North Carolina Certification 1

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

North Carolina Certification For

Clean Air Act Section 110(a)(1) and (2)

Infrastructure State Implementation Plan for the

2010 1-Hour Nitrogen Dioxide

National Ambient Air Quality Standards

On January 22, 2010, the United States Environmental Protection Agency (USEPA) revised the 

National Ambient Air Quality Standards (NAAQS) for nitrogen dioxide (NO2). The USEPA 

made no changes to the existing annual standard of 53 parts per billion (ppb) that was originally 

promulgated in 1971. However, the USEPA also adopted a new 1-hour standard of 100 ppb, 

measured as a three-year average of the 98th percentile concentration. All of North Carolina is 

attaining the standard and is designated as unclassifiable/attainment.

When the USEPA revises an existing standard, or as in the case of the 1-hour NO2 standard, 

promulgates a new standard, Clean Air Act (CAA) Sections 110(a)(1) and (a)(2) require each 

state to revise their State Implementation Plan (SIP) to show they have the authority and 

programs needed to implement, maintain, and enforce the standard. States must submit an 

infrastructure SIP within three years after a federal standard is adopted or revised. 

This document serves as North Carolina’s infrastructure SIP for the 2010 1-hour NO2 NAAQS.

Each of the basic or infrastructure requirements is listed below along with the corresponding 

North Carolina State rule or statute implementing each SIP element. The State rules can be 

found on the North Carolina Division of Air Quality (NCDAQ) website (www.ncair.org). The 

North Carolina General Statutes (NCGS) referenced in this document can be found on the North 

Carolina General Assembly website (http://www.ncleg.net/gascripts/statutes/Statutes.asp). 

These statutes are included as reference material, and should not be adopted as part of North 

Carolina’s SIP.
North Carolina Certification 2

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Emission Limits and Other Control Measures [§ 110(a)(2)(A)]: 

Section 110(a)(2)(A) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall - 

“include enforceable emission limitations and other control measures, means, or 

techniques (including economic incentives such as fees, marketable permits, and auctions 

of emissions rights), as well as schedules and timetables for compliance, as may be 

necessary or appropriate to meet the applicable requirements of this [Act].”

15A North Carolina Administrative Code (NCAC) 2D .0500, “Emission Control Standards”, 

serves to establish emission limits for NO2. The following rules address additional control 

measures, means and techniques:

 15A NCAC 2D .0600 “Monitoring: Recordkeeping: Reporting”

 15A NCAC 2D .1000 “Motor Vehicle Emission Control Standards”

 15A NCAC 2D .1200 “Control of Emissions from Incinerators”

 15A NCAC 2D .1400 “Nitrogen Oxides”

 15A NCAC 2D .1600 “General Conformity”

 15A NCAC 2D .2000 “Transportation Conformity”

 15A NCAC 2D .2200 “Special Orders”

 15A NCAC 2D .2300 “Banking Emission Reduction Credits”

 15A NCAC 2D .2400 “Clean Air Interstate Rules”

 15A NCAC 2D .2600 “Source Testing”

NCGS 143-215.107(a)(5), Air quality standards and classifications, provides the North Carolina 

Environmental Management Commission (EMC) with the statutory authority, “To develop and 

adopt emission control standards as in the judgment of the Commission may be necessary to 

prohibit, abate, or control air pollution commensurate with established air quality standards.”
North Carolina Certification 3

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Ambient Air Quality Monitoring/Data System [§ 110(a)(2)(B)]:

Section 110(a)(2)(B) of the CAA requires that North Carolina’s SIP shall -

“(B) provide for establishment and operation of appropriate devices, methods, systems, 

and procedures necessary to—

(i) monitor, compile, and analyze data on ambient air quality, and 

(ii) upon request, make such data available to the Administrator.”

The 2013 Annual Monitoring Network Plan for the NCDAQ (submitted to the USEPA on July 1, 

2013) provides for an ambient air quality monitoring system in the State. As of the date of this 

infrastructure submittal, the development of the NO2 monitoring network is ongoing; therefore,

North Carolina’s NO2 monitoring strategy will be established per the requirements set forth in 

the 2013 and any subsequent Annual Monitoring Network plan relevant to the development of

the State’s NO2 monitoring network.

NCGS 143-215.107(a)(2), Air quality standards and classifications, provides the EMC with the 

statutory authority “To determine by means of field sampling and other studies, including the 

examination of available data collected by any local, State or federal agency or any person, the 

degree of air contamination and air pollution in the State and the several areas of the State.”
North Carolina Certification 4

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Programs for Enforcement of Control Measures and for Construction or Modification of 

Stationary Sources [§ 110(a)(2)(C)]: 

Section 110(a)(2)(C) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall –

“(C) include a program to provide for the enforcement of the measures described in 

subparagraph (A), and regulation of the modification and construction of any stationary 

source within the areas covered by the plan as necessary to assure that national ambient 

air quality standards are achieved, including a permit program as required in parts C 

and D.” 

This element consists of three sub-elements: enforcement, state-wide permitting of minor 

sources, and permitting of major sources and major modifications in areas designated attainment 

or unclassifiable for the subject NAAQS (also called the major source Prevention of Significant 

Determination - PSD program). 

NCGS 143-215.61, Enforcement Procedures, provides the North Carolina Department of 

Environment and Natural Resources (DENR) with the statutory authority to enforce air quality 

rules. 

NCGS 143-215.108, Control of sources of air pollution; permits required, provides the EMC 

with the statutory authority to permit sources of air pollution. 

NCGS 143-215.107(a)(7), Air quality standards and classifications, provides the EMC with the 

statutory authority “To develop and adopt standards and plans necessary to implement programs 

for the prevention of significant deterioration and for the attainment of air quality standards in 

nonattainment areas.” 

The following North Carolina air quality rules address permitting requirements:

 15A NCAC 2D .0500 “Emission Control Standards”, 2D .0530 “Prevention of 

Significant Deterioration” applies to the construction of any new major stationary source 

or any project at an existing major stationary source in an area designated as attainment 

or unclassifiable. 

 15A NCAC 2D .0531 “Sources in Nonattainment Areas” applies to the construction of 

any new major stationary source or major modification at an existing major stationary 

source in an area designated as nonattainment. 

 15A NCAC 2Q .0300 “Construction and Operation Permits”, requires stationary sources,

prior to construction or operation, to have an air permit if the source is above an emission 

threshold or operates air pollutant control devices. 

 15A NCAC 2Q .0500 “Title V Procedures”, establishes an air quality permitting program 

as required under Title V and 40 CFR Part 70. 

North Carolina has submitted three of four PSD requirements to USEPA for approval. 

Additionally, the NCDAQ plans to submit a SIP revision related to adoption of PSD 
North Carolina Certification 5

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

requirements established in the 2008 NSR PM2.5 Rule and the 2010 PM2.5 Increments-SILs and 

SMC Rule to comply with 2006 PM2.5 infrastructure requirements for element C, (D)(i) and (J). 

These requirements will also satisfy the same elements for the 2010 NO2 infrastructure SIP. The 

SIP revision has been approved by the EMC and the Rules Review Committee effective 

September 1, 2013, and is on track to be submitted by the NCDAQ to the USEPA on or before 

the prescribed deadline of October 16, 2013. 

Part D programs are required for areas that are designated nonattainment for a NAAQS. Since 

there are no NO2 nonattainment areas in North Carolina, a Part D permit program is not required.

The USEPA has stated that “structural PSD program provisions need to include provisions 

necessary for the PSD program to address all regulated sources and New Source Review (NSR) 

pollutants, including greenhouse gases (GHG).” On October 18, 2011, the USEPA published 

revisions to North Carolina’s PSD program to incorporate provisions related to GHGs (76 FR 

64240). 
North Carolina Certification 6

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Interstate Pollution Transport Provisions [§ 110(a)(2)(D)(i)]: 

Section 110(a)(2)(D)(i) of the CAA requires that North Carolina’s SIP for the 2010 NO2

NAAQS shall-

“(D) contain adequate provisions –

(i) prohibiting, consistent with the provisions of this subchapter, any source or other type 

of emissions activity within the State from emitting any air pollutant in amounts which 

will -

(I) contribute significantly to nonattainment in, or interfere with maintenance by, any 

other State with respect to any such national primary or secondary ambient air 

quality standard, or 

(II) interfere with measures required to be included in the applicable implementation 

plan for any other State under part C of this subchapter to prevent significant 

deterioration of air quality or to protect visibility.”

Subsection 2(D)(i)(I)

Section 110(a)(2)(D)(i)(I) is also known as the good neighbor provision of the CAA in that 

upwind states are responsible for the effects of their pollution on downwind states. Under this 

section of the Act, states are responsible for reducing their “significant contribution” to those 

downwind nonattainment or maintenance areas. The August 21, 2012 decision by The U.S. 

Court of Appeals for the District of Columbia Circuit to vacate the 2011 Cross-State Air 

Pollution Rule (CSAPR) (EME Homer City Generation, L.P. b. USEPA, No. 11-1302) clarified 

that only the USEPA can determine “significant contribution” and that “a SIP cannot be deemed 

to lack a required submission or be deemed deficient for failing to implement the good neighbor 

obligation until after USEPA has defined the state’s good neighbor obligation.” Once the 

USEPA determines North Carolina’s significant contribution to nonattainment or maintenance 

areas in downwind states, then the USEPA may require North Carolina to submit a SIP revision 

under Section 110(k)(5) or submit a new SIP under Section 110(a)(1) of the CAA.

