[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]