) 
    only when EPA makes an affirmative completeness finding, and not 
    when SIP's become complete by operation of law pursuant to section 
    110(k)(1)(B) of the Act. This change is further discussed in section 
    II.C.4. below.
    ---------------------------------------------------------------------------
    
        (3) Scenarios Illustrating First Change. The following five 
    scenarios illustrate how sanctions can be deferred and/or stayed 
    following SIP disapprovals and nonimplementation findings.22 They 
    are provided to clarify change one discussed above. (Section III.A. 
    discusses how the States and the public will be kept informed of the 
    status of sanction application.)
    ---------------------------------------------------------------------------
    
        \2\2Note that in the five cases discussed below in the 
    ``scenarios illustrating first change,'' sanctions would apply or 
    reapply when a conditional approval converts to a disapproval just 
    as they do when a proposed full approval is reversed to a 
    disapproval. Note also that, unlike full approvals, the mandatory 
    sanctions process would not cease upon final conditional approval. 
    Following a disapproval, as indicated above, if EPA proposes full 
    approval of the State's revised plan, resulting in the deferral and/
    or staying of sanction application, and then takes final, full 
    approval action, the mandatory sanctions process ceases. However, if 
    the scenario were one where EPA was conditionally approving the 
    plan, the final conditional approval does not stop the mandatory 
    sanction process because it does not represent EPA's final 
    determination that the SIP is adequate. The EPA will make that 
    determination when it reviews the revised plan the State commits to 
    submitting as part of the conditional approval. Ultimately, of 
    course, if the State fulfills its commitment and EPA approves the 
    State's plan revision, then any sanction clocks are permanently 
    stopped and no sanctions are applied or reapplied.
    ---------------------------------------------------------------------------
    
        First, if, before month 18, EPA proposes to fully or conditionally 
    approve a plan or proposes to find that a State is implementing its SIP 
    and that action is reversed 24 or more months after the finding, at 
    which time the 18-month clock has expired, application of the offset 
    sanction is deferred until EPA's proposed approval or proposed finding 
    that the State is implementing its SIP is reversed.23 For both 
    types of findings, the offset sanction applies on the date EPA reverses 
    its preliminary finding. Following disapprovals, where EPA proposed to 
    fully approve the SIP, the reversal would be either a proposed or final 
    disapproval in whole or in part, whichever occurs. Following 
    disapprovals, where EPA proposes to or finally conditionally approves 
    the SIP, the reversal would occur as described in subsection (1) above 
    of this section II.B.3.c. Following findings of nonimplementation, the 
    reversal would be either a proposed or final finding, whichever occurs, 
    that the State was not implementing its SIP. For both disapprovals and 
    nonimplementation findings, the highway sanction applies 6 months from 
    the date the offset sanction applies, unless EPA determines within that 
    period that the State corrected the deficiency prompting the finding. 
    (This scenario is provided for in the rule in Sec. 52.31 (d)(2)(i), 
    (d)(3)(i), and (d)(4)(i).)
    ---------------------------------------------------------------------------
    
        \2\3This scenario assumes that EPA proposes approval prior to 18 
    months and that EPA's positive finding is reversed after 24 months. 
    In that instance, after 24 months, only the 18-month clock has 
    expired (and not the 6-month clock) because the 6-month clock is not 
    triggered until the offset sanction applies. (Section III.A. below 
    discusses how the section 179 sanction clocks function.) Therefore, 
    in this scenario, the 6-month clock does not start until EPA 
    reverses its positive finding after 24 months. The next paragraph 
    and Figure 1 give an example of how this functions.
    ---------------------------------------------------------------------------
    
        The following discussion and Figure 1 provide an example of how 
    this process functions with respect to a sanctions clock started by an 
    initial disapproval. The process would function in the same manner 
    where the initial finding was a finding of failure to implement. 
    Suppose EPA issues a SIP disapproval, initiating the section 179 
    sanction process. Suppose that the State submits a revised SIP to EPA 
    which EPA proposes to fully or conditionally approve, prior to 18 
    months from the date the sanctions clock started. The EPA would 
    simultaneously issue an interim final rule, making a finding that the 
    State has corrected the deficiency. In that case, the application of 
    the offset sanction would be deferred. Now suppose that, at month 25, 
    EPA reverses its preliminary determination. The reversal would be a 
    proposal to disapprove the SIP in whole or in part or a final 
    disapproval of the SIP in whole or in part. At month 25 (or, for final 
    actions, on the action's effective date), the offset sanction applies. 
    The highway sanction then applies 6 months later at month 31 (or, for 
    final actions, shortly thereafter, as appropriate), if within that 
    period EPA has not determined that the State has corrected the 
    deficiency.
    
    BILLING CODE 6560-50-P
    
    TR04AU94.000
    
    
    BILLING CODE 6560-50-C
        Second, if EPA proposes (before expiration of the 18-month 
    sanctions clock) to fully or conditionally approve a plan or proposes 
    to find that a State is implementing its SIP and that proposal action 
    is reversed before the 6-month clock expires that would have followed 
    upon application of the offset sanction, application of the offset 
    sanction is deferred until such reversal of EPA's proposed finding. The 
    offset sanction applies on the date EPA's proposal finding is reversed 
    (or, for final actions, on the action's effective date). The highway 
    sanction then applies 6 months later if EPA has not determined during 
    that period that the State has corrected the deficiency. (This scenario 
    is provided for in the rule at Secs. 52.31 (d)(2)(i), (d)(3)(i) and 
    (d)(4)(i).)
        The following discussion and Figure 2 provide an example of how 
    this process functions for a finding of nonimplementation.24 The 
    process would be the same for an initial disapproval. Suppose EPA makes 
    a finding of nonimplementation, initiating the section 179 sanction 
    process. Suppose that EPA, prior to the end of the 18 month sanctions 
    clock, proposes to find that the State is implementing its approved 
    SIP. At the time of the positive finding, EPA would simultaneously 
    issue an interim final rule, finding that the State has corrected the 
    deficiency.
    ---------------------------------------------------------------------------
    
        \2\4This example is given for a finding of failure to implement, 
    while the other four examples are given for SIP disapprovals, for 
    illustrative purposes only.
    ---------------------------------------------------------------------------
    
        In this case, the application of the offset sanction would be 
    deferred unless and until EPA reverses its proposed positive finding. 
    Now suppose that EPA, at month 22, reverses its proposed positive 
    finding by withdrawing its proposed finding that the State is 
    implementing its SIP. At month 22 (or, for final actions, on the 
    action's effective date), the offset sanction applies. The highway 
    sanction then applies 6 months later at month 28 (or, for final 
    actions, shortly thereafter, as appropriate), if EPA has not determined 
    that the State has corrected the deficiency.
    BILLING CODE 6560-50-P
    
    TR04AU94.001
    
    
    BILLING CODE 6560-50-C
        Third, if EPA proposes (after month 18 but before expiration of the 
    subsequent 6-month sanctions clock) to fully or conditionally approve a 
    plan or proposes to find that a State is implementing its SIP, 
    application of the offset sanction is stayed unless and until EPA's 
    proposed positive finding is reversed. (This scenario assumes that 
    EPA's reversal occurs before expiration of the 6-month sanction clock.) 
    For both types of findings, the offset sanction reapplies on the date 
    EPA's preliminary positive determination is reversed. The highway 
    sanction applies 6 months from the date the offset sanction initially 
    applied, if EPA has not determined that the State has corrected the 
    deficiency prompting the finding. (This scenario is provided for in the 
    rule at Sec. 52.31 (d)(2)(ii), (d)(3)(ii) and (d)(4)(ii).)
        The following discussion and Figure 3 provide an example of how 
    this process functions for a SIP disapproval. The process is the same 
    where EPA has made an initial finding of failure to implement. Suppose 
    EPA makes a SIP disapproval, initiating the section 179 sanction 
    process. Suppose that the State submits a revised SIP which EPA, after 
    18 months but before the subsequent 6-month clock expires, proposes to 
    fully or conditionally approve. The EPA would simultaneously issue an 
    interim final rule, finding that the State has corrected the 
    deficiency. In that case, application of the offset sanction would be 
    stayed unless and until EPA's proposed approval is reversed. Now 
    suppose that, at month 22, EPA reverses its proposed approval. The 
    reversal would be a proposal to disapprove the SIP in whole or in part 
    or a final disapproval of the SIP in whole or in part. At month 22 (or, 
    for final actions, on the action's effective date), the offset sanction 
    reapplies. The highway sanction then applies at month 24, 6 months 
    after the offset sanction originally applied, unless EPA determines 
    that the State corrected the deficiency within that period.
    
    BILLING CODE 6560-50-P
    
    TR04AU94.002
    
    
    BILLING CODE 6560-50-C
        Fourth, if EPA proposes (after month 18, but before the subsequent 
    6-month sanctions clock expires) to fully or conditionally approve a 
    plan or proposes to find that the State is implementing its SIP, and 
    EPA does not take action reversing such positive action until after the 
    subsequent 6-month clock expires, application of the offset sanction is 
    stayed and application of the highway sanction is deferred unless and 
    until EPA's proposed positive finding is reversed. The offset sanction 
    reapplies and the highway sanction applies on the date EPA's 
    preliminary determination is reversed. (This scenario is provided for 
    in the rule at Secs. 52.31(d)(2)(ii), (d)(3)(ii) and (d)(4)(ii).)
        The following discussion and Figure 4 provide an example of how 
    this process functions for a SIP disapproval. The process functions in 
    the same way for an initial finding of failure to implement. Suppose 
    EPA makes a SIP disapproval, initiating the section 179 sanction 
    process. Suppose that EPA, after 18 months (but before the subsequent 
    6-month clock expires), proposes to fully or conditionally approve the 
    SIP. The EPA would simultaneously issue an interim final rule, finding 
    that the State has corrected the deficiency. In that case, application 
    of the offset sanction would be stayed and application of the highway 
    sanction deferred at the time EPA makes its positive finding. Now 
    suppose that, at month 26, EPA reverses its positive finding. The 
    reversal would be a proposal to disapprove the SIP in whole or in part 
    or a final disapproval of the SIP in whole or in part. At month 26 (or, 
    for final actions, on the action's effective date), the offset sanction 
    reapplies and the highway sanction applies.
    
    BILLING CODE 6560-50-P
    
    TR04AU94.003
    
    
    BILLING CODE 6560-50-C
        Lastly, the rule also provides that, following a SIP disapproval or 
    a finding of failure to implement, if EPA proposes after both sanctions 
    clocks have expired to fully or conditionally approve a plan or 
    proposes to find that a State is implementing its SIP, application of 
    the offset and highway sanctions is stayed unless and until EPA's 
    proposed positive finding is reversed. The offset and highway sanctions 
    reapply on the date EPA's preliminary determination is reversed. (This 
    scenario is provided for in the rule at Sec. 52.31 (d)(2)(iii), 
    (d)(3)(iii) and (d)(4)(iii).)
        The following discussion and Figure 5 provide an example of how 
    this process functions for a SIP disapproval. The process functions the 
    same for an initial finding of failure to implement. Suppose EPA 
    disapproves a SIP, initiating the section 179 sanction process. Suppose 
    that the State submits a revised SIP which EPA, at 25 months, proposes 
    to fully or conditionally approve. The EPA would simultaneously issue 
    an interim final rule, finding that the State has corrected the 
    deficiency. In that case, the application of both sanctions would be 
    stayed on the date of the positive action. Now suppose that, at month 
    30, EPA reverses its proposed positive finding. The reversal would be a 
    proposal to disapprove the SIP in whole or in part or a final 
    disapproval of the SIP in whole or in part. At month 30 (or, for final 
    actions, on the action's effective date), both sanctions reapply.
    