In addition, the November 19, 2012 USEPA memo from Gina McCarthy, Assistant 

Administrator, cited the court decision that “a SIP cannot be deemed deficient for failing to meet 

the good neighbor obligation before EPA quantifies the obligation.” 

As of the submission of this document, the USEPA has yet to determine North Carolina’s 

significant contribution of NO2, in regards to the 2010 NO2 NAAQS, to any downwind state. It is 

also important to note that there are currently no areas designated as nonattainment or 

maintenance under the 2010 NO2 NAAQS. Therefore, no revision to North Carolina’s SIP is 

necessary at the time to incorporate this element of Section 110(a) of the CAA. 
North Carolina Certification 7

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Subsection 2(D)(i)(II)

Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other 

type of emissions activity in one state from interfering with measures required of any other state 

to prevent significant deterioration of air quality, or from interfering with measures required of 

any other state to protect visibility. 

The following North Carolina air quality rules address the requirements under this subsection:

There are no nonattainment areas subject to Nonattainment New Source Review for the 2010 

NO2 NAAQS.

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” applies to the 

construction of any new major stationary source or any project at an existing major 

stationary source in an area designated as attainment or unclassifiable. 

 “Regional Haze SIP for North Carolina Class I areas”, December 17, 2007

North Carolina has developed and implemented a Regional Haze SIP to protect visibility in five

Class I areas: Great Smoky Mountains National Park, Joyce Kilmer- Slickrock Wilderness Area,

Linville Gorge Wilderness Area, Shining Rock Wilderness Area, and Swanquarter National 

Wildlife Refuge. North Carolina’s Regional Haze SIP also addresses visibility impacts to

downwind states. On June 27, 2012, the USEPA finalized a limited approval of North Carolina’s 

Regional Haze SIP, as meeting some of the applicable regional haze requirements set forth in 

Sections 169A and 169b of the Clean Air Act and in 40 CFR 51.300-308. The limited approval 

was due to the disapproval of certain portions of the SIP which relied on the Clean Air Interstate 

Rule (CAIR). The CAIR remains in effect due to the August 21, 2012 decision by the U.S. 

Court of Appeals to vacate CAIR’s replacement, the Cross State Air Pollution Rule (CSAPR). 

North Carolina plans to address the remaining deficiency in the Regional Haze SIP arising from 

the CSAPR decision. NCGS 143-215.107(a)(7) provides the authority “To develop and adopt 

standards and plans necessary to implement programs for the prevention of significant 

deterioration and for the attainment of air quality standards in nonattainment areas.”
North Carolina Certification 8

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Interstate Pollution Abatement and International Air Pollution [§ 110(a)(2)(D)(ii)]: 

Section 110(a)(2)(D)(ii) of the CAA requires that North Carolina’s SIP for the 2010 NO2

NAAQS shall -

“contain adequate provisions -

(ii)) insuring compliance with the applicable requirements of sections 126 and 115 of this 

title (relating to interstate and international pollution abatement).”

The following rules address the requirements of Section 126(a) which directs each SIP to include 

provisions requiring a new or modified source to notify neighboring states of potential impacts 

from the source:

 15A NCAC 2D .0530 “Prevention of Significant Deterioration”

 15A NCAC 2D .0531 “Sources in Nonattainment Areas”

North Carolina has submitted three of four PSD requirements to USEPA for approval. 

Additionally, the NCDAQ plans to submit a SIP revision related to adoption of PSD 

requirements established in the 2008 NSR PM2.5 Rule and the 2010 PM2.5 Increments-SILs and 

SMC Rule to comply with 2006 PM2.5 infrastructure requirements for element C, (D)(i) and (J). 

These requirements will also satisfy the same elements for the 2010 NO2 infrastructure SIP. The 

SIP revision has been approved by the EMC and the Rules Review committee effective 

September 1, 2013, and is on track to be submitted by the NCDAQ to the USEPA on or before 

the prescribed deadline of October 16, 2013. 

Unless a state is the subject of a Section 126(b) or 126(c) petition with respect to NO2, the state 

has no continuing obligation under these sections. North Carolina is not the subject of a Section 

126(b) or 126(c) petition. Since there are no pending USEPA actions pursuant to Section 115 of 

the CAA, there is no expectation that North Carolina would need to submit anything in regards 

to Section 115 at this time.
North Carolina Certification 9

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Adequate Resources and Authority, Conflict of Interest, and Oversight of Local 

Governments [§ 110(a)(2)(E)]: 

Section 110(a)(2)(E) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall -

“provide

i. necessary assurances that the State (or, except where the Administrator 

deems inappropriate, the general purpose local government or 

governments, or a regional agency designated by the State or general 

purpose local governments for such purpose) will have adequate 

personnel, funding, and authority under State (and, as appropriate, local) 

law to carry out such implementation plan (and is not prohibited by any 

provision of Federal or State law from carrying out such implementation 

plan or portion thereof).

ii. requirements that the State comply with the requirements respecting State 

boards under section 128, and

iii. necessary assurances that, where the State has relied on a local or 

regional government, agency, or instrumentality for the implementation of 

any plan provision, the State has responsibility for ensuring adequate 

implementation of such plan provision.”

15A NCAC 2Q .0200 “Permit Fees”, provides the mechanism by which stationary sources that 

emit air pollutants pay a fee based on the quantity of emissions emitted. The statutory authority 

to allow rulemaking and requiring permit fees can be found in NCGS 143‐215.3 General powers 

of Commission and Department; auxiliary powers. Additionally, NCGS 143-215.107(a)(1) Air 

quality standards and classifications, provides the EMC with the statutory authority “To prepare

and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and 

control of air pollution in the State or in any designated area of the State.” In general, the 

elements of 110(a)(2)(E)(i) are met when the USEPA performs a completeness determination for 

each SIP submittal. Each submittal provides for adequate personnel, funding, and legal authority 

under State law to carry out the SIPs and related issues. This information is contained in all final 

SIP submittal packages in the historical record of the rule.

Section 110(a)(2)(E)(ii) of the CAA, as listed above, requires that the state comply with the 

requirements of Section 128 “State Boards”. Section 128(a)(1) requires any board or body 

which approves permits or enforcement orders shall have at least a majority of members who 

represent the public interest and do not derive any significant portion of their income from 

persons subject to permits or enforcement orders. Section 128(a)(2) requires any potential 

conflicts of interest by members of such boards or body or the head of an executive agency with 

similar powers be adequately disclosed. The North Carolina Department of Environment and 

Natural Resources (DENR) has submitted Section 128 certification procedures to the USEPA to 

comply with the 1997 8-hour ozone infrastructure SIP requirements. The pending USEPA 

approval of this SIP revision will satisfy Section 110(a)(2)(E)(ii) requirements for the 2010 1-

hour NO2 Infrastructure SIP.
North Carolina Certification 10

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

North Carolina addresses Section 110(a)(2)(E)(iii) of the CAA as listed above by requiring the 

state provide the necessary assurances that where the state relied on a local or regional 

government for the implementation of any plan provision, the state has the responsibility for 

ensuring adequate implementation of such plan provisions. North Carolina has three local 

programs that implement the air program. These agencies are located in Buncombe, Forsyth, and 

Mecklenburg Counties. NCGS 143‐215.112 Local air pollution control programs, provides the 

EMC with the statutory authority “to review and have general oversight and supervision over all 

local air pollution control programs.” In order for submittals made by the local air program 

deemed complete, all local and regional implementation plans must be submitted through DENR

to the USEPA.
North Carolina Certification 11

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Stationary Source Monitoring and Reporting [§ 110(a)(2)(F)]

Section 110(a)(2)(F) of the CAA dictates that North Carolina’s SIP for the 2010 NO2 NAAQS

shall -

“require, as may be prescribed by the Administrator—

(i) the installation, maintenance, and replacement of equipment, and the 

implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, 

(ii) periodic reports on the nature and amounts of emissions and emissions-related 

data from such sources, and 

(iii) correlation of such reports by the State agency with any emission limitations or 

standards established pursuant to this chapter, which reports shall be available at 

reasonable times for public inspection.”

The following North Carolina rules require monitoring of emissions from stationary sources:

 15A NCAC 2D .0604 “Exceptions to Monitoring and Reporting Requirements”

 15A NCAC 2D .0605 “General Recordkeeping and Reporting Requirements”

 15A NCAC 2D .0611 “Monitoring Emissions from Other Sources”

 15A NCAC 2D .0612 “Alternative Monitoring and Reporting Procedures”

 15A NCAC 2D .0613 “Quality Assurance Program”

 15A NCAC 2D .0614 “Compliance Assurance Monitoring”

 15A NCAC 2Q .0207 “Annual Emissions Reporting”

The Annual Emissions Reporting Rule requires stationary sources to submit periodic emissions 

reports to the State. These requirements meet the emissions reporting requirements of 40 CFR 

Part 51, including the Air Emissions Reporting Requirements (AERR). NCGS 143-

215.107(a)(4) Air quality standards and classifications, provides the EMC with the statutory 

authority “To collect information or to require reporting from classes of sources which, in the 

judgment of the [EMC], may cause or contribute to air pollution.”
North Carolina Certification 12

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Emergency Episodes [§ 110(a)(2)(G)]: 

Section 110(a)(2)(G) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall –

“provide for authority comparable to that in section 303 of this title and adequate 

contingency plans to implement such authority.” 

