SIP PROCESSING IN REGION IV
PREPARED BY
RICHARD A. SCHUTT
AIR PROGRAMS BRANCH
AIR PEST., & TOXICS MGMT. DIVISION
EPA REGION IV
ATLANTA, GA
NOVEMBER 16, 1990
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SIP PROCESSING IN' REGION IV
-DECEMBER S, 1990.
9:00 INTRODUCTION - BRUCE MILLER
9:15 SIP PROCESS - DICK SCHUTT
RECEIPT & IDENTIFICATION
COMPLETENESS DETERMINATION
9:30 £IP REVIEW
DRAFT SUBMITTALS
PRE-HEARING SUBMITTALS
FINAL SUBMITTALS
BREAK
10:15 FEDERAL REGISTER PREPARATION
PROPOSALS
FINAL'
DIRECT FINAL
SIP REFORM - TABLE 1, 2, 3, 4
11:00 DISPUTE RESOLUTION
11:15 TKAUJX.J.NU
LUNCH
1:00 SIP CONTACTS
1:15 BOILERPLATE LANGUAGE
1:45 COMPLETENESS. CHECKLIST
2:00 BREAK
2:15 FORMS FOR TRACKING/CONCURRENCE
2:30 AIR ENFORCEMENT BRANCH PROCEDURES
2:45 OFFICE OF REGIONAL COUNSEL PROCEDURES
3:00 ADJOURN
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Distribution List for SIP Processing in Region IV Manual
Air Programs Branch
Bruce Miller
Tom Hansen
Jewell Grubbs
Kay Prince
Stuart Perry
Dale Aspy
Brenda Johnson
Yasmin Yorker
Carol Kemker
Liz Wilde
Rosalyn Hughes
Beverly Hudson
Carla Pierce
Vickie Boothe
Air Enforcement Branch
Jewell Harper
Doug Neeley
Sally Shaver
Mark Armentrout
Unit chief tbn
Tom Lyttel
Sharron Porter
Charlie Burland
Pam Adams
Reggie Barrino
Kevin Taylor
Phillip Barnett
Becky Allenbach
Veronda Otey
Greg Fraley
Office of Regional Counsel
Bill Anderson
extra copy
Mary Kay Lynch
Angelia Sounder
Nancy Tommelleo
Alan Dion
Stedmon Southall
Denise Gerth, OAQPS
Tom Diggs, Region VI
Carol LeValley, Region VII
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3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V, ,^° REGION IV
"345"COtJRTL~AND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE: December 17, 1990
SUBJECT:
FROM:
Update of SIP Processing in Region IV Manual
Dick Schutt
SIP Coordinator
TO: SIP Reviewers
Attached is an update to the SIP Processing in Region IV manual
recently provided to all SIP- reviewers-/ This material provides
procedures on enforceabilty issues relating to review of SIP
revisions. Please insert this material in Appendix E of the manual,
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SIP PROCESSING IN REGION IV
TABLE OF CONTENTS
PAGE
1
INTRODUCTION
2
RECEIPT AND IDENTIFICATION
3
SIP REVIEW
6
FEDERAL REGISTER PREPARATION
11
DISPUTE RESOLUTION
13
TRACKING
APPENDIX A
A-l SIP REVIEW CONTACTS FOR REGION IV
A-2 SIP REVIEW TECHNICAL AREA CONTACTS
APPENDIX B
BOILERPLATE FOR FEDERAL REGISTER NOTICES
BOILERPLATE FOR ACTION MEMORANDUM
EXAMPLE LETTER NOTICE - APPROVAL TO STATE
EXAMPLE LETTER NOTICE - LETTER TO SOURCE
EXAMPLE OF DIRECT FINAL NOTICE
EXAMPLE TABLE 1 FRN FOR SEQUENTIAL PROCESSING W/TSD
EXAMPLE DISAPPROVAL NOTICE FRN
EXAMPLE TABLE 1 PRMN
EXAMPLE TABLE 2 FRN WITH TABLE 1 PRMN
APPENDIX C
COMPLETENESS CRITERIA CHECKLIST FOR SIP SUBMITTALS
TECHNICAL SUPPORT DOCUMENT CRITERIA CHECKLIST
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
APPENDIX D
LOG SHEET FOR TRACKING SIP SUBMITTALS IN SIPTRAX2
ROUTING OF CONCURRENCE
ROUTING OF CORRESPONDENCE
SAMPLE COMPLETENESS LETTERS s COMPLETE & INCOMPLETE
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APPENDIX D (CONT)
BOILERPLATE FOR CONCURRENCE MEMOS FOR:
PRE-HEARING SUBMITTALS
SUBMITTALS
SUBMITTAL THAT HAD BEEN REVIEWED PREVIOUSLY
CONCURRENCE ON..FRN
MEMO FOR REVIEW BY REGIONAL METEOROLOGIST
CONTENTS OF COMMUNICATIONS STRATEGY
EXAMPLE FOR COMMUNICATIONS STRATEGY
EXAMPLE FOR OMB REVIEW FORM
EXAMPLE FOR FEDERALISM REVIEW FORM
EXAMPLE FOR TYPESETTING REQUEST FORM
FEDERAL REGISTER DOCUMENT CHECKLIST
APPENDIX E
ENFORCEABLTLITY CHECKLIST
APPENDIX F
MOU BETWEEN, ORC AND APTMD
SEPT. 6, 1989 MEMO ON CATEGORIES OF REGS FOR IBR
JULY 26, 1989 MEMO TO OFR WITH CAT. OF REGS BEING IBR'ED
LETERS FROM STATES ON HOW REGS BECOME EFFECTIVE:
ALABAMA
FLORIDA
GEORGIA
KENTUCKY
MISSISSIPPI
NORTH CAROLINA
SOUTH CAROLINA
TENNESSEE
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SIP PROCESSING IN REGION IV
INTRODUCTION
This notebook is intended to present the Region IV specific
procedures to supplement the procedures found in "Processing
Procedures for SIP Revisions for Part 52.;. Part 62 111(d) Plans;
and Part 81 Redesignations" and "Guidelines for the Review of
State Implementation Revisions by EPA Regional Offices".
This regional procedures notebook is divided into several
sections. The narrative sections deal with, processing of SIP
revisions in Region IV. There are also several appendices
containing guidance documents and examples of various types of
Federal Register notices.
Appendix A provides a listing of the people involved in the SIP
process and their responsibility.
Appendix B contains examples of Federal register notices for
each type of SIP revision, a sample FRN with bpilerplate
language, a sample ACTION MEMORANDUM, and a sample letter notice
to the state and interested party.
Appendix C contains example letters to a state agency concerning
the completeness of a SIP package.
Appendix D contains samples of routing slips, concurrence forms,
and typesetting forms.
Appendix E contains procedures followed in the Air Enforcement
Branch for reviewing SIPs.
Appendix F contains procedures followed in the Office of
Regional Counsel for reviewing SIPs.
RICHARD SCHUTT "FR": sip-proc
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RECEIPT AND IDENTIFICATION
A SIP package is addressed to either the Regional Administrator
(RA), the Air, Pesticides, and Toxics Management Division
Director fDD) or the Air Programs Branch Chief. (APBC). If the
SIP is sent to the RA or DD, it is forwarded to the APBC.
The SIP is forwarded by the APBC to the SIP Coordinator for
logging purposes and then sent to the appropriate Section Chief
and Unit Chief for assignment to a staff member. The SIP
coordinator provides a six sided folder for the submittal and a
form containing necessary input to track the submittal in
SIPTRAX2 throughout the approval process. The six sections of
the file, in order, are? Submittal; EPA Comments; Public
Comments; Federal Register Proposal; Final Federal Register;
and, Miscellaneous. The tracking form is updated frequently and
a copy provided to the SIP Coordinator for updating SIPTRAX2.
SIPTRAX2 is the system used by the Office of Air Quality
Planning and Standard* (QAQPS) to track submittals and Federal
Register notices. The system is accessable through the QAQPS
bulletin board. The project officer determines whether it will
be processed as a Table 1, 2 or 3, or 4 (Letter Notice) (See
Tables 1-4)- Table 1 SIPs require HQ review and approval.
Table 2 SIPs allow HQ a 30-day review period. Table 3 SIPs only
require Regional review and approval. Table 4 SIPs require
Regional review and a letter notice.
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SIP REVIEW
Pre-Hearing Submittals:
When a pre-hearing submittal is received, a copy is routed to
ORC, the Air Compliance Section, and the Asbestos and Source
Evaluation Section for review. The deadline is determined by
the public hearing scheduled by the state/local agency. It is
most important to complete the review prior to the public
hearing date, and preferably at least one week prior to the
public hearing date. This enables the state/local to make the
necessary changes much more easily than if comments are received
after the record closes. If comments are received by the
state/local after the public comment period closes, they have to
have another public hearing to make the cnanges. It Ls
important to identify changes that are necessary; as opposed bo
changes that would be nice to make.
It is most important during the review of the pre-hearing
submittal to identify all changes, or as many changes as
possible. During this phase it is easy foi the state/local to
make changes. It also avoids having to come back later on a
final submittal and make additional comments on regulations that
EPA has already reviewed and commented on.
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Final Submittals:
When a final SIP submittal is received and logged in it is
assigned to the project officer. Two weeks are allowed for the
completeness determination. Appendix C contains the appropriate
checklists for the completeness review and example letters to
the state. If the SIP is /iat complete, the state must be
notified at the end of this two-week review period. The
notification will be specific and signed by the APBC. If it is
determined that the package is complete, the State will be
notified and the SIP sent to the various reviewing
organizations in the RO for review. One copy is sent to the
Office of Regional Counsel (ORC) and a copy is sent to the
Chiefs ot the Air Compliance Section and the Source Evaluation
and Asbestos Section in the Air Enforcement Branch. The project
officer and unit chief will decide if a particular branch or
office does not need to review the package. If the submittal
pertains to a particular technical subject matter, a copy should
be sent to the contact for that area. These contacts are
identified in Appendix A-2. For example, a SIP dealing with VOC
limits should be routed to the VOC contact.
In a December 8, 1988, memo on SIP review, the APBC stated that
comments on SIP packages only address the subject of the
proposed changes. "The submittal is not to be used as
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opportunity to correct non-related provisions of state/local
regulations."
Approximately four weeks is allocated for this internal review.
If the SIP cannot be approved, the letter to the state, which is
signed by the APBC, must be specified and supported by EPA
regulations or written policy. The states will be given three
options. They must notify EPA which option they will utilize
within a period. The options are: 1) Withdraw the SIP package
within two weeks, 2) make the necessary changes within 60 days,
or 3) let EPA formally disapprove the package.
The enforcement review will contain an enforceability checklist
for each action reviewed. A copy of the checklist will be sent
to the Air Programs Branch with the appropiate concurrence/
noneoneurrence memo. A sample enforceability checklist is
contained in Appendix E.
The project officer in the APB should compare the regulations in
the SIP revision to the most recent SIP compilation to ensure
that the regulation being revised has been approved by EPA.
This comparison should be done during the SIP review process,
before the rulemaking notice is prepared.
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FEDERAL REGISTER PREPARATION
When the review of the submittal is completed a Federal Register
notice and, if needed, a technical support document is
prepared. The project officer in conjunction with the
appropriate unit chief will determine if the action will be a
proposal and a final notice (PF) or a direct final notice (DF).
Appendix B contains the boiler plate language for a Final
Rulemaking Notice (FRN), Proposed Rulemaking Notice (PRMN), as
well as examples of FRNs and PRMNs.
Federal Register notices are routed through the Unit Chief, and
then sent for internal concurrence. Once, the regional
reviewers, primarily ORC and AEB, have concurred, the notice is
then routed to the RA for signature. Sample route slip are
found in Appendix D. Copies of the concurrence memos should be
included in the signature folder under the yellow copy
(signature page).
If it is a Table 1 SIP, once the Regional concurrence is
completed and the Regional Administrator has signed the Action
Memorandum,; the package is forwarded to HQ. Eight weeks will be
allotted for their review. Once HQ concurrence is completed the
action goes to the Assistant Administrator for concurrence on a
final action or signature on a proposal. The Administrator
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signs all final Table 1 FRN.
If the SIP is a Table 2, the procedures for a Table 1 SIP are
followed, but HQ is given 30 days for review after concurrence
is obtained through the Branch Chief. The Action Memorandum is
from the APTMD Director to the Regional Administrator. Once
concurrence is received from the regional reviewers, ORC and
AEB, the package is routed through the APB Chief. When he
concurs, the package is then sent to OAQPS for the 30 day HQ
review. The draft of the Action Memorandum is sent to HQ with
the Federal Register package.
Any concerns raised by HQ will be discussed and efforts made to
resolve them. However, the RO makes the final decision. This
decision must be made within the same two-week timeframe as
above. If any of the HQ reviewing offices make comments during
the 30-day review period, documentation should be placed in the
submittal file regarding how the Region addressed these
comments. If no comments are received by the end of the 30 day
review period, the regions continues with the signature
process. The FRN or PRMN is then routed for signature by the
Regional Adminsistrator and forwarded to the Federal Register
Officer for publication. The total timeframes for Table 1 and 2
SIP'8 are as follows*
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Table 1 SIP
(Normally a PF Is used for a Table 1 SIP)
Completeness - Two weeks
If Complete, Internal Review - Four weeks
PRMN OR FRN prepared - Two weeks
Internal concurrence - Two weeks
HQ review - Eight weeks
The FRN is prepared 30 days after publication of a proposal,
no comments are received during the proposal the FRN can be
processed as a Table 2 action with 30-day HQ review.
Internal Review - Four weeks
HQ review - Eight weeks
Table 2 SIP
If
Schedule for a PRMN:
Completeness Determination
If Complete, Internal Review
PRMN OR FRN prepared
Internal concurrence
HQ review
Final Disposition
- Two weeks
- Four weeks
- Two weeks
- Two weeks
- Thirty days
- One week*
30 days after publication of
following schedule:
Preparation of FRN
Internal Concurrence
HQ review
Final Disposition
Schedule for a DF:
PRMN a FRN is prepared with the
- Two weeks
- Two weeks
- Thirty days
- One week*
Completeness Determination
If Complete, Internal Review
PRMN OR FRN prepared
Internal concurrence
HQ review
Final Disposition
- Two weeks
- Four weeks
- Two weeks
- Two weeks
- Thirty days
- One week*
*If no substantive changes are required to the FRN.
are required additional time may be necessary.
If changes
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A Table 3 or 4 SIP will receive action very similar to that used
for Table 1 or 2. However, there is no HQ review involved.
Once the internal review is completed, four weeks will be
allotted for the preparation and concurrence review of the FRN
(normally a DF) and forwarding it to the RA for signature (Table
3). The Action Memorandum is from the APTMD Director to the
RA. The same four-week time period for preparing a letter
notice for a Table 4 will be followed. The schedule for these
type SIPs sill be as follows:
Table 3 or 4 SIP
Completeness Determination - Two weeks
Internal Review - Four weeks
Final Disposition - Four weeks
NOTE FOR ALL FRN AND PRMN:
Before any Federal Register notice leaves the Regional Office,
it goes to the SIP coordinator along with the submittal file and
documents to be incorporated by reference. The SIP coordinator
serves as a quality control checkpoint to verify that the file
has been set up according to the proper format and that the
Federal Register package is complete for submittal to the
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Federal Register Officer. The package will contain the
followingi
The signed and dated original and 4 copies of the FRN or
PRMN (including one extra copy if it is a bubble)
Typesetting form
If the submittal contains IBR material
Transmittal memo to OFR
Two copies of material to be IBR'ed (include
documentation of effective date)
Federalism form if appropriate
OMB form (if goes to 0MB)
In addition, the submittal folder should be included to ensure
that a copy of the above material is in the file and that the
material relating to the submittal is filed appropriately.
Once the FRN or PRMN is published the SIP Coordinator will
distribute copies to the project officer and to the Regional
Operations Branch in OAiQPS.
The project officer in the APB will ensure that the approved
revision is entered into the appropriate SIP compilation to
ensure that the SIP compilation contains the current
Federally-approved version of the SIP. Copies of the SIP
compilation update will be distributed to ORC, Air Compliance
Section, and the appropriate State/Local agencies. The SIP
Coordinator will verify that this is done.
Ntrk:
i V- Tr /rsJr^
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DISPUTE RESOLUTION
A. Internal
In a process such as SIP approval/disapproval there are several
occasions for differences in interpretation of EPA policy. This
can arise in any one of the three elements with SIP review
responsibility: APB, ORC, and AEB.
If the reviewing individual within the APB cannot resolve the
conflict, then it should be elevated to the Unit and/or Section
Chief. If a resolution still cannot be reached, then the Branch
Chief must make the final decision.
If there is a disagreement between the APB and the AEB, the
respective reviewers should attempt to resolve any differences,
again if this does not accomplish a resolution, the respective
Section supervisor should be consulted. If there is still
disagreement, the Branch Chiefs should be consulted and after
this, the Division Director must make the final decision.
Any disagreements with ORC should be brought to the supervisor's
attention immediately. If it cannot be resolved at this level,
it should follow these steps: Branch Chiefs, Division
Director-Regional Counsel and Regional Administrator.
ffcc proj ^ ~k> <£~
e. (-it ^ A
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Depending on the complexity of the disagreement, an additional
two weeks may be added to the schedule in Tables 5 and 6.
B. External
For Table 1 SIPs, HQ is the final authority. Any disagreements
that cannot be resolved at the reviewers or section supervisor
level should be discussed with the Branch chief. A decision
will be made at that level to either acguiese or to elevate it
to the Division Director and/or to the RA.
For Table 2 SIPs, if a resolution cannot be reached at the
section supervisor level, the Branch Chief must be informed
prior to final action. The Branch Chief will then decide on the
need for informing the Division Director and/or the RA.
It is vital that every effort be made to resolve any
differences. However, the appropriate supervisor should be
involved as soon as possible so the process will not drag on.
Once a decision is reached, everyone should remember that it is
an EPA action, not that of a particular Section, Branch or
Division. On Table 1 SIPs, HQ should not be blamed if the state
views it as an unpopular decision. Again, it is an EPA action,
not just that of HQ or the RO.
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TRACKING
Region IV has entered the Region IV SIP information into HQ's
revised SIP TRAX. As soon as the SIP is assigned to the
respective section, it is entered into the log (example
attached). The status of SIP actions is upgraded each month by
the respective reviewer. It is important that all submittals be
included on the SIP log and that all updates are current.
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5vq
(X *
A
(yj
C
•T.
SIP Rec'd - SIP Coordinator
SSPS/MSPS - State Engineer
Completeness
No
Yes
MSPS/SPSS
Technical Approval
No
Yes
Prepare Federal Register*
Regional Review
two weeks
Returned to State
PSS
ACB
ORC
two weeks
Returned to State
two weeks
~After the initial review period, a letter is sent to the state
informing them that the revision is approved effective the date of
the letter. A FRN is required every 90 days for all Letter Notices
during that period.
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APPENDIX A-1
SIP REVIEW CONTACTS FOR REGION IV
Regional SIP Coordinator - Dick Schutt X2864
STATE
AIR PROGRAMS
AIR ENFORCEMENT
ORC
Alabama
Yasmin Yorker
Charlie Burland
Angelia Souder
Birmingham
Yasmin Yorker
Pam Adams
Angelia Souder
Florida
Carol Kemker
Reggie Barrino
Nancy Tommelleo
Georgia
Liz Wilde
Kevin Taylor
Nancy Tommelleo
Kentucky
Dick Schutt
Phillip Barnett
Alan Dion
Mississippi
Liz Wilde
Pam Adams
Stedmon Southall
North Carolina
Rosalyn Hughes
Becky Allenbach
Alan Dion
South Carolina
Beverly Hudson
Veronda Otey
Stedmon Southall
Tennessee
Vickie Boothe
Greg Fraley
Nancy Tommelleo
TN Locals
Carla Pierce
Veronda Otey
Nancy Tommelleo
Last Update November 6, 1990
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APPENDIX A-2
SIP REVIEW TECHNICAL AREA CONTACTS
Regional SIP Coordinator
SO2 /Acid Rain
PMi
Permits
Lead
Emission Inventories
Modeling
NSR/PSD
VOC
NSPS/NESHAPS
AIR TOXICS
MOBILE SOURCE
Dick Schutt
Beverly Hudson
Rosalyn Hughes
Carla Pierce
Liz Wilde
Yasmin Yorker
Brenda Johnson
Dick Schutt
Kay Prince
Rosalyn Hughes
Lee Page
Dale Aspy
Last Revision: December 18, 1990
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The attached document contains boilerplate for Federal Register
notices. The document and the individual sections of the
boilerplate are contained on a LAN disk in small files. These
can easily be merged into a master document by "Copy External"
(by striking "Shift-F8" in multimate) at the appropriate spot in
the document. A copy of the boilerplate disc can be obtained
from Dick Schutt.
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ACTION MEMORANDUM
All Federal Register notices on SIP actions must be accompanied by -an
Action Memorandum. The Action Memorandum must be from the Regional
Administrator on Table 1 SIP actions to the AA for OAR on proposed
rules and to the Administrator on final rules. The Action Memorandum
must be from the Air Division Director on Table 2 and 3 SIP actions
to the Regional Adminstrator for both proposed and final rules.
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ACTION MEMORANDUM FORMAT
FORMAT FOR TABLE 1 SIP ACTIONS
SUBJECT: Type of SIP Revision and State - ACTION MEMORANDUM
FROM: Regional Administrator
TO: Admin IstratoM F.lnal emaking ^actions \
OR
Ass 1stant?Adm\n1strator^fon|A1 raand Radiationj
(Propp.sed^]^aWingpciTnnsi
THRU: Chief, Regional Activities Section, ROB, AQW)
Office of Air Quality Planning and Standards (MD-15)
FORMAT FOR TABLE 2 AND 3 SIP ACTIONS
SUBJECT: Type of SIP Revision and State - ACTION MEMORANDUM
FROM: Director, A1r Division
TO: Regional Administrator
IDENTIFICATION OF ACTION
This introductory paragraph should describe the SIP action in one or two
sentences and Include the State(s), local area(s), (county, 1f a
redes1gnat1on) and pollutant(s) Involved. It should also Identify whether the
SIP action 1s a proposed or final rule, and specify the type of action
(approval, disapproval, deferral, etc).
SUMMARY OF ACTION
This section provides senior management a brief but complete picture of
the action to be taken. It should discuss the SIP action 1n sufficient detail
(not just repeat the previous paragraph or 11st regulation titles), and should
include such things as:
Appropriate back^-ound Information including a history of the
Important events
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The emission limits added or modified.
The sources and/or source categories affected and pollutants
Involved.
The geographic areas affected Including the current attainment
status and the potential for affecting other areas.
A description of the major comments received on the proposal (1f
final rulemaking).
Any additional technical or legal Information that the Region
believes 1s necessary to describe the action, e.g., a description of
how the promulgation of a national ambient air quality standards
(NAAQS) under revision may affect this action.
This section will normally be between one paragraph and one page 1n
length.
COORDINATION WITH STATE(S)
This section should describe the coordination between the State(s) and
the Regional Office, and Indicate the State's position on the SIP action. The
reason for any disagreement between the Regional Office and the State should
be Included. If the SIP revision affects other States, a summary of any
discussions with those States and, 1f appropriate, other Regional Offices
should also be Included.
ISSUES
This section should Identify and explain all major Issues associated with
the SIP action and describe any response or recommendations the Regional
Office might have on these Issues. This section should discuss any associated
litigation, describe any local controversy associated with the action, and
Identify any organizations, companies, or Individuals particularly affected by
the action. It should also summarize the major impacts of the rulemaking, and
point out any other Important policy Implications that should be considered by
senior management.
If a Communications Strategy 1s warranted for an action, this section
should Include a statement noting that a Communications Strategy has been
prepared and Is Included. If one 1s not necessary, note of that should also
bp made In this section.
28
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PROCEDURAL REVIEW
This section should contain those Items Important to the efficient
processing of the SIP package. It should Include such things as:
The SIP processing category -- Table 1, 2, or 3.
A discussion of 0MB review requirements or exemption.
The processing procedure that is being used (sequential processing,
direct final, parallel processing, or letter notice).
A 11st of the Headquarters offices that should review the SIP
package.
The Regional Office staff contact (including telephone number) who
can provide additional information if necessary.
Any other administrative information the Region feels may be
Important to help expedite Headquarters processing and review.
Attachments (See figures 4-8 for the 11st of materials that must be included
as attachments)
cc: Phyllis Wright, Regional Operations Branch, AQMD
NOTE-- All materials for processing Table 1 and 2 SIP actions jaust be sent to
Phyllis ;Wr1ght; ROB.^AQF® I The ROB will distribute copies to the Headquarters
reviewers.
29
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MEMORANDUM
DATE:
SUBJECT: Approval of Revision to
FROM: Greer C. Tidwell
Regional Administrator
TO: Vickie Reed PM-223
Federal Register Officer
Under the new SIP processing procedures, this action is described in
Table 3 and does not require Headquarters review. Please forward the
attached notice to the Federal Register for publication.
Attachment
ORIGINATOR PRINCE GRUBBS SCHUTT MILLER SMITH MOONEY TIDWELL
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
STATE: APPROVAL OF REVISIONS TO
[ - 0??]
AGENCY: Environmental Protection Agency (EPA) .
ACTION: Final rule.
SUMMARY: EPA today approves revisions
EFFECTIVE DATE: This action will be effective [30 days from the
date of publication]. (This language is used for a FRN under
sequential processing.)
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DATES: This action will be effective [60 days from the date of
publication] unless notice is received within 30 days that
someone wishes to submit adverse or critical comments. If the
effective date is delayed, timely notice will be published in
the Federal Register. (this language applies only for direct to
final FRNs)
ADDRESSES: Copies of the material submitted by
may be examined during normal business hours at the following
locations:
Public Information reference Unit,
Library Systems Branch
Environmental Protection Agency
401 M Street, S.W.,
Washington D.C. 20460
(PIRU ONLY IF CONTAINS IBR MATERIAL
Region IV Air Programs Branch
Environmental Protection Agency
345 Courtland Street
Atlanta, Georgia 30365
FOR FURTHER INFORMATION CONTACT:
Region IV Air Programs Branch at
at the above address.
of the epa
404-347-2864 (FTS-257-2864) and
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SUPPLEMENTARY INFORMATION:
FROM DOCUMENTS "SETUP"
The modeling techniques used in the demonstration supporting
this revision are based on modeling guidance in place at the
time that the analysis was performed (cite "old" guidance
document). Since that time, the modeling guidance has been
change by EPA (cite "new" guidance document). Because the
modeling analysis was substantially complete prior to issuance
of the revised guidance, EPA accepts the analysis. If for some
reason this, or any other, analysis must be redone in the
future, then it should be redone in accordance with current
modeling guidance.
FROM DOCUMENTS "GRANDFATHER" From July 12, 1989, memo from
Robert D. Bauman - boilerplate for grandfathering modeling
analyses.
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The State based the SIP revision on a (block or running)
interpretation of the national ambient air quality standards.
Under the decision in NRDC v. Thomas. 845 F.2d 1088 (D.C. Cir.
1988), the D.C. Circuit determined that a State is free to
submit a SIP revision using either block or running averages.
As a result, EPA finds the State's choice to utilize (block or
running) averaging to be fully acceptable.
DOCUMENT: "S02AVG" From July 12, 1989, memo from Robert D.
Bauman - boilerplate where SO2 averaging method is a relevant
factor.
Section of the (State) Regulations is being approved
however, EPA expects the State to correct the following
deficiencies pursuant to the SIP call letters for ozone
from , the EPA Regional Administrator, to
Governor on (date) and clarified in a letter
form Winston, A. Smith, Air, Pesticides & Toxic Management
Division Director, to , Director of the
(State) (Agency title) :
[give full description of deficiencies]
-------
These deficiencies must be corrected before EPA can fully
approve the State's ozone SIP. The SIP call letters cited above
originally required that final rules to correct these
deficiencies be submitted to EPA by September 30, 1989. If the
State fails to correct these deficiencies by 9 months from this
notice date, unless a different date is required consistent with
the Clean Air Act Amendments, EPA may disapprove the State's
ozone SIP and may propose to promulgate Federal rules which
would correct these deficiencies.
From Document: "VOC-DEV for notices that are corrected some VOC
ceviations, but not all of them.
PROPOSED ACTION: (Decribe the action being proposal for a PRMN)
or
FINAL ACTION: This action is being taken without prior proposal
because the changes are noncontroversial and EPA anticipates no
significant comments on them. The public should be advised that
this action will be effective 60 days from date of this Federal
Register notice. However, if notice is received within 30 days
-5-
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that someone wishes to submit adverse or critical comments, this
action will be withdrawn and two subsequent notices will be
published before the effective date. One notice will withdraw
the final action and another will begin a new rulemaking by
announcing a proposal of the action and establishing a comment
period.
From Documents "DIRFIN" Use for Direct to Final notices.
EPA has not reviewed the substance of these regulations at this
time. These rules were approved into the State implementation
plan in previous rulemakings. The EPA is now merely approving
the renumbering system submitted by the State. The EPA's
approval of the renumbering system, at this time, does not imply
any position with respect to the approvability of the
substantive rules. To the extent EPA has issued any SIP calls
to the State with respect to the adequacy of any of the rules
subject to this recodification, EPA will continue to require the
State to correct any such rule deficiencies despite EPA's
approval of this recodification.
From "RECODIF"
-6-
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Under Section 307(b)(1) of the Act, petitions for judicial
review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by [60 days from date of
publication]. This action may not be challenged later in
proceedings to enforce its requirements. (See 307(b)(2).)
From Document s "307"
This action has been classified as a Table _ action by the
Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225). On
January 6, 1989, the Office of Management and Budget waived
Table 2 and 3 SIP revisions (54 FR 2222) from the requirements
of Section 3 of Executive Order 12291 for a period of two years.
From DOCUMENT s "TABLE23"
Today's action makes final the action proposed at (FR
citation). As noted elsewhere in this notice, EPA received no
adverse public comment on the proposed action. As a direct
result, the Regional Administrator has reclassified this action
from Table 1 to Table 2 under the processing procedures
established at 54 FR 2214, January 19, 1989.
From Document: "NOCOMMENTS"
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Nothing in this action shall be construed as permitting or
allowing or establishing a precedent for any future request for
a revision to any state implementation plan. Each request for
revision to the state implementation plan shall be considered
separately in light of specific technical economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
From DOCUMENT: "NATLPREC"
Under 5 U.S.C. Section 605(b), I certify that these revisions
will not have a significant economic impact on a substantial
number of small entities. (See 46 FR 8709.)
From DOCUMENT: "ECON"
List of Subjects in 40 CFR Part 52:
Air pollution control, Carbon Monoxide, Hydrocarbons,
Incorporation by Reference, Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
Recordkeeping requirements, Sulfur oxides.
-8-
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List of Subjects in 40 CFR Part 62:
Administrative practice and procedure, Air pollution control,
Aluminum, Fertilizers, Paper and paper products industry,
Fluoride, Intergovernmental relations, Phosphate, Reporting and
Recordkeeping requirements, Sulfuric acid plants, Sulfuric
oxides.
List of Subjects in 40 CFR Part 81:
Air pollution control, National Parks, Wilderness areas.
From DOCUMENT: "SUBJLIST" pick either Part 52, 62, or 81 and
use only the applicable terms.
AUTHORITY: 42 U.S.C. 7401-7642 (use on here, if no CFR page)
DATE:
Regional Administrator
DATE:
William K. Reilly
Administrator
RA signs proposal notices and final for Table 2 & 3,
Administrator signs FRN for Table 1.
-9-
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Part 52 of Chapter I, Title 40, Code of Federal Regulations, is
amended as follows:
SUBPART -
1. The authority citation for Part 52 continues to read as
follows:
AUTHORITY: 42.U.S.C. 7401-7642.
2. Section 52. , paragraph ( ) is amended by adding paragraph
( ) to read as follows:
§52. Identification of plan.
******
( ) * * *
( )
-10-
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(i) Incorporation by reference.
(A)
(ii) Other material.
(A) Letter of
From DOCUMENT: "SETUP"
-11-
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If the FRN deals with approval of some but not all VOC
deviations then the following language is used:
Part 52 Chapter I, Title 40 of the Code of Federal Regulations
is proposed to be amended as follows:
Subpart xxx-(State Name)
1. The authority citation for Part 52 continues to read to
as follows follows:
Authority: 42 U.S.C. 7401-7642
2. Section 52.xxx is amended by adding paragraph (c)(xx) to
read as follows:
§52.xxx Identification of Plan
*****
(c) * * *
(xx) Section of the (State) Regulations, amended
to correct deficiencies and submitted on (Date) by
(Governor) , is approved. See Section 52.xxx, VOC Rule
Deficiency correction.
3. Section 52.xxx, VOC Rule Deficiency Correction is added
to read as follows:
§52.xxx VOC Rule Deficiency Correction
Section of the (State) regulations is
approved. The State submitted this regulation to EPA for
approval on (Date) . This section was intended to correct
deficiencies cited in a letter calling for the State to revise
-12-
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its SIP for ozone from , The EPA Regional Administrator, to
Governor on (date) , and clarified in a letter
from, , EPA Region IV Air, Pesticides, & Toxics Management
Division Director, to , Director of the (State)
(Agency Title) .
Deficiencies in the following aspects of the rule, however, have
not been corrected:
Give full description of the remaining deficiencies]
he above deficiencies must be corrected according to the letters
mentioned above, the proposed post-1987 ozone policy (52 FR
45044), and other EPA guidance relating to the deficiencies
before the SIP for ozone can be fully approved.
From "VOC-DEV"
-13-
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>i mm iiniiH'i' %
MODEL APPROVAL LETTER TO STATE
Governor
State of [Name of state]
Dear Governor:
The Environmental Protection Agency (EPA) has received your
request for approval of a revision to the [name of State] State
implementation plan (SIP) for [pollutant] relating to [subject
matter of SIP revision] submitted to us on [date of submission].
I have determined that this minor SIP revision complies with
all applicable requirements of the Clean Air Act (CAA) and EPA
policy and regulations concerning such SIP revisions. [Insert
more detailed rationale for approval as appropriate.] I am
therefore approving this submission under section 110(a) of the
CAA as a revision to the [name of state] SIP for [pollutant].
This approval is effective as of today's date.
Due to the minor nature of this SIP revision, EPA has
concluded that conducting notice-and-comment rulemaking prior to
approving this SIP revision would be "unnecessary and contrary to
the public interest," and hence not required by the Administra-
tive Procedure Act, 5 U.S.C. 553(b). I am approving this
revision consistent with the procedures outlined in EPA's Notice
of Procedural Changes on SIP processing published on January 19,
1989 at 54 FR 2214. This is a final action of the Agency subject
to judicial review as appropriate.
[Insert the following if appropriate]
I have informed [name of company] of this action.
Sincerely,
v*
<#
t^c
Regional Administrator
B-26.
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MODEL INFORMATION LETTER TO SOURCE
President
[Name of Company]
Dear [Name of Company President]:
The Environmental Protection Agency (EPA) has received a
request from the state of [name of state] for approval of a
revision to the [name of state] State implementation plan (SIP)
for [pollutant] relating to [subject matter of SIP revision]
involving your company. I have determined that this minor SIP
revision complies with all applicable requirements of the Clean
Air Act (CAA) and EPA policy and regulations concerning such SIP
revisions. [Insert more detailed rationale for approval as
appropriate.] I have therefore approved this submission under
section 110(a) of the CAA as a revision to the [name of state]
SIP for [pollutant] by letter dated today. The approval is
effective as of this date.
Due to the minor nature of this SIP revision, EPA has
concluded that conducting notice-and-comment rulemaking prior to
approving this SIP revision would be "unnecessary and contrary to
the public interestand hence, not required by the Administra-
tive Procedure Act, 5 U.S.C. 553 (b). I have approved the
revision consistent with the procedures outlined in EPA's Notice
of Procedural Changes on SIP Processing published on January 19,
1989 at 54 FR 2214. This approval is a final Agency action
subject to judicial review as appropriate.
Sincerely,
r
Regional Administrator
B - 2 7
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jJOtf 7>>C7^°
ENVIRONMENTAL PROTECTION AGENCY
40 CPR Part 52
APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
[FL-038]
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA today approves a request by the State of Florida to
relax the limits contained in the Florida State Implementation Plan
(SIP) for S02 and opacity from Florida Power 6 Light's (FP&L)
Sanford No. 4 Unit located in Volusia County, Florida. The relaxed
limits would apply only during the test burn for Orimulsion fuel.
The purpose of the test is to determine the feasibility of switching
to Orimulsion fuel and to test air pollution control equipment to
reduce SO2 and particulate emissions. The relaxed emission limit
for particulate emissions was approved in 1980 and is still in
effect. The relaxed limits will not interfere with the maintenance
of the National Ambient Air Quality Standards and will be limited to
a period of eighteen months. Therefore, EPA is today approving the
request.
DATES: This action will become effective on [60 days from date of
publication] unless notice is received within 30 days that someone
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wishes to submit adverse or critical comments. If the effective daJ
is delayed, timely notice will be published in the Federal Register".
ADDRESSES: Written comments should be addressed to Kay Prince of EPA
Region IV's Air Programs Branch (see EPA Region IV address below).
Copies of the materials submitted by Florida may be examined during
normal business hours at the following locations:
Public Information Reference Unit
Environmental Protection Agency
401 M Street SW
Washington, D.C. 20460
Environmental Protection Agency
Region IV
Air Programs Branch
345 Courtland Street, NE
Atlanta, Georgia 30365
Florida Department of Environmental Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
FOR FURTHER INFORMATION CONTACTt Kay Prince, Air Programs Branch,
EPA Region IV, at the above address and telephone number (404)
347-2864 or FTS 257-2864.
SUPPLEMENTARY INFORMATIONt On October 11, 1990, the State of Florida
through the Florida Department of Environmental Regulation submitted
a request for a temporary relaxation of the emission limits contained
in the Florida SIP for particulate matter, opacity, and S02 for
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FP&L's Sanford #4 unit. The timeframe for the relaxation would be
eighteen months. The relaxed emission limitB will become effective
on the first day the Orimulsion is burned in Unit No. 4 and will be
valid for 18 months or until Orimulsion has been burned for 90
full-power burn days equivalent (and for an additional 30 full-power
burn days equivalent upon showing of good cause), whichever comes
first. The purpose of the request is to allow FP&L to conduct tests
to determine if switching to Orimulsion fuel is feasible. Orimulsion
is an emulsified fuel produced from a naturally occurring bitumen
found in the Venezuelan Orinoco River basin. It is produced when
bitumen is recovered using conventional tertiary recovery techniques,
is degassed and desalted, and then emulsified into fresh water. The
resulting emulsified fuel, Orimulsion, is stable and exhibits
excellent combustion characteristics. Test burns using Orimulsion
have been conducted in England and Canada. Orimulsion can be
obtained at coal-comparable prices rather than at the much more
costly liquid fuel prices.
On the basis of the teats conducted in Canada, it is expected that
the emissions during the teat bum would exceed the limitB contained
in the Plorida SIP for aulfur dioxide, particulate matter, and
opacity. FP&L has committed to burn lower aulfur fuel (1% or le88)
at Sanford Units No. 3 and 5 in order to partially off8et the
increased emissions projected for Sanford Unit No. 4. The emission
limitation for all three units will revert to the previously approved
limits when the timeframe for the relaxation expires. In addition,
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FP&L will be testing several types of control devices during the ta
burn. Should the Sanford No. 4 Unit ultimately be converted to
Orimulsion fuel, FP&L would install control equipment to reduce SO2
and particulate emissions.
The temporary emission limits requested by FP&L are:
a) Sulfur dioxide - 4.3 lb/mm Btu heat input;
b) Suspended particulate matter - 0.3 lb/mm Btu heat input
(steady state) and 0.6 lb/mm Btu heat input (excess emission
up to three hours per day); and
c) Steady State Opacity - 60%; Excess Emissions Opacity - 100%.
The limitB in the Florida SIP aret
a) Sulfur dioxide - 2.75 lb/mm Btu heat input;
b) Suspended particulate matter - .01 lb/mm Btu heat input,
maximum two hour average; and
c) Steady State Opacity - 20%.
Although the SIP contains the emission limits listed above, FP&L was
granted a variance in 1980 which allowed the Sanford No. 4 Unit to
emit particulate matter at the rate requested for this revision.
This variance also relaxed the opacity limit. The relaxed limits
were initially granted for the two year variance period allowed in
the Florida SIP. Subsequently, as a result of a court determinatiq
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the relaxed limits were granted indefinitely. Therefore, the limits
which currently apply to Sanford Unit No. 4 are:
a) Sulfur dioxide - 2.75 lb/mm Btu heat input;
b) Suspended particulate matter - 0.3 lb/mm Btu heat input
{steady state) and 0.6 lb/mm Btu heat input (excess emission
up to three hours per day); and
c) Steady State Opacity - 40%; Excess Emissions Opacity - 100%.
The requested limit listed above for particulate matter is the same
limit which is currently applicable to Sanford Unit No. 4. For the
purpose of this notice, it is necessary only to act on the sulfur
dioxide and opacity limits. At the expiration of the variance, the
relaxed limits will revert to the limits which are currently in
effect for the Sanford facility.
The submittal included a modeling analysis assuming an SOj emission
rate of 4.3 lb/mm Btu heat input from Sanford Unit No. 4 and an S02
emission rate of 1.1 lb/mm Btu heat input from Units No. 3 and 5.
The modeling analysis indicated that the increased emissions from
Unit No. 4 would result in maximum 3-hour, 24-hour, and annual
averages which are less than the National Ambient Air Quality
Standards (HAAQS) for sulfur dioxide. Additionally, the modeling
showed that the SO2 increment consumption is less than the
allowable for PSD.
-5-
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The aforementioned variance allowed 40% opacity (steady state) with
excess opacity > 60% for not more than four 6-minute periods during,
any 3 hour period for Unit No. 4. The allowable excess emissions in
the new variance is the same as that previously approved and the
steady state opacity increase is only 20%. Therefore, the additional
increase in allowed opacity should not create adverse conditions.
The permit requires continuous emission monitors (CEMs) for emissions
of carbon monoxide (CO), nitrogen oxides (N0X), sulfur dioxide
(SO2) and opacity to be installed and operated throughout the test
burn period regardless of the fuel being burned. The CEMs must be
maintained, calibrated, and evaluated in accordance with the
requirements of 40 CFR Part 60, Appendix B. Compliance tests are
required for particulate matter using EPA Test Method 5 or 17 and f
SOj using EPA Test Method 6c. These tests must be conducted with
the source operating within 90 - 100% of its full capacity when
burning Orimulsion fuel. Opacity compliance will be determined from
6-minute averages of the opacity CEM data. There are additional test
requirements for sulfuric acid mist, nitrogen oxides, volatile
organic compounds, and trace elements and metals.
Since the Mo. 4 Unit is located in an attainment area for the
pollutants in question and the increase in emissions is temporary,
EPA is approving these revisions. The technical support information
provided by FP&L can be viewed at the EPA Region IV and State offices
at the above addresses.
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FINAL ACTIONt EPA approves the temporary relaxation for the sulfur
dioxide and opacity limits for Sanford Unit No. 4. This action is
being taken without prior proposal because the change is noncontro-
versial and EPA anticipates no significant comments on it. The public
should be advised that this action will be effective 60 days from the
date of this Federal Register notice. However, if someone wishes to
submit adverse or critical comments, this action will be withdrawn
and two subsequent notices will be published before the effective
date. One notice will withdraw the final action and another will
begin a new rulemaking by announcing a proposal of the action and
establishing a comment period.
Under 5 U.S.C. 605(b), I certify that this SIP revision will not have
significant economic impact on a substantial number of small entities
(see 46 FR 8709) .
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register
on January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the
Office of Management and Budget waived Table 2 and 3 SIP revisions
(54 FR 2222) from the requirements of Section 3 of Executive Order
12291 for a period of two years.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the
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state Implementation plan shall be considered separately in light of
specific technical, economic and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under Section 307(b)(1) of the Act, petitions for judicial review of
this action must be filed in the United States Court of Appeals for
the appropriate circuit by [60 days from date of publication}. This
action may not be challenged later in proceedings to enforce its
requirements. (See 307(b)(2).)
List of Subjects in 40 CFR Part 52:
Air pollution control, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Ozone.
Note: The Director of the Federal Register approved the incorpo-
ration by reference of the Florida SIP on July 1, 1982.
DATS
Regional Administrator
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Part 52 of Chapter I, Title 40, Code of Federal Regulations, is
amended as follows t
Subpart K — Florida
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7642
2. Section 52.520 is amended by adding subparagraph (c)(71) as
follows 1
52.520 Identification of plan.
*****
(c) * * *
(71) The Florida Department of Environmental Regulation
submitted an Order authorizing research and testing by the Florida
Power & Light Company and the operating permit for the Orimulsion
Fuel Test Burn at the Sanford Power Plant Unit No. 4 to EPA on
October 11, 1990.
(i) Incorporation by reference.
(A) Florida Department of Environmental Regulation Order
authorising research and testing by the Florida Power & Light Company
adopted on October 4, 1990.
(B) Florida Power Power & Light operating permit number AC
64-180842, PSD-FL-150 which becomes State-effective on [60 days from
date of publication].
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(il) Other materials
(A) Letter of October 11, 1990, from the Florida Department of
Environmental Regulation.
10-
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MEMORANDUM
DATE:
SUBJECT: Submission of the Revision to Florida's State
Implementation Plan for Incorporation by Reference.
FROM: Federal Register Officer, EPA
TO: Office of the Federal Register
Please add this document to the Florida State Implementation Plan
file and tab it in the appropriate sequence:
Identification of the Document
Subpart K - Florida
40 CFR Part 52, Subpart K, is amended as follows:
1. Section 52.520 is amended by adding paragraph (c) (71) as
follows*
S 52.520 Identification of Plan
* * * * *
(c)
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-2-
(71) The Florida Department of Environmental Regulation
submitted an Order authorizing research and testing by the Florida
Power & Light Company and the operating permit for the Orimulaion
Fuel Test Burn at the Sanford Power Plant Unit No. 4 to EPA on
October 11, 1990.
(i) Incorporation by reference.
(A) Florida Department of Environmental Regulation Order
authorizing research and testing by the Florida Power & Light Company
adopted on October 4, 1990.
(B) Florida Power Power & Light operating permit number AC
64-180842, PSD-FL-150 which becomes State-effective on [60 days from
date of publication].
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&cAmPl£ msLe i
A?-
APft /(o, / 5 to sr^rpg. !Vo
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-2-
Issues: There are no significant issues involved. We feel that this
action is sufficiently clear-cut that no communication strategy is
necessary.
Procedural Review: This final rule is a Table 1 action exempt from
OMB review. The following offices should review it: OGC, OPA, and
AQMD. This action is a CO redesignation requiring full Headquarters
review.
Please have the attached notice forwarded for publication in the
Federal Register. Questions on this package may be directed to
Vickie Boothe of the Region IV Air Programs Branch at FTS 257-2864.
Attachments
KP/drw:1-13-89:DOC 11-GT-LT:DISC #4 TELEX
BOOTHE HANSEN SCHUTT MILLER SMITH POEPPELMAN
TIDWELL
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
Kentucky: Redesignation of a Kentucky
Carbon Monoxide Nonattainment Area
[KY-052]
AGENCY: Environmental Protection Agency.
AGENCY: Final rule.
SUMMARY: EPA is today granting the request by the Commonwealth of
Kentucky that Jefferson County be redesignated from nonattainment to
attainment for carbon monoxide (CO). The redesignation is based on
eight quarters of ambient monitoring data that show no violations of
the CO standards and on implementation of the EPA-approved CO control
strategies.
DATE: This action will become final 30 days from date of
publication.
