Approval and Promulgation of Air Quality Implementation Plans; Revised Format of 40 CFR Part 52 for Materials Being Incorporated by Reference

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5828-6]

Approval and Promulgation of Air Quality Implementation Plans;

Revised Format of 40 CFR Part 52 for Materials Being Incorporated by

Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of administrative change.

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SUMMARY: EPA is revising the format of 40 CFR part 52 for materials

submitted by states that are incorporated by reference into their

respective state implementation plans (SIPs). This format revision will

primarily affect the ``Identification of plan'' sections assigned to

each subpart (i.e., state or territory) of 40 CFR part 52, as well as

the format of the SIP materials that will be available for public

inspection at the Office of the Federal Register, the Air and Radiation

Docket and Information Center located in Waterside Mall, Washington,

D.C., and the originating Regional Offices. The revised format will;

better serve to help the public in determining the applicable state

provisions, rules and regulations that comprise the respective

Federally-enforceable SIP's; streamline the format of the documents

that will be available for public inspection at the above-mentioned

locations; streamline the IBR review process followed by the Office of

the Federal Register in reviewing state material for incorporation by

reference into 40 CFR part 52; and assure continued compliance with the

provisions of the Clean Air Act, which requires EPA to periodically

publish comprehensive SIP documents for each state. The sections of 40

CFR part 52 pertaining to provisions promulgated by EPA or state-

submitted materials not subject to IBR review remain unchanged.

EFFECTIVE DATE: This action is effective May 22, 1997.

ADDRESSES: SIP materials which are incorporated by reference into 40

CFR part 52 are available for inspection at (1) the Office of Air and

Radiation, Docket and Information Center (Air Docket), EPA, 401 M

Street, SW., Room M1500, Washington, DC 20460; and (2) the Office of

the Federal Register, 800 North Capitol Street, NW., Suite 700,

Washington, DC.

In addition, all SIP materials listed in the ``Identification of

plan'' sections of each 40 CFR part 52 subpart are available at the

appropriate EPA Regional Office as listed below:

(i) Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,

and Vermont. Environmental Protection Agency, Region 1, One Congress

Street, Boston, MA 02203.

(ii) New York, New Jersey, Puerto Rico, and Virgin Islands.

Environmental Protection Agency, Region 2, 290 Broadway, New York, NY

10007-1866.

(iii) Delaware, District of Columbia, Pennsylvania, Maryland,

Virginia, and West Virginia. Environmental Protection Agency, Region 3,

841 Chestnut Building, Philadelphia, PA 19107.

(iv) Alabama, Florida, Georgia, Kentucky, Mississippi, North

Carolina, South Carolina, and Tennessee. Environmental Protection

[[Page 27969]]

Agency, Region 4, 61 Forsyth Street, S.W., Atlanta, GA 30303.

(v) Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,

Chicago, IL 60604-3507.

(vi) Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.

Environmental Protection Agency, Region 6, Fountain Place, 1445 Ross

Avenue, Suite 700, Dallas TX 75202-2733.

(vii) Iowa, Kansas, Missouri, and Nebraska. Environmental

Protection Agency, Region 7, 726 Minnesota Avenue, Kansas City, KS

66101.

(viii) Colorado, Montana, North Dakota, South Dakota, Utah, and

Wyoming. Environmental Protection Agency, Region 8, 999 18th Street,

Suite 500, Denver, CO 80202-2466.

(ix) Arizona, California, Hawaii, Nevada, American Samoa, and Guam.

Environmental Protection Agency, Region 9, 75 Hawthorne Street, San

Francisco, CA 94105.

(x) Alaska, Idaho, Oregon, and Washington. Environmental Protection

Agency, Region 10, 1200 6th Avenue Seattle, WA 98101.

FOR FURTHER INFORMATION CONTACT: Ms. Montel Livingston, Chair, Agency

SIP Workgroup Steering Committee at (206) 553-0180, or Mr. Harold A.

Frankford, Leader, IBR Reform Team at (215) 566-2108.

SUPPLEMENTARY INFORMATION:

Background

Each state is required to have a SIP which contains the control

measures and strategies which will be used to attain and maintain the

national ambient air quality standards (NAAQS). The SIP is extensive,

containing such elements as emission inventories, monitoring network,

attainment demonstrations, and enforcement mechanisms. The control

measures and strategies must be formally adopted by each state after

the public has had an opportunity to comment on them. They are then

submitted to EPA as SIP revisions on which EPA must formally act.