Section 303 provides legal authority to the USEPA to stop the emission of air pollutants that 

present an imminent and substantial endangerment to public health or welfare or the 

environment. The USEPA is authorized to either bring a lawsuit in federal court or, if such civil 

action cannot assure prompt protection of public health or welfare, to issue such orders as may 

be necessary to protect public health or welfare or the environment. The requirement for states 

to provide adequate contingency plans (40 CFR 51.150 through 51.153) to implement such 

authority is intended to establish emergency episode plans for responding to elevated pollutant 

levels in urban areas. Emergency episode plans are required in areas that record ambient 

pollutant concentrations in excess of threshold levels specified in 40 CFR Part 51.150.

Section 110(a)(2)(G) of the CAA requires that SIPs must provide for the authority comparable to 

that in Section 303 and must include adequate contingency plans to implement such authority. 

Pursuant to these provisions, the USEPA promulgated 40 CFR 51.16 (36 FR 24002), which 

established “significant harm levels” for five criteria pollutants – sulfur dioxide, inhalable 

particulate matter (PM10), 2010 NO2, CO, and ozone. Part 51.16 was restructured as Subpart H 

and Appendix L of Part 51 (51 FR 40668). The requirement to submit an emergency plan for the 

five criteria pollutants is based on a priority classification scheme under 40 CFR Part 51 Subpart 

H. 

The threshold concentration for a Priority I NO2 area is 60 parts per billion (ppb), based on the 

annual average concentration. Areas with annual average concentrations below 60 ppb are 

classified as Priority III areas. Under 40 CFR 51.152, Priority III areas do not need to develop 

an emergency episode plan. States that do not meet this threshold would be classified as Priority 

III and would not be required to develop an emergency episode plan for NO2. 

15A NCAC 2D .0300 “Air Pollution Emergencies” provides the means to implement emergency 

air pollution episode measures and is authorized under NCGS 143-215.3(a)(1) and NCGS 

143.215.3(a)(12). There are no monitoring stations in North Carolina reporting a value of 

greater than 60 ppb. Based on this criterion, North Carolina would be classified as a Priority III 

area and therefore is not required to adopt an Emergency Episode Plan for NO2. 
North Carolina Certification 13

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Future SIP Revisions [§ 110(a)(2)(H)]: 

Section 110(a)(2)(H) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall –

“provide for revision of such plan—

(i) from time to time as may be necessary to take account of revisions of such 

national primary or secondary ambient air quality standard or the availability 

of improved or more expeditious methods of attaining such standard, and 

(ii) except as provided in paragraph (3)(C), whenever the Administrator finds on 

the basis of information available to the Administrator that the plan is 

substantially inadequate to attain the national ambient air quality standard 

which it implements or to otherwise comply with any additional requirements 

established under this chapter.”

NCGS 143-215.107(a)(1) and (a)(10) provide the authority “To prepare and develop, after proper 

study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in 

the State or in any designated area of the State” and “To develop and adopt standards and plans 

necessary to implement requirements of the federal Clean Air Act and implementing regulations 

adopted by the United States Environmental Protection Agency”, respectively. In addition, 15A 

NCAC 2D .2401(d) states that “The EMC may specify through rulemaking a specific emission 

limit lower than that established under this rule for a specific source if compliance with the lower 

emission limit is required to attain or maintain the ambient air quality standard for ozone or 

PM2.5 or any other ambient air quality standard in Section 15A NCAC 2D .0400.”
North Carolina Certification 14

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Plan Revisions for Nonattainment Areas [§ 110(a)(2)(I)]:

Section 110(a)(2)(I) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall -

“in the case of a plan or plan revision for an area designated as a nonattainment area, 

meet the applicable requirements of part D of this subchapter (relating to nonattainment 

areas).” 

This requirement only applies when an area is designated as nonattainment with the NO2

NAAQS and is only addressed when an attainment demonstration is required, as required by a 

separate provision and schedule as defined by the CAA. Therefore, no submission for this 

element is necessary.
North Carolina Certification 15

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Consultation and Public Notification [§ 110(a)(2)(J)]: 

Section 110(a)(2)(J) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall –

“meet the applicable requirements of section 121 of this title (relating to consultation), 

section 127 of this title (relating to public notification), and part C of this subchapter 

(relating to prevention of significant deterioration of air quality and visibility 

protection).”

This element contains four separable sub-elements: consultation with identified officials on 

certain air agency actions, public notification, prevention of significant deterioration, and 

visibility protection.

Consultation with identified officials on certain actions: Section 121 requires that states provide 

a satisfactory process of consultation with general purpose local governments, designated 

organizations of elected officials of local governments, and any affected federal land manager 

(FLM) in carrying out CAA requirements. North Carolina’s authority to satisfy these 

requirements is found in:

 15A NCAC 2D .2000 “Transportation Conformity”

 15A NCAC 2D .1600 “General Conformity” 

 15A NCAC 2D .0531 “Sources in Nonattainment Areas” address consultation 

requirements with the FLMs when permitting stationary sources. 

 “Regional Haze SIP for North Carolina Class I areas”, December 17, 2007

Public Notification: Section 127 requires states to provide measures which will be effective to 

notify the public on a regular basis of instances or areas in which any air quality standard is 

exceeded during the preceding calendar year, to advise the public of the health hazards 

associated with such pollution, and to enhance public awareness of measures that can be taken to 

prevent such standards from being exceeded. North Carolina’s authority to satisfy these 

requirements is found in:

 15A NCAC 2D .0300 “Air Pollution Emergencies”

Additionally, NCDAQ has an extensive outreach program to educate the public and promote 

voluntary emission reduction measures through the North Carolina Air Awareness Program. 

North Carolina also participates in the USEPA AirNOW program, which enhances public 

awareness of air quality in North Carolina and throughout the United States. The NCDAQ

Ambient Monitoring web page provides information regarding current and historical air quality 

across the state.
North Carolina Certification 16

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Prevention of Significant Determination: The requirements for Element J are the same as those 

described earlier with respect to Element C. North Carolina’s authority resides in the following 

rules:

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” 

 15A NCAC 2D .0531 “Sources in Nonattainment Areas”

 15A NCAC 2Q .0300 “Construction and Operation permits”

 15A NCAC 2Q 0.500 “Title V Procedures”

North Carolina has submitted three of four PSD requirements to USEPA for approval. 

Additionally, the NCDAQ plans to submit a SIP revision related to adoption of PSD 

requirements established in the 2008 NSR PM2.5 Rule and the 2010 PM2.5 Increments-SILs and 

SMC Rule to comply with 2006 PM2.5 infrastructure requirements for element C, (D)(i) and (J). 

These requirements will also satisfy the same elements for the 2010 NO2 infrastructure SIP. The 

SIP revision has been approved by the EMC and the Rules Review committee effective 

September 1, 2013, and is on track to be submitted by the NCDAQ to the USEPA on or before 

the prescribed deadline of October 16, 2013. 

Visibility Protection: These requirements are addressed through –

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” 

 “Regional Haze SIP for North Carolina Class I areas”, December 17, 2007

On June 27, 2012, the USEPA finalized a limited approval of a revision to the North Carolina’s 

Regional Haze SIP, as meeting some of the applicable regional haze requirements set forth in 

Sections 169A and 169b of the Clean Air Act and in 40 CFR 51.300-308. North Carolina plans 

to address the remaining deficiency in the Regional Haze SIP arising from the August 21, 2012 

decision by the U.S. Court of Appeals to vacate the 2011 Cross-State Air Pollution Rule. NCGS 

143-215.107(a)(7) provides the authority “To develop and adopt standards and plans necessary 

to implement programs for the prevention of significant deterioration and for the attainment of 

air quality standards in nonattainment areas.”

There are no other applicable visibility protection obligations under Section 110(a)(2)(J) as a 

result of the 2010 NO2 NAAQS.
North Carolina Certification 17

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Air Quality Modeling and Reporting [§ 110(a)(2)(K)]: 

Section 110(a)(2)(K) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall -

“provide for-

(i) the performance of such air quality modeling as the Administrator may 

prescribe for the purpose of predicting the effect on ambient air quality of any 

emissions of any air pollutant for which the Administrator has established a 

national ambient air quality standard, and 

(ii) the submission, upon request, of data related to such air quality modeling to 

the Administrator.”

All current attainment demonstrations submitted to the USEPA provide air quality modeling for 

the purpose of predicting the effect of emission sources on the ambient air quality. This 

modeling work complies with the USEPA’s final guidance on the use of models in attainment 

demonstrations, and uses latest methods and techniques to document modeling information and 

computer model performance evaluations. Emissions data collected through 15A NCAC 2D 

.0600 “Monitoring: Recordkeeping: Reporting” (authorized under NCGS 143-215.107(a)(4))

provide the necessary information to model potential impact of major and some minor sources. 

