sip 101 introduction to air quality planning module 3: sip work products and schedules version...

SIP 101Introduction to Air Quality Planning

Module 3: SIP Work Products and Schedules

Version August 1, 2015

Developed by the University of North Carolina Institute for the Environment for the Lake Michigan Air Directors ConsortiumContact: Zac Adelman (UNC-IE), [email protected]

SIP 101 - Introduction to Air Quality Planning: Module 3 2

Module 3: Purpose and Objectives

• Present the major SIP planning milestones and work products

• Describe the regulatory tools available to implement and enforce the NAAQS

• Objectives– Learn the major SIP development and implementation

schedules– Gain an understanding of the options available to EPA

for enforcing SIP deadlines and the recourse if these deadlines are not met


Module 3 Road Map

• General Requirements and schedule of SIP work products• Schedules and timelines for different types of SIPs• SIP development, review, and approval process• EPA Regional Office Update• Post-submission process and ways EPA may force action

– Compliance monitoring– Enforcement responsibilities

• Procedural challenges to SIP rulemaking– Citizen Suits

• FIPs, Sanctions, and SIP Calls• SIP Planning Bibliography

Requirements and Schedule of SIP Work Products

Reference(s):• 40 CFR Part 51, Appendix V


SIP Work ProductsWhat’s in a SIP?

• Criteria for Determining the Completeness of Plan Submission (40 CFR 51 Appendix v)

• “The EPA shall return to the submitting official any plan or revision thereof which fails to meet the criteria set forth in Appendix v, and request corrective action, identifying the components absent or insufficient to perform a review of the submitted plan”


SIP Requirements40 CFR 51 Appendix v: Administrative Materials

The Administrative Materials include the Regulatory SIP components

1. Request for Approval: Formal signed, stamped, and dated letter of submittal requesting EPA approval of the plan

2. Proof of Adoption: Evidence that the State has adopted the plan in the State code or body of regulations; or issued a permit, order, consent agreement in final form along with the date of plan adoption or final issuance and effective date

3. Proof of Authority: Evidence that the State has the necessary legal authority under State law to adopt and implement the plan

4. Final State Regulation: A copy of the actual regulation, or document submitted for approval and incorporation by reference into the plan; includes a redline/strikeout copy indicating the changes made to the existing approved SIP, where applicable


SIP Requirements40 CFR 51 Appendix v: Administrative Materials

5. Procedural Verification: Evidence that the State followed all of the procedural requirements of the State’s laws and constitution in conducting and completing the adoption/issuance of the plan

6. Proof of Public Notice: Evidence that public notice was given of the proposed change, including the date of publication

7. Proof of Public Hearings: Certification that public hearings were held in accordance with information provided in the public notice

8. Response to Comments: Compilation of the public comments and the State’s responses


SIP Requirements40 CFR 51 Appendix v: Technical Support

The Technical Support section includes the non-regulatory SIP components.1. Pollutants: Identification of all regulated pollutants affected by the

plan2. Location of Impact: Identification of the locations of affected sources

including the EPA attainment designation of the locations and the status of the attainment plan(s) for the affected area(s)

3. Emissions Changes: Quantification of emissions changes from plan affected sources

4. Attainment Demonstration and Maintenance Plan: State’s demonstration that the NAAQS, PSD, RFP, and visibility, as applicable are protected if the plan is approved and implemented. For all redesignation requests, plans must provide for maintenance of the NAAQS for at least 10 years.


SIP Requirements40 CFR 51 Appendix v: Technical Support

5. Modeling Platform: Modeling information required to support the SIP revisions, including documentation of all software and data used to determine the adequacy of the modeling analysis

6. RACT/RACM: Evidence that emissions limitations are based on continuous emission reduction technology

7. Emissions Verification: Evidence that the plan contains emissions limitations, work practice standards, and recordkeeping/reporting requirements to ensure emissions levels

8. Compliance Measures: Compliance/enforcement strategies, including how compliance will be determined in practice

9. Justifications: Special economic and technical justifications required by any applicable EPA policies, or an explanation of why such justifications are not necessary


SIP Requirements40 CFR 51 Appendix v: Exceptions – Parallel Processing

• Allows a State to submit their plan prior to actual adoption by the State

• Provides the State an opportunity to consider EPA comments prior to submission of a final plan

• State works on all of the exceptions in parallel with EPA’s review of the plan; all requirements must be met prior to EPA’s final determination of plan