    BILLING CODE 6560-50-P
    
    TR04AU94.004
    
    
    BILLING CODE 6560-50-C
        In all cases following disapprovals and findings of 
    nonimplementation, the sanctions clock stops permanently and any 
    sanctions applied are permanently lifted only when EPA completes final 
    notice-and-comment rulemaking action fully approving the SIP revision 
    or finding that the State is implementing its SIP.25
    ---------------------------------------------------------------------------
    
        \2\5 These actions permanently stop the sanctions clock and 
    permanently remove sanctions because such actions represent EPA's 
    final determination that the State has met the requirements of the 
    Act and thus has corrected the deficiency that initiated the 
    sanctions process.
    ---------------------------------------------------------------------------
    
        (4) Legal Basis and Rationale for Change One. The EPA believes that 
    its policy clarification is consistent with the statutory language of 
    section 179 and that it is a reasonable interpretation of that 
    language. The EPA believes this policy is consistent with the legal 
    requirements of section 179 of the Act and section 553 of the APA. 
    Section 179(a) of the Act requires sanctions to apply 18 months after a 
    deficiency finding ``unless such deficiency has been corrected * * *,'' 
    and requires that sanctions apply ``until the Administrator determines 
    that the State has come into compliance * * *.'' The EPA interprets 
    this language to require that EPA make a determination that the State 
    has corrected the deficiency before permanently stopping the sanctions 
    clock or lifting sanctions. In the case of a clock started by a 
    disapproval, such a determination would be represented by a final, full 
    approval. However, EPA does not believe that section 179(a) requires a 
    final approval in order to defer or stay the application of sanctions, 
    since the statutory language speaks generally in terms of 
    ``correcting'' deficiencies and ``determining'' compliance without 
    explicitly linking those events to final approval actions.
        Regarding SIP disapprovals, EPA recognizes the first commenter's 
    concern over timing and believes that this policy clarification 
    eliminates the potential for sanctions applying in an area when EPA has 
    a submittal in house for which EPA has determined that it is more 
    likely than not that the State has corrected the deficiency that 
    prompted the original disapproval. Extending the approach for 
    disapprovals to findings of nonimplementation also serves to avoid 
    applying sanctions when EPA has proposed that a State is implementing 
    its approved SIP.
        Consequently, EPA believes it is consistent with section 179 to 
    treat proposed full approvals following disapprovals26 as the 
    basis for deferring or staying the application of sanctions, while not 
    permanently stopping the sanctions clock or permanently lifting 
    sanctions. The EPA also believes it is consistent with section 179 for 
    proposed and final conditional approvals to be the basis for deferring 
    and/or staying the application of sanctions.27 The proposed full 
    or conditional approval then forms the basis for EPA to issue an 
    interim final determination, which EPA would publish in a separate 
    action in the Federal Register contemporaneously with the proposed 
    approval notice, that the State had corrected the deficiency and come 
    into compliance with the requirements of the Act.28 While this 
    interim final determination would have the effect of deferring or 
    staying sanctions, it would not have the final effect of either 
    approving the submitted SIP revision, or permanently stopping a 
    sanctions clock or permanently lifting sanctions. The interim final 
    determination would be subject to notice and comment and would have 
    effect only until either EPA made a final determination that the 
    deficiency was corrected at the time of a final approval of the SIP 
    revision, or EPA reversed its interim final determination at the time 
    EPA reverses its proposed full or conditional approval. If an EPA 
    proposed full approval were reversed by a proposed disapproval, the 
    Agency would publish a separate action in the Federal Register 
    withdrawing the interim final determination (that the State has 
    corrected the deficiency) contemporaneously with the notice of the 
    proposed disapproval. If an EPA proposed approval were reversed by a 
    final disapproval, EPA would take final action finding that the 
    deficiency has not been corrected in the final disapproval action. For 
    an EPA proposed conditional approval, a reversal could occur by a 
    proposed or final disapproval. For an EPA final conditional approval, a 
    reversal would occur when the conditional approval converts to a 
    disapproval through the State's failing to submit a complete revised 
    SIP to which it committed or by EPA's disapproval of the State's 
    revised SIP.
    ---------------------------------------------------------------------------
    
        \2\6The following discussion on EPA's legal rationale and basis 
    for staying and deferring sanctions only explicitly addresses SIP 
    disapprovals but applies equally to findings of nonimplementation.
        \2\7In NRDC v. EPA, No. 92-1535, slip. op. at 18 (D.C. Cir. May 
    6, 1994), the Court struck down EPA's policy of conditionally 
    approving committal SIP's (i.e., SIP's consisting solely of a 
    commitment). However, the Court provided that ``the conditional 
    approval mechanism was intended to provide EPA with an alternative 
    to disapproving substantive, but not entirely satisfactory, SIP's * 
    * *.'' The EPA will issue conditional approvals consistent with that 
    Court's opinion.
        \2\8Since a final conditional approval has the effect of 
    continuing the staying and/or deferring of sanctions, upon final 
    conditional approval, EPA would not publish a second interim final 
    determination that the State has corrected the deficiency (see 
    footnote 18).
    ---------------------------------------------------------------------------
    
        The EPA believes that this approach is similar to the method courts 
    traditionally use to grant interim equitable relief. Courts may grant 
    preliminary injunctions to parties that the court determines are likely 
    to succeed on the merits of their case, where there is no adequate 
    legal remedy available, and where the public interest would not be 
    served in not granting the injunction. Such injunctions may typically 
    last until the court has finally decided the merits of the case, either 
    for or against the party granted the injunction. Deferring or staying 
    the application of sanctions upon proposed approval of a SIP revision 
    is analogous, in that an EPA proposed approval represents EPA's view 
    that it is more likely than not that the State has corrected the 
    disapproval deficiency and come into compliance with the requirements 
    of the Act. Also, as SIP approval actions generally require notice-and-
    comment rulemaking before they can become final, if a sanctions clock 
    is due to expire after proposed approval but before the Agency can 
    practicably fulfill its notice and comment duties and grant final 
    approval, there is no other ``remedy'' available to relieve the State 
    from the punishment of sanctions, even though it is probable that the 
    State has corrected the deficiency.
        Moreover, EPA does not believe, following proposed approvals, that 
    it would be in the public interest for sanctions to remain in effect, 
    as at that point the Agency believes that there is nothing further that 
    the State need do to come into compliance, and thus there is no further 
    need for the deterrent effect of sanctions. The EPA also believes that 
    in these situations it would be especially unfair to States to begin 
    the application of sanctions where the only reason the sanctions clock 
    has not permanently stopped is that the Agency cannot complete its 
    rulemaking process to finally approve the SIP before sanctions apply. 
    Finally, EPA notes that like the judicial preliminary injunction model, 
    this approach provides that upon reversal of EPA's preliminary 
    assessment that the SIP revision is approvable, and that, therefore, 
    the deficiency has not been corrected, sanctions would be in effect as 
    if the interim final determination that the State had corrected the 
    deficiency had never been made.
        The EPA also believes that this approach is consistent with the 
    requirements of section 553 of the APA. Generally, under the APA, 
    agency rulemaking affecting the rights of individuals must comply with 
    certain minimum procedural requirements, including publishing a notice 
    of proposed rulemaking in the Federal Register and providing an 
    opportunity for the public to submit written comments on the proposal, 
    before the rulemaking can have final effect. The EPA will not be 
    providing an opportunity for public comment before those deferrals or 
    stays are effective. Consequently, EPA's approach may appear to 
    conflict with the requirements of the APA. However, EPA will provide an 
    opportunity to comment on the proposed approval that was the basis for 
    the interim final decision and will provide an opportunity, after the 
    fact, for the public to comment on the interim final decision. Thus, an 
    opportunity for comment will be provided before any sanctions clock is 
    permanently stopped or any already applied sanctions are permanently 
    lifted. In the context of the SIP approval rulemaking, and with respect 
    to the interim final rule, the public would have an opportunity to 
    comment on the appropriateness of EPA's interim determination that the 
    State had corrected the deficiency and on whether the State should 
    remain subject to sanctions, even though the deferral or stay is 
    already effective.
        The basis for allowing such an interim final action stems from 
    section 553(b)(B) of the APA which provides that the notice and 
    opportunity for comment requirements do not apply when the Agency finds 
    that those procedures are ``impracticable, unnecessary, or contrary to 
    the public interest.'' In the case of sanctions, EPA believes it would 
    be both impracticable and contrary to the public interest to have to 
    propose and provide an opportunity to comment before any relief is 
    provided from the effect of sanctions. First, until EPA proposes 
    approval of a SIP revision, the Agency's first step in determining 
    whether a State's SIP submittal meets the requirements of the Act, EPA 
    is not in a position to propose that the State has corrected the 
    deficiency; thus, there is no point in the process before proposed 
    approval at which EPA could propose that the State has corrected the 
    deficiency and provide an opportunity for meaningful public comment on 
    the issue. Second, as discussed above, EPA believes it would be unfair 
    to the State and its citizens, and thus not in the public interest, for 
    sanctions to remain in effect following an EPA proposed approval, since 
    at that point the Agency has completed a thorough evaluation of the 
    State's SIP revision and publicly stated its belief that the submittal 
    is approvable and that the State has corrected the deficiency, but due 
    to the procedural requirements of the Act the Agency has not yet been 
    able to issue a final approval. The EPA believes sanctions coming into 
    effect following proposed approvals would unnecessarily risk potential 
    dislocation in government programs and the marketplace. The EPA also 
    believes that the risk of an inappropriate deferral or stay would be 
    comparatively small, given the limited scope and duration deferrals and 
    stays would have and given the rule's mechanism for making sanctions 
    effective upon reversal of its initial determination that the State had 
    corrected the deficiency. Consequently, EPA believes that the ``good 
    cause'' exception under the APA allows the Agency to dispense with 
    notice and comment procedures before deferrals and stays of sanctions 
    become effective, and that it is thus appropriate to respond to the 
    commenters with the approach adopted in today's rule.
        (5) Responses to Other Comments. The EPA does not support the 
    alternative proposed by the commenters that EPA temporarily or 
    permanently stop the sanction clocks started by disapprovals upon EPA 
    receipt of a submittal that the State believes corrects the deficiency.
        The EPA cannot determine whether the State has corrected the 
    deficiency until it reviews the plan for adequacy. If the sanction 
    clock were temporarily or permanently stopped upon mere submission of a 
    plan following any section 179(a) disapproval (or finding of 
    nonimplementation) and not started again until subsequent disapproval, 
    mandatory sanctions would then take that much longer to have the effect 
    of encouraging State compliance and protecting air quality in the area. 
    Temporarily or permanently stopping the clock upon mere submission of a 
    plan could result in abuse of the system by States knowingly submitting 
    SIP's that EPA cannot approve in order to defer the application of 
    sanctions. By allowing such abuses, such an approach would also be 
    unfair to States which, despite a good faith effort at developing a 
    corrective rule, are unable to avert sanctions following disapproval. 
    In sum, under the revised policy, the underlying requirement for 
    stopping the sanction clock is maintained: EPA must take final action 
    to fully approve a submitted SIP revision or find that a State is 
    implementing its SIP in order to permanently stop the sanctions clock 
    and permanently lift any sanctions. As discussed above, EPA will defer 
    and/or stay the application of sanctions when it proposes a positive 
    finding that forms the basis for EPA to determine through an interim 
    final action that the deficiency has been corrected; but in these cases 
    EPA will not temporarily or permanently stop the underlying clock.
        The EPA also believes that its interpretation is legally supported 
    under the Act. Generally, section 179 states that, ``* * * unless such 
    deficiency has been corrected within 18 months after the finding, 
    disapproval, or determination * * *'' one of the sanctions shall apply, 
    as selected by the Administrator. Section 110(c)(1) of the Act requires 
    EPA to promulgate a FIP at any time within 2 years after the 
    Administrator finds that a State has not made a required submission or 
    has made an incomplete submission, or disapproves a plan submission, 
    ``unless the State corrects the deficiency, and the Administrator 
    approves the plan or plan revision, before the Administrator 
    promulgates such Federal implementation plan.''
        The running of the sanctions clock is tied to the particular 
    deficiency at issue. For example, if the clock was triggered by a 
    finding of failure to submit or a finding of incompleteness, the clock 
    will stop if EPA determines that the State submits a complete plan; it 
    is not also necessary for the plan to be actually approved to stop the 
    clock. If the complete submission is later disapproved, then a new 18-
    month clock will begin to run, as provided in section 179(a), and will 
    continue to run until that deficiency is corrected with an EPA approved 
    plan. For the FIP clock, in addition to the deficiency being corrected, 
    section 110(c)(1) includes an additional criterion--EPA SIP approval--
    that must be satisfied for EPA not to have to promulgate a FIP within 2 
    years of a finding of nonsubmittal or incompleteness. The explicit 
    reference to an approval as an added prerequisite--beyond ``correcting 
    the deficiency''-- makes clear that, in the context of failures to 
    submit or submission of incomplete plans, plan approval is quite 
    distinct from ``correcting the deficiency.'' Therefore, the 
    Administrator's approval is distinct from ``correcting the deficiency'' 
    for failure to submit and incompleteness. Therefore, the fact that the 
    ``SIP approval'' language is redundant for disapprovals, where SIP 
    approval is part of correcting the deficiency, does not render that 
    clause superfluous.
        This interpretation of the section 179 sanction clock does not 
    ``read out'' the section 110(c) requirement, but rather merely 
    illustrates that following disapprovals what is necessary to stop the 
    sanction and FIP clocks is the same: EPA approval of the SIP. (See 
    EPA's July 9, 1992 SIP processing guidance, page 10.) However, as 
    discussed above, this is not the case for sanction clocks started by a 
    finding of failure to submit or a finding of incompleteness. There, the 
    State can correct the deficiency merely by submitting a SIP EPA finds 
    complete. This would stop the sanctions clock. In these situations, the 
    additional step of EPA approval is required to stop the FIP clock, 
    under the plain language of section 110(c)(1).
        Therefore, EPA's interpretation of section 179(a) does not render 
    the provisions of section 110(c)(1)(B) inconsistent, meaningless or 
    superfluous. The Boise Cascade case cited by the commenter addressed a 
    situation in which one word, ``promulgation,'' was argued by 
    petitioners to have the same meaning as another, ``approval'' (942 F.2d 
    at 1342). The court rejected that argument because failing to 
    distinguish between the terms would have resulted either in a conflict 
    between two subsections of the Clean Water Act or made superfluous the 
    use of ``approval'' in another subsection (Id). Here, EPA's 
    interpretation of what is required to correct a deficiency under 
    section 179(a) does not conflict with the requirement for EPA approval 
    to stop a FIP clock. It logically follows that approval is implicitly 
    required to correct a deficiency based on a disapproval, since a State 
    cannot be considered to have remedied the underlying flaw that led to a 
    disapproval until EPA has determined that the State's attempt to do so 
    is approvable.29 The explicit language in section 110(c)(1)(B) is 
    necessary because FIP clocks also may be started by a finding of 
    failure to submit or SIP disapproval. Congress was explicitly providing 
    that in both these instances EPA approval is required to stop a FIP 
    clock. Therefore, the reference in section 110(c) to the need for EPA 
    approval still has meaning when the initial failure was a failure to 
    submit or an incompleteness finding. Thus, EPA's interpretation does 
    not render superfluous the explicit language in section 110(c)(1)(B).
    ---------------------------------------------------------------------------
    
