ENVIRONMENTAL PROTECTION AGEIC
Reply to
Anno/: OAQPS, CPSS, SIB Dale.-September 28,
Subject: Opportunity for Public Comment on SIB Plan Revisions and Submittals
TO: Director, Division of Air and Water Programs, Regions I - X
Principal Air Contacts, Regions I - X
«
Guidelines concerning the preparation of Federal Register notices
for "Opportunity for Public Comment" were forwarded to you under cover
memorandum dated August 21, 1973. We have received numerous comments
from the Regional Offices, OAWP, and OEGC. To the extent possible,
we have addressed these comments in the enclosed revised guidelines.
The major changes are as follows:
1. The notice will appear as a "Notice of Proposed Rulemaking"
and be signed by the Administrator. Since it involves proposed
rulemaking, the notice must contain a detailed sjrrcnary of the issues
in the state plan submission (example attached) in order to reason-
ably assure that interested parties would be alerted.
2. It is estimated that ten to fifteen working days will be
required to process the Federal Register notice after it has
been received by OAWP from the Regional Office.
The revised guidelines are to be implemented in future plan sub-
mittals. Also, see the attached memorandum (attachment 3) from
William Frick to myself which discusses preparation of the above
mentioned Federal Register notices. Any comments concerning these guide-
lines should bs addressed to Ted Creekmore or Joe Sableski (919-688-8437)
by October 12, 1973.
^v
Morman G. Edmisten, Chief
Standards Implementation Branch
Control Programs
Development Division
Enclosure
cc: B. J. Steigerwald
J. J. Schueneman
D. K. Berry
I. Auerbach
R. Baum
B. Frick
R. Wilson
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GUIDELINE FCR PU2LIC Cr;:::~iiT PRIC* TO EPA
APPROVAL OF STATE INPLEf'.ENTATION PLAN ACTIONS
Background
The Environmental Protection Agency has been criticized for not
providing an opportunity for public convnent prior to approval/disapproval
actions on state implementation plans and plan revisions. This criticism
has been a major issue in three recent court decisions:
1. Appalachian Power Company, et al, vs. EPA, 477 F 2nd 495,
(4th dr., 1973).
2. Duguesne Light Co.. et al. vs. EPA. 5 ERC 1473 (3rd Cir.,
1973).
3. Buckeye Power Inc., et al. vs. EPA, Case Nfos. 72-1628, 1629.
1632- (6th dr., June 28, 1973).
The Plaintiff in each case complained that EPA did net provide an opportunity
for review and comments of implementation plans as officially submitted by
the States in compliance with section 110 of the Clean Air Act, as amended
1n 1970. They contend that implementation plans have been measurably
modified following the states' public hearings and EPA has acted on these
plans without opportunity of public review and comment on such modifications.
In response to the court decisions, EPA will provide an opportunity for
public review and comment on plan submissions, revisions and supplements
Involving regulatory actions and other matters of suL-stantivc signific-:.nce
to the plan. This opportunity fcr public review and comment shall be extended
through publication in the Federal Register of pertinent information. These
Federal Register notices will appear as proposed rule:naking. The attached
memorandum (attachment 3) from William Frick to Norm Edmisten discusses the
preparation of the proposed ru.lemaking Federal Register and gives the
rational behind the requirement that the package bo in the form of proposed
rulemaking.
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Nptj fi cati en P.';gui roir;ents
A Federal Rem'ster notice soliciting public ccrr/.-ents on proposed
plan revisions rust be prepared for all plan revisions and submittals
Involving regulatory actions and/or regulatory associated actions such as
compliance schedules, variance actions, changes in attainment dates,
transportation controls and land use plans, etc. The Regional Offices
should also consider public notices for other submittals and revisions
that substantially impact on the attainment and maintenance of the
national ambient air quality standards, such as emergency episode proce-
dures, substantial changes in air quality moritoring, or other matters
which are likely to be controversial. Substantive public consent might
be received in such instances that would Influence EPA's approval/disapproval
decisions.
Procedures
The procedure for processing plan revisions and supplements will remain
as described in the Guidelines Series OAQPS 1.2-005A, June 1, 1973, except for
an additional action providing for public notification of plan availability
for review and coranent. This additional notice is required effective
immediately.
P re 1 in'nary Plan Rev lev/
Immediately after receipt of plans from a State, the Regional Office shall
review such information and determine if the revision is acceptable for furthe
consideration. If the plan contains obvious deficiencies, the Regional Office
will attempt to negotiate with the State to correct these deficiencies.