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ADDRESSES* Copies of the materials submitted by Kentucky may be
examined during normal working hours at the following locations:
Environmental Protection Agency
Region IV
Air Programs Branch
345 Courtland Street, NE
Atlanta, Georgia 30365
Commonwealth of Kentucky
Natural Resources and Environmental
Protection Cabinet
Department for Environmental Protection
316 St. Clair Mall
Frankfort, Kentucky 40601
Jefferson County Air Pollution
Control District
914 East Broadway
Louisville, Kentucky 40204
FOR FURTHER INFORMATION CONTACT: Vickie Boothe, Air Programs
Branch, EPA Region IV, at the above address and phone number (404)
347-2864 or FTS 257-2864.
SUPPLEMENTAL INFORMATION* In the March 3, 1978, Federal Register
(43 FR 8962) EPA designated Jefferson County, Kentucky as
nonattainment for CO. The Commonwealth was therefore required to
revise their State Implementation Plan (SIP) for CO. Through
implementation of the control strategy contained in its 1982 Part D
SIP revisions, Kentucky demonstrated attainment of the CO standard
by December 31, 1987. EPA fully approved these revisions on October
9, 1984, Federal Register (49 FR 39547).
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Kentucky has requested that EPA change the attainment status of
Jefferson County from nonattainment to attainment for CO. In order
to redesignate a CO nonattainment area, EPA policy requires the most
recent eight consecutive quarters of quality assured, representative
ambient air quality data plus evidence of an implemented control
strategy that EPA had fully approved. In December 1985, the CO
monitoring sites located at 2nd Street and 5th Street were shut down
due to renovation activities in the downtown area of Louisville.
During 1985, there was one exceedance of the eight-hour standard at
the 2nd Street location. One of these monitors was relocated on W
Muhammad Ali Boulevard and the other on Goldsmith Lane. Both sites
were selected by EPA personnel. Kentucky has submitted ambient air
quality data collected from the Muhammad Ali Boulevard and Goldsmith
Lane sites as well as the site located at Fire Station #20. There
were no exceedances of either the one-hour or eight-hour standards
from March 1987 through April 1989 at either of the relocated sites.
From 1985 through the first quarter of 1989, there was one exceedance
of the eight-hour standard at the Fire Station #20 location.
Therefore, there were no violations of either the one-hour or the
eight-hour standard during the most recent eight quarters.
Kentucky has also submitted evidence of implementation of the control
strategies required by the SIP for Jefferson County. The required
vehicle inspection and maintenance (I/M) program has been adopted and
implemented in Jefferson County. The submittal included a copy of
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Regulation 8, Vehicle Exhaust Testing Requirements; the annual
operating report for calendar years 1985, 1986 and 1987; a copy of a
report of an EPA audit of Jefferson County's Vehicle Exhaust Testing
(VET) Program showing that the program exceeds the RACT
requirements; and an approved contract for continuation of the VET
through June 30, 1991.
Kentucky also submitted information regarding the status of the 34
TCMs contained in the SIP. Twenty-six of the TCMs have been
completed, three are under construction at this time and nearing
completion, and two have been fully funded with start of
construction being imminent. On January 3, 1989, Evelyn L. Waldrop,
Director, Physical and Environmental Services Cabinet, sent a letq
to EPA Region IV stating that the funds for completion of these two
TCMs would not be diverted to other projects. The remaining three
TCMs have been cancelled due to the following reasons:
1. Hill Street - This TCM was included in the SIP erroneously.
The project is related to safety rather than air quality.
Traffic counts and a Volume 9 screening model and impact
were submitted to support the calculation (see TSD).
2. K7 1631 - This TCM has been cancelled due to the planned
expansion of Standiford Field Airport. The intersection
will be removed entirely as a result of the expansion.
3. Greenwood Road - This TCM was included in the SIP because an
analysis indicated a hot spot would exist due to a proposal
to locate a large Sears shopping center at the corner of
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Greenwood Road. However, zoning was not granted and the
shopping center was never constructed. Traffic counts and
a Volume 9 screening model input and output were submitted
to support this cancellation (see TSD).
It is Region IV's opinion that cancellation of these TCMs is
justifiable and will not adversely affect the continuing attainment
of the CO standards.
Kentucky further submitted information regarding the implementation
of the ridesharing commitments. Therefore, the requirements of the
approved EPA control strategy have been fully implemented in
Jefferson County.
For a more detailed discussion, please refer to the Technical
Support Document which is available for inspection at the EPA Region
IV office.
On August 2, 1989, EPA proposed to approve the request by the
Commonwealth of Kentucky that Jefferson County be redesignated from
nonattainment to attainment for carbon monoxide (CO). [54 FR 31860]
PUBLIC COMMENTS: On September 1, 1989, Region IV was asked by the
Kentucky Resource Council to extend the period for comment on the
proposal to redesignate Jefferson County to attainment for CO. The
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Region approved an extension until September 5, 1989. Comments were
received from the Kentucky Resource Council requesting that Region
IV withdraw the proposed rule. The request was based on the results
of a study performed by Presnell Associates which indicated the
potential, based on modeling, for exceedance of the CO standard in
an area of significant commercial and residential development known
as the Hurstbourne Lane corridor.
RESPONSE TO COMMENTS: Kentucky and Jefferson County have made
certain commitments to address the comments received from the
Kentucky Resource Council. They have agreed to establish a minimum
of one CO monitoring station in the Hurstbourne Lane Area as close
as possible to the projected high CO impact area defined by the
Presnell Study. The monitoring site(s) will meet the EPA monitoring
site location and operating procedure. The monitoring at this
site(s) will continue until adequate CO data has been obtained.
Adequate is defined as two consecutive years of data with a minimum
of 75% data recovery during the CO season. Thereafter, the
monitors(8) shall continue to operate until such time that EPA,
Kentucky, and Jefferson County agree to discontinue the monitoring.
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In the event: that no violation of the CO standards is measured
during this data acquisition period, no other measures need be
taken. In the event, however, during this data acquisition period,
a violation is properly monitored in the Hurstbourne Lane Area,
Jefferson County and Kentucky agree to place the Hurstbourne Lane
Study Area in a CO "Hot Spot" status and develop and implement
appropriate corrective action as expeditiously as practicable.
Additionally, Jefferson County and Kentucky agree to conduct
detailed CO modeling, using EPA approved models, for three other
high growth areas identified in a review of the more than 300
projects modeled as a result of the Planning Commission referral
Process. These three areas are the Breckenridge Lane/Dupont Square
Area, the Shelbyville Road/Oxmoor Area, and the Preston Street/Outer
Loop Area. If the modeling analysis for these areas indicates CO
violations, Jefferson County and Kentucky agree to develop and
implement appropriate corrective action as expeditiously as
practical. In the event that EPA makes the determination that the
problem is not a "Hot Spot" problem, but an area wide problem, the
County will develop a new SIP in accordance with the published EPA
guidance available at that time.
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The commitments made by Kentucky and Jefferson County adequately
address the comments received from the Kentucky Resource Council.
FINAL ACTION: EPA is today approving the redesignation of the
Jefferson County CO nonattainment area to attainment on the basis of
eight quarters of air quality data and on a fully implemented
control strategy approved by EPA.
Under Section 5 U.S.C. Section 605(b), I certify that this request
will not have significant impact on a substantial number of small
entities. (See 46 FR 8709).
Under Section 307 (b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals
for the appropriate circuit by [60 days from date of publication].
This action may not be challenged later in proceedings to enforce
its requirements. (See 307(b)(2).) The Office of Management and
Budget has exempted this rule from the requirements of Section 3 of
Executive Order 12291.
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Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the
state implementation plan shall be considered separately in light of
specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
List of Subjects in 40 CFR Part 81
Air pollution control, National Parks, Wilderness areas.
DATED:
William R. Reilly
Administrator
-9-
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Part 81 of Chapter I, Title 40, Code of Regulations, is amended as
follows:
SUBPART C — Section 107 Attainment Status Designations
1. The authority citation for Part 81 continues to read as follows:
AUTHORITY; 42 U.S.C. 7401-7642
2. In $81,318 the attainment status table titled "Kentucky—CO" is
amended by changing the entry for Jefferson County from "does not
meet primary standards" to "cannot be classified or better than
national standards"
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TECHNICAL SUPPORT DOCUMENT
Kentucky Carbon Monoxide Redesignation
Background
In the March 3, 1978/ Federal Register notice (43 FR 8962) EPA
designated Jefferson County, Kentucky as nonattainment for CO. The
Commonwealth was therefore required to revise their State
Implementation Plan (SIP) for CO. Through implementation of the
control strategy contained in its, Part D SIP revisions Kentucky
demonstrated attainment of the CO standard in Jefferson County by
December 31, 1987.
Redesionation Policy
Redesignation of a CO nonattainment area requires the most recent
eight eight consecutive quarters of quality assured, representative
ambient air quality data plus evidence of an implemented control
strategy that EPA had fully approved. This demonstration must be
adequate to maintain the CO standards.
Basis for Redesignation
On March 22, 1988, the Commonwealth of Kentucky through the Natural
Resources and Environmental Protection Cabinet requested that
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Jefferson County be redesignated from nonattainment to attainment
for CO. This request was based on eight consecutive quarters of
measured air quality data. Kentucky submitted quality assured data
for 1986 from the monitor located at Fire Station #20 and for 1987
from monitors located at Fire Station #20, 424 W. Muhammad Ali
Boulevard and 3510 Goldsmith Lane. There were no exceedances of the
CO standards at any of these sites during the eight quarters. The
Muhammad Ali Boulevard and Goldsmith Lane sites replaced sites
previously located at 2nd Street and 5th Streets. The two monitors
were relocated due to renovations in the downtown area of
Louisville. Supplemental data was submitted for the two new sites
in order to have a complete eight quarters of air quality data.
There were no exceedences of either the one-hour or the eight-hour
standards. Therefore, the monitoring data supports the
redesignation of Jefferson County to attainment for CO. A summary
of the air quality data is contained in Attachment 1.
Control Strategy
In addition to eight quarters of monitored CO data, Jefferson County
has implemented an EPA-approved control strategy. The major
contributor to CO levels in Jefferson County is mobile sources.
Therefore, the control strategy included measures to decrease CO
emissions from mobile sources. The strategy included adoption and
implementation of a vehicle inspection and maintenance (I&M)
program, implementation of thirty four transportation control
measures (TCMs), and implementation of ridesharing commitments.
The Jefferson County Vehicle Exhaust Testing (VET) program was
implemented in 1985. The annual operating reports for calendar
years 1985, 1986, and 1987 are attached. A March, 1986 audit of the
VET program conducted by EPA concluded that the program was well-run
and met or exceeded the RACT requirements for I/M programs.
Jefferson County has an approved contract for continuation of the
VET program through June 30, 1991, thus providing for maintenance of
the standards.
Kentucky also submitted information regarding the status of the
thirty four TCMs contained in the State Implementation Plan. Twenty
six of the TCMs have been completed, three are under construction at
this time and nearing completion, and two have been fully funded
with start of construction being imminent. Jefferson County
submitted a letter assuring EPA the funding for these projects would
not be withdrawn. The remaining three TCMs have been cancelled due
to the following reasonst
1. Hill Street - This TCM was included in the SIP
erroneously. The project is related to safety rather than
air quality. Traffic counts and input were submitted to
support the calculation.
(see Attachment II).
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2. KY 1631 - This TCM has been cancelled due to the planned
expansion of Standiford Field Airport. The intersection
will be removed entirely as a result of the expansion.
3. Greenwood Road - This TCM was included in the SIP because
an analysis indicated a hot spot would exist due to a
proposal to located a large Sears shopping center at the
corner of Greenwood Road. However, zoning was not granted
and the shopping center was never constructed. Traffic
counts and a Volume 9 screening model input and output were
submitted to support this cancellation, (see Attachment
III) .
It is Region IV's opinion that cancellation of these TCMs is
justifiable and will not adversely affect the continuing attainment
of the CO standards.
Kentucky further submitted information regarding the implementation
of the ridesharing commitments. Therefore, the requirements of the
approved EPA control strategy have been fully implemented in
Jefferson County.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
349 COURTLAND STRICT
ATLANTA. OCOROIA 301«S
MEMORANDUM
1 1990
DATE:
SUBJECT: Disapproval of the Harxnan Automotive Bubble - ACTION
MEMORANDUM
FROM: Greer C. Tidwell
Regional Administrator, Region IV
/s/ Joseph R. Franzmathea
Acting
TO: William K. Reilly
Administrator
THRU: SIP Coordination Office (MD-15)
AQMD
Identification of Action: Attached is a notice prepared by this
office disapproving a bubble for Harman Automotive located in
Bolivar, Tennessee.
Summary of Action: On July 30, 1986, the State of Tennessee through
the Tennessee Department of Health and Environment submitted a
source-specific State Implementation Plan (SIP) revision for Harman
Automotive located in Bolivar, Tennessee. The SIP revision would
provide for Harman to achieve compliance by averaging of emissions
within the facility. The submittal does not meet the requirements of
EPA's Final Emissions Trading Policy (51 FR 43814, December 4, 1986)
and EPA is therefore disapproving the revision.
Coordination with State: The State has been advised of EPA's intent
to disapprove the Harman bubble. However, the State has elected not
to withdraw the submittal.
Issues: There are no significant issues involved. We feel that this
action is sufficiently clear-cut that no communication strategy is
necessary.
Procedural Review: This final rule is a Table 1 action subject to
0MB review. The following offices should review it: OGC, OPA, RRS,
SSCD and AQMD.
Please have the attached notice forwarded for publication in the
Federal Register. Questions on this package may be directed to Kay
Prince of the Region IV Air Programs Branch at FTS 257-2864.
Attachments
KP/ktp: 1-10-90:D0C HRMANFRN DISC #2
SCHUTT MILLER SMITH
y
1 l/i i— — —
POEPPELMAN TIDWELL
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[TN-039]
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA today disapproves a State Implementation Plan (SIP)
revision submitted by the State of Tennessee. The SIP revision, if
approved, would provide for the Harman Automotive, Incorporated
facility located in Bolivar, Tennessee (Hardeman County) to achieve
compliance with the applicable volatile organic compound (VOC)
regulation by averaging or "bubbling" of emissions from Source 09
(mirror coating line) and Source 27 (mask paint department) within
the facility. The bubble does not meet the requirements that any
emissions trade must be surplus and quantifiable and is therefore not
consistent with current Agency policy. This bubble was proposed for
disapproval on December 11, 1989 (54 FR 50773).
DATES: This action will become effective on [30 days from date of
publication].
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ADDRESSES: Copies of the materials submitted by Tennessee may be
examined during normal business hours at the following locations:
Environmental Protection Agency
Region IV, Air Programs Branch
345 Courtland Street, NE
Atlanta, Georgia 30365
Tennessee Department of Health
and Environment
Air Pollution Control Division
4th Floor, Customs House
701 Broadway
Nashville, Tennessee 37219
FOR FURTHER INFORMATION CONTACT: Kay T. Prince, Air Programs Branch,
EPA Region IV, at the above address and telephone number (404)
347-2864 or FTS 257-2864.
SUPPLEMENTAL INFORMATION: The Harman facility operates a mirror
frame coating line (Source 09) and a mask painting department (Source
27). Application of paints within this facility is governed by the
Tennessee reasonably available control technology (RACT) regulation
1200-3-18-.21, which limits volatile organic compound (VOC) emissions
for the two sources to 3.5 pounds VOC per gallon of coating, exclud-
ing water.
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On July 30, 1986, the State of Tennessee, through the Tennessee
Department of Health and Environment, officially submitted a source-
specific SIP revision prepared by the State for a certificate of
alternate control for the Harman Automotive, Incorporated facility
located in Bolivar, Tennessee (Hardeman County). Hardeman County is
an unclassified area for ozone. The SIP revision would allow Harman
to average or "bubble" VOC emissions from Source 09 (mirror coating
line) and Source 27 (mask paint department) in lieu of achieving
compliance with the surface coating of miscellaneous metal parts and
products RACT regulation on a line-by-line basis. Specifically, the
proposed bubble provided for demonstration of compliance by: 1)
limiting the daily sum of emissions from Sources 09 and 27 to the
product of the following five factors: a) 19.33 pounds per thousand
mirror frames; b) thousand mirror frames coated in Source 09 for day?
c) ratio of mirror frames coated in Source 09 for day to metal mirror
frames coated in Source 09 for day; d) ratio of average film
thickness for day to 1.5 mils; and e) ratio of an area coated per
mirror frame for day to 0.37 square foot; 2) using electrostatic
coating application equipment in Source 09; and 3) limiting emissions
from Source 27 to 25 pounds per day.
The certificate of alternate control for Harman was sucmitted to EPA
on July 30, 1986, prior to publication of the December 4, 1986,
Emission Trading Policy Statement ETPS). Because it does not meet
the requirements of the April 7, 1982, version of the trading policy,
-3-
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it is not an approvable submittal. Specifically, the submittal did
not meet the following criteria:
1. All reductions must be surplus. To demonstrate that the
reduction is surplus, a baseline emission level must first
be established. Historical emissions data was submitted for
source 09 but not for source 27, and, therefore there was
not sufficient information to determine whether or not the
reduction was surplus. Furthermore, the emissions informa-
tion which was submitted was based on 1980 production data.
Although the 1982 policy did not specifically define the
baseline period, it is the Region's opinion that a more
recent time period should be used unless a demonstration is
made that the submitted data was more representative. No
such demonstration has been made by the State.
2. Alternate emission limits must be enforceable. The compli-
ance instrument must specify applicable restrictions on
hours of operation, production rates or input rates; enforce-
able test methods for determining compliance; and necessary
recordkeeping or reporting requirements. The certificate of
alternate control did not specify test methods or recordkeep-
ing requirements.
-4-
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3. All reductions must be quantifiable. To quantify the emis-
sion reduction, emissions must be calculated both before and
after the reduction. Since no emissions data was submitted
for source 27, the required calculations cannot be made.
Therefore, the bubble did not meet the requirement to be
quantifiable.
It should be noted that the bubble also does not meet the require-
ments of the December 4, 1986, ETPS. The State was advised on August
3, 1987, that the proposed SIP revision was deficient in that it did
not meet the following criteria required by the ETPS for the bubble
to be approvable:
1. The action must be surplus. To determine whether or not the
reduction is surplus, the state must first establish the
appropriate level of baseline emissions. Baseline emissions
for any source are the product of three factors: emission
rate, capacity utilization, and hours of operation. Net
baseline emissions are the sum of the individual baseline
emissions of all sources involved in the bubble. In attain-
ment or unclassified areas, the lower of actual or allowable
values must generally be used for each of these baseline
values for each source involved in the trade. For bubbles,
a source's actual emissions equal its average historical
-5-
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emissions, in tons per year, for the two-year period preced-
ing the source's application to trade. The State submitted
1980 emissions data for Source 09 and no data for Source
27. Furthermore, the two-year period preceding the source's
application to trade is May 1984 through April 1986. No
information was submitted to support the use of another time
period. Therefore, the bubble does not meet the 1986 ETPS
requirement that the trade be surplus.
2. Alternate emission limits must be enforceable. The April 7,
1982, and the December 6, 1986, trading policies both
require that appropriate test methods and adequate record-
keeping requirements be included in the submittal in order
for the bubble to be enforceable. Therefore, since the
submittal did not meet the enforceability requirements of
the 1982 policy, it also did not meet those of the 1986
ETPS.
3. The emission reduction must be quantifiable. The require-
ments that the reduction be quantifiable are the same for
both the 1982 and 1986 trading policies. Therefore, the
bubble does not meet the requirement that the reduction be
quantifiable as specified in the December 4, 1986, ETPS for
the same reasons as those cited previously for the 1982
policy.
-6-
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Because there is no additional technical information which needs to
be addressed, no technical support document has been prepared.
On December 11, 1989 (54 FR 50773), EPA proposed to disapprove the
bubble for Harman Automotive in Bolivar, Tennessee. The public was
invited to submit written comments on the proposed action. However,
no comments were received.
FINAL ACTIONS The Harman Automotive, Incorporated bubble is not
consistent with EPA's ETPS. Therefore, EPA is today disapproving
this revision to the Tennessee SIP.
Under Executive Order 12291, today's action is not "major." It has
been submitted to the Office of Management and Budget (OMB) for
review.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the
state implementation plan shall be considered separately in light of
specific technical economic and environmental factors and in relation
to relevant statutory and regulatory requirements.
-7-
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Under Section 307(b)(1) of the Act, petitions for judicial review ofl
this action must be filed in the United States Court of Appeals for
the appropriate circuit by [60 days from date of publication]. This
action may not be challenged later in proceedings to enforce its
requirements. (See 307(b)(2).)
Under 5 U.S.C. Section 605(b), I certify that these revisions will
not have a significant economic impact on a substantial number of
small entities. (See 46 FR 8709.)
List of Subjects in 40 CFR 52:
Air pollution control, Hydrocarbons, Intergovernmental relations,
Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. Sections 7401-7642
Date
William K. Reilly
Administrator
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STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 3Q365
MEMORANDUM
DATE: JUL 1 1990
SUBJECT:
FROM:
TO:
THRU:
Identification of Action: Attached is a notice proposing approval of
the New Johnsonville SO2 nonattainment area plan.
Summary of Action: On August 2, 1983, the State of Tennessee
submitted the New Johnsonville SO2 nonattainment area plan. Action
on this submittal was delayed due to the October 11, 1983 stack
height remand. EPA promulgated new regulations resclving the
remanded issues on July 8, 1985. Tennessee was, then, required to
demonstrate that sources in the state met the new federal
requirements and develop stack height regulations. The Tennessee
regulations became State-effective on November 22, 1987. On
January 22, 1988, a new stack height remand was issued. EPA is
proposing to approve this revision, even though it is affected by the
1988 stack height remand. As long as no action is taken on this
revision, a potential enforcement issue exists. Also, on January 6,
1988, the State of Tennessee requested redesignation of the
nonattainment area to attainment for the primary and secondary SO2
standards. Requests for redesignation of areas from nonattainment to
attainment which are affected by any of the remanded provisions of
the stack height regulation have been put on hold until EPA has
completed any rulemaking necessary to comply with the court's
remand. Therefore, EPA is not acting on this request at this time.
Coordination with State: The State of Tennessee is aware of the
action being taken. They do not concur with EPA's redesignation
policy.
Issue: This action is affected by the January 1988, stack height
remand. However, taking no action on this revision creates a
potential enforcement problem with respect to the SO2 sources in
the New Johnsonville area.
\S3SZv
UNITED
Proposed Approval of the New Johnsonville, Tennessee
SO2 Nonattainment Area Plan—Action Memorandum
Greer C. Tidwell
Regional Administrator
William G. Rosenberg
Assistant Administrator for
Air and Radiation
SIP Coordination Office, MD-15
OAQPS
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-2-
Procedural Review: This proposed rule is a Table 1 SIP revision and
is exempt from OMB review. It should be reviewed by AQMD, OGC, OPA
and SSCD. Please forward the attached proposal notice to the Federal
Register for publication. Questions on this notice may be directed
to Beverly T. Hudson of the Region IV Air Programs Branch at (FTS)
257-2864.
Attachment
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
Tennessee: Revised SO2 Limits for the New Johnsonville Area
[TN-012]
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
SUMMARY: On August 2, 1983, the State of Tennessee submitted the
S02 nonattainment plan for the New Johnsonville area. This
submittal contained the control strategy demonstration and the SO2
emission limits for sources located in the nonattainment area.
Action on this submittal was delayed when the February 8, 1982, stack
height regulation was challenged and portions remanded on October 11,
1983. Several sources in the New Johnsonville area were affected by
the remand. EPA promulgated new stack height regulations on July 8,
1985. Tennessee complied with the new federal regulations by
demonstrating that all sources in the state met the new requirements
and by developing new generic stack height regulations. These
regulations became State-effective on November 22, 1987. On January
22, 1988, EPA'8 stack height regulations were, again, remanded.
Although the latest stack height remand has not been settled, EPA
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is proposing approval of this nonattainment plan due to enforcement
related issues. Also, on January 6, 1988, the State of Tennessee
requested redesignation of the nonattainment area to attainment for
both the primary and secondary SO2 standards. Requests for
redesignation of areas from nonattainment to attainment which are
affected by any of the remanded provisions of the stack height
regulations have been put on hold until EPA has completed any
rulemaking necessary to comply with the court's remand. Therefore,
EPA is not acting on this request.
DATE: To be considered, comments must reach us on or before [30 days
from date of publication].
ADDRESSES: Written comments should be addressed to Beverly T. Hudi
of EPA of Region IV's Air Programs Branch (see EPA Region IV address
below). Copies of the State's submittal are available for review
during normal business hours at the following locations:
Environmental Protection Agency
Region IV
Air Programs Branch
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Tennessee Department of Health and
Environment
Division of Air Pollution Control
4th Floor Customs House
701 Broadway
Nashville, Tennessee 37219-5403
FOR FURTHER INFORMATION CONTACT: Beverly T. Hudson, Air Programs
Branch, EPA Region IV, at the above address and telephone number
(404) 347-2864.
2
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SUPPLEMENTARY INFORMATION: In the early 1970 '8, Tennessee utilized
the example region concept in establishing SO2 emission limits for
sources that were causing or contributing to ambient air violations.
As a result of this example region concept, all power plants were
limited to SO2 emission limits of 1.2 lb/10^Btu. Tennessee
Valley Authority's Johnsonville Steam Plant (TVA) was one of these
facilities and is located in the New Johnsonville nonattainment area
which includes part of Benton and Humphrey Counties.
During this same time period, TVA took the position that the 1970
Clean Air Act (CAA) did not require constant emission limits as the
only mechanism for achieving the National Ambient Air Quality
Standard (NAAQS). TVA had proposed to meet the ambient standards
thru the use of intermittent or supplemental controls. EPA and the
three states that TVA operated in did not agree and required the
emission limits to be continuously met. TVA took the issue to Court
and the Supreme Court decision ratified the position of EPA and the
states.
This resulted in TVA immediately being in noncompliance at most of
its facilities. As a result, a consent decree was entered into on
September 28, 1979 by EPA, the Commonwealth of Kentucky, and various
public interest groups (Tennessee Thoracic Society, et al., and
United States v. S. David Freemand, et al., Civil Action No.
7 703286-NA-CV, United States District Court for the Middle District
3
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of Tennessee, Nashville Division). The consent decree required thai
TVA install 600 megawatts of SO2 scrubber capacity and use a
complying coal to meet an SO2 emission limit of 3.4 lbs/mmBTU.
Modeling showed that this SO2 emission limit would protect the
NAAQS. On December 22, 1980, the court issued a revised consent
decree which no longer required the installation of scrubbers but
maintained the 3.4 lb limit.
The State of Tennessee had chosen not to be a party to the consent
decree and left the details of the final settlement to EPA and the
other parties. Even though the SIP contained an emission limit of
1.2 for Johnsonville, EPA, et. al. agreed thru the consent decree
that an emission limit of 3.4 would protect the NAAQS and agreed on
this limit as part of the consent decree.
EPA then began negotiations with the Tennessee Air Pollution Control
Division (TAPCD) in order to get the approved SIP limit of 1.2
revised to 3.4. Tennessee started this process and since they were
dealing with a nonattainment area, all sources of SO2 emission had
to be analyzed and factored into the attainment demonstration. The
major SO2 sources were TVA's Johnsonville Steam Plant# Consolidated
Aluminum Corporation (CONALCO), E.I. De Nemours Du Pont (Du Pont) and
Inland Container Corporation. There were numerous smaller SO2
sources and a listing of these can be found in the Technical Support
Document. Emission limits for all the sources were developed thru
4
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the use of limits contained in the consent decree, modelling analysis
and air quality data. The nonattainment plan predicted attainment of
the primary and secondary SO2 NAAQS by December 31, 1982, and
December 31, 1987, respectively.
Since, the State's federally approved SO2 emission limit of 1.2
lbs/mmBTU was never compiled with at the Johnsonville facility, no
net increase in actual SO2 emissions will result from the approval
of this emission limit. In fact, a net reduction occurred as the
Johnsonville facility had emissions in excess of 6.0 lb/mmBtu before
the consent decree was filed.
Control Strategy Demonstration/Modeling
The modeling techniques used in the demonstration supporting this
revision are for the most part based on modeling guidance in place at
the time that the analysis was performed, i.e., the EPA "Guideline on
Air Quality Models (1978)". The analysis supporting the control
strategy and Benton/Humphreys Counties SO2 reclassification was
included in a July 9, 1986, letter (Bruce Miller of the Air Programs
Branch to Joe Tikvart of the Source Receptor Analysis Branch and Tom
Helms of the Control Programs Operation Branch) which listed sources
and/or areas in Region IV to be grand-fathered under the 1978 EPA
modeling practice. Since that time, revisions have been promulgated
by EPA (51 FR 32176, September 9, 1986, and 53 FR 392, January 6,
5
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1988). Since the modeling analysis was under way prior to the
publication of the revised guidance, EPA accepts the analysis. If
for some reason this or any other analysis roust be redone in the
future, then it must be done in accordance with current modeling
guidance.
The models used were the Air Quality Display Model (AQDM), PTMTP, the
single source dispersion model (CRSTER) and the Buoyant Line and
Point Source Dispersion model (BLP). AQDM is a climatological steady
state gaussian plume model that estimates annual arithmetic average
SO2 and particulate concentrations at ground level in urban areas.
Five years (1966-1970) of meteorological data from the Nashville,
Tennessee, National Weather Service (NWS) site was used in AQDM.
PTMTP is a multiple source model which calculates hourly
concentrations and the average concentration for several hours as a
function of meteorological conditions at specified receptors. PTMTP
was used to determine the three and 24 hour average concentrations.
CRSTER is a steady state Gaussian dispersion model designed to
calculate concentrations from point sources at a single location in
either a rural or urban setting. CRSTER was run using the 1964
Nashville NWS data. The days representing adverse conditions were
modeled by PTOCTP using CRSTER output meteorology. The wind
directions were modified to combine the most adverse dispersion
parameters with source alignments causing maximum additive impacts.
BLP is a Gaussian plume dispersion model designed to handle unique
6
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modeling problems associated with aluminum reduction plants and other
industrial sources where plume rise and downwash effects from
stationary line sources are important. Consolidated Aluminum
Corporation is the only source modeled using BLP.
The New Johnsonville modeling analysis included two addendum. The
first addenda resulted from a public hearing comment which revised
some sources' emissions data and supported using BLP. The second
addendum resulted from TVA's petition to establish an SO2 emission
standard for their boilers based on 24 hour average variability
rather than the three hour average evaluated in the initial modeling.
In each submittal, analyses were done for three separate emission
inventories; base year-1977, interim restriction (1982-1987) and the
final RACT emissions.
The maximum concentrations for each analysis are listed in Table III
of the Technical Support Document. The background concentration was
supplied by the State. The three hour, 24 hour and annual background
concentrations are 15, 5, and 2 ug/m^, respectively. Adding these
values to their respective averaging times yields a total three hour,
24 hour and annual concentration of 1003, 235 and 50 ug/m^,
respectively. The final RACT emission limits for the SO2 sources,
other than TVA, are contained in State regulation 1200-3-19-.14,
Sulfur Dioxide Emission Regulations for the New Johnsonville
7
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Nonattainment Area, which are supported by the modeling results.
Also, the SO2 SIP limit for TVA New Johnsonville, which was relaxed
from 1.2 to 3.4 lbs/MMBTU was based on the same modeling. Therefore,
it was concluded that the modeled emissions limits would not cause or
contribute to a violation of the SO2 NAAQS in the New Johnsonville
and surrounding areas.
Stack Heights
The New Johnsonville nonattainment plan has been affected by stack
height issues since it was submitted. Action was delayed on the
nonattainment plan due to the February 8, 1982 (47 FR 5864) stack
height regulations challenged by the Sierra Club Legal Defense Fund,
Inc., Natural Resources Defense Council, Inc. and the Commonwealth
Pennsylvania.
On Octobp*- 11, 1983, the U.S. Court of Appeals for the District of
Columbia ordered EPA to reconsider portions of the "stack height"
regulations for stationary sources. Sierra Club v. EPA. 719 f.2d 436
(D.C. Cir., 1983). Those regulations, which implemented Section 123
of the Clean Air Act, were published at 47 FR 5864 (February 8,
1982). In its decision, the Court of Appeals struck down two
provisions of those regulations:
8
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1. The allowance of plume impaction credit, and
2. The setting of a two-stage process for State implementation.
The Court also remanded several other issues to the Agency for
reconsideration:
1. The definition of "excessive concentrations,"
2. The definition of "dispersion techniques,"
3. The automatic allowance of credit for stack height increases
where the resulting stack height is at or lower than the formula
height,
4. The allowance of credit for new sources tied into old stacks
which are above the GEP height,
5. The failure to set a specific "nearby" limitation for GEP
demonstrations, and
6. Requiring sources claiming credit based on the 2.5H formula to
demonstrate actual reliance on that formula.
The first three remanded issues affected the New Johnsonville
submittal and action was stayed until new regulations could be
promulgated.
On July 8, 1985 at 50 FR 27892, EPA published stack height
regulations that resolved the overturned and remanded issues of
1983. This required Tennessee to demonstrate that sources in the
state met the new requirements and to develop regulations complying
with the federal regulations. Tennessee's regulations became
State-effective on November 22, 1987. However, before EPA could
9
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process the nonattainment plan, the stack height regulations were,
again, remanded. On January 22, 1988, U.S. Court of Appeals for the-
District of Columbia issued its decision in NRDC v. Thomas. 838 F.
2dl244 (D.C. Cir. 1988) regarding the 1985 stack height regulations.
Although the court upheld most provisions of the rules, three
portions were remanded to EPA for reviews
1. Grandfathering pre-October 11, 1983, within-formula stack height
increases from demonstration requirements (40 CFR 51.100 (kk)
(2) ) ;
2. Dispersion credit for sources originally designed and constructed
with merged or multiflue stack (40 CFR 51.100(hh)(2)(ii)(A)); and
3. Grandfathering of pre-1979 use of the refined H + 1.5L formula
(40 CFR 51.100(ii ) (2) ) .
The first issue of the remand affected the New Johnsonville area
submittal. Again, the submittal was placed on hold.
Enforcement Issues
EPA has decided to act on the New Johnsonville nonattainment area
plan due to potential enforcement related issues. EPA is concerned
that the federally approved emission limits for the New Johnsonville
area may bo inappropriate. In order to avoid any enforcement
complication*, Region IV decided that it was in the best interest of
EPA, the State of Tennessee and the SO2 sources in the New
Johnsonville area to process the revised emission limits. However,
the State and the sources may need to be evaluated for compliance
-------
with any other later revisions to the stack height regulations as a
result of the litigation.
Proposed Action; EPA's review of the Tennessee SIP revisions
submitted August 2, 1983, indicates that the S02 NAAQS will be
protected in the New Johnsonville area. Therefore, EPA is proposing
to approve the revised SO2 SIP applicable to the New Johnsonville
area, except for the requests to redesignate areas from nonattainment
to attainment for the primary and secondary SO2 standards submitted
January 6, 1988. Requests for redesignation which are affected by
the remanded provisions of the stack height regulations have been put
on hold until EPA completes any rulemaking necessary to comply with
the court's remand. Today, EPA is soliciting public comments on the
proposed action.
For further information on EPA's analysis, the reader may consult a
Technical Support Document which contains a detailed review of the
material submitted. This is available at the EPA address given
previously. Interested persons are invited to submit comments on
this proposed approval. EPA will consider all comments received
within thirty days of the publication of this notice.
Under 5 U.S.C. Section 605(b), I certify that these revisions will
not have a significant economic impact on a substantial number of
small entities. (See 46 FR 8709).
11
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Nothing in this action should be construed as permitting or allowing
or establishing a precedent for any future request for revision to
any state implementation plan. Each request for revision to the
state implementation plan shall be considered separately in light of
specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
The Office of Management and Budget has exempted this rule from the
requirements of Section 3 of Executive order 12291.
List of Subjects in 40 CFR Part 52
Air pollution control, Intergovernmental relations, Sulfur oxides.
AUTHORITY: 42 U.S.C. 7401-7642.
JUL " 1 1990
DATED:
/
Regional Administrator
12
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
Tennesseet Revised SO2 Limits for the New Johnsonville Area
[TN-012]
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
SUMMARY: On August 2, 1983, the State of Tennessee submitted the
SO2 nonattainment plan for the New Johnsonville area. This
submittal contained the control strategy demonstration and the SO2
emission limits for sources located in the nonattainment area.
Action on this submittal was delayed when the February 8, 1982, stack
height regulation was challenged and portions remanded on October 11,
1983. Several sources in the New Johnsonville area were affected by
the remand. EPA promulgated new stack height regulations on July 8,
1985. Tennessee complied with the new federal regulations by
demonstrating that all sources in the state met the new requirements
and by developing new generic stack height regulations. These
regulations became State-effective on November 22, 1987. On January
22, 1988, EPA'a stack height regulations were, again, remanded.
Although the latest stack height remand has not been settled, EPA
-------
is today approving this nonattainment plan due to enforcement related
issues. Also, on January 6, 1988, the State of Tennessee requests
redesignation of the nonattainment area to attainment for both the
primary and secondary SO2 standards. Requests for redesignation of
areas from nonattainment to attainment which are affected by any of
the remanded provisions of the stack height regulations have been put
on hold until EPA has completed any rulemaking necessary to comply
with the court's remand. Therefore, EPA is not acting on the
redesignation request.
DATES: This action will become effective [30 days from date of
publication].
ADDRESSES; Copies of the documents relevant to this action are
available for review during normal business hours at the following
locations t
Public Information reference Unit,
Library Systems Branch
Environmental Protection Agency
401 M Street, S.W.,
Washington O.C. 20460
Environmental Protection Agency
Region IV
Air Programs Branch
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Tennessee Department of Health and
Environment
Division of Air Pollution Control
4th Floor Customs House
701 Broadway
Nashville, Tennessee 37219-5403
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FOR FURTHER INFORMATION CONTACT: Vickie Boothe, Air Programs Branch,
EPA Region IV, at the above address and telephone number (404)
347-2864.
SUPPLEMENTARY INFORMATION: In the early 1970's, Tennessee utilized
the example region concept in establishing S02 emission limits for
sources that were causing or contributing to ambient air violations.
As a result of this example region concept/ all power plants were
limited to SO2 emission limits of 1.2 lb/10® BTU. Tennessee
Valley Authority's (TVA) Johnsonville Steam Plant was one of these
facilities and is located in the New Johnsonville nonattainment area
which includes part of Benton and Humphreys Counties.
During this same time period, TVA took the position that the 1970
Clean Air Act (CAA) did not require constant emission limits as the
only mechanism for achieving the National Ambient Air Quality
Standard (NAAQS). TVA had proposed to meet the ambient standards
thru the use of intermittent or supplemental controls. EPA and the
three states that TVA operated in did not agree and required the
emission limits to be continuously met. TVA took the issue to Court
and the Supreme Court decision ratified the position of EPA and the
states.
This resulted in TVA immediately being in noncompliance at most of
its facilities. As a result, a consent decree was entered into on
-3-
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September 28, 1979, by EPA, the Commonwealth of Kentucky, and various
public interest groups (Tennessee Thoracic Society, et al., and
United States v. S. David Freemand, et al., Civil Action No.
7703286-NA-CV, United States District Court for the Middle District
of Tennessee, Nashville Division). The consent decree required that
TVA install 600 megawatts of SO2 scrubber capacity and use a
complying coal to meet an SO2 emission limit of 3.4 lbs/mmBTU.
Modeling showed that this SO2 emission limit would protect the
NAAQS. On December 22, 1980, the court issued a revised consent
decree which no longer required the installation of scrubbers but
maintained the 3.4 lb limit.
The State of Tennessee had chosen not to be a party to the consent
decree and left the details of the final settlement to EPA and the
other parties. Even though the SIP contained an emission limit of
1.2 lbs/mmBTU for Johnsonville, EPA, et. al. agreed thru the consent
decree that an emission limit of 3.4 lbs/mmBTU would protect the
NAAQS and agreed on this limit as part of the consent decree.
EPA then began negotiations with the Tennessee Air Pollution Control
Division (TAPCD) in order to get the approved SIP limit of 1.2
revised to 3.4. Tennessee started this process and since they were
dealing with a nonattainment area, all sources of SO2 emission had
to be analysed and factored into the attainment demonstration. The
major SO2 sources in the New Johnsonville nonattainment area were
TVA's Johnsonville Steam Plant, Consolidated Aluminum Corporation
-4
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(CONALCO), E.I. D© Nemours Du Pont (Du Pont) and Inland Container
Corporation. There were numerous smaller SO2 sources and a listing
of these can be found in the Technical Support Document. Emission
limits for all the sources were developed thru the use of limits
contained in the consent decree, modelling analysis and air quality-
data. The nonattainment plan predicted attainment of the primary and
secondary SO2 NAAQS by December 31, 1982, and December 31, 1987,
respectively.
Since, the State's federally approved SO2 emission limit of 1.2
lbs/mmBTU was never complied with at the New Johnsonville facility,
no net increase in actual SOj emissions will result from the
approval of this emission limit. In fact, a net reduction occurred
as the New Johnsonville facility had emissions in excess of 6.0
lb/mmBtu before the consent decree was filed.
Control Strategy Demonstration/Modeling
The modeling techniques used in the demonstration supporting this
revision are for the most part based on modeling guidance in place at
the time that the analysis was performed, i.e., the EPA "Guideline on
Air Quality Models (1978)". The analysis supporting the control
strategy and Benton/Humphreys Counties SO2 reclassification was
included in a July 9, 1986, letter (Bruce Miller of the Air Programs
Branch to Joe Tikvart of the Source Receptor Analysis Branch and Tom
Helms of the Control Programs Operation Branch) which listed sources
-5-
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and/or areas in Region IV to be grandfathered under the 1978 EPA
modeling practice. Since that time, revisions have been promulgatl
by EPA (51 FR 32176, September 9, 1986, and 53 FR 392, January 6,
1988). Since the modeling analysis was under way prior to the
publication of the revised guidance, EPA accepts the analysis. If
for some reason this or any other analysis must be redone in the
future, then it must be done in accordance with current modeling
guidance.
The models used were the Air Quality Display Model (AQDM), PTMTP, the
single source dispersion model (CRSTER) and the Buoyant Line and
Point Source Dispersion model (BLP). AQDM is a climatological steady
state gaussian plume model that estimates annual arithmetic average
SO2 and particulate concentrations at ground level in urban areas.
Five years (1966-1970) of meteorological data from the Nashville,
Tennessee, National Weather Service (NWS) site was used in AQDM.
PTMTP is a multiple source model which calculates hourly
concentrations and the average concentration for several hours as a
function of meteorological conditions at specified receptors. PTMTP
was used to determine the three and 24-hour average concentrations.
CRSTER is a steady state Gaussian dispersion model designed to
calculate concentrations from point sources at a single location in
either a rural or urban setting. CRSTER was run using the 1964
Nashville NWS data. The days representing adverse conditions were
modeled by PTCTP using CRSTER output meteorology. The wind
directions were modified to combine the most adverse dispersion
-6-
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parameters with source alignments causing maximum additive impacts.
BLF is a Gaussian plume dispersion model designed to handle unique
modeling problems associated with aluminum reduction plants and other
industrial sources where plume rise and downwash effects from
stationary line sources are important. Consolidated Aluminum
Corporation is the only source modeled using BLP.
The New Johnsonville modeling analysis included two addenda. The
first addendum resulted from a public hearing comment which revised
some sources' emissions data and supported using BLP. The second
addendum resulted from TVA's petition to establish an SO2 emission
standard for their boilers based on 24-hour average variability
rather than the three hour average evaluated in the initial modeling.
In each submittal, analyses were done for three separate emission
inventories; base year-1977, interim restriction (1982-1987) and the
final RACT emissions.
The maximum concentrations for each analysis are listed in Table III
of the Technical Support Document. The background concentration was
supplied by the State. The three hour, 24-hour and annual background
concentrations are 15, 5, and 2 ug/m^, respectively. Adding these
values to thair respective averaging times yields a total three hour,
24 hour and annual concentration of 1003, 235 and 50 ug/m3,
respectively. The final RACT emission limits for the S02 sources,
other than TVA, are contained in State regulation 1200-3-19-.14,
Sulfur Dioxide Emission Regulations for the New Johnsonville
-7-
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Nonattainment Area, which are supported by the modeling results.
Also, the SOj SIP limit for TVA New Johnsonville, which was relaxd
from 1.2 to 3.4 lbs/MMBTU was based on the same modeling. Therefore,
it was concluded that the modeled emissions limits would not cause or
contribute to a violation of the SO2 NAAQS in the New Johnsonville
and surrounding areas.
Stack Heights
The New Johnsonville nonattainment plan has been affected by stack
height issues since it was submitted. Action was delayed on the
nonattainment plan due to the February 8, 1982 (47 FR 5864) stack
height regulations challenged by the Sierra Club Legal Defense Fund,
Inc., Natural Resources Defense Council, Inc. and the Commonwealth of
Pennsylvania.
on October 11, 1983, the U.S. Court of Appeals for the District of
Columbia ordered EPA to reconsider portions of the "stack height"
regulations for stationary sources. Sierra Club v. EPA. 719 f.2d 436
(D.C. Cir., 1983). Those regulations, which implemented Section 123
of the Clean Air Act, were published at 47 FR 5864 (February 8,
1982). In its decision, the Court of Appeals struck down two
provisions of those regulations*
-8-
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1. "The allowance of plume impaction credit, and
2. The setting of a two-atage process for State implementation.
The Court also remanded several other issues to the Agency for
reconsiderations
1. The definition of "excessive concentrations,"
2. The definition of "dispersion techniques,"
3. The automatic allowance of credit for stack height increases
where the resulting stack height is at or lower than the formula
height,
4. The allowance of credit for new sources tied into old stacks
which are above the GGP height,
5. The failure to set a specific "nearby" limitation for GEP
demonstrations, and
6. Requiring sources claiming credit based on the 2.5H formula to
demonstrate actual reliance on that formula.
The first three remanded issues affected the New Johnsonville
submittal and action was stayed until new regulations could be
promulgated.
On July 8, 1985, at 50 FR 27892, EPA published stack height
regulations that resolved the overturned and remanded issues of
1983. This required Tennessee to demonstrate that sources in the
state met the new requirements and to develop regulations complying
with the federal regulations. Tennessee's regulations became
State-effective on November 22, 1987. However, before EPA could
-9-
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process the nonattainment plan, the stack height regulations were,
again, remanded. On January 22, 1988, U.S. Court of Appeals for ti
District of Columbia issued its decision in NRDC v. Thomas. 838 F.
2dl244 (D.C. Cir. 1988) regarding the 1985 stack height regulations.
Although the court upheld most provisions of the rules, three
portions were remanded to EPA for review:
1. Grandfathering pre-October 11, 1983, within-formula stack height
increases from demonstration requirements (40 CFR 51.100 (kk)
(2));
2. Dispersion credit for sources originally designed and constructed
with merged or multiflue stack (40 CFR 51.100(hh)(2)(ii)(A)); and
3. Grandfathering of pre-1979 use of the refined H + 1.5L formula
(40 CFR 51.100(ii)(2)).
The first issue of the remand affected the New Johnsonville area
submittal. Again, the submittal was placed on hold.
Enforcement Issues
EPA has decided to act on the New Johnsonville nonattainment area
plan due to potential enforcement related issues. EPA is concerned
that the federally approved emission limits for the New Johnsonville
area may be inappropriate. In order to avoid any enforcement
complication®, Region IV decided that it was in the best interest of
EPA, the Stat* of Tennessee and the SO2 sources in the New
Johnsonville area to process the revised emission limits. However,
the State and the sources may need to be evaluated for compliance
-10-
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with any other later revisions to the stack height regulations as a
result of the litigation.
EPA proposed approval of this plan on August 8, 1990 (55 FR 32268)
and no comments were received.