        \2\9As discussed above, EPA believes it is appropriate at the 
    point of proposed approval to contemporaneously issue an interim 
    final determination that the State has corrected the deficiency for 
    purposes of deferring or staying the application of any sanctions 
    that are due. Again, this interim final determination would be 
    subject to the condition that EPA grant final approval to the SIP, 
    and would not have any final effect on the actual approval action. 
    If the subsequent condition is not met (i.e., if EPA's proposed 
    approval is reversed by a proposed or final disapproval), from that 
    point on the interim final determination would have no effect and 
    any sanctions required to be applied would be applied.
    ---------------------------------------------------------------------------
    
        Moreover, EPA's interpretation does not ignore or ``read out'' of 
    the statute section 110(c)(1)(B) (NRDC v. USEPA, 822 F.2d at 113). That 
    case addressed a petitioner's attempt to ignore a specific condition of 
    the Clean Water Act's applicability provision, which the court viewed 
    as an unacceptable method of construing statutes (Id). Here, rather 
    than disregarding the requirement that EPA approval is necessary to 
    stop a FIP clock, EPA is interpreting section 179(a) to implicitly 
    require that same element to be satisfied before a sanctions clock 
    started for a disapproval can be stopped. This in no way ignores the 
    section 110(c)(1)(B) language for purposes of the FIP clock, nor 
    represents an attempt to interpret the Act such that the language of 
    section 110(c)(1)(B) does not have full effect. As stated above, the 
    reference to EPA approval in that section still has meaning where the 
    clock was started by a finding of failure to submit or incompleteness.
        (5) Additional Comments Regarding the Sanctions Clock.
        (a) Comments. Another commenter believes that the final rule should 
    provide for resetting the sanctions clock whenever a State that had 
    failed to submit a timely SIP submits one, even if the SIP is later 
    found to be incomplete. The commenter notes that section 179 provides 
    for an 18-month period following one of four different types of 
    findings of inadequate State action before sanctions can be imposed. 
    The commenter argues that EPA illegally shortens this period by 
    combining into one, two types of inadequate action under the same 18-
    month period, and that the final rule should provide for separate 
    clocks for each type of inadequate action.
        Another commenter is concerned that States may be tempted to view 
    the 18-month sanctions clock as additional time in which to meet a 
    deadline. The commenter believes that Congress did not intend that 
    States that failed to submit a timely SIP and later submitted an 
    inadequate SIP would have more time before facing sanctions than States 
    that submitted a complete but unapprovable SIP on time. While the 
    commenter agrees with EPA's policy that incomplete submittals cannot 
    temporarily stop the sanctions clock, the commenter believes the 
    overall policy rewards delay in completing programs. The commenter 
    believes that the final rule should state that only EPA approval of a 
    final rule stops the clock.
        (b) Responses. As noted above, section 179 indicates that sanctions 
    apply within certain timeframes, unless EPA determines that the 
    deficiency that prompted the finding starting the sanctions clock has 
    been corrected within those timeframes. Therefore, EPA believes the Act 
    requires that sanction clocks stop for findings of failure to submit 
    and findings of incompleteness when EPA finds a subsequently submitted 
    SIP complete (i.e., finds that the deficiency has been corrected).
        The EPA disagrees that a clock started by a finding of failure to 
    submit should stop based on a mere submittal that may or may not be 
    complete. The Act provides under section 110(k)(1)(C) that where the 
    Administrator determines that a plan is incomplete the State is treated 
    as not having made the submission. Based on this, EPA believes that an 
    affirmative finding that a SIP is complete is necessary to cure a 
    nonsubmittal or incompleteness deficiency and stop sanction clocks 
    initiated by such findings.30 This interpretation is further 
    supported by the fact that a finding of failure to submit and 
    incompleteness are provided for under the same provision of sections 
    179(a)(1) and 179(a)(3)(A).
    ---------------------------------------------------------------------------
    
        \3\0As noted above in this section, this change is reflected in 
    the rule and is discussed in section II.C.4. of this document.
    ---------------------------------------------------------------------------
    
        On the other hand, EPA does not believe that it is appropriate to 
    allow only EPA approval to permanently stop the sanction clock for all 
    types of findings.31 It is conceivable that a State could abuse 
    the system under the process established in the final rule by 
    submitting a complete but inadequate SIP at 17 months that stops a 
    sanctions clock that started based on a finding of failure to submit or 
    a finding of incompleteness. Such an area could face sanctions later 
    than the State that submitted a timely, complete but unapprovable SIP. 
    However, as discussed above, EPA believes the reference to ``such 
    deficiency'' immediately following the list of the types of deficiency 
    findings in section 179(a) indicates that sanctions clocks will stop if 
    and when the State corrects the specific deficiency that prompted the 
    finding. Consequently, the running and stopping of the clock is tied to 
    the particular deficiency at issue, and EPA believes that it lacks the 
    statutory authority to apply mandatory sanctions under section 179 upon 
    those States that initially failed to make a submission (through 
    failure to submit or by virtue of an incomplete submission) but which 
    have subsequently submitted a complete plan. The submission of a 
    complete plan is sufficient to stop a clock started for a failure to 
    submit any or a complete plan because at that point the State has 
    corrected the specific earlier deficiency of not having submitted a 
    complete plan. Following this correction, the plain language of section 
    179 does not allow application of mandatory sanctions due to the 
    original deficiency, but if the complete submission is later 
    disapproved, a new sanction clock will begin to run and will continue 
    to run until that specific deficiency is corrected.32 The EPA 
    believes that overall its policy is consistent with the language of 
    section 179 and rational in that it recognizes that what the State must 
    do to correct a deficiency relates directly to the nature of the 
    finding, and that overall this policy will encourage compliance with 
    Act requirements.
    ---------------------------------------------------------------------------
    
        \3\1As noted above, the commenter indicates that it agrees with 
    EPA's proposed policy that incomplete submittals cannot temporarily 
    stop the sanctions clock. The EPA's proposed policy did not state 
    that incomplete submittals cannot temporarily stop the sanctions 
    clock. Rather, EPA's proposed policy stated that incomplete 
    submittals cannot permanently stop the sanctions clock initiated by 
    a finding of failure to submit or incompleteness. Thus, in 
    responding to the comment permanently stop has been substituted for 
    temporarily stop.
        \3\2Furthermore, it appears that the approach articulated by 
    this commenter (i.e., that sanctions clocks and FIP clocks are both 
    stopped by EPA approval of a revised SIP) would present the problems 
    recognized in reading out of section 110(c)(1) the clause ``the 
    Administrator approves the plan or plan revision'' (Boise Cascade, 
    942 F.2d at 1432, and NRDC v. EPA, 822 F.2d at 113).
    ---------------------------------------------------------------------------
    
        Finally, the Act contains due dates by which the State is required 
    to submit certain SIP's. The EPA does not believe that Congress 
    established the 18-month period before mandatory sanctions must apply 
    as a grace period in which States have a legal right under section 179 
    to submit SIP's after the relevant statutory due date. In fact, EPA 
    interprets section 110(m) of the Act as providing EPA with the 
    authority to ``* * * apply any of the sanctions listed in section 
    179(b) at any time (or at any time after) the Administrator makes a 
    finding, disapproval, or determination under * * * section 179(a) * * 
    *.'' Therefore, EPA is not precluded from taking more aggressive action 
    than required under section 179 when States fail to correct deficient 
    plans.
    
    4. Other Areas of Comment
    
        This section addresses the remaining areas of the proposal where 
    comment was received.
        a. Lack of Good Faith Determination. Under section 179(a), both the 
    offset and highway sanctions shall apply after 18 months if the 
    Administrator finds a lack of good faith on the part of the State. In 
    the proposal at page 51274, EPA indicated that any finding of a lack of 
    good faith EPA makes under section 179(a) will be subject to notice-
    and-comment rulemaking.
        One commenter believes that the final rule should define a ``lack 
    of good faith'' and require application of both sanctions as a default 
    where it exists. The commenter believes that some situations may 
    require fact specific judgment, while others are so extreme that they 
    presumptively prove the State has decided not to make a good faith 
    effort at complying. The commenter believes that EPA need not undertake 
    notice-and-comment rulemaking with respect to findings of a lack of 
    good faith. Another commenter believes that the phrase ``if the 
    Administrator finds a lack of good faith on the part of the State'' is 
    subjective and ambiguous and needs defining.
        In response to the comments, EPA still believes findings of a lack 
    of good faith under section 179(a) must be subject to notice-and-
    comment since it is a discretionary action which requires exercise of a 
    substantial degree of judgment on EPA's part. The public should have an 
    opportunity to comment on the basis for these actions. Further, EPA 
    does not yet have a policy on how to further define the Act's language, 
    or when and where it plans to make findings of a lack of good faith 
    other than the case-by-case approach described above. The notice-and-
    comment rulemaking will provide an opportunity for the public to 
    comment on EPA's interpretation of a lack of good faith in each case-
    specific circumstance.
        b. Sanction Timing. The proposal at page 51272 indicated that since 
    section 179(a) provides for automatic sanction application once EPA has 
    made the selection, under this sanction sequence rule sanctions will 
    apply automatically in the order prescribed herein in all instances in 
    which sanctions are applied following findings under section 179(a) 
    (1)-(4) that EPA has already made or that EPA will make in the future, 
    except when EPA takes a separate action to select a different sequence 
    of sanction application. However, the proposal indicated that where the 
    sanction clock expires for any findings before this action is final and 
    effective and EPA has not taken independent sanction selection action, 
    EPA interprets section 179(a) to provide that sanctions shall not apply 
    until EPA makes the sanction selection through notice-and-comment 
    rulemaking, such as this action.
        At page 51272 of the proposal EPA also indicated that EPA intends 
    to notify States of the automatic sanctions by letter and publish a 
    document in the Federal Register in which EPA amends the language of 
    the rule to indicate areas subject to the applicable sanctions. The 
    proposal provided that if removal of sanctions is warranted, EPA would 
    notify the State that sanctions are being removed and amend the rule to 
    reflect that.
        One commenter believes that EPA's interpretation of section 179 is 
    incorrect and that section 179 unambiguously requires sanction 
    application within 18 months of a finding. The commenter believes that 
    Congress did not condition EPA's mandatory sanction application duty on 
    completion of notice-and-comment rulemaking.
        The plain reading of section 179(a) is that sanctions, ``as 
    selected by the Administrator,'' apply within certain prescribed 
    timeframes. The section does not provide any guidance to EPA on 
    sanction application sequence. Given this wide discretion, EPA believes 
    that it is necessary for sanction selection to be subject to notice-
    and-comment in order to provide for public comment. The EPA interprets 
    the phrase ``as selected by the Administrator'' as words of condition 
    that must be met before mandatory sanctions apply. Indeed, EPA is 
    undertaking this rulemaking to satisfy the conditional duty so that 
    sanctions may apply automatically when sanctions clocks expire.
        The EPA is also conducting this rulemaking to eliminate the future 
    need (except to reverse the sanction sequence) for individual 
    rulemakings for every finding with respect to part D requirements. The 
    EPA believes in the long run this action will facilitate smooth 
    application of sanctions to encourage State compliance and protect air 
    quality.
        c. Notice and Comment for Nonsubmittal and Incompleteness Findings. 
    In the proposal at page 51272, EPA's view was that notice-and-comment 
    is not required for findings of failure to submit because of 
    insufficient time provided by the statute. Since EPA has less than 60 
    days to determine whether a State's submittal is complete, and it is 
    impossible to provide notice-and-comment in 60 days, EPA believes that 
    Congress clearly intended that EPA should not go through notice-and-
    comment rulemaking prior to making findings of failure to submit. 
    Additionally, EPA argued that even if EPA's findings of failure to 
    submit were subject to APA rulemaking procedures, EPA believed that the 
    good cause exception to the rulemaking requirement applies (APA section 
    553(b)(B)). Section 553(b)(B)of the APA provides that EPA need not 
    provide notice and an opportunity for comment if EPA determines that 
    notice and comment are ``impracticable, unnecessary, or contrary to the 
    public interest.'' The EPA argued that notice and comment for findings 
    of failure to submit does not require any judgment on the part of EPA 
    and, therefore, is unnecessary.
        One commenter states that under the APA, burdens such as sanctions 
    cannot be imposed without notice-and-comment. The commenter argues that 
    EPA provides no defense of its denial of public comment for findings of 
    incompleteness and cannot defend such denial for findings of 
    nonsubmittal and incompleteness. The commenter further argues the 
    judgment of whether a SIP meets the SIP completeness criteria is often 
    debatable and discretionary. Therefore, the commenter argues, the 
    public should be able to comment.
        Another commenter believes that EPA's proposal contradicts the 
    spirit and letter of the notice-and-comment provisions in the Act. The 
    commenter argues the proposal is contradictory on when it allows for 
    public comment in some instances but not others.
        In response to the comments, EPA maintains that notice and comment 
    is not necessary for findings of failure to submit and incompleteness. 
    The 60 days the Act provides EPA to determine whether a State submittal 
    is complete does not provide sufficient time to conduct notice-and-
    comment rulemaking prior to making findings of failure to submit or 
    findings of incompleteness. The EPA continues to believe that the 
    impossibility of conducting notice-and-comment rulemaking within the 60 
    days provided for completeness decisions is itself compelling evidence 
    that Congress did not intend such rulemaking. Additionally, EPA does 
    not believe that notice and comment are necessary for findings of 
    incompleteness because section 110(k)(1)(B) does not specifically 
    require it. By enacting section 110(k)(1) on completeness, Congress was 
    codifying an EPA practice created in late 1989 in which EPA did not 
    provide notice-and-comment rulemaking before making incompleteness 
    findings.33 By codifying that practice and by not specifically 
    requiring anything more than the process EPA already established, 
    Congress appears to have adopted EPA's established process of making 
    completeness determinations by letter. Moreover, EPA does not believe 
    that the completeness determination is highly discretionary, but 
    instead is a straightforward exercise to assure a State's submittal has 
    all the basic elements to warrant further review for overall adequacy.
    ---------------------------------------------------------------------------
    