Once these control measures are approved by EPA after notice and

comment, they are incorporated into the SIP and are identified in part

52 (Approval and Promulgation of Implementation Plans), Title 40 of the

Code of Federal Regulations (40 CFR part 52). The actual state

regulations which are approved by EPA are not reproduced in their

entirety in 40 CFR part 52, but are ``incorporated by reference,''

which means that the citation of a given state regulation with a

specific effective date has been approved by EPA. This format allows

both EPA and the public to know which measures are contained in a given

SIP and insure that the state is enforcing the regulations. It also

allows EPA and the public to take enforcement action, should a state

not enforce its SIP-approved regulations.

The SIP is a living document which can be revised by the state as

necessary to address the unique air pollution problems in the state.

Therefore, EPA from time to time must take action on SIP revisions

which may contain new and/or revised regulations as being part of the

SIP. On May 31, 1972 (37 FR 10842), EPA approved, with certain

exceptions, the initial SIPs for 50 states, four territories and the

District of Columbia.

(Note: EPA approved an additional SIP--for the Northern Mariana

Islands--on November 10, 1986 (51 FR 40799)).

Since 1972, each state and territory has submitted numerous SIP

revisions, either on their own initiative, or because they were

required to as a result of various amendments to the Clean Air Act

(CAA).

Within 40 CFR part 52, there are 58 subparts (subparts A through

FFF). Subpart A contains general requirements applicable to all states

and territories, while subparts B through DDD and FFF contain

requirements that are specific to a given state or territory. Subpart

EEE contains historical information pertaining to EPA action on SIP

material originally submitted by states to the National Air Pollution

Control Administration, Department of Health Education and Welfare in

1970.

The first or second section of each state-submitted subpart within

40 CFR part 52 (other than subparts A and EEE) is called

``Identification of plan.'' This section summarizes state-developed

requirements which EPA has approved as part of a given SIP since May

31, 1972. The state material became federally-enforceable at the time

of EPA approval through a procedure known as incorporation by reference

(IBR) under procedures prescribed in 1 CFR part 51. Originally, this

``Identification of plan'' section contained descriptions of both

regulatory and non-regulatory state requirements that were applicable

to a state SIP. However, state submittals that were approved by EPA on

or after July 1, 1982 were required to undergo a different type of IBR

review before they could be listed in the ``Identification of plan''

section. Under these procedures, EPA was required to provide the Office

of the Federal Register (OFR) the following documentation associated

with each SIP revision:

(1) A crossout/underlined version of the state document showing all

of the revisions being acted upon by EPA. All material that was

extraneous to the IBR documents was to be crossed out.

(2) The specific cross-reference in the respective Identification

of plan sections of all state citations or the individual source of the

documents being IBR'ed.

During a given year, EPA usually requests the OFR to perform

between 150 and 200 IBR reviews per year. While the use of the IBR

review process and the detailed citation descriptions found in 40 CFR

part 52 has helped interested parties keep track of the revised SIP

provisions for each subpart, both the EPA and the OFR have found the

IBR process for SIP revisions (as it currently exists) to be

inefficient and time consuming, given the frequency of the part 52

revisions subject to IBR. The necessary OFR review often has resulted

in a delay of three weeks or more before the final EPA action was

published in the Federal Register. In addition, the amount of IBR

material that EPA has been required to submit to the OFR and maintain

at the Air and Radiation Docket and Information Center at Waterside

Mall is voluminous in comparison to its overall utility. While the

interested public has access to all material that is IBR'ed in 40 CFR

part 52, the available material, in many cases, consists of a piecemeal

series of plan revisions (emphasis added) rather than integrated

amendments. Thus, EPA has found that it is no longer conducive for

providing the public with a sense of what comprises the comprehensive

SIP for each state, district and territory whose Federally-enforceable

regulations are listed in 40 CFR part 52. Furthermore, the current

format of the ``Identification of plan'' sections in 40 CFR part 52 is

inconsistent with the intent of section 110(h)(1) of the CAA which

requires EPA to ``assemble and publish a comprehensive document for

each state setting forth the requirements of the applicable

implementation plan of such State'' at periodic intervals. The initial

comprehensive compilation was due November 15, 1995, with updates

required every three years thereafter.