SIP Requirements40 CFR 51 Appendix v: Exceptions – Parallel Processing

Requirements for Parallel Processing request:• The Request for Approval letter shall request that EPA

propose approval of the plan by parallel processing• In lieu of Proof of Adoption, State shall submit a schedule for

final adoption of the plan• In lieu of Final State Regulation, State shall include a copy of

the proposed/draft regulation • Procedural Verification, Proof of Public Notice, Proof of

Public Hearings, and Response to Comments not required in submittal


SIP Requirements40 CFR 51 Appendix v: Submission Requirements

• Copyrighted Material: State shall identify any copyrighted material in the Plan submission

• Confidential Business Information (CBI): State shall not include any CBI materials in the SIP submission. If this material is necessary to justify the control requirements and emissions limitations established in the plan, State must clearly identify such material as CBI


SIP Requirements40 CFR 51 Appendix v: Submission Requirements

• All Electronic Option: States have the option to submit plans using EPA’s new electronic web-based SIP (eSIP) submission system

• One Paper Copy Option: If the single paper plan submission is selected, the paper plan must be accompanied by an electronic duplicate, preferably as a word searchable PDF file


EPA Electronic SIP Submission System (eSIP)

• Where EPA is heading for all future SIP submittals

• All electronic submission system• Online tutorials and webinar trainings• Allows State and EPA staff to track SIP

submittal processUse eSIP!!!!


• Every 5-years: NAAQS Review• After promulgation of new or revised NAAQS– <= 3-years: I-SIPs due– <= 1-year: State designation recommendations– <= 2-years: EPA final designations

• After promulgation of final designations– <= 18-48 months: NAA SIPs/attainment

demonstrations– Attainment dates are variable

SIP Work ProductsProcess: Timing and Schedules


Current NAAQS Timeline

PollutantFinal NAAQS

Date (or Projection)

Infrastructure SIP Due

DesignationsEffective

Attainment Demonstration

Due

Attainment Date

Timing t=0 t+3 yearst+2 year

d=0d+(18-48 mos) d+5* years

PM2.5 (2006) Oct 2006 Oct 2009 Dec 2009 Dec 2014Dec 2015 (Mod)Dec 2019 (Ser)

Pb (2008) Oct 2008 Oct 2011Dec

2010/2011June

2012/2013Dec

2015/2016

NO2 (primary) Jan 2010 Jan 2013 Feb 2012 none none

SO2 (primary) Jun 2010 Jun 2013Oct 2013/Jul 2016

Apr 2015 Oct 2018

Ozone (2008) Mar 2008 Mar 2011 Jul 2012 2015 2015/2032

PM2.5 (2012)(current review)

Dec 2012 Dec 2015 Apr 2015 Oct 2016Dec 2021 (Mod)Dec 2025 (Ser)

Ozone(current review)

Oct 2015 Oct 2018 Dec 2017 Dec 2020/2021 2020-2037


Infrastructure SIP (I-SIP)Requirements

• Basic Requirements:1. Ambient air quality monitoring and data systems2. Programs for enforcement of control measures3. Adequate authority and resources to implement a SIP revision

• I-SIP elements addressed in CAA 110(a)(2)• New I-SIPs may cite existing EPA-approved I-SIP rules– Requires a detailed explanation of how existing elements are

being combined with new provisions to meet 110(a)(2) requirements


Infrastructure SIP (I-SIP)Schedule

• Due within three years after promulgation of a new or revised NAAQS


Infrastructure SIP (I-SIP)Elements

(A) Enforceable emissions limitations and control measures

(B) Air quality monitoring, analysis, and data management

(C) Enforcement of CAA permitting programs for stationary sources

(D) Interstate and international pollutant transport

(E) Adequate authority, personnel and funding under State law

(F) Stationary source monitoring, reporting, and verification

(G) Emergency powers to ensure the protection of public health and environment


Infrastructure SIP (I-SIP)Elements

(H) SIP revision plan

(I) Nonattainment area provisions

(J) Consultation with EPA; public notification; and PSD and visibility

(K) Air quality modeling, analysis, and data management

(L) Authority to levy and collect permitting fees for major stationary sources

(M) Consultation and participation by local entities


Nonattainment Area SIP (NAA SIP)Requirements

• Basic Requirements:1. Attainment plan2. Emissions inventories3. Tracking progress4. Control programs

• NAA SIP elements addressed in CAA Title I Part D• Individual NAA SIPs are required for each individual

NAA in a State• NAA SIPs may be developed by multi-state consortia

in transport regions


Nonattainment Area SIP (NAA SIP)Schedule

• Due within 18 – 48 months after a nonattainment designation (CAA Part D §172)

• Additional provisions for each pollutant• Ozone NAA attainment schedule– Marginal = 3 years after designation– Moderate = 6 years after designation– Serious = 9 years after designation– Severe = 15 years after designation– Extreme = 20 years after designation