The NCDAQ works closely with the southeast region and other areas to conduct air quality 

modeling to ensure compatibility with federal guidelines. The NCDAQ currently has personnel 

with training and experience to conduct source-oriented dispersion modeling with models 

approved by the USEPA.
North Carolina Certification 18

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Permitting Fees [§ 110(a)(2)(L)]: 

Section 110(a)(2)(L) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall –

“require the owner or operator of each major stationary source to pay to the permitting 

authority, as a condition of any permit required under this chapter, a fee sufficient to 

cover—

(i) the reasonable costs of reviewing and acting upon any application for such a 

permit, and 

(ii) if the owner or operator receives a permit for such source, the reasonable 

costs of implementing and enforcing the terms and conditions of any such 

permit (not including any court costs or other costs associated with any

enforcement action), until such fee requirement is superseded with respect to 

such sources by the Administrator’s approval of a fee program under 

subchapter V of this chapter.”

North Carolina’s authority to satisfy these requirements is found in:

 15A NCAC 2Q .0200 “Permit Fees”

This rule provides the mechanism by which stationary sources that emit air pollutants pay a fee 

based on the type of permit and the quantity of emissions emitted. These fees cover the costs of 

reviewing, approving, implementing and enforcing a permit. The statutory authority to allow 

permit fees can be found in NCGS 143‐215.3 General powers of Commission and Department; 

auxiliary powers.
North Carolina Certification 19

2010 1-hour Nitrogen Dioxide NAAQS

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

Consultation and Participation by Affected Local Entities [§ 110(a)(2)(M)]: 

Section 110(a)(2)(M) of the CAA requires that North Carolina’s SIP for the 2010 NO2 NAAQS

shall –

“provide for consultation and participation by local political subdivisions affected by the 

plan.”

North Carolina’s authority related to this element is found in:

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” requires that the 

Department notify the public of the application, preliminary determination, degree of 

incremental consumption, and the opportunity for comment prior to making a final 

permitting decision. 

 15A NCAC 2D .2000 “Transportation Conformity” requires a consultation with all 

affected partners to be implemented for transportation conformity determinations. 

All State rules go through the public review process as defined in the North Carolina 

Administrative Procedures Act (NCGS 150B-21.1 and 150B-21.2). All Attainment 

Demonstrations, Redesignation Demonstrations, and Maintenance Plans go through a public 

notification process prior to submittal to the USEPA for inclusion in the SIP. Additionally, the 

Regional Haze State Implementation Plan went through an extensive consultation process 

between appropriate state, local, and tribal air pollution control agencies as well as the 

corresponding FLMs. Finally, the NCDAQ organizes stakeholder meetings to support SIP 

development and rule-making efforts.
Attachment 1

The United States Environmental Protection Agency’s 

Memorandums and Notices used in Developing the 

North Carolina Certification for 

Clean Air Act Section 110(a)(1) and (2) 

2010 1-hour Nitrogen Dioxide Standard
(This page intentionally left blank)
USEPA Memorandums and Notices 1

2010 1-hour Nitrogen Dioxide NAAQS Attachment 1

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP August 23, 2013

This document contains the United States Environmental Protection Agency’s (USEPA’s) 

memorandums and notices used in developing the North Carolina Certification for Clean Air Act 

Section 110(a)(1) and (2) requirements for the 2010 1-hour nitrogen dioxide national ambient air 

quality standards. Below is a table of contents of the reference documents used.

USEPA October 14, 2011 memorandum, “Guidance on Infrastructure State Implementation Plan 

(SIP) Elements Required Under Section 110(a)(1) and (2) for the 2008 Lead (Pb) National 

Ambient Air Quality Standards (NAAQS).” ...................................................................................2

USEPA April 6, 2011, memorandum, “Regional Consistency for the Administrative 

Requirements of State Implementation Plan Submittals and the Use of Letter Notices.”.............23

USEPA Federal Register notice, May 19, 2010, California’s legal authority (75 FR 27938).......36
(This page intentionally left blank)
USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 1 

 Attachment 1 

 August 23, 2013 
should, in consultation with the EPA Regional Offices, refer to applicable EPA regulations 

governing SIP submittals per 40 CFR Part 51. 

These regulations include, but are not limited to: 

 Subpart I – Review of New Sources and Modifications 

 Subpart J – Ambient Air Quality Surveillance 

 Subpart K – Source Surveillance 

 Subpart L – Legal Authority 

 Subpart M – Intergovernmental Consultation 

 Subpart O – Miscellaneous Plan Content Requirements 

 Subpart P – Protection of Visibility 

 Subpart Q – Reports. 

If a state determines that its existing SIP is adequate, then the state's SIP submittal may be a 

certification that the existing SIP contains provisions addressing all requirements of the 

section 110(a)(2) infrastructure elements as applicable for the 2008 Pb NAAQS. Such 

certification (e.g., in the form of a letter to the EPA from the Governor or her/his designee) should 

cite the applicable provisions in the existing SIP. As for all SIP submittals, section 110(l) directs 

the state to provide reasonable public notice and opportunity for public hearing on a certification 

letter prior to submission to the EPA. 

 Section 110(a)(2) specifies the elements and sub-elements that are required in order 

for the EPA to determine that an infrastructure SIP submittal is complete. Specifically, 

each state should include documentation demonstrating a correlation between each 

infrastructure element and an equivalent state statutory or regulatory authority in the 

existing or submitted SIP. At a minimum, a complete submittal is a letter from an 

appropriate state official (e.g., Governor or designee) certifying compliance with each 

element which has gone through state notice and hearing procedures. To meet the 

requirements of sections 110(a)(1) and 110(a)(2), a SIP submittal should include a 

detailed explanation of how the state's SIP meets each applicable requirement of 

section 110(a)(2). Where a SIP submittal does not meet the requirements of those 

CAA provisions, a letter should be sent to the state notifying it of the finding of 

incompleteness. EPA's criteria for determining the completeness of a SIP submittal are 

set out in EPA's regulations at 40 CFR Part 51, Appendix V. A state's obligation to 

make an infrastructure SIP submittal that addresses one or more infrastructure SIP 

elements cannot be fulfilled through a letter from the state that merely promises a 

future submittal. 

EPA has determined that the elements and sub-elements of section 110(a)(2) with respect to the 

2008 Pb NAAQS are, for the most part, severable. For example: 

 SIP submittals that address some but not all elements or sub-elements of 

section 110(a)(2) should be found incomplete for the unaddressed elements or subelements. 

 If EPA makes a finding of failure to submit an infrastructure SIP, that finding will 

only apply to the elements or sub-elements that were not addressed by the state’s 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 2 

 Attachment 1 

 August 23, 2013 
infrastructure SIP revision. In order for EPA to make a determination as to whether a 

subsequent infrastructure SIP submittal is complete, the state only needs to submit 

those elements that were earlier found not to have been submitted. 

A finding that an infrastructure SIP submittal is complete does not necessarily mean that the 

submittal is approvable, because the completeness review only addresses whether the state has 

provided information sufficient to warrant formal EPA review for approvability. Section 110(k) 

directs EPA to take final action on a SIP submittal within one year after the SIP is determined to 

be complete. If EPA makes an affirmative finding that a SIP submittal is complete, the date of the 

finding establishes the "completeness date" for the submittal; if EPA makes no finding the 

submittal is deemed complete, by operation of law, on the date six months after the submittal 

date. Actions on a SIP submittal may include approval (full, partial, or conditional) and 

disapproval (full or partial). 

The obligations of EPA to promulgate a federal implementation plan (FIP) are set out in 

section 110(c) of the CAA. EPA's obligation to promulgate a FIP for a state is triggered if EPA 

takes any of the following actions associated with the required SIP: 1) EPA makes a finding that a 

state has failed to make a SIP submittal; 2) EPA makes a finding that a state has made an 

incomplete submittal; or 3) EPA disapproves a SIP submittal. If EPA takes one of these actions, 

section 110(c) directs EPA to take further action within two years, under what is commonly 

referred to as the "FIP clock." In order to remove EPA from the FIP obligation, a state SIP 

submittal must meet the applicable requirements and be approved by EPA. 

We acknowledge that there have been significant delays in issuing this guidance. This is due in 

part to legal and other issues raised by outside parties over the past two years regarding actions on 

a range of infrastructure SIP issues for other pollutants. It was our desire to address as many of 

those issues as possible in this memorandum. We recognize that many states have been moving 

forward to develop these infrastructure plans, and this guidance is intended to help them complete 

this process. We will work to assist states in the development and completion of these plans so 

they may be submitted as soon as possible. 

Please ensure that the appropriate air agency officials for states in your Region are made aware of 

this guidance. 

For Further Information

If you have any questions concerning this guidance, please contact Mia South at (919) 541-5550 

or by email at south.mia@epa.gov, or Lisa Sutton at (919) 541-3450 or by email at 

sutton.lisa@epa.gov. 