Final Action? EPA's review of the Tennessee SIP revisions submitted
August 2, 1983, indicates that the SO2 NAAQS will be protected in
the New Johnsonville area. Therefore, EPA is today approving the
revised SO2 SIP applicable to the New Johnsonville area, except for
the requests to redesignate areas from nonattainment to attainment
for the primary and secondary SO2 standards submitted January 6,
1988. Requests for redesignation which are affected by the remanded
provisions of the stack height regulations have been put on hold
until EPA completes any rulemaking necessary to comply with the
court's remand.
For further information on EPA's analysis, the reader may consult a
Technical Support Document which contains a detailed review of the
material submitted. This is available at the EPA address given
previously.
Under 5 U.S.C. Section 605(b), I certify that these revisions will
not have a significant economic impact on a substantial number of
small entities. (See 46 FR 8709).
-11-
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Nothing in this action should be construed as permitting or allowing
or establishing a precedent for any future request for revision tc
any state implementation plan. Each request for revision to the
state implementation plan shall be considered separately in light of
specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Today's action makes final the action proposed at 55 32269, August 8,
1990. As noted elsewhere in this notice, EPA received no adverse
public comment on the proposed action. As a direct result, the
Regional Administrator has reclassified this action from Table 1 to
Table 2 under the processing procedures established at 54 FR 2214,
January 19, 1989.
Under Section 307(b)(1) of the Act, petitions for judicial review
this action must be filed in the United States Court of Appeals for
the appropriate circuit by [60 days from date of publication]. This
action may not be challenged later in proceedings to enforce its
requirements. (See 307(b)(2).)
-12-
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List of Subjects in 40 CFR Part 52:
Air pollution control. Carbon Monoxide, Hydrocarbons, Incorporation
by Reference, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Reporting Recordkeeping requirements,
sulfur oxides.
Note: Incorporation by reference of the State Implementation Plan for
the State of Tennessee was approved by the Director of the Federal
Register on July 1, 1982.
DATED: ¦
Regional Administrator
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Part 52 of Chapter I, Title 40, Code of Federal Regulations, is
amended as follows:
SUBPART RR-Tennessee
1) The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7642
2) Section 52.2220 is amended by adding paragraph (c) (102) to read
as follows:
S52.2220 Identification of plan.
* * * * *
(c) *
(102) Revisions to the New Johnsonville SO2 portion of the
Tennessee State Implementation Plan submitted on August 2, 1983, by
the State of Tennessee through the Tennessee Air Pollution Control
Board.
(i) Incorporation by reference.
(A) Revisions to the following Tennessee Air Pollution Control
Regulations which became State-effective on December 13, 1982:
-14-
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1200-3-3-.05—Achievement
1200-3-14.01 (2)—Control of Sulfur Dioxide Emissions— County
Classifications
1200-3-14-.02(1)(a)—Non-process Emissions Standards—Fuel
Burning Installation in Operation Prior to April 3, 1972.
1200-3-19.14—Sulfur Dioxide Emission Regulation for the New
Johnsonville Nonattainment Area
(ii) Other Material
None
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COMPLETENESS CRITERIA CHECKLIST FOR SIP SUBMITTALS
Sequential Processing
1. Letter from State official requesting that EPA approve
the enclosed revision.
2. Evidence that Public Notice was given including the date
of the publication and evidence that a public hearing
was held.
3. A document (Regulation, Permit, State Order) fully
adopted and enforceable by the agency for incorporation
by reference. The evidence should include the date of
adoption and the effective date.
4. The Technical support demonstrating that approval of the
revision will not violate NAAQS or PSD; will not
interfere with RFP, and is consistent with requirements
for maintenance of ambient standards. (See Technical
Support Criteria Checklist)
5. Evidence that the State has the necessary legal
authority under State law to adopt and implement the
revision.
6. A copy of the actual regulation submitted for approval
and incorporation into the SIP, including indication of
the changes made to the existing approved SIP, where
applicable. The submittal should be a copy of the
official state regulation, signed, stamped and dated by
the appropriate state official indicating that it is
fully enforceable by the State.
7. Compilation of public comments and the State's response.
-------
Parallel Processing
1. Letter from state official requesting parallel-
processing of the enclosed revision.
2. A schedule for completing the adoption/issuance process
at the State level.
3. A proposed or draft document that will eventually be
adopted/issued by the State and formally submitted as a
SIP revision.
4. Technical support to evaluate the proposed revision's
impact on air quality and conformance with federal
statutes, regulations and policies.
5. Evidence that the State has the necessary legal
authority under State law to adopt and implement the
revision.
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TECHNICAL SUPPORT CRITERIA CHECKLIST
(FOR BOTH SEQUENTIAL AND PARALLEL PROCESSING)
1. Identification of all regulated pollutants affected by
the revision.
2. Identification of the locations of affected sources
including the EPA attainment/nonattainment designation
of the locations and the status of the attainment plan
for the affected area(s).
3. Quantification of the changes in SIP allowable emissions
from the affected sources. Estimates of changes in
current actual emissions from affected sources or, where
appropriate, quantification of changes in actual
emission from affected sources through calculations of
the differences between certain baseline levels and
allowable emissions anticipated post revision.
4. Demonstration that the NAAQS/PSD increments/RFP
demonstration/visibility are protected if revision is
approved and implemented.
5. Modeling information required to support the proposed
revision including input data, output data, models used,
justification of model selections, ambient monitoring
data used, meteorological data used, justification for
use of offsite data (where used), modes of models used,
assumptions, etc.
6. Evidence, where necessary, that emission limitations are
based on continuous emission reduction technology, e.g.,
add-on controls, industrial/process equipment designs,
reformulated materials, etc.
7. Evidence that a revision contains emission limitations,
work practice standards and recordkeeping/reporting
requirements, where necessary, to ensure emission
levels.
8. Compliance/enforcement strategies including how
compliance will be determined in practice, and at what
frequency.
9. As appropriate, special economic and technological
justifications per applicable EPA policies. For
example, economic and technological justification for
alternative RACT, for long-term averaging of VOC
emission limits, or to support bubble proposals.
RSCHUTT "BOILERPLATE": COMPLETE
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ATTACHMENT 1
Petermination of Completeness Checklist
The following checklist is to be used to determine if a formal SIP revision
submittal is complete, or if a State's request for parallel processing is
adequateto initiate the federal rulemaking process. The entire checklist
should be used to determine whether a formal SIP revision submittal is
complete, including a formal submittal of a revision for whi.ch a notice
of proposed rulemaking was published via parallel processing on a proposed/
draft version of the revision. An asterisk * indicates the portions of
the checklist that are to be used to determine if a State's request for
parallel processing is adequate to initiate federal rulemaking.
The checklist serves as a guide to State/local agencies in preparing
reviewable SIP packages, and for the EPA reviewers in determining whether
to initiate the federal rulemaking process or return the submittal to the
State/local agency. Common sense judgment must be used in assessing the
completeness of a package. In doing so the reviewer must keep in mind
the objectives of the completeness policy: (1) prompt return of SIP
submittals that are inherently inadequate for review; (2) objective and
consistent application of objective, understandable screening criteria;
(3) reduction of the overall time and resources expended by both State/
local agencies and EPA in the preparation and review of SIP submittals.
Administrative Materials
1) A formal letter of submittal from the Governor or designee requesting
EPA approval of the revision.
* A formal letter from the Governor or designee requesting that EPA
propose approval of a proposed revision by parallel processing.
2) Evidence that the State has adopted the revision in the State codp or
body of regulations; or issued the permit, order, consent agreement
(hereafter document) in final form. That evidence should include the
date of adoption or final issuance as well as the effective date of
the re-'ision if different from the adoption/issuance date.
- schedule for final adoption or issuance should be included in a State's
request for parallel processing.
3) Evidence that the State has the Oecessary legal authority under State
law to adopt and Implement the revision.
* Same evidence should accompany a request for parallel processing of a
proposed State revision
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2
4) A copy of the actual regulation, or document submitted for approval
and incorporation by reference into the SIP, including indication of
the changes made to the existing approved SIP, where applicable- The
submittal should be a copy of the official state regulation/document
signed, stamped, dated by the appropriate State official indicating
that it is fully enforceable by the State. The effective date of the
regulation/document should, whenever possible, be indicated in the
document itself.
* A copy of the proposed/draft regulation or document must be included
in a State's request for parallel processing.
5) Evidence that the State followed all of the requirements of its Admin-
istrative Procedures Act (or equivalent) in conducting and completing
the adoption/issuance of the revision.
6) Evidence that Public Notice was given of the proposed change consistent
with procedures approved by EPA, including the date of publication of
such notice.
7) Certification that public hearing(s) were held in accordance with the
information provided in the public notice and the State's Administrative
Procedures Act (or equivalent), if applicable.
8) Compilation of public consents and the State's response thereto.
NOTE: Items 5-8 are not required for a request to parallel process
a proposed/draft revision.
Technical Support
* Requests for parallel processing should include all of the Technical
Support required for formal submittals as follows:
1) Identification of all regulated pollutants affected by the
revision.
2) Identification of the locations of affected sources Including
the EPA attalnment/nonattalnment designation of the locations
and the status of the attainment plan for the affected area(s).
3) Quanti" atlon of the changes in SIP allowable emissions from
the affe ted sources. Estimates of changes in curren: actual
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3
emissions from affected sources or, where appropriate, quan-
tification of changes in actual emissions from affected sources
through calculations of the differences between certain baseline
levels and allowable emissions anticipated post revision.
4) Demonstration that the NAAQS/PSD increments/RFP demonstregion/
visibility are protected if revision is approved and implemented.
5) Modeling information required to support the proposed revision,
including input data, output data, models used, justification of model
selections, ambient monitoring data used, meteorological data used,
justification for use of offsite data (where used), modes of models
used, assumptions, etc.
6) Evidence, where necessary, that emission limitations are based on
continuous emission reduction technology, e.g., add-on controls,
industrial/process equipment designs, reformulated materials, etc.
7) Evidence that a revision contains emission limitations, work practice
standards and recordkeeping/reporting requirements, where necessary,
to ensure emission levels.
8) Compliance/enforcement strategies including how compliance will be
determined in practice, and at what frequency.
9) As appropriate, special economic and technological justifications
per applicable EPA policies. For example, economic and technologi-
cal justification for alternative RACT, for long-term averaging
of VOC emission limits, or to support bubble proposals.
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FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52. 62 AND
Provided
Item Required Yes No N/A Headquarters' Cownents
1. HEADING
Does the heading for the proposed rule Include:
A. Agency name?
B. CFR Title and Parts?
C. Agency number (leave line blank)?
D. Subject heading?
Examples:
• ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[AGENCY NUMBER]
APPROVAL AH) PROMULGATION OF AIR QUALITY
IMPLEMENTATION PLANS;
LSIMLL; IIIILEI
• ENVIRONMENTAL PROTECTION AGENCY
40 i R PART 62
[AGENCY NUMBER]
APPROVAL AND PROMULGATION OF STATE AIR
QUALITY PLANS FOR DESIGNATED FACILITIES
AM) POLLUTANTS;
[STATE]; LTITLE3
• ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 81
[AGENCY NUMBER]
DESIGNATION OF AREAS FOR AIR QUALITY
PLANNING PURPOSES;
rSTATE]; [TITLE]
1
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FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52. 62 AM) 81
Provided
Item Required Yes No N/A Headquarters' Comments
2. AGENCY
Is an Agency caption Included that reads exactly
as follows?
AGENCY: Environmental Protection Agency (EPA)
3. ACIIQN
Is an Action caption Included that identifies
the type of document being presented?
Examples:
• ACTION: Proposed rule.
e ACTION: Proposed rule; extension of
comment period,
e ACTION: Proposed rule; correction,
e ACTION: Proposed rule; notice of hearing.
• ACTION: Proposed rule* withdrawal.
• ACTION: Notice of proposed rulemaking.
• ACTION: Advanced notice of proposed
rulemaking.
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52. 62 AND 81
Provided
Item Required
Yes No N/A
Headquarters' Comments
4. SUMMARY
The suunary contains a brief description of the
document* written In language that a nonexpert
Mill understand. Ooes the suunary answer these
three questions:
A. What does this document do?
B. Why Is this action necessary?
C. What Is the Intended effect of this action?
NOTE: The summary Is not Intended to prove a
point or argue a case. Supporting
information* details and precise legal
citations do not belong In the summary.
5. DATES
For a proposed action* does the date caption read
as follows?
DATES: Comments must be received on or before
(30 days from date of publication).
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52* 62 AND 81
Provided
Item Required Yes No N/A Headquarters' Comments
6. /^PRESSES
Does the address caption Include:
A. Who and where to send comments?
B. EPA Regional Office address?
C. State address? ,
D. Local agency address?
Example:
ADDRESSES: Comments may be mailed to %
LName3. fEPA Regional Office address!¦
Copies of the documents relevant
to this proposed action are available
for public Inspection during normal
business hours at fEPA Regional Office Addressl:
rState address!i floral Agency address].
7. FOR FURTHER INFORMATION CONTACT
Does this caption Include:
A. Name of contact?
B. Commercial and FTS telephone number?
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52# 62 AND 81
Provided
Item Required Yes No N/A Headquarters1 Comments
8. SLPPLEMEIITARY INFORMATION
A. Does this section present the regulatory
history of the proposed rule* Including
background Infornatlon and specific detail
necessary to give adequate notice of the
Issues to be commented on In the proposed
rule?
B. For a Part 81 action* Is the State's
submittal referred to as a "request*"
rather than a SIP revision?
C. For a Part 81 action* 1s (are) the
county(s) Identified?
9. PROPOSED ACTION
Does this section Include a summary of
exactly what EPA Intends or what position
EPA Is taking?
10. REGULATORY FlEXIBILITY LANGUAGE
A. For Part 52 and Part 62 actions that
are approvals or conditional approvals*
does the following language appear?
"Under 5 U.S.C. Section 605(b)* I certify
that this SIP revision will not have a
significant economic Impact on a
substantial number of small entitles.
(See 46 FR 8709.)"
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52, 62 AM) 81
Provided
I tea Required Yes No N/A Headquarters' Comments
B. For Part 81 actions that are approvals#
does the following language appear?
"Under 5 U.S.C. Section 605(b)* the
Administrator has certified that
redeslgnatlons do not have a significant
economic Impact on a substantial
number of smII entitles.
(See 46 FR 8709.)"
C. For proposals that Include disapprovals.
Is specific language Included that provides
an Individual rationale for certifying the
lack of Impact?
NOTE: In developing regulatory flexibility
language the following 6hould be
consideredi (1) the type, number
and size of the entitles affected
by the disapproval) and (2) what
Impact a final disapproval would
have on these entitles.
U. FXFnilTIVE ORDER 12291
A. For SIP actions that must undergo 0MB
review, is the following language Included?
"Under Executive Order 12291, this
action Is not "Major." It has been
submitted to the Office of Management
and Budget (0MB) for review."
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52* 62 AM) 81
Provided
Item Requ1 red Yes No N/A Headquarters' Comments
D. For SIP actions that are exempt from 0MB
review* Is the following language Included?
"The Office of Management and Budget has
exempted this rule from the requirements
of Section 3 of Executive Order 12291."
12. LIST OF SUBJECTS IN 40 Cfft PART 52/62/81
A. Is a list of thesaurus terms included
for each CFR Part affected by the
document?
B. Are the terms presented In alphabetical
order* separated by commas* and is the
first word of each term capitalized?
For Part S2 actions, choose the
appropriate terms from the following
list: A1r pollution control* Carbon
monoxide* Hydrocarbons* Intergovern-
mental relations* Lead* Nitrogen
dioxide* Ozone* Particulate matter*
Reporting and recordkeeping require-
ments* Sulfur dioxide.
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52, 62 AM) 81
Provided
Itea Required Yes No N/A Headquarters* Comments
For Part 62 actions, choose the
appropriate terns from the following
lists Adalnlstrative practice and
procedure* Air pollution control#
Aluminum* Fertilizers* Fluoride*
Intergovernmental relations* Paper
and paper products Industry* Phosphate*
Reporting and recordkeeping requirements*
Sulfuric acid plants* Sulfuric oxides.
For part B1 actions, the.following terms
should be Included: Air pollution control*
National Parks* Wilderness areas.
13. AUTHORITY CITATIONS
A. Is the authority citation line inserted
Just before the date and signature line?
B. Does the authority citation read exactly
as follows?
AUTHORITY! 42 U.S.C. 7401-7642
8
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR PROPOSED RULES
UNDER 40 CFR PARTS 52* 62 AM) 61
Item Required
14. DATE AM) SIGNATURE
A. Does the last page of the preamble
Include a date line?
B. Does the last page of the preamble
Include a signature line?
C. Does the name of the Regional Administrator
and the title "Regional Administrator"
appear under the signature line?
D. If someone else signed the document*
Is his/her name typed below the
signature line?
E. Does some substantive language from
the preamble (not Just thesaurus
terms) appear on the date and
signature page?
Provided
Yes No N/A Headquarters' Comments
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52. 62 AND 81
Provided
Item Required
Yes No N/A
Headquarters' Comments
1. HEADING
Does the heading for the final rule Include:
A. Agency name?
B. CFR Title and Parts?
C. Agency number (! ive line blank)?
D. Subject heading?
Examples:
e ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 52
[AGENCY NUMBER]
APPROVAL AM) PROMULGATION OF
AIR QUALITY IMPLEMENTATION PLANS;
LSTATE]; [TITLE]
e ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 62
[AGENCY NUMBER]
APPROVAL AND PROMULGATION OF STATE AIR
QUALITY PLANS FOR DESIGNATED FACILITIES
AM) POLLUTANTS;
rSTATE]: [TITLE]
• ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 81
r AnfufY miuacol
DESIGNATION OF AREAS FOR AIR QUALITY
PLANNING PURPOSES;
[STATE3; [TITLE]
1
-------
federal register format checklist for final rules
UNDER 40 CFR PARTS 52, 62 AND 81
Provided
Item Required
Yes No N/A
Headquarters1 Comments
2. AGENCY
Is an Agency caption Included that reads exactly
as follows?
AGENCY: EnvIronmental Protection Agency (EPA)
3. ACTION
Is an Action caption Included that Identifies
the type of document being presented?
Examples:
• ACTION:
• ACTION:
• ACTION:
• ACTION:
• ACTION:
• ACTION:
• ACTION:
Final rule.
Final rule; delay of
effective date.
Final rule; suspension of
effectiveness.
Final rule; confirmation of
effective date.
Final rule; correction.
Final rule; interpretation.
Final rule; petition for
reconsideration.
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52, 62 AND 81
Provide
Item Required
Yes No N/A
Headquarters* Comments
4. SUMMARY
The summary contains a brief description of the
document* written In language that a nonexpert
will understand. Does the summary answer these
three questions!
A. What does this document do?
B. Why Is this action necessary?
C. What Is the Intended effect of this action?
NOTE: The summary Is not Intended to prove a
point or argue a case. Supporting
Information# details and precise legal
citations do not belong In the summary.
5. QAIES
A. For a regular final action* does the date
caption Include the following information?
EFFECTIVE DATE: This rule will become effective
on (30 days from date of publication).
B. For a direct final action* does the date
caption Include the following Information?
DATES: This action will become effective on
(60 days from date of publication) unless
notice Is received by (30 days from date of
publication) that someone wishes to submit
adverse or critical comments.
3
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52, 62 AND 81
Provided
Item Required
Yes No N/A
Headquarters* Comments
6. AQQBE&2E&
Does the address caption Include:
A. EPA Regional Office address?
B. State address?
C. Local agency address?
D. Public Information Reference Unit address
(on approvals only)?
E. Office of the Federal Register address
(on approvals only)?
Example:
ADDRESSES: Written comments on this action
should be addressed to [name] at the EPA Regional
Office address listed below. Copies of the
documents relevant to this action are available
for public Inspection during normal business hours
at fFPA Regional Office address]; [State address];
flora! agency address]; Public Information Reference
Unit# Environmental Protection Agency* 401 M Street*
S.W.* Washington* D.C. 20460; Office of the Federal
Register* 1100 L Street* N.W.* Room 8301* Washington*
D.C.
7. FOR FURTHER INFORMATION CONTACT
Does this caption Include:
A. Name of contact?
B. Commercial and FTS telephone number?
A
-------
FEDERAL REGISTER FOFMAT UicCKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52* 62 AND 81
Item Required
Provided
Yes No N/A
Headquarters* Comments
8. SlfPLEHENTAHY INF0CT4ATIQM
A. Does this section present the regulatory
history of the final rule* Including
background Information and specific detail
necessary to explain the basis and purpose
of a final rule?
B. (1) Does this section Include a response
to each significant comment submitted as a
written or oral presentation during the
consent period?
(11) If not* were responses placed in a
docket and referenced In the document?
C. For a Part 81 action* Is the State's
submittal referred to as a "request*"
rather than a SIP revision?
D. For a Part 81 action* 1s (are) the
county(s) Identified?
9. FINAL ACTION
Does this section Include a summary of
exactly what EPA Intends or what position
EPA Is taking?
NOTEi If this Is a Direct Final Rule* Is
the following reg flex language added?
"Under 5 U.S.C. Section 605(b)* I certify
that this SIP revision will not have a
significant economic Inpact on a substantial
* fcer of small entitles (see 46 FR 8709).n
-------
FEDERAL REGISTER I OHMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52* 62 AND 81
Providari
Item Required Yes No N/A Headquarters' Comments
10. FXFCUTIVE ORDER 179Q1
A. For SIP actions that oust undergo 0MB
review* Is the following language Included?
"Under Executive Order 12291# this
action Is not "Major." It has been
submitted to the Office of Management and
Budget (0MB) for review."
B. For SIP actions that are exempt from 0MB
review* Is the following language
Included?
"The Office of Management and Budget
has exempted this rule from the
requirements of Section 3 of Executive
Order 12291."
U. PETITION LANGUAGE
Does the final rule have the following
petition language?
"Under Section 307(b)(1) of the Act*
petitions for Judicial review of this action
must be filed 1n the United States Court of
Appeals*for the appropriate circuit by (60 days
from date of publication). This action may not
be challenged later In proceedings to enforce
Its requirements. (See Section 307(b)(2).)n
6
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52* 62 AM) 81
Provided
I tea Required Yes No N/A Headquarters* Comments
12. LIST OF SUBJECTS IN 40 CFR PART
A. Is a 11st of thesaurus terns Included
for each CFR Part affected by the
docuaent?
B. Are the teres presented In alphabetical
order* separated by commas* and Is the
first word of each tern capitalized?
For Part S2 actions, choose the
appropriate terms from the following
list: Air pollution control* Carbon
monoxide* Hydrocarbons* Incorporation by
reference* Intergovernmental relations*
Lead* Nitrogen dioxide* Ozone* Particulate
matter* Reporting and recordkeeping
requirements* Sulfur dioxide.
For Part 62 actions, choose the
appropriate terms from the following
list: Administrative practice and
procedure* Air pollution control*
Aluminum* Fertilizers* Fluoride*
Intergovernmental relations* Paper
and paper products industry* Phosphate*
Reporting and recordkeeping requirements*
Sulfuric acid plants* Sulfuric oxides.
-------
FEDERAL REGISTER FORMAi CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52* 62 AND 81
Item Required
Provided
Yes No N/A
Headquarters' Comments
For Part B1 actions, the following terms
should be Included: Air pollution control*
National Parks* Wilderness areas.
13. INCORPORATION BY REFERENCE (IBR) CERTIFICATION
For Part 52 approval actions* Is the following
language present?
"NOTE: Incorporation by reference of the
State Implementation Plan for the State of
was approved by the Director of
the Federal Register on July 1* 1982."
14. DATE AM SIGNATURE
A. Does the last page of the preamble
Include a date line?
B. Does the last page of the preamble
Include a signature line?
C. Does the word "Administrator" appear
under the signature line?
D. Does some substantive language from
the preamble (not Just thesaurus
terms and IBR certification) appear
on the date and signature page?
8
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52* 62 AM) 81
Provided
Itea Required Yes No N/A Headquarters* Comments
15. RULEMAKING PAGE
A. For Part S2 actions, does the rulemaking
page contain the following Information?
Part 52 of Chapter I* Title 40 of
the Code of Federal Regulations Is
amended as follows:
SUBPART - [STATE]
1. The authority citation for
Part 52 continues to read as
follows:
AUTHORITY: 42 U.S.C. 7401-7642
2. Section 52. Is amended
by adding (removing* revising
or redesignating* etc.)...
S 52. _____ Identification of
Plan
• I I « • «
(c) * •
(Unique ' -viPon Number) Description
of revls
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52, 62 AND 81
Provldftd
Item Required Yes No N/A Headquarters' Comments
(1) Incorporation by reference
(A) Description of what Is
Incorporated by reference with
corresponding dates
(11) Additional material
(A) Description of additional
material
3. 5 52. [Removed and
Reserved]
10
-------
FEDERAL REGISTER FORMAT CHECKLIST FOR FINAL RULES
UNDER 40 CFR PARTS 52, 62 AND 81
Provided
Item Required Yes No N/A Headquarters' Comments
15.B. For Part 62 actions, does the rulemaking
page contain the following Information?
Part 62 of Chapter I* Title 40 of
the Code of Federal Regulations Is
amended as follows:
SUBPART - rSTATE!
1. The authority citation for
Part 62 continues to read as
follows:
AUTHORITY: 42 U.S.C. 7401-7642
2. Section 62. Is amended
by adding (removing* revising*
or redesignating# etc.)...
S 62. Idant 1 fIcation of Plan
• *««««
(Unique Raw<«Hnn Number) Description
of revision.
II
-------
STATE:
LOG SHEET FOR TRACKING SIP SUBMITTALS IN SIPTRAX2
STAFF MEMBERS
SUBMITTAL NAMES
SUB. DATE
DATE RECEIVED
REGION IV DOCKET NUMBER
COMPLETENESS DETERMINATION
COMPLETE
INCOMPLETE
DATE STATE NOTIFIED
DATE SIP ROUTED FOR CONCURRENCE
TABLE
1
2
3
LETTER NOTICE
DF
SEQUENTIAL PROCESSING
OTHER
A. DATE PRMN ROUTED FOR CONCURRENCE:
DATE RA SIGN OFF FOR TABLES 1 AND 3:
DATE SENT TO HQ FOR 30 DAY REVIEW FOR TABLE 2:
DATE RA SIGN OFF ON TABLE 2:
DATE PRMN TO HQ FOR PUB. (TAB. 2 & 3) OR HQ REVIEW (TAB. 1):
OAQPS NUMBER FOR TABLES 1 & 2:
DATE OF PUBLICATION OF PROPOSAL: AT FR
B. DATE FRN ROUTED FOR CONCURRENCE:
DATE RA SIGN OFF FOR TABLES 1 AND 3:
DATE SENT TO HQ FOR 30 DAY REVIEW FOR TABLE 2:
DATE RA SIGN OFF ON TABLE 2*
DATE FRN TO HQ FOR PUB. (TAB. 2 & 3) OR FOR REVIEW (TAB. 1):
OAQPS NUMBER FOR TABLES 1 & 2:
DATE OF PUBLICATION OF FINAL NOTICE: AT FR
boilerplate: "frreview"
-------
ROUTING OF CONCURRENCE FOR TABLE 2 SIPs
ORIGINATOR
UNIT CHIEF
THEN ROUTE FOR CONCURRENCE TO OTHER OFFICES
WHEN CONCURRENCE RECEIVED:
ORIGINATOR
UNIT CHIEF
DICK SCHUTT
SECTION CHIEF
BRUCE MILLER
OAQPS FOR HQ REVIEW (PHYLLIS WRIGHT)
AT END OF 30 DAYS IF NO CHANGES
DICK GREEN
WINSTON SMITH
JULIA MOONEY
GREER TIDWELL
ORIGINATOR TO MAKE NECESSARY COPIES
DICK SCHUTT
SEND TO HQ
AT END OF 30 DAYS IF CHANGES
ORIGINATOR
UNIT CHIEF
DICK SCHUTT
SECTION CHIEF
BRUCE MILLER
DICK GREEN
WINSTON SMITH
JULIA MOONEY
GREER TIDWELL
ORIGINATOR TO MAKE NECESSARY COPIES
DICK SCHUTT
TYPESETTING FORMS ARE ROUTED TO:
DICK GREEN
WINSTON SMITH
AMANDA BAUGH (FINANCE)
ORIGINATOR
-------
ROUTING OF CORRESPONDENCE
TABLE 1 AND TABLE 3
ORIGINATOR
UNIT CHIEF
THEN ROUTE FOR CONCURRENCE TO OTHER OFFICES
WHEN CONCURRENCE RECEIVED:
ORIGINATOR
UNIT CHIEF
DICK SCHUTT
SECTION CHIEF
BRUCE MILLER
DICK GREEN
WINSTON SMITH
JULIA MOONEY
GREER TIDWELL
ORIGINATOR TO MAKE NECESSARY COPIES
DICK SCHUTT
THEN SEND TO HQ
-------
Sample completeness letter for a submittal being processed via
sequential rulemaking (traditional or direct final) and for the
formal submittal of a revision for which EPA published a notice
of proposed rulemaking by parallel processing.
(Date)
ADDRESS OF STATE OFFICIAL
Dear Mr./Ms/ Title (Name of state official):
On (DATE), we received your request to amend the (NAME OF
STATE) State Implementation Plan (SIP). We have determined that
the submittal is administratively and technically complete, and
are reviewing it to prepare a (NOTICE OF PROPOSED
RULEMAKING/NOTICE OF FINAL RULEMAKING). We expect to forward
that notice to (THE OFFICE OF THE FEDERAL REGISTER B7
APPROXIMATELY [date] FOR PUBLICATION. / EPA HEADQUARTERS BY
APPROXIMATELY [date] FOR REVIEW.)
(NAME OF REGIONAL STAFF PERSON ASSIGNED TO SIP REVISION) is
the principal contact for this rulemaking. If you have any
questions please contact (HIM/HER) at 404/347-2864.
Sincerely yours,
Winston A. Smith, Director
Air, Pesticides & Toxics Management Division
Note: If an NPR has been prepared via parallel processing, it
is advisable to provide its Federal Register date and citation
or to explain that preparation of the final rulemaking notice
must wait until the NPR is published and the public comment
period has closed.
-------
Sample letter for a request for parallel processing. To be used
for a submittal adequate to initiate the federal rulemaking
approval process for a draft/proposed State revision by
preparing an NPR.
(DATE)
(ADDRESS OF STATE OFFICIAL)
Dear Mr./Ms./Title (NAME OF STATE OFFICIAL)
On (DATE), we received your request that we parallel process
approval of draft/proposed (REVISED/NEW REGULATION, STATE ORDER,
PERMIT) as a revision to the (NAME OF STATE) State
Implementation Plan (SIP). We have determined that your request
included the information necessary for us to initiate the
federal rulemaking process to take action on the revision. We
are reviewing the submission to prepare a Notice of Proposed
Rulemaking (NPR) which we expect to forward to (THE OFFICE OF
THE FEDERAL REGISTER BY APPROXIMATELY [date] FOR PUBLICATION/EPA
HEADQUARTERS BY APPROXIMATELY [date] FOR REVIEW.)
Please be advised that if the revision as finally
(ADDOPTED/ISSUED) is substantially different from the
draft/proposal you have submitted for parallel processing (OTHER
THAN AS SPECIFIED/REQUESTED IN EPA'S NPR ), we shall have to
withdraw the NPR and publish a second NPR. To avoid this series
of events, please inform us immediately if in the course of your
(ADOPTION/ISSUANCE) process the proposed revision is changed.
After the revision is formally (ADOPTED/ISSUED) in
accordance with all applicable (NAME OF STATE) procedures, your
agency must submit it as a formal SIP revison. That formal
submittal must be administratively and technically complete in
order for EPA to complete the federal rulemaking process on the
SIP revision.
The principal contact on this revision is (NAME OF REGIONAL
STAFF PERSON). If you have any questions, please contact
(HIM/HER) at 404/347-2864.
Sincerly yours,
Winston A. Smith, Director
Air, Pesticides, & Toxics Management Division
*Note: If a request for parallel processing is submitte, and
EPA has comments requiring addition/minor changes to the
submittal in order to approve it, those changes can be stated in
the NPR. This is advisable only when the State has agreed to
make those additions/changes in the formal submittal.
-------
Sample letter for a formal submittal found to be incomplete. To
be used for all formally submitted SIP revision requests
including those for which an NPR has been published via parallel
processing.
(DATE)
ADDRESS OF STATE OFFICIAL
Dear Mr./Ms/ Title (Name of state official):
On (DATE), we received revisions to the (NAME OF STATE)
State Implementation Plan (SIP) from your agency. That revision
involves (BRIEF CHARACTERIZATION/IDENTIFICATION OF THE
REVISION).
We have found that the submittal is incomplete and
consequently we cannot process it as a revision to your SIP.
The information we need in order to determine the submittal
complete and initiate our rulemaking process is/are:
(STATE WHAT IS NEEDED ACCORDING TO EPA'S CHECKLIST)
Because the (DATE) submittal is incomplete, we are returning
it to your agency. If you have any questions, please contact
(NAME OF REGIONAL STAFF PERSON) at 404/347-2864.
Sincerely yours,
Winston A. Smith, Director
Air, Pesticides 6 Toxics Management Division
-------
Sample letter for an incomplete request for parallel processing.
(DATE)
ADDRESS OF STATE OFFICIAL
Dear Mr./Ms/ Title (Name of state official):
On (DATE), we received your request that we parallel process
approval of draft/proposed (REVISED/NEW REGULATION, STATE ORDER,
PERMIT) as a revision to the (NAME OF STATE) State
Implementation Plan (SIP). We have found that the request
does not contain sufficient information for us to determine
whether it would be appropriate for us to initiate the federal
rulemaking process. EPA requires the following additional
information in order to determine if we should parallel process
your draft/proposed revision:
(LIST THE ADDITIONAL INFORMATION REQUIRED IN ORDER TO DETERMINE
IF THE STATE'S REQUEST FOR PARALLEL PROCESSING SHOULD BE
GRANTED.) CHOOSE ONE OF THE FOLLOWING:
Therefore, we are returning the material submitted by your
agency on (DATE OF INCOMPLETE REQUEST). If you have any
questions regarding the additional information specified above,
please contact (NAME OF REGIONAL STAFF PERSON) at 404/347-2864.
Because your staff has indicated that the additional
information needed can be readily prepared to supplement you
(DATE OF REQUEST) request for parallel processing, we are not
returning the information received to date. Please submit the
additional information specified above by (DATE). Upon receipt
of all the necessary information, we will consider your
submittal complete and therefore sufficient to initate the
Federal rulemaking process. We will then review the completed
submittal and inform your agency whether we can grant your
request to parallel process the draft/proposed revision.
Sincerely yours,
Winston A. Smith, Director
Air, Pesticides & Toxics Management Division
Note: This letter does not say that if the additional
information is received, EPA will initiat ethe federal
rulemaking process. The additonal information/material received
may not be approvable. Parallel processing is used to propose
approval of a State's proposed revision.
-------
X1*0 Sf4V
cr
issszj
%. ,c
< OBO14
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: Pre-hearing submittal of
FROM: Stuart Perry* Chief
Southern Planning Unit
So. Planning & Air Toxics Section
Air Programs Branch
TO: R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a prehaearing submittal for
proposed regulations were submitted to EPA on
The public hearing is scheduled for
provide me your comments on this submittal by COB
Questions on this package may be addressed to
The
Therefore, please
at
ext. 2864. If; you need an extension of this date, please contact the
same person as-soon as you discover an extension is needed. If you
have no comments on the submittal, you may so indicate below, and
return this sheet to me.
No Comments:
Signed
Printed on Recycled Paper
-------
cr <\r
issz
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: Pre-hearing Submittal of
Kay Prince, Chief
Northern Planning Unit
No. Planning/Grants/Monitoring Section
Air Programs Branch
R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a prehaearing submittal for . The
proposed regulations were submitted to EPA on .
The public hearing is scheduled for . Therefore, please
provide me your comments on this submittal by COB
Questions on this package may be addressed to at
ext. 2864. If you need an extension of this date, please contact the
same person as soon as you discover an extension is needed. If you
have no comments on the submittal, you may so indicate below, and
return this sheet to me.
No Comments:
FROM:
TO:
Printed on Recycled Paper
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: SUBMITTAL OF
FROM: Kay Prince, Chief
Northern Planning Unit
No. Planning/Grants/Monitoring Section
Air Programs Branch
TO: R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a
which was/were submitted to EPA on . Your staff
has previously reviewed this package, prior to the public hearing
in , and either had:
1.) No comments; or
2.) Comments which should be reviewed in this package. A copy
of your comments is attached.
Since your staff has seen this package before, we request that they
submit any comments to by COB , or communicate
your position by phone (x2864). Please do not use the interoffice
mail. If; you cannot bring your response to us, we will be glad to
pick it ujp;
No Comments:
Attachment
Printed on Recycled Paper
-------
sr4,
or
| 3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V P«o^ region IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: SUBMITTAL OF
FROM: Stuart Perry, Chief
Southern Planning Unit
So. Planning & Air Toxics Section
Air Programs Branch
TO: R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a
which was/were submitted to EPA on . Your staff
has previously reviewed this package, prior to the public hearing
in , and either had:
1.) No comments; or
2.) Comments which should be reviewed in this package. A copy
of your comments is attached.
Since your staff has seen this package before, we request that they
submit any comments to by COB , or communicate
your position by phone (x2864). Please do not use the interoffice
mail. If you cannot bring your response to us, we will be glad to
pick it up.
No Comments:
Signed
Attachment
Printed on Recycled Paoer
-------
o* %
isss
4f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLANO STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: SUBMITTAL OF
FROM:
TO!
Stuart Perry/ Chief
Southern Planning Unit
So. Planning & Air Toxics Section
Air Programs Branch
R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a
which was/were submitted to EPA on
provide me your comments on this submittal by COB
Questions on this package may be addressed to
Please
at
ext. 2864. If vou need an extension of this date, please contact the
same person aff soon as you discover an extension is needed. If you
have no comments on the submittal, you may so indicate below, and
return this sheet to me.
No Comments:
Signed
Printed on Recycled P.tper
-------
,»
cr
| ^22^ ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ <*o^ REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: SUBMITTAL OF
Kay Prince, Chief
Northern Planning Unit
No. Planning/Grants/Monitoring Section
Air Programs Branch
R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a
which was/were submitted to EPA on . Please
provide me your comments on this submittal by COB
Questions on this package may be addressed to at
ext. 2864. If you need an extension of this date, please contact the
same person as soon as you discover an extension is needed. If you
have no comments on the submittal, you may so indicate below, and
return this sheet to me.
No Comments:
FROM:
TO:
Printed on Recycled °.iuer
-------
Sr«v
_ *\T
ISB,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: Concurrence/Nonconcurrence on Federal Register Notice:
FROM: Kay Prince, Chief
Northern Planning Unit
No. Planning/Grants/Monitoring Section
Air Programs Branch
TO: R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a Federal Register notice and Technical Support
Document for your review and concurrence/nonconcurrence. Please
indicate your position in the space provided below and return this
sheet by COB to or
communicate your position by phone (X-2864).
Please do not use interoffice mail. If you cannot bring your
concurrence/noncurrence to us, we will be glad to pick it up. Thank
you for your cooperation.
Attachment
Concur
Nonconcur
Signature Date:
Printed on Recyclea ~.ioer
-------
nT *\r
1®
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT: Concurrence/Nonconcurrence on Federal Register Notice:
FROM: Stuart Perry, Chief
Southern Planning Unit
So. Planning & Air Toxics Section
Air Programs Branch
TO: R. Douglas Neeley, Chief
Air Compliance Section
Air Enforcement Branch
Sally L. Shaver, Chief
Asbestos & Source Evaluation Section
Air Enforcement Branch
William D. Anderson, Chief
Air, Water, Toxics & General Law Branch
Office of Regional Counsel
Attached is a copy of a Federal Register notice and Technical Support
Document for your review and concurrence/nonconcurrence. Please
indicate your position in the space provided below and return this
sheet by COB to or
communicate your position by phone (X-2864).
Please do not use interoffice mail. If you cannot bring your
concurrence/noncurrence to us, we will be glad to pick it up. Thank
you for your cooperation.
Attachment
Concur
Nonconcur
Signature Date:
Printed on Recyclt'a r.n>L>r
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE:
SUBJECT:
FROM:
TO: Brenda Johnson
Meterolgist
Please review the above referenced modeling analysis, and
provide comment by .
Additional information/instructions are as follows:
Printed on Recycled Paper
-------
H. Communications Strategy
When a SIP package involves issues that are sensitive, potentially
controversial (particularly if a disapproval is involved), or of special
public interest, a Communications Strategy is required. This strategy makes
explicit who will make what kind of announcement to the public and elected
officials when the notice is ready to be published. Types of strategies can
range from a low-key Regional Office-issued press release to one where the
Administrator and the Assistant Administrator for the Office of Air and
Radiation each make telephone calls (senators, governors, mayors) in a
specific order at a specific time. (See example Comrounications Strategy in
Appendix.)
The Headquarters Office of Public Affairs holds weekly conference calls
with the Regional Office Public Affairs staff. Among the items for discussion
are Communications Strategy candidates. Program office liaison with the
Public Affairs staff is Important to assure that all potentially sensitive
actions are flagged and information pertaining to the effect of the
publication of EPA's action is presented'to all relevant members of the
public.
Once a decision is made to develop a Communications Strategy, the
Regional Office program staff should make recommendations to the Regional
Office Public Affairs Office about the level and quality of attention the
package should receive.
The goal of a Communications Strategy is both to notify those who have an
interest in the publication of EPA action as well as to maximize the good news
aspect of an EPA rulemaking. Sometimes there are indirect interests. The
announcement of an approval of a conversion to coal in a northern State may be
as important to a coal producing State as to the State that submitted the
revision.
The Communications Strategy should be forwarded with Table 1 packages
that are sent to Phyllis Wright. The Regional Office recommendations will be
sent by the Air Quality Management Division (AQMD) to the Headquarters Public
Affairs Office at the same time the Federal Register notice is undergoing
Headquarters staff-level review. The Regional Office has the responsibility
to forward a copy of all Table 2 and 3 communications strategies to the
Headquarters Public Affairs Office at the same time that the FR notice is
undergoing review at the Regional Office. This should allow Communications
Strategy development to be completed early enough so it will not hold up the
package's processing.
The Office of International Activities (OIA) has advised that the
Canadian Embassy oust be Informed of all SO? SIP revisions and SO?
redes1gnations before publication 1n the Feaeral Register. Therefore a
Communications Strategy must be submitted with all proposed and final SOg
rulemaking actions. The AQMD will send a copy of the Communications Strategy
to the OIA before publication of Table 1 SIP actions. The Regional Office has
the responsibility to send a copy of the communications strategy to the OIA
before publication of Table 2 and 3 SIP actions. The OIA in turn will send a
30
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMMUNICATIONS STRATEGY FOR A SIP ACTION
IN THE STATE OF WASHINGTON ,I/a4 j
OAQPS f
EXPECTED DATE OF ACTION: July 30, 1990
NATURE OF ACTION & BRIEF BACKGROUND;
ACTION: Approval of a technical amendment/to the statewide
emission limit for sulfur dioxide which clarifies that the
averaging time is to be 60 minutes. Also a SIP call under
Section 110(a)(2)(H) to revise an exception provision.
BACKGROUND: In 1983 the Washington Department of Ecology revised
its sulfur dioxide regulations to add specific language
indicating that the emission limitation was to be determined on a
60 minute average. A provision in the regulations which provides
the Director authority to grant exceptions to the general
emission limit does not satisfy Clean Air Act requirements for
SIP revisions.
INTERESTED GROUPS
X State/Local Officials Environmental Groups Press
X Industry Congressional X Other
TYPE OF COMMUNICATION STRATEGY RECOMMENDED:
X Low Visibility Medium High
No Plan Recommended (Please justify briefly)
SPECIFIC ACTIVITIES RECOMMENDED:
Press Release
Telephone Notifications to Selected Groups/Individuals
X Letters to Selected Groups/Individuals
Briefings for Selected Groups
Others (specify)
32
-------
Instructions for SF-83. EPA 3720-11. and FPA ?3A0-1S
All three forms are self-explanatory, however, examples of the forms
follow. Below are detailed Instructions for the SF-83.
Request for 0MB Review fSF-831
Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7
Section 8
- Classification
- Stage of
development
- Type of review
requested
Section 9
self-explanatory
"2060°
self-explanatory
self-explanatory
If more than one legal authority 1s Involved,
cite principal one
self-explanatory
"None"
All SIP actions ar "nonmajor"
self-explanatory
Host are "standard"
If more than one section is affected, cite
principal one
Section 10 No
Section 11 N/A
Signature of Program Official -- The Branch Chief is authorized to sign.
Signature of Authorized Regulatory Contact -- The RMS signs here
Federalism Review fEPA 3720-11)
An example of a form that 1s filled out follows.
FR Typesetting Request (EPA 2340-15)
An example of a form that Is filled out follows.
33
-------
Request for 0MB Review
term. Oo not um It* uim SF 83
1 rwiw and approval under
ortant
vJ i~truetiorts before i
ith an Exeeutivt 0War
A Reduction Act
v ,ti questions in Part L If this request is for review under E.O.
31. complete Part U and si(n the regulatory certification. It this
est a for approval under the Paperwork Reduction Act and 5 CFR
3. slup Part U. com plate Part III and sign the paperwork certification.
SendMae copies of this form, the material to be reviewed,
k—three copies of the supporting statement, to:
Offica of Information and Regulatory Attain
Office of Management and Budget
Attention: Docket Library. Room 3201
Washington, DC 20503
!T 1.—Complete This Part for All Requests.
=pa/tmenvageney and Bureau/office ongmaong reqwat
EPA, Region IV, Afr Programs Branch
2>Aeencycooe
2 0 6 0
>me of person wne an pest answer questions regaromg tns request
01ck Schutt
Teiepnone numper
( FTS j 257-2864
Proposed Approval of Raleigh's I/M Program
gal autnority for information collection orruie(czra Umtto SUtat CoO*,Pu&K Law, or Exacvtnm Qre*r)
42 ua; 7401-7642
¦acted pwMc (ehtd»BO»Mttpfity)
~ Individuals or households
1—1 or local governments
3 D Perms
4 O Busjntnet or ottwf for-profit
5 O Federal agencies or employees
6 Q Nonprofit institutions
7 Q Small businesses or organiatians
—Complete This Part Only If the Request Is for 0MB Review Under Executive Order 12291
gutstion identifier Number (RtN)
.. __ ~~ or. None assigned 13
seel tuomiuaon (cneciioneinaecncatcgao?
~
X3 Nonmajor
Stage ef development
1 KJ Proposed or draft
2 Q Fetal or iitforim final, with nriirnmpiail
3 O Final or intarim final, without pricr prepcad
Type i/nriM requested
1 (^Standard
2 O Pending
3 Q Emergency
4 Q Statutory or judicial deadline
:R section affected
40 e« Part 52
toes mis regulation eonteet reporting or lecarOeeping requirements that require 0MB approval under ew Paperwork Reduction Act
nd S Cf R1320? ~ Y«
'amejormie. a there a laguiatoq impact analysis atftdiedT . . . . H/fr X D Yes 2 On
f'No." did QMS wiivt the anaWsisf 1 D Yea *Qn
tficatlon for Regulatory Submissions
luornittiAg this request for OMB rewew, the aidhorted regulatory contact and the program official certify that the requirements of E.0.12291 and any apofeasie
i directives have peon complied »nth. '
iture of progranvatfcial
A1r Branch Chlet
Oaio
•uire 0f autnoroad reguiatpry contact
Vickie Reed's Office signs here
Bete
Of.-
ou* •oitiww msMta
7V»0^0 63« <034
ss-ics
34
tlwi*w«r«m»aJC» 94
Hiii nrrni irr ft"
SCT» 1320 w* CO 122*
-------
United Slam Environmental Proiacucm AMncy
WMftlngton, OC 204«0
Federalism Review*
Nam* of Action —————————————————.