Nonattainment Area SIP (NAA SIP)Schedule

• PM NAA attainment schedule– Moderate = 6 years after designation– Serious = 10 years after designation

• SOx, NOx, Lead NAA attainment schedule– 5 years after designation


Nonattainment Area SIP (NAA SIP)Schedule: O3 NAA Schedule (CAA Part D Subpart 2 §182)

• Marginal classification– SIP Inventory = 2 years after designation– RACT = 6 months after classification for RACT fix-ups only; new

RACT for sources not covered by existing RACT rules are not required

– Vehicle I/M Program = resubmit previously approved plan– New Source Review and Permit Program = 2 years after

designation– Periodic Inventory = 3 years after SIP inventory until

redesignation to attainment– Emissions statement = annual after designation– Attainment Demonstration = not required


• Moderate classification– Everything from the marginal submission, plus…– Attainment Demonstration = 3 years after designation– Reasonable Further Progress = 3 years after designation– Baseline emissions inventory = 2 years after designation– Emissions credits = 2 years after designation– RACT = 2 years after designation– Vehicle I/M Program = Immediately after designation



• Serious classification– Everything from the moderate submission, plus…– Enhanced monitoring for O3, NOx, and VOC = 18 months after

designation– Attainment demonstration = 4 years after designation– Enhanced Reasonable Further Progress = 4 years after

designation– Enhanced vehicle I/M = 2 years after designation– Clean-fuels = 42 months after designation– Transportation controls = 18 months after designation



• Severe classification– Everything from the serious submission, plus…– Vehicle miles traveled offsets = 2 years after designation

• Extreme classification– Everything from the severe submission, plus…– Clean fuels or advanced control technologies = 3 years after

designation

• Serious, severe, and extreme– Emissions reduction milestones = 6 years after designation and

every 3 years thereafter– Compliance demonstration = 90 days after milestone date



Nonattainment Area SIP (NAA SIP)Schedule: CO NAA Schedule (CAA Part D Subpart 3 §187)

• Moderate classification– SIP Inventory = 2 years after designation– VMT Forecast = 2 years after designation– Contingency = 2 years after classification– Vehicle I/M Savings = Immediately after designation– Periodic Inventory = 3 years after SIP inventory until

redesignation to attainment– Enhanced I/M Program = 2 years after designation– Attainment Demonstration = 2 years after designation


Nonattainment Area SIP (NAA SIP)Schedule: CO NAA Schedule (CAA Part D Subpart 3 §187)

• Serious classification– Everything from the moderate submission, plus…– Vehicle Miles Traveled Reductions = 2 years after

designation– Oxygenated gasoline = 2 years after designation– Major stationary sources definition = 2 years after

designation


Nonattainment Area SIP (NAA SIP)Schedule: PM NAA Schedule (CAA Part D Subpart 4 §189)

• Moderate classification– Permit program = 18 months after designation– Attainment demonstration = 18 months after designation– RACT = 18 months after designation– Reasonable Further Progress = every 3 years until

attainment

• Serious classification– Everything from the moderate submission, plus…– Best Available Control Measures (BACM) = 4 years after

classification


Nonattainment Area SIP (NAA SIP)Schedule: SOx, NOx, Lead NAA Schedule (CAA Part D Subpart 4 §191)

• Attainment Plan = 18 months after designation


Nonattainment Area SIP (NAA SIP)Elements

• Emissions inventory• Emissions Statement• Enhanced monitoring• Control programs

– O3: RACT VOC and NOx, clean fuels, I/M

– Lead: RACM/RACT– PM2.5: BACM, RACM/RACT

– SO2: RACM/RACT– CO: I/M, oxygenated fuels

• New Source Review• Reasonable Further Progress• Attainment demonstration• Contingency measures• Motor vehicle emissions

budget


Maintenance Plans

• Basic Requirements:1. Emissions inventories2. Maintenance Demonstration and emission control strategies3. Air quality monitoring analyses4. Contingency measures5. Motor vehicle emissions budget for Conformity Determination

• Schedule and approvals are part of the redesignation request process


Coordination Between State and Local Agencies

• CAA Part D Section 174(a): NAA SIPS shall be prepared by an organization composed of– Elected officials of local governments in the affected area– The State air quality planning agency– The State transportation planning agency– The metropolitan planning organization responsible for the

transportation planning process– The organization responsible for the air quality maintenance

planning process– Any other organization with responsibilities for developing,

submitting, or implementing the NAA SIP


Coordination Between States

• CAA Part D Section 174(c): Joint Planning– For NAAs that are included within more than one State, “the affected