Attachment 

cc: Anna Marie Wood 

 Scott Mathias 

 Rich Damberg 

 Kevin McLean 

 Sara Schneeberg 

 Geoffrey Wilcox 

 David Orlin 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 3 

 Attachment 1 

 August 23, 2013 
Attachment 

Guidance on Section 110 Infrastructure SIPs 

for the 2008 Pb NAAQS 

Table of Contents 

Required Section 110 Infrastructure Elements .......................................................................... 1 

Section 110(a)(2)(A): Emission limits and other control measures .......................................... 2

Section 110(a)(2)(B): Ambient air quality monitoring/data system ......................................... 4

Section 110(a)(2)(C): Programs for enforcement, PSD, and NSR ............................................ 5

Section 110(a)(2)(D)(i): Interstate transport provisions ............................................................ 7

Section 110(a)(2)(D)(ii): Interstate and International transport provisions ........................... 9

Section 110(a)(2)(E): Adequate personnel, funding, and authority ....................................... 10

Section 110(a)(2)(F): Stationary source monitoring and reporting ....................................... 12

Section 110(a)(2)(H): Future SIP revisions............................................................................... 14

Section 110(a)(2)(I): Nonattainment area plan or plan revision Under Part D .................... 14

Section 110(a)(2)(J): Consultation with government officials, public notification, 

PSD and visibility protection ......................................................................................... 14

Section 110(a)(2)(K): Air quality modeling/data ..................................................................... 15

Section 110(a)(2)(L): Permitting fees ........................................................................................ 16

Section 110(a)(2)(M): Consultation/participation by affected local entities .......................... 16

 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 4 

 Attachment 1 

 August 23, 2013 
Attachment 

1 

Required Section 110 Infrastructure SIP Elements 

The Clean Air Act (CAA) directs states to address basic State Implementation Plan (SIP) 

requirements to implement, maintain and enforce the national ambient air quality standards (NAAQS). 

Under CAA sections 110(a)(1) and 110(a)(2), states are to submit these SIPs within three years after 

promulgation of a new or revised standard. Many of the section 110(a)(2) SIP elements relate to the 

general information and authorities that constitute the "infrastructure" of a state's air quality management 

program, and these have been in place since the initial SIPs were submitted in response to the 1970 CAA. 

It is the responsibility of each state to review its air quality management program's infrastructure SIP 

provisions in light of each new or revised NAAQS. 

States should review and revise, as appropriate, their existing infrastructure SIPs to ensure that 

they are adequate to address the 2008 Pb NAAQS. States should, in consultation with U. S. 

Environmental Protection Agency (EPA) Regional Offices, follow applicable EPA regulations governing 

infrastructure SIP submittals in 40 CFR Part 51 - e.g., Subpart I ("Review of New Sources and 

Modifications"), Subpart J (Ambient Air Quality Surveillance), Subpart K (Source Surveillance), Subpart 

L (Legal Authority), Subpart M ("Intergovernmental Consultation"), Subpart O (Miscellaneous Plan 

Content Requirements), Subpart P ("Protection of Visibility"), and Subpart Q ("Reports"). 

For many infrastructure SIP elements, a SIP submittal should refer to and include citations to 

relevant state regulations. See guidance below regarding elements (F), (H), (J), and (M). For EPA's 

general criteria for infrastructure SIP submittals, refer to 40 CFR Part 51, Appendix V, "Criteria for 

Determining the Completeness of Plan Submissions." 

 For example, in accordance with Appendix V, paragraph 2.1(d), an infrastructure SIP submittal 

would include a copy of the actual regulation that the state is submitting for approval and incorporation 

by reference into its SIP, if a copy of that regulation has not already been provided by the state. 

Pursuant to section 110(a), states must provide reasonable notice and opportunity for public 

hearing for all infrastructure SIP submittals. Pursuant to EPA's regulations at 40 CFR Part 51, an 

infrastructure SIP submittal will include a certification by the state that the public hearing was held in 

accordance with EPA's procedural requirements for public hearings. See 40 CFR Part 51 Appendix V 

2.1(g) and 40 CFR 51.102. If a state believes that its existing approved infrastructure SIP is adequate 

with regard to specific elements, then the state's SIP submission may be a certification that the existing 

SIP contains provisions addressing the relevant section 110(a)(2) infrastructure elements as applicable for 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 5 

 Attachment 1 

 August 23, 2013 
Attachment 

2 

the 2008 Pb NAAQS. Such certification (e.g., in the form of a letter to EPA from the Governor or her/his 

designee) should cite the applicable provisions in the existing infrastructure SIP and provide a specific 

description of how compliance with each element is achieved. A state’s certification made in connection 

with the 2008 Pb NAAQS should be included in a SIP submittal only after the state has provided public 

notice and opportunity for public hearing on its certification. 

Section 110(a)(2) of the CAA directs all states to develop and maintain an air quality management 

infrastructure that includes enforceable emission limitations, an ambient monitoring program, an 

enforcement program, air quality modeling capabilities, and adequate personnel, resources, and legal 

authority. Section 110(a)(2)(D) also directs SIPs to prevent emissions from within the state that 

contribute significantly to nonattainment in any other state, or that interfere with maintenance in any 

other state, or that interfere with programs under part C of the CAA to prevent significant deterioration of 

air quality or to protect visibility in any other state. 

Two elements identified in section 110(a)(2) are not governed by the 3-year submission deadline 

of section 110(a)(1). The elements pertain to part D, in Title I of the CAA, which addresses plan 

requirements for nonattainment areas. Therefore, the following section 110(a)(2) elements are considered 

by EPA to be outside the scope of infrastructure SIP actions: (1) section 110(a)(2)(C) to the extent it 

refers to permit programs (known as "nonattainment new source review") under part D; and 

(2) section 110(a)(2)(I) in its entirety. EPA does not expect infrastructure SIP submittals to include 

regulations or emission limits developed specifically for attaining the relevant standard. Those submittals 

are due at the time the nonattainment area planning elements are due (18 months following designation). 

Except as described above, subsections (A) through (M) of section 110(a)(2) set forth the 

infrastructure elements that a SIP should address, in order to be approved by EPA. The elements are 

presented below in context of the 2008 Pb NAAQS. 

Section 110(a)(2)(A): Emission limits and other control measures

“Each such plan shall [. . .] include enforceable emission limitations and other control 

measures, means, or techniques (including economic incentives such as fees, marketable 

permits, and auctions of emissions rights), as well as schedules and timetables for 

compliance, as may be necessary or appropriate to meet the applicable requirements of 

this chapter.” 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 6 

 Attachment 1 

 August 23, 2013 
Attachment 

3 

EPA would not expect infrastructure SIP submission to identify nonattainment area emission 

controls. Emissions limitations and other control measures to attain the 2008 NAAQS in areas designated 

nonattainment for the 2008 Pb NAAQS are due on a different schedule from the section 110 

infrastructure elements and will be reviewed and acted upon through a separate process. However, the 

infrastructure SIP submission may include a list or table referencing any Pb emission reduction measures 

adopted and relied on by the state to meet other CAA requirements, such as maintenance of the 2008 

NAAQS. 

There are two other issues that generally fall under this particular element of section 110(a)(2)(A) 

for which we provide general guidance at this time. They are: (1) how states would need to address 

previously approved emissions limitations that may treat startup, shutdown and malfunction (SSM) 

events inconsistently with our longstanding guidance on excess emissions; and (2) how states would need 

to address previously approved variance provisions and "director's discretion" provisions that do not 

comport with EPA policy. We are discussing options for resolving next steps to be taken on these issues, 

taking into consideration several actions on state provisions relating to SSM and director's discretion in 

which EPA is currently engaged.1

Nevertheless, in the meantime EPA wishes to provide infrastructure SIP guidance to the extent 

possible. Therefore, as general guidance, EPA can advise that states not make infrastructure SIP 

submissions that rely on previously approved but potentially flawed provisions. Further, we wish to make 

clear that for infrastructure SIP submissions such as for the 2008 Pb NAAQS, any "new" (i.e., not already 

SIP-approved) provisions should be consistent with EPA's longstanding policies on SSM and director's 

discretion, which are briefly summarized as follows.2

 Because excess emissions might aggravate air 

quality so as to prevent attainment and maintenance of the NAAQS and compliance with other CAA 

requirements, EPA would view all periods of excess emissions as violations of the applicable emission 

limitation. Therefore, new provisions as part of an approvable SIP submittal could not exempt from 

enforcement excess emissions that may occur at a facility during a period of startup or shutdown. Further, 

 

1

 See, e.g., SIPs for Utah and North Dakota. EPA has also proposed to enter into a settlement agreement that would obligate 

EPA to respond by August 31, 2012, to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 

39 states' SIPs. (See notice published in the Federal Register on September 1, 2011, at 76 FR 54465.) 2

 For further description of EPA's policy on SSM and director's discretion, see, e.g., a memorandum dated September 20, 

1999, entitled, "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and 

Shutdown," from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert 

Perciasepe, Assistant Administrator for Air and Radiation. 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 7 

 Attachment 1 

 August 23, 2013 
Attachment 

4 

new provisions as part of an approvable SIP submittal could not automatically exempt from enforcement 

excess emissions claimed to result from an equipment malfunction. In addition, new provisions as part of 

an approvable SIP submittal could not allow a state air director the discretion to determine whether an 

instance of excess emissions is a violation of an emission limitation, because such a determination could 

bar EPA and citizens from enforcing applicable requirements. 

Section 110(a)(2)(B): Ambient air quality monitoring/data system

“Each such plan shall [. . .] provide for establishment and operation of appropriate 

devices, methods, systems, and procedures necessary to 

 (i) monitor, compile, and analyze data on ambient air quality, and 

 (ii) upon request, make such data available to the Administrator.” 

To meet section 110(a)(2)(B) requirements for this NAAQS, the state’s monitoring system 

should: 

 

 Monitor air quality for Pb at appropriate locations throughout the state using EPA approved 

Federal Reference Method or equivalent monitors, in accordance with recent revisions to the 

Pb monitoring network requirements. See the Lead Ambient Air Monitoring Requirements, 

December 14, 2010. 