For example, "Proposed disapproval of Raleigh I/M Program"
im Off»o» ~~
Air Programs Branch, EPA, Region IV
We have reviewed this action for federalism effects. Our finding is as follows:
[J] Nol^bmM^FKl«3Dsn..»«^l.na>nWM
I | Federalism assessment is not required Action b mandated by statute (sxpiatn bdow).
I | Federalism assessment b not required- Action b necessary to carry out statutory requirement (explain belo*^.
Q] FMtwlum ass«sm« to r«?*M (atactwcf).
Explanation
•See •Guidelines for Implementing Executive Order t26i2: Federalism.'
PA form 3730-11 (1-M)
35
-------
FEDERAL REGISTER TYPESETTING REQUEST
1. TITL*
Proposed SIP Revision Approving the Raleigh I/M Program
MITTINO ACTIVITY
Air Programs Branch, EPA, Region IV
Raouaator: ComoUta Itam 1. J. 7.
a. 9, ia 11. 13 and 13. Rataln
cooy numtwf T m aibmit at*
Mam wrtfi manuieHpt cooy to
Via Ho. FmOartl Raglitar Offlca.
HQ Padarat Ni«lmr Offtoa: Com-
plata ham* 3. 4, S and 6. Qgaiin
eoov numMr • ana •ubmli i
to Hq. Ptlnttn* Managamani
X ASSIGNED FML NUMItR namtc dmwnm for tMxn/i
Vickie Reed will assign an FRL number
4. OPEN REQUISITION NUMIIfl
Vickie Reed will fill In
6. BILLING coos
Vickie Reed w1T1 fill 1n
«. forwarded to gsa. nars - signature
Vickie Reed will fill 1n
OATI
7. NUMBER OP MANUSCRIPT PAOBS
10
B. ESTIMATED NUMBER OP COLUMNS
5
9. ESTIMATED COST
$625.00
10. FINANCIAL DATA
PMO USE
(a)
O
T
(b)
DOCUMENT
CONTROL NO.
(e)
ACCOUNT NO.
OATI
(C) TELEPHONE NUMBER
lb) BATE
(e) TBLSPHONE NUMBER
IX PUNOS ARE AVAILABLE (CommtammtOmt)
Regional Office Signature
Estimate that 2 double spaced pages equal 1 column
Estimate cost Is $125.00 per column.
Regional Office fills 1n Document Control No., Account No., and Object Class.
r-
\-T
CPA Form 2340-18 inn. 1431 PREVIOUS EDITION MAY BE USED UNTIL SUPPLY IS EXHAUSTED
36
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FEDERAL REGISTER DOCUMENT CHECKLIST
The following checklist is designed to help you prepare any rule
or rule-related document to be published in the Federal Register.
Each time you submit a document, for publication in the Federal
Register* please match it with this checklist to make sure the
requirements have been met. This will aid you in preparing your
package for submittal to the Federal Register Office.
Executive Order 12291
Have you included a statement i-n youT preamble indicating if
your document is "major" or not under E.O. 12291 and why? Yes No
Have you included a statement in your preamble stating that the
document was sent to the Office of Management and Budget under
E.O. 12291? Yes No
If this is a major rule have you included 3 copies of the RIA
in the package and a statement in the preamble concerning
its submission to OMB? Yes No
Have you submitted the S.F. 83 to be sent to OMB? Yes No
The Regulatory Flexiblity Act
Have you included language in your preamble which certifies if
your action has a "significant economic impact on a substantial
number of small entities"? Yes No
Does this certification statement explain why and how
yo'i made this decision? Yes No
If you cannot so certifyr have you included the Regulatory
Flexibility Analysis or a summary of the analysis in the
preamble? Yes No
EPA Reguirements
it jour doeunent must be signed by the Administrator have
you Attached the RECUSAL form? Yes No
Uavt» you included a S.P. 2340-15 (Federal Register
Yy^d«etting Form) containing the current account numbers? Yes No
Ha^e "ou included the Original and 3 copies of those documents
not. signed by the Administrator, and the Original and 4 copies Yes No
documents signed by the Administrator?
-------
Paperwork Reduction Act
If your regulation contains reporting and recordkeeping
requirements have you inserted the required language in the
preamble and the regulatory text? Yes No
Federal Register Requirements
Is your document classified correctly— if your action is
rule-related is it classified either as a proposed rule or a
final rule? Yes No
Does your document include the required preamble elements?
(AGENCY, ACTION, SUMMARY, DATES, ADDRESSES, FOR FURTHER
INFORMATION CONTACT, SUPPLEMENTARY INFORMATION) Yes No
Does your Summary answer the three required questions?
(What you're doing, Why you're doing it and the Intended
Effect of the action.) Yes No
Have you included your Thesaurus Terms at the end of
Supplementary Information? Yes No
Is your Amendatory language correctly worded? For example,
have you explained clearly if you are adding, revising, or
removing material from the CFR? Yes No
Have you included the Table of Contents for each whole
CFR subpart or part set out? Does it match the table
of contents? Yes No
Are all CFR paragraphs given a letter or number? Yes No
Is your Authority Citation included in the proper place? Yes No
Are the pages numbered consecutively at the bottom of Yes No
each page?
Are the copies sharp, clear and legible; especially Yes No
illustrations?
For SIPs, NSPS and NESHAPS:
Have you included Incorporation By Reference material
that is complete and readable? Yes No
-------
Guidelines for Use of the Enforceability Checklist
- Each item on the checklist should be carefully scrutinized the first
time we review a SIP submittal. (Usually this will be during the
comment period on the proposed state regulation.)
It is very important to carefully review the regulations during the
ccxrenent period, because this is by far the best time to be able to
get changes made by the state. Any enforceability problems
identified should be noted in our comments to Air Programs Branch.
- The checklist should be completed during the first review. If a
checklist is not required, a form noting the reasons should be
completed instead.
- In subsequent reviews (official SIP submittal, proposed Federal
Register, final Federal Register), the checklist should be consulted
to insure that any problems identified initially have been corrected.
- A copy of the checklist (with changes as necessary to reflect
corrections to the original package) is to be submitted with our
comments on the final Federal Register notice.
- A copy of the checklist(s), comment letters and the review packages
should be filed. After 2 years, only the ccrment letters and
checklist need to be retained.
-------
Other Points
- Checklists are not required if the official SIP revision was
submitted prior to November 7, 1987. (Yes, there are still a few
out there.)
If a package does not contain new or revised regulations, a
checklist is not normally required. In general, only those
regulations which are anended need to be reviewed. However, if the
portions of a regulation which have not been amended have enforceability
problsns, they should be described in our comment letter. Whether
such problems will have to be fixed prior to approving the revised
regulation will be determined after consultation with the Air programs
Branch.
- For VOC regulations, the May 25, 1988, "VOC SIP Deviation" handbook
should be used as a guide to identify enforceability (and other) problems.
-------
Regulation or Federal Register Package ___
An Enforceability Checklist was not completed for this package because:
The package contains no regulations.
The package contains regulations which are not revised from those
in the already approved SIP.
The SIP revision was submitted prior to November 7, 1987.
Other (explain)
Reviewer
Date
-------
1222/
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
SEP 2 3 1987
MEMORANDUM
SUBJECT: Review of State Implementation Plans and Revisions
for Enforceability and Legal Sufficiency
FROM: J. Craig Potter
Assistant Administrator
for Air and Radiation
Thomas L.
Assistant
Adams Jr.
Administ rator
for
W
Enforcement
and Compliance Monitoring
Francis S. Blak
General Counsel
Office of General Counsel
TO:
Addressees
One critical function that your offices perform is to
assure that regulations developed for stationary sources
by the States under the Clean Air Act are enforceable and
legally sufficient. Our regulations require that the state
implementation plans ("SIPs") must "be adopted as rules and
regulations enforceable (emphasis added) by the State agency"
(40 C.F.R. S51.281 (1987)). We are concerned that review of
SIPs for enforceability has not been receiving adequate atten-
tion. The Agency sometimes experiences difficulties in its
efforts to enforce the current rules because they are not
sufficiently clear. The Regional Offices are at the forefront
of the federal SIP approval process. The purpose of this
memorandum is to remind you of the importance of doing the
review necessary to assure that all SIP plans and revisions
are enforceable and in conformance with the Act. Please do not
forward for approval SIPs which fail to satisfy the enforce-
ability criteria in this memorandum.
Background
Recent information indicates that the attention being paid
to SIP approvals is declining, particularly for enforceability.
The Office of General Counsel reviews regulations as to their
adequacy under applicable law and Agency policy, but not for
snforceability. This void is not being filled by other offices.
Dften, the problems with enforcing the regulations are not
immediately obvious and only become known where a case or issue
focuses on the particular regulation. At the October 1986
-------
-2-
Annapolis meeting of Air Program Directors and Regional Counsel
Air Branch Chiefs, a number of problems in recent enforcement
cases due to difficulty in interpreting and enforcing regula-
tions were discussed. With the recent work being done to
address the nonattainment problem, it is even more critical
that regulations be clear and enforceable.
It is appropriate that the Regional air compliance staff
and the Regional Counsel's Office have primary responsibility
for this enforceability review because they have the most direct
experience in compliance and rule interpretation. They also
have resources allocated through their workload models specifi-
cally for SIP review.
Timing of Review
The Regions should try to review developing State SIP
provisions prior to final approval by the State, when the
provisions are at their most malleable stage. In line with
this, each Region should provide its States with a copy of the
implementing guidance associated with this memorandum and a
briefing which outlines the enforceability requirements for new
SIP submittals. If we provide the States with more explicit
guidance and make earlier contacts to resolve problems, we can
avoid instances where EPA is pressured to settle for a flawed
regulation only because it is better than its predecessor.
Enforceability Criteria
Your review should ensure that the rules in question are
clearly worded and explicit in their applicability to the
regulated sources. Vague, poorly defined rules must become a
thing of the past. SIP regulations that deviate from this
policy are to be disapproved pursuant to Section 110(a) of the
Clean Air Act, with appropriate references in the C.F.R. Speci-
fically, we are concerned that the following issues be directly
addressed. The rule should be clear as to who must comply and
by what date. The effect, if any, of changed conditions (e.g.,
redesignation to attainment) should be set forth. The period
over which compliance is determined and the relevant test
method to be used should be explicitly noted. Provisions which
exempt facilities under certain sizes or emission levels must
identify explicitly how such size or level is determined.
Also, provisions which allow for "alternate equivalent techniques"
or "bubbles" or any other sort of variation of the normal mode
of compliance must be completely and explicitly defined and must
make clear whether or not EPA case-by-case approval is required
to make such a method of compliance federally effective.
-------
Conclusion
-3-
SIP revisions should be written clearly, with explicit
language to implement their intent. The plain language of all
rules, as well as the related Federal Register notices, should
be complete, clear and consistent with the intended purpose of
the rules. Specific review for enforceability will be a further
step in improving the overall SI? process and structure.
We have attached detailed guidance to assist you in
implementing this memorandum.
At tachment
Add ressees:
Regional Administrators
Regions I-X
Regional Counsels
Regions I-X
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
R eg i o n II
Air, Pesticides, and Toxics V.ar.areT.ent Division
Di rectors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
cc: Deputy Regional Administrators
Regions I-X
Regional Counsel
Air Contacts
Regions I-X
Air Compliance Branch Chiefs
Regions II, III, IV, V, VI, IX
Air Program Branch Chiefs
Regions I-X
Darryl Tyler, Director
Control Programs Development Division
Gerald Emison, Director
Office of Air Quality Planning ar.-i Standards
-------
-4
cc: John S.. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
Alan w. Eckert
Associate General Counsel
Air Division
Michael S. Alushin
Associate Enforcement Counsel
Air Enforcement Division
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t. v-
1 X.*"
SEP 2 3 1987
MEMORANDUM
SUBJECT:
FROM
Review of State Implementation Plans and Revisions
for Enforceability and Legal Sufficiency
Michael S. Alushin
Associate Enforcement Counsel
for Air Enforcement
ana Legal surriciency
^ y.
TO:
Alan W. Ec.kert
Associate General 'Counsel
Air and Radiation Division
John S. Seitz, Director
Stationary Source Complia
Office of Air Quality Pla
Addressees
riTTS ion
(ina and Standards
This is to provide implementing guidance on the memorandum
issued by J. Craig Potter, Thomas Adams and Francis Blake
on this date relating to review of SIP plans and revisions
for enforceability and legal sufficiency. We urge you to
provide copies of these memoranda to your State Agency Directors
ADDlicabilitv
This guidance applies to all SIP proposals which have
not completed the state or local agency legal and procedural
requirements for SIPs. For proposals that have not yet
been submitted to the Regional office for action, the state
and local agencies have forty-five (45) days from the date
of this guidance to submit such proposals for review in order
for the proposal to be considered under previous procedures.
SI? packages currently in Headquarters will undergo the usual
review but will be returned to the Regions if they contain
deficiencies which raise significant questions as to whether
the regulation would be enforceable.
Enforceability Criteria
The notion of enforceability.encompasses several concepts.
At the most basic level, a regulation must be within the statutory
authority of the promulgatingaaency. For example, some states
have statutory restrictions or prohibitions on the promulgation
regulations more restrictive than the federal counterpart.
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-2-
Although we should generally defer to a State's interpretation of
the scope of its authority, when there is real doubt we
should, at a minimum, consult the responsible State Attorney to
be certain the issue has been considered and resolved. When
appropriate, an opinion letter should be obtained from the
State Attorney General.
Please ensure that the following additional issues are
directly addressed.
° Applicability
It should be clear as to whom the regulation applies. The
SIP should include a description of the types of affected
facilities. The rule should also state in which areas the rule
applies (entire state, specific counties, nonattainment, etc.)
and advise the reader that State administrative changes require
a formal SIP revision. Also, some regulations might require a
certain percentage reduction from sources. The regulation
should be clear as to how the baseline from which such a reduction
is to be accomplished is set. In some cases it may be necessary
for enforcement purposes and independent of Clean Air Act
requirements for the SIP to include an inventory of allowable
and actual emissions from sources in the affected categories in
order to set the above baseline.
0 Time
The regulation should specify the required date of
compliance. Is it upon promulgation, or approval by EPA, or a
future date certain? Future effective dates beyond the
approved or proposed attainment date should not be allowed
unless the related emissions reductions are not needed for
attainment. Also, the regulation should specify the important
dates required of any compliance schedule which is required to
be submitted by the source to the state.
8 Effect of Changed Conditions
If changed circumstances affect an emission limit or other
requirement, the effect of changed conditions should be clearly
specified. However, you should not approve state regulations
which tie the applicability of VOC control requirements to the
nonattainment status of the area and allow for automatic nullifi-
cation of the regulations if the area is redesignated to an
attainment status. Such regulations should continue to apply
if an area is redesignated from nonattainment to attainment
status unless a new maintenance demonstration supporting a change
in the rule's applicability is submitted and approved by EPA.
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-3-
0 standard of Conduct
The regulation must be sufficiently specific so that a
source is fairly on notice as to the standard it must meet.
For example, "alternative equivalent technique" provisions
should not be approved without clarification concerning the
time period over which equivalency is measured as well as
whether the equivalency applies on a per source or per line
basis or is facility wide.
° Incorporation by Reference
Some federal regulations are inappropriate for adoption
by reference. For example, a state intending to enforce PSD
regulations adopted by reference must adopt 40 C.F.R. S52.21,
not 40 C.F.R. §51.166, as only the former is written in a form
imposing obligations on permit applicants. Even then, changes
may have to be made to take into account the difference between
the State's situation and EPA's.
0 Transfer Efficiency
Some states have attempted to provide particular VOC
sources with relaxations of compliance limits in return for
improvements in the efficiency with 'which the sources use the
pollutant producing material. Any rules allowing transfer
efficiency to be used in determining compliance must be explicit
as to when and under what circumstances a source may use improved
transfer efficiency as a substitute for meeting the SIP limit.
Such provisions must state whether EPA approval is required on
a case-by-case basis. Also, such provisions may not simply
reference the NSPS auto coating tables for the transfer
efficiency. The improvement should be demonstrated through
testing and an appropriate test method should be set forth.
Implied improvements noted by the NSPS auto coating TE
table are not to be accepted at face value.
° Compliance Periods
SIP rules should describe explicitly the compliance time
frame associated with each emission limit (e.g. instantaneous,
stack test, 3 hour average or daily). The Regions should not
assume that a lack of specificity implies instantaneous compliance
The time frame or method employed must be sufficient to protect
the standard involved.
° Equivalency Provisions and Discretionary Emission Limits
Certain provisions allow sources to comply via "bubbles"
or "alternate equivalent techniques" or through mechanisms
"as approved by the Director." These provisions must make it
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-4-
clear as to whether EPA approval of state granted alternative
compliance techniques is required on a case-by-case basis in
order for the changed mode of compliance to replace the existing
federally enforceable requirement. If EPA case-by-case approval
will not be required, then specific, objective and replicable
criteria must be set forth for determining whether the new
arrangement is truly equivalent in terms of emission rates and
ambient impact. Such procedures must be consistent with the
control levels specified in the overall SIP control strategy
anc must meet other EPA policy requirements, including the
"Emissions Trading Policy", 51 Fed. Reg. 43814 (1986), in
relevant instances.
° Recordkeeping
The SIP must state explicitly those records which sources
are required to keep to assess compliance for the time frame
specified in the rule. Records must be commensurate with regula-
tory requirements, and must be available for examination on
request. The SIP must give reporting schedules and reporting
formats. For example, these rules must require daily records
if the SI? requires daily compliance. Additionally, the record-
keeping must be required such that failure to do so would be a
separate violation in itself.
° Test Methods
Each compliance provision must list how compliance is
to be determined and the appropriate test method to be used.
The allowable averaging times should be explicit. Both the
test method and averaging times employed must be sufficient
to protect the ambient standard involved.
0 Exemptions
If sources under a certain size are exempted from control
requirements, the regulation must identify how the size of a
particular source is to be determined.
° Malfunction and Variance Provisions
Any malfunction or variance exemptions must be clear in
their substantive application and in how they are triggered.
The rule must specify what exceedances may be excused, how the
standard is to be applied, and who makes the determination.
Conclus ion
We appreciate your attention to this matter and hope
that the specific review for enforceability will be a further
step in improving the overall SIP process and structure.
To assist you, we have attached an enforceability checklist.
his checklist should be included as part of your technical
support packages in all future SIP packages.
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-5-
Please contact the appropriate staff attorney in the Office
of General Counsel or the Office of Enforcement and Compliance
Monitoring should you have any questions concerning issues of
enforceability in particular instances. Please contact Tom
Helms, OAQPS, FTS-629-5526, for other questions concerning
implementation of this guidance.
At tachment
Addressees:
Regional Administrators
Regions I-X
Regional Counsels
Regions I-X
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Di rectors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
cc: Deputy Regional Administrators
Regions I-X
Regional Counsel
Air Contacts
Regions I-X
Air Compliance Branch Chiefs
Regions II, III, IV, V, VI, IX
Air Program Branch Chiefs
Regions I-X
Darryl Tyler, Director
Control Programs Development Division
Gerald Emison, Director
Office of Air Quality Planning
and Standards
-------
(as
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAR 3 I i985
MEMORANDUM
TO:
7 1588
-------
.cei 4.b. Incorporation by Reference - Are the methods/rules
incorporated by reference in the right manner?
Where a revision incorporates EPA regulations by reference,
:he state nay need to add clarifying language to ensure that
the regulation will operate effectively at the state level,
such as changing the reviewing body designated in the regula-
tions from EPA to the state. The SIP reviewer must ensure
that all such necessary additions have been fully adopted by
the state before EPA approves an incorporation by reference.
Item 6.b. Exemptions - Is the criteria for exemption clear?
Same response as for Item l.b above.
Item 7. Malfunction Provisions
The reviewer should determine whether the revision contains
malfunction provisions. If no such provisions are present,
this item is not applicable. If the revision contains malfunc-
tion language, it must be clear and should conform to the
guidance contained in the February 15, 1983 OAR memorandum
policy on excess emissions.
Regarding your question about provisions in the existing
SIP which affect the rule being reviewed, if any part of the
existing SIP has a problem or deficiency that negatively
affects the enforceability of a proposed revision, then that
underlying, previously approved (but deficient) regulation
must be changed before the current revision can be approved.
That is, EPA cannot propose approval of a SIP revision tliat
is rendered unenforceable by a deficiency in the existing SIP.
Where the existing SIP contains minor deficiencies which
do not directly affect the enforceability of a pending SIP
revision, the Region -jnould inform the state of the deficiency
and the fact that tr\ : state should correct it in the future.
The pending SIP rev: ;i need not be held until the entire
existing SI? is full, jrrected. If, however, the pending
SIP revision restate ¦ . provision of the existing SIP which
is deficient, EPA ca.. . /t approve the deficient aspect as part
of the SIP revision. \n example would be a definition which
is deficient in some :-.*soect. If the SIP revision merely
uses the word that is poorly defined in the existing SIP, EPA
can process the revision. If, on the other hand, the revision
restates the deficient definition, EPA cannot approve the
revision until the definition as stated in the revision is
corrected.
Thank you for your interest in this matter.
cc: Air Division Directors
Regions I-X
Regional Counsel
Regions I-X
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SIP APPOVABII.ITY CHECKLIST- ENFORCEABILITY
SIP Package No. Date Rec.
Attachment
Date Due
STATE:
Subject Matter:
(Specific Provision and Description)
Enforceability Analysis Istate Submittal
EPA Requirement
Approvability (Approvable or Not)
(list responses)'
1. Applicability
a. What sources are being
regulated?
b. What are criteria for
exemption?
c. Is calculation
procedure for exemption
clearly specified?
Is emission inventory
listed in the
background document
of the.attainment
demonstration?
Clarity
Clarity
Example calculation or
clear explanation of
how to determine
exemption (line by line,
etc.)
Inventory including
allowable and actual
emissions in source
category should be
included, for enforce-
ment purposes and
independent of any Clean
Air Act requirements,
in the attainment demon-
stration if such data is
necessary for determin-
ing baselines in regula-
tor
-------
Enforceability Analysis
State Submittal
e. Is the averaging time(s)
used in the rule differ-
ent from that of the
ambient standard?
f. What are the units of
compliance (lbs VOC per
gallon of solids
applied less water,
grains per standard
cubic foot?)
g. Is bubbling or averag-
ing of any type
allowed? If yes,
state criteria.
Could a U.S. EPA
inspector independently
determine if the
criteria were met? Does
EPA have to approve
each case?
EPA Peciuirement Approvabi .1 i ty (Approvablc or Not)
The averaging time in the
rule must be consistent
with protecting the ambient
standard in question.
Normally, it should be equal
to or shorter than the
time associated with the
standard. Longer term
averaging is available
only in limited instances
provided that the ambient
standard is not compromised.
Clearly stated in the
rule
Explicit description of
how averaging, bubbling,
or equivalency is to be
determined. VOC
eouivalency must be on
a "solids applied"
basis. Any method must
be independently re-
producible. Provision
must be explicit as to
whether EPA case-by-
case approval required.
If provision intended
to be "generic" then EPA
bubble policy must be
met.
II
-------
En for ce n K; Hty Analysis
State Submittal
h. If there is a redesigna-
ti.on, will tliis change
the emission limita-
tions? If yes, which
ones and how?
2. Compliance Dates
a. What is compliance
date?
b. What is the attainment
date?
3. Specificity of Conduct
a. What test method is
required?
b. What is the averaging
time in compliance
test method?
c. Is a compliance
calculation or
evaluation required?
(i.e., daily weighted
average for VOC).
d. If yes to "c," list
the formula, period of
-omplianee, and/or
alu.ition method.
j i. unv,t t
.^,jlation may not
automatically allow for
sel f nul I i f ical; i on upon
redesignation of area
to attainment. New
maintenance demonstra-
tion required in order
to drop regulation.
Must not be later than
approved or about to
be approved date of
attainment unless
emission reductions not
necessary for attain-
ment. In some cases,
it will be necessary
for the regulation to
specify dates in compli-
ance schedules that are
required to be submitted
by source to state.
Test method must be
explicitly stated.
Averaging time and
application of limit
must be explicit.
Formula must in-
explicit .
-------
Enforceability Analysis
State Submittal
4 . Incorporat ion by Reference
a. What is state authority
for rulemaking?
b. Are methods/rules
incorporated by
reference in the
right manner.
5. Record keepi ng
a. What records are
required to determine
compliance?
b. In what form or units
(lbs/gal, gr/dscf,
etc.) must the
records be kept? On
what time basis
(instantaneously,
hourly, daily)?
c. Does the rule affirm-
atively require the
records be kept?
EPA Reouirement
Clarity
Approvablllty (Approvable or Not
Records to be kept
must be consistent
with units of
compliance in the per-
formance requirements,
including the appli-
cable time period.
There must be a clear
separately enforceable
provision that requires
records to be kept.
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En£orc
-------
OFFICE OF REGIONAL COUNSEL
AIR, PESTICIDES & TOXICS MANAGEMENT DIVISION
MEMORANDUM OF UNDERSTANDING
A. INTRODUCTION
The purpose of this Memorandum of Understanding (MOU) is
to define the relationship of ORC and the program in the handling
and processing of State Implementation Plan (SIP) revisions.
This MOU will help strengthen the relationship of the ORC and
the program by clarifying mutual expectations of the respective
parties. This is a working document and it is anticipated that
it will be modified when necessary to reflect the goals of EPA
and the relationship between EPA and the States.
B. SCOPE
The scope of this MOU covers all aspects of SIP review. It
is not the intention of the MOU to address any aspects of enforce-
ment. The agreement addresses the follcwing four general categories:
0 Timelines
0 Coordination
° Concurrence
0 Depth of Review
C. TIMELINES
The timelines listed below for response to SIP actions are
established as deadlines. There will be some circumstances which
require deviation from the agreed timelines.
1. The program shall send the SIP package to ORC with the
pertinent documents* attached as early in the review
process as possible.
2. The timelines for ORC to review and send back comments
to the program shall be as follows:
a. 2 weeks from receipt of the package from the program
if ORC has familiarity with the package;
b. 3 weeks from receipt of the package from the program
if ORC is reviewing the package for the first time;
*Federal Register Notice, Technical Support
Submittal and Applicable State Regulations.
Document (TSD), State
-------
- 2 -
c. 4 weeks from receipt of the package i:u» che program
if the SIP is interconnected with other significant SIP
or enforcement issues or presents issues of national
signi £icancs.
d. ORC will make every effort to facilitate concurrent
review when the state has scheduled a public hearing.
If it appears to ORC that the above timelines may not be
met in a given instance, ORC will seek an extension. The
Director, Air, Pesticides & Toxics Management Division will
evaluate the relative priority of that project with respect
to other work underway for the division and advise ORC. . In_
no event shall failure to meet a deadline be construed as ORC's
decision to make no comments wi thou t consul t i ng ORC. "
D. COORDINATION
1. Program Project Officers shall coordinate with each
other to set priorities.
2. Program personnel, as discussed in Section CI herein,
shall discuss with and seek input from ORC on initial
drafts. ORC shall respond as provided in Section C2
he re i n.
3. ORC shall review final drafts. ORC shall respond as
provided in Section C2 herein.
4. If the OkC staff attorney and the program cannot agree
on the resolution of ORC comments, a meeting shall be arranged
between the Chief, Air & Toxics Law Branch and the Chief, Air,
Management Branch.
E. CONCURRENCE
The comments and advice provided to the program by ORC that
are not being followed shall be routed with the package to the
siqning official. Prior to EPA notifying the State or Company
of its comments, the Regional Counsel and Director, Air, Pesti-
cides & Toxics Management Division shall try to resolve the
differences of opinion. ORC shall not formally concur or non-
concur on the package.
F. DEftTH OF REVIEW
ORC shall list all pertinent legal comments that become
apparent in the review of a package, but shall make clear
which problems are the major source of concern.
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S*0ST'>4
/ A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
September 6, 1989
MEMORANDUM
SUBJECT: Incorporation by Reference
I want to express my appreciation to your responses to my memorandum
dated March 31, 1989, in which I asked you to identify the category of
regulation each State submits for incorporation by reference. This
information was needed because the Office of the Federal Register (OFR) was
concerned about the Environmental. Protection Agency's (EPA) practice of
submitting typed rather than printed regulations for incorporation by
reference. The OFR felt that discrepancies between the typfed and printed
versions might result which could raise questions about which copy was
Federal 1y enforceable.
Attached is a letter and index dated July 26, 1989 to the OFR which
identifies the categories of regulations submitted to EPA. Also, attached is
a letter dated August 10,' 1989 from the OFR which states that only the version
of the State regulation cited in our letter will be accepted by them for
incorporation by reference. The EPA must update the index if a State changes
their laws and submits a different type of regulation. Please advise your
staff responsible for preparing State implementation plan (SIP) actions that
the OFR will only accept the types of regulations identified in our letter for
incorporation by reference. Delays in the publication of Federal Register
notices will result if the appropriate material is not submitted to the OFR.
If you have any questions, pBease call Denise 3erth at (FTS) 629-5550 or
me at (FTS) 629-5691.
Attachments
cc: Denise Gerth
Steve Hitte
Vickie Reed
Sara Schneeberg
Racqueline Shelton
SIP Contacts
TO:
FROM:
1-2.
-------
Washington, DC20408
August 10, 1989
Mr. Johnnie L. Pearson
Chief, Regional Activities Section, ROB
U.S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Research Triangle Park, NC 27711
Dear Mr. Pearson*
TnanK you for your letter of July 26, 198?• Your letter
identifies the version -oi -sta~ce regulations grrectivi Snd -
enforceable in each state as a matter of state law. However,
your letter adds, "that States may, for various reasons, not
follow this precise description when submitting material."
Only the official, enforceable version of a state regulation
cited in your index will be accepted by this Office as a
revision to the incorporation by .reference of the SIP.
Should a state's law change and a different version of a
state regulation oe effective, EPA must update the index.
The categories you have established, along with appropriate
footnotes, will provide an excellent index for this Office's
legal staff for use in reviewing EPA's SIP documents. Please
contact me at (202)523-5240 or Sandra McLean of our Legal
Services Staff if you haye any questions concerning this
matter.
Sincerely,
Acting Director of the Federal Register
National Archives and Records Administration
-------
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
s | Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
July 26, 1989
Sandra McLean, Esq.
Office of the Federal Register
National Archives & Records Administration
1100 L Street, N.W., Room 8401
Washington, O.C. 20408
Dear Ms. McLean:
Some time ago, you informed us that the Office of the Federal Register
(OFR) was concerned about the Environmental Protection Agency's (EPA) practice
of submitting typed rather than printed versions of State regulations for
incorporation by reference. You felt that discrepancies between the typed and
printed versions might raise questions about which one is enforceable.
Previously we determines tne categories of regulations that are
submitted by the States. These categories are as follows:
(1) Regulations that are published in the State register. These
regulations are not State effective until they are published.
(2) Regulations that are effective immediately upon adoption and
signature by the Secretary of State. All of these regulations will have
either an official stamp denoting the date of adoption and signature by the
Secretary of State or some form of certification from the State indicating
that the material was adopted by the State. This certification/letter also
needs to be incorporated by reference.
(3) Regulations that are immediately effective (same as number 2 above;
except that the States periodically publish a compilation of their
regulations. However, the official version is the originally adopted version
signed by the Secretary of State.
Enclosed is a list which identifies the category of regulation that each
State presently submits to EPA. I understand that you intend for this list to
serve as an index for the OFR to ensure that the correct material is submitted
for incorporation by reference. Please recognize, however, that States may,
for various reasons, not follow this precise description when submitting
material. This may occur because the States periodically revise their
procedures, because the official State publication has not occurred prior to
submission of the rule to EPA, or a myriad of other reasons that may delay the
"official" version. If a State deviates from the category on the enclosed
list, we will identify the basis of the deviation upon transmittal of the
final Federal Register notice to you.
1-3.
-------
z
If you have any questions, call Denise Gerth at (FTS) 629-5550 or me
at (FTS) 629-5691.
Enclosure
cc: SIP Contacts, Regions I-X
Racqueline She!ton
Denise Gerth
Sara Schneebertj
Bet-kv~Ahram
-------
region
STATE
II
III
IV
VI
VII
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Virgin Islands
Delaware
District of Columbia
Maryiana
Pennsylvania
- Allegheny County
- Philadelphia County
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
CATEGORY OF REGUTATTOM<
1 2 2
X
X
X
X
X
X
X
X
X
X
X
X
X-
X
X<
X.
X'
X
X*
X
X
X
X
X
1-5.
-------
CATEGOBCV OF REGULATIONS
VIII
IX
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
American Samoa
Arizona
California
Guam
Hawaii
Nevada
Northern Mariana Islands
Alaska
Idaho
Oregon
Washington
_L
X
X
X
X10
£11,12
X13
x"
Jl5
yl6
Cl7
rlS
1-6.
-------
FOOTNOTES
\J Regulation becomes effective after signature by Department of Natural
Resources.
ZJ Regulation becomes effective after signature Dy the Chairman, County
Commission.
2/ Regulation becomes effective after Mayor's signature.
i/ Effective 20 days after filed with Secretary of State.
5/ Does not require Secretary of State signature.
§/ Regulations adopted at local level and then the State Air Pollution Control
Board adopts them at the State Lpvel.
1/ Variances and permit* suonutted by these States fall into categoij
number 2.
8/ Motor Vehicle Inspection/Maintenance (I/M) and Transportation Control
Measures (TCM) commitments, Visibility Protection Plans; and Emergency Rules.
2/ The South Dakota rules are not .immediately effective, but effective 20 days
after filing with the Secretary of State. Revised rules are published on a
case-by-case basis, not every one or two years. Rules do not need to be
published-to be effective. There is no South Dakota Register.
10/ The regulations become effective 30 days after the Secretary of Fono signs
the regulations.
H/ The regulations adopted by the 44 local districts are effective
immediately at the local district level. The State adopts these regulations
as a formality (the State does not have authority within the local districts)
and forwards them to EPA.
12/ The regulations adopted at the State level become effective 30 days after
the official filing with the Secretary of State, e.g., the State has the
authority only over mobile sources, which includes motor vehicle and fuels
regulations.
13/ The regulations become effective after the legislature signs off on them,
generally a 45-day period after adoption.
14/ The regulations become effective 30 to 60 days after signature by the
Governor.
15/ The regulations becomne effective after a 30-day public comment period in
the local newspaper. The public notice allows for an additional hearing if
one is necessary. If there are adverse public comments, the effective date of
the regulations will be delayed until agreement is reached.
1-7.
-------
16/ Lt. Governor signs regulation and it becomes effective 30 days later,
17/ Effective the.date of adoption by the Idaho Bureau of Health and Welfare
unless regulation contains an effective date.
]£/ Effective 30 days after signed by the Director of the Department of
Ecology.
1-8
-------
NOV 1 6 1989
4APT/APB-aes
Honorable Travis Medlock
Attorney General of South Carolina
Robert C. Dennis Office Building
1000 Assembly Street
Columbia, South Carolina 29211
Dear Mr. Medlock:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state leveiJ EPA has developed three
categories that reflect when regulations become state
effective. The cateqories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp, denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the State. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours,
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
4APT/APB-aes
Honorable Michael J. Bowers
Attorney General of Georgia
132 State Judicial Building
Atlanta, Georgia 30334
Dear Mr. Bowers:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the state. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours,
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
}¦::: :¦ 1389
4APT/APB-aes
Honorable Robert Butterworth
Attorney General of Florida
State Capitol
Tallahassee, Florida 32304
Dear Mr. Butterworth:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the state. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours,
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
NOV 16 1989
4APT/APB-aes
Honorable Mike Moore
Attorney General of Mississippi
Carroll Gartin Justice Building
P.O. Box 220
Jackson, Mississippi 39205
Dear Mr. Moore:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the state. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours,
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
NOV V 6 1389
4APT/APB-aes
Honorable Don Siegelman
Attorney General of Alabama
Post Office Box 948
Montgomery, Alabama 36102
Dear Mr. Siegelman:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the state. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours,
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
*'0V 1 * 199S
4APT/APB-aes
Honorable Frederic Cowan
Attorney General of Kentucky
State Capitol
Frankfort, Kentucky 40601
Dear Mr. Cowan:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the state. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation,
Sincerely yours,
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
4APT/APB-aes
Honorable Lacy H. Thornburg
Attorney General of North Carolina
Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602
Dear Mr. Thornburg:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the state. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
-2-
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours.
James H. Sargent
Regional Counsel
Enclosure
cc: State Air Director
agletter 10/25/89
-------
\ ^/7 / UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
"=0^ REGION
34S COURTLANO STRICT
ATLANTA. GEORGIA 303«3
•NOV 1 S 1989
4APT/APB-aes
Honorable Charles W. Burson
Attorney General of Tennessee
450 James Robertson Parkway
Nashville, Tennessee 37219
Dear Mr. Burson:
Over the past few months EPA has been working with the Office of
the Federal Register (OFR) to assure that accurate information
is documented regarding State Implementation Plans (SIPs).
Under the Clean Air Act, SIP revisions must be submitted to and
approved by EPA before they are effective as a matter of federal
law. Notices of actions are published in the Federal Register
and regulations are incorporated in the Code of Federal
Regulations by reference. EPA and OFR have embarked on a
cooperative effort to accurately document how SIP revisions
become effective at the state level. EPA has developed three
categories that reflect when regulations become state
effective. The categories are as follows:
1. Regulations that are effective when published
in the state register. These regulations are
not state effective until they are published.
2. Regulations that are effective immediately
upon adoption and signature by the Secretary
of State. All of these regulations will have
either an official stamp denoting the date of
adoption and signature by the Secretary of
State or some form of certification from the
state indicating that the material was adopted
by the State. This certification/ letter also
needs to be incorporated by reference.
3. Regulations that are immediately effective
(same as number 2 above) except that the
states periodically publish a compilation of
their regulations. However, the official
version is the originally adopted version
signed by the Secretary of State.
-------
Enclosed is a list of states and their applicable category. OFR
intends to use this list to serve as an index to ensure that EPA
submits the version of the regulation that is state effective
for incorporation by reference.
I would appreciate your verifying or clarifying the information
in the enclosed list regarding how regulations become effective
in your State by December 15, 1989. I would also appreciate
receiving an updated copy of the appropriate State statutes that
support this position.
Thank you for your cooperation.
Sincerely yours,
Regional Counsel
Enclosure
cc: State Air Director
-------
REGION
STATE
CATEGORY OF REGULATION
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Virgin Islands
Delaware
District of Columbia
Maryland
Pennsylvania
- Allegheny County
X
X
X
X
X-
Virginia
X
West Virginia
X
Alabama.
X
Florida
X4
Georgia
Kentucky
Mississippi
X
North Carolina
* •
South Carolina
X
Tennessee
Illinois
. \ ^
Indiana
X
X7
Michigan
X
Minnesota
X
Ohio
X
X7
Wisconsin
X
Arkansas
Louisiana
X
New Mexico
X„
Oklahoma
X
X3
Texas
X
X3
X
X
X
X
x:
icwa
;-'.ar.£a£
-------
CATEGORGY OF REGULATIONS
VIII
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
American Samoa
Arizona
California
Guam
Hawaii
Nevada
Northern Mariana Islands
Alaska
Idaho
Oregon
Washinaton
X
X
X
X9
X
X
x10
X,
xll"
.2
Xlj
X14
X
X15
X1-6
X17
X
X13
-------
FOOTNOTES
V Regulation becomes effective after signature by Department of Natural
Resources.
2/ Regulation becomes effective after signature by the Chairman, County
Commission.
3/ Regulation becomes effective after Mayor's signature.
4/ Effective 20 days after filed with Secretary of State.
5/ Does not require Secretary of State signature.
5/ Regulations adopted at local level and then the State Air Pollution Control
Boarc adopts them at the State Level.
1 v-ir-ances and permits submitted by these States fall into category
numcer Z
3/ Motor Vehicle Inspection/Maintenance (I/M) and Transportation Control
Measures (TCM) commitments, Visibility Protection Plans; and Emergency Rules.
9/ The South Dakota rules are not immediately effective, but effective 20 days
~i 1 ing with the Secretary of State. Reused rules are published on a
cacs-oy-case basis, not every one or two years. Ruies do not need to be
published to be effective.. There is no South Dakota Register.
10/ "~e regulations become effective 30 days after the Secretary of Fono signs
:h= ¦ v:uI at ions.
U. regulations adopted by the 44 local districts are effective
= "y i; the local district level. The State adopts these regulations
i ":r~iality (the State does not have authority within the local districts)
— -• aras '.hem to EPA.
/L- Fn.-r -egulations adopted at the State level become effective 30 days after
:.-e o-'-icial filing with the Secretary of State, e.g., the State has the
author only over mobile sources, which includes motor vehicle and fuels
regulat ions.
13/ The regulations become effective after the legislature signs off on them,
generally a 45-day period after adoption.
14¦' The regulations become effective 30 id 50 days after signature by the
Governor.
15/ The regulations becomne effective af:er a 30-day public comment period in
tne local newspaper. The public notice i".'cw s for an additional hearing if
;oe i'- sary. If there are adverse pi.-:comments, the effective date of
. ~ r . ' ' 2 ~ 1 Will b£ d e y e •! ¦ J l"i \ : CU." ¦ - l" S a C h e d .
-------
16/ Lt. Governor signs regulation and it becomes effective 30 days later.
17/ Effective the. date of adoption by the Idaho Bureau of Health and Welfare
unless regulation contains an effective date.
18/ Effective 30 days after signed by the Director of the Department of
Ecology.
-------
Office of The
Attorney General
Don Siegelman
\ttorney General
intcomery, Alabama 36130
j5) 261-7400
State of Alabama
January 25, 1990
Honorable James H. Sargent
Regional Counsel
Environmental Protection Agency
Region IV
345 Courtland Street
Atlanta,-Georgia 30365
RE: Documentation of Date -Alabama SIP rRevision.s -Beuume.-
ETfecti ve
Dear Mr. Sargent:
In response to your November 15, 1989, letter in whicn
you requested verification and clarification of the manner in
which regulations (SIP revisions) of the Air Division of the
Alabama Department of Environmental Management become
effective, the hereinafter procedure is followed.
Regulations for the Alabama Department of Environmental
Management (hereinafter "the Department") are adopted according
to the provisions of the Alabama Administrative Procedures Act
(AAPA). The AAPA, §41-22-1, et seq., Code of Alabama 1975, as
amended, states that regulations of agencies become effective
35 days after filing with the Legislative Reference Service a
copy of the adopted regulations. Therefore, it is my opinion
that the EPA category that best reflects when the Department's
regulations become effective is Category II with a footnote
explaining Alabama's unique format regarding effective dates
for adopted regulations. The footnote should read as follows:
Regulations become effective 35 days
after filing with the Legislative
Reference Service. The certification
letter from the state indicating that
the material was adopted by the state
shall be from the secretary of the
agency.
-------
Honorable James H. Sargent
Page Two
January 25, 1990
Also, please find enclosed copies of excerpts from the
AAPA which supports the above position regarding the effecti
date of regulations adopted in Alabama. If I can be of any
further help with regard to this matter, please feel free to
contact my office.
urs,
DON SIEGELM^Jf
Attorney General
Enclosure-
DS/TEBae-: saw
cc: Richard Grusnick
Tommy E. Bryan
0609C
-------
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LEGAL AFFAIRS
THE CAPITOL
TALLAHASSEE, FLORIDA 32399-1050
ROBERT A. BUTTER WORTH
Attorney General
State of Florida
December 13, 1989
Mr. James H. Sargent, Regional Counsel
United States Environmental Protection Agency
Region IV
345 Courtland Street
Atlanta, Georgia 30365
Dear Mr. Sargent:
Thank you for your recent request for verification or
clarification of the procedure whereby administrative rules
become effective in Florida. As the enclosed photocopy of
section 120. 54 (13) (a), Florida Statutes indicates, your
understanding that rules become effective 20 days after filing
with the Department of State is generally correct. Although
certain exceptions are authorized by the foregoing statute
(emergency rules, rules expressly specifying a later effective
date, etc.), the general rule is applicable to revisions to
Florida's Implementation Plan under the Clean Air Act.
Thank you for contacting this office.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/lsb
Enclosure
j
AN AFFIRMATIVE ACTION/EQUAL OPPORTUNITY EMPLOYER
-------
F.S. 1987
ADMINISTRATIVE PROCEDURE ACT
Ch. 120
thin 30 days after receipt of the hearing transcript by
.. le hearing officer, whichever is later. The p'ovisions of
this paragraph may be waived upon stipu ation by all
parties.
(f) The Administration Commission shall promul-
gate model rules of procedure pursuant to the provi-
sions of s. 120.54(10) for the filing of notice of protests
and formal written protests.
(6) Each sia'.e agency, as defined in 3. 2'i6.0l 1, shall
adopt rules providing a procedure for conducting meet-
ings, hearings, and workshops, and for taking evidence,
testimony, and argument at such meetings, hearings,
and workshops, by means of communications media
technology. The rules shaii provide that all evidence,
testimony, and argument presented shall be afforded
equal consideration, regardless of the method of com-
munication. If a meeting, hearing, or workshop is to be
conducted by means of communications media technol-
ogy, or if attendance may be provided by such means,
the notice shall so state. The nc'ice for meetings, hear-
ings, and workshops utilizing communications media
technology shall state how persons interested in attend-
ing may do so and shall name locations, if any, where
communications media technology facilities will be avail-
able. Nothing in this subsection shall be corstrued to di-
minish the right to inspect public records under chapter
119. Limiting points of access to meetings, hearings,
and workshops subject to the provisions of s. 286.011
to places not normally open to the public shall be pre-
yed to violate the right of access of the public: and
official action taken under such circumstances is
.oid and of no effect. Other iaws relating to public meet-
ings, hearings, and workshops, including penal and re-
medial provisions, shall app'y to meetings, hearings,
and workshops conducted by means of communica-
tions media technology and shail be liberally construed
in their application to such meetings, hearings, and
workshops.
History.—s 1. ch 74-310; s 2, cn 75-'Sl s 2. cn 75—131 s 2 c* 79-299;$
1. ch 31-296, s 2. ch. 81-309. s 3. cr, S3-52 s cn 83-2'". s 3 ch 83-273
$ 1, cn 3-i-203 s 77 ch 3^-130. s 2. ch 67-::-:
cf —s 2'.3 22Deo3rtme,M of Revenue technical ass-s:a-c« advseoer.ts e*cept»on
s 9^7.071 ^aroie arc ?-3cation Corr.n-.iss :r rje-aj'tng :roce
-------
Ch. 120 ADMINISTRATIVE PROCEDURE ACT F.S. 1987
An ar.a.'ysis of the impact on small business as
mned in 're Florida Small and Minority Business As-
sistance Act or 1935.
(c) !f an e:or.omic impact statement is required be-
fore an ager,::_, takes action on an application or petition
by any person, the statement shall be prepared within
a reasonable t'~e after the application is made or the
petition is Yec.
(d) The to provide ar, adequate statement of
economic impact is a ground for holding the rule invalid;
however, beginning October 1,1973, no rule shall be de-
clared invaiic for want of an adequate statement of eco-
nomic impact unless the issue is raised in an administra-
tive or judicial proceeding within 1 year of the effective
date of the rule to which the statement applies.
(3)(a) If the intended action concerns any rule other
than one relating exclusively to organization, procedure,
or practice, the agency shall, on the request of any af-
fected person received within 21 cays after the date of
publication of the notice, give affected persons an op-
portunity to present evidence and argument on all is-
sues under consideration appropriate to inforrr. it of their
contentions. Prisoners, as defined in s. 944.02(5), may
be limited by the Department o' Corrections to an oppor-
tunity to submit written statements concerning intended
action on any department The agency may sched-
ule a public hearing on the rje ana. if requested by any
affected person, shall scheme a public hearing on the
rule. Any material pertinenttr.e issues under consider-
submitted to the ace";/ -vtnin 21 days after the
(>f publication of the r,;::ce or submitted at a public
_ lg shall be considerec by the agency and made a
part of the record of the ruerr^.irg proceeding.