States may jointly, through interstate compact or otherwise, undertake and implement all or part of the planning procedures for the NAA SIP

• CAA Part D Section 176A: Interstate Transport Commissions– Administrator may establish multi-state transport regions if interstate

transport of air pollutants from one or more States contributes to a NAAQS violation in one or more other States

– Provides for NAA SIP procedures in States that don’t have NAAQS violations to support improved air quality in the multi-state region


Coordination Between States

• CAA Part D Section 182J: Multi-State Ozone NAAs– Allows States with NAAs failing to demonstrate attainment to petition

EPA to make a finding that attainment was hindered by the failure of neighboring State to implement controls

Allegheny County Health Dept. (ACHD)

Carbon Monoxide Limited Maintenance Plan

(Submitted June 2011)

Case Study #4: A Maintenance Plan and Request for Reclassification


Background

• Based on CAA criteria established in 1992, EPA designated NAAs using 1988 - 89 monitor data- In Allegheny County, the “high traffic density areas within the

Central Business District (CBD) and certain other high traffic density areas” (of the Pittsburgh area) were designated “nonattainment - not classifiable”

- CBD is area enclosed by Manongahela and Allegheny rivers, and I-579

- Since the area is “not classifiable” and has CO DVs below 7.8 ppm, ACHD requested a reclassification of its CO nonattainment under provisions of the Limited Maintenance Plan Option. Further, the “not classified” designation does not require a SIP to be submittal


Background

• CBD was designated in attainment effective January 13, 2003- Under this reclassification, within 8 years of the

designation ACHD had to submit a SIP revision to its CO Limited Maintenance Plan to ensure maintenance of the CO NAAQS for another 10 years, through 2022.

- This plan maintains existing controls and contingency provisions, and succeeds the previous plan approved by the EPA in 2003


Criteria for Limited Area Maintenance Plan

• The State Maintenance Plan needs to:- include development of attainment EI to identify low enough emissions level

in the area to attain CO NAAQS• consistent with most recent EPA guidance for NAAs, and time period of monitoring data

used for maintenance demonstration• Based on actual CO emissions on “typical winter day”

- demonstrate maintenance by showing that monitored CO levels meet the NAAQS for limited maintenance areas (7.65 ppm or 85 % of CO NAAQS)

- provide for continued operation of an EPA-approved monitoring network that can verify continued attainment

- include a contingency plan to promptly correct any NAAQS violations after redesignation

- determine transportation conformity by indicating that expected emissions from planned actions are consistent with the emissions budget for the area


Attainment Inventory Details• Dominant source of CO in CBD is on-road mobile• Data representing “typical winter day” were produced by the Motor Vehicle

Emissions Simulator (MOVES) 2010 model, recommended by EPA

Typical winter day CO emissions for Allegheny County2013 2022


Summary of Inventory Analysis Tools


Maintenance Demonstration

• 8-hr CO NAAQS is 9 ppm– Last violated in CBD in 1987– No 8-hr averages > 85% (7.65 ppm) observed in CBD since 1994– Maximum and 2nd highest non-overlapping observations demonstrate

maintenance of standard

Forbes AveFlag Plaza

Gateway Center Subway

Oakland


Monitoring Network and Verificationof Continuous Attainment

• ACHD operates and maintains two stations to monitor CO according to 40 CFR Parts 53 and 58 – The monitor at Forbes Avenue and Grant Street will be

operated in accordance with 40 CFR Parts 58 to verify attainment and identify the need for contingency measures as needed

– Data from the monitors are sent to ACHD Air Quality Program computers

– The Oakland site monitor was removed from service in October 1997

– ACHD requested and was granted permission to relocate the Gateway Center Subway monitor, which had been temporarily from service in May 2000, to Flag Plaza


Contingency Plan

• Triggering Event/Indicator– Verified ambient 8-hr average CO levels > 9 ppm must be recorded at one

monitoring station at least twice within CO season (November - February)

– ACHD will review all available data, and make recommendation on contingency measure

•Contingency Measures– If the violation occurs at the Forbes Ave. monitor a vehicle idling

restriction will be implemented (only in CO season), once EPA notifies ACHD of a need for the measure, or within 3 months of the recorded violation• Vehicle idling restriction must be adopted within 12 months, and implemented

within 8 months after adoption


Contingency Plan

•Alternative Contingency Measures– ACHD reserves the right to petition EPA on the use of

alternatives to the vehicle idling restriction if such measures (or combinations of measures) can be demonstrated to EPA’s satisfaction of being equally, or more beneficial to air quality and public health compared to the vehicle idling restriction