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Propnration of Fc:dcrn 1 Roqisjtcr_ Nqtjcc.:,
Once the deficiencies have been corrected, or if no deficiencies are
noted, the. Regional Office shall be responsible for preparing, for the
Administrator's signature, a Federal Register package which announces
receipt'of the plan, gives notice of proposed ru1e,;i3king, provides for a
30-day public comment period, identifies places where tiie plan can be
examined, and stipulates to whom comments should be addressed. The Federal
Register package shall also include an action memorandum and the notice of
proposed rulemaking. The notice will appear in the proposed rulemaking
section of the Federal Register (40 CFR 52).
Because the notice is setting forth proposed rulemaking, it should con-
tain more information than would be contained if it were simply a notice of
opportunity to comment. While it is not necessary that the subniittal be
printed verbatim in the Federal Register, the notice should adequately
describe the content of the proposed revision so that interested parties can
determine the scope and impact of the proposal, then if further detail is
desired, the plan can be reviewed at the identified locations. The content
will obviously vary greatly depending on the type of action that is being
proposed. If the action includes significant changes, the notice should identify
the purpose of the revision, the increase or decrease in emissions or ambient
concentrations that will be effected by the change, the regulations which
are being changed, and the impact on attainment of national standards. Every
effort should be made to present this summary in clear, simple language which
can be easily understood.
Since it is rulemaking, the notice should clearly indicate that fact.
Although there is no essential language which must ba used in the last line
of the heading which describes the action cQiitnincd in the publication, it'
would be appropriate that the heading state that it is a notice of proposed
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rule-nakinn and then describe the nature of tho proposal, e.g., "Notice of
Proposed Ruleiuaking: Proposed Revision to Arize-.-.;. Implementation Plan";
or "notice of Proposed Rulemaking: Proposed Compliance Schedule for Certain
Sources in Alabama."
Th"e Federal Register notice shall follow the general format describing
pertinent plan information similar to the attached example (Attachment 1).
Note the detailed description of the proposed plan, and the discussion of
the projected impact the proposed plan will have on the State implementation
plan.
The Regional Office shall forward the notice of action
memorandum from the Regional Administrator to the Administrator through CAMP
'Attention: Ms. Cathy Thompson, Waterside Mall, Room 943-West Tower, 4th and il
Streets, S.W., Washington, D.C . 20460). The package shall include the original
Federal Register notice (double spaced with pages numbered at the bottom) and
ten copies. Two of the copies shall contain the statement "Certified to be a
true copy of the original" typed at the bottom of the last page. This is
necessary because the Administrator will sign three notices, the original and
two copies.
Additional copies of the Federal Register package shall be forwarded to:
1. Mr. Jean J. Schueneman, Director, Control Programs Development
Division, Research Triangle Park, N. C. 27711 for inclusion in the
official SIP files.
2. Ms. Rubye Mullins, Information Officer, Office of Public Affairs,
EPA, Waterside Mall, Room 329C-Wost Tower, 4th and M Streets, S.W.,
Washington, D. C. 20460 for public availability a^ headquarters.
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3. Mr. Richard Wilson, Director, Division of Stationary Source
Enforcement, Waterside Mall, 1125C-l!cst Tov/or, 4th and M Streets, S.W.,
Washington, D. C. 20460.
4. Cognizant State and local air pollution control agencies (State
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and local agencies should not get copies of the action memorandum).
Since these actions do not involve wide EPA interest and consideration, it
is expected that they will appear in the Federal Register in 10 to 15 working
days after receipt by Ms. Thompson. Ms. Thompson will monitor progress of
Federal Register actions. If you have any questions on the status of a
particular package, please call her at (202) 755-0472.
In summary, the following information should be included in the Federal
Register notice:
1. An identification of the plan under consideration.
2. A detailed summary of the action or important aspects of the plan.
Describe any court orders requiring the revisions.
3. Identify places where the plan can be examined and periods of avail-
ability for review. As a minimum, this will include the offices of cogni-
zant state and local air pollution control agencies, including State
district offices; the EPA Regional Office, and the Freedom of Information
Office in Washington, D. C.
4. Identify to whom comments shall be submitted.
Public Advertisement
The Regional Office will also arrange for a legal notice to be published
in newspapers of general circulation throughout the area affected by the
proposed plan, which will contain a. summary of the information included in the
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Federal Register notice. This shall be published as soon as possible after
the Feclcraj^ Register notice has been published. Care must be exercised in
preparing the legal notice to assure consistency with the Federal Register
with regard to period of comments, plan content, etc.