(b) If the agency deter;-.ines that the proposed ac-
tion will affect small business canned by the agency
as provided in paragraph .?¦=). '.he agency shall send
written notice of such rule :c fe S~a.ii and Minority Busi-
ness Advocate, the Mine:,. -usi-ess Enterprise Assist-
ance Office, and the Divis.or Economic Development
of the Department of Corr.-.erce net less than 21 days
prior to the intended action.
1. Within the 21-day period after written notice has
been sent and the day on which the intended action is
to take place, the agency shall give the Small and Minori-
ty Business Advocate, the Minority Business Enterprise
Assistance Office, and the Division of Economic Devel-
opment of the Department of Commerce an opportunity
to present evidence and argument and to offer alterna-
tives regarding the impact of the rule on small business.
2. Each agency shall adopt those alternatives of-
fered pursuant to this subsection which it finds are feasi-
ble and consistent with the stated objectives of the pro-
posed rule and which would reduce the impact on small
business.
3. If an agency does not adopt all alternatives of-
fered pursuant lo this subsection, it shall, prior to rule
adoption or amendment and pursuant to subsection
(11), file a detailed written statement with the committee
exDlaining the reasons for failure to adopt such alterna-
- Within 3 working days of the filing of such notice,
fncy shall send a copy of such notice to the Small
nority Business Advocate, the Minority Business
Enterprise Assistance Office, and the Division of Eco-
nomic Development of the Department of Commerce.
(4)(a) Any substantially affected person may seek
an administrative determination of the invalidity of any
proposed rule ori the ground thai the proposed rule is
an invalid exercise of delegated legislative authority.
(b) The request seeking a determination under this
subsection shall be in writing and must be filed with the
division within 21 days after the date of publication of
the notice. It must state with particularity the provisions
of the rule or economic impact statement alleged to be
invalid with sufficient explanation of the facts or grounds
for the alleged invalidity and facts sufficient to show that
the person challenging the proposed rule would be sub-
stantially affected by it.
(c) Immediately upon receipt of the petition, the divi-
sion shall forward copies of the petition to the agency
whose rule is challenged, the Department of State, and
the committee. Within 10 days after receiving the peti-
tion, the division director, if he determines that the peti-
tion complies with the above requirements, shall assign
a hearing officer who shall conduct a hearing within 30
days thereafter, unless the petition is withdrawn. Within
30 days after conclusion of the hearing, the hearing offi-
cer shall render his decision and state the reasons there-
for in writing. The division shall forthwith transmit copies
of the hearing officer's decision to the Department of
State and to the committee. The hearing officer may de-
clare the proposed rule wholly or partly invalid. The pro-
posed rule or provision of a proposed rule declared inval-
id shall be withdrawn from the committee by the adopt-
ing agency and shall not be adopted. No rule shall be
filed for adoption until 28 days after the notice required
by subsection (1) or until the hearing officer has ren-
dered his decision, as the case may be. However, the
agency may proceed with all other steps in the rulemak-
ing process, including the holding of a factfinding hear-
ing pursuant to subsection (3). In the event part of a pro-
posed rule is declared invalid, the adopting agency may.
in its sole discretion, withdraw the proposed rule in its
entirety. The agency whose proposed rule has been de-
clared invalid in whole or part shall give notice of the de-
cision in the first available issue of the Florida Adminis-
trative Weekly.
(d) Hearings held under this provision shall be con-
ducted in the same manner as provided in s. 120.57 ex-
cept that the hearing officer s order shall be final agency
action. The agency proposing the rule and the person
requesting the hearing shall be adversary parties. Other
substantially affected persons may join the proceeding
as parties or intervenors on appropriate terms which will
not substantially delay the proceedings. Failure to pro-
ceed under this subsection shall not constitute failure to
exhaust administrative remedies.
(5) Any person regulated by an agency or having a
substantial interest in an agency rule may petition an
agency to adopt, amend, or repeal a rule or to provide
the minimum public information required by s. 120.53.
The petition shall specify the proposed rule and action
requested. Not later than 30 calendar days after the date
of filing a petition, the agency shall initiate rulemaking
proceedings under this act, otherwise comply with the
636
F.S. 19
reques
statem
(6)
ognizc
it may
raled ir
ord of,
provide
opport
ments
(7)
referen
to whic
sectior
of Florid
cific.
(8)
and sr.
purpos
or ame:
Florida
pertm;-
erencs
rule is :
such rr
rule u~--
terial ?.;
ence o-
in full i"
for lav.s
(9)(£;
to the c.
cy aciio
by the •
undo-'
public ¦¦
1. "
protec-
tion, o: ¦
2. T
protect •
dure.
3. T
prior to
ing an m
welfare
dure us-:
notice o'
tional Lir
only or :•
of the -'u
of the Fi.
ings oi
fairnes?
(b) R
welfare- :
perlair.::-
(c)
tion m f.
and sr.---
of a ciu
of the ? -
identic j
-------
F.S. 1987
administrative procedure act
Ch. 120
requested action, or deny the petition with a written
statement of its reasons for the denial.
(6) In rulemaking proceedings, the agency may rec-
ognize 3" / material which may be judicially noticed, and
it may prov.de that materials so recognized be incorpo-
rated into the record of the proceeding. Before the rec-
ord of any proceeding is completed, ail parties shall be
provided a list cf such matenals and given a reasonable
opportunity to examine them and offer written com-
ments thereon or written rebuttal thereto.
(7) Each rule adopted snail be accompanied by a
reference to the specific rulemaking authority pursuant
to whicn the rule was adopted and a reference to the
section or subsection of the Flcrica Statutes or the Laws
of Florida being implemented, interpreted, or made spe-
cific.
(8) Each rule adopted shall contain only one subject
and shall be preceded by a concise statement of the
purpose of the rule and reference to the rules repealed
or amended, whicn statement need not be printed in the
Florida Administrative Coce. Pursuant to rule of the De-
partment of State, a ru'e may incorporate material by ref-
erence but only as sucn material exists on the date the
rule is adopted. For purposes of such rule, changes in
such material shall have no effect with respect to the
rule unless the rule is ame-ded to incorporate such ma-
terial as changed. No rule snail ce amended by refer-
ence only. Amendments s'sli set cut the amended rule
in full in the same manner as required by the constitution
for laws.
(9)(a) If an agency fines that an immediate danger
o the public health, safety, or welfare requires emergen-
cy action, the agency may adept any rule necessitated
by the immediate danger by any procedure which is fair
under the circumstances and necessary to protect the
public interest, provided that:
1. The procedure provides at least the procedural
protection given by other statutes, the Florida Constitu-
tion, or the United States Constitution.
2. The agency takes only that action necessary to
protect the public interest under the emergency proce-
dure.
3. The agency publishes in writing at the time of, or
prior to, its action the specific facts and reasons for find-
ing an immediate dancer to the puciic health, safety, or
welfare and its reasons for conclud'-g that the proce-
dure used is fair under the circumstances. In any event,
notice of emergency rules, other than those of educa-
tional units or units of government with jurisdiction in
only one county or a part thereof, including the full text
of the rules, shall be published in the first available issue
of the Florida Administrative Weekly. The agency's find-
ings of immediate danger, necessity, and procedural
fairness shall be judicially reviewable.
(b) Rules pertaining to the public health, safety, or
welfare shall include, but not be limited to, those rules
pertaining to perishable agricultural commodities.
(c) An emergency rule adopted under this subsec-
tion may not be effective for a period longer than 90 days
and shall not be renewable, except during the pendency
of a challenge to proposed rules addressing the subject
the emergency rule. However, the agency may take
-ntical action by normal rulemaking procedures.
(d) Subject to =:c cao:e oonsttutional and statuto-
ry provisions, an e~-irge~c. rule becomes effective im-
mediately on filing at a date less than 20 days fare-
after if specified in -n ru!e. •? the adopting agency ".nds
that such effective oate :s necessary because of an im-
mediate danger tc '.ne pubi.c hea.tn, safety, or we-*are.
(10) The Admin rration Commission shall promul-
gate one or more svs of model ru'.es of procedure v.hich
shall be reviewed :y tne committee and filed witn the
Department of Sta'e On film: with the department, the
appropriate model Mies shaH be the rules of procedure
for each agency s.ojeot to tms act to the exten: that
each agency does -or adoot a specific rule of procedure
covering the subject matter ccntaned in the model rules
applicable to that ecency An agency may seek modifi-
cation of the mode' -jles of cocedure to the extent nec-
essary to conform t: any requirement imposed as a con-
dition precedent t: reee-pt of federal funds or permit
persons in this sta:= to receive tax benefits under feder-
al law or as require.- for ;r,e most efficient operation of
the agency as determined by the Administration Com-
mission. The reasons for m modification shall be pub-
lished in the Florca Administrative Weekly. Agency
rules adopted to comply with ss. 120.53 and 123.565
must be in substar:aJ co~ip:ance with the model rules.
(11 )(a) The adopting agency shall file with the com-
mittee, at least 21 ttays cior to tne proposed adcotion
date, a copy of eac-" -u'e t p'oposes to adopt: a detailed
written statement c: the facts ano circumstances justify-
ing the proposed r. e. a copy of the estimate of econom-
ic impact required :/ sutsect on '2); a statement of the
extent to which the c.'ccosec rule establishes standards
more restrictive than t'ensral standards or a statement
that the proposed rJe is no more restrictive than federal
standards or that a fede-ai rule on the same subject
does not exist: an: the notice required by subsection
(1). After the final coi-.c heanng on the proposec rule,
or after the time ?:¦" reoues'.ng a hearing has expired,
the adopting agency shall ii'.e an/ changes in the pro-
posed rule and the 'sasons therefor with the committee
or advise the corr.-ittee that there are no chances. In
addition, when an; chance is made in a proposed rule,
other than a technical cnange, the adopting acency
shall provide a detailed statement of such chance by
certified mail or aotua' delivery to any person who re-
quests it in writirvc at the pjblic hearing. The acency
shall file the chance -.v'r the committee, and provioe the
statement of chance to cersons requesting it, at least
7 days prior to fi''"c tne ru e for adoption. Educational
units, other than _r.ts or' t~e State University S;.stem
and the Florida Sc"col for ;he Deaf and the Blinc and
local units of gov^'""ns~: ,'.ith jurisdiction in on!/ one
county or part the ?c: sna!: not te required to ma-;e fil-
ings with the com_ittee. Tn-s paragraph does no; apply
to emergency rule; acoctec pursuant to subsection (9).
However, agenc-ri other than those listed herein,
adopting emergent-, -jles shall fi'e a copy of each emer-
gency rule with the- committee
(b) If the ado:"." agency is 'aquired to pub sh its
rules in the Florida -cm -.strative Code, it shall fi e with
the Department o" 5tats tnree certified copies of tne rule
it proposes to aczct a sun--nary of the rule, a sum-nary
of any hearings or tne rule, and a detailed v.ritten
637
-------
Ch. 120
ADMINISTRATIVE PROCEDURE ACT
F.S. 1987
bment gt r.e facts and circumstances justifying the
_ Agero.es iot required to publish their rules in the
Florida Adm.r.straVlve Code shall file one certified copy
of the proposed 'u1e, and the other material required
above, in the o^i ce of the agency head; and such rules
shall be ope.-i to the public pursuant to s. 120.53(2). Fil-
ings shall be made no less !han 23 days or more than
90 days af:er ;r,e notice required by subsection (1). If a
public hearing is held, the 90-day iirr.it is extended to 21
days after sdjo-_rrment of the final hearing on the rule,
21 days after receipt of all material authorized lo be sub-
mitted at the rearing, or 21 days after receipt of the tran-
script, if one is made, whichever is iatest. For purposes
of this paragraph, the term "public hearing" includes any
public meeting held by any agency at which the rule is
considered. The filing of a petition for an administrative
determination under the provisos of sjbsection (4) will
toll the 90-day period during which a rule must be filed
for adoption until the hearing officer has filed his order
with the clerk. At the time a rule is filed, the agency shall
certify that the time limitations prescribed by this sub-
section have been comp.ied -.v:*h a.-.d '.nat there is no ad-
ministrative determination pending on the rule. The de-
partment shall reject any rule not filed within the pre-
scribed time limits or upon w.-.icn a,- administrative de-
termination is pending. If a r_\= .-.as no: been adopted
within the time limits imposed z: :'~.s ieotion, the agen-
cy proposing the rule sha'l .•••i^.cravv "e rule and give
notice of its action in the sa.-.e rr.an-er as is prescribed
iragraohs (1)(a) and 10
Whenever an act c; :~e Lec'siature is enacted
requires implements: :^ 0: the act by rules of an
agency within the executive branch of state govern-
ment, such rules shall be dr="':eo and formally proposed
as provided herein within 110 zv.s ;he effective date
of the act unless the prov:s ors r :ne act provide other-
^_»ise. .
(13)(a) The proposed rule s'la'i be adopted on being
filed with the Department c? 5:s:e and become effective
20 days after being filed, on a later date specified in the
rule, or on a date required by status. Rules not required
to be filed with the Department ci S:ata shall become
effective when adopted by the agency head or on a later
date specified by rule or statute. ..—•
(b) After the notice required in subsection (1) and
prior to adoption, the agency may withdraw the rule in
whole or in part or may make such changes in the rule
as are supported by Ihe record of public hearings held
on the rule, technical changes which do not affect the
substance of the rule, changes in response to written
material relating to the rule received by the agency with-
in 21 days after the notice and made a part of the record
of the proceeding, or changes in response'to a pro-
posed objection by the committee. Afler adoption and
before the effective dale, a rule may be modified or with-
drawn only in response to an objection by the committee
or may be modified to extend the effective date by not
more than 60 days when the committee has notified the
agency that an objection to the rule is being considered,
agency shall give notice of its decision to withdraw
dify a rule in the first available issue of the publica-
jwhich Ihe original notice of rulemaking was pub-
and shall notify the Department of State if the rule
is require :o be filed with Ihe Department of State. After
a rule ti;.i become effective, it may be repealed or
amended only through regular rulemaking procedures.
(14) If the committee disapproves a proposed rule
and the agency does not modify (he rule, the committee
shall file with the Department of State a notice of the dis-
approval detailing with particularity its objection to the
rule. The Department of State shall publish this notice
in the Florida Administrative Weekly and shall publish,
as a history note to the rule when it is published in the
Florida Administrative Code, a reference to the commit-
tee's disapproval and to the issue of the weekly in which
the full text thereof appears.
(15) No agency has inherent rulemaking authority; nor
has any agency authority to establish penalties for viola-
tion of a rule unless the Legislature, when establishing
a penally, specifically provides that Ihe penalty applies
to rules. However, an agency may adopt rules necessary
to the proper implementation of a statute prior to the ef-
fective date of the statute, but the rules may not be en-
forced until the statute upon which they are based is ef
fective.
(16) The rulemaking provisions of this chapter do not
apply to compensation appeals referees.
(17) Rulemaking proceedings shall be governed sole-
ly by the provisions of this section unless a person timely
asserts that his substantial interests will be affected in
the proceeding and affirmatively demonstrates to the
agency that the proceeding does not provide adequate
opportunity to proiect those interests. If the agency de-
termines that the rulemaking proceeding is not ade-
quate to protect his interests, it shall suspend the rule-
making proceeding and convene a separate proceeding
under the provisions of s 120.57. Similarly situated per-
sons may be requested to join and participate in the
separate proceeding Upon conclusion of the separate
proceeding, the rulemaking proceeding shall be re-
sumed
I cr. ;«-3'0 • 3 ch 75-191 s 3. eh. 76-131: ss 1. 2. ch 76-276.
s.t.cn 77-<7< t '3 c- '' ?30 t 3 ch 77-453. s. 2. ch. 78-28, s. 2. ch 78-425.
s. 7,cn 79-3 s 3 cr- *9-299 i 69 cn 79-400. s 5.ch 80-391. & l.ch. 81-309
s 2. ch 83-151 1 ' H-< "3 • ! cn 84-203. 5 7, ch. 65-104: ». 1. ch. 86-30;
J. 3. ch 8? 385
ct —a *6' '6^ c *"oi ^a'-'igs acid«fional noiice rwjuirement
a 403 90V» *.rc,.sting rule, lor the purpose of determin-
ing whet-ic
(a) Tne tuie
-------
(Bepartmeni of |Cafci
j&tatc of (Heorgia
^tlanta
132 STATE JUDICIAL BUILDING
TELEPHONE (404I 656-3300
FAX <404> 651-9148
MICHAEL J. BOWERS
ATTORNEY GENERAL
30334
November 28, 1989
James H. Sargent, Esq.
Regional Counsel
United States Environmental Protection Agency
345 Courtland Street
Atlanta, Georgia 30365
Dear Mr. Sargent:
This responds to your letter of November 16, 1989, to Attorney
General Bowers requesting that this office verify or clarify
the procedure whereby State rules become effective.
Rules adopted by agencies of this State become effective 20
days after an original and two copies of the rules are filed in
the Office of the Secretary of State. The Secretary of State
stamps the time and date of filing and maintains a file of the
rules for public inspection. O.C.G.A. § 50-13-6(a) and (b).
The Secretary of State must compile, index and publish all
rules so adopted. O.C.G.A. § 50-13-7(a). Such publication
takes the form of the Official Compilation, Rules and
Regulations of the State of Georgia. O.C.G.A. § 50—13—7(d).
However, as noted above, the effective date is determined by
the date of filing with the Secretary of State.
Enclosed for your information are copies of the sections of the
Official Code of Georgia Annotated cited above.
If you need any additional clarification, please advise.
Si nrerelv.
\ !•
ROBERT S. BOMAR
Senior Assistant Attorney General
J i
I *
iM0
RSB/fs
Enclosure
^ TAj j vf'j 1 ,'L
AIR feofartlANCE BRANCH
cc: Hon. J. Leonard Ledbetter
Robert Collom
EPA ¦ REGION I
-------
50-13-6
STATE GOVERNMENT
50-13-6
tive; both of these purposes are accom-
plished by placing a single citation of au-
thority and a single filing endorsement
upon a regulatory compilation adopted by
an agency under the same statutory au-
thority and Hied simultaneously. 1963-65
Op. Att'y Gen. p. 786.
It is permissible for single citation of
authority and single filing endorsement
to be used for a group of paragraphs
which is adopted under the same statutory
authorization and filed simultaneously.
1963-65 Op. Att'y Gen. p. 786.
Effective date of emergency rules. —
Emergency rules adopted by state agencies
may be made effective by the agency on
the date of adoption, if the agency so de-
sires: all emergency rules should be accom-
panied by a statement from the agency in-
dicating their effective date. 1975 Op.
Att'y Gen. No. 75-123.
RESEARCH REFERENCES
Am. Jur. 2d. — 2 Am. Jur. 2d., Adminis-
trative Law, §§ 287, 290.
C.J.S. — 73A C.J.S., Public Administra-
tive Law and Procedure, §§ 89, 96, 98,
111, 114.
U.L.A. — Model State Administrative
Procedure Act (U.L.A.) § 4.
50-13-6. Rules not effective until twenty days after filed with Secre-
tary of State; exceptions; rules governing manner and form of
filing.
(a) Each rule adopted after July 1, 1965, shall not become effective
until the expiration of 20 days after an original and two copies of the
rule are filed in the office of the Secretary of State. Each rule so filed
shall contain a citation of the authority pursuant to which it was adopted
and, if an amendment, shall clearly identify the original rule.
(b) The Secretary of State shall endorse on each rule thus filed the
time and date of filing and shall maintain a file of the rules for public
inspection.
(c) The 20 day filing period is subject to the following exceptions:
(1) Where a statute or the terms of the rule require a date which is
later than the 20 day period, then the later date is the effective date;
and
(2) Any emergency rule adopted pursuant to subsection (b) of Code
Section 50-13-4 may become effective immediately upon adoption or
within a period of less than 20 days. The emergency rule, with a copy
of the finding as required by subsection (b) of Code Section 50-13-4,
shall be filed with the office of the Secretary of State within four
working days after its adoption.
(d) The Secretary of State shall prescribe rules governing the manner
and form in which regulations shall be prepared for filing. The Secre-
tary may refuse to accept for filing any rule that does not conform to
such requirements. (Ga. L. 1964, p. 338, § 6; Ga. L. 1979, p. 1014, § 2;
Ga. L. 1982, p. 3, § 50.)
446
-------
50-13-7
ADMINISTRATIVE PROCEDURE
50-13-7
JUDICIAL DECISIONS
Unfiled and unpublished policy man-
ual not entitled to judicial notice. — A
policy manual upon which a state agency
relies, if never filed with or published by
the Secretary of State pursuant to this sec-
tion and § 50-13-7, is not entitled to judi-
cial notice, even if its publication is not sta-
tutorily required. Commissioner. Dep't of
Human Resources v. Haggard. 173 Ga.
App. 676, 327 S.E.2d 798 (1985).
Cited in Cullers v. Home Credit Co., 130
Ga. App. 441, 203 S.E.2d 544 (1973).
OPINIONS OF THE ATTORNEY GENERAL
Rules, etc., must be properly adopted to
be valid against persons or parties. — Any
rule, regulation, resolution, etc., by what-
ever name called, which falls under the
definition of a "rule," as defined by
§ 50-13-2. must be adopted pursuant to
the procedure for adoption of rules, i.e..
§§ 50-13-4, 50-13-5, this section and
§ 50-13-7, if it is to be valid against any
person or party. Op. Att'y Gen. No.
71-158.
Decision not to file and withdrawal of
rules. — While the language of this chap-
ter is geared to the initial filing of a rule,
there is no difference in principle between
an initial decision not to file and a subse-
quent decision to withdraw that which has
already been filed; in the context of the
purposes for which this chapter was
adopted, its requirements and its penalties,
both situations would seem to be the same.
1971 Op. Att'y Gen. No. 71-58.
RESEARCH REFERENCES
Am. Jur. 2d. — 2 Am. Jur. 2d, Adminis-
trative Law, §§ 287, 290.
C.J.S. — 73A C.J.S., Public Administra-
tive Law and Procedure, §§ 89, 96, 98,
111, 114.
U.L.A. — Model State Administrative
Procedure Act (U.L.A.) § 4.
50-13-7. Secretary of State to publish compilation of rules and
monthly bulletin.
(a) The Secretary of State shall compile, index, and publish all rules
adopted by each agency and remaining in effect. Compilations shall be
supplemented or revised as often as necessary and at least once every
two years.
(b) The Secretary of State shall publish a monthly bulletin in which he
shall set forth the text of all rules filed during the preceding month.
(c) The Secretary of State, in his discretion, may omit rules from the
bulletin or compilation if their publication would be unduly cumber-
some, expensive, or otherwise inexpedient, provided that the omitted
rules are made available in printed or processed form on application to
the adopting agency and that the bulletin or compilation contains a
notice stating the general subject matter of the rules so omitted and
stating how copies thereof may be obtained.
(d) The official compilation. Rules and Regulations of the State of
Georgia, and bulletins shall be made available upon request free of
447
-------
50-13-8 STATE GOVERNMENT 50-13-8
charge to the heads of all departments, bureaus, agencies, commissions,
and boards of this state; members of the General Assembly; Justices of
the Supreme Court, Judges of the Court of Appeals; judges, clerks, and
district attorneys of the superior courts. The compilation and bulletins
shall be made available upon request to other persons at a price fixed by
the Secretary of State to cover publication and mailing costs.
(e) The Secretary of State may engage the services of a privately oper-
ated editorial and publication firm experienced in the publication of
annotated law books to compile, index, and publish such rules. The
compilation shall conform in its arrangement as near as practicable to
the Code of this state. (Ga. L. 1964, p. 338, § 7; Ga. L. 1965, p. 283, § 8;
Ga. L. 1967, p. 893, § 1; Ga. L. 1968, p. 115, § 1.)
Cross references. — Authority of De- ing to publication of government docu-
partment of Administrative Services relat- ments generally, § 50-18-50 et seq.
JUDICIAL DECISIONS
Unfiled and unpublished policy man-
ual not entitled to judicial notice. — A
policy manual upon which a state agency
relies, if never Hied with or published by
the Secretary of State pursuant to
§ 50-13-6 and thiL :ction, is not entitled
to judicial notice, even if its publication is
not statutorily required. Commissioner,
Dep't of Human Resources v. Haggard,
173 Ga. App. 676, 327 S.E.2d 798 (1985).
Cited in State v. Bonini, 236 Ga. 896,
225 S.E.2d 907 (1976).
OPINIONS OF THE ATTORNEY GENERAL
Rules, etc., must be properly adopted to
be valid against persons or parties. — Any
rule, regulation, resolution, etc., by what-
ever name called, which falls under the
definition of a "rule," as defined by
§ 50-13-2, must be adopted pursuant to
the procedure for adoption of rules, i.e.,
§§ 50-13-4 through this section, if it is to
be valid against any person or party. 1971
Op. Att'y Gen. No. 71-158.
RESEARCH REFERENCES
Am. Jur. 2d. — 2 Am. Jur. 2d, Adminis- U.L.A. — Model State Administrative
trative Law, §§ 279, 287. Procedure Act (U.L.A.) § 5.
C.J.S. — 73A C.J.S., Public Administra-
tive Law and Procedure, §§ 112, 113.
50-13-8. Judicial notice of rules.
The courts shall take judicial notice of any rule which has become
effective pursuant to this chapter. (Ga. L. 1964, p. 338, § 8.)
448
-------
FREDERIC J. COWAN
ATTORNEY GENERAL
COMMONWEALTH OF KENTUCKY
February 6. 1990
THE CAPITOL
FRANKFORT 40G01
502/304-7600
CIVIL AND ENVIRONMENTAL LAW DIVISION
NATHAN GOLDMAN. DIRECTOR
Mr. James H. Sargent
Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street. N.E.
Atlanta. Georgia 30365
In Re: Administrative Regulations in Kentucky
Dear Mr. Sargent:
Please be advised that your letter has been assigned
to me for a reply. While this letter does not represent a
formal legal opinion pursuant to KRS 15.025. we trust it will
be of some assistance. Our response will be restricted to the
applicable law based upon the facts you have presented.
The process for the adoption of administrative
regulations in Kentucky should not be listed under Category 3
of your table. This is because, normally, under Chapter 13A of
the Kentucky Revised Statutes, an administrative regulation
does not become effective until the following occurs:
1. The proposed regulation is filed with
the regulations compiler of the Legislative
Research Commission no later than the 15th
day of each month;
2. The proposed regulation is published in
the Administrative Register and a hearing
date is scheduled to receive public
comments. This hearing may be cancelled if
the agency receives no written intent from
the public to attend the hearing;
3. The regulation, if no problem arises, is
then referred to the administrative
regulations subcommittee for review;
SERVICE •DEDICATION •EXCELLENCE
An Equal Opportunity Employer M/F/H
-------
Mr. James H. Sargent
Regional Counsel
U.S. Environmental Protection Agency
Page 2
4. Again, if no problems arise, the
regulation is referred to the legislative
subcommittee of appropriate jurisdiction
over the subject matter;
5. The proposed regulation is considered
effective as of the adjournment on the day
the previously described legislative
subcommittee considers the proposal (see KRS
13A.330, a copy of which is enclosed).
Following the completion of this process, the
regulation is published in, at present, an eight volume set
entitled Kentucky Administrative Regulations.
In addition, the statutory provisions do allow for the
adoption of regulations upon their filing if there is a stated
emergency. The emergency regulation expires 90 days after the
date of its publication (see KRS 13A.190, a copy of which is
enclosed).
Therefore, it would appear that Kentucky's procedure
does not fall into any of your categories.
If you need additional information or clarification. I
suggest you contact Ms. Susan Wunderlich, the regulations
compiler, or Mr. Greg Karambellas, the attorney for the
Administrative Regulation Review Subcommittee. Either of these
individuals may be contacted at (502) 564-8100.
Yours truly.
FREDERIC J. COWAN
A'
Richard C. Carroll
Assistant Attorney General
(502) 564-7600
RCC:reb
Enclosures
-------
13A.330
EXECUTIVE BRANCH
50
tive April 13,1984; 1988, ch. 71, § 5, effective July 15,1988; 1988, ch. 425,
§ 12, effective July 15, 1988.)
Legislative Research Commission Note.
This section was amended by two 1988 Acts
which do not appear to be in conflict and have
been compiled together.
Opinions of Attorney General. The En-
vironmental Quality Commission could
amend a regulation at an Administrative Re-
view Subcommittee meeting without filing a
revised statement of consideration and pub-
lishing such changes pursuant to KRS
13A.280 where the amendments were subse-
quently published in the administrative reg-
ister, the changes in the regulation complied
with this section and were properly amended.
OAG 87-6.
13A.330. Adoption and effective date of proposed administrative
regulation — Expiration — Enactment into statute — Prohibition
concerning promulgation. — (1) A proposed administrative regulation,
proposed amendment of an existing administrative regulation, or proposed
repeal of an administrative regulation shall be considered as adopted and
shall become effective as of the adjournment on the day a subcommittee
meets to consider the proposal pursuant to KRS 13A.290(7).
(2) Where a subcommittee fails to meet within thirty (30) days of assign-
ment of a proposed regulation as provided in KRS 13A.290(7), the proposed
regulation, amendment or repeal thereof shall become effective as of the
expiration of such thirty (30) day period.
(3) Any regulation which became effective or contains an amendment
which became effective subsequent to a finding by either the administra-
tive regulation review subcommittee or subsequently assigned subcommit-
tee that the regulation or amendment thereto was deficient as provided in
KRS 13A.030(2)(a), shall be effective only until the effective date for acts of
the next succeeding regular session of the general assembly on which date
it shall expire, unless enacted into statute by the regular session of the
general assembly following its adoption.
(4) Any administrative body which seeks to continue the effective date of
any administrative regulation beyond the date on which it shall expire
pursuant to the provisions of subsection (3) of this section shall prepare
legislation proposing the enactment of such administrative regulation into
statute by the next regular session of the general assembly. Such legisla-
tion shall be submitted to the legislative research commission and may be
introduced by any member of the general assembly.
(5) A proposed administrative regulation, proposed amendment of an
existing administrative regulation, or proposed repeal of an administrative
regulation which has not complied with all the provisions of this chapter
and any regulations promulgated under this chapter shall be considered
procedurally defective and void.
(6) An administrative body shall be prohibited from promulgating any
administrative regulation that is identical to or substantially the same as a
regulation which has expired or is subject to expiration pursuant to subsec-
tion (3) of this section. Tnis prohibition shall be effective for a two (2) year
period running from the datie of expiration of the regulation. (Enact. Acts
1984, ch. 417,1 33, effective April 13,1984; 1988, ch. 71, § 6, effective July
15, 1988.)
51
13A.345.
AD MINIS
Expiration of adi
regulations ir
Compiler's Notes. This section
Acts 1986, ch. 499, § 9, effective J
13A.346. Quadrennial rt
LRC subcommittee — Schet
bly that all administrative n
years. In order to carry out si
shall review the administrate
commission deems to be in its
The subcommittee shall sched
tions so that it has completed
(2) year period. (Enact. Acts
13A.347. Assignment by
— Reports required — Exp
Enactment into statute — I
(1) At its July meeting in 198
determine the subcommittee
matter of each title of thp Ki
The legislative researc' t
committee of the adm i
four (4) year period.
(2) liie subcommittee shall
(a) Hold public meetings du
shall be reviewed; and
(b) Give notice not less than
time, date, place, and subject i
body which promulgated the
and to interested persons. The :
that it has completed its revit
scheduled for review during ea
30 of odd-numbered years and ;
mission a list of all those admix
than November 30 of odd-nur
(3) If the subcommittee dete
deficient for any of the reasoi
submit a written report to th
forth, in detail, the reasons for
lation is deficient. Such repor
commission no later than Nove
tive research commission sha
speaker of the house of represe
the senate for distribution to
(4) Any administrative regu.
cient pursuant to subsection (3
the effective date for Acts of
general assembly on which dafc
ute by the regular session of tl
(5) Any administrati* "y
any administrative red n
pursuant to the provisl f
legislation proposing enactme
statute by the next regular se5
-------
ETIVE branch
38
39
administrative regulations
13A.190
id support services to the subcommittee;
)ed administrative regulations, proposed
rati Tulations, proposed repeal of ex-
s, e ncy administrative regulations,
>r pa ispection, with suitable indexes;
ive listrative regulations;
ainistrative regulations service;
Jd by this chapter;
proposed administrative regulations that
of KRS 13A.222 and 13A-224, and shall
n writing of the reasons for refusing to
5 regulation for filing; and
as required by the commission or by a
rT ch. 417, § 4, effective April 13, 1984;
T 15, 1988.)
tistrative regulations — Prohibitions
(1) An administrative body may adopt
lenient a statute only when the act of the
nding the statute specifically authorizes
"such regulations are required by federal
ins shall be no more stringent than the
cdministrative body shall not promulgate
administrative body from promulgating
ly is not authorized by statute to promul-
¦ administrative body from regulation of
iy is not authorized by statute to regu-
f sa" similar procedure for the mat-
npi .ve scheme of regulation of the
clearly within the jurisdiction of the
ond the statutory authorization of the
administrative regulations or which is
and
atute or its intent.
i in violation of this section or the spirit
eable.
¦ than the Court of Justice shall issue
issue standards or by any other name
•e an administrative regulation is re-
:t. Acts 1984, ch. 417, § 12, effective
effective July 15, 1986.)
given to a specific individual agency, such
agency could not promulgate such a regula-
tion nor adopt a policy regulating the subject
under the prohibition of this section and KRS
13A.130. OAG 88-15.
13A.130. Matters prohibited as subject of internal policy, memoran-
dum or other form of action.
Opinions of Attorney General. Neither
the personnel commissioner nor the person-
nel board has authority to promulgate a reg-
ulation concerning nepotism. Likewise, in
the absence of specific statutory authority
given to a specific individual agency, such
agency could not promulgate such a regula-
tion nor adopt a policy regulating the subject
under the prohibition of KRS 13A. 120 and
this section. OAG 88-15.
13A.150. Specified time for filing. — (1) When any section of this
chapter requires that an action be taken at a specified date with regard to
filing of items to the commission, they shall be filed on or before 12:00 noon,
eastern time, on the specified date.
(2) When any section of this chapter requires that an action be taken at a
specified date and the specified date falls on a Saturday, Sunday or holiday,
the action shall be taken on the working day immediately preceding the
Saturday, Sunday or holiday. (Enact. Acts 1984, ch. 417, § 15, effective
April 13, 1984; 1988, ch. 425, § 5, effective July 15, 1988.)
13A.190. Emergency administrative regulation defined — Filing
and other requirements — Action thereon — Effective date — Expi-
ration date. — (1) An emergency administrative regulation is one that due
to the exigencies of the situation must be placed into effect immediately,
and
(a) Is temporary in nature and will expire as provided herein; or
(b) Is temporary in nature and will be replaced by an ordinary adminis-
trative regulation as provided herein.
(2) Emergency administrative regulations shall become effective and
shall be considered as adopted upon filing. Emergency administrative regu-
lations shall be. published in the next administrative register.
(3) Emergency administrative regulations shall expire ninety (90) days
after the date of publication or when the same matter filed as an ordinary
administrative regulation filed for review is adopted, whichever occurs
first.
(4) An emergency administrative regulation shall not be renewed for a
period of nine (9) months after it has been initially filed. No other emer-
gency administrative regulation that is identical to or substantially the
same as the previously filed emergency administrative regulation shall be
promulgated.
(5) When an emergency administrative regulation governing the same
subject matter governed by an emergency administrative regulation filed
within the previous nine (9) months is filed, it shall contain a detailed
explanation of the manner in which it differs from the previously filed
emergency administrative regulation. The detailed explanation shall be
included in the statement of emergency.
(6) If it is intended that an emergency administrative regulation's sub-
ject matter remain in effect, the ordinary administrative regulation cover-
ing that subject matter shall bir- filed on or before the effective date of the
emergency administrative regulation. When such an ordinary administra-
tive regulation has been filed and is withdrawn, the emergency administra-
tive regulation shall expire on the date the ordinary administrative regula-
tion is withdrawn.
(7) The administrative regulation review subcommittee or subsequently
assigned subcommittee may review an emergency administrative regula-
tion and may recommend to the governor that the regulation be revoked.
(8) Each emergency administrative regulation shall contain a statement
detailing the nature of the emergency, the reasons why an ordinary admin-
istrative regulation would not suffice, whether or not the emergency ad-
-------
MISSISSIPPI DEPARTMENT OF NATURAL RESOURCES
^ Bureau of Pollution Control
P.O. Box 10385
Jackson, Mississippi 39289-0385
(601) 961-5171
""W/*////»'''
1 February 1990
James H. Sargent Esq.
Regional Counsel
United States Environmental Protection Agency
345 Courtland Street, N. E.
Atlanta, Georgia 30365
Dear Mr. Sargent:
I am the special assistant attorney general assigned as counsel for
Mississippi's Bureau of Pollution Control, a bureau of our state's
Department of Environmental Quality. As such, I recently received
a copy of your letter of January 17 to Attorney General Mike Moore
in which you asked us to verify into which of three categories
Mississippi's procedure for promulgating regulations concerning
the State Implementation Plan (SIP) under the Clean Sir Act would
fall. According to the schedule you included, we apparently had
indicated previously that ours was a Category one procedure,
meaning that regulations are effective only upon publication in the
state register. That is still true jranfthe sense that gjjir
regulations are not valid until published/ but we do not havfe. a
"state register," at least we have nothing analogous to the Federal
Register. Rather, each agency publishes and makes available to the
public upon request its own regulations. Certainly category one
is closest to the system Mississippi has in place.
The Mississippi Commission on Environmental Quality is the agency
that promulgates regulations regarding environmental matters in
general and air quality in particular. It does so under the
authority of Miss. Code Ann. section 49-17-17 (i) (Supp. 1989),
a copy of which is enclosed. Mississippi's Administrative
Procedure Act, Miss. Code Ann. section 25-43-1 (Supp. 1989), et
seq. . provides the minimum requirements that must be met in the
course of the Commission's promulgation of regulations.
Specifically, Miss. Code -Ann. section 25-43-7 (Supp- ,1989) (a
copy of which is enclosed) provides that 30 days ndpfca must be
given prior to the promulgation of any regulation. That notice
-------
Mr. Sargent, February 1, 1990, page two
must be filed with the secretary of state and mailed to all persons
who have made a timely request for advance notice of the agency's
rule-making proceedings.
I hope that answers your question. If not, please feel free to
contact me at (601) 961-5076.
and Counsel for the Bureau of
Pollution Control
cc: Honorable Mike Moore
Mr. Charles Chisolm
Mr. Dwight Wylie
-------
§ 49-17-17 i >i I'Ain mf.nr or natural resources
(n)To exercise .ill incidental powers necessary to carry out the
purposes of Sections 49-17-1 through 17-17-47; and Sections 17-17-1
through 17-17-7; ami
(o) To delegate in such manner as it sees fit the duties and powers
relating to air and water quality and pollution control to the agency
members presently engaged in the several fields of water or air control
of pollution. In cases of difference of opinion between such agencies as
to their respective field of operation, the commission shall delegate said
responsibility to tltc proper agency, and the commission's actions therein
shall be final.
Nothing contained in this law shall be deemed to grant to the
commission any jurisdiction or authority to make any rule or regula-
tion, recommendation or determination or to enter any order with
respect to air conditions existing solely within the property boundaries
of commercial and industrial plants, works, or shops or to affect the
relations between employers and employees with respect to or arising
out of any air condition.
Cross References —
As i<> coastal uvilands protection law. iff Chapter 27 of this title.
A* to reports to air ami water pollution control commission pertaining to waters containing
radioactive materials, vr §45-14-39.
A* to iniiim tivc relief in cases of imminent and substantial hazard Of endangerment, see
§49-17-43.
As to smfate mining and reclamation of land, see §§53-7-1 ei seq.
Research and Practice Reference* —
M Am Jtir 2d. Pollution Control §§37-42. 69-73.
ALR Annotations-
Const ruction and application of §§ 101-10S of National Environmental Policy Act of 1969(42
USCS §§4331-43351 requiring all federal agencies to consider environmental factors in their
planning and decision making. 17 ALR Fed 33.
JUDICIAL DECISIONS
Where an operator of a poultry processing plant maintained a waste system preventing discharge
inro scare ssjirrs hut vrpage and intcrmittem overflow into j natural dry creek beo occurred,
particular I v .ilier a rainfall of disaster proportions, the commission had the authority to indulge
the operator with a tolerance permit for such time as was reasonably necessary to either treat the
waste water in the manner required or to remedy the situation where rainfall caused temporary
discharge of waste water; and the commission should have done so, despite the fact that the
operator was a new industry and the commission could not ordinarily issue a tolerance permit
to a new plant since it had not been previously polluting state waters. MFC Services! AAL) Corp.
v Mississippi Air St Water Pollution Control Com. (Miss) 293 So2d 16.
POLLUTION OF WATERS, STREAMS. AND AIR § 49-17-19
§ 49-17-19. Standards of air and water quality.
(a) In order to carry out the purposes of Sections 49-17-1 through
49-17-43, the commission may set ambient standards of air and water
quality for the state or portions thereof. Such ambient standards of
quality shall be such as to protect the public health and welfare and
the present and prospective future use ot such air and of such waters for
public water supplies, propagation of fish and aquatic life and wildlife,
recreational purposes, ana agricultural, industrial and other legitimate
uses. Such ambient standards may be amended from time to time as
determined to be necessary by the commission. In order to carry out
the purposes of Sections 47-17-1 through 49-17-43, the commission
may also set emission standards for the purpose of controlling air
contamination, air pollution and the sources thereof. In establishing
ambient air quality standards for odor, the commission shall adopt
recognized objective standards if they exist. In the absence of a recog-
nized objective ambient air quality standard for odor, the commission
may adopt such subjective standards as may be appropriate.
In establishing such standards relating to pesticides and commer-
cial fertilizers for underground water, the commission shall adopt federal
standards if they exist. If no federal standard exists, the commission shall
petition the U.S. Environmental Protection Agency to establish a federal
standard for the substance of interest. If the commission determines
that a federal standard cannot be obtained within thirty (30) days, it
shall consult with the U.S. Environmental Protection Agency's Office
of Drinking Water and Office of Pesticide Programs regarding the
agency's conclusion relative to available toxicological information on
the substance of interest and on the methodology used for establishing
a federal standard. The commission shall utilize this information and
methodology to establish a standard. The commission may also consult
with and request similar information from other sources.
(b) Prior to establishing, amending or repealing standards of air
and water quality, the commission shall, after due notice, conduct
public hearings thereon. Notice of public hearing shall specify the areas
or waters for which standards are sought to be adopted, amended or
repealed and the time, date and place of such hearing. Such notice shall
be given by publication once a week for three (3) successive weeks in
a newspaper published in Hinds County and in a newspaper published
or having a general circulation in each county in the area affected or
in which the waters to be affected may be situated, and by mailing
-------
t; 49-17-17 HI I'AK I MI-NI < >1 NATURAL ItLSOUHCIlS
control .iiill abnd oh ni of new or existing pollution of tlie air and
waters of ll>c stair;
(t)To advise, consult, cooperate, or enter into contracts, grants
and cooperative agreements with any federal or state agency or sub-
divisions, thereof, other states and interstate agencies, or any public
or private institution located inside or outside the State of Mississippi,
and with affected groups, political subdivisions, and industries in
furtherance of carrying out the provisions of Sections 49-17-1 through
49-17-43 and shall have the authority to enter into compacts with any
other state or states for the purpose of achieving the objectives of such
sections with respect to air and waters, or to authorize the executive
director with the approval of the commission to exercise any of the
aforementioned powers;
(d)To administer funds allocated to the state's water and air
pollution abatement grant program, to accept and administer loans and
grants from the federal government and from other sources, public or
private, for carrying out any of its functions, which loans and grants
shall not be expended for other than the purposes for which provided;
(c) To encourage, participate in, or conduct studies, investigations,
research and demonstrations relating to air and water quality and
pollution and causes, prevention, control and abatement as it may deem
Jfvisable and necessary for the discharge of its duties under Sections
49-17-1 through 49-17-43; to make funds available from the Water
Pollution Abatement Grant Fund by means of advances to political
subdivisions in litis state in 3n amount not to exceed one percent
(1%) of the estimated project cost as approved by and under such rules
and regulations as adopted by the commission for the preparation of
project planning reports and feasibility analyses; and to exercise such
supervision as it may deem advisable and necessary for the discharge
of its duties under Sections 49-17-1 through 49-17-43;
(0 To rccpiire the repayment of funds made available to a political
subdivision under subsection (e) above to the Water Pollution Abate-
ment Grant fund prior to the receipt of any other funds by any
political subdivision providing services to the area and receiving funds
provided under Sections 49-17-1 through 49-17-43; any funds made
available to any political subdivision providing services to the area and
receiving ftnuls under the provisions of said sections shall be repaid in
the same manner as arc other funds made available to the political
subdivisions under the provisions of said sections;
•»2
POLLUTION OF WATERS. STREAMS, AND MR § 49-17-17
(g) To collect and disseminate information relating to air and
water quality and pollution and the prevention, control, supervision
and abatement thereof;
(h) To adopt, modify or repeal and promulgate ambient air and
water quality standards and emissions standards for the state under
such conditions as the commission may prescribe for the prevention,
control and abatement of pollution;
(i) To adopt, modify, repeal, and promulgate, after due notice and
hearing, and, where not otherwise prohibited oy federal or state law, to
make exceptions to and grant exemptions and variances from, and to
enforce rules and regulations implementing or effectuating the powers
and duties of the commission under Sections 49-17-1 through 49-17-43
and Sections 17-17-1 through 17-17-47, and as the commission may
deem necessary to prevent, control and abate existing or potential
pollution;
(j) To issue, modify, or revoke orders (1) prohibiting, controlling
or abating discharges of contaminants and wastes into the air and waters
of the state; (2) requiring the construction of new disposal systems,
or air-cleaning devices, or any parts thereof, or the modification,
extension or alteration of existing disposal systems, or air-cleaning
devices, or any parts thereof, or the adoption of other remedial measures
to prevent, control or abate air and water pollution; and (3) setting
standards of air or water quality ot evidencing any other determination
by the commission under Sections 49-17-1 through 49-17-43;
(k) To hold such hearings, to issue notices of hearing and subpoenas
requiring the attendance of such witnesses and the production of such
evidence, to administer oaths, and to take such testimony as the
commission deems necessary;
(I) To require the prior submission of plans, specifications and
other data relative to, and to inspect the construction of, disposal
systems, or air-cleaning devices, or any part thereof, in connection
with the issuance of such permits or approval as are required by Sections
49-17-1 through 49-17-43;
(m)To require proper maintenance and operation of disposal
systems, or air-cleaning devices; and to require the installation and
operation of monitoring devices or methods as may be deemed necessary
and the maintenance and submission of monitoring and operating
records as may be prescribed;
43
-------
49-17-5 IIKIVMI I Ml N I ( >1 NAI I'UAl UI-SOUIUXS
M UfRCrS: t.aws. 1972. <1*. M*. j; I; )<»7R. i* mlc.
ii> M nM^ippi I Vp.titinrnf .nt.l » mi Nitnt.il Hi-uiuii'ia p'invally, srr
. ' V,,.
^ 49-17-7. Natural resources commission to assume duties
and responsibilities of air and water pollution control
commission.
(1) TIil- Mississippi (.'(immission on Natural Resources shall be the
Mississippi Air ami Water Pollution Control Commission, and shall
exercise tlic iliuics and responsibilities of (lie Mississippi Air and Water
l'i (Million Control Commission through die bureau of pollution control
• >l the Mississippi nepartment of Natural Resources, insofar as practi-
cable under ilie provisions of Chapter 2 of Title 49. Mississippi Code
.>)' 1972.