SIP Work ProductsProcess: Development, Review, Approval

Reference(s):• 40 CFR Part 51, Appendix V


• S/L/T authorities develop SIPs in response to– New or revised NAAQS– New or revised State or Federal regulations– Changes in attainment status

• State review, approval, and submission to EPA– Authority: Governor or his/her designee.– Generally delegated to Environmental Secretary or

equivalent.– Local or regional agencies in some states delegated some

authority, but usually not SIP adoption



• EPA Regional Administrators (RA) are delegated the authority to receive, return, approve, or disapprove SIPs– Review, evaluation, rulemaking done at the regional level– Caveats

• EPA Offices of General Counsel and Regional Council must review FRN responses to comments received during NPR public comment period

• SIP Consistency Process may be required if the action is breaking new ground or departs from previous EPA decisions; a pre-decisional, internal EPA deliberative process



SIP Work ProductsProcess: State/Tribal Roles

• Although not required, SIP revisions usually go through an environmental board (designated by environmental secretary)

• 30-day public comment period• Public hearing/availability of SIP revision announced in a

State public forum (e.g. local newspapers)• Opportunity for public hearing• Response to comments• Legislative review (State requirement)• Formal adoption• SIP submittal to EPA


Typical I-SIP Development Process

Public Comment Period & Hearing

Response to Comments

Submit SIP to EPA Regional

Office

Draft State SIP

Final State SIP

Legislative Review


Start

NAAQS Promulgation

Finish

3 years


Typical NAA SIP Development Process

Baseline Emissions Inventory

Control Strategy

Development

Controlled Emissions Inventory

Air Quality Modeling

NAAQS Met?

Draft Implementation

Rules

Public Comment Period & Hearing

State Adopts Rules


Submit SIP to EPA Regional

Office

No

Yes

Draft State SIP

Final State SIP

Legislative Review


Start

NAADesignation

Finish


• State is required to notify the public that the State is requesting a SIP revision

• Allows the public to view and comment upon everything the State will submit to EPA as part of the SIP revision

• State must provide a comment period with the opportunity for a public hearing; hearings not required if none requested

• May also serve as the notice/hearing requirement in the State rule making process

• If EPA finds that a SIP submission is incomplete, State must respond to the EPA and reinitiate the processing, including another public hearing

SIP Work ProductsProcess: Public Notification


• EPA Regional Office prepares the NPR for publication in the Federal Register

• NPR is a public docket in the Federal Register that includes the final State SIP after it has been reviewed by EPA for completeness

• NPR begins the Federal 30-day public comment period on the plan

SIP Work ProductsProcess: Notice of Proposed Rulemaking


• All official correspondence received in accordance with NPR instructions become part of the EPA rulemaking docket

• Comments received before the submissions of a SIP revision are not considered in the EPA rulemaking

• EPA rulemaking is only based on the formal SIP submission and comments received during the comment period

• Exceptions for late comments at the EPA’s discretion– The NPR can state that late comments will not be

accepted

SIP Work ProductsProcess: Public Comment Period


• EPA Regional Office prepares the FRN• The FRN is the notification of the final SIP that is

published in the Federal Register• Considers all relevant comments received after the

NPR– Preamble includes a response-to-comment section

• The plan is promulgated 30-days after the FRN– Can be exceptions for good cause offering a shorter

effective date

SIP Work ProductsProcess: Final Rulemaking Notice


EPA SIP Review Process

• EPA may approve a SIP in full or part– Partial approvals include a partial disapproval which may

trigger a FIP and/or sanction clock.

• Conditional Approval– EPA gets commitment from State to fulfill specific

measures within 1 year or convert to disapproval and trigger FIP and/or sanction clock

– State commitment does not require public notice and hearing process but the specific measures to be supplement the SIP do require public input


EPA SIP Review Process

• Limited Approval– SIP revision adds value but not fully approvable and may

result in start of FIP and/or sanction clocks

• Full Approval– State commits to the SIP submission and EPA approves

with no clocks

• Once approved the SIP contents are Federal law and can only be changed by SIP revision


Draft SIP to EPA Regional Office

New Federal or

State Rulemaking

Regional OfficeReview Public Hearing Final SIP to EPA

Regional Office

Completeness Assessment

Submittal Complete?

Letter of Completeness and

Approvability Review

Pass Review?

Rulemaking Format

Proposed Rule in Federal

Register (NPR)

Public Comments

RO Review and Address

Comments

Direct Final Rule in Federal

Register

Adverse Comments?

Direct Final Withdrawn

Publication of Final Rule in

Federal Register (FRN)

RO Contacts State for Additional Components

State Options:1. Withdraw SIP2. Make Changes3. Let EPA

Disapprove

Re-Submittal

Complete?