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Handling Public Coiirii'ents
Receipt of any comments shall be promptly acknowledged (for an example,
see Attachment 2). A copy of all comments and acknowledgments will be for-
warded to Ms. Rubye Mull ins, Mr. Jean Schueneman, and Mr. Richard Wilson at
the addresses given above. The Regional Office will take substantive
comments into proper consideration as they impact on approval/disapproval
and proposal actions. In preparing subsequent Federal Register packages,
these public comments must be addressed in the preamble to the regulations
on Federal Register notices and EPA's responsiveness noted.
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Attachir.r.-nt 1
ENVIRONMENTAL iro'iicnc;; ;,GLr;;cY
(40 CFR h.rt 52)
APPROVAL AND PROMULGATION OF STATE IMPLEMENTATION PLANS - MARYLAND
Notice of Proposed Run-making: Proposed Plan to Achieve
Secondary Standards for Maryland
On May 31, 1972 (37 F.R. 10342), pursuant to section 110 of the Clean
Air Act and 40 CFR Part 51, the Administrator granted an 18-month extension
for submission of a plan to attain and maintain the secondary standard for
sulfur oxides in the Metropolitan Baltimore Intrastate Region. On July 31,
1973, the Governor of Maryland submitted the plan as required.
The Administrator hereby issues this notice setting forth the Maryland
Plan for Implementation of the Secondary Standards for sulfur oxides in the Metro-
politan Baltimore Intrastate Region as proposed rulemaking, and advises the public
that comments may be submitted on whether the control strategy should ba
approved or disapproved as required by section 110 of the Clean Air Act.
Only comments received within 30 days from the publication of this notice
will be considered. The Administrator's decision to approve or disapprove
the plan is based on whether it meets the requirements of section 110(a)(2)
(A)-(H) and EPA regulations in 40 CFR Part 51.
The proposed plan does not alter or supplement the present Maryland
regulations for sulfur dioxide. Rather, the plan is submitted to demonstrate
that implementation and enforcement of existing Maryland regulations in the
Metropolitan Baltimore Intrastate Region will be sufficient to achieve the
secondary standards for sulfur dioxide by 1975. The control strategy developed
by Maryland in the original plan (submitted January 28, 1972, hereafter referred
to as the original plan) to meet the secondary standards for sulfur oxides was
not approved because calculations in the plan regarding projected air quality
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for 197G indicated that the; stccndjjy standard.; ci.uld not bo met using
reasonably available technology. . Thus, an IC-iront.h extension VMS grf.ntcc!.
The Maryland proposal states that certain cievsacprrsnts have token place
since the original irplerr.entation plan v.-cis submit to;!', which elter projcctr/d
sulfur'oxide air quality significantly. These devc?T:pir.ents are given by
Maryland as follows:
1. A new data base has been formulated for afr quality due to
changes in measurement and data reduction techniques.
2. More detailed information has been obtained on actual emission rates
and dynamic effluent characteristics.
3. Considerable change in fuel burning sources and control plans are
to be expected due to negotiations with emitters that had not previously
been dealt with.
4. Improved capability in the computer used in the analysis.
The results of this model effort predict a maximum concentration of 35 ug/rn
annual average for the Metropolitan Baltimore Intrestate Region. Total
emissions of sulfur oxides will be reduced from 180,250 tons/year for tht base
year of 1971 to 90,996 tons/year by 1975.
Copies of the Maryland plan are available for public inspection during
normal business hours at the Office of EPA, Region III, Curtis Building,
Second Floor, 6th and Walnut Streets, Philadelphia, Pennsylvania 19106, and in
the Office of the Maryland State Department of Health and Mental Hygiene, CO!
N. Howard Street, Baltimore, Maryland 21201, and at "he Freedom of Infcr.raticn
Center, EPA, 401 M Street, S.W. Washington, D.C. 20,'GO.
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Interested persc^s ruy p^rU'dp''''0 in this rulf.r';!;inn by su!;rrl 'I inij ',.T! !.;... i:
con;:e:r,ts, preferably in triplicate, to the Regional Administrator, Environ." vi.'i'ol
Protection Acency, Region III, Curtis Building, Gth and K'alnut Streets, Phila-
delphia, Pennsylvania 1910C. Relevant cerricnts received within 30 day:, cf tin':.
notice will te considered. Receipt of comments will be ackncwl edged but si^stsn-
tive responses to individual consents will not be provided. Comments received
will be available during normal working hours at the Region III office. All
relevant iratter presented shall be evaluated and the Agency will inccrporate
in the rules adopted a concise general, statement of their basis and purpose.