Revised Part 52 Format/IBR Document

As a result of consultations between EPA and OFR, EPA has begun the

process of developing (1) a revised SIP document for each state that

would be incorporated by reference under the provisions of 1 CFR part

51; (2) a revised mechanism for announcing EPA approval of revisions to

an applicable SIP and updating both the IBR

[[Page 27970]]

document and the CFR, and (3) a revised format of the ``Identification

of plan'' sections for each applicable subpart to reflect these revised

approval and IBR procedures. The description of the revised SIP

document, IBR procedures and ``Identification of plan'' format are

listed below in more detail.

Content of Revised IBR Document

The new SIP compilations will contain the Federally-approved

portion of regulations submitted by the various state agencies. The

compilations will be stored in 3-ring binders and updated primarily on

an annual basis. If no significant changes are made for any state to

the SIP during the year, an update will not be made during that year.

On the other hand, if significant changes occur during the year an

update could be done on a more frequent basis, as applicable.

Typically, only the revised section of the compilation will be updated.

Complete resubmittals of a state SIP compilation will be done on an as-

needed basis.

Each compilation will contain a table of contents identifying each

section of the regulations, including an adoption or effective date for

the regulations. The table of contents in the compilation will

correspond to the table of contents published in 40 CFR part 52 for

that particular state. A copy of the full text of each state's current

compilation will be maintained at the Office of Federal Register and

EPA's Air Docket and Information Center. Each EPA Regional Office will

maintain a compilation for the states within its jurisdiction. The EPA

Regional Offices will have the primary responsibility for ensuring

accuracy and updating the compilations.

EPA will publish an informational document in the rules section of

the Federal Register when updates are made to the SIP compilations.

These updates will generally be done on an annual basis, or more

frequently if needed. This notice will identify the specific sections

of the compilations being updated. It is envisioned that updates may be

for only one section, or for up to the whole compilation, depending on

the extent of revisions done during that year.

EPA will now begin phasing in SIP compilations for individual

states, and expects to complete the conversion of the revised

``Identification of plan'' format and IBR documentation for all states

by May 24, 1999. This revised format is consistent with the SIP

compilation requirements of section 110(h)(1) of the CAA; however, EPA

regards this part 52 reorganization as a separate streamlining effort

with no formal legal connection to the CAA section 110(h)(1)

requirements.

Revised Format of the ``Identification of Plan'' Sections in Each

Subpart

In order to better serve the public, EPA is revising the

organization of the ``Identification of plan'' section and including

additional information which will make it clearer as to what provisions

constitute the enforceable elements of the SIP.

The revised Identification of Plan section will contain five

subsections: (a) Purpose and scope, (b) Incorporation by reference, (c)

EPA approved regulations, (d) EPA approved source specific permits, and

(e) EPA approved nonregulatory provisions such as transportation

control measures, statutory provisions, control strategies, monitoring

networks, etc.

(a) Purpose and scope: Identifies the authority under which EPA is

approving the SIP revisions.

(b) Incorporation by reference: Lets the public know that the OFR

granted EPA approval to incorporate materials by reference which were

submitted by the states to fulfill CAA requirements, after notice and

comment. It also certifies that materials incorporated by reference are

exact duplicates of the state regulations as submitted by EPA to the

OFR.

(c) EPA approved regulations: This is a table that lists all of the

state regulations which have been submitted for inclusion in the SIP by

the state for the purpose of attaining and maintaining the NAAQS, and

which have been approved by EPA for those purposes. These regulations

have gone through state rulemaking process and the public was given an

opportunity to participate in the rulemaking. A comment field is

provided in the tables to describe any Agency limitations or

qualifications on EPA's approval action. Several of EPA's Regional

Offices have included similar tables as separate sections in part 52 in

the past, see Secs. 52.1031, 52.1605, and 52.1679. This format provides

a single location where interested parties can locate the applicable

state approved regulations which are included in the SIP. In the past,

interested parties would have to search the ``Identification of Plan''

section to determine which state regulations were currently approved as

part of the SIP. As EPA receives and acts on new SIP revisions which

affect the entries in the tables, upon final approval the entry would

be updated to reflect the latest state effective date and EPA's latest

approval date along with the FR citation. The full text of approved

regulations will not be included in the CFR but will become part of

those IBR documents described previously at the time of the next annual

update.