Incompleteness Letter to State: No

Action on Submittal

Rule Becomes Effective

Yes

Yes Yes

YesDirect

Sequential

No

No

No

No

ParticipantsEPA Regional OfficeStatePublic

Start

Finish

Typical SIP Process Flow Diagram

EPA Regional Office Update

Post Submission ProcessCompliance and enforcement

Reference(s):• EPA, EPA Clean Air Act Training:

Clean Air Act, Health Effects and Rule Overview • EPA,

SIP Law and Rulemaking on State Implementation Plans

http://www.epaejtraining.org/OAQPS/wp-content/uploads/2014/06/10.00-Karisny-Mckelvey-HealthNAAQStoxicsbackgroundDetroit-3-2-1.pdf

http://www.epa.gov/eogapti1/video/SIPRulemaking1110/MarciaPresentationSIPLaw&Rulemaking_FINAL_8_26_10.pdf



• Compliance Monitoring• Enforcement• Reasonable Further Progress Demonstrations

State’s Role After a SIP is Promulgated


• Pre-construction and operating permits help with compliance and enforcement – Permits include requirements and become enforcement tools– Before a permit is issued, the public can request a a public hearing,

and make comments back on the draft permit

• Progress can be tracked through – Ambient monitoring– Reporting requirements contained in permits and regulations– Site visits– Continuous Emissions Monitoring– Stack testing

Compliance Monitoring


• Detailed national strategy to supplement State enforcement activities

• Provides national consistency in developing stationary source air compliance programs

• Provides States with flexibility to address local air pollution and compliance concerns

• Provides a framework for developing compliance monitoring programs that focus on achieving results

Compliance MonitoringCAA Stationary Source Compliance Monitoring Strategy (CMS)


• Civil liability arises simply through the existence of a violation; no requirement for prior knowledge or intent

• Civil Administrative Actions: notice of violation or an order (with our without penalties) directing an entity to take action to come into compliance

• Civil Judicial Actions: court filing against entities that have failed to comply with statutory/regulatory requirements or comply with an administrative order

EnforcementCivil Actions


• Possible Outcomes:– Settlements may include consent agreements/final orders,

administrative orders on consent, or consent decrees– Penalties are designed to recover the economic benefit of

noncompliance and to compensate for the seriousness of the violation

– Injunctive Relief forces a regulated entity to perform or refrain from performing some designated action

– Supplemental Environmental Projects are environmental improvement projects that violators voluntarily agree to perform

EnforcementCivil Actions


• Criminal liability is triggered through a demonstration of intent to violate NAAQS

• Reserved for the most egregious violations that are willful or knowingly committed

• Possible Outcomes:– Criminal Penalties are fines imposed by a Judge at

sentencing; may include restitution to those affected by the violation

– Incarceration

EnforcementCriminal Actions


• New Source Review and Prevention of Significant Deterioration requires state-of-the-art pollution control devices on new and renovated facilities

• Pollution reductions from the largest polluters• National Emissions Standard for Hazardous Air

Pollutants (NESHAP)• New Source Performance Standards (NSPS) impose

NOx, SO2, and PM controls on emissions from new and reconstructed facilities

EnforcementPrograms and Tools: Stationary Sources


• Rules apply to on-road and off-road sources as well as fuels

• New vehicles and engines must have EPA certification of conformity to emissions standards

• Clean fuels • U.S. flagged marine diesel engines and marine

fuel must conform to CAA standards

EnforcementPrograms and Tools: Mobile Sources


• Requirement for NAA SIPs to contain increments of progress (emissions reductions) from date of designation up to attainment dates

• States must provide quantitative milestones of progress towards attainment every three years until redesignation by the applicable date

• RFP milestone reports are due within 90 days of each milestone date

• Reports must demonstrate compliance with the emissions reduction rules and evidence that the RFP milestones will be met

Reasonable Further Progress


• I-SIP– If conditional approval, State has 1 year to adopt specific

enforceable measures– If requested revision, State has 18 months to correct plan

deficiency– If disapproved or not submitted, State has 18-24 months to

correct plan deficiency• NAA and Maintenance SIP

– All items listed above for I-SIPs– If not approved, State has 18 months to correct deficiency

State’s Role If a SIP is Not Approved

SIP Challenges

Reference(s)• APTI,

SIP Law & Rulemaking on State Implementation Plans




• CAA includes provisions that allow citizens to sue EPA when EPA fails to perform an act or duty required by the statute– CAA was the first environmental law in the U.S. to

allow citizen suits• Plaintiffs must provide the EPA with a Notice

of Intent (NOI) to sue in advance of a lawsuit

SIP ChallengesCitizen Suits



• Under U.S. Code Title 42 § 7604, citizens may sue:– Any person, including the U.S. government, or

other governmental agency for violating emission standards

– EPA Administrator for failing to perform any nondiscretionary act or duty under the CAA