        \3\3Note that in promulgating the completeness criteria, EPA 
    noted that the purpose of the completeness procedure is to ``keep 
    incomplete packages out of the more extensive review system (i.e., 
    rulemaking for approval), thereby saving both EPA and the State 
    valuable time'' (54 FR 2138, 2139 (January 19, 1989)). Therefore, 
    requiring rulemaking action to determine whether a SIP submittal is 
    complete would defeat the purpose of the completeness criteria, 
    which is to allow for a quick rejection of those submittals that are 
    ``essentially unreviewable'' (Id).
    ---------------------------------------------------------------------------
    
        Regarding the APA, EPA continues to believe that even if EPA's 
    findings of failure to submit and incompleteness were subject to 
    rulemaking procedures under the APA, the good cause exception applies 
    to such findings for the reasons discussed above. It would not be 
    practicable to subject every completeness review to notice and comment 
    because of the limited time afforded by the statute. It would also not 
    be in the public's interest because it would impose a tremendous burden 
    on the Agency and divert resources from more important substantive SIP 
    reviews.
        Regarding the consistency comment, EPA believes that it is adhering 
    to the notice-and-comment provisions of the amended Act and the APA. 
    Where it is appropriate, because the determination requires EPA 
    judgment, EPA provides for notice and comment (i.e., for SIP 
    disapprovals or findings of nonimplementation). Additionally, as EPA 
    has done via this action, when EPA makes a sanction selection notice 
    and comment are also provided. On the other hand, as discussed above, 
    in other cases sufficient time does not exist to provide for notice and 
    comment and the determinations themselves require little, if any, 
    judgment. Finally, as discussed in section II.C.3., the final rule does 
    not cover findings of substantial inadequacy under section 110(k)(5) 
    for part D SIP's (so-called SIP calls), which were covered by the 
    proposed rule, because of concerns about adequate notice and comment 
    before sanctions are applied for State failure to respond to a SIP 
    call. The EPA intends to develop an alternative approach for applying 
    mandatory sanctions for State failure to respond to SIP calls that 
    provides for notice and comment.
        d. PM-10 Waivers. The proposal did not address the PM-10 waiver 
    provisions in section 188(f) of the Act. The commenter expresses a 
    frustration with the definition of PM-10 ``significance'' and argues 
    that in the West, PM-10 levels above the standard are caused 
    predominately by fugitive dust and mobile sources. Therefore, the 
    commenter believes, applying 2-to-1 offsets to industrial sources will 
    have a negligible effect on PM-10 24-hour concentrations.
        A July 1992 draft addendum to the General Preamble (57 FR 31477, 
    July 16, 1992) addresses several waiver policy issues, including 
    significance levels. The EPA believes the comment period for that 
    policy, rather than this action selecting sanctions, is the appropriate 
    forum for comments on that issue. The EPA recognizes that in some 
    nonattainment areas industrial sources may be less significant 
    contributors. In those cases, EPA may decide to apply the highway 
    sanction first, which this rule provides flexibility to do.
    
    C. Summary of Changes in Rule
    
    1. Section 52.31(a)--Purpose
        Section 52.31(a) sets forth the purpose of this rulemaking, which 
    is to establish the sequence of sanctions required to apply under 
    section 179(a). The substance of this provision was not changed from 
    the proposed rule.
    2. Section 52.31(b)--Definitions
        Section 52.31(b) sets forth the definitions applicable under 40 CFR 
    52.31. The definitions of ``Act'' and ``1990 Amendments'' are not 
    substantively changed. However, the citations for these two definitions 
    were inadvertently switched and they now correctly provide that the Act 
    is located at 42 U.S.C. et seq. and the 1990 Amendments were set forth 
    in Public Law 101-549.
        In addition, several definitions were added. Since the regulation 
    provides that the offset sanction only applies to the pollutant(s) that 
    the finding concerns and its precursors, EPA has added a definition of 
    ``precursors.'' The EPA has also added a definition of ``ozone 
    precursors'' which specifically identifies the two ozone precursors--
    VOC and NOx.
        The EPA has added a new definition for ``affected area.'' This 
    term, while used in the proposed rule (e.g., the tables), was not 
    previously defined. Furthermore, its usage in the final rule has been 
    expanded; in many places the word ``area'' has now been replaced by 
    ``affected area.'' The definition provides that an ``affected area'' is 
    the geographic area subject to or covered by the Act requirement that 
    is the subject of the finding and either, for purposes of the offset 
    and highway sanctions, is or is within an area designated nonattainment 
    area pursuant to 42 U.S.C. 7407(d) or, for purposes of the offset 
    sanction, is or is within an area otherwise subject to the emission 
    offset requirements of 42 U.S.C. 7503. As used in this rule, in 
    conjunction with Sec. 52.31(e) (1) and (2), the affected area is the 
    area potentially subject to a sanction based on a finding. The new 
    definition clarifies that the sanction applies to the geographic area 
    subject to or covered by the requirement at issue in the finding. This 
    will usually be the entire designated area, but in some instances may 
    be a portion of a designated area. This point is made through the first 
    portion of the definition. Moreover, since the affected area is the 
    area in which a sanction applies, it was necessary to limit the 
    definition to those areas that could be subject to a sanction. 
    Therefore, the second portion of the definition restricts the 
    definition of ``affected area'' by incorporating the geographic limits 
    of the highway and offset sanctions. First, the highway sanction, as 
    applied under section 179(a), is limited to nonattainment areas, since 
    section 179(b)(1) provides that the highway sanction may be 
    ``applicable to a nonattainment area.''34 Second, by its terms, 
    the offset sanction has effect only in those areas in which the offset 
    requirements of section 173 are required to apply. (See 59 FR 1480 
    (January 11, 1994) for a further discussion of the geographic 
    applicability of section 179(b) sanctions.) This includes all 
    nonattainment areas. In addition, some attainment and unclassified 
    areas (e.g., those located in the NOTR could be subject to the offset 
    sanction, since those areas may be subject to the offset requirements 
    of section 173, even though they are not designated nonattainment (see 
    section 184, for example). Therefore, the second clause of the 
    definition limits affected areas to nonattainment areas (which would be 
    subject to both the highway and offset sanction) and areas otherwise 
    subject to the emission offset requirements of section 173 (which would 
    be subject to the offset sanctions).
    ---------------------------------------------------------------------------
    
        \3\4Section 171(2) defines ``nonattainment area'' as ``an area 
    which is designated `nonattainment' with respect to (an air) 
    pollutant within the meaning of section 107(d).''
    ---------------------------------------------------------------------------
    
        Three examples illustrate how this definition applies. One, if EPA 
    finds that a State fails to submit a PM-10 plan for a moderate PM-10 
    nonattainment area pursuant to section 189(a) and the State does not 
    correct the deficiency within 18 months, then, pursuant to this rule, 
    the offset sanction shall apply in the PM-10 nonattainment area whose 
    boundaries are described in 40 CFR part 81. If 6 months later the 
    deficiency remains uncorrected, then the highway sanction applies in 
    the nonattainment area as well. In both cases the sanction applies only 
    in the nonattainment area because that is the geographic area covered 
    by the Act requirement.
        Two, if EPA finds a State fails to submit a required SIP revision 
    under the Act for a requirement that applies to only a portion of an 
    area, then the sanctions apply to the portion of the area subject to 
    the requirement and not the whole area. For example, the enhanced 
    inspection and maintenance plan requirement for serious, severe, and 
    extreme nonattainment areas applies only to ``each urbanized area (in 
    the nonattainment area) as defined by the Bureau of the Census, with a 
    1980 population of 200,000 or more'' (see section 182(c)(3)(A)). 
    Section 184 provides that for all areas within the NOTR, this 
    requirement will apply to urbanized areas with a population in excess 
    of 100,000. Therefore, this requirement could apply to a smaller area 
    within a designated nonattainment, attainment or unclassified area. If 
    the State fails to adopt the program for such an area, the section 179 
    sanctions would apply only to that smaller area.
        Finally, if EPA finds that a State within the NOTR fails to submit 
    a reasonably available control technology SIP for VOC required pursuant 
    to section 184(b)(1)(B) with respect to all the sources in the State 
    subject to this requirement, and the State does not correct the 
    deficiency within 18 months, then, pursuant to this rule, the offset 
    sanction would apply in the entire State. If 6 months later the 
    deficiency remained uncorrected, then the highway sanction would apply 
    to all of the nonattainment areas in the State. If there were no 
    designated nonattainment areas within the State, the highway sanction 
    would not apply in that State.
        The remaining definitions remain substantively unchanged from those 
    in the proposed rule.
    3. Section 52.31(c)--Applicability
        Section 52.31(c) establishes the applicability of the final rule. 
    The portions of Sec. 52.31(c) setting forth the findings that trigger 
    the sanctions clock remain unchanged as these portions were taken 
    directly from sections 179(a) (1)-(4). Generally, these findings are 
    that a State has failed to submit a required SIP or SIP element, has 
    submitted a SIP or SIP element that does not meet EPA's completeness 
    criteria, has submitted a SIP that is not approvable, or that the State 
    is failing to implement an approved SIP.
        The portions of Sec. 52.31(c) indicating the SIP requirements to 
    which this rule applies have been modified. The proposal indicated the 
    rule covers any part D SIP or SIP revision required under the Act, or 
    any part D SIP or SIP revision required in response to a finding of 
    substantial inadequacy under section 110(k)(5). This section of the 
    final rule has been modified to cover only part D SIP and SIP revisions 
    and not calls for part D SIP's or SIP revisions under section 
    110(k)(5). The final rule does not cover part D SIP calls because of 
    concerns about applying sanctions for State failures to respond to such 
    SIP calls following EPA nonsubmittal findings without opportunity for 
    notice and comment. SIP calls are currently not subject to notice-and-
    comment. The public and affected sources must be given notice and 
    opportunity to comment before SIP calls can have binding effect as a 
    result of a section 179(a) finding that a State has failed to submit a 
    SIP in response to a SIP call. Thus, if this rule were to apply to 
    State failures to respond to SIP calls, mandatory sanctions could apply 
    without an opportunity for such comment before new obligations become 
    binding against affected sources. This would be inconsistent with the 
    APA requirements of section 553. Therefore, as discussed in section 
    II.C.3., the final rule does not cover part D SIP calls. The EPA will 
    develop another approach to address SIP calls, providing an opportunity 
    for notice and comment before mandatory sanctions apply for a State 
    failure to respond to a SIP call.
    4. Section 52.31(d)--Sanction Application Sequencing
        Section 52.31(d)(1) is the heart of this rule in that it 
    establishes the order in which the automatic sanctions under section 
    179(a) shall apply. Several clarifications have been made to the 
    section.
        One, this provision now requires affirmative EPA action to stop 
    sanction clocks and lift sanctions following section 179(a) findings, 
    including nonsubmittal and incompleteness findings. The EPA's proposed 
    and final sanction clock policy provides that, following findings of 
    nonsubmittal and incompleteness, sanction clocks are permanently 
    stopped (and any sanctions applied are permanently lifted) when EPA 
    finds the plan complete. Section 110(k)(1)(B) provides that a submittal 
    is deemed complete if a completeness finding is not made by EPA within 
    6 months of EPA's receipt of the plan. Under this clarification to 
    Sec. 52.31(d), a SIP becoming complete by operation of law will not be 
    sufficient to stop sanction clocks or for an area to avoid sanctions. 
    The EPA will need to affirmatively determine that the SIP is complete 
    in order for the sanction clock to stop and any sanctions to be lifted.
        This policy clarification will henceforth govern what is required 
    to stop sanctions clocks and lift sanctions following findings of 
    nonsubmittal and incompleteness, and the other section 179 findings. 
    Prior to this policy clarification, in certain cases EPA did stop 
    sanction clocks started by EPA findings of failure to submit or 
    incompleteness by SIP submittals being deemed complete ``by operation 
    of law.'' The EPA believes that this approach was consistent with EPA 
    guidance at the time and that it is appropriate to grandfather these 
    areas under EPA's grandfathering guidance.
        The EPA believes that after consideration of its grandfathering 
    policy for SIP requirements35 it is permissible to grandfather 
    these cases from this policy clarification. The EPA's general 
    grandfathering guidance provides that SIP revisions will remain subject 
    to the requirements in effect on the date that the State adopts the SIP 
    revision, provided a complete, fully adopted SIP revision is submitted 
    promptly, generally within 60 days of the adoption. Since the policy 
    clarification is effective by this action and all of the SIP submittals 
    in question were adopted more than 60 days prior to September 6, 1994, 
    under this general grandfathering, these cases are grandfathered. 
    However, the guidance includes several exceptions to the general 
    guidance which must be addressed before an action is considered by EPA 
    to be grandfathered.
    ---------------------------------------------------------------------------
    