(d) EPA approved source specific permits: This table lists all the

source specific permits which have been submitted for inclusion in the

SIP by the state. These permits have gone through state rulemaking

process and the public was given an opportunity to participate in the

rulemaking. EPA also took rulemaking action on these permits and those

which have been approved or conditionally approved by EPA are listed

along with any limitations on their approval, if any. This provides a

single location where interested parties can locate the applicable

source specific state and EPA approved permits which are included in

the SIP. Should a permit be revised or a new permit submitted, after

EPA rulemaking on such revision the table entry would be revised to

reflect the new information.

(e) EPA-approved nonregulatory control measures: This table lists

all of the nonregulatory control measures which have been submitted for

inclusion in the SIP by the state. These control measures have gone

through state rulemaking process and the public was given an

opportunity to participate in the rulemaking. EPA also took rulemaking

action on these control measures and those which have been EPA-approved

or conditionally approved are listed along with any limitations on

their approval, if any. This provides a single location where

interested parties can locate the applicable nonregulatory control

measures which are included in the SIP.

Note: Because the documents and materials listed in subsection

(e) are nonregulatory, they will not undergo the IBR process under 1

CFR part 51. Therefore, these documents will be available for public

inspection only at the Regional Offices listed in the ADDRESSES

section above.

An example of the revised ``Identification of plan'' format appears

below:

Subpart XX--State Name

Sec. 52.xxxx Identification of plan.

(a) Purpose and scope.

This section sets forth the applicable state implementation plan

for [insert state name] under section 110 of the CAA, 42 U.S.C. 7401-

7671q and 40 CFR part 51 to meet national ambient air quality

standards.

(b) Incorporation by reference.

(1) Material listed as incorporated by reference in section 52.xxxx

(c) and (d) was approved for incorporation by reference by the Director

of the Federal Register in accordance with 5 U.S.C.

[[Page 27971]]

552(a) and 1 CFR part 51. Material incorporated as it exists on the

date of the approval, and notice of any change in the material will be

published in the Federal Register.

(2) EPA Region ____ certifies that as of July 1, 1997 the rules/

regulations provided by EPA at the addresses below are an exact

duplicate of the officially promulgated state rules/regulations which

have been approved as part of the state implementation plan.

(3) Copies of the materials incorporated by reference may be

inspected at the Office of Federal Register, 800 North Capitol Street,

NW., suite 700, Washington, DC. Copies of the materials incorporated by

reference may also be inspected at the EPA, Air and Radiation Docket

and Information Center, Air Docket (6102), 401 M Street, SW.,

Washington, DC. 20460 and the appropriate Environmental Protection

Agency Regional Office listed in the ADDRESSES section of this

document.

(c) EPA approved regulations.

[Insert table of approved regulations, see example below.]

EPA APPROVED [insert state name] REGULATIONS.

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State citation Title/subject State effective date EPA approval date Comments

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The name of the state A unique date that The date EPA

regulations which the state uses to publishes its

are approved are identify different approval and the FR

listed in This versions of their citation.

column. regulations.

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(d) EPA-approved State Source specific permits.

[Insert table of approved source specific permits, see example

below.]

EPA-APPROVED [Insert state name] SOURCE-SPECIFIC PERMITS.

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State effective

Name of source Permit number date EPA approval date Comments

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Name of source requesting and Unique state The date state The date EPA

receiving specific limitations. identifying approved the publishes its

number. permit. approval and the

FR citation.

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(e) EPA approved nonregulatory provisions and quasi-regulatory

measures. Examples of nonregulatory SIP provisions include, but are not

limited to, the following subject matter:

SIP Narratives

PM10 Plans

CO Plans

Ozone Plans

Maintenance plans

I/M SIP's

Emissions Inventories

Monitoring Networks

State Statutes

Part D plans

Attainment demonstrations

Transportation control measures (TCM's)

Committal measures

Contingency Measures

Nonregulatory & Non-TCM Control Measures

15% Rate of Progress Plans

Emergency episode plans

Visibility plans

[Insert table of approved nonregulatory measures, etc., see example

below.]

EPA-APPROVED [insert state name] NONREGULATORY PROVISIONS.

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Applicable State submittal

Name of nonregulatory SIP geographic or date/effective EPA approved date Comments

provision nonattainment area date

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Name of control measures........ The geographic and/ The date state The date EPA

or nonattainment approved the publishes its

area were the control measure. approval and the

control measure CFR citation.

applicable.