(2) Tlic words "Mississippi Air and Water Pollution Control
Commission" win-revet1 they may appear in the laws of the State of
Mississippi shall he construed to mean the Mississippi Commission on
Natural Resources.
SOURCES: Laws, 1972, ch. J69, S H; ch. 505, $2; 197J. ch. 406, § 1; 1977, ch. iU, SI; 1978,
ch, 484, §53. rff from and after Juty f, 1979.
(!roti Rfffrfurft—
An io cnaM.il wviUniK pii'triiimi law. v»" (lhapiri 21 of flm (iflr.
ii'pni rv in .nr nml w.tici pollution c«Mifinl ronnttiuion pcruining lo wait-rs containinp
i.iilio.u crvt- m.iicfuls, <*r
At lo Mwmippi I Vp.n tm< ni .unl ('niiiinivMon on Natural lt<-utiircv\ gfm*ra!l)\ w §§4'>*2*i
.¦I v.j.
Av in rcpnvrnciMnii mi ilt< Musmipp; |-,i>«-ii;v anil Transportation Advi«nv Council. vo
AI.R Annofatiom —
lli^lit 10 iji.iim.iin .utioh i<> ni|<>m pnMii nuivmrc u .iffci.iet.1 hv cxitUTio* of polluiion contiol
Apiu'v. fJi At H.M WfS.
§ 49-17-9. Repealed by Laws. 1978, ch. 484, §57, eff from and after
July I. 1979.
§ 49-17-11. (Am Laws, 1972, ch. 505, §3) Repealed by Laws, 1978,
ch. 484. §57. eff from and after July 1, 1979,
POLLUTION or WAIHtV SIWf AMV ANI> AIH § <9-17-13
§ 49-17-13. Authorization to secure benefit* from federal
programs—disbursement of funds—assistance from other
state entities.
(1) The commission is hereby designated as the state air and water
pollution control agency for this state for all purposes of federal
pollution control legislation and programs, and is hereby authorized
to take all action necessary or appropriate to secure to this state the
benefits of such legislation and programs. The commission shall be
empowered to receive and disburse funds, all within the limits of the
appropriations to it, funds which arc or may become available to it
from any source, including any grant funds provided by the state for
purposes of preventing the pollution of the air and the water of the
state. Provided, however, disbursement of funds shall be subject to the
approval of the Commission of Budget and Accounting.
(2) The commission shall have the right to call upon and receive
the assistance of any officer, board, department, school, university or
any other state agency, and officers and employees thereof, for any
reasonable assistance necessary or beneficial in carrying out the provi-
sions of Sections 49-17-1 through 49-17-43.
(3) The commission, or the executive director with the approval
of the commission, shall have the power to enter into contracts, grants
and cooperative agreements with any federal or state agency or sub-
division thereof, or any public or private institution located inside or
outside the State of Mississippi, or any person, corporation or associa-
tion in connection with carrying out the provisions of this chapter.
§ 49-17-15. (Am Laws, 1972. ch. 505, § 17) Repealed by Laws, 1978,
ch. 484, §57, eff from and after July 1, 1979.
§ 49-17-17. Powers and dutief.
The commission shall have and may exercise the following powers
and duties:
(a) General supervision of the administration and enforcement of
Sections 49-17-1 through 49-17-43 and Sections 17-17-1 through
17-17-47, and all rules and regulations and orders promulgated
thereunder;
(b)To develop comprehensive programs for the prevention.
41
-------
§*5-43-7
Public Officers, Records, etc.
furnish copies at the request of aiiy person and shall be reimbursed by the
requesting person for the expense of providing such service.
(2) If an agency finds that an imminent peril to the public health, safety
or welfare requires adoption of a rule upon fewer than thirty (30) days'
notice and states in writing its reasons for that finding, it may proceed
without prior notice of hearing or upon any abbreviated notice and hearing
that it finds practicable to adopt an emergency rule. The rule may be
effective for a period of not longer than one hundred twenty (120) days,
renewable once for a period not exceeding ninety (90) days, but the adoption
of an identical rule under subsection (1) of this section is not precluded.
(3) No rule hereafter adopted is valid unless adopted in substantial
compliance with this section. A proceeding to contest any rule on the
ground of noncompliance with the procedural requirements of this section
must be commenced within one (1) year from the effective date of the rule.
SOURCES: Law*, 1978, ch. *87, $ 4, eff from ud after January 1, 1777.
Cross reference*—
Aa to exemption, until July 1. 1987. of State Board
-------
Administrative Procedures § 25-43-7
i applicable to the
jken and salesper-
des and standards
3 relative to credit
live proceeding by
ALR Fed 834.
rative proceeding.
ient or officer,
to make rules
t restricted to
jhts, duties or
by an agency
proceedings or
lit, certificate,
(i required by
•nue purposes,
nted, revoked,
npliance with
d regulations
rrant, denial,
;ndment of a
, association,
any character
icability that
the organiza-
cerm includes
(i) statements
not affecting
) declaratory
gency memo-
JUDICIAL DECISIONS
Administrative agencies when hearing a
"contested case" must base their decision
upon subetantial evidence appearing in the
record. Eidt v Natchet (1982. Miae) 421 So 2d
1225.
§ 25-43—5. Agency adoption of rules describing its organization and
rules of practice; public inspection of agency rules, orders and
decisions.
(1) In addition to other rule-making authority and requirements imposed
by law, each agency shall:
(a) Adopt as a rule a description of its organization, stating the general
course and method of its operations and the methods whereby the public
may obtain information or make submissions or requests.
(b) Adopt rules of practice setting forth the nature and requirements of all
formal and informal procedures available, including all requirements re-
specting the filing of applications for any license and the licensing proce-
dure employed by the agency and the method whereby persons desiring
notice of pending applications may obtain such notice and request an
opportunity to be heard.
(c) Allow public inspection of all rules and other written statements of
policy or interpretations formulated, adopted or used by the agency in the
discharge of its functions.
(d) Allow public inspection of all final orders, decisions and opinions.
(2) No agency rule, order or decision is valid or effective against any
person or party, nor may it be invoked by the agency for any purpose, until
it has been made available for public inspection as herein required. This
provision is not applicable in favor of any person or party who has actual
knowledge thereof.
SOURCES: Laws, 1876, eh. 487, { S. «ff from and after January 1,1177.
Research and Practice Btfireac—
2 Am Jur 2d. Administrative Law H 92 et agq., 227 et nq.
73 CJS, Public Administrative Bodies and Procedure H 73, 74.
ALB and L Ed AnnnWtrmi
Sufficiency of agency's nompliitnoe with requirement of Administrative Procedure Act (6
USCS 1883(c)) that agency shall incorporate in rules adopted rrnvtae general statement of their
bssis and purpose. 46 ALU Fed 780.
When will member of-Maul regulatory board, menndssfcw, anthortty, or anflar bsd^' be
ayoined from participating in rulemaking or adjudicatory pinrseriing bees nee of "persnasl bias
a other disqualification" under 8 USCS 5 566(b). 51 ALU Fed 400.
H»iii—HjrflW*fcSsisl agency to order de novo hearing where presiding employe* at agucy
•cttudfaattairndK' Administrative Procedure Act (8 U8C8 1564(d)) most be replaced during
bearing. 81 470.
125-43-7. Notice of proposed agency adoption, amendment or re-
peal of rales; emergency rules.
(1) Prior to the adoption, amendment or repeal of any rule, the agency
¦ball give at least thirty (30) days' notice of its intended action. The notice
•ball include a statement of either the terms or substance of the ihttadH
Mian or a description of the subjects and issues involved, and the' manner
® which interested persona may present their view*' thereon. Tbe notice
*ball be filed with the office of the secretary of state and mailed bythe
*|tncy to all persons who have made timely request-cf'the ags4cy for
*eace notioe of its rule-making proceeding!. The secreUay of state> shall
-------
STATE OF MISSISSIPPI
OFFICE OF THE ATTORNEY GENERAL
TELEFAX NUMBER (601) 359-3796
CARROLL GARTIN JUSTICE BUILDING
POST OFFICE BOX 220
JACKSON, MISSISSIPPI 39205-0220
MIKE MOORE
ATTORNEY GENERAL TELEPHONE (601) 359-3680
February 13, 1990
Mr. James H. Sargent
Regional Counsel
U.S. Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Dear Mr. Sargent:
Attorney General Mike Moore has referred your letter of
January 17 to me for reply. I believe Mississippi is correctly
classified with respect to the procedure required to promulgate
regulations. Although there have been no recent changes in
Mississippi's Administrative Procedures Act I have enclosed this
for your records.
I hope you will find this helpful.
Sincerely,
Helen Wetherbee
Special Assistant Attorney General
HW: cm
Encl.
-------
Administrative Procedures
§ 25-43-1
SOURCES: Lawn, 1981, ch. 456, § 3, eff from and after July 1, 1881.
Research and Pracuce References—
Note, The Personnel Matters Exception to the Mississippi Open Meetings Act—A Cloud Over
the Sunshine Law, 7 Miss C L Rev 181, Spring, 1987.
ALR and L Ed Annotations-
Validity, construction, and application of statutes making public proceedings open to tl»
public. 38 ALR 3d 1070.
JUDICIAL DECISIONS
Meeting is within Open Meeting Act when
there is assemblage of members of public body
at which official acts, including actions relat-
ing to formation and determination of public
policy, may be taken; although purely social
functions are not covered, factors to consider
in making determination of whether activity
is business or social include activity that
takes place at function, advance "»H or notice
given membero, agenda, claim for per diem
and travel expenses by members, and other
pertinent factors. Board of Trustees v Missis-
sippi Publishers Corp. (1985, Miss) 478 So 2d
269, 12 Media L R 1389.
CHAPTER 43 [NEW]
Administrative Procedures
Sec.
25—43-1. Short title.
25-43-3. Definitions.
25-43-5. Agency adoption of rules describing its organization antj rules of practice;
public inspection of agency rules, orders and decisions.
25-43-7.. Notice of proposed agency adoption, amendment or repeal of rules; emer-
gency rules.
25-43-9. Filing of agency rules in office of secretary of state; effective date of rules.
25-43-11. Compilation and indexing of rules.
25-43-13. Notice of intended revocation, suspension, annulment or withdrawal of
license; emergency suspension of license.
25-43-15. Application of conflicting statutory provisions governing agency proce-
- dures in contested cases.
26-43-17. Opponents of proposed rules to have opportunity to present their viev
and to review adverse rulings.
25-43-19. Proceedings to which chapter applicable.
§ 25-43-1. Short title.
This chapter shall be known and may be cited as the "Mississippi
Administrative Procedures Law."
SOURCES: Laws, I97&, ch- 467, § 1, eff from and after January 1, 1977.
Croes references—
Authority of Department of Finance and Administration to promulgate rules and regulations
to implement federal-etate programs, see § 7-1-255.
Application of this chapter to adoption of rules, regulations and policy by executive directors
of departments of the executive branch, see § 7-17-5.
Applicability of this chapter to promulgation of rules and regulations by the department of
archives and history, with respect to archives and records management, see 8 26-59-9.
Applicability of this chapter to promulgation by the State Tax Commission of rules and
regulations relative to acioffa against income tax refunds for debts owed for child support or
maintenance, see } 27-7-J IS.
Duty of bureau of telecommunications to promulgate rules and regulations governing format
of contracts for acquisition of telecommunications systems, see § 31-7-226.
Applicability of thu chapter to promulgation of rules and regulations by the state board of
education, see § 37-1-4
Applicability of this chapter to promulgation of rules and regulations of Mississippi Board of
Vocational and Technical Education, see § 37-31-205.
Compliance with Muuuuippi Administrative Procedures Law by State Department of Health
in promulgating rule* and regulations under the Health Care Certificate of Need Act of 1979,
see § 41-7-185.
f7.Ma.Sapp]
225
-------
§ 25-43-1
Public Officers, Records, etc.
Applicability of the administrative procedures law to the adoption, promulgation, amending,
and repealing of rules and regulations dealing with the state medical examiner, see J 41-61-69
Applicability of this chapter to promulgation of rules, regulations and standards governing
home health agencies, see } 41-71-13.
Applicability of this chapter to promulgation of rules, regulations and standards for ambula-
tory surgical facilities, see } 41-76-13.
Applicability of this chapter to the promulgation of rules, regulations, and standards
applicable to birthing centers, see J 41-77-11.
For provision that the Mississippi Medicaid Law is controlling over provisions of this chapter,
see J 45-13-137.
Applicability of thin chapter to promulgation of rules and regulations by state board of
pharmacy, see 5 72-21-81.
Applicability of chapter to promulgation of rules and regulations by the state board of
funeral service, see 8 73-11-19."
Applicability of this chapter to' adoption of rules and regulations by the Mississippi Physical
Therapy Board, see 5 73-23-43."
Application of this chapter to the adoption of rules and regulations applicable to the
Occupational Therapy Practice Act, see § 73-24-13.
Promulgation of standards for continuing education of real estate brokers and salespersons,
see j 73-36-18.
Compliance with administrative procedures law for changes in codes and standards adopted
with respect to liquified petroleum gas, see { 75-67-9.
Applicability of this chapter to promulgation of rules and regulations relative to credit life
and credit disability insurance, Bee 5 83-63-29.
Research and Practice References—
1 Am Jur 2d, Administrative Law §§ 1 et seq.
73 CJS, Public Administrative Bodies and Procedure §§ 1 et seq.
ALR and L Ed Annotations—
Propriety of ex parte communication made in connection with administrative proceeding by
interested party or by member or employee of agency (6 USCS § 657(dXl)). 68 ALR Fed 834.
Representation by attorney of Social Security benefit claimant in administrative proceeding.
69 ALR Fed 696.
§ 25-43-3. Definitions.
As used in this chapter
(a) "Agency" means each state board, commission, department or officer,
other than the legislature and the courts, authorized by law to make rules
or to determine contested cases.
(b) "Contested case" means a proceeding, including but not restricted to
rate-making, price-fixing and licensing in which the legal rights, duties or
privileges of a party are required by law to be determined by an agency
after an opportunity for a hearing, other than disciplinary proceedings or
agency action involving only employees of an agency.
(c) "License" includes the whole or part of any agency permit, certificate,
approval, registration, charter or similar form of permission required by
law, but it does not include a license required solely for revenue purposes,
and does not include any order, permit or license issued, granted, revoked,
suspended, annulled or withdrawn by any state agency in compliance with
statutory procedures or in compliance with published rules and regulations
adopted by such agency under statutory authority.
(d) "Licensing" includes the agency process respecting the grant, denial,
renewal, revocation, suspension, annulment, withdrawal or amendment of a
license.
(e) "Person" means any individual, partnership, corporation, association,
governmental subdivision or public or private organization of any character
other than an agency.
(f) "Rule" means each agency statement of general applicability that
226
pMimSupp]
-------
Administrative Procedures § 25-43-5
implements, interprets or prescribes law or policy or describes the organiza-
tion, procedure or practice requirements of any agency. The term includes
the amendment or repeal of a prior rule but does not include (i) statements
concerning only the internal management of an agency and not affecting
private rights or procedures available to the public; or (ii) declaratory
rulings issued pursuant to section 25-43-17; or (ill) intra-agency memo-
randa.
SOURCES: Laws, 1978, ch. 487, § 2, off from and after January 1, 1977.
Research and Practice References—
2 Am Jur 2d, Administrative Law §§ 201 et seq.
73 CJS, Public Administrative Bodies and Procedure §§ 48 et seq.
JUDICIAL DECISIONS
Administrative agencies when hearing a
"contested case" must base their decision
upon substantial evidence appearing in the
record. Eidt v Natchez (1982, Miss) 421 So 2d
1225.
§ 25-^43-5. Agency adoption of rules describing its organization and
rules of practice; public inspection of agency rules, orders and
decisions.
(1) In addition to other rule-making authority and requirements imposed
by law, each agency Bhall:
(a) Adopt as a rule a description of its organization, stating the general
course and method of its operations and the methods whereby the public
may obtain information or make submissions or requests.
(b) Adopt rules of practice setting forth the nature and requirements of all
formal and informal procedures available, including all requirements re-
specting the filing of applications for any' license and the licensing proce-
dure employed by the agency and the method whereby persons desiring
notice of pending applications may obtain such notice and request an
opportunity to be heard.
(c) Allow public inspection of all rules and other written statements of
policy or interpretations formulated, adopted or used by the agency in the
discharge of its functions.
(d) Allow public inspection of all final orders, decisions and opinions.
(2) No agency rule, order or decision is valid or effective against any
person or party, nor may it be invoked by the agency for any purpose, until
it has been made available for public inspection as herein required. This
provision is not applicable in favor of any person or party who has actual
knowledge thereof.
SOURCES: Laws, 1976, ch. 487, § 3, eff from and after January 1, 1977.
Research and Practice References—
2 Am Jur 2d, Administrative Law §§ 92 et seq., 227 et seq.
73 CJS, Public Administrative Bodies and Procedure §§ 73, 74.
ALR and L Ed Annotations—
Sufficiency of agency's compliance with requirement of Administrative Procedure Act (5
USCS § 553(c)) that agency shall incorporate in rules adopted concise general statement of their
basis and purpose. 46 ALR Fed 780.
When will member of federal regulatory board, commission, authority, or similar body be
enjoined from participating in rulemaking or adjudicatory proceeding because of "personal bias
or other disqualification" under 5 USCS § 556(b). 51 ALR Fed 400.
Necissity for federal agency to order de novo hearing where presiding employee at agency
[7 Miu Supfk]
227
-------
§ 25-43-5 Public Officers, Records, etc.
abdication under Administrative Procedure Act (5 USCS g 654(d)) must be replaced during
hearing. 51 ALH Fed 470.
§ 25—43—7. Notice of proposed agency adoption, amendment or re-
peal of rules; emergency rules.
(1) Prior to the adoption, amendment or repeal of any rule, the agency
shall give at least thirty (30) days' notice of its intended action. The notice
shall include a statement of either the terms or substance of the intended
action or a description of the subjects and issues involved, and the manner
in which interested persons may present their views thereon. The notice
shall be filed with the office of the secretary of state and mailed by the
agency to all persons who have made timely request of the agency for
advance notice of its rule-making proceedings. The secretary of state shall
furnish copies at the request of any person and shall be reimbursed by the
requesting person for the expense of providing such service.
(2) If an agency finds that an imminent peril to the public health, safety
or welfare requires adoption of a rule upon fewer than thirty (30) days'
notice and states in writing its reasons for that finding, it may proceed
without prior notice of hearing or upon any abbreviated notice and hearing
that it 'finds practicable to adopt an emergency rule. The rule may be
effective for a period of not longer than one hundred twenty (120) days,
renewable once for a period not exceeding ninety (90) days, but the adoption
of an identical rule under subsection (1) of this section is not precluded.
(3) No rule hereafter adopted is valid unless adopted in substantial
compliance with this section. A proceeding to contest any rule on the
ground of noncompliance with the procedural requirements of this section
must be commenced within one (1) year from the effective date of the rule.
SOURCES: Laws, 1976, ch- 487, § 4, eff from and after January 1, 1977.
Cross references—
Exemption, until July i, 1987, of State Board of Health ,and Commission on Natural
Resources from time restraints imposed by this section in promulgating regulations under
Chapter 67 of Title 41, concerning individual onsite wastewater disposal systems, see § 41-67-7.
Compliance with this section in regulation of ambulatory surgical facilities, see § 41-73-21.
Research and Practice References—
2 Am Jur 2d, Administrative Law §§ 279, 280.
73 CJS, Public Administrative Bodies and Procedure § 101.
Legislation or rulemaking, 1 Am Jur PI & Pr Forms (Rev ed). Administrative Law, Forms 31
et seq.
ALR and L Ed Annotations—
Administrative decision or finding baaed on evidence secured outside of hearing, and without
presence of interested party or counsel 18 ALR2d 552.
Administrative decision by officer not prewni when evidence was taken. 18 ALR2d 606.
Weight,, in administrative proceeding, of evidence of surveys or polls of public or consumer'»
opinion, recognition, preference, or the like 76 A!Jt2d 633.
Stare decisis doctrine as applicable u> dec.aior.« of administrative agencies. 79 ALR2d 1126.
Comment note: right to assistance by cuunte! m administrative proceedings. 33 ALR3d 229.
Comment note: hearsay evidence ir. pn.*rr
-------
Administrative Procedures § 25-43-13
^replaced (luring
Bdment or re-
u7»»
Je, the agency
The notice
I'of the intended
find the manner
Jreon. The notice
jn(j. roailed by the
fpf the agency for
gtary of state shall
5 reimbursed by the
ace.
public health, safety
thirty (30) days'
ig, it may proceed
notice and hearing
Je. The rule may be
[red twenty (120) days,
[days, but the adoption
i'is not precluded,
r&dopted in substantial
Ipntest any rule on the
iirements of this section
ifective date of the rule.
MP 1977-
and Commission on Natural
'promulgating regulations under
ir disposal systems, see 5 41-67-7.
cal facilities, see § 41-73-21.
r ed), Administrative Law, Forms 31
> outside of hearing, and without
deuce was taken. 18 ALR2d 606.
f^urveyB or polU of public or consumer's
jlS. ¦
pinistrative agencies. 79 ALR2d 1126.
jjnistrative proceedings. 33 ALR3d 229.
before state administrative agencies. 36
Ijf Administrative Procedure Act (5 USCS
than 30 days after publication. 66 ALR
in omce of secretary of state;
if the secretary of state a certified
[7 Miu Supft]
copy of each rule adopted by it, including all rules existing on January 1,
1977. The secretary of Btate shall keep a permanent register of the rules
open to public inspection.
(2) Each rule hereafter adopted iB effective thirty (30) days after filing,
except that:
(a) If a later date is required by statute or specified in the rule, the later
date is the effective date.
(b) Subject to applicable constitutional or statutory provisions, an emer-
gency rule becomes effective immediately upon filing with the secretary of
state, or at a stated date less than thirty (30) days thereafter if the agency
finds that this effective date is necessary because of imminent peril to the
public health, safety or welfare. The agency's finding and a brief statement
of the reasons therefor shall be filed with the rule. The agency shall take
appropriate measures to make emergency rules known to the persons who
may be affected by them.
SOURCES: Laws, 1976, ch. 487, § 5, eff from and after January 1,1977.
Research and Practice References—
2 Am Jur 2d, Administrative Law }§287, 290.
73 CJS, Public Administrative Bodies and Procedure §j 102,107.
ALR and L Ed Annotations—
Compliance with provision of Administrative Procedure Act, 5 USCS § 663(d), providing that,
with certain exceptions, required publication of a substantive rule must be made at leaat 30
days before ita effective date. 64 ALR Fed 653.
§ 25-43-11. Compilation and indexing of rules.
(1) The agency Bhall compile and index all effective rules adopted and
shall furnish the secretary of state with a copy of such rules and index.
Compilations shall be supplemented or revised as often as necessary and at
least once every two (2) years.
(2) Copies of bulletins and compilations shall be made available by the
secretary of state upon request to agencies and officials of this state at no
cost to the agencies and officials. Other persons may receive copies by
requesting them and reimbursing the secretary of state for publication and
mailing cost.
SOURCES: Law, 1976, ch. 487, § 6, eff from and after January 1, 1977.
Cross references—
Compliance with this section in regulation of ambulatory surgical facilities, see § 41-73-21.
§ 25—43—13. Notice of intended revocation, suspension, annulment
or withdrawal of license; emergency suspension of license.
No revocation, suspension, annulment or withdrawal of any license /is
lawful unless prior to the institution of agency proceedings the ag£hcy gives
notice by mail to the licensee of facts or conduct which warrant the
intended action and the licensee is given an opportunity to show compliance
with all lawful requirements for the retention of the license. If the agency
finds that public health, safety or welfare imperatively requires emergency
action and incorporates a finding to that effect in its order, summary
suspension of a license may be ordered pending proceedings for revocation
or other action. These proceedings shall be promptly instituted and deter-
mined.
SOURCES: Laws, 1976, ch. 487, $ 7, eff from and after January 1, 1977,
PMmSupp)
229
-------
§ 25-43-13
Public Officers, Records, etc.
Research and Practice Referenc
2 Am Jur 2d, Administrative Law jj 366 et seq., 397 et seq.
73 CJS, Public Administrative Bodies and Procedure 55 130 et seq.
Abdication or exercise of determinative powers, 1 Am Jur PI & Pr Forms (Rev ed),
Administrative Law, Forms 61 et sea.
ALR Annotations—
Administrative decision or finding based on evidence secured outside of hearing, and without
presence of interested party or counsel. 18 ALR2d 652.
Administrative decision by officer not present when evidence was taken. 18 ALR2d 606.
Stare decisis doctrine as applicable to decisions of administrative agencies. 79 ALR2d 1126.
Comment note: right to assistance by counsel in administrative proceedings. 33 ALR3d 229.
Comment note: hearsay evidence in proceedings before state administrative agencies. 36
ALR3d 12.
Validity and construction of state statutory provision forbidding court to stay, pending
review, judgment or order revoking or suspending professional, trade, or occupational license.
42 ALR4th 616.
"Willfulness" and "public health, interest, or safety" exceptions to notice and opportunity for
compliance provisions of Administrative Procedure Act (6 USCS § 568(c)) dealing with with-
drawal, suspension, revocation, or annulment of license. 46 ALR Fed 660.
Right to statement of reasons, under Administrative Procedure Act (6 USCS 5 566(e)), for
denial of written application, petition, or other request of interested person made in connection
with agency proceeding. 67 ALR Fed 765.
§ 25—43—15. Application of conflicting statutory provisions govern-
ing agency procedures in contested cases.
Specific statutory provisions governing agency procedures in contested
cases which are in direct conflict with any of the provisions of this chapter
shall continue to be applied to all proceedings of any such agency to the
extent of such conflict only.
SOURCES: Laws, 1976, ch- 487, § 8, eff from and after January 1,1977.
§ 25—4S-17. Opponents of proposed rules to have opportunity to
present their views and to review adverse rulings.
Each agency shall adopt procedures to assure that persons who give
timely notice of their desire to contest the making of any rule shall have an
opportunity to present their views and have the opportunity for review of
adverse rulings.
SOURCES: Laws, 1976, ch. 487, § 9, eff from and after January 1, 1977.
Research and Practice Reference*—
2 Am Jur 2d, Administrative Law §§ 281 et seq.
73 CJS, Public Administrative Bodies and Procedure §§97, 98.
Legislation or rulemaking, 1 Am Jur PI & Pr Forms (Rev ed), Administrative Law, Forms 31
et seq.
ALR Annotations—
Administrative decision or finding based on evidence secured outside of hearing, and without
presence of interested party or counsel 18 ALR2d 552.
Administrative decision by officer not preoent when evidence was taken. 18 ALR2d 606.
Stare decisis doctrine as applicable to decmiuru, of administrative agencies. 79 ALR2d 1126.
Comment note: right to assistance bv iuliwI in administrative proceedings. 33 ALR3d 229.
Comment note: hearsay evidence m pritrtrdm^a before state administrative agencies. 36
ALR3d 12.
§ 25—43—19. Proceedings to which chapter applicable.
This chapter shall not apply to proceedings pending on January 1, 1977,
but shall apply to all agencies and agency proceedings thereinafter begun
and not expressly exempted herein.
SOURCES: Laws, 1976, ch. 487, § 10, eff from and after January 1, 1977.
Sec.
25-4;
25-4.
25-4.
25-4.
25-4;
25-4.
25-4;
25-4:
25-4;
§25
It
shall
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5
Edito
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et seq.
§25-
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230
[7 Miu Supp]
(7 Mu
-------
State of North Carolina
lacy h. thornblrg Department of Justice
ATTORNEY GENERAL P.O. BOX 629
RALEIGH ! ¦
27602-0629
December 15,1989 /'.
L'.r
Mr. James H. Sargent '
Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street
Atlanta, Georgia 30365
RE: Effective date for North Carolina regulations
implementing SIP revisions
Dear Mr. Sargent:
Your November 16, 1989 letter to North Carolina
Attorney General Lacy H. Thornburg requesting information on
the manner in which SIP revisions become effective in North
Carolina has been referred to me for reply. The Attorney
General thanks you for your request, and I am pleased to
offer the following information.
The procedure by which regulations, including revisions
to the State Implementation Plan (contained in Title 15 N.C.
Admin. Code subch. 2D, and subch. 2H sec. .0600) become
effective in North Carolina does not fit precisely into any
of the three categories listed in your letter. Proposed
regulations are published in the North Carolina Register,
per N.C. Gen. Stat. 150B-12 and 63. Except for temporary
rules (N.C. Gen. Stat. 150B-13), regulations which are
adopted become effective on the first day of the second
calendar month after filing with the Director of the North
Carolina Office of Administrative Hearings. See: N.C. Gen.
Stat. 150B-59.
To reflect when SIP revisions become effective in North
Carolina, I propose the following footnote to the list
included with your letter:
Proposed rules are published in the N.C. Register.
Final rules, as adopted by the N.C. Environmental
Management Commission, are effective the first day of
An Equal Opportunity/Affirmative Action Employer
-------
Mr. James H. Sargent
December 15, 1989
Page Two
the second calendar month after filing with the
Director of the N.C. Office of Administrative Hearings.
As you requested, copies of the relevant portions of
the North Carolina Administrative Procedures Act, Articles 2
and 5 of Chapter 150B of the General Statutes, are enclosed.
Thank you again for your request. Should you require
additional information, please do not hesitate to contact me
directly at the letterhead address or (919)733-9039.
With best wishes for the holiday season, I am,
Sincerely,
LACY H. THORNBURG
Attorney General
JAJ/lbg
Enclosures
-------
§ 150B-3
ART. 2. RULE MAKING
§ 150B-9
(a) When an applicant or a licensee makes a timely and suffiy
cient application for issuance or renewal of a license or occupation^
license, including the payment of any required license fee, tha^x-
isting license or occupational license does not expire until araeci-
sion on the application is finally made by the agency, an^rif the
application is denied or the terms of the new license or oconpational
license are limited, until the last day for applying fot/fudicial re-
view of the agency order. This subsection does no^anect agency
action summarily suspending a license or occupational license un-
der subsections (b) and (c) of this section. f
(b) Before the commencement of proceedingaflor the suspension,
revocation, annulment, withdrawal, recall, cancellation, or amend-
ment of any license other than an occupational license, the agency
shall give notice to the licensee, pursuanjrto the provisions of G.S.
150B-23. Before the commencement ofrGuch proceedings involving
an occupational license, the agency^nall give notice pursuant to
the provisions of G.S. 150B-38. Injifther case, the licensee shall be
given an opportunity to show cynpliance with all lawful require-
ments for retention of the license or occupational license.
(c) If the agency finds tha^he public health, safety, or welfare
requires emergency actioiyand incorporates this finding in its or-
der, summary suspension^ a license or occupational license may
be ordered effective onJme date specified in the order or on service
of the certified copy m the order at the last known address of the
licensee, whicheveans later, and effective during the proceedings.
The proceedings/inall be promptly commenced and determined.
Nothing in t)fis subsection shall be construed as amending or
repealing an^pecial statutes, in effect prior to February 1, 1976,
which projloe for the summary suspension of a license. (1973, c.
1331, s Jf 1985, c. 746. s. 1.)
beam Periodicals. — For comment. Noah Carolina APA, see 7 N.C. Cent.
"T^nVoblem of Procedural Delay in L.J. 347 119761.
CMtested Case Hearings ..." under the
§§ 150B-4 to 150B-8: Reserved for future codification pur-
poses.
Article 2.
Rule Making.
§ 150B-9. Minimum procedural requirements; limi-
tations on rule-making authority; no
criminal sanctions authorized.
(a) It is the intent of this Article to establish basic minimum
procedural requirements for the adoption, amendment, or repeal of
administrative rules. Except for temporary rules which are pro-
vided for in G.S. 150B-13, the provisions of this Article are applica-
ble to the exercise of any rule-making authority conferred by any
9
-------
§ 150B-9 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-9
statute, but nothing in this Article repeals or diminishes additional
requirements imposed by law or any summary power granted by
law to the State or any State agency. No rule hereafter adopted is
valid unless adopted in substantial compliance with this Article.
(b) Each agency shall adopt, amend, suspend or repeal its rules
in accordance with the procedures specified in this Article and^pur-
suant to authority delegated by law and in full compliance witn its
duties and obligations. No agency may adopt any rule that imple-
ments or interprets any statute or other legislative enactment un-
less the power, duty, or authority to carry out the provisions of the
statute or enactment is specifically conferred on the agency in the
enactment, nor may any agency make any rule enlarging the scope
of any trade or profession subject to licensing.
(c) The power to declare what shall constitute a crime and how it
shall be punished and the power to establish standards for public
conduct are vested exclusively in the General Assembly. No agency
may adopt any rule imposing a criminal penalty for any act or
failure to act, including the violation of any rule, unless the Gen-
eral Assembly authorizes a criminal sanction and specifies a crimi-
nal penalty for violation of the rule.
(d) No agency may adopt as a rule the verbatim text of any fed-
eral or North Carolina statute or any federal regulation, but an
agency may adopt all or any part of such text by reference under
G.S. 150B-14. (1973, c. 1331, s. 1; 1985, c. 746, s. 1.)
Editor's Note. — Session Laws 1985,
c. 746, s. 3, effective July 12, 1985, pro-
vides: "Each agency subject to Articles 2
and 5 of Chapter 150A [recodified as
Chapter 150B) of the General Statutes
shall, not later than November 1, 1985,
review its rules and report to the Gen-
eral Assembly in the form prescribed by
the chief hearing officer of the Otl'ice of
Administrative Hearings which rules it
recommends should continue to be in ef-
fect after July 1, 1986. The report shall
be in writing on an individual rule basis
and, as to each rule, the agency shall
slate:
ill The purpose of the rule;
C_'l Whether the rule must be filed
under the definition of a rule in
G.S. 150A2(8a> IG.S. 150B-
2i8al);
131 Whether the power to adopt the
rule is specifically conferred on
the agency by statute or other
legislative enactment;
(41 Whether the rule imposes a
criminal penalty;
(5) Whether the rule minimizes the
duplicating of statutory lan-
guage;
(6) Whether any documents incor-
porated in the rule by reference
are conveniently available to
the public; and
(71 Whether the rule, to the extent
practicable, uses plain lan-
guage."
Session Laws 1985 (Reg. Sess., 1986),
c. 1028, s. 37 provides: "Each agency
subject to Articles 2 and 5 of Chapter
150B of the General Statutes shall, not
later than September 1, 1986, review ite
rules as required by Section 3 of Chapter
746 of the 1985 Session Laws except that
the report required therein shall be filed
with the Administrative Rules Review
Commission and not the General Assem-
bly. An agency that substantially com-
plied with Section 3 of Chapter 746 of
the 1985 Session Laws shall not refile
the report filed with the General Assem-
bly but shall supplement that report by
filing a similar report with the Adminis-
trative Rules Review Commission as to
any rules that became effective after the
preparation of the original report. The
Legislative Services Officer shall deliver
all reports filed in compliance with Sec-
tion 3 of Chapter 746 of the 1985 Session
Laws to the chairman of the Adminis-
trative Rules Review Commission. The
chairman may require an agency to file
a new report if there is any dispute as to
whether one has been filed or whether
one that has been filed complies with the
requirements set forth in that section."
Session Laws 1987, c. 819, s. 35 pro-
vides: "Notwithstanding G.S. 150B-13,
the Crime Victims Compensation Com-
10
-------
§ 150B-10
ART. 2. RULE MAKING
§ 150B-10
mission may. until six months from the
effective date of this act. adopt tempo-
rary rules to carry out the purposes of
Chapter 15B of the General Statutes
without prior notice or hearing or upon
any abbreviated notice or hearing the
Commission finds practicable. The Com-
mission shall begin normal rule-making
procedures on permanent rules in accor-
dance with Article 2 of Chapter 150B at
the same time it adopts a temporary
rule. Temporary rules adopted under
this section shall be published by the Di-
rector of the Office of Administrative
Hearings in the North Carolina Register
CASE
Editor's Note. — The cases below
were decided under corresponding provi-
sions of former Chapter 150A.
Notice and Opportunity to Be
Heard Required. — Substantial com-
pliance under former S 150A-9. among
other things, required notice and the op-
portunity to be heard, as provided by for-
mer § 150A-12, before the adoption of a
rule. American Guar. & Liab. Ins. Co. v.
Ingram. 32 N.C. App. 552. 233 S.E.2d
and shall be effective for a period of not
loncrr than 180 days."
Section 37 of Session Laws 1987, c.
819. provides: "This act is effective upon
ratification. Victims of offenses occur-
ring on or after that date may be eligible
to receive awards under the act only if
the 1987 General Assembly appropri-
ates money for the Crime Victims Com-
pensation Fund." The act was ratified
August 13. 1987.
Legal Periodicals. — For article dis-
cussing limitations on ad hoc adjudica-
tory rulemaking by an administrative
agency, see 61 N.C.L. Rev. 67 (1982).
NOTES
398. cert, denied, 292 N.C. 729, 235
S.E.2d 782 (1977).
Construction with Coastal Area
Management Act. — The mandatory
provisions of the Administrative Proce-
dure Act must be read as complement-
ing the procedural safeguards in the
Coastal Area Management Act of 1974.
Adams v. North Carolina Dep't of Natu-
ral & Economic Resources, 295 N.C. 683.
249 S.E.2d 402 (1978).
§ 150B-10. Statements of organization and means
of access to be published.
To assist interested persons dealing with it, each agency shall, in
a manner prescribed by the Director of the OfTice of Administrative
Hearings, prepare a description of its organization, stating the pro-
cess whereby the public may obtain information or make submis-
sions or requests. The Director of the Office of Administrative
Hearings shall publish these descriptions annually. (1985, c. 746, s.
1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1), 1(6).)
Effect of Amendments. — The 1985 Legal Periodicals. — For survey of
(Reg. Sess., 1986) amendment, effective 1980 administrative law. see 59 N.C.L.
July 15, 1986. substituted "Director of Rev. 1017 (1981).
the OfTice of Administrative Hearings" For article. "Advisory Rulings by Ad-
for Administrative Rules Review Com- ministrative Agencies: Their Benefits
mission in the first sentence, and sub- an(j Dangers." see 2 Campbell L. Rev. 1
stituted "Director" for "chief hearing of- < 1980>.
ficer" in the second sentence.
CASE NOTES
Editor's Note. — The cases below Procedural rules which describe how the
were decided under corresponding provi- agency will discharge its assigned func-
sions of former Chapter 150A and ear- tions and the requirements others must
lier statutes. follow in dealing with the agency; (21
Administrative agency rules may Legislative rules which are established
be grouped into three categories: (1) by an agency as a result of a delegation
11
-------
§ 150B-11 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-11
of legislative power to the agency; and
(3) Interpretative rules which interpret
and apply the provisions of the statute
under which the agency operates. Slate
ex rel. Commissioner of Ins. v. North
Carolina Rate Bureau, 300 N.C. 381,
269 S.E.2d 547, rehearing denied, 301
N.C. 107, 273 S.E.2d 300 (1980).
The Supreme Court is not limited
to the label placed on a rule by an
agency, but must look instead to the
substance of the rule in question. State
ex rel. Commissioner of Ins. v. North
Carolina Rate Bureau, 300 N.C. 381,
269 S.E.2d 547, rehearing denied, 301
N.C. 107, 273 S.E.2d 300 (1980).
Amendments to State Guidelines
as Administrative Rule-Making. —
Amendments to the State guidelines by
the Coastal Resources Commission are
considered administrative rule-making
under this section and thus subject lo
the comprehensive additional safe-
guards contained in the Administrative
Procedure Act. Adams v. North Carolina
Dep't of Natural & Economic Resources,
295 N.C. 683, 249 S.E.2d 402 (1978).
Requirement by the Commissioner
of Insurance that audited data be
submitted in a ratemaking case was
a legislative rule and therefore subject
to the rule-making provisions of the
North Carolina Administrative Proce-
dure Act. State ex rel. Commissioner of
Ins. v. North Carolina Rate Bureau, 300
N.C. 381, 269 S.E.2d 547, rehearing de-
nied, 301 N.C. 107, 273 S.E.2d 300
(1980).
Construction of Former § 150A-
10(4). — The exclusion of policy state-
ments or interpretations "made in the
decision of a contested case" included in
subdivision (4) of former § 150A-10
clearly was not intended lo embrace sub-
stantive rules with anticipated future
applicability. This is so because of the
difference between interpretative and
legislative rules and because subdivi-
sion (6) of former § 150A-10, which ex-
cludes "interpretative rules and general
statements of policy of the agency"
would be unnecessary if subdivision (4)
of former § 150A-10 were intended to
apply to matters beyond the contested
case in question. State ex rel. Commis-
sioner of Ins. v. North Carolina Rate Bu-
reau, 300 N.C. 381, 269 S.E.2d 547, re-
hearing denied, 301 N.C. 107, 273
S.E.2d 300 (1980).
§ 150B-11. Special requirements.
In addition to other rule-making requirements imposed by law,
each agency shall:
(1) Adopt rules setting forth the nature and requirements of all
formal and informal procedures available, including a list-
ing of all forms that are required by the agency. Proce-
dures concerning only internal management which do not
directly affect the rights of or procedures available to the
public shall not be adopted as rules.
(2) Make available for public inspection all rules and all other
written statements of policy or interpretations formulated,
adopted, or used by the agency in the disharge of its func-
tions, except those used only for internal management of
the agency.
(3) Submit to the Director of the Budget a summary of any
proposed rule requiring the expenditure or distribution of
State funds and obtain approval of such expenditure or
distribution of State funds prior to publishing the notice of
public hearing required by G.S. 150B-12(2). For purposes
of this subdivision the term "State funds" shall have the
same meaning as is set out in G.S. 143-1 and shall also
apply to the funds of all occupational licensing boards in-
cluded under G.S. 150B-1. The agency shall include a fiscal
note with any proposed rule, other than a temporary rule,
so submitted. The fiscal note shall state what effect, if any,
the proposed rule will have on the revenues, expenditures,
or fiscal liability of the State or its agencies or subdivi-
12
-------
§ 150B-12
ART. 2. RULE MAKING
§ 150B-12
sions. The fiscal note shall include an explanation of how
such effect, if any, was computed.
(4) Submit a fiscal note in accordance with G.S. 120-30.48 for a
proposed rule that affects the expenditures or revenues of a
unit of local government. The fiscal note shall be submit-
ted no later than the date when a notice of public hearing
on the proposed rule is published in 'he North Carolina
Register. Tne notice shall state that a fiscal note has been
prepared for the proposed rule and may be obtained from
the agency. An erroneous fiscal note prepared in good faith
does not aflect the validity of a rule. (1973, c. 1331, s. 1:
1979, 2nd Sess., c. 1137, s. 41.1; 1983, c. 761, s. 185; 1985,
c. 746, s. 1; 1987, c. 827, s. 54.)
Editor's Note. — The reference in
subdivision (3) of this section to
5 150B-12(2) was apparently intended
to refer to § 150B-12laH2).
Effect of Amendments. — The 1987
amendment, effective August 13. 1987.
added subdivision (4V
Legal Periodicals. — For note on the
public's access to public records, see 60
N.C.L. Rev. 853 (1982).
OPINIONS OF ATTORNEY GENERAL
Procedures Substantially Affect-
ing Nonagency Persons Must Be
Adopted as Rules. — When
§ 150B-2(8a) and § 150B-1U1) are read
together, it is apparent that any proce-
dures. whether formal or informal, that
directly or substantially affect the rights
or procedures of nonngency persons
must be ndopted as rules. See Opinion of
Attorney General to Elizabeth H. Drury.
Director. Office of Legislative and Legal
Affairs. Department of Human Re-
sources. 56 N.C.A.G. 25 (198fi>.
§ 150B-12. Procedure for adoption of rules.
(a) Before the adoption, amendment or repeal of a rule, an
agency shall give notice of a public hearing and offer any person an
opportunity to present data, opinions, and arguments. The notice
shall be given within the time prescribed by any applicable statute,
or if none then at least 30 days before the public hearing and before
the adoption, amendment, or repeal of the rule. The notice shall
include:
(1) A reference to the statutory authority under which the ac-
tion is proposed;
(2) The time and place of the public hearing and a statement of
the manner in which data, opinions, and arguments may
be submitted to the agency either at the hearing or at
other times by any person; and
(3) The text of the proposed rule, or amendment in the form
required by G.S. 150B-63(d2) and the proposed effective
date of the rule or amendment.
(b) Repealed by Session Laws 1987, c. 285, s. 8.
(c) The agency shall publish the notice in the North Carolina
Register and as prescribed in any applicable statute.
The agency may also publish the notice or a synopsis of the notice
in other ways selected by the agency to give notice to persons likely
to be affected by the proposed rule. Methods that may be employed
by the agency, depending upon the circumstances, include publica-
tion of the notice in one or more newspapers of general circulation
13
-------
§ 150B-12 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-12
or, when appropriate, in trade, industry, governmental or profes-
sional publications.
(d) The public hearing shall not be conducted as a contested case
unless a specific statute requires that the proposed rule be adopted
by adjudicatory procedures.
(e) The proposed rule shall not be changed or modified after the
notice required by this section is published and before the rule-
making hearing. The agency shall consider fully all written and
oral submissions respecting the proposed rule. Upon adoption of a
rule, the agency, if requested to do so by an interested person either
prior to adoption or within 30 days thereafter, shall issue a concise
statement of the principal reasons for and against its adoption,
incorporating therein its reasons for overruling the consideration
urged against its adoption. The record in every rule-making pro-
ceeding under this Article shall remain open at least 30 days either
before or after the hearing for the purposes of receiving written
comments, and any such comments shall be included in the hearing
records. All comments received, as well as any statement of reasons
issued to an interested person under this section, shall be included
in the rule-making record.
(f) No rule-making hearing is required for the adoption, amend-
ment, or repeal of a rule which solely describes forms or instruc-
tions used by the agency.
(g) No rule-making hearing is required if the Director of the
Office of Administrative Hearings determines that the amendment
to a rule does not change the substance of the rule and that the
amendment is:
(1) A relettering or renumbering instruction; or,
(2) The substitution of one name for another when an organi-
zation or position is renamed; or,
(3) The correction of a citation to rules or laws which has be-
come inaccurate since the rule was adopted because of re-
pealing or renumbering of the rule or law cited; or
(4) The correction of a similar formal defect; or
(5) A change in information that is readily available to the
public such as addresses and telephone numbers.
(h) No rule-making hearing is required to repeal a rule if the
repeal of the rule is specifically provided for by the Constitution of
the United States, the Constitution of North Carolina, any federal
or North Carolina statute, any federal regulation, or a court order.
No rule-making hearing is required to amend or repeal a rule to
comply with G.S. 143B-30.2 in accordance with G.S. 150B-59(c).
(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 63; 1977, c. 915, s. 2;
1983, c. 927, ss. 3, 7; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.
1022, s. 1(1), 1(7); 1987, c. 285, ss. 7-9.)
Editor's Note. — Session Laws 1985,
c. 746, s. 14, effective Jan. 1. 1966, pro-
vides that the notice publication re-
quirement of subsection (c) of this sec-
lion shall be deemed to be met if an
agency publishes notice in three news-
papers with general circulation prior to
the first publication of the North Caro-
lina Register.
Sesaion Laws 1986, Extra Session, c.
2, s. 1 provides: "Prior to the first publi-
cation of the North Carolina Register
the notice of publication requirements of
G.S. 150B- 12(c) are met if an agency
publishes in one or more newspapers of
general circulation notice which in-
cludes:
"(1) A reference to the statutory au-
thority under which the action is pro-
posed.
