[Code of Federal Regulations]
[Title 40, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR52.31]
[Page 72-78]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 52_APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
--Table of Contents
Subpart A_General Provisions
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.
[[Page 73]]
(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
[[Page 74]]
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
[[Page 75]]
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
[[Page 76]]
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
[[Page 77]]
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
[[Page 78]]
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.
[59 FR 39859, Aug. 4, 1994]