– Entities proposing to construct new or modified facilities without the proper permits



• Requirements– Citizens must be adversely impacted by violation– Violators, State, and EPA must have a 60-day

notice of the alleged violation• Violators may use the 60-day period to correct

and give EPA or State an opportunity to enforce compliance



• CAA 304(a)(1) may be used to enforce standards and limits in the current SIP, even if there is a pending SIP revision submitted to EPA

• CAA 304(a)(2) confers citizen suit authority to compel EPA to make findings and promulgate a FIP for SIP revisions that have not been submitted


• If EPA acts on a SIP revision, the EPA rulemaking is subject to challenge under the Administrative Procedure Act (APA) as a final action– Tried in a Federal Court of Appeals

• If EPA fails to act on a SIP revision within 12 months of completeness determination or if a rule is challenged as unlawful then EPA is subject to lawsuit– Tried in Federal District Court

SIP ChallengesLawsuits


• Court Options– Vacate and Remand: Rule or plan is no longer in effect– Remand without Vacating: Rule or plan remains in

effect but EPA will need either to re-propose or recommence final action

– Remand with Partial Vacate: If possible, remove the defective part of the rule or plan

– Uphold: Permit the rule or plan to remain in effect as promulgated

SIP ChallengesLawsuits


What happens if a State misses a SIP deadline?

• Sanctions!– Discretionary Sanctions, CAA 110(m)– Mandatory Sanctions, CAA 179

• Sanctions triggered by:– Finding of failure to submit a complete SIP – Finding of failure to implement any element of an approved

SIP – Disapproval of a SIP– Failure to submit a SIP revision for which EPA has issued a SIP

call or disapproval notice


Sanctions

• Mandatory, CAA §179– 2:1 Offsets = A ratio of at least 2:1 emissions reductions within the

NAA for new or modified major facilities undergoing NSR; may be statewide in transport regions

– Highway = Funding moratorium for all but exempt projects (safety, mass transit)

• Discretionary, CAA §110(m)– Applies to all SIP elements (NAA and non-Part D)– May be applied “at any time” after trigger, meaning EPA has the

discretionary authority to shorten the 18/24 month clocks– Offset sanctions only apply to where NAA, NSR requirements apply– Highway sanctions may apply anywhere (NAA or non-NAA)


Sanctions

• If no EPA approval at SIP deadline: sanction clock starts– After 18 months: 2-for-1 NAA offset requirement

under NSR– After 24 months: Highway sanctions

• FIP Clock– EPA has 24 months to promulgate a FIP

• Clocks start with publication of EPA notice in the Federal Register


Sanctions

• Offset sanctions only apply within NAAs where the SIP or SIP element associated with the finding of failure or disapproval applies

• Highway sanctions may apply in both NAA and attainment areas

• Sanctions are not triggered if an area fails to attain NAQQS on time (i.e. an approved SIP did not work)


SanctionsStopping the Clocks

• Before 18 months– Interim Final Determination (IFD) – EPA determines

that the SIP deficiency is corrected and sanctions are deferred pending EPA final action on the corrected SIP

• 18-24 months– IFD will stay 2-for-1 offsets and defer highway

sanctions• After 24 months– IFD will stay both sanctions


SanctionsStopping the Clocks: EPA Actions

• From a Failure to submit– EPA final action is a letter to the Governor that the

submitted SIP is complete and it corrects the deficiencies

• From a SIP Disapproval– EPA final action is final rulemaking to approve the SIP

that is now complete and corrected• From a Failure to Implement– EPA final action is a Federal Register notice that the

State is implementing the SIP


Federal Implementation Plans (FIPs)

• 24 months after EPA disapproves or makes a finding of failure to submit a required plan, it has nondiscretionary duty to promulgate a FIP

• The FIP should correct the SIP deficiency; no more and no less

• Clock is turned off only after EPA approves a SIP revision


Conformity Implications of SIP Disapprovals

• ROP and attainment plans include mobile source budgets (MVEB) for NAAs

• Disapproval of either control strategy plans has Transportation Conformity Implications– Conformity Freeze– Conformity Lapse


Conformity ImplicationsConformity Freeze

• If a control strategy SIP (ROP or MVEB) is disapproved, only projects within 1st 4 years of current transportation plan can be funded and continue forward

• A new SIP revision with adequate controls must be approved to allow the conformity plan to proceed

• Conformity freezes are effective immediately upon the effective date of the disapproval; not 18 or 24 months later


Conformity ImplicationsConformity Lapse

• Once highway sanctions have been imposed, no new transportation improvement program (TIP), transportation plan, or project can be funded or found to conform until a new SIP is submitted.