"(2) The time and place of the public
hearing and a statement of the manner
14
-------
§ 150B-13
ART. 2. RULE MAKING
§ 150B-13
in which data, views, and arguments
may be submitted to the agency either
at the hearing or at other times by any
person.
"(3) A statement of the terms or sub-
stance of the proposed rule or a descrip-
tion of the subjects and issues involved,
and the proposed effective date of the
rule."
Session Laws 1986. Extra Session, c.
2, s. 2 provides that Session Laws 1985,
c. 746, s. 14, which is noted under this
section in the 1985 Cumulative Supple-
ment. is repealed, "except that such re-
peal shall not affect the validity of any
notices published before March I. 1986.
under that section."
Session Laws 1986, Extra Session, c.
2, s. 3 makes the act effective upon rati-
fication. The act was ratified February
18. 1986.
Effect of Amendments. — The 1985
(Reg. Sess., 1986) amendment, effective
July 15. 1986, substituted "Director" for
"chief hearing officer" in subsection (b)
and substituted "Director of the Office of
Administrative Hearings determines"
for "Administrative Rules Review Com-
mission certifies" in the introductory
language of subsection (gi.
The 1987 amendment, effective on the
first day of the fourth calendar month
after ratification, deleted "at least 60
days" preceding "before the adoption"
near the end of the second sentence of
subsection (a), deleted subsection (bl,
which read "The agency shall transmit
copies of the notice to the Director of the
Office of Administrative Hearings, the
Attorney General, and the Governor,"
and added the last sentence of subsec-
tion (h). The act was ratified June 4,
1987.
CASE NOTES
Editor's Note. — The case below was
decided under corresponding provisions
of former Chapter 150A.
Notice and Opportunity to Be
Heard Required. — Substantial com-
pliance under former § 150A-9, among
other things, requires notice and the op-
portunity to be heard, as provided by for-
mer 8 150A-12. before the adoption of a
rule. American Guar. & Liab. Ins. Co. v.
Ingram, 32 N.C. App. 552. 233 S.E.2d
398, cert, denied, 292 N.C. 729, 235
S.E.2d 782 (1977).
OPINIONS OF ATTORNEY GENERAL
Notice Provisions of Other Stat-
utes Control over Former i 150A-12.
— See opinion of Attorney General to
Mr. Gary K. Berman, Administrative
Procedures Office, Department of
Human Resources. 45 N.C.A.G. 217
(1976). issued under corresponding pro-
visions of former Chapter 150A.
§ 150B-13. Temporary rules.
(a) Except as provided in subsection (b) of this section, if an
agency which is not exempted from the notice and hearing require-
ments of this Article by G.S. 150B-1 determines in writing that:
(1) Adherence to the notice and hearing requirements of this
,rticle would be contrary to the public interest; and that
ft) The immediate adoption, amendment, or repeal of a rule is
necessitated by and related to:
a. A serious and unforeseeable threat to public health,
safety, or welfare;
b. The effective date of a recent act of the General Assem-
bly or the United States Congress;
c. A recent change in federal or State budgetary policy;
d. A federal regulation; or
e. A court order,
the agency may adopt, amend, or repeal the rule without prior
notice or hearing or upon any abbreviated notice or hearing the
15
-------
§ 150B-13 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-13
agency finds practicable. The agency must accompany its rules fil-
ing with the Director of the Office of Administrative Hearings and
the Governor with the agency's written certification of the finding
of need for the temporary rule, together with the reasons for that
finding and a copy of the notice of hearing on the proposed perma-
nent rule.
(al) The written certification of the finding of need for the tem-
porary rule shall be signed by:
(1) The member of the Council of State in the case of the De-
partments of Justice, Insurance, Public Education, Labor,
Agriculture, Treasurer, State Auditor, or Secretary of
State.
(2) The chairman of the board in the case of an occupational
licensing board or the Director of the Office of Administra-
tive Hearings in the case of that agency.
(3) The Governor in the case of all other agencies.
(b) If the Department of Crime Control and Public Safety, Trans-
portation, Revenue, or Correction determines in writing that the
immediate adoption, amendment, or repeal of a rule is necessitated
by:
(1) The public health, safety, or welfare;
(2) The effective date of a recent act of the General Assembly
or the United States Congress;
(3) A federal regulation; or
(4) A court order,
the agency may adopt, amend, or repeal the rule. The agency must
accompany its rule filing with the Director of the Office of Adminis-
trative Hearings and the Governor with the agency's written certi-
fication of the finding of need for the temporary rule signed by the
Governor together with the reasons for that finding. In the case of
the Department of Correction, in addition to the reasons set forth in
subdivisions (1) through (4) of this subsection, the Department may
file a temporary rule when necessary for the management and con-
trol of persons under the custody or supervision of the Department
in extraordinary circumstances as certified by the Secretary. The
Department shall file any temporary rule within two working days
of its adoption by the Secretary under G.S. 148-11.
(c) Rules filed under subsections (a) and (b) of this section shall
be effective for a period of not longer than 180'days and are subject
to review as provided in G.S. 143B-30.2(i). An agency adopting a
temporary rule shall begin normal rule-making procedures on the
permanent rule under this Article at the same time the temporary
rule is adopted. (1973, c. 1331, s. 1; 1981, c. 688, s. 12; 1981 (Reg.
Sess., 1982), c. 1232, s. 1; 1983, c. 857; c. 927, ss. 4, 8; 1985, c. 746, s.
1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1), 1(8); 1987, c. 285, ss.
10-12.)
Editor's Note. — Session Laws 1987,
c. 335, s. 3. provides: "Notwithstanding
Ci S l.^OH-Ui, ilu1 North C.irvlm.1 AuTi-
cultural Puiiince Authority nuy. uruil
six months from the effective date of this
act, adopt temporary rules to carry out
the purposes of Chapter 122D of the
General Statutes without prior notice or
hearing or upon any abbreviated notice
or hearing the Authority finds practica-
ble. The Authority shall begin normal
rule-making procedures on permanent
rules in ,uw>r\ijiww with Article - of
Chapter 150B at the sime time it adopts
a temporary rule. Temporary rules
adopted under this section shall be pub-
lished by the Director of the Office of
Administrative Hearings in the North
Carolina Register and shall be effective
for a period of not longer than 180 days."
16
-------
§ 150B-14
ART. 2. RULE MAKING
§ 150B-14
Session Laws 1987, c. 819. s. 35 pro-
vides: "Notwithstanding G.S. 150B-13,
the Crime Victims Compensation Com-
mission may, until six months from the
effective date of this act, adopt tempo-
rary rules to carry out the purposes of
Chapter 15B of the General Statutes
without prior notice or hearing or upon
any abbreviated notice or hearing the
Commission finds practicable. The Com-
mission shall begin normal rule-making
procedures on permanent rules in accor-
dance with Article 2 of Chapter 150B at
the same time it adopts a temporary
rule. Temporary rules adopted under
this section shall be published by the Di-
rector of the Office of Administrative
Hearings in the North Carolina Register
and shall be effective for a period of not
longer than 180 days."
Section 37 of Session Laws 1987, c.
819. provides: "This act is effective upon
ratification. Victims of offenses occur-
ring on or after that date may be eligible
to receive awards under the act only if
the 1987 General Assembly appropri-
ates money for the Crime Victims Com-
pensation Fund." The act was ratified on
August 13. 1987.
Effect of Amendments. — The 1985
(Reg. Sess., 1986) amendment, effective
July 15, 1986, substituted "Director" for
"chief hearing officer" in subsections (a)
and (b), designated the former third sen-
tence of subsection fa) as subsection (nil.
and rewrote subdivision (all(2>. which
read: "The chairman of the board in the
case of an occupational licensing board."
The 1987 amendment, effective on the
first day of the fourth calendar month
after ratification, rewrote paragraph
(a)(2)a, which read "A threat to public
health, safety, or welfare resulting from
any natural or man-made disaster or
other events that constitute a life
threatening emergency", inserted para-
graph (a)(2)c, redesignated former para-
graphs (aii2)c and (a)(2)d as paragraphs
faH2)d and (a)(2)e. respectively, and sub-
stituted "180 days and are subject to re-
view as provided in G.S. 143B-30.2(i)"
for "120 days" at the end of the first sen-
tence of subsection (c). The act was rati-
fied June 4. 1987.
§ 150B-14. Adoption by reference.
(a) An agency may adopt by reference in its rules, without pub-
lishing the adopted matter in full:
(1) All or any part of a code, standard, or regulation which has
been adopted by any other agency of this State or by any
agency of the United States or by a generally recognized
organization or association:
(2) Any plan or material which is adopted to meet the require-
ments of any agency of the United States and approved by
that agency;
(3) Any plan, material, manual, guide or other document es-
tablishing job application or employment practices or pro-
cedures of any State agency other than the State Personnel
Commission. The State Personnel Commission, however,
shall incorporate by reference in its rules job classification
standards, including but not limited to those relating to
qualifications and salary levels; or
(4) Tne hearings division rules promulgated by the Office of
Administrative Hearings.
In adopting matter by reference, the agency shall specify in the
rule and in the Register whether such adoption is in accordance
with the provisions of subsection or of this section. The
agency can change this election only by a subsequent rulemaking
proceeding.
(b) If an agency adopts matter by reference in accordance with
this subsection, such reference shall not cover any later amend-
ments and editions of the adopted matter, but if the agency wishes
to incorporate them in its rule it shall amend the rule or promul-
gate a new rule.
17
-------
§ 150B-15 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-16
(c) If any agency adopts matter by reference in accordance with
this subsection, such reference shall automatically include any
later amendments and editions of the adopted matter.
(d) An agency may cross-reference its own rules in the North
Carolina Administrative Code without violating the provisions of
(a)(1) of this section. (1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s.
64; 1981 (Reg. Sess., 1982), c. 1359, s. 5; 1983, c. 641, s. 3; c. 768, s.
19; 1985, c. 746, s. 1; 1987, c. 285, s. 13.)
Effect of Amendments. — The 1987
amendment, effective on the first day of
the fourth calendar month after ratifica-
tion, rewrote this section. The act was
ratified June 4, 1987.
§ 150B-15. Continuation of rules.
When a law authorizing or directing an agency to promulgate
rules is repealed, and (i) substantially the same rule-making power
or duty is vested in the same or a successor agency by a new provi-
sion of law, or (ii) the function of the agency to which the rules are
related is transferred to another agency by law or executive order,
the existing rules of the original agency shall continue in effect
until amended or repealed, and the agency or successor agency may
repeal any rule relating to the transferred duty or function. When a
law creating an agency or authorizing or directing it to promulgate
rules is repealed or the agency is abolished and (i) substantially the
same rule-making power or duty is not vested in the same or a
successor agency by a new provision of law and (ii) the function of
the agency to which the rules are related is not transferred to an-
other agency, the existing applicable rules of the original agency
are automatically repealed as of the effective date of the law repeal-
ing the agency's rule-making power or abolishing the agency.
(1973, c. 1331, s. 1; 1985, c. 746, s. 1.)
§ 150B-16. Petition for adoption of rules.
Any person may petition an agency to promulgate, amend, or
repeal a rule, and may accompany his petition with such data,
views, and arguments as he thinks pertinent. Each agency shall
prescribe by rule the form for petitions and the procedure for their
submission, consideration, and disposition. Within 30 days after
submission of a petition, the agency shall either deny the petition
in writing, stating its reasons tor the denial, or initiate rule-mak-
ing proceedings in accordance with G.S. 150B-12 and G.S. 150B-13;
provided, however, commissions and boards shall act on a petition
at their next regularly scheduled meeting, but in any case no later
than 120 days after submi.^ion of a petition. Denial of the petition
to initiate rule making under this section shall be considered a final
agency decision for purposes of judicial review. (1973, c. 1331, s. 1;
1985, c. 746, s. 1.)
Legal Periodicals. — Kor article. Agencies: Their Benefits and Dangers,"
"Advisory Rulings by Administrative s« 2 Campbell L. Rev. 1 (1980).
18
-------
§ 150B-17
ART. 2. RULE MAKING
§ 150B-17
CASE NOTES
Editor's Note. — The cases below
were decided under corresponding provi-
sions of former Chapter 150A.
Judicial Review of Denial. — An
agency's denial of a petition for rule
making under former § 150A-16 is sub-
ject to judicial review pursuant to the
provisions of former § 150A-43. In re
Wheeler, - N.C. App. 354 S.E.2d
374 (1987).
Plaintiff Failing to Exhaust Ad-
ministrative Remedies Not Entitled
to Judicial Relief. — PlaintilT collec-
tion agency was not entitled to seek a
declaratory judgment in the superior
court as to the validity and applicability
of a regulation of the Department of In-
surance prohibiting collection agencies
from instituting judicial proceedings on
behalf of other persons, where plaintiff
failed to exhaust available administra-
tive remedies by petitioning the Depart-
ment of Insurance for amendment or re-
peal of the regulation under former
§ 150A-16 or seeking a declaratory rul-
ing from the Department oflnsurance as
to the validity and applicability of the
regulation under former § 150A-17. and
then by seeking judicial review of an ad-
verse Department of Insurance decision
under former § 150A-43 et seq. Porter v.
North Carolina Dep't of Ins., 40 N.C.
App. 376. 253 S.E.2d 44. cert, denied.
297 N.C. 455, 256 S.E.2d 808 (1979), de-
cided under former Chapter 150A.
§ 150B-17. Declaratory rulings.
On request of a person aggrieved, an agency shall issue a declara-
tory ruling as to the validity of a rule or as to the applicability to a
given state of facts of a statute administered by the agency or of a
rule or order of the agency, except when the agency for good cause
finds issuance of a ruling undesirable. The agency shall prescribe in
its rules the circumstances in which rulings shall or shall not be
issued. A declaratory ruling is binding on the agency and the per-
son requesting it unless it is altered or set aside by the court. An
agency may not retroactively change a declaratory ruling, but noth-
ing in this section prevents an agency from prospectively changing
a declaratory ruling. A declaratory ruling is subject to judicial re-
view in the same manner as an order in a contested case. Failure of
the agency to issue a declaratory ruling on the merits within 60
days of the request for such ruling shall constitute a denial of the
request as well as a denial of the merits of the request and shall be
subject to judicial review. (1973, c. 1331, s. 1; 1985, c. 746, s. 1.)
Legal Periodicals. — For article, Agencies: Their Benefits and Dangers."
"Advisory Rulings by Administrative see 2 Campbell L. Rev. 1 (1980).
CASE NOTES
Editor's Note. — The cases below
were decided under corresponding provi-
sions of former Chapter 150A.
Former S 150A-17 clearly does not
contemplate an evidentiary proceed-
ing. If evidence were required to estab-
lish the facts, then the proper procedure
would have been to hold a contested case
hearing. In re Ford, 52 N.C. App. 569,
279 S.E.2d 122 (1981).
A declaratory ruling by an admin-
istrative agency is subject to judicial
review as though it were an agency
final decision or order in a contested
case. High Rock Lake Ass'n v. North
Carolina Envtl. Mgt. Comm'n, 51 N.C.
App. 275, 276 S.E.2d 472 (1981).
Plaintiff Failing to Exhaust Ad-
ministrative Remedies Not Entitled
to Judicial Relief. — Plaintiff collec-
tion agency was not entitled to seek a
declaratory judgment in the superior
court as to the validity and applicability
of a regulation of the Department of In-
surance prohibiting collection agencies
from instituting judicial proceedings on
behalf of other persons, where plaintiff
failed to exhaust available administra-
19
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§ 150B-18 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-23
tive remedies by petitioning the Depart-
ment of Insurance for amendment or re-
peal of the regulation under former
4 150A-16 or seeking a declaratory rul-
ing from the Department of Insurance as
to the validity and applicability of the
regulation under former § 150A-17, and
then by seeking judicial review of an ad-
verse Department of Insurance decision
under former $ 150A-43 et seq. Porter v.
North Carolina Dep't of Ins., 40 N.C.
App. 376, 253 S.E.2d 44, cert, denied,
297 N.C. 455, 256 S.E.2d 808 (1979).
Trial Court Lacked Jurisdiction
Where Declaratory Relief Not Pur-
sued in Agency Proceeding. — Origi-
nal jurisdiction for a declaratory ruling
as to the rights and interest of parties in
a pier and boat ramp extending over a
state-owned lake rested in the Depart-
ment of Natural Resources and Commu-
nity Development. As the parties did not
pursue such declaratory relief and failed
to exhaust their administrative reme-
dies prior to instituting their civil ac-
tion, the trial court lacked subject mat-
ter jurisdiction. Woodlief v. Johnson. 75
N.C. App. 49, 330 S.E.2d 265 (1985).
§§ 150B-18 to 150B-21: Reserved for future codification pur-
poses.
A PTIf-T P 3
Administrative Hearings. .
§ 150B-22. Settlement; contested case. /
It is the policy of this State that any dispute between aiy&gency
and another person that involves the person's rights, duties, or
privileges, including licensing or the levy of a monetary penalty,
should oe settled through informal procedures. In trjylg to reach a
settlement through informal procedures, the ageny'may not con-
duct a proceeding at which sworn testimony is tak^n and witnesses
may be cross-examined. Notwithstanding any>fther provision of
law, if the agency and the other person do notjggree to a resolution
of the dispute through informal procedures, eiuier the agency or the
person may commence an administrative Proceeding to determine
the person s rights, duties, or privilegesyOt which time the dispute
becomes a "contested case." (1985 (M. Sess., 1986), c. 1022, s.
1(11).) /
Editor's Note. — Session Laws 1985 /
iReg. Sess., 1986), c. 1022, s. 11, maker
this section effective July 15, 198^r
§ 150B-23. Commencement; assignment of admin-
istrative law judge; hearing required;
notice; intervention.
(a) A contestafl case shall be commenced by filing a petition with
the Office of^raministrative Hearings and, except as provided in
Article 3A or this Chapter, shall be conducted by that Office. The
party wh^iles the petition shall also serve a copy of the petition on
all otheoparties and shall file a certificate of service together with
the polltion. Any petition filed by a party other than an agency
shayroe verified or supported by affidavit and shall state facts tend-
inwto establish that the agency named as the respondent has de-
20
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§ 150B-3
1989 CUMULATIVE SUPPLEMENT
§150B-12
of the Attorney General to Mr. Stephen
M. Wallis, Deputy Securities Adminis-
trator (acting), 58 N.C.A.G. 76 (Sept. 6,
1988).
The Securities Division is an "oc-
the meaning of subsection (4b) ofjnis
section. See opinion of the j^lBrney
General to Mr. Stephen M. Wallis, Dep-
uty Securities Administrator (acting).
58 N.C.A.G. 76 (Sept. fiT1988).
§ 150B-3. Special provisions on licensing.
CASE NOTES
Stated in Miller v. North Carolina signal Eng'rs & Land Surveyors, 322
State Bd. of Registration for Profes- j&.C. 465, 368 S.E.2d 605 (1988).
OPINIONS OP^TTORNEY GENERAL
The requirements in subsection (c)
of this section that an agency make a
finding that the "publrc health, safety,
or welfare requirej^mergency action"
prior to a sumrarfry suspension of a li-
cense or an^dccupational license, and
that the aanicy incorporate such finding
in its oarfer of suspension, are not in any
wav^m conflict with the findings re-
ministrator by § 78A-39(a) prior to
denying, suspending, or revoking the
registration of a securities dealer or
salesman and by $ 78A-29(a) prior to
denying, suspending, or revoking the ef-
fectiveness of a securities registration
statement. See opinion of the Attorney
General to Mr. Stephen M. Wallis, Dep-
uty Securities Administrator (acting),
red to be made by the securities ad- 58 N.C.A.G. 76 (Sept. 6, 1988).
Article 2.
Rule Making.
/9&T
§ 150B-11. Special requirements.
CASE NOTES
The Board of Medical Examiners is
required by this section to establish
regulations and procedures related
to reinstatement of licenses automati-
cally suspended under § 90-14(a)(10), to
afford procedural protection to sus-
pended licensees. In re Magee, 87 N.C.
App. 650, 362 S.E.2d 564 (1987).
§ 150B-12. Procedure for adoption of rules.
(h) No rule-making hearing is required to repeal a rule if the
repeal of the rule is specifically provided for by the Constitution of
the United States, the Constitution of North Carolina, any federal
or North Carolina statute, any federal regulation, or a court order.
No rule-making hearing is required to adopt, amend or repeal a
rule to comply with G.S. 143B-30.2 in accordance with G.S.
150B-59(c).
(1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 63; 1977, c. 915, s. 2;
1983, c. 927, ss. 3, 7; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.
1022, s. 1(1), 1(7); 1987, c. 285, ss. 7-9; 1989, c. 5, s. 1.)
54
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§150B-13
ADMINISTRATIVE PROCEDURE ACT
§150B-23
Only Part of Section Set Out — As
the rest of the section was not affected
by the amendment, it is not set out.
Editor's Note. —
Session Laws 1989, c. 5, s. 3 provides
that s. 1 of c. 5 shall apply retroactively
to January 1, 1986.
Effect of Amendments. —
The 1989 amendment, effective March
1. 1989, and applicable retroactively to
January 1, 1986. inserted "adopt." in the
second sentence of subsection (h).
§ 150B-13. Temporary rules.
Editor's Note. —
Session Laws 1989, c. 544, s. 22, pro-
vides that rules amended to comply with
c. 544. which amended various sections
of Chapters 19A. 81A. and 106 may be
filed as temporary rules pursuant to
G.S. 150B-13, and shall become perma-
nent without any further rule-making
procedures.
Session Laws 1989. c. 752. s. 84 pro-
vides "Notwithstanding G.S. 150B-13,
the State Board of Community Colleges
may, until six months from the effective
date of this act IJuly 1, 19891, adopt tem-
porary rules for college formula alloca-
tions without prior notice or hearing or
upon any abbreviated notice or hearing
the State Board of Community Colleges
finds practicable. The State Board of
Community Colleges shall begin normal
rule-making procedures on permanent
rules in accordance with Article 2 of
Chapter 150B at the same time it adopts
a temporary rule as authorized under
this section. Temporary rules adopted
under this section shall be published by
the Director of the Office of Administra-
tive Hearings in the North Carolina
Register and shall be effective for a pe-
riod of not longer than 180 days."
Amille 0.
Administrative Hearings.
§ 150B-22. Settlement; contested case.
CASE NOTES
State Employee's Attempt to Re-
cover for Surgery Costs. — State em-
ployee's dispute with the Board of
Trustees of the Teachers' and State Em-
ployees' Comprehensive Major Medical
Plan, an administrative agency, seeking
to recover costs of surgery should have
been brought i^fler this Chapter. Vass
v. Board ofJMstees, 89 N.C. App. 333.
366 S.E.^^, cert, granted. 323 N.C.
180, 3T3fS.E.2d 126 (1988).
Ci^ra in Vass v. Board of Trustees. —
Njr—. 379 S.E.2d 26 (1989).
§ 150B-23. Commencement; assignment of admin-
istrativ^flaw judge; hearing required;
noticorfntervention.
(f) Unless anotha^statute or a federal statute or regulation sets a
time limitation farthe filing of a petition in contested cases against
a specified agaprcy, the general limitation for the filing of a petition
in a contest*! case is 60 days. The time limitation, whether estab-
lished by^nother statute, federal statute, or federal regulation, or
this sedfron, shall commence when notice is given of the agency
decisi^i to all persons aggrieved who are known to the agency by
pe^onal delivery or by the placing of the notice in an official depos-
of the United States Postal Service wrapped in a wrapper
55
-------
§ 150B-53
ART. 5. ADMINISTRATIVE RULES
§ 150B-58
Jiatet
At
¦UU.
sion Laws 1987, c. 878, provides that ss.
16 through 20 of c. 878 shall apply to
petitions for review filed on or after Sep-
tember 1, 1987.
amendment, effective September 1,
1987, rewrote this section.
CASE NOTES
Editor's Note. — The cases below
were decided under corresponding provi-
sions of former Chapter 150A and ear-
lier statutes.
Scope of Appellate Review. — The
scope of review to be applied by the ap-
pellate court under this section is the
same as it is for other civil cases. That
is. it must be determined whether the
trial court committed any errors of law.
American Nat'l Ins. Co. v. Ingram, 63
N.C. App. 38, 303 S.E.2d 649. cert, de-^'
nied. 309 N.C. 819, 310 S.E.2d 348
(1983). y'
Legal proceeding must be^prose-
cuted by a legal person, whether it be
a natural person who is spfjuris or a
group of individuals or oUrer entity hav-
ing the capacity to su^emd be sued, such
as a corporation, opnnership, unincor-
porated association, or governmental
body or agenc^^Jven a class action must
be prosecuUQ or defended by one or
more nann members of the class. A le-
gal pi^feding prosecuted by an aggre-
gatUmofanonymous individuals, known
o^ to their counsel, is a phenomenon
unknown to the law of Ms jurisdiction.
In re Coleman, 11 Ny^App. 124, 180
S.E.2d 439 (197iy^
Rule that appeal to appellate divi-
sion may be^jfrosecuted only at the
instance of^a party or parties ag-
grieved the judgment of the court or
tribur^*! from which the appeal is taken
apnlf&s with as much force to proceed-
ings governed by former Article 33 of
Chapter 143 as to ordinary civil cases. In
re Coleman. 11 N.C. App. 124, 180
S.E.2d 439 (1971).
Appeal Must Follow Theory of
Trial. — Where petitioner relied upon
jurisdiction under former § 143-314 be-
fore the trial court, on appeal he could
not argue that the trial court had origi-
nal subject matter jurisdiction pursuant
to § 7A-240 based upon a constitutional
right to hearing and judicial review,
since an appeal must follow the theory of
the trial. Grissom v. North Carolina
Dep't of Revenue, 34 N.C. App. 381, 238
S.E.2d 311 (1977). cert, denied. 294 N.C.
183, 241 S.E.2d 517 (1978).
§§ 150B-53 to 150B-57: Reserved for future codification pur-
poses.
Article 5.
Publication of Administrative Rules.
§ 150B-58. Short title.
This Article may be cited as "The Registration of State Adminis-
trative Rules Act." (1973, c. 1331, s. 1; 1977, c. 915, s. 7; 1979, c.
541, s. 1; 1983, c. 147, s. 3; c. 641, s. 4; 1985, c. 746, s. 1.)
Editor's Note. — Session Laws 1985,
c. 746. s. 3, effective July 12, 1985, pro-
vides: "Each agency subject to Articles 2
and 5 of Chapter 150A [recodified as
Chapter 150B] of the General Statutes
«hall, not later than November 1, 1985,
review its rules and report to the Gen-
eral Assembly in the form prescribed by
the chief hearing officer of the Office of
Administrative Hearings which rules it
recommends should continue to be in ef-
fect after July 1, 1986. The report shall
be in writing on an individual rule basis
and. as to each rule, the agency shall
state:
(1) The purpose of the rule;
59
a
* n
*¦ sr
B
¦o
9i
n
fj
-------
S 150B-59 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-59
l'2) Whether the rule must be filed
under the definition of a rule in
G.S. 150A-2(8ai [G.S. 150B-
2(8a)l;
v3) Whether the power to adopt the
rule is specifically conferred on
the agency by statute or other
legislative enactment;
14) Whether the rule imposes a
criminal penalty;
^5) Whether the rule minimizes the
duplicating of statutory lan-
guage:
(61 Whether any documents incor-
porated in the rule by reference
are conveniently available to
the public; and
(7) Whether the rule, to the extent
practicable, uses plain lan-
guage."
Session Laws L985, c. 746. s. 4, effec-
tive Jan. 1, 1986, provides: "All person-
nel and equipment presently assigned to
the Department of Justice for the pur-
pose of carrying out the provisions of Ar-
ticle 5. Chapter 150A I recodified as this
Articlel of the General Statutes, are
transferred to the Office of Administra-
tive Hearings by a Type 1 transfer as
defined by G.S. l43A-6lal."
Session Laws 1985 (Reg. Sess., 1986),
c. 1028. s. 37 provides: "Each agency
subject to Articles 2 and 5 of Chapter
150B of the General Statutes shall, not
later than September L, 1986, review its
rules as required by Section 3 of Chapter
746 of the 1985 Session Laws except that
the report required therein shall be filed
with the Administrative Rules Review
Commission and not the General Assem-
bly. An agency that substantially com-
plied with Section 3 of Chapter 746 of
the 1985 Session Laws shall not refile
the report filed with the General Assem-
bly but shall supplement that report by
filing a similar report with the Adminis-
trative Rules Review Commission as to
any rules that became effective after the
preparation of the original report. The
Legislative Services Ofiicer shall deliver
all reports filed in compliance with Sec-
tion 3 of Chapter 746 of the 1985 Session
Laws to the chairman of the Adminis-
trative Rules Review Commission. The
chairman may require an agency to file
a new report if there is any dispute as to
whether one has been filed or whether
one that has been filed complies with the
requirements set forth in that stction."
Legal Periodicals. — For article,
"Advisory Rulings by Administrative
Agencies: Their Benefits and Dangers,"
see 2 Campbell L. Rev. 1 (1980).
§ 150B-59. Filing of rules and executive orders.
(a) Rules adopted by an agency and executive orders of the Gov-
ernor shall be filed with the Director of the Office of Administrative
Hearings no sooner than 90 days before their effective date. No
rule, except temporary rules adopted under the provisions of G.S.
150B-13 or rules approved under G.S. 143B-30.2(e) or reviewed and
objected to under (f) [G.S. 143B-30.2(0], shall become effective ear-
lier than the first day of the second calendar month after that fil-
ing.
(b) The acceptance for filing of a rule by the Director, by his
notation on its face, shall constitute prima facie evidence of compli-
ance with this Article.
(c> Rules adopted by an agency subject to the provisions of Arti-
cle 2 of this Chapter in effect on January 1, 1986, that conflict with
or violate the provisions of G.S. 150B-9(c) are repealed. Rules
adopted by an agency subject to the provisions of Article 2 of this
Chapter in effect on September 1, 1986, that do not conflict with or
violate the provisions of G.S. 150B-9(c) shall remain in effect until
June 30, 1988. These rules are repealed effective July 1, 1988, un-
less the Administrative Rules Review Commission determines that
a rule complies with G.S. 143B-30.2(a). Review of these rules shall
be carried out in the manner prescribed in G.S. 143B-30.2 except
that a rule determined to be in compliance shall remain in effect. In
the event of rules which the Commission determines do not comply
with G.S. 143B-30.2, such rules may be revised or repealed by the
60
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§ 150B-60
ART. 5. ADMINISTRATIVE RULES
5 150B-60
agency without a rule-making hearing in accordance with G.S.
150B-12(h). Revised rules shall be returned to the Commission. If
the Commission approves the rules, the Commission shall notify
the agency and file the rules with the Office of Administrative
Hearings. Rules adopted on or after January 1, 1986, shall become
effective as provided in this Chapter. (1973, c. 1331, s. 1; 1975, c. 69.
ss. 1, 2, 5, 6: 1979, c. 571, s. 1; 1981, c. 688, s. 13; 1981 (Reg. Sess.,
1982), c. 1233, s. 6; 1983, c. 641, s. 5; c. 927, s. 5; 1985, c. 746, s. 1;
1985 (Reg. Sess., 1986), c. 851, ss. 5, 6; c. 1022, s. 1(1); c. 1028. ss.
34, 36; 1987, c. 285, ss. 14, 15.)
Editor's Note. — The phrase "G.S.
143B-30.2 has been inserted in brackets
in subsection la) for greater clarity.
Session Laws 1985 'Reg. Sess., 1986),
c. 1028. s. 38 is a severability clause.
Effect of Amendments. — Session
Laws 1985 (Reg. Sess.. 1986). c. 851, ss.
5, 6, effective June 30. 1986. substituted
"July 31. 1986" for "June 30, 1986" in
the second and third sentences of subsec-
tion .
Session Laws 1985 (Reg. Sess., 1986),
c. 1028. ss. 34 and 36 effective July 16,
1986. substituted "or rules approved un-
der G.S. 143B-30.2(e) or (0" for "or cura-
tive rules adopted pursuant to G.S.
143B-29.2(d>" in the second sentence of
subsection (a), and rewrote the second,
third and fourth sentences of subsection
(c). which read, "Rules adopted by an
agency subject to the provisions of Arti-
cle 2 of this Chapter in efTect on January
1. 1986, that do not conflict with or vio-
late the provisions of G.S. 150B-9(c>
shall remain in efTect until June 30.
1986. These rules are repealed effective
July 1, 1986, unless approved by the
General Assembly on or before June 30.
1986. The approval of rules by the Gen-
eral Assembly shall not be deemed to
enact the approved rules or to prohibit
their subsequent amendment, repeal or
recodification under the provisions of
this chapter."
Subsection fc) is set out above as
amended bv Session Laws 1985 (Reg.
Sess.. 1986). c. 1028.
The 1987 amendment, effective on the
first day of the fourth calendar month
after ratification, added "no sooner than
90 days before their effective date" at
the end of the first sentence of subsec-
tion (al. inserted "reviewed and objected
to under" preceding "(f)" in the second
sentence of subsection (a), and inserted
the present fifth and sixth spntences of
subsection (c). The act was ratified June
4. 1987.
OPINIONS OF ATTORNEY GENERAL
Rules Effective before January 31, eral to Mr. Sam H. Long. III. Legal
1976, Are Not Enforceable until Counsel to the Governor. 45 N.C.A.G.
Filed. — See opinion of Attorney Gen- 207 (1976). issued under prior law.
§ 150B-60. Form of rules; responsibilities of agen-
cies; assistance to agencies.
(a) In order to be acceptable for filing, the rule must:
(1) Cite the statute or other authority pursuant to which the
rule is adopted;
(2) Bear a certification by the agency of its adoption;
(3) Cite any prior rule or rules of the agency or its predecessor
in authority which it rescinds, amends, supersedes, or sup-
plements;
(4) be in the physical form specified by the Director of the
Office of Administrative Hearings; and
61
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§ 150B-61 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-61
(5) Bear a notation from the Administrative Rules Review
Commission that it has reviewed the rule in accordance
with G.S. 143B-30.2.
(b) Each agency shall designate one or more administrative pro-
cedure coordinators whose duties shall be to oversee all departmen-
tal functions required by this Chapter. The coordinator's duties
shall include providing notice of public hearings; serving as liaison
between the agency and the Office of Administrative Hearings, the
Administrative Rules Review Commission and the public; and coor-
dinating access to agency rules.
(c) The Director of the Office of Administrative Hearings shall:
(1) Maintain an agency rule-drafting section in the Office of
Administrative Hearings to draft or aid in the drafting of
rules or amendments to rules for any agency; and
(2) Prepare and publish an agency rule-drafting guide which
sets out the form and method for drafting rules and amend-
ments to rules, and to which all rules shall comply. (1973,
c. 1331, s. 1; 1979, c. 571, s. 1; 1981, c. 688, s. 14; 1983, c.
927, ss. 6, 9; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.
1022, s. 1(1); c. 1028, s. 35; 1987, c. 285, s. 16.)
Editor's Note. — Session Laws 1985
(Reg. Sess., 1986), c. 1028, s. 38 is a sev-
erability clause.
Effect of Amendments. — Session
Laws 1985 (Reg. Sess., 1986), c. 1022, s.
1(1), effective July 15, 1986, substituted
"Director" for "chief hearing officer" in
subdivision (a)(4) and in subsection (c).
Session Laws 1985 (Reg. Sess., 1986),
c. 1028, s. 35, effective July 16, 1986,
rewrote subdivision (a)(5) which for-
merly read: "Bear a notation by the Gov-
ernor that the rule has been submitted
in accordance with G.S. 143A-55.3(c).
This subdivision does not apply to rules
adopted by the Industrial Commission,
or by the Utilities Commission, or to
rules adopted by the Department of
Transportation relating to traffic sign
ordinances or road and bridge weight
limits."
The 1987 amendment, effective on the
first day of the fourth calendar month
after ratification, deleted "and ap-
proved" following "has reviewed" in sub-
division (a)(5). The act was ratified June
4, 1987.
§ 150B-61. Authority to revise form.
(a) The Director of the Office of Administrative Hearings shall
have the authority, following acceptance of a rule for filing, to re-
vise the form of the rule as follows:
(1) To rearrange the order of rules, Chapters, Subchapters, Ar-
ticles, sections, paragraphs, and other divisions or subdivi-
sions;
(2) To provide or revise titles or catchlines;
(3) To reletter or renumber the rules and various subdivisions
in accordance with a uniform system;
(4) To rearrange definitions and lists; and
(5) To make other changes in arrangement or in form that do
not alter the substance of the rule and that are necessary
or desirable for an accurate, clear, and orderly arrange-
ment of the rules.
Revision of form by the Director shall not alter the effective date
of a rule, nor shall revision require the agency to readopt or to refile
the rule. No later than the close of the fifth working day after the
filing of a rule by an agency, the Director shall return to the agency
that filed the rule a copy of the rule in any revised form made by
62
-------
§ 150B-62
ART. 5. ADMINISTRATIVE RULES
§ 150B-63
the Director, together with his certification of the date of the rule's
filing.
The rule so revised as to form shall be substituted for and shall
bear the date of the rule originally filed, and shall be the official
rule of the agency.
(b) In determining the drafting form of rules the Director shall:
(1) Minimize duplication of statutory language;
(2) Not permit incorporations into the rules by reference to
publications or other documents which are not conve-
niently available to the public; and
(3) To the extent practicable, use plain language in rules and
avoid technical language. (1973, c. 1331, s. 1; 1985, c. 746,
s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1).)
Effect of Amendments. — The 1985 "chief hearing officer" throughout the
(Reg. Sess., 1986) amendment, effective section.
July 15. 1986. substituted "Director" for
§ 150B-62. Public inspection and notification of
current and replaced rules.
(a) Immediately upon notation of a filing as specified in G.S.
150B-59(b), the Director of the Office of Administrative Hearings
shall make the rule available for public inspection during regular
office hours. Superseded, amended, revised, and rescinded rules
filed in accordance with the provisions of this Article shall remain
available for public inspection. The current and the prior rules so
filed shall be separately arranged in compliance with the provisions
of G.S. 150B-61(a).
(b) The Director shall make copies of current and prior rules,
filed in accordance with the provisions of this Article, available to
the public at a cost to be determined by him.
(c) Within 50 days of the acceptance by the Director of a rule for
filing, the agency filing the rule:
(1) Shall publish the rule as prescribed in any applicable stat-
ute; and
(2) May distribute the rule in a manner selected by the agency
as best calculated to give notice to persons likely to be
affected by the rule.
The rule so published or distributed shall contain the legend:
"The form of this rule may be revised by the Director pursuant to
the provisions of G.S. 150B-61." (1973. c 1331. s. 1. 1985, c. 746, s.
1; 1985 (Reg. Sess., 1986), c. 1022. s. I'M
Effect of Amendments. — The 1985 chief hearing officer" throughout the
(Reg. Sess., 1986) amendment, effective section
July 15, 1986, substituted "Director" for
§ 150B-63. Publication of executive orders and
rules; the North Carolina Register.
(a) The Director of the Office of Administrative Hearings shall
compile, index and publish executive orders of the Governor and all
rules filed and effective pursuant to the provisions of this Article.
63
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§ 150B-63 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-63
(b) As nearly as practicable the compilation shall, in classifica-
tion, arrangement, numbering, and indexing, conform to the orga-
nization of the General Statutes.
(c) If the Director determines that publication of any rule would
be impracticable, he shall substitute a summary with specific refer-
ence to the official rule on file in his office.
(d) As soon as practicable after July 1, 1985, the Director shall
publish, in print or other form, a compilation of all rules in force
pursuant to the provisions of this Article. Cumulative supplements
shall be published annually or more frequently in the discretion of
the Director. Recompilations shall be made in the Director's discre-
tion.
(dl) The Director shall also publish at periodic intervals, but not
less often than once each month, the North Carolina Register which
shall contain information required by law to be published in it, and
information relating to agency, executive, legislative or judicial
actions that are performed under the authority of, or are required
by, or are issued to interpret, or that otherwise affect, this Chapter.
The North Carolina Register shall also contain notices under G.S.
120-165(a).
(d2) In publishing proposed amendments to rules, the Director
shall show the portion of the rule being amended as it is to the
degree necessary to provide adequate notice of the nature of the
proposed amendment, with changes shown by striking through por-
tions to be deleted and underlining portions to be added.
(e) Notwithstanding G.S. 147-50, reference copies of the compila-
tion, supplements, and recompilations of the rules, and the North
Carolina Register shall be distributed by the Director as soon after
publication as practicable, without charge, only to the following
officials and departments:
(1) One copy to each county of the State, which copy may be
maintained for public inspection in the county in a place
determined by the county commissioners; one copy each to
the clerk of the Supreme Court of North Carolina and the
clerk of the North Carolina Court of Appeals; one copy
each to the libraries of the Supreme Court of North Caro-
lina and the North Carolina Court of Appeals; one copy to
the Administrative Office of the Courts; one copy to the
office of the Governor; and five copies to the Legislative
Services Commission for the use of the General Assembly;
(2) Upon request, one copy to each State official and depart-
ment to which copies of the appellate division reports are
furnished under G S. 7A-343.1;
(3) Five copies to the Division of State Library of the Depart-
ment of Cultural Resources, pursuant to G.S. 147-50.1; and
(4) Upon request, one copy of the North Carolina Register to
each member of the General Assembly.
(0 The Director shall mjkr available to persons not listed in
subsection (e) copies of the compilation, supplements, and
recompilations of the rulea and the North Carolina Register, and
shall make available to all persons copies of other public documents
filed in the Office of Administrative Hearings. Tne Director shall
set a fee to be charged tor publications and documents made avail-
able under this subsection at an amount that covers publication,
copying, and mailing costs. All moneys received by the Office of
Administrative Hearings pursuant to this subsection shall be de-
64
-------
§ 150B-63.1
ART. 5. ADMINISTRATIVE RULES
§ 150B-63.1
posited in the State treasury in a special funds account to be held in
trust for the Office of Administrative Hearings to defray the ex-
pense of future recompilation, publication, and distribution of such
documents. All moneys involved shall be subject to audit by the
State Auditor.
(g) Notwithstanding any other provision of law, the Employment
Security Commission shall, within 15 days of adoption, file all rules
adopted by it with the Director for public inspection and publication
purposes only. The Director shall compile, make available for in-
spection, and publish the rules filed under this subsection in the
same manner as is provided for other rules. (1973. c. 1331, s. 1; c.
69, ss. 3, 7; c. 688, s. 1; 1979, c. 541, s. 2; 1979, 2nd Sess.. c. 1266. ss.
1-3; 1981 (Reg. Sess., 1982), c. 1359, s. 6; 1983. c. 641, s. 6; 1985. c.
746, s. 1; 1985 (Reg. Sess., 1986), c. 1003, s. 2; c. 1022, ss. l( 1), 1( 19);
c. 1032, s. 12; 1987, c. 774, ss. 2-4.)
Editor's Note. — Section 147-50.1,
referred to in subdivision (e>(3). was re-
pealed by Session Laws 1987. c. 771.
Effect of Amendments. — Session
Laws 1985 'Rep. Sess.. 19861. c. 1003. s.
2. effective July 14. 1986. added the sec-
ond sentence of subsection .
Session Laws 1985 iRee- Sess.. 19861.
c. 1022, s. 1(1). efTective July 1. 1986.
substituted references to the Director for
references to the chief hearing officer
throughout the section.
Session Laws 1985 (Reg. Sess., 1986),
c. 1022, s. 1(19), efTective July 15, 1986,
inserted "Notwithstanding G.S. 147-50"
and inserted "only" in the introductory
language of subsection (e).
Session Laws 1985 (Reg. Sess., 1986),
c. 1032, s. 12, effective July 16. 1986.
inserted "required by law to be pub-
lished in it, and information" near the
middle of subsection (dl).
The 1987 amendment, effective Au-
gust 12, 1987, inserted "one copy to the
Administrative Office of the Courts" in
subdivision (e)(1). inserted "Upon re-
quest" at the beginning of subdivisions
(e)(2) and (el(4t. substituted the present
first and second sentences of subsection
-------
§ 150B-64 CH. 150B. ADMINISTRATIVE PROCEDURE ACT § 150B-64
§ 150B-64. Judicial and official notice.
Judicial or official notice shall be taken of any rule effective un-
der this Article. (1973, c. 1331, s. 1; 1985, c. 746, s. 1.)
CASE NOTES
Editor'9 Note. — The case below was
decided under corresponding provisions
of former Chapter 150A.
Judicial Notice of Regulations. —
Where promulgating agency is not sub-
ject to the Administrative Procedure
Act, the court is only required to lake
judicial notice of its regulations if sub-
mitted in accordance with certain proce-
dures designed to insure their accuracy.
Southern Ry. v. O'Boyle Tank Lines, 70
N.C. App. L, 318 S.E.2d 872 (1984).
66
8746
-------
S150B-52
ADMINISTRATIVE PROCEDURE ACT
§150B-59
¦ft 150B 53i Apponl; otoy of oourfo ^iwwwwp
CASE NOTES
Scope of Appellate Review, etc. —
In accord with main volume. See Tay
v. Flaherty, 90 N.C. App. 346, 368
S.E.2d 403, cert, denied, 323 N.C. 370,
373 S.E.2d 556 (19881.
When an appellate court reviews the
decision of a lower court, (as opposed to
when it reviews an administrative
agency's decision on direct appeal), the
scope of review to be applied by the ap-
pellate court under this section is the
same as it is for other civil cases. Hen
derson v. North Carolina Dep^of
Human Resources, 91 N.C. 527,
372 S.E.2d 887 (1988).
Appellate Review jT Improper
Constitutional Consideration. — Al-
though the trial arort improperly con-
sidered a coMTtutional issue, where
that cour^racated the Department of
NaturaWlesources and Community De-
velopment's assessment based on an in-
prelation of N.C. Const.. Art. IV, § 3, N.C. —jJi
which the department properl^fftal-
lenged on appeal, the Court ojmppeals
would address that constitutional
ground in the exercise oHts supervisory
jurisdiction. In re^fppeal from Civil
Penalty Assesseddbr Violations of Sedi-
mentation Rpmition Control Act, 92
N.C. Apc^TT373 S.E.2d 572, superse-
deas aJWwed on reconsideration, — N.C.
—>674 S.E.2d 873 (1988).
failure to Cross-Appeal Consti-
tuted Waiver. — Where trial court er-
roneously failed to render conclusions
concerning all statutory grounds for re-
view raised by the petition for review,
petitioners' failure to cross-appeal any
such error to the appellate court waived
its consideration on appeal. In re Appeal
from Civil Penalty Assessed for Viola-
tions of Sedimentation Pollution Control
Act, 92 N.C. App. 1. 373 S.E.2d 572, su-
persedeas allowed on reconsideration, —
->
Article 5
Publication of Administrative Rules.
8 150B-59. Filing of rules and executive orders.
(c) Rules adopted by an agency subject to the provisions of Arti-
cle 2 of this Chapter in effect on January 1, 1986, whether or not
amended on or after that date, that conflict with or violate the
provisions of G.S. 150B-9(c) are repealed. Rules adopted by an
agency subject to the provisions of Article 2 of this Chapter in effect
on September 1, 1986, whether or not amended on or after that
date, that do not conflict with or violate the provisions of G.S.
150B-9(c) shall remain in effect until July 15, 1988. These rules are
repealed effective July 16, 1988, unless the Administrative Rules
Review Commission determines that a rule complies with G.S.
143B-30.2(a). Provided, however, that:
(1) The rules of the Office of State Personnel and the occupa-
tional licensing boards shall remain in effect until Febru-
ary 28, 1990, but are repealed effective March 1, 1989,
unless approved by the Administrative Rules Review Com-
mission.
(2^ The rules of the Department of Human Resources shall
remain in effect until June 30, 1990, but are repealed effec-
tive July 1, 1990, unless approved by the Administrative
Rules Review Commission.