        \3\5See ``'Grandfathering' of Requirements for Pending SIP 
    Revisions,'' memorandum from Gerald A. Emison to Air Division 
    Director, Regions I-X, June 27, 1988. This memorandum has been 
    entered in the docket for this rulemaking.
    ---------------------------------------------------------------------------
    
        The first exception concerns the intent of the policy not to 
    grandfather SIP's submitted hurriedly to avoid new requirements. In the 
    cases at issue, such action has not occurred on the part of the State 
    since the States have received no early, formal notification that the 
    sanction clock policy is being clarified in the manner it is today.
        The second exception to general guidance on grandfathering concerns 
    situations where a court ruling has explicitly changed a current 
    Federal requirement or has convinced EPA that a previous requirement is 
    no longer supportable. Here no such court ruling is at issue so no 
    exception should be made in this case.
        The third exception is that the Administrator may determine that 
    grandfathering is not appropriate under a new policy. In this case, the 
    Administrator is determining that grandfathering is appropriate.
        The fourth exception indicates that grandfathering is not 
    appropriate if it would have an imminent and substantial adverse 
    environmental effect or could permanently foreclose use of part D 
    provisions such as sanctions. The EPA does not believe that 
    grandfathering these areas from this policy clarification will have an 
    imminent and substantial environmental impact given the limited number 
    of areas and given that the States' submittals must be adequate to 
    attain and maintain the relevant NAAQS before EPA can approve them. In 
    addition, this grandfathering does not permanently foreclose the 
    application of sanctions in these areas should EPA, through rulemaking, 
    find the SIP submittals inadequate to attain and maintain the NAAQS and 
    disapprove them.
        The fifth exception provides that action on a SIP revision which 
    comports with the revised requirements but not the original 
    requirements may be based on the revised requirements. In this 
    instance, this is indeed the case; conceivably, one or more of those 
    SIP's deemed complete by operation of law may have lacked one or more 
    of the elements needed for EPA to find a plan affirmatively complete. 
    Nonetheless, EPA cannot fully approve a plan if any of the required 
    completeness elements are lacking. For example, if a SIP submittal 
    lacks compliance/enforcement strategies, one of technical elements 
    required for completeness, then EPA could not fully approve the plan. 
    Therefore, while EPA is grandfathering these SIP submittals from 
    completeness, EPA is not grandfathering these areas from having 
    adequate SIP's to attain and maintain the standards.
        The sixth exception raises a concern as to whether grandfathering 
    the SIP from the requirements in question would render the SIP as a 
    whole substantially inadequate. Grandfathering these SIP submittals 
    from this policy does not raise direct concern that doing so might 
    render the SIP's substantially inadequate since the completeness review 
    is not a review intended to pass judgement on the adequacy of SIP's. 
    Rather, it is intended as a straightforward exercise to determine 
    whether the SIP's contain all the technical and administrative elements 
    to warrant further review. As discussed above, if any of these SIP 
    submittals deemed complete by operation of law lack any such elements, 
    then such deficiency will be reflected in EPA's determination as to the 
    SIP's adequacy to attain and maintain the air quality standards.
        The seventh exception concerns certain classes of changes which are 
    only indirectly related to attainment and maintenance of the air 
    quality standards. Completeness reviews are only indirectly related to 
    attainment and maintenance of the standards in that the completeness 
    review is not intended to be review of the SIP's adequacy to meet the 
    standards. Therefore, the grandfathering of these SIP submittals from 
    the policy clarification satisfies this exception as well.
        Two, the phrase ``affected area'' has been substituted for 
    ``area.'' This is to clarify that the sanction only applies in affected 
    areas, and not necessarily all areas for which EPA makes a section 
    179(a) finding. (See the discussion of ``affected area'' under the 
    definitions section above.) Three, the second sentence regarding 
    highway sanctions has been clarified to provide that correction of the 
    deficiency ``forming the basis of the finding'' is needed to stop the 
    clock. This language is consistent with the language included in the 
    proposal section 52.31(d)(1) for the offset sanction in sentence 1 and 
    consistent with the interpretation established in the preamble to the 
    proposed rule at pages 51272-51273. This revision merely clarifies what 
    deficiency needs to be corrected in order to stop the sanctions clock.
        Finally, a new final sentence has been added to the section. The 
    sentence provides that for clocks started by rulemaking actions (i.e., 
    disapprovals and findings of failure to implement), the date of the 
    finding starting the clock is the ``effective date'' of the action, not 
    necessarily the date it is signed or the date it is published in the 
    Federal Register. Since the disapproval or finding of failure to 
    implement is not effective until the ``effective date'' of the final 
    action, the sanctions clock should not start until such action is 
    effective. Upon further reflection, EPA determined that the 
    clarification should be included in the rule in order to ensure that 
    the public is adequately apprised of when the sanctions clock has 
    started for particular areas based on a rulemaking action.
        The EPA has revised the final rule to add new sections 
    Secs. 52.31(d)(2), (d)(3), and (d)(4). In response to comments, these 
    sections incorporate a revision made to the rule concerning how and 
    when sanctions, not yet applied, may be deferred and sanctions, already 
    applied, may be stayed. A complete discussion of the revisions is set 
    forth in section II.B.3. above. These corrections concern the 
    circumstance where EPA has disapproved a required submittal or where 
    EPA has found that a State has failed to implement an approved SIP. 
    Sections 52.31(d)(2) and 52.31(d)(3) set forth language concerning 
    disapproved SIP's and Sec. 52.31(d)(4) sets forth the language 
    regarding cases where EPA has made a final finding of failure to 
    implement. For purposes of an initial disapproval or an initial finding 
    of failure to implement for which EPA subsequently proposes a positive 
    finding and issues an interim final rule finding that the State has 
    corrected the deficiency, any sanctions resulting from a clock that 
    expires will be deferred and any sanctions that have been applied will 
    be stayed. (A final conditional approval would continue any stay or 
    deferral that resulted from a proposed conditional approval.) This 
    change providing for a stay or deferral of sanctions does not change 
    the rule's requirement that sanctions and sanctions clocks are not 
    permanently stopped until EPA issues a final full approval or 
    determination that a State is implementing its SIP.
        A new Sec. 52.31(d)(5) has been added which reaffirms what EPA 
    actions are necessary for the mandatory sanctions process to 
    permanently cease. Specifically, it provides that any sanction clock 
    will be permanently stopped and sanctions applied, stayed or deferred 
    will be permanently lifted upon a final EPA finding that the deficiency 
    forming the basis of the finding has been corrected. For a sanctions 
    clock and applied sanctions based on a finding of failure to submit or 
    incompleteness, a finding that the deficiency has been corrected will 
    occur by letter from EPA to the governor. For a sanctions clock or 
    applied, stayed or deferred sanctions based on a SIP disapproval, a 
    finding that the deficiency has been corrected will occur through a 
    final notice in the Federal Register fully approving the revised SIP. 
    For a sanctions clock or applied, stayed or deferred sanctions based on 
    a finding of nonimplementation, a finding that the deficiency has been 
    corrected will occur through a final notice in the Federal Register 
    finding that the State is implementing the approved SIP.
        Section 52.31(d)(6) is essentially unchanged from Sec. 52.31(d)(2) 
    of the proposed rule. This section makes clear that EPA may take 
    rulemaking action in any specific circumstance to reverse the order in 
    which sanctions will be applied under section 179(a). In other words, 
    EPA can take rulemaking action so that the highway sanction would apply 
    after 18 months and the offset sanction 6 months thereafter. Two minor, 
    nonsubstantive, changes were made. First, EPA replaced the phrase ``the 
    EPA'' with ``the Administrator.'' Second, EPA changed the term 
    ``should'' to ``shall'' to more firmly reflect the mandatory nature of 
    the sanctions.
    5. Section 52.31(e)--Available Sanctions and Methods for Implementation
        Section 52.31(e) sets forth the two sanctions that are applied by 
    section 179(a). This rule, as did the proposed rule, interprets in 
    greater detail the offset sanction provided under section 179(b)(2).
        Regarding Sec. 52.31(e)(1), applicability of the offset sanction, 
    there have been several changes that are intended to more clearly 
    capture the concepts in the proposed rule and the preamble to the 
    proposed rule. The EPA has clarified the applicability of the offset 
    sanction to PM-10 precursors, modified the rule for PM-10 and ozone 
    precursors, and clarified the language in the rule regarding the 
    pollutant applicability of the offset sanction when the SIP deficiency 
    in question is not specific to a pollutant or pollutants. A discussion 
    of these changes in the context of the specific sections follows.
        The EPA has revised Sec. 52.31(e)(1)(i) in several ways. First, EPA 
    has removed the offset sanction table from the rule and decided to 
    provide the public information on areas that will be potentially 
    subject to sanctions in a separate Federal Register notice. As EPA 
    makes clear elsewhere in this paragraph and the rule, the sanctions 
    automatically apply in the timeframes prescribed under Sec. 52.31(d), 
    unless EPA determines that the State has corrected the relevant SIP 
    deficiency forming the basis of the finding. The EPA never intended the 
    inclusion of areas in a table in this rule to be necessary for 
    sanctions to apply automatically. The EPA does believe that it must 
    provide the public with as accurate information as possible on areas 
    that may face sanctions and has elected to do so through notices in the 
    Federal Register rather than through a table in the body of the rule. 
    Substantively, there is no difference in the sense that areas will face 
    sanctions in the timeframes prescribed under Sec. 52.31(d) regardless 
    of whether they are listed in a table in the rule or listed in a 
    separate notice.
        Second, EPA has added the clause ``in the timeframe prescribed 
    under Sec. 52.31(d) of this section on those affected areas subject 
    under Sec. 52.31(d) to the offset sanction of this section.'' As noted 
    above, sanctions apply automatically regardless of whether there is a 
    table in the rule listing the areas subject to sanctions. Thus, this 
    change was made to make it clear that the sanctions apply within the 
    time frames set forth in Sec. 52.31(d). To further clarify this point, 
    a second change to proposed Sec. 52.31(e)(1)(i) was to delete 
    ``following'' in the clause referencing the offset ratio for pollutants 
    and their precursors. The reason for this change is because the table 
    has been deleted and thus no areas will be listed. The first sentence 
    of Sec. 52.31(e)(1)(i) continues to require that the 2 to 1 offsets be 
    achieved for the pollutant or pollutants and any precursors for which 
    the finding is made. (For further discussion of this issue, see section 
    II.B.2.)
        The EPA has added a second sentence to Sec. 52.31(e)(1)(i). This 
    sentence is partially derived from Sec. 52.31(e)(1)(iv) of the proposed 
    rule. The purpose of moving this sentence was to alleviate redundancy 
    in the proposed rule. The first sentence of proposed 
    Sec. 52.31(e)(1)(iv) appeared to echo proposed Sec. 52.31(e)(1)(i) by 
    stating that offsets must be achieved for the pollutant(s) and its 
    (their) precursors for which the finding was made. Therefore, EPA has 
    not included the first sentence of proposed Sec. 52.31(e)(1)(iv) in the 
    final rule and has moved the second sentence of proposed 
    Sec. 52.31(e)(1)(iv) to final Sec. 52.31(e)(1)(i). The sentence now 
    located as the second sentence of Sec. 52.31(e)(1)(i) continues to 
    provide that if the underlying finding is not specific to one or more 
    pollutants and their precursors, then the offset sanction shall apply 
    to all pollutants and, as relevant, their precursors for which the area 
    is subject to the new source requirement of section 173 of the Act. 
    (See section II.B.2. for further discussion of pollutant applicability 
    of the offset sanction.) This provision, of course, would apply to any 
    area (nonattainment, attainment, or unclassified) that is the subject 
    of the finding.
        In its entirety, then, Sec. 52.31(e)(1)(i) now provides: (1) That 
    the emission offset sanction applies within the time specified in 
    Sec. 52.31(d), even though the rule now contains no offset sanction 
    table; (2) that the ratio of emission reductions to increased emissions 
    shall be 2:1; and (3) that the offset ratio shall apply to the one or 
    more pollutants and their precursors for which the Sec. 52.31(c) 
    finding was made or to all pollutants and their precursors (for which 
    the area is subject to the new source requirement of section 173 of the 
    Act) if the finding was not pollutant specific.
        The EPA has added new Sec. 52.31(e)(1)(ii) to specifically address 
    the issue of findings made with respect to ozone and its two 
    precursors, VOC and NOX. This was discussed generally in the 
    preamble to the proposed rule at page 51276, footnote 18, although no 
    specific language was included in the proposed rule. The Act 
    establishes requirements for ozone nonattainment areas, some of which 
    are specific for either VOC or NOX. However, since the general 
    assumption is that both precursors are critical to ozone formation, EPA 
    believes that even though a finding may be specific as to one ozone 
    precursor, the offset sanction should apply for both precursors. 
    However, there are two exceptions to this general requirement, both of 
    which are based on the Act. First, affected areas that are designated 
    nonattainment for ozone but that are not classified as marginal, 
    moderate, serious, severe or extreme, are not required to achieve 
    offsets under section 173 for NOX. The second exception is for 
    affected areas that have received a NOX exemption from the NSR 
    requirement pursuant to section 182(f). These two exceptions and the 
    rationale for them are discussed in section II.B.2. above. A new 
    Sec. 52.31(e)(1)(iii) sets up a similar provision with respect to PM-10 
    precursors, which is also discussed in more detail in section II.B.2. 
    above.
        Section 52.31(e)(1)(iv) of the final rule has merely been 
    renumbered. Section 52.31(e)(1)(iii) of the proposed rule previously 
    contained these requirements and substantially remains unchanged. The 
    preamble to the proposed rule at page 51276 provides that this section 
    requires States to apply the offset sanction consistent with amended 
    section 173, regardless of whether the State has approved NSR rules 
    consistent with section 173 requirements. The purpose of this provision 
    is to ensure that States that have been delinquent in meeting the NSR 
    requirements of the amended Act are not benefitted by applying 
    sanctions in accordance with NSR rules that are more lenient than 
    required by the Act or by the absence of NSR requirements within the 
    State. Under this section, therefore, all affected areas subject to the 
    offset sanctions would be subject to similar requirements in achieving 
    those offsets, as specified in the amended Act.
        Section 52.31(e)(1)(v) of this rule is unchanged from 
    Sec. 52.31(e)(1)(v) of the proposed rule. The purpose of this provision 
    is to establish when the increased offset requirement will be applied. 
    As noted in section II.B.2. above, EPA received numerous comments on 
    this issue. For purposes of applying the offset sanction, EPA had some 
    flexibility in determining what permits would be subject to the 
    increased offset requirement. As noted in section II.B.2., numerous 
    commenters suggested other possibilities. For example, some suggested 
    that the increased offset ratio only apply to permits for which an 
    application was received after the date the offset sanction applied. As 
    stated more fully in the detailed response to comments document located 
    in the docket, EPA has determined that the offset sanction should have 
    immediate effects in affected areas.
        Section 52.31(e)(2) of the final rule sets forth the highway 
    sanction. Several revisions have been made to this section. As with 
    Sec. 52.31(e)(1)(i), EPA has removed the highway sanction table from 
    Sec. 52.31(e)(2) of the proposed rule for the same reasons discussed 
    above for why the offset sanction table was removed. Similarly, 
    Sec. 52.31(e)(2) includes new language that directly refers to the 
    timing provisions of Sec. 52.31(d). As with the similar revised 
    language in Sec. 52.31(e)(1)(i), this is merely to clarify that the 
    highway sanction applies with respect to the times set forth in that 
    subsection, even though the area is not listed in a table in the rule. 
    In addition, a new sentence has been added which specifies that the 
    highway sanction only applies to affected areas that are also 
    nonattainment areas. Although this issue was not specifically addressed 
    in the proposed rule, the proposed rule and the preamble to the 
    proposed rule referred back to the section 179(b)(1) highway sanction 
    requirement of the Act (58 FR 51274, 51279; Sec. 51.32(e)(2) of the 
    proposed rule.) Section 179(b)(1) states that ``[t]he Administrator may 
    impose a prohibition, applicable to a nonattainment area * * *.'' 
    Therefore, EPA is incorporating this language, which was merely 
    referenced in the proposed rule, into the final rule.
    