 Submit data to EPA’s Air Quality System (AQS) in a timely manner in accordance with 

EPA’s Air Quality data reporting regulations. See 40 CFR 51.320.

 Submit approvable annual monitoring plans to EPA that describe how the state has complied 

with monitoring requirements and explain any proposed changes to the network.

 Provide the EPA Regional Office prior notification of any planned changes to monitoring sites 

or to the network plan. 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 8 

 Attachment 1 

 August 23, 2013 
Attachment 

5 

Section 110(a)(2)(C): Programs for enforcement, PSD, and NSR

“Each such plan shall [. . .] include a program to provide for the enforcement of the 

measures described in subparagraph (A), and regulation of the modification and 

construction of any stationary source within the areas covered by the plan as necessary 

to assure that national ambient air quality standards are achieved, including a permit 

program as required in parts C and D of this subchapter.” 

The Prevention of Significant Deterioration (PSD) and nonattainment New Source Review 

(NNSR) programs contained in parts C and D of Title I of the CAA, and collectively referred to as the 

major New Source Review (NSR) program, govern preconstruction review and permitting of any new or 

modified major stationary sources of air pollutants regulated under the CAA as well as any precursors to 

the formation of that pollutant when identified for regulation by the Administrator.3

 The EPA rules 

addressing these programs can be found generally at 40 CFR 51.166 and 40 CFR 52.21 (for PSD), and 40 

CFR 51.165, 40 CFR 52.24, and Part 51, Appendix S (for NNSR). 

Essential to the approvability of infrastructure SIP elements (C) and (J) is the approvability of a 

state’s PSD program in its entirety. To meet section 110(a)(2)(C) requirements for the Pb NAAQS, the 

infrastructure SIP submittal should: 

 Reference relevant state and federal regulations that provide for enforcement of Pb emission 

limits and control measures. 

 Identify the various state regulations that govern permitting of new and modified stationary 

sources (minor and major) of Pb in the state. 

 Incorporate its PSD program regulations to address any applicable EPA amendments to Pb 

PSD rules within 3 years from the date of such amendments. 

For areas subject to a state’s SIP-approved PSD program, the state should demonstrate that it is 

authorized to implement its existing PSD permit program to ensure that the construction and modification 

of major stationary sources does not cause or contribute to a violation of the Pb NAAQS. The state's PSD 

program should ensure that new or modified sources will apply the Best Available Control Technology to 

reduce Pb emissions in accordance with CAA sections 165 (a)(3) and (4). 

 

3

 The terms “major” and “minor” categorize a stationary source, for NSR applicability purposes, in terms of an annual 

emissions rate (tons per year, tpy) for a pollutant. Generally, a minor source is any source that is not “major.” “Major” is 

defined in the applicable NSR regulations—PSD or nonattainment NSR. 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 9 

 Attachment 1 

 August 23, 2013 
Attachment 

6 

 States need to have in place a PSD program that applies to all regulated NSR pollutants, 

including GHG. The state's PSD program should apply to sources that emit greenhouse gases (GHG) in 

accordance with EPA's Tailoring Rule.4

 Among other things, the state's PSD program must either: 

(i) limit PSD applicability to GHG-emitting sources by adopting the applicability thresholds included in 

the Tailoring Rule; or (ii) adopt lower GHG thresholds and show that the state has adequate personnel 

and funding to administer and implement those lower thresholds. Otherwise, the state is directed to 

remove from EPA’s consideration for approval that portion of the SIP (or SIP submission) for which 

EPA rescinded our previous approval of the PSD program (in a rulemaking referred to as the "GHG PSD 

SIP Narrowing Rule").5

 To request such removal, a state may choose to follow the example of the letter 

request submitted by South Carolina.6

Until a state has adopted a comprehensive program, its infrastructure SIP would not be 

approvable with respect to CAA Section 110(a)(2)(C) or (J). If a state lacks a SIP-approved PSD 

program, it is subject to a federal implementation plan (FIP), and major stationary sources within its 

jurisdiction are subject to the federal PSD requirements in 40 CFR 52.21. Some states are subject to a FIP 

for PSD permitting of all regulated NSR pollutants, and fewer states are subject to a FIP for PSD 

permitting that is limited to GHG. For sources subject to a FIP for PSD permitting, either the EPA 

Regional Office or the state acting as EPA's delegate is the permitting authority. EPA recognizes that 

many states have been implementing a PSD FIP program for some time. When a state is already subject 

to a FIP for PSD permitting (whether or not the state has been delegated authority to implement the PSD 

FIP), and EPA disapproves this element of the state's infrastructure SIP submittal, we expect the 

permitting authority would simply continue implementation of the PSD FIP, and EPA would have no 

additional FIP obligations. In addition, the state would not be subject to any potential mandatory 

sanctions in connection with such disapproval, as such sanctions do not apply to infrastructure SIP 

deficiencies. 

Minor NSR programs are subject to the statutory requirements in section 110(a)(2)(C) of the 

CAA which requires “...regulation of the modification and construction of any stationary source ...as 

 

4

 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 

2010). 

5

 Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas-Emitting Sources 

in State Implementation Plans; Final Rule, 75 FR 82536 (December 30, 2010). 6

 South Carolina's letter request can be found at http://www.regulations.gov, at EPA-R04-OAR-2010-0721-0006. 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 10 

 Attachment 1 

 August 23, 2013 
Attachment 

7 

necessary to assure that the [NAAQS] are achieved.” These programs should be established in each state 

within three years of the promulgation of a new or revised NAAQS, and may be particularly important 

because virtually all sources of lead are minor sources. 

To date, EPA has not proposed to amend the PSD regulations with regard to the Pb NAAQS. 

EPA does recognize that certain provisions of these regulations still may need to be evaluated and 

potentially revised in light of the 2008 Pb NAAQS. See for example, provisions 40 CFR Part 

51.166(i)(5)(i)(g) (“the emissions increase of the pollutant from a new stationary source or the net 

emissions increase of the pollutant from a modification would cause, in any area, air quality impacts less 

than the following amounts: ... Lead—0.1 μg/m3, 3-month average);” 40 CFR 166 (b)(23)(i) 

("Significant means, in reference to a net emissions increase or the potential of a source to emit 

any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: 

... Lead: 0.6 tpy”). EPA also is planning to issue Pb modeling guidance to supplement the guidance 

contained in EPA’s Guideline on Air Quality Models (40 CFR Part 51, Appendix S), which will assist 

states and prospective sources in carrying out the analyses necessary to satisfy the PSD requirements for 

Pb. 

Section 110(a)(2)(D)(i): Interstate transport provisions

 “Each such plan shall [...] contain adequate provisions: 

(i) prohibiting, consistent with the provisions of this subchapter, any source 

or other type of emissions activity within the state from emitting any air 

pollutant in amounts which will- 

(ii) contribute significantly to nonattainment in, or 

(iii) interfere with maintenance by, any other state with respect to any such 

national primary or secondary ambient air quality standard, or interfere 

with measures required to be included in the applicable implementation 

plan for any other state under part C of this subchapter to prevent 

significant deterioration of air quality to protect visibility.” 

Section 110(a)(2)(D)(i) provides for infrastructure SIPs to include provisions prohibiting any 

source or other type of emissions activity in one state from contributing significantly to nonattainment, or 

interfering with maintenance, of the NAAQS in another state. (The preceding requirements, from 

subsection (2)(D)(i)(I), respectively refer to what may be called prongs 1 and 2.) Further, this section 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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8 

directs infrastructure SIPs to include provisions prohibiting any source or other type of emissions activity 

in one state from interfering with measures required to prevent significant deterioration of air quality, or 

from interfering with measures required to protect visibility (i.e., measures to address regional haze) in 

any state. (The preceding requirements, from subsection (2)(D)(i)(II), respectively refer to what may be 

called prongs 3 and 4.) 

The physical properties of Pb prevent Pb emissions from experiencing the same travel or 

formation phenomena as PM2.5 or ozone. More specifically, there is a sharp decrease in Pb 

concentrations, at least in the coarse fraction, as the distance from a Pb source increases. Accordingly, 

while it may be possible for a source in a state to emit Pb in a location and in quantities that may 

contribute significantly to nonattainment in, or interfere with maintenance by, any other state, EPA 

anticipates that this would be a rare situation, e.g., where large sources are in close proximity to state 

boundaries. 

EPA believes that requirements of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied 

through a state’s assessment as to whether or not emissions from Pb sources located in close proximity to 

their state borders have emissions that impact the neighboring state such that they contribute significantly 

to nonattainment or interfere with maintenance in that state.7

 The states’ conclusions could be supported 

by the technical information or data used to support the initial area designations for Pb. Therefore, to 

address prongs 1 and 2 of section 110(a)(2)(D)(i)(I) the state’s submission should include an explanation 

in support of the state’s conclusion and, if applicable, should address the impact in their submittal. 

Under section 110(a)(2)(D)(i)(II), the PSD sub-element (prong 3) may be met by the state’s 

confirmation in an infrastructure SIP submission that new major sources and major modifications in the 

state are subject to PSD and (if the state contains a nonattainment area for the relevant pollutant) NNSR 

programs that implement the 2008 Pb NAAQS.8

With regard to the requirement of prong 4, i.e., visibility under subsection (2)(D)(i)(II), 

significant impacts from Pb emissions from stationary sources are expected to be limited to short 

distances from the source and most, if not all Pb stationary sources are located at distances from Class I 

 

7

 For example, EPA’s experience with initial lead designations suggests that sources that emit less than 0.5 tpy or that are 

located more than 2 miles from a state border generally appear unlikely to contribute significantly to nonattainment in another

state. 