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Revised Mechanism for EPA Approval

Under the current EPA approval/IBR procedures, EPA utilizes the

following procedure to revise 40 CFR part 52:

EPA revises subsection ( c) of the appropriate Identification of

plan section found in each subpart by adding or amending a numbered

paragraph. Each paragraph contains two major subparagraphs: An

``Incorporation by reference'' portion which describes the submittal

date, state agency/official, effective date of the rule in the

pertinent state, and a description of the rule (either section citation

or source name), and an ``Additional materials'' portion, which

references the remaining pertinent material (e.g., public hearing

information, control strategy demonstration, etc.) of that particular

state submittal. A copy of the official state document which reflects

the ``Incorporation by reference'' materials is sent to the OFR for

review. Each revision must undergo a thorough IBR review by the OFR.

Under the revised mechanism, EPA will indicate approval action of a

state submittal by amending the appropriate charts (see above)

describing the title of the regulation at the time of final EPA

approval of the submittal as published in the Federal Register. At the

outset under the revised mechanism, EPA will provide the full text of

the comprehensive SIP compilation described above for each state and

territory to the Office of Federal Register, along with a master table

of contents, which will constitute the base IBR document. Supplements

to this comprehensive IBR document will be submitted to the OFR for IBR

review approximately once per year, reflecting the changes made over

the course of the year to the individual tables, including the full

text of the currently approved SIP through the separate EPA rulemaking

actions. If no significant changes are made during the year, no updates

will be submitted to the OFR for IBR review.

Enforceability and Legal Effect

This change to the procedures for incorporation by reference

announced today will not alter in any way the enforceability or legal

effect of approved SIP materials, including both those approved in the

past or to be approved in the future. All material identified in the

Code of Federal Regulations (CFR) and approved by EPA into a SIP after

[[Page 27972]]

notice-and-comment rulemaking is federally enforceable, both by EPA

under CAA section 113 and by citizens under CAA section 304, where

applicable. This includes all materials listed for incorporation by

reference in the new section (c ) (all federally-approved state

regulations) and new section (d) (all source-specific SIP revisions),

as well as those identified in new section (e) (all non-regulatory SIP

provisions and quasi-regulatory measures). With respect to the

documents listed in section (e), since no regulatory material is

associated with these revisions these provisions are fully enforceable

upon EPA approval into the SIP, without any incorporation by reference.

To facilitate enforcement of previously approved SIP provisions and

provide a smooth transition to the new SIP processing system, EPA will

be retaining the current Identification of Plan section, previously

appearing in the CFR as the first or second section of part 52 for each

state, in an appendix to each state CFR section for a period of at

least two years. This appendix will include the Identification of Plan

section as it appeared in part 52 prior to adoption of the new system;

it will not add any newly submitted SIP revisions to the appendix.

After the initial two year period, EPA will review its experience with

the new system and enforceability of previously approved SIP measures,

and will decide whether or not to retain the Identification of Plan

appendices for some further period.

All SIP revisions approved in the future under the revised

``Identification of plan'' format and IBR procedure will be federally

enforceable as of the effective date of the final rulemaking in which

EPA approves the SIP revision. Specifically, as of the effective date

of the final rule, all provisions identified in the Federal Register

notice announcing the SIP approval will be fully enforceable under

sections 110 and 113 of the CAA, although they may not yet appear in 40

CFR part 52. Such provisions will be included in the next annual update

of the CFR described above. Thus, it is not necessary that regulatory

language associated with a SIP requirement have been actually

incorporated by reference into the CFR to render a SIP requirement

enforceable from the time of EPA approval.

In conclusion, EPA believes that the revised SIP document/IBR

procedures/40 CFR part 52 format described above represents an

improvement that benefits both the Government (by streamlining the

current procedures and reducing the size of the documents that must be

kept on file) and the interested public (by providing a clearer

description as to what constitutes the applicable SIP for each state at

any given moment in time). As explained above, the revised procedures

do not affect federal enforceability of the SIP, while at the same

time, is consistent with the requirements of section 110(h)(1) of the

CAA concerning comprehensive SIP publication. In addition, these

revised procedures are consistent with the goals of the Agency's

national performance review (NPR) designed to streamline EPA's

regulatory requirements.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: May 14, 1997.

Carol M. Browner,

Administrator

[FR Doc. 97-13484 Filed 5-21-97; 8:45 am]

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