    III. Implications of Today's Rulemaking
    
    A. Implementation of the Sanctions
    
        Section 179(a) provides that unless the deficiency prompting the 
    finding (i.e., nonsubmittal, disapproval, and nonimplementation) has 
    been corrected within the time periods prescribed therein one of the 
    sanctions in section 179(b) ``shall apply, as selected by the 
    Administrator.'' Under this final rule, sanctions will apply 
    automatically in the sequence prescribed herein in all instances in 
    which mandatory sanctions are applied under section 179(a) following 
    findings under section 179(a)(1)-(4) for part D plans or plan revisions 
    that EPA has already made or that EPA will make in the future, except 
    when EPA takes a separate action to reverse the sanction sequence. 
    However, if the sanction clock has expired for any findings before 
    September 6, 1994, no sanction has yet applied since EPA interprets 
    section 179(a) to provide that sanctions shall not apply until EPA 
    makes the sanction selection through notice-and-comment rulemaking. 
    Since this action constitutes the final sanction selection rulemaking, 
    the offset sanction begins to apply on any areas for which the sanction 
    clock has elapsed on September 6, 1994. To understand the timing of the 
    application of mandatory sanctions in these cases, it is first 
    necessary to clarify the discussion in the proposal at p. 51274 on how 
    the sanction clocks function under section 179(a).
        Section 179(a) sets up two distinct sanction clocks. The Act states 
    that if the State does not correct the deficiency within 18 months 
    after a finding, one of the two available sanctions shall apply, as 
    selected by the Administrator. It then provides that if the deficiency 
    has not been corrected within 6 months thereafter, then both available 
    sanctions shall apply. The EPA interprets this to mean that the second 
    sanction always follows 6 months from the actual application of first, 
    regardless of whether this would cause the application of the second 
    sanction to be delayed beyond 24 months from the date of the finding. 
    Therefore, on September 6, 1994 the offset sanction shall apply on any 
    area(s) for which an 18-month sanction clock has elapsed and EPA has 
    not determined that the State has not corrected the deficiency. Both 
    sanctions shall then apply 6 months from that date if EPA has not 
    determined the deficiency has been corrected by then.
        The EPA intends to notify States of the application and removal of 
    section 179 mandatory sanctions (as provided for in Sec. 52.31(d) of 
    this rule) before they apply. In addition, in its actions on submittals 
    received after a section 179(a) finding, EPA will indicate what the 
    effect of its action is on the sanctions clock and sanctions 
    application. The following discussion explains how this will occur, 
    first providing the examples where, prior to 18 months, EPA finally 
    determines whether the State has corrected the deficiency prompting the 
    finding, and then providing examples where EPA finally determines the 
    deficiency has been corrected after month 18.
        In the cases where, prior to 18 months, EPA completes its action 
    determining that the State has corrected the section 179(a) deficiency, 
    sanctions would not apply. The following two examples address instances 
    in which EPA finally determines within 18 months of the finding that 
    started the sanctions clock whether the State has corrected the 
    deficiency and how EPA's action finding the State corrected the 
    deficiency affects the sanction clock.
        In the case where, within 18 months following a finding of 
    nonsubmittal or incompleteness, EPA determines whether a State's SIP 
    submittal corrects the deficiency prompting the finding (i.e., is 
    complete or incomplete), EPA will inform the State of whether the 
    sanctions clock is stopped when it sends the completeness or 
    incompleteness letter to the State. If the SIP submittal is incomplete, 
    then the letter will indicate that the sanctions clock continues and 
    that automatic sanctions will apply as prescribed by this rule. If the 
    SIP submittal is complete, then the letter will indicate that the 
    sanctions clock started by the prior finding of failure to submit or 
    incompleteness permanently stops.
        In the case where, within 18 months following a SIP disapproval or 
    finding of nonimplementation, EPA determines whether the State has 
    corrected the deficiency prompting the finding (i.e., whether the SIP 
    is approvable or whether the nonimplementation deficiency has been 
    corrected), EPA will indicate whether the sanctions clock is stopped 
    when it takes final rulemaking action on the SIP.36 If EPA finally 
    disapproves the SIP or finally determines that the nonimplementation 
    deficiency has not been corrected, then the Federal Register action 
    will indicate that the sanctions clock continues and that automatic 
    sanctions will apply as prescribed by this rule. If EPA finally 
    approves the SIP or finally determines that the nonimplementation 
    deficiency has been corrected, then the Federal Register action will 
    indicate that the sanctions clock started by the prior disapproval or 
    finding of nonimplementation permanently stops.
    ---------------------------------------------------------------------------
    
        \3\6As discussed above in section II.B.1., proposed approval (or 
    a proposal that the nonimplementation deficiency had been corrected) 
    following a SIP disapproval or nonimplementation finding has the 
    effect of deferring and/or staying the application of sanctions. In 
    this case, though, such proposal action would not have a deferral 
    and/or staying effect because it is assumed (for the purposes of 
    this example) that EPA completes final rulemaking action on the SIP 
    within 18 months.
    ---------------------------------------------------------------------------
    
        The following examples address how, following the section 179(a) 
    findings, the States will be kept informed when EPA's actions on 
    revised SIP's are not completed within 18 months of the finding's 
    deficiency. As provided in this rule at Sec. 52.31(d)(1) through (4), 
    in explaining how the States will be kept informed, these examples 
    address sanction removal, as well as sanction deferral and staying.
        In EPA interim final determinations that the State has corrected 
    the deficiency, issued simultaneously with EPA proposed approvals and 
    proposed findings that States are implementing their SIP's (after EPA 
    SIP disapprovals or findings of nonimplementation), EPA intends to 
    notify interested parties, including States, of any deferral or staying 
    of sanctions that will result from Federal Register actions proposing 
    to approve SIP's or to find that the State is implementing its SIP, as 
    provided for in Sec. 52.31(d)(2), (3) and (4) of this rule. In these 
    cases, EPA will also indicate to all interested parties whether 
    sanctions are removed, apply or reapply when it takes subsequent final 
    action on the plan in the Federal Register. If subsequently EPA's 
    proposed positive finding is reversed, then in that action EPA will 
    indicate that sanctions apply or reapply, as appropriate, and what 
    sanctions, if any, apply subsequently. If EPA subsequently fully 
    approves the revised plan, then in that action EPA will indicate that 
    the sanctions clock permanently stops and that any sanctions previously 
    applied due to the original disapproval or finding of failure to 
    implement are removed.
        In addition to these letters and Federal Register actions, the EPA 
    will also periodically publish notices in the Federal Register in which 
    EPA will provide the public with information on areas for which EPA has 
    made findings and which, therefore, are likely to be subject to the 
    offset and highway sanctions.37 If removal, staying, or deferral 
    of sanctions is warranted, EPA will similarly provide the public with 
    information that sanctions have either been removed, stayed or deferred 
    in the area. Finally, to supplement the various letters and actions 
    discussed above, EPA will provide information on the status of sanction 
    12 findings on EPA's Technology Transfer Network (TTN).\38\
    ---------------------------------------------------------------------------
    
        \3\7In some cases, the letter and/or the action may be combined 
    with another action relating to the submittal. For example, if 
    following a disapproval EPA proposes to approve a SIP at month 20 
    after the offset sanction is in place, the interim final 
    determination issued simultaneously with the proposed approval 
    action would also serve to notify the public that application of the 
    offset sanction has been stayed.
        \3\8The TTN is EPA's bulletin board system for making air 
    quality information available to interested parties. For questions 
    on what information is available on the TTN and how to access it, 
    contact the systems operator (919) 541-5384).
    ---------------------------------------------------------------------------
    
    B. Areas Potentially Subject to Sanctions
    
        The EPA has made section 179(a) findings of failure to submit and 
    incompleteness for numerous submittals due under the amended Act. As 
    explained in section II.C.5 above, EPA has elected to provide the 
    public with information on areas potentially subject to sanctions in a 
    separate notice that appears in the notice section of today's Federal 
    Register rather than in tables in today's rule. Therefore, for further 
    information on areas likely to face sanctions on September 6, 1994 see 
    that other notice.
    
    IV. Miscellaneous
    
    A. Executive Order 12866
    
        Under Executive Order 12866 (Order), (58 FR 51735 (October 4, 
    1993)) the Agency must determine whether the regulatory action is 
    ``significant'' and therefore subject to the Office of Management and 
    Budget (OMB) review and the requirements of the Order. The Order 
    defines ``significant regulatory actions'' as one that is likely to 
    result in a rule that may: (1) Have an annual effect on the economy of 
    $100 million or more or adversely affect in a material way the economy, 
    a sector of the economy, productivity, competition, jobs, the 
    environment, public health or safety, or State, local, or tribal 
    governments or communities; (2) create a serious inconsistency or 
    otherwise interface with an action taken or planned by another agency; 
    (3) materially alter the budgetary impact of entitlements, grants, user 
    fees, or loan programs or the rights and obligations of recipients 
    thereof; or (4) raise novel or policy issues arising out of legal 
    mandates, the President's priorities, or the principles set forth in 
    the Order.
        Pursuant to the terms of the Order, OMB has notified EPA that it 
    considers this a ``significant regulatory action'' within the meaning 
    of the Order. The EPA has submitted this action to OMB for review. 
    Changes made in response to OMB suggestions or recommendations will be 
    documented in the public record.
    