8

 Memorandum issued by William T. Harnett, Director, OAQPS/AQPD, “Guidance on SIP Elements Required Under 

Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS),” 

dated September 25, 2009. 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 12 

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areas such that visibility impacts would be negligible. Although Pb can be a component of coarse and 

fine particles, Pb generally comprises a small fraction of coarse and fine particles. Furthermore, when 

evaluating the extent that Pb could impact visibility, Pb-related visibility impacts were found to be 

insignificant (e.g., less than 0.10%) .9

 Although we anticipate that Pb emissions will contribute only 

negligibly to visibility impairment at Class I areas, the state’s submission should include an explanation 

in support of the state’s conclusion (and, if applicable, should address the impact in their submittal). 

Where a state’s regional haze SIP has been approved as meeting all current obligations, a state may point 

to its approved plan to demonstrate that it meets the requirements of prong 4. 

Section 110(a)(2)(D)(ii): Interstate and International transport provisions

“Each such plan shall [. . .] contain adequate provisions insuring compliance with the 

applicable requirements of sections 115 or 126 (b) that involve Pb emissions (relating to 

interstate and international pollution abatement).” 

Section 126(a) of the CAA directs each SIP to include provisions requiring a new or modified 

source to notify neighboring states of potential impacts from the source. States with SIP-approved PSD 

programs should have a regulatory provision in place, consistent with 40 CFR 51.166(q)(2)(iv), that 

requires such notification of other state and local agencies. States relying on the federal program 

requirements of 40 CFR 52.21(q), which provide for notification of affected state and local air agencies, 

to satisfy this requirement have programs that are technically deficient and not approvable. Although 

these programs are deficient and these states have not “submitted” anything to EPA, EPA would not be 

required to take further action with respect to this element because the federal rules represent a FIP that 

fully addresses the notification issue. In addition, mandatory sanctions would not apply because the 

deficiencies are neither with regard to a required submittal under part D nor in response to an SIP call 

under CAA Section 110(k)(5). As described in this infrastructure SIP guidance for element (C), such 

states remain obligated to adopt and submit a PSD program for EPA approval that applies to all regulated 

NSR pollutants, including GHG. Until a state provides such a program, its infrastructure SIP would not 

be approvable with respect to section 110(a)(2)(D)(ii). 

 

9

 Analysis by Mark Schmidt, OAQPS, “Ambient Pb’s Contribution to Class 1 Area Visibility Impairment,” June 17, 2011. 

USEPA Memorandums and Notices 

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Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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Sections 126(b) and 126(c) of the CAA affect a state only if the Administrator has been petitioned 

to make a finding of violation that is related to either interstate transport or international transport of 

emissions from sources in the state. Thus, unless a state has been the subject of such a petition, the state 

has no continuing obligation under sections 126(b) or 126(c). 

Section 115 of the CAA authorizes the Administrator to require a state to revise its SIP under 

certain conditions to alleviate international transport. Because there are no pending actions pursuant to 

Section 115 of the CAA, EPA has no expectation that the state would need to submit anything in regards 

to Section 115 at this time. 

Section 110(a)(2)(E): Adequate personnel, funding, and authority

 “Each such plan shall [. . .] provide: 

(i) necessary assurances that the state (or, except where the Administrator deems 

inappropriate, the general purpose local government or governments, or a regional 

agency designated by the state or general purpose local governments for such purpose) 

will have adequate personnel, funding, and authority under state (and, as appropriate, 

local) law to carry out such implementation plan (and is not prohibited by any provision 

of federal or state law from carrying out such implementation plan or portion thereof), 

(ii) requirements that the state comply with the requirements respecting state boards 

under section 128, 

 (iii) necessary assurances that, where the state has relied on a local or regional 

government, agency, or instrumentality for the implementation of any plan provision, the 

state has responsibility for ensuring adequate implementation of such plan provision.” 

 

The infrastructure SIP should assure that the state has adequate personnel and funding to 

implement the Pb NAAQS. See EPA's regulations at 40 CFR Part 51, subpart M ("Intergovernmental 

Consultation") and subpart O ("Miscellaneous Plan Content Requirements"). For example: 

 In accordance with EPA's regulations at subpart M, the infrastructure SIP should identify the 

organizations that will participate in developing, implementing, and enforcing the SIP as a 

whole. The infrastructure SIP should identify the responsibilities of such organizations and 

include related agreements among the organizations. See 40 CFR 51.240, "General plan 

requirements." In accordance with EPA's regulations at subpart O, the infrastructure SIP 

should describe resources for carrying out State programs and requirements. Resources to be 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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described include: (1) those available to the state (and local agencies, where appropriate) as of 

the date of infrastructure SIP submittal; (2) those considered necessary during the 5 years 

following infrastructure SIP submittal; and (3) projections regarding acquisition of the 

described resources. See 40 CFR 51.280, "Resources." Further, the infrastructure SIP should 

assure that the state has adequate authority under its rules and regulations to carry out the 

state's SIP obligations with respect to the 2008 Pb NAAQS and to revise the SIP as necessary. 

See EPA's regulations at 40 CFR Part 51, subpart L (“Legal Authority”) and subpart O 

(“Miscellaneous Plan Content Requirements”). For example: 

 In accordance with EPA's regulations at subpart L, the infrastructure SIP should show that the 

state has the legal authority to carry out the plan; the provisions of the state's laws or 

regulations that provide that authority are to be specifically identified in the infrastructure SIP, 

and copies of the laws or regulations should be included in the infrastructure SIP submittal. 

See 40 CFR sections 51.230 through 51.231. 

 In accordance with EPA's regulations at subpart O, the infrastructure SIP submittal should 

include copies of rules and regulations that show that the state has adopted the emission 

limitations and other measures necessary for attainment and maintenance of the 2008 Pb 

NAAQS. See 40 CFR 51.281, "Copies of rules and regulations." 

In accordance with sub-element (ii), the infrastructure SIP should include requirements that the 

state comply with CAA 128, "State Boards."10 Section 128 of the CAA states: 

Sec. 128. (a) Not later than the date one year after the date of the enactment of this 

section, each applicable implementation plan shall contain requirements that – 

(1) any board or body which approves permits or enforcement orders under this 

Act shall have at least a majority of members who represent the public interest and do 

not derive any significant portion of their income from persons subject to permits or 

enforcement orders under this Act, and 

(2) any potential conflicts of interest by members of such board or body or the 

head of an executive agency with similar powers be adequately disclosed. 

 

10 EPA's operative guidance on these SIP requirements can be found in a memorandum dated March 2, 1978, from David 

Bickart, Deputy General Counsel, to Regional Air Directors, entitled “Guidance to State for Meeting Conflict of Interest 

Requirements of Section 128.” 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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A State may adopt any requirements respecting conflicts of interest for such boards or 

bodies or heads of executive agencies, or any other entities which are more stringent 

than the requirements of paragraphs (1) and (2), and the Administrator shall approve 

any such more stringent requirements submitted as part of an implementation plan. 

Finally, the infrastructure SIP should assure that the state retains responsibility for ensuring 

adequate implementation of the state's SIP obligations with respect to the 2008 Pb NAAQS. A state may 

assign responsibility for carrying out a portion of its SIP to a state government agency other than the state 

air pollution control agency, if the SIP demonstrates that such other agency has the necessary legal 

authority. Similarly, the state may authorize a local agency to carry out the SIP or portion of the SIP 

within the local agency's jurisdiction, if the SIP demonstrates that the local agency has the necessary legal 

authority; however, the authorizing state is not relieved of responsibility for carrying out the SIP. See 40 

CFR 51.232, "Assignment of legal authority to local agencies." 

Section 110(a)(2)(F): Stationary source monitoring and reporting

 “Each such plan shall [. . .] require, as may be prescribed by the Administrator: 

(i) the installation, maintenance, and replacement of equipment, and the 

implementation of other necessary steps, by owners or operators of stationary sources to 

monitor emissions from such sources, 

(ii) periodic reports on the nature and amounts of emissions and emissionsrelated data from such source 

(iii) correlation of such reports by the state agency with any emission limitations 

or standards established pursuant to this chapter, which reports shall be available at 

reasonable times for public inspection.” 

The infrastructure SIP should provide citations to the state's regulations for source monitoring, 

recordkeeping, and reporting requirements applicable to Pb, such as the Air Emission Reporting Rule 

(AERR). In accordance with EPA regulations at 40 CFR Part 51, subpart K ("Source Surveillance"), the 

infrastructure SIP should identify State requirements that provide for monitoring the status of sources' 

compliance with the Pb NAAQS. For example, the SIP should include provisions for owners or 

operators of stationary sources to maintain records of emissions and other information as may be 

necessary to enable the state to determine whether the sources are in compliance, and the SIP should 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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further include provisions for the sources to periodically report that information to the state. See 40

CFR 51.211, "Emission reports and recordkeeping." 