(3) Although the Department of Cultural Resources, the Office
of the Governor, and the Council of State did not file the
63
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S150B-59
1989 CUMULATIVE SUPPLEMENT
S150B-59
reports required under Chapter 746, Session Laws of 1985,
nevertheless the rules of these three agencies shall remain
in effect until February 28, 1989, but are repealed effective
March 1, 1989, unless approved by the Administrative
Rules Review Commission.
Review of these rules shall be carried out in the manner pre-
scribed in G.S. 143B-30.2 except that a rule determined to be in
compliance shall remain in effect. In the event of rules which the
Commission determines do not comply with G.S. 143B-30.2, such
rules may be revised or repealed by the agency without a rulemak-
ing hearing in accordance with G.S. 15QB-12(h). Revised rules shall
be returned to the Commission. If the Commission approves the
rules, the Commission shall notify the agency and file the rules
with the Office of Administrative Hearings. Rules adopted on or
after January 1, 1986, shall become effective as provided in this
Chapter. (1973, c. 1331, s. 1; 1975, c. 69, ss. 1, 2, 5, 6; 1979, c. 571, s.
1; 1981, c. 688, s. 13; 1981 (Reg. Sess., 1982), c. 1233, s. 6; 1983, c.
641, s. 5; c. 927, s. 5; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c.
851, ss. 5, 6; c. 1022, s. 1(1); c. 1028, ss. 34, 36; 1987, c. 285, ss. 14,
15; 1987 (Reg. Sess., 1988), c. 1036, s. 18.1; c. 1053; c. 1111, s. 4;
1989, c. 5, s. 2; c. 538, s. 2.)
Only Part of Section Set Out. — As
the rest of the section was not affected
by the amendments, it is not set out.
Editor's Note. —
Section 3 of Session Laws 1989, c. 5,
provides that s. 2 of c. 5 shall apply ret-
roactively to January 1, 1986.
Session Laws 1989, c. 727, s. 226, as
amended by Session Laws 1989, c. 751,
s. 17, provides: "The provisions of G.S.
l50B-59(c)(2), as amended by Section 2
of Chapter 538 of the 1989 Session Laws,
shall apply to any agency which is a part
of the Department of Human Resources
on 30 June 1989, even though such
agency is subsequently transferred to
the Department of Environment,
Health, and Natural Resources or to any
other department."
Session. Laws 1969, c. 751, s. 21 pro-
vides: 'The provisions of G.S.
150B-59(cl(2), as amended by Section 2
of Chapter 538 of the 1989 Session Laws,
shall apply to any agency which is a part
of the Department of Human Resources
on 30 June 1989, even though such
agency is subsequently transferred to
the Department of Economic and Com-
munity Development or to any other de-
partment."
Effect of Amendments. —
Session Laws 1987 (Reg. Sess., 19881,
c. 1036, s. 18.1, effective June 30, 1988,
substituted "July 5, 1988" for "June 30,
1988" and "July 6, 1988" for "July 1,
1988" in subsection (c).
Session Laws 1987 (Reg. Sess., 1988),
c. 1053, effective July 5, 1988. amended
subsection (c) of this section, as amended
by Session Laws 1987 (Reg. Sess.. 1988i,
c. 1036, s. 18.1, by substituting "July 15,
1988" for "July 5, 1988" and "July 16.
1988" for "July ti, 1988."
Session Laws 1987 (Reg. Sess., 19881,
c. 1111, s. 4, effective July 1, 1988,
added "Provided, however, that" at the
end of the introductory paragraph of
subsection (ci and inserted subdivisions
(cHU through (c>(3).
Session Laws 1989, c. 5, s. 2, effective
March 1, 1989, and applicable retroac-
tively to January 1, 1986, inserted
"whether or not amended on or after
that date," in the second sentence of sub-
section (c).
Session Laws 1989, c. 538, s. 2, effec-
tive October 1, 1989, substituted the
year 1990 for the year 1989 in two
places in subdivision tc)<2).
64
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S150B-61
ADMINISTRATIVE PROCEDURE ACT
§150B-63
§ 150B-61. Authority to revise form.
(c) The agency shall be responsible for notifying the Director
within 30 days after a rule becomes effective of any typographical
or technical error in the rule as codified. The Director snail correct
the codified rule if it differs from the rule as adopted by the agency.
Errors in any rule discovered more than 30 days after codification
shall be changed only by the procedures established by Article 2 of
this Chapter. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess.,
1986), c. 1022, s. 1(1); 1987 (Reg. Sess., 1988), c. 1111, s. 23.)
Only Part of Section Set Out. — As The 1987 (Reg. Sess.. 1988) amend-
the rest of the section was not affected ment, effective July 1, 1988, added sub-
bv the amendment, it is not set out. section (c).
Effect of Amendments. —
§ 150B-63. Publication of executive orders and
rules; the North Carolina Register.
(e) Notwithstanding Article 1A of Chapter 125 of the General
Statutes, reference copies of the compilation, supplements, and
recompilations of the rules, and the North Carolina Register shall
be distributed by the Director as soon after publication as practica-
ble, without charge, only to the following officials and departments:
(1) One copy to each county of the State, which copy may be
maintained for public inspection in the county in a place
determined by the county commissioners; one copy to the
Administrative Rules Review Commission; one copy each
to the clerk of the Supreme Court of North Carolina and
the clerk of the North Carolina Court of Appeals; one copy
each to the libraries of the Supreme Court of North Caro-
lina and the North Carolina Court of Appeals; one copy to
the Administrative Office of the Courts; one copy to the
office of the Governor; and five copies to the Legislative
Services Commission for the use of the General Assembly;
(2) Upon request, one copy to each State official and depart-
ment to which copies of the appellate division reports are
furnished under G.S. 7A-343.1;
(3) Five copies to the Division of State Library of the Depart-
ment of Cultural Resources, pursuant to G.S. 125-11.7; and
(4) Upon request, one copy of the North Carolina Register to
each member of the General Assembly.
(f) The Director shall make available to persons not listed in
subsection (e) copies of the compilation, supplements, and
recompilations of the rules and the North Carolina Register, and
shall make available to all persons copies of other public documents
filed in the Office of Administrative Hearings. The Director shall
set a fee to be charged for publications and documents made avail-
able under this subsection at an amount that covers publication,
copying, and mailing costs. All moneys received by the Office of
Administrative Hearings pursuant to this subsection shall be de-
posited in the General Fund.
(1973, c. 1331, s. 1; c. 69, ss. 3, 7; c. 688, s. 1; 1979, c. 541. s. 2;
1979, 2nd Sess., c. 1266, ss. 1-3; 1981 (Reg. Sess., 1982), c. 1359, s. 6;
1983, c. 641, s. 6; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1003,
65
-------
§150B-63 1989 CUMULATIVE SUPPLEMENT S150B-63
s. 2; c. 1022, ss. 1(1), 1(19); c. 1032, s. 12; 1987, c. 774, ss. 2-4; 1987
(Reg. Sess., 1988), c. 1111, s. 3; 1989, c. 500, s. 43(a).)
Only Part of Section Set Out — As
the rest of the section was not affected
by the amendments, it is not set oat.
Editor's Note. —
Section 2 of Session Laws 1989, c. 500
provides that c. 500 shall be known as
"The Current Operations Appropria-
tions Act of 1989."
Session Laws 1989, c. 500, s. 43(b) pro-
vides: "(b) Any funds remaining in the
special funds account established by
G.S. 150B-63(f) shall be credited to the
General Fund."
Session Laws 1989, c. 500, s. 127 pro-
vides: "Except for statutory changes or
other provisions that clearly indicate an
intention to have effects beyond the
1989-91 biennium, the textual provi-
sions of this act shall apply only to funds
appropriated for and activities occuring
during the 1989-91 biennium."
Session Laws 1989, c. 500, S 128 con-
tains a severability clause.
Effect of Amendments. —
The 1987 (Reg. Sess., 1988) amend-
ment, effective July 1, 1988, in subsec-
tion (e) substituted "Notwithstanding
Article 1A of Chapter 125 of the General
Statutes" for "Notwithstanding G.S.
147-50," inserted "one copy to the Ad-
ministrative Rules Review Commis-
sion," and "125-11.7" for "147-50.1".
The 1989 amendment, effective July
1, 1989, substituted the last sentence of
subsection (f) for the former last two sen-
tences, which provided for deposit of
moneys in a special funds account and
for audit of such moneys.
66
-------
South Carolina Department of Health
and Environmental Control
2600 Bull Street
olumbia, S.C. 29201
Commissioner
Michael D. Jarrett
Henry S. Jordan, M.D., Chairman
John B. Pate, M.D., Vice-Chairman
William E. Applegate, III, Secretary
Toney Graham. Jr., M.D.
John H. Burriss
Richard E. Jabbour, D.D.S.
Currte B. Spivey, Jr.
Board
January 29, 1990
James H. Sargent, Esquire
Regional Counsel
U.S. EPA Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Dear Mr. Sargent:
Attorney General Medlock has asked me to respond to your
letter of January 17, 1990, concerning the procedure by which
regulations become effective in South Carolina.
The chart accompanying your letter correctly includes South
Carolina in Category 1. Enclosed is a copy of S.C. Code Ann.
§ 1-23-120 (Supp. 1989), "General Assembly approval of
regulations," which provides that regulations are effective upon
publication in the State Register.
I am also enclosing a copy of § 1-23-130 (Supp. 1989) , which
provides that emergency regulations are effective immediately
upon filing with the Legislative Council. Emergency regulations
remain in effect for ninety days and may be renewable once under
certain circumstances.
Please contact me if I can provide any additional
information.
Sincerely
Carlisle Roberts, Jr
Staff Counsel
CC: Hon. Nathan Kaminski, Jr
FliB S
I.AriTA, •
Office of General Counsel Tel: (803) 734-4910 Fax: (803) 734-5519
-------
Rule Making and Adjudications
§ 1-23-120
ontested Cases
ONS
term care insurance act be
apiinary action against an
nst registered professional
il! eradication, see S 46-10-
oenalbes for violations of
>-48-40. 48-48-70, and 48-
' for strined and black bass
xruments and regula-
riirial notice of con-
care insurance act be in
of proposed promul-
est of regulation for
¦ of a regulation, an
/n of a notice in the
lime when, the place
persons may present
• es before the regula-
an and opportunity of
c State Register. The
>psis of the proposed
omulgation, the time
•ch r °sted persons
mil iscal impact
g ei.„.,ates of costs
incurred by the State and its political subdivisions in complying with
the proposed regulation. This requirement of a preliminary fiscal
impact statement does not apply to those regulations which are not
subject to General Assembly review under the provisions of Section
1-23-120. The notice must be mailed to all persons who have made
timely requests of the agency for advance notice of proposed
promulgation of regulations.
(3) afford all interested persons reasonable opportunity to submit data,
views, or arguments, orally or in writing. Opportunity for oral
hearing, which may not be held sooner than thirty days from the
date of publication of the notice in the State Register, must be
granted if requested by twenty-five persons, by a governmental
subdivision or agency, or by an association having not less than
twenty-five members. The agency shall consider fully all written and
oral submissions respecting the proposed regulation..
[See parent volume for subsection (c)]
HISTORY: 1988 Act No. 605, } 1, eff June 2, 1988; 1989 Act No. 91, } 1, eff May 22, 1989.
Editor1* Note-
Section 4 of 1988 Act* No. 605 provides as follows:
"This act is effective with respect to notices of proposed regulations published in the State"
Register after June 30, 1988."
Effect of Amendment—
The 1988 amendment added in item (2) of subsection (b) language relating to a preliminary
fiscal impact statement.
The 1989 amendment in subsection (b), inserted "and opportunity of oral hearing" in (2),
inserted which may not be held sooner than thirty days from the date of publication of the
notice in the Slate Register," in (3), and made grammatical changes throughout.
Cross refereac
As to General Assembly approval of regulations, see 8 1-23-120.
Requirement that regulations adopted pursuant to the long term care insurance act be in
accordance with this chapter, see i 38-72-70.
§ 1—23—120. General Assembly approval of regulations.
All regulations except those specifically exempted under this article must be
submitted to the General Assembly for review in accordance with the provi-
sions of the article, but no regulation may be submitted to the General
Assembly more than one year after publication of the drafting notice initiating
the regulation pursuant to Section 1-23-110(b). To initiate the process of
review, the agency shall file with the President of the Senate and the Speaker
of the House of Representatives a copy of any regulations promulgated along
with a request for review and a copy of the preliminary fiscal impact statement
prepared by the agency as required in Section 1-23-110(b)(2). Upon receipt of
the request, the President and Speaker reviewing the request shall submit it
for consideration to the standing committees of the Senate and House which
are most concerned with the function of the promulgating agency. A copy of
the regulation or. a synopsis of it must be given to each member of the
committee. The committees have one hundred twenty days from the date
regulations are submitted to the General Assembly to consider regulations so
referred and determine their actions on the regulations. If a regulation is
referred to a committee and no action occurs in that committee on the
regulation within sixty calendar days of receipt of the regulation by the
appropriate committee, the regulation must be placed on the agenda of the
full committee beginning with the next scheduled full committee meeting.
47
-------
§ 1-23-120
Administration of the Government
Only those calendar days occurring during sessions of the General Assembly
are included in computing the days elapsed. If a resolution to approve a
regulation is not enacted within one hundred twenty days after submission to
the General Assembly or if a resolution to disapprove a regulation has not
been introduced by a standing committee to which the regulation was referred
for review, the regulation is effective upon publication in the State Register.
Upon introduction of the first joint resolution disapproving a regulation by a
standing committee to which the regulation was referred for review the one-
hundred-twenty-day period for automatic approval is tolled. A regulation may
not be filed under the emergency provisions of Section 1-23-130 if a joint
resolution to disapprove the regulation has been introduced by a standing
committee to which the regulation was referred. Upon a negative vote by
either the Senate or House of Representatives on the resolution disapproving
the regulation and the notification in writing of the negative vote to the
Speaker of the House of Representatives and the President of the Senate by
the clerk of the house in which the negative vote occurred, the remainder of
the period begins to run. If the remainder of the period is less than ninety
days, additional days must be added to the remainder to equal ninety days.
The introduction of a resolution by the committee of either house does not
prevent the introduction of a resolution by the committee of the other house
to either approve or disapprove the regulations concerned.
The one-hundred-twenty-day period of review begins on the date the
regulation is filed with the President and Speaker. Sine die adjournment of the
General Assembly tolls pie running of the period of review, and the remainder
of the period begins to run upon the next convening of the General Assembly
excluding special sessions called by the Governor.
Any member may introduce a joint resolution approving or disapproving a
regulation or group of regulations thirty days following the date the regula-
tions concerned are submitted to a standing committee for review and no
committee resolution approving or disapproving the regulations has been
introduced and the regulations concerned have not been withdrawn by the
promulgating agency pursuant to Section 1-23-125, but the introduction does
not toll the one-hundred-twenty-day period of automatic approval.
General Assembly review is not required for regulations promulgated to
maintain compliance with federal law including, but not limited to, grant
programs. Review also is not required for regulations promulgated by the
State Board of Financial Institutions in order to authorize state-chartered
banks, state-chartered savings and loan associations, and state-chartered credit
unions to engage in activities that are authorized pursuant to Section 34-1-
110. Review is not required for regulations promulgated by the South Caro-
lina Tax Commission to adopt regulations, revenue rulings, revenue proce-
dures, and technical advice memoranda of the Internal Revenue Service so as
to maintain conformity with the Internal Revenue Code of 1954. All regula-
tions submitted to the General Assembly for approval must have attached to
them a brief synopsis or analysis of the regulations submitted explaining the
content and any changed in existing regulations resulting from the regulations.
The synopsis or analysis must include citations of federal law, if any, mandat-
ing changes in the regulations. The one-hundred-twenty-day period of review
provided for in this section does not begin to run until the synopsis or analysis
is attached to regulations submitted.
HISTORY: 1986 Act No. 414, 5 14, eff May 12, 1986; 1988 Act No. 60S, { 2, eff June 2, 1988;
1989 Act No. 91-8 S off May 22, 1989.
48
Editor's Note-
Section 4 of 1988 Ac
"This art is effective
Register after June 30,
Effect of Amendment!
The 1986 amendmei
authority of the South <
ity with the Internal Re<
The 1988 amendmer
fiscal impact statement,
must be given to each r
approval after a joint re
The 1989 amendmen
or House of Represent
regulations" with "If a
made grammatical chan
Cross references—
As to procedures for
110.
Federal Aspects
As to the Internal Re'
Appeal would be di-
as to the validity of lh<
where, during the pend
lenging their validity,
Dons had been superset
and the issuing agency
It is doubtful that
Carolina would find th
sight provisions of the
§ 1-23-125. a
The legislative o
rized to amend a j
approving the reg
prevent the introdi
of regulations subr.
the same time or
and approving the
If a majority of i
in the form submit
with its recommen
committee approva
(a) withdraw
with the
Governo
consider
(b) withdraw
(c) take no a
•Jie Gent
The notification
-------
Rule Making and Adjudications
§ 1-23-125
3er Assembly
ion pprove a
fter submission to
egulation has not
ition was referred
^ State Register.
" ^ regulation by a
• review the one-
regulation may
23-130 if a joint
by a standing
negative vote by
-ition disapproving
rative vote to the
u of the Senate by
.. the remainder of
is less than ninety
equal ninety days,
ar house does not
af the other house
on the date the
idjoumment of the
and the remainder
Genera] Assembly
or proving a
e date the regula-
or review and no
ilations has been
withdrawn by the
introduction does
jroval.
rs promulgated to
limited to, grant
omulgated by the
ze state-chartered
ie-chartered credit
i to Section 34-1-
y the South Caro-
ls, revenue proce-
enue Service so as
1954. All regula-
t have attached to
ted explaining the
-------
§ 1-23-125
Administration of the Government
approval, and when an agency withdraws regulations from the General Assem-
bly prior to the time a committee resolution to approve or disapprove the
regulation has been introduced, the remainder of the period begins to run
only on the date the regulations are resubmitted to the General Assembly.
Upon resubmission of the regulations, additional days must be added to the
days remaining in the review period for automatic approval, if less than twenty
days, to equal twenty days and a copy of the amended regulation must be
given to each member of the committee. If an agency decides to take no action
pursuant to item (c), it shall notify the committee in writing and the remainder
of the period begins to run only upon this notification.
The provisions of this section, as they apply to approval, disapproval, or
modification of regulations, do not apply to joint resolutions introduced by
other than the committees to which regulations are initially referred by the
Lieutenant Governor or the Speaker of the House of Representatives.
When any regulation, when finally promulgated, includes a substantive
change in the content of the regulation as proposed and published in the State
Register, and the substantive change was not raised, considered, or discussed
by public comment required in Section 1-23-110, the regulation must be
refiled by the agency with the Legislative Council and published as revised in
the State Register and processed as a new regulation in accordance with the
provisions of this article.
HISTORY: 1979 Act No. 188 § 1; 1980 Act No. 442, (3; 1982 Act No. 414; 1988 Act No. 605,
i 3, eff Jane 2, 1988.
Editor's Note—
Item (a) of the second paragraph and the sixth paragraph appearing in the bound volume
contained an error in spelling and punctuation, and are reprinted in the supplement in their
correct form.
Section 4 of 1988 Acts No. 605 provides as follows:
"This act js effective with respect to notices of proposed regulations published in the State
Register after June 30, 1988."
Effect of Amendment—
The 1988 amendment made grammatical changes and rewrote the provisions relating to
automatic approval.
Crosa references
As to General Assembly approval of regulations, see { 1-23-120.
§ 1-23-126. Petition requesting promulgation, amendment or repeal
of regulation.
uASE NOTES
In an action brought under § 1-23-150, an
unsuccessful bidder to lease space on a televi-
sion tower was required to exhaust its adminis-
trative remedies by petitioning the Budget and
Control Board pursuant to ! 1-23-126 for the
promulgation of a regulation providing for
procedures for competitive bidding where fea-
sible, and therefore could not be heard as to
any interference or impairment, or threatened
interference or impairment, of its legal rights.
Charleston Television. Inc. v South Carolina
Budget & Control Bd. (1988, App) 296 SC
444, 373 SE2d 892.
§ 1-23-130. Emergency regulations.
(a) If any agency finds that an imminent peril to public health, safety, or
welfare requires immediate promulgation of an emergency regulation prior to
compliance with the procedures prescribed in this article, or if a natural
resources related agency finds that abnormal or unusual conditions, immediate
60
need, or the state
gency regulations i
the regulation wit
situation requiring
effective as of the
while the General
remain in effect f<
provisions of this s
a time when the G<
an additional ninet
the expiration of th
(b) Emergency r<
immediate promulj
Register following i
(c) Any emergent
permanendy promt;
HISTORY: 1986 Act N.
Effect of Amendment—
The 1986 amendment
regulations to protect c
provisions of this sectio
after "emergency regulai
Cross references—
Prohibition against se
emergency regulation, s<
§ 1-23-140. e
Cross references ¦
Requirement that reg
accordance with this chaj
§ 1-23-150. a
regulation.
In an action brought
unsuccessful bidder to lc
sion tower was required i
trative remedies by petiti
Control Board pursuant
promulgation of a regt
procedures for competiti
§ 1-23-310. d
Cross references—
As to provision that ha
Act are not subject to the
Application of Adminij
see g 31-21-130.
As to application of il
organizations, see § 38-33
-------
MENT
Rule Making and Adjudications
§ 1-23-310
xo' General Assem-
3T» disapprove the
le pciiod begins to run
> the General Assembly,
/s must be added to the
>roval, if less than twenty
ided regulation must be
decides to take no action
titing and the remainder
ipproval, disapproval, or
^solutions introduced by
initially referred by the
Representatives.
includes a substantive
rid published in the State
considered, or discussed
the regulation must be
i published as revised in
t in accordance with the
at No. 414; 1968 Act No. 605,
peanng in the bound volume
cd ' supplement in their
ilktions published in the State
>te the provisions relating to
amendment or repeal
fore could not be heard as to
or impairment, or threatened
impairment, of its legal rights,
¦vision. Inc. v South Carolina
col Bd. (1988, App) 296 SC
92.
public health, safety, or
gency regulation prior to
article, or if a natural
lal :.tions, immediate
need, or the state's best interest requires immediate promulgation of emer-
gency regulations to protect or manage natural resources the agency may file
the regulation with the Legislative Council along with a statement of the
situation requiring immediate promulgation and the regulation shall become
effective as of the time of filing. If emergency regulations are promulgated
while the General Assembly is in session, the emergency regulations shall
remain in effect for ninety days only and may not be renewed under the
provisions of this section but if emergency regulations are promulgated during
a time when the General Assembly is not in session they may be renewable for
an additional ninety days if the General Assembly is not in regular session at
the expiration of the ninety day period.
(b) Emergency regulations and the agency statement as to the necessity of
immediate promulgation must be published in the next issue of the State
Register following the date of filing.
(c) Any emergency regulations promulgated pursuant to this section may be
permanendy promulgated by complying with the requirements of this article.
HISTORY: 1986 Act No. 478, eff June 6, 1986.
Effect of Amendment—
The 1986 amendment made grammatical changes, added the provisions relative to emergency
regulations to protect or manage natural resources, and deleted "promulgated pursuant to the
provisions of this section" and "promulgated in accordance with the provisions of this section"
after "emergency regulations" in the second sentence of subsection (a).
Cross reference*
Prohibition against setting creel or size limits for striped or black bass from Lake Murray by
emergency regulation, see 5 50-13-236.
§ 1—23—140. Duties of state agencies; necessity for public inspection.
Cross references-
Requirement that regulations adopted pursuant to the long term care insurance act be in
accordance with this chapter, see 8 38^72-70.
§ 1—23—150. Appeals contesting authority of agency to promulgate
regulation.
CASE NOTES
In an action brought under $ 1-23-150, an
unsuccessful bidder to lease space on a televi-
sion tower was required to exhaust its adminis-
trative remedies by petitioning the Budget and
Control Board pursuant to j 1-23-126 for the
promulgation of a regulation providing for
procedures for competitive bidding where fea-
sible. and therefore could not be heard as to
any interference or impairment, or threatened
interference or impairment, of its legal rights.
Charleston Television. Inc. v South Carolina
Budget Sc Control Bd. (1988, App) 296 SC
444, 373 SE2d 892.
Article 3
Administrative Procedures
§ 1—23—310. Definitions
Cross references—
As to provision that handling and disposition of claims under the South Carolina Tort Claims
Act are not subject to the provisions of this article, see § 15-78-80.
Application of Administrative Procedures Act to proceedings under state Fair Housing Laws,
see 5 31-21-130.
As to application of this Article to administrative proceedings involving health maintenance
organizations, see 5 38-33-210.
51
-------
of f&eutte
fro
zd «x -s'*.
rj:
I ". '
i ; '
t • . -
¦ i ¦ . ¦
Li !-
CHARLES W. BURSON
ATTORNEY GEN E RAL S R6POPTJR
JOHN KNOX WALKUP
CHIEF DEPUTY ATTORNEY GENERAL
JIMMY G. CREECY
ASSOCIATE CHIEF DEPUTY
OFFICE OF THE ATTORNEY GENERAL
4SO James Robertson parkway
Nashville. Tennessee 37219-5025
December 6, 19 8 9
Mr. James H. Sargent
Regional Counsel
United States Environmental Protection Agency
Region IV
345 Courtland Street
Atlanta, Georgia 30365
n;
ToBS
! 1 j
.:D
AT-fo'nNEYS GENERAL
NETT
MICHAEL W. CATALANO
DONALD L. CORLEW
PATRICIA J. COTTRELL
PERRY A. CRAFT
KATE EYLER
DAVID M. HIMMELREICH
RAYMOND S. LEATHERS
CHARLES L. LEWIS
MICHAEL D. PEARIGEN
JENNIFER H. SMALL
JERRY L. SMITH
RE: Tennessee Air Pollution Control Regulations
Dear Mr. Sargent:
Pursuant to your request of November 16, 1989, I am
commenting on the information contained in your correspondence
"regarding how regulations become effective in" Tennessee. The
list accompanying your letter correctly groups Tennessee among
those states whose regulations become effective after filing in
the Office of the Secretary of State. Pursuant to T.C.A.
§ 4-5-207, however, "[n]o rule shall become effective until
approved by the attorney general pursuant to the provisions of
§ 4-5-211 and filed in the office of the secretary of state
pursuant to the provisions of § 4-5-206. Further, no rule
T"shall become effective until the expiration of the
fourty-five-day period immediately following the filing of the
original of such rule in the office of secretary of state." (A
copy of the relevant statutory provisions concerning filing of
administrative rules is enclosed as Enclosure 1).
Footnote 6 to the list contained in your
correspondence states that Tennessee follows a procedure in
which "[regulations [are] adopted at local level and then the
State Air Pollution Control Board adopts them at the State
Level." That footnote, however, does not accurately reflect
the process by which air pollution control regulations are
adopted in Tennessee. Pursuant to the provisions of T.C.A.
§ 68-2 5-115(a), municipalities or counties may enact, by
ordinance or resolution, air pollution control regulations that
are at least as stringent as State-promulgated regulations on
the subject. (A copy of T.C.A. § 68-25-115 is enclosed as
Enclosure 2). Prior to enacting such local regulations, the
local governmental body must apply for and receive a
certificate of exemption from the Tennessee Air Pollution
-------
Page 2
Control Board. See T.C.A. § 68-25-115(b). Such certificates
of exemption are issued for fixed terms not to exceed two (2)
years, T.C.A. § 68-25-115(c), and are subject to frequent
evaluations by the Tennessee Department of Health and
Environment to determine whether the local government
regulations are ensuring compliance with State air pollution
control standards. T.C.A. § 68—25—115(b)(7). Of course, if a
local government chooses not to promulgate its own air
pollution control regulations, that locality would remain
subject to the statewide regulations promulgated by the
Tennessee Air Pollution Control Board.
I hope that this reply provides the pertinent
information requested in your correspondence. Please feel free
to contact me if I may be of further assistance to you in this
matter.
CHARLES W. BURSON
Attorney General & Reporter
CWB/hw
Enclosures
-------
107
ADMINISTRATIVE RULES AND PROCEDURE
4-5-207
(b) Upon adoption of a rule, the agency, if requested to do so by an interested
person prior to adoption or within thirty (30) days thereafter, shall issue a
concise statement of the principal reasons for its action.
(c) An agency is authorized to appoint committees of experts or interested
persons or representatives of the general public to advise it with respect to any
contemplated rulemaking. The powers of such committees shall be advisory
only. The agency may at its election compensate the members of such advisory
committees for their services. [Acts 1974, ch. 725, § 3; 1975, ch. 370, § 7; 1978,
ch. 712, § 1; 1978, ch. 938, § 1;T.C.A.,§§ 4-509,4-5-103(c); Acts 1982, ch. 874,
§ 13.]
Compiler's Notes. For transfer to this sec- chapter by Acts 1982. ch. 874, see the compiler's
tion of provisions formerly appearing note concerning that act, located under
elsewhere, as part of the restructuring of this § 4-5-101.
NOTES TO DECISIONS
1. Validity of Rule. its violation are not specified therein. State Bd.
A rule of discipline which clearly defines the of Regents of Univ. v. Gray, 561 S.W.2d 140
prohibited act and otherwise complies with this (Tenn. 1978).
chapter is not invalid because the sanctions for
4-5-206. Filing of rules. — (a) It shall be the duty of the secretary of state
to file the rules of each agency in a convenient and accessible manner. Each
copy of a rule filed shall contain a citation of the authority pursuant to which
it was adopted, and if an amendment, it shall clearly identify the original rule.
(b) The secretary of state shall endorse on each copy of a rule or rules filed
the time and date of filing and shall maintain a file of such rules for public
inspection.
(c) No rule shall be filed under this chapter unless approved as to legality
by the attorney general as provided in § 4-5-211.
(d) The secretary of state shall prescribe rules governing the manner and
form in which regulations shall be prepared for filing. The secretary of state
may refuse to accept for filing any rule that does not conform to such require-
ments. [Acts 1974, ch. 725, § 4; 1975, ch. 370, § 10; 1978, ch. 895, §§ 1, 2; impl.
am. Acts 1978, ch. 934, §§ 16,22, 36; Acts 1978, ch. 938, § 2; 1979, ch. 43, §§ 1,
2; 1979, ch. 200, §§ 1, 2; T.C.A., § 4-510; modified; Acts 1980, ch. 550, § 1;
1980, ch. 758, § 1; 1981, ch. 42, §§ 1, 3; 1981, ch. 47, §§ 1, 4, 5; 1981, ch. 49,
§ 1; 1981, ch. 140, § 1; T.C.A., § 4-5-104(e)(2), (e)(3), (f); Acts 1982, ch. 874,
§ 14.]
Compiler's Notes. For transfer to this sec- chapter by Acts 1982. ch. 874, see the compiler's
tion of provisions formerly appearing note concerning that act, located under
elsewhere, as part of the restructuring of this § 4-5-101.
4-5-207. Effective dates of rules. — No rule shall become effective until
approved by the attorney general pursuant to the provisions of § 4-5-211 and
filed in the office of the secretary ofvstate pursuant to the provisions of
Avowed — §4-5~-<2o7 fcuAvim
PASES.
ENCLOSURE 1
-------
40
41
ADMINISTRATIVE RULES AND PROCEDURE
4-5-207
li*""* by law
shall:
l ate for
ister and, if
ss of rules
i notice as
ion of the
i notice to
making.
ii publica-
thirty (30)
have been
notice was
ill include:
:o be held;
e proposed
-irsuant to
.plicable to
jsed rule-
:ce of the
***tion.
' and
-*ncies
,e monthly
t for publi-
co such re-
.iot to have
action (b) of
:ts 1982, ch.
i a public
and shall
to present
e ration,
ils that the
)n of repeti-
to present
portunity to
(4) At the beginning of each hearing, if the agency has made a proposal, the
agency shall present a summary of the factual information on which its pro-
posal is based, including any information obtained through the use of advisory
committees or as a result of informal conferences or consultation.
(b)(1) The person authorized by the agency to conduct the hearing may
administer oaths or affirmations and may continue or postpone the hearing to
such time and place as it determines.
(2) The agency shall keep minutes or a record of the hearing in such man-
ner as it determines to be desirable and feasible.
(c)(1) If the officer or a quorum of the board or commission charged by law
with ultimate responsibility for rulemaking is not present at the hearing a
person who appears at the hearing shall be given an opportunity to present
his arguments to such officer or quorum of such board or commission prior to
adoption of the proposed rule if, at the hearing, the person makes a request for
such opportunity in writing to the person presiding at the hearing.
(2) Such officer, board or commission may in its discretion require such
arguments to be presented in writing.
(3) If a record of the hearing has been made, argument shall be limited to
the record.
(4) Where oral argument is accorded, such officer, board or commission may
impose reasonable limitations on the length and number of appearances in
order to conserve time and preclude undue repetition.
(d) The procedures prescribed by this section are supplemental to proce-
dures prescribed by any statute relating to the specific agency or to the rule or
class of rules under consideration. However, in any case of conflict between
this section and another procedural administrative statute this section shall
control.
(e) Prior to holding the public hearing as required by subsection (a) of this
section, the agency may solicit comments from the public on a subject matter
of possible rulemaking under active consideration within the agency, signifi-
cant aspects of which remain undeveloped, by causing notice of the hearing to
be published in accordance with the requirements of § 4-5-203. At such hear-
ing, notice of the time and place of the public hearing, required by subsection
(a) of this section, shall be announced; and the agency shall take other appro-
priate actions to comply with the provisions of title 8, chapter 44, part 1, and
§ 4-5-203, but shall not be required to provide thirty (30) days advance notice
of such hearing published in the Tennessee Administrative Register. [Acts
1975, ch. 370, § 8; T.C.A., §§ 4-532, 4-5-126; Acts 1982, ch. 874, § 12; 1986,
ch. 738, § 6.]
Section to Section References. This sec-
tion is referred to in § 4-5-203.
4-5-207. Effective dates of rules. — No rule shall become effective until
approved by the attorney general pursuant to the provisions of § 4-5-211 and
filed in the office of the secretary of state pursuant to the provisions of
§ 4-5-206. Further, no rule, unless filed as an emergency rule pursuant to the
provisions of § 4-5-208 or filed as a public necessity rule pursuant to the
-------
4-5-209
STATE GOVERNMENT
42
43
admin
provisions of § 4-5-209, shall become effective until the expiration of the
forty-five-day period immediately following the filing of the original of such
rule in the office of the secretary of state. [Acts 1982, ch. 874, § 16; 1986, ch.
738, § 8.]
4-5-209. Public necessity rules. — (a) Notwithstanding any provision of
this chapter to the contrary, a rule, upon receiving approval of the attorney
general and upon being filed with the secretary of state, may become effective
immediately or within a period of time less than the period required by this
chapter for regular rulemaking procedures, if the agency finds and files a
written statement of reasons with the rule specifying that:
(1) The rule only delays the effective date of another rule that is not yet
effective;
(2) It is required by the constitution, or court order;
(3) It is required by an agency of the federal government and adoption of
the rule through ordinary rulemaking procedures described in this chapter
might jeopardize the loss of a federal program or funds; or
(4) The agency is required by an enactment of the general assembly to
implement rules within a prescribed period of time which precludes utiliza-
tion of rulemaking procedures described elsewhere in this chapter for the
promulgation of permanent rules.
(b) A rule adopted under this section may be effective for a period of not
longer than one hundred twenty (120) days and may only be readopted as
provided by § 4-5-208 for the readoption of emergency rules.
(c) The agency shall take steps to make rules filed under subsection (a)
known to persons who will be affected by them. In addition, the secretary of
state shall insert in the notice section of each issue of the monthly administra-
tive register a brief description of the rules currently in effect.
(d) In any action contesting a rule adopted in reliance upon this section, the
burden of persuasion is upon the agency to demonstrate that the rules met the
criteria for adoption specified in this section. [Acts 1981, ch. 47, § 3; T.C.A.,
§ 4-5-133; Acts 1982, ch. 874, § 18; 1986, ch. 738, § 7.]
4-5-218. Public inspection and copying of. agency rules, final orders
and decisions. — (a) Each agency shall make available for inspection and
copying;
(1) Agency rules, final orders and decisions;
(2) Written statements of policy or interpretations formulated, adopted, or
used by the agency in the discharge of its functions;
(3) Opinions of the attorney general rendered to the agency,
(4) A description of its current organization stating the general course and
method of its operation and the methods whereby the public may obtain infor-
mation or make submissions or requests.
(b) The agency may charge reasonable compensatory fees for.-providine anv
documents specified in this section to requesting persons.
(c) Nothing in this section shall be construed to limit access to public docu-
ments under any other provision of law.
(d) The segregable por
in this section shall be j
record after deletion of ;
sion of law and payment
1982, ch. 874, § 28; 19
Crosa-References. Records
inspection, exceptions. S 10-'
Attorney GeneraJ Opinioi
tions from department of rev<
counsel. OAG 86-177 < 10-15 i
Internal tax opinions from t
4-5-223. Declaratory o
Cited: Brigham v. Lack.
(Tenn. Crim. App. 19881-
4-5-224. Declaratory ji
Cited: Brigham v. Lack.
(Tenn. Crim. App. 1988>.
2. Declaratory Orders.
The board of trustees of the
solidated retirement system
within the definition of S 4-5
courts are prohibited by this
tertaining a declaratory judgi
4-5-225. Expiration c
}f law to the contrary, t
date provided by this sul
secretary of state shall e
filing.
(b) Notwithstanding a
islation is enacted to dei
each permanent rule, wh
(a), shall expire on the
termination of the agenc;
such agency continues ir
shall expire upon comp
(c) Prior to expiration
such rule shall be revit
senate and by the approf
tives, as determined by
cretion of the chairman
viewed by a subcommitt*
priate standing committ-
tees until their successoi
-------
4-5-208 STATE GOVERNMENT 108
§ 4-5-206. Further, no rule, unless filed as an emergency rule pursuant to the
provisions of § 4-5-208 or filed as a public necessity rule pursuant to the
provisions of § 4-5-209, shall become effective until the expiration of the thirty
(30) day period immediately following the filing of the original of such rule in
the office of the secretary of state. [Acts 1982, ch. 874, § 16.]
Section to Section References. This sec-
tion is referred to in § 4-5-215.
4-5-208. Emergency rules. — (a) If an agency finds that an immediate
danger to the public health, safety, or welfare exists, and the nature of this
danger is such that the use of any other form of rulemaking authorized by this
chapter would not adequately protect the public, the agency may, upon stating
its reasons in writing for making such findings, proceed without prior notice
or hearing to adopt an emergency rule. Such emergency rule shall become
effective immediately, unless otherwise stated therein, upon a copy of such rule
and a copy of the written statement of the reasons therefor being filed with the
secretary of state. The emergency rule may be effective for a period of not
longer than one hundred and twenty (120) days. An agency shall not adopt the
same or a substantially similar emergency rule within one (1) calendar year
from its first adoption unless the agency clearly establishes it could not reason-
ably be foreseen during the initial one hundred and twenty (120) day period
that such emergency would continue or would likely recur during the next nine
(9) months. The adoption of the same or substantially similar rule through
ordinary rulemaking procedures authorized by this chapter shall not be
precluded by the provisions of this section.
(b) The agency shall take steps to make emergency rules known to persons
who will be affected by such rules. In addition, the secretary of state shall
insert in the notice section of each issue of the monthly administrative register
a brief description of emergency rules currently in effect.
(c) In any actiori contesting a rule adopted in reliance upon this section the
burden of persuasion shall be upon the agency to demonstrate that the rule
meets the criteria established by this section. [Acts 1982, ch. 874, § 17.]
Section to Section References. This sec-
tion is referred to in § 4-5-211.
4-5-209. Public necessity rules. — (a) Notwithstanding any provision of
this chapter to the contrary^ rule, upon receiving approval of the attorney
general and upon being filed widi the secretary of state, may1 become effective
immediately or withinJsi period of time less than the period1 required by this
chapter for regular rulemaking procedures, if the agency finds and files a
written statement of reasons with th&srule specifying that:
(1) The rule only delavs the effective^date of another rule that is not yet
effective; or
109
I,
t <
jeoparc
lb) .-
longer
providi
IC) 1
known
state s
tive re
id) I
burder
criteri
-------
109
ADMINISTRATIVE RULES AND PROCEDURE
4-5-214
(2) It is required by*the constitution, or court order; or
(3) It is required by arKagency of the federal government and adoption of the
rule through ordinary rulemaking procedures described in this chapter might
jeopardize the loss of a federal program or funds.
(b) A rule adopted under\this section may be effective for a period of not
longer than one hundred and\wenty (120) days and may only be readopted as
provided by § 4-5-208 for the Veadoption of emergency rules.
(c) The agency shall take steps to make rules filed under subsection (a)
known to persons who will be affected by them. In addition, the secretary of
state shall insert in the notice secmon of each issue of the monthly administra-
tive register a brief description of\he rules currently in effect.
(d) In any action contesting a rul^adopted in reliance upon this section, the
burden of persuasion is upon the agency to demonstrate that the rules met the
criteria for adoption specified in this section. [Acts 1981, ch. 47, § 3 T.r A.,
§ 4-5-133; Acts 1982, ch. 874, § 18.] \
Compiler's Notes. For transfer to this sec- note concerning that , act, located Under
tion of provisions formerly appearing 5 4^6-101.
elsewhere, as part of the restructuring of this Section to Section References. Th'i9 sec-
chapter by Acts 1982, ch. 874, see the compiler's tion ia referred to in §§ 4-5-9|r|'7 4-5-211.
4-5-210. [Reserved.]
4-5-211. Approval of rules by attorney general. — No rule shall be filed
in the secretary of state's office until such rule has been approved a3 to its
legality by the attorney general. The attorney general shall not disapprove an
emergency rule filed pursuant to § 4-5-208 or a public necessity rule filed
pursuant to § 4-5-209 solely on the basis of failure to meet the statutory
criteria for adoption of the rule contained in this chapter, unless the attorney
general determines and states in writing that he could not defend the legality
of the rule on the basis of failure to meet the statutory criteria for adoption of
the rule contained in this chapter, in any action contesting the legal-validity
of the rule. [Acts 1982, ch. 874, § 20 ]
Section to Section References. This sec-
tion is referred to in §1 4-5-206, 4-5-207.
4-5-212, 4-5-213. [Reserved.]
4-5-214. Withdrawal, of piles. — a rule may be withdrawn,by the agency
proposing such rule at any^fwint prior to the effective date>.ofrthe. rule. Such
withdrawal shall become effective upon delivery of written, notification of such
withdrawal to the office of the secretary of state and shall.Fesuit in the nullifi-
cation of all procedures undertaken or performed in order to promulgate such
rule. [Acts 1974, ch. 725, § 4; 1975, ch 370. } 19; 1978, ch. 895, §§ 1, 2; impi.
am. Acts 1978, ch. 934, §§ 16,22, 36; Acts 1978. ch. 938, § 2; 1979, ch. 43, §§ 1,
2; 1979, ch. 200, §§ 1, 2; T C.A., § 4-510; modified; Acts 1980, ch. 550, §1';
-------
68-25-115
SAFETY AND HEALTH
380
68-25-115* iibcal ~ pollution control programs — Exemption from
state supervision — Applicability of part to air contaminant sources
burning wood waste. — (a) Any municipality or county in this state may
enact, by ordinance or resolution respectively, air pollution control regula-
tions not less stringent than the standards adopted for the state pursuant to
this part, or any such municipality or county may also adopt or repeal an
ordinance or resolution which incorporates by reference any or all of the
regulations of the board, including any changes in such regulations, when
such regulations are properly identified as to date and source without setting
forth the provisions of such regulations in full. At least three (3) copies of such
regulations which are incorporated by reference shall be filed in the office of
the county clerk and there kept for public use, inspection and examination.
The filing requirements'shall not be deemed to be complied with unless the
required copies of such regulations are filed with the clerk for a period of
thirty (30) daVs-before the adoption of the ordinance or resolution which incor-
porated such regulations b)r reference. No ordinance or resolution incorporat-
ing regulations by reference shall be effective until published" in a newspaper
having a general circulation in the municipality or county,
(b) Before such'ordinances or resolutions enacting air pollution control reg-
ulations shall;become effective, such municipality or county must apply for
and receive from the board a certificate of exemption by the following proce-
dure:
(1) Any political subdivision desiring to be exempted from the provisions of
this part may file a petition for certificate, of exemption with the technical
secretary. The technical secretary shall promptly investigate such petition
and make recommendation to ^he board .as to. the disposition thereof;
(2) Upon receiving the recommendation of the technical secretary, the
board may, if such recommendation is for the granting of the petition, do so
without hearing. If the recommendation of the technical secretary is against
the granting of the petition or the board, in its discretion, concludes that a
hearing would be advisable, then a hearing shall be held not later than sixty
(60) days after5receipt of recommendation of the technical secretary by the
board;
(3) The certificate of exemption shall be granted if the-board determines
that the municipality or county has enacted provisions for the control of air
pollution not less stringent than the provisions of this part' and that such
enactments are being, or .will be, adequately enforced;
(4) The board may.grant a certificate of exemption ih whole or in part, may
prescribe a time schedule for various parts of an exemption to become effec-
tive, and may'-rmake u certificate of exemption conditional or provisional as is
deemed appropriate;
(5i In granting any certificate of exemption, there fs reserved to the state
the right to-initiate proceedings to enforce any applicable resolution, ordi-
nance or ffegulatioff of the-municipality or cpu'nty should it fail to obtain
compiiance^therewith. Such proceedings shall be the'same as for enforcement
of any duly 'promulgated rule or regulation .of the board;
(6) In granting any certificate of exemption, the exemption is to be strictly
construed as limited to the language of the exemption. No power or authority
which :
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ENCLOSURE 2
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381
AIR POLLUTION CONTROL
68-25-11S
which is not expressly stated in the certificate of exemption may be implied.?
The municipality or county may further petition the board for such power or
authority; and
{71 The department shall frequently determine whether or not .any ex-
empted municipality or county meets the terms of the exemption granted-and
continues to comply with the provisions of this section. If-at determination, is
made that the municipality or county does hot meet the terms,ofthe exemp*
tion granted or does not comply with the provisions of this section, the depart-
ment shalf so notify the board, and the board upon reasonable notice to the
municipality, may suspend the exemption in whole or in part until such^tir^
as the municipality or county complies with the state standards.
(c) Exemptions already, granted"to any municipality or county shall,expire.,
on July 1, 1986- All new certificates of exemption, -including those expiring, or^
the above date, shall be for a fixed' term not to exceed two,(2:) years. Provide*^
however, that the provisions of this part sh&lljnot apply to'emissions froin an^;
air contaminant source, as that term is defined in this chapter, whichrburns
wood waste solely for the disposition of such wood waste.
(d) Local government actions taken in accordance with this section-shall be
conducted in accordance with'chapter 18 of title 13 when the action includes a
major energy project, as defined:in § 13-1-8-102. [Acts, 1967, ch: 367, I ^5&
1971, ch. 266, § 1; 1971, ch. 365, §§ 1, 2;-1972, ch. 7.87m-§ 1; 1973, ch. 325^
§§ 4, 6; 1974, ch. 598, § 1; 1975, ch. 359, § 1; 1977, ch. 116, § 1; 1977, ch. 168,
§ 2; impl. am. Acts 1978, ch, 934, §| 22; 36; Acts 1979, ch, 299, § 7; 1981„.ch.
131, § 29; T.C.A., 5 53-3422; Acts 1984, ch. 788, § *i2Jb
Cross-References. Air contaminant source . Cited: Adams y. $fcate'ex reL, Chattanooga 1
defined, $ 66-25-LC2. Coke & Chems., 5"14"S,W.2d 424.lTenn;. 19743.
Section to Section References. Xhi3 sec-
tion is referred to in 6S-2'5^5l3p68-25-IL6^
68-25-117.
NOTES TO DECISIONS
1, Applicability to Enforcement Methods. tain to standards ^pepalUea ,
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