• A new TIP or transportation plan cannot be approved until the mobile budgets in the new SIP are found adequate and approved by EPA


Conformity ImplicationsConformity Lapse

• Protective Finding: prevents the freeze (but not the lapse) if the disapproved SIP contained enforceable measures to achieve all required emissions reductions


SIP Calls

• If EPA finds an approved SIP is substantially inadequate to attain or maintain NAAQS or otherwise comply with CAA– EPA may call on a State to revise its SIP to correct

the deficiencies by a given due date– If not submitted by the due date or the “called”

revision is disapproved, the State is subject to sanctions

• NOx SIP Call Example


NOx SIP Call of 1998

• Purpose: Reduce regional transport of ozone• Applied to 22 Eastern U.S. States and District of Columbia• Required SIP revisions to reduce NOx emissions from

large stationary sources by May 2003• Developed by the Ozone Transport Assessment Group:

partnership between EPA, States, industry, and environmental groups

• Resulted in a NOx emissions trading program among participating States


Bibliography

• Compliance– CAA Compliance Monitoring

• Enforcement– General CAA Enforcement– Air Enforcement Policy, Guidance, and Publications

• NAAQS– Ozone: http://www.epa.gov/groundlevelozone/pdfs/

2014decwebinar.pdf• SIPs

– SIP Processing Manual

http://www2.epa.gov/compliance/clean-air-act-caa-compliance-monitoring

http://www2.epa.gov/enforcement/air-enforcement

http://www2.epa.gov/enforcement/air-enforcement-policy-guidance-and-publications

http://www.epa.gov/groundlevelozone/pdfs/2014decwebinar.pdf



https://cfpub.epa.gov/oarwebadmin/sipman/sipman/mIntro.cfm?chap=0

SIP Resources and Further Reading


EPA SIP Web Resources

• EPA SIP Status and Information– SIP development guidance, redesignations, SSM, infrastructure SIPs– www.epa.gov/air/urbanair/sipstatus

• EPA Green Book– Nonattainment Area classifications and status– www.epa.gov/oar/oaqps/greenbk

• NAAQS– www.epa.gov/air/criteria.html

• Attainment Demonstration Guidance– www.epa.gov/scram001/guidance_sip.htm

• Permit Modeling Guidance– www.epa.gov/ttn/scram/guidance_permit.htm

• Transportation Conformity– www.epa.gov/otaq/stateresources/transconf

• New Source Review– www.epa.gov/nsr

http://www.epa.gov/air/urbanair/sipstatus

http://www.epa.gov/oar/oaqps/greenbk

http://www.epa.gov/air/criteria.html

http://www.epa.gov/scram001/guidance_sip.htm

http://www.epa.gov/ttn/scram/guidance_permit.htm

http://www.epa.gov/otaq/stateresources/transconf

http://www.epa.gov/nsr


Resources

• Code of Federal Regulations (Title 40)http://www.ecfr.gov/cgi-bin/text-idx?SID=4dde5050b8ae59e1bab428b0a94f65f9&mc=true&tpl=/ecfrbrowse/Title40/40tab_02.tpl

• Code of Federal Regulations (Part 50)http://www.ecfr.gov/cgi-bin/text-idx?SID=4dde5050b8ae59e1bab428b0a94f65f9&mc=true&node=pt40.2.50&rgn=div5

• Code of Federal Regulations (Part 58)http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=4dde5050b8ae59e1bab428b0a94f65f9&mc=true&r=PART&n=pt40.6.58

• Ambient Monitoring Technology Information Center (ATMIC)http://www.epa.gov/ttn/amtic

• Air Pollution Training Institute (APTI)http://www.apti-learn.net

http://www.ecfr.gov/cgi-bin/text-idx?SID=4dde5050b8ae59e1bab428b0a94f65f9&mc=true&tpl=/ecfrbrowse/Title40/40tab_02.tpl



http://www.ecfr.gov/cgi-bin/text-idx?SID=4dde5050b8ae59e1bab428b0a94f65f9&mc=true&node=pt40.2.50&rgn=div5



http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=4dde5050b8ae59e1bab428b0a94f65f9&mc=true&r=PART&n=pt40.6.58




http://www.epa.gov/ttn/amtic

http://www.apti-learn.net/LMS/EPAHomePage.aspx



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