    B. Regulatory Flexibility Act
    
    1. Proposal
        The proposal includes a discussion of the impact of the rule on 
    small entities at pages 51277-8. The regulatory flexibility analysis 
    (RFA) (5 U.S.C. 600 et seq.) requires Federal agencies to identify 
    potentially adverse impacts of Federal regulations upon small entities. 
    Agencies are required to perform an RFA where the significant impacts 
    are possible on a substantial number of small entities. Small entities 
    include small businesses, small not-for-profit enterprises, and 
    governmental entities with populations of less than 50,000.
        Because this action will have some impact, an initial RFA was 
    prepared pursuant to EPA guidelines, which has been placed in the 
    docket to this rulemaking. For the following three reasons, EPA 
    believes the impact of this rule on small entities will be limited. 
    First, any impact that may occur from the offset sanction is limited to 
    sources defined as ``major'' for nonattainment NSR purposes, generally 
    100 tons per year (TPY) or more of a criteria pollutant, except in the 
    more serious ozone nonattainment areas. The major sources most likely 
    to also be small entities as defined pursuant to the RFA are in these 
    more serious ozone areas where the major source TPY threshold has been 
    lowered under part D of title I of the Act. Second, the amended Act 
    also increases the nonattainment NSR offset ratio in the ozone 
    nonattainment areas. The ratio ranges from 1.1-to-1 to 1.5-to-1, 
    depending on the severity of the area's classification. Thus, any 
    impact the 2-to-1 offset sanction will have may not be as significant 
    in precisely those ozone nonattainment areas where small entities that 
    are also major sources are most likely to exist. Third, as stated 
    above, the only relevant impact period is 6 months in duration, since 
    after that period the State will either have become subject to both 
    sanctions or have corrected the deficiency and been relieved from any 
    sanctions.
    2. Comments
        Section II.B.1. of this document includes several comments 
    concerning the impact of the proposed rule. One additional comment is 
    summarized here.
        The commenter states that the lowering of the major source 
    threshold under the Act exposes many more small sources to control and 
    the likelihood of sanctions. The commenter believes that many such 
    small sources are small businesses and that, contrary to the analysis 
    in the proposal, an increase in the offset ratio of 0.5 could have a 
    significant impact on the ability of businesses to find adequate 
    offsets.
    3. Response
        The EPA believes that the final rule will have some impact on small 
    entities. The lowering of the major source threshold could expose more 
    sources to the offset sanction. The EPA does not disagree that in 
    individual cases an increase in the offset ratio could have a 
    significant impact on a small business. However, EPA believes that the 
    impact of this rule on small entities will be limited for the second 
    and third reasons discussed above. Additionally, EPA notes that the 
    impact of this rule will also be lessened by the provision in final 
    rules that provides for the deferral and/or staying of the application 
    of sanctions in certain instances when EPA believes it is more likely 
    than not a deficiency has been corrected (see discussion in section 
    II.B.3. of this document). However, because this action will have some 
    impact, a final RFA has been prepared pursuant to EPA guidelines, which 
    has been placed in the docket to this rulemaking.
    
    C. Paperwork Reduction Act
    
        This rule does not contain any information collection requirements 
    which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 
    3501 et seq.).
        When the offset sanction applies, sources subject to it will not 
    incur an additional information collection burden because sources are 
    already required under the section 173 offset requirements to obtain an 
    emission offset from between 1-to-1 and 1.5-to-1. When the offset 
    sanction applies, it should not impose an additional information 
    collection burden because sources will not have to provide any 
    information in permit applications beyond that which is already 
    required in the absence of the sanction. (For the information 
    collection burden of new requirements of the amended Act for 
    nonattainment NSR and prevention of significant deterioration, an 
    information collection request is being prepared to support rulemaking 
    changes to parts 51 and 52.)
        When the highway sanction applies, the Secretary of DOT is required 
    to determine which projects or grants should not be affected by the 
    sanction and which, therefore, are exempt. This determination will be 
    based on information readily available in existing documentation 
    gathered for the purpose of evaluating the environmental, social, and 
    economic impacts of different alternatives for transportation projects. 
    These analyses are required for the preparation of environmental 
    assessments and impact statements under the National Environmental 
    Policy Act (NEPA), (42 U.S.C. sec. 4321 et seq.). Historically, 
    exemption determinations by DOT for sanctions have been based on such 
    NEPA documentation and have not necessitated additional information 
    gathering and analysis by the States. In addition, since under NEPA 
    final environmental documents must be approved by DOT, in most cases 
    the NEPA documentation will already be in DOT's possession. Therefore, 
    EPA does not believe that the highway sanction, when applied, will 
    impose an additional information collection burden on the States.
    
    List of Subjects in 40 CFR Part 52
    
        Environmental protection, Air pollution control, Hydrocarbons, 
    Intergovernmental relations, Nitrogen dioxide, Particulate matter, 
    Reporting and recordkeeping requirements, and Sulfur dioxide.
    
        Dated: July 21, 1994.
    Carol M. Browner,
    Administrator.
    
        For the reasons set forth in the preamble, part 52 of title 40, 
    Code of Federal Regulations, is amended as set forth below:
    
    PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
    
        1. The authority citation for part 52 is revised to read as 
    follows:
    
        Authority: 42 U.S.C. 7401-7671q.
    
    Subpart A--[Amended]
    
        2. Subpart A is amended by adding a new Sec. 52.31 to read as 
    follows:
    
    
    Sec. 52.31  Selection of sequence of mandatory sanctions for findings 
    made pursuant to section 179 of the Clean Air Act.
    