Authority: Section 110(a) of the Clean Air Act, as amended, 42 U.S.C. 1857c-5(a)
Date
Russell Train, Administrator
Environmental Protection Agency
"Certified to be a true cqpy of the original"
(THIS APPEARS-OM TWO COPIES OF THE ORIGINAL DOCUMENT)
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cor.t:.":i"i'ino. c.::.'r--:-r,i~ on v.i'.rj |'/vcpo.;:d :
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Sincerely VOLTS,
rrmari &. EcV./i stan ^ Clv'-.vr
cc: Rubye H'.jlVins
Oe.ui 0. ici.!:cii«nrin
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EPA's reviov; can be made in a short lino, the Region is
precluded from proposing its detcrminat:ion to ni'pi'ovo.
The Rccjjon r.!iou.ld do v;lMtcvcr i;; nore <::;.>; is I:; lc;it v/j. {.h
the time fr;.'.:.;C3 established by k'110.
Since it is rulcnaking, the notice should clearly in-
dicate that fact. For this reason, we recoir.r^.end that the
example used in the transportation control plans not be
used here. Although there is no essential language which
must be used in the last line of the heading v.'hich describes
the action contained in the publication, we believe it
would be appropriate that the heading state that it is
a notice of proposed rulemakirig and then describe the nature
of the proposal, e.g., "Notice of Proposed Rulenaking; Pro-
posed Revision'to Airzona Implementation Plan"; or "Notice
of Proposed Rulemaking; Proposed Compliance Schedules for
Certain Sources in Alabama".
Because the notice is setting forth proposed rulemaking
it should contain more information than would be contained
if it were simply a notice of opportunity to comment. While
it is not necessary that the submittal be printed verbatim
in the Federal Register, the notice should adequately de-
scribe the content of the proposed revision so that in-
terested parties can determine the scope and impact of
the proposal, then if further detail is desired, the plan
can be renewed at the identified locations. The content
will obviously vary greatly depending on the type of action
that is being proposed. If the action is substantial, the
notice should identify the purpose for the revision, the
increase or decrease in emissions or ambient concentrations
that will be effected by the change, the regulations which
are being changed, and the impact on attainment of national
standards. These, of course, are only examples and it must
be left up to the judgment of the Regional office to deter-
mine the detail which will be sufficient to properly make
all interested parties aware of the action that is being
taken.
The Regions may wish to avoid giving the impression that
the proposal lias been reviewed by EPA and that all parts are
believed to be approvi\ble by stating that the proposal is
the States submittal and EPA is soliciting comments on what
EPA's action should be.
A final important comment is that the Federal Register
package should be prepared for signature by the 7id:ninistiv.tor
rather than the /issistant Administrator for Air and Water Pro-
grams. Section 301 of the Clean Air Act precludes the Ad--
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ministrator from delegating his authority to make .regulation::.
Since we are considering tie approval, of implementation
plans to be rul er.a): j M'J , this precludes the signinn of the
notice of proposed rulci:.aking by the Assistant 'ixi.v.inistrato::.
We are taking steps to minimize the internal reviev.' at
headquarters that would normally accompany substantive
rulemaking signed by the Administrator. In this type of
rulemaking the proposal does not include any substantive
EPA action. Of course, if the region does propose what is in
fact EPA's determination, the proposal would have to folio1.-:
nor rial channels. We caution against reliance on the pro-
posals which were made in connection with transportation
controls. Those proposals were made because the District
of Columbia Circuit Court of Appeals required that EPA take
comment on the transportation control strategies although
it did not say why this was required. Because of the two
month deadline required by the Court order, the 21-day period
was established, with the concurrence of NRDC, as being
necessary to meeting the Court deadline. It was not in-
tended to supplant permanently the normal 30 day period.
Furthermore, at the time that those notices were prepared,
no Court had yet made the determination that the approval
of implementation plans was rulemaking and the notices were,
although published in the proposed rulemaking section,
drafted more like a notice of opportunity for comment in order
not to prejudice our position in the other cases, which was
that this was not rulemaking. The short description and
the preparation for signature by the Assistant Administrator
was also a function of a short time period involved. Ac-
cordingly, these should not be used as an example of the
notices that are to be prepared from now on.
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