        (a) Purpose. The purpose of this section is to implement 42 U.S.C. 
    7509(a) of the Act, with respect to the sequence in which sanctions 
    will automatically apply under 42 U.S.C. 7509(b), following a finding 
    made by the Administrator pursuant to 42 U.S.C. 7509(a).
        (b) Definitions. All terms used in this section, but not 
    specifically defined herein, shall have the meaning given them in 
    Sec. 52.01.
        (1) 1990 Amendments means the 1990 Amendments to the Clean Air Act 
    (Pub. L. No. 101-549, 104 Stat. 2399).
        (2) Act means Clean Air Act, as amended in 1990 (42 U.S.C. 7401 et 
    seq. (1991)).
        (3) Affected area means the geographic area subject to or covered 
    by the Act requirement that is the subject of the finding and either, 
    for purposes of the offset sanction under paragraph (e)(1) of this 
    section and the highway sanction under paragraph (e)(2) of this 
    section, is or is within an area designated nonattainment under 42 
    U.S.C. 7407(d) or, for purposes of the offset sanction under paragraph 
    (e)(1) of this section, is or is within an area otherwise subject to 
    the emission offset requirements of 42 U.S.C. 7503.
        (4) Criteria pollutant means a pollutant for which the 
    Administrator has promulgated a national ambient air quality standard 
    pursuant to 42 U.S.C. 7409 (i.e., ozone, lead, sulfur dioxide, 
    particulate matter, carbon monoxide, nitrogen dioxide).
        (5) Findings or Finding refer(s) to one or more of the findings, 
    disapprovals, and determinations described in subsection 52.31 (c).
        (6) NAAQS means national ambient air quality standard the 
    Administrator has promulgated pursuant to 42 U.S.C. 7409.
        (7) Ozone precursors mean nitrogen oxides (NOx) and volatile 
    organic compounds (VOC).
        (8) Part D means part D of title I of the Act.
        (9) Part D SIP or SIP revision or plan means a State implementation 
    plan or plan revision that States are required to submit or revise 
    pursuant to part D.
        (10) Precursor means pollutant which is transformed in the 
    atmosphere (later in time and space from point of emission) to form (or 
    contribute to the formation of) a criteria pollutant.
        (c) Applicability
        This section shall apply to any State in which an affected area is 
    located and for which the Administrator has made one of the following 
    findings, with respect to any part D SIP or SIP revision required under 
    the Act:
        (1) A finding that a State has failed, for an area designated 
    nonattainment under 42 U.S.C. 7407(d), to submit a plan, or to submit 
    one or more of the elements (as determined by the Administrator) 
    required by the provisions of the Act applicable to such an area, or 
    has failed to make a submission for such an area that satisfies the 
    minimum criteria established in relation to any such element under 42 
    U.S.C. 7410(k);
        (2) A disapproval of a submission under 42 U.S.C. 7410(k), for an 
    area designated nonattainment under 42 U.S.C. 7407(d), based on the 
    submission's failure to meet one or more of the elements required by 
    the provisions of the Act applicable to such an area;
        (3)(i) A determination that a State has failed to make any 
    submission required under the Act, other than one described under 
    paragraph (c)(1) or (c)(2) of this section, including an adequate 
    maintenance plan, or has failed to make any submission, required under 
    the Act, other than one described under paragraph (c)(1) or (c)(2) of 
    this section, that satisfies the minimum criteria established in 
    relation to such submission under 42 U.S.C. 7410(k)(1)(A); or
        (ii) A disapproval in whole or in part of a submission described 
    under paragraph (c)(3)(i) of this section; or
        (4) A finding that any requirement of an approved plan (or approved 
    part of a plan) is not being implemented.
        (d) Sanction Application Sequencing
        (1) To implement 42 U.S.C. 7509(a), the offset sanction under 
    paragraph (e)(1) of this section shall apply in an affected area 18 
    months from the date when the Administrator makes a finding under 
    paragraph (c) of this section unless the Administrator affirmatively 
    determines that the deficiency forming the basis of the finding has 
    been corrected. To further implement 42 U.S.C. 7509(a), the highway 
    sanction under paragraph (e)(2) of this section shall apply in an 
    affected area 6 months from the date the offset sanction under 
    paragraph (e)(1) of this section applies, unless the Administrator 
    affirmatively determines that the deficiency forming the basis of the 
    finding has been corrected. For the findings under paragraphs (c)(2), 
    (c)(3)(ii), and (c)(4) of this section, the date of the finding shall 
    be the effective date as defined in the final action triggering the 
    sanctions clock.
        (2)(i) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following the findings under paragraphs 
    (c)(2) and (c)(3)(ii) of this section, if the State has submitted a 
    revised plan to correct the deficiency prompting the finding and the 
    Administrator, prior to 18 months from the finding, has proposed to 
    fully or conditionally approve the revised plan and has issued an 
    interim final determination that the revised plan corrects the 
    deficiency prompting the finding, application of the offset sanction 
    under paragraph (e)(1) of this section shall be deferred unless and 
    until the Administrator proposes to or takes final action to disapprove 
    the plan in whole or in part. If the Administrator issues such a 
    proposed or final disapproval of the plan, the offset sanction under 
    paragraph (e)(1) of this section shall apply in the affected area on 
    the later of the date the Administrator issues such a proposed or final 
    disapproval, or 18 months following the finding that started the 
    sanctions clock. The highway sanction under paragraph (e)(2) of this 
    section shall apply in the affected area 6 months after the date the 
    offset sanction under paragraph (e)(1) of this section applies, unless 
    the Administrator determines that the deficiency forming the basis of 
    the finding has been corrected.
        (ii) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following the findings under paragraphs 
    (c)(2) and (c)(3)(ii) of this section, if the State has submitted a 
    revised plan to correct the deficiency prompting the finding and after 
    18 but before 24 months from the finding the Administrator has proposed 
    to fully or conditionally approve the revised plan and has issued an 
    interim final determination that the revised plan corrects the 
    deficiency prompting the finding, application of the offset sanction 
    under paragraph (e)(1) of this section shall be stayed and application 
    of the highway sanction under paragraph (e)(2) of this section shall be 
    deferred unless and until the Administrator proposes to or takes final 
    action to disapprove the plan in whole or in part. If the Administrator 
    issues such a proposed or final disapproval of the plan, the offset 
    sanction under paragraph (e)(1) of this section shall reapply in the 
    affected area on the date the Administrator issues such a proposed or 
    final disapproval. The highway sanction under paragraph (e)(2) of this 
    section shall apply in the affected area on the later of 6 months from 
    the date the offset sanction under paragraph (e)(1) of this section 
    first applied in the affected area, unless the Administrator determines 
    that the deficiency forming the basis of the finding has been 
    corrected, or immediately if the proposed or final disapproval occurs 
    more than 6 months after initial application of the offset sanction 
    under paragraph (e)(1) of this section.
        (iii) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following the findings under paragraphs 
    (c)(2) and (c)(3)(ii) of this section, if the State has submitted a 
    revised plan to correct the deficiency prompting the finding and more 
    than 24 months after the finding the Administrator has proposed to 
    fully or conditionally approve the revised plan and has issued an 
    interim final determination that the revised plan corrects the 
    deficiency prompting the finding, application of the offset sanction 
    under paragraph (e)(1) of this section and application of the highway 
    sanction under paragraph (e)(2) of this section shall be stayed unless 
    and until the Administrator proposes to or takes final action to 
    disapprove the plan in whole or in part. If the Administrator issues 
    such a proposed or final disapproval, the offset sanction under 
    paragraph (e)(1) of this section and the highway sanction under 
    paragraph (e)(2) of this section shall reapply in the affected area on 
    the date the Administrator issues such proposed or final disapproval.
        (3)(i) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following the findings under paragraphs 
    (c)(2) and (c)(3)(ii) of this section, if the State has submitted a 
    revised plan to correct the deficiency prompting the finding and the 
    Administrator, prior to 18 months from the finding, has conditionally-
    approved the revised plan and has issued an interim final determination 
    that the revised plan corrects the deficiency prompting the finding, 
    application of the offset sanction under paragraph (e)(1) of this 
    section shall be deferred unless and until the conditional approval 
    converts to a disapproval or the Administrator proposes to or takes 
    final action to disapprove in whole or in part the revised SIP the 
    State submits to fulfill the commitment in the conditionally-approved 
    plan. If the conditional approval so becomes a disapproval or the 
    Administrator issues such a proposed or final disapproval, the offset 
    sanction under paragraph (e)(1) of this section shall apply in the 
    affected area on the later of the date the approval becomes a 
    disapproval or the Administrator issues such a proposed or final 
    disapproval, whichever is applicable, or 18 months following the 
    finding that started the sanctions clock. The highway sanction under 
    paragraph (e)(2) of this section shall apply in the affected area 6 
    months after the date the offset sanction under paragraph (e)(1) of 
    this section applies, unless the Administrator determines that the 
    deficiency forming the basis of the finding has been corrected.
        (ii) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following the findings under paragraphs 
    (c)(2) and (c)(3)(ii) of this section, if the State has submitted a 
    revised plan to correct the deficiency prompting the finding and after 
    18 but before 24 months from the finding the Administrator has 
    conditionally approved the revised plan and has issued an interim final 
    determination that the revised plan corrects the deficiency prompting 
    the finding, application of the offset sanction under paragraph (e)(1) 
    of this section shall be stayed and application of the highway sanction 
    under paragraph (e)(2) of this section shall be deferred unless and 
    until the conditional approval converts to a disapproval or the 
    Administrator proposes to or takes final action to disapprove in whole 
    or in part the revised SIP the State submits to fulfill the commitment 
    in the conditionally-approved plan. If the conditional approval so 
    becomes a disapproval or the Administrator issues such a proposed or 
    final disapproval, the offset sanction under paragraph (e)(1) of this 
    section shall reapply in the affected area on the date the approval 
    becomes a disapproval or the Administrator issues such a proposed or 
    final disapproval, whichever is applicable. The highway sanction under 
    paragraph (e)(2) of this section shall apply in the affected area on 
    the later of 6 months from the date the offset sanction under paragraph 
    (e)(1) of this section first applied in the affected area, unless the 
    Administrator determines that the deficiency forming the basis of the 
    finding has been corrected, or immediately if the conditional approval 
    becomes a disapproval or the Administrator issues such a proposed or 
    final disapproval, whichever is applicable, more than 6 months after 
    initial application of the offset sanction under paragraph (e)(1) of 
    this section.
        (iii) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following the findings under paragraphs 
    (c)(2) and (c)(3)(ii) of this section, if the State has submitted a 
    revised plan to correct the deficiency prompting the finding and after 
    24 months from the finding the Administrator has conditionally approved 
    the revised plan and has issued an interim final determination that the 
    revised plan corrects the deficiency prompting the finding, application 
    of the offset sanction under paragraph (e)(1) of this section and 
    application of the highway sanction under paragraph (e)(2) of this 
    section shall be stayed unless and until the conditional approval 
    converts to a disapproval or the Administrator proposes to or takes 
    final action to disapprove in whole or in part the revised SIP the 
    State submits to fulfill its commitment in the conditionally-approved 
    plan. If the conditional approval so becomes a disapproval or the 
    Administrator issues such a proposed or final disapproval, the offset 
    sanction under paragraph (e)(1) of this section and the highway 
    sanction under paragraph (e)(2) of this section shall reapply in the 
    affected area on the date the conditional approval becomes a 
    disapproval or the Administrator issues such a proposed or final 
    disapproval, whichever is applicable.
        (4)(i) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following findings under paragraph (c)(4) 
    of this section, if the Administrator, prior to 18 months from the 
    finding, has proposed to find that the State is implementing the 
    approved plan and has issued an interim final determination that the 
    deficiency prompting the finding has been corrected, application of the 
    offset sanction under paragraph (e)(1) of this section shall be 
    deferred unless and until the Administrator preliminarily or finally 
    determines, through a proposed or final finding, that the State is not 
    implementing the approved plan and that, therefore, the State has not 
    corrected the deficiency. If the Administrator so preliminarily or 
    finally determines that the State has not corrected the deficiency, the 
    offset sanction under paragraph (e)(1) of this section shall apply in 
    the affected area on the later of the date the Administrator proposes 
    to take action or takes final action to find that the finding of 
    nonimplementation has not been corrected, or 18 months following the 
    finding that started the sanctions clock. The highway sanction under 
    paragraph (e)(2) of this section shall apply in the affected area 6 
    months after the date the offset sanction under paragraph (e)(1) of 
    this section first applies, unless the Administrator preliminarily or 
    finally determines that the deficiency forming the basis of the finding 
    has been corrected.
        (ii) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following findings under paragraph (c)(4) 
    of this section, if after 18 months but before 24 months from the 
    finding the Administrator has proposed to find that the State is 
    implementing the approved plan and has issued an interim final 
    determination that the deficiency prompting the finding has been 
    corrected, application of the offset sanction under paragraph (e)(1) of 
    this section shall be stayed and application of the highway sanction 
    under paragraph (e)(2) of this section shall be deferred unless and 
    until the Administrator preliminarily or finally determines, through a 
    proposed or final finding, that the State is not implementing the 
    approved plan and that, therefore, the State has not corrected the 
    deficiency. If the Administrator so preliminarily or finally determines 
    that the State has not corrected the deficiency, the offset sanction 
    under paragraph (e)(1) of this section shall reapply in the affected 
    area on the date the Administrator proposes to take action or takes 
    final action to find that the finding of nonimplementation has not been 
    corrected. The highway sanction under paragraph (e)(2) of this section 
    shall apply in the affected area on the later of 6 months from the date 
    the offset sanction under paragraph (e)(1) of this section first 
    applied in the affected area, unless the Administrator preliminarily or 
    finally determines that the deficiency forming the basis of the finding 
    has been corrected, or immediately if EPA's proposed or final action 
    finding the deficiency has not been corrected occurs more than 6 months 
    after initial application of the offset sanction under paragraph (e)(1) 
    of this section.
        (iii) Notwithstanding paragraph (d)(1) of this section, to further 
    implement 42 U.S.C. 7509(a), following findings under paragraph (c)(4) 
    of this section, if after 24 months from the finding the Administrator 
    has proposed to find that the State is implementing the approved plan 
    and has issued an interim final determination that the deficiency 
    prompting the finding has been corrected, application of the offset 
    sanction under paragraph (e)(1) of this section and the highway 
    sanction under paragraph (e)(2) of this section shall be stayed unless 
    and until the Administrator preliminarily or finally determines, 
    through a proposed or final finding, that the State is not implementing 
    the approved plan, and that, therefore, the State has not corrected the 
    deficiency. If the Administrator so preliminarily or finally determines 
    that the State has not corrected the deficiency, the offset sanction 
    under paragraph (e)(1) of this section and the highway sanction under 
    paragraph (e)(2) of this section shall reapply in the affected area on 
    the date the Administrator proposes to take action or takes final 
    action to find that the finding of nonimplementation has not been 
    corrected.
        (5) Any sanction clock started by a finding under paragraph (c) of 
    this section will be permanently stopped and sanctions applied, stayed 
    or deferred will be permanently lifted upon a final EPA finding that 
    the deficiency forming the basis of the finding has been corrected. For 
    a sanctions clock and applied sanctions based on a finding under 
    paragraphs (c)(1) and (c)(3)(i) of this section, a finding that the 
    deficiency has been corrected will occur by letter from the 
    Administrator to the State governor. For a sanctions clock or applied, 
    stayed or deferred sanctions based on a finding under paragraphs (c)(2) 
    and (c)(3)(ii) of this section, a finding that the deficiency has been 
    corrected will occur through a final notice in the Federal Register 
    fully approving the revised SIP. For a sanctions clock or applied, 
    stayed or deferred sanctions based on a finding under paragraph (c)(4) 
    of this section, a finding that the deficiency has been corrected will 
    occur through a final notice in the Federal Register finding that the 
    State is implementing the approved SIP.
        (6) Notwithstanding paragraph (d)(1) of this section, nothing in 
    this section will prohibit the Administrator from determining through 
    notice-and-comment rulemaking that in specific circumstances the 
    highway sanction, rather than the offset sanction, shall apply 18 
    months after the Administrator makes one of the findings under 
    paragraph (c) of this section, and that the offset sanction, rather 
    than the highway sanction, shall apply 6 months from the date the 
    highway sanction applies.
        (e) Available Sanctions and Method for Implementation
        (1) Offset sanction. (i) As further set forth in paragraphs 
    (e)(1)(ii)-(e)(1)(vi) of this section, the State shall apply the 
    emissions offset requirement in the timeframe prescribed under 
    paragraph (d) of this section on those affected areas subject under 
    paragraph (d) of this section to the offset sanction. The State shall 
    apply the emission offset requirements in accordance with 42 U.S.C. 
    7503 and 7509(b)(2), at a ratio of at least two units of emission 
    reductions for each unit of increased emissions of the pollutant(s) and 
    its (their) precursors for which the finding(s) under paragraph (c) of 
    this section is (are) made. If the deficiency prompting the finding 
    under paragraph (c) of this section is not specific to one or more 
    particular pollutants and their precursors, the 2-to-1 ratio shall 
    apply to all pollutants (and their precursors) for which an affected 
    area within the State listed in paragraph (e)(1)(i) of this section is 
    required to meet the offset requirements of 42 U.S.C. 7503.
        (ii) Notwithstanding paragraph (e)(1)(i) of this section, when a 
    finding is made with respect to a requirement for the criteria 
    pollutant ozone or when the finding is not pollutant-specific, the 
    State shall not apply the emissions offset requirements at a ratio of 
    at least 2-to-1 for emission reductions to increased emissions for 
    nitrogen oxides where, under 42 U.S.C. 7511a(f), the Administrator has 
    approved an NOX exemption for the affected area from the Act's new 
    source review requirements under 42 U.S.C. 7501-7515 for NOX or 
    where the affected area is not otherwise subject to the Act's new 
    source review requirements for emission offsets under 42 U.S.C. 7501-
    7515 for NOX.
        (iii) Notwithstanding paragraph (e)(1)(i) of this section, when a 
    finding under paragraph (c) of this section is made with respect to PM-
    10, or the finding is not pollutant-specific, the State shall not apply 
    the emissions offset requirements, at a ratio of at least 2-to-1 for 
    emission reductions to increased emissions to PM-10 precursors if the 
    Administrator has determined under 42 U.S.C. 7513a(e) that major 
    stationary sources of PM-10 precursors do not contribute significantly 
    to PM-10 levels which exceed the NAAQS in the affected area.
        (iv) For purposes of applying the emissions offset requirement set 
    forth in 42 U.S.C. 7503, at the 2-to-1 ratio required under this 
    section, the State shall comply with the provisions of a State-adopted 
    new source review (NSR) program that EPA has approved under 42 U.S.C. 
    7410(k)(3) as meeting the nonattainment area NSR requirements of 42 
    U.S.C. 7501-7515, as amended by the 1990 Amendments, or, if no plan has 
    been so approved, the State shall comply directly with the 
    nonattainment area NSR requirements specified in 42 U.S.C. 7501-7515, 
    as amended by the 1990 Amendments, or cease issuing permits to 
    construct and operate major new or modified sources as defined in those 
    requirements. For purposes of applying the offset requirement under 42 
    U.S.C. 7503 where EPA has not fully approved a State's NSR program as 
    meeting the requirements of part D, the specifications of those 
    provisions shall supersede any State requirement that is less stringent 
    or inconsistent.
        (v) For purposes of applying the emissions offset requirement set 
    forth in 42 U.S.C. 7503, any permit required pursuant to 42 U.S.C. 7503 
    and issued on or after the date the offset sanction applies under 
    paragraph (d) of this section shall be subject to the enhanced 2-to-1 
    ratio under paragraph (e)(1)(i) of this section.
        (2) Highway Funding Sanction. The highway sanction shall apply, as 
    provided in 42 U.S.C. 7509(b)(1), in the timeframe prescribed under 
    paragraph (d) of this section on those affected areas subject under 
    paragraph (d) of this section to the highway sanction, but shall apply 
    only to those portions of affected areas that are designated 
    nonattainment under 40 CFR part 81.
    
    [FR Doc. 94-18572 Filed 8-3-94; 8:45 am]
    BILLING CODE 6560-50-P
    
    
    

Document Information

Effective Date:
9/6/1994
Published:
08/04/1994
Department:
Environmental Protection Agency
Entry Type:
Uncategorized Document
Action:
Final rule.
Document Number:
94-18572
Dates:
This action will become effective on September 6, 1994.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: August 4, 1994, AD-FRL-5023-3
Supporting Documents:
» Legacy Index for Docket A-93-28
» Selection of Sequence of Mandatory Sanctions for Findings Made Pursuant to Section 179 of the Clean Air Act
» Application Sequence for Clean Air Act Section 179 Sanctions [A-93-28-III-A-1]
CFR: (8)
40 CFR 52.31(d)
40 CFR 52.31(e)(2)
40 CFR 52.31(e)(1)(i)
40 CFR 52.31(e)(1)(v)
40 CFR 52.31(e)(1)(iv)
More ...