In accordance with EPA regulations at 40 CFR Part 51, subpart A ("Air Emissions Reporting 

Requirements") and subpart Q ("Reports"), the responsible state agency should analyze the Pb emissions 

data and correlate such data with applicable emission limitations or standards. The infrastructure SIP 

should identify state requirements providing for periodic reporting of emissions inventory data by the 

state to the Administrator (through the appropriate Regional Office). See 40 CFR 51.321. All reports 

should be made available to the public.  

   

Section 110(a)(2)(G): Emergency episodes

“Each such plan shall provide for authority comparable to that in section 303 of this 

Title and adequate contingency plans to implement such authority.” 

Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from 

causing or contributing to emissions which present an “imminent and substantial endangerment to public 

health or welfare, or the environment.” As directed under section 110(a)(2)(G), each SIP submittal should 

specify authority, rested in an appropriate official, to restrain any source from causing or contributing to 

Pb emissions which present an imminent and substantial endangerment to public health or welfare, or the 

environment. Based on EPA’s experience to date with the Pb NAAQS and designating Pb nonattainment 

areas, EPA expects that such an event would be unlikely and, if it were to occur, would be the result of a 

malfunction or other emergency situation at a relatively large source of lead. Accordingly, EPA believes 

that the central components of a contingency plan would be to reduce emissions from the source at issue 

(if necessary by curtailing operations) and public communication as needed. In addition, if a state 

believes, based on its inventory of lead sources and historic ambient monitoring data, that it does not 

need a more specific contingency plan beyond having authority to restrain any source from causing or 

contributing to an imminent and substantial endangerment, then the state could provide such a detailed 

rationale in place of a specific contingency plan. EPA notes that 40 CFR Part 51, subpart H (51.150-

51.152) and 40 CFR, Part 51, Appendix L do not apply to Pb, but States may wish to consult subpart H 

and Appendix L as illustrative guidance of what constitutes appropriate contingency planning for other 

pollutants. 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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Section 110(a)(2)(H): Future SIP revisions

 “Each such plan shall [. . .] provide for revision of such plan— 

(i) from time to time as may be necessary to take account of revisions of such 

national primary or secondary ambient air quality standard or the availability of 

improved or more expeditious methods of attaining such standard, and 

(ii) except as provided in paragraph (3)(C), whenever the Administrator finds on 

the basis of information available to the Administrator that the plan is substantially 

inadequate to attain the national ambient air quality standard which it implements or to 

otherwise comply with any additional requirements established under this chapter 

(CAA).” 

The infrastructure SIP should provide citations to the state regulatory provisions requiring the 

state to 1) revise its section 110 plan from time to time as may be necessary to take into account revisions 

of such primary or secondary NAAQS or the availability of improved or more expeditious methods of 

attaining such standards; and 2) revise its section 110 plan in the event the Administrator finds the plan to 

be substantially inadequate to attain the NAAQS. See 40 CFR 51.104, “Revisions”. 

Section 110(a)(2)(I): Nonattainment area plan or plan revision Under Part D 

“Each such plan shall [. . .] in the case of a plan or plan revision for an area designated 

as a nonattainment area, meet the applicable requirements of part D of this subchapter 

(relating to nonattainment areas).” 

As noted above, EPA would not expect infrastructure SIP submissions to address subsection 

110(a)(2)(I). Nonattainment area plans required under part D are required on a different schedule from 

the section 110 infrastructure elements and will be reviewed and acted upon through a separate process. 

Section 110(a)(2)(J): Consultation with government officials, public notification, PSD and 

visibility protection

“Each such plan shall [. . .] meet the applicable requirements of section 121 of this Title 

(relating to consultation), section 127 of this Title (relating to public notification), and 

part C of this subchapter (relating to prevention of significant deterioration of air quality 

and visibility protection).” 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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The infrastructure SIP should reference the state rules that provide a process of consultation with 

general purpose local governments, designated organizations of elected officials of local governments, 

and any federal land manager having authority over federal land to which the plan applies, consistent 

with the requirements of CAA § 121. 

The infrastructure SIP should provide citations to regulations requiring the state to regularly 

notify the public of: instances or areas in which any primary NAAQS was exceeded; the associated 

health hazards; and ways in which the public can participate in regulatory and other efforts to improve air 

quality. See 40 CFR 51.285, “Public notification”. 

Pursuant to the CAA, an infrastructure SIP should identify state requirements that allow a state to 

implement any new PSD requirements that are triggered upon the effective date of any new NAAQS. 

However, sources in a state may be subject to the federal PSD requirements pursuant to 40 CFR 52.21, if 

a state does not have a SIP-approved PSD program. As described in this infrastructure SIP guidance for 

element (C), such states remain obligated to adopt and submit a PSD program for EPA approval that 

applies to all regulated NSR pollutants, including GHG. Until a state provides such a program, its 

infrastructure SIP would not be approvable with respect to CAA Section 110(a)(2)(J). 

With regard to the requirement of the plan to meet the applicable requirements for visibility 

protection, EPA would not expect to treat this provision as applicable for purposes of the infrastructure 

SIP approval process. EPA recognizes that states are subject to visibility protection and regional haze 

program requirements under Part C of the Act (which includes sections 169A and 169B). However, in the 

event of the establishment of a new primary NAAQS, the visibility protection and regional haze program 

requirements under part C do not change. Thus, EPA concludes there are no new applicable visibility 

protection obligations under section 110(a)(2)(J) as a result of the 2008 Pb NAAQS. 

Section 110(a)(2)(K): Air quality modeling/data

 “Each such plan shall [. . .] provide for— 

(i) the performance of such air quality modeling as the Administrator may 

prescribe for the purpose of predicting the effect on ambient air quality of any emissions 

of any air pollutant for which the Administrator has established a national ambient air 

quality standard, and 

(ii) the submission, upon request, of data related to such air quality modeling to 

the Administrator.” 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 19 

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The infrastructure SIP should demonstrate that the state has the authority and technical capability 

to conduct air quality modeling in order to assess the effect on ambient air quality of relevant pollutant 

emissions; and that the state can provide relevant data as part of the permitting and NAAQS 

implementation processes. The infrastructure SIP should also identify state regulations providing that, 

upon request, the state will submit current and future data relating to such air quality modeling to the 

Administrator. EPA anticipates that the predominant type of air quality modeling to be conducted with 

respect to implementing the Pb NAAQS will be source-oriented dispersion modeling with models such as 

AERMOD. 

Section 110(a)(2)(L): Permitting fees

“Each such plan shall require the owner or operator of each major stationary source to 

pay to the permitting authority, as a condition of any permit required under this chapter, 

a fee sufficient to cover— 

(i) the reasonable costs of reviewing and acting upon any application for such a 

permit, and 

(ii) if the owner or operator receives a permit for such source, the reasonable 

costs of implementing and enforcing the terms and conditions of any such permit (not 

including any court costs or other costs associated with any enforcement action), until 

such fee requirement is superseded with respect to such sources by the Administrator’s 

approval of a fee program under subchapter Title) V of this chapter.” 

The infrastructure SIP should provide citations to the regulations providing for collection of 

permitting fees under the state’s EPA-approved Title V permit program. See 40 CFR 70.9 (“Fee 

determination and certification”), and 40 CFR Part 70, Appendix A, “Approval Status of State and Local 

Operating Permits Programs”. 

Section 110(a)(2)(M): Consultation/participation by affected local entities

“Each such plan shall [. . .] provide for consultation and participation by local political 

subdivisions affected by the plan.” 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

 20 

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To satisfy this element (M), and in accordance with EPA's regulations at 40 CFR Part 51, 

subpart M ("Intergovernmental Consultation"), the infrastructure SIP should identify the organizations 

that will participate in developing, implementing, and enforcing the state air quality program. Further, the 

infrastructure SIP should identify the responsibilities of such organizations and include related 

agreements among the organizations. See 40 CFR 51.240, "General plan requirements." The 

infrastructure SIP should identify policies or procedures requiring consultation and participation by local 

political subdivisions affected by the infrastructure SIP. For example, the infrastructure SIP should 

provide a citation to the state regulations that provide notice and opportunity for public hearing in 

accordance with EPA regulations at 40 CFR Part 51, subpart F ("Procedural Requirements"). 

 Prior to submitting an infrastructure SIP revision or a compliance schedule, a state must provide 

notice, provide the opportunity to submit written comments, and allow the public the opportunity to 

request a public hearing. See 40 CFR 51.102, "Public hearings." 

USEPA Memorandums and Notices 

2010 1-hour Nitrogen Dioxide NAAQS 

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP 

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27938 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

that is a qualified nonpersonal use 

vehicle as defined in section 274(i) and 

§ 1.274–5(k). 

* * * * * 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: May 5, 2010. 

Michael Mundaca, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 2010–11767 Filed 5–18–10; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0269; FRL–9152–6] 

Approval and Promulgation of 

Implementation Plans; State of 

California; Legal Authority 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

clarify the contents of the applicable 

implementation plan for the State of 

California under the Clean Air Act. 

Specifically, EPA is taking final action 

to clarify that the statutory provisions 

submitted by California and approved 

by EPA in 1972 supporting the State’s 

legal authority chapter of the original 

implementation plan were superseded 

by a subsequent approval by EPA in 

1980 of California’s revision to the legal 

authority chapter of the plan. EPA is 

taking this action to clarify the status in 

the California plan of the statutory 

provisions submitted and approved in 

1972. 

DATES: Effective Date: This rule is 

effective on June 18, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2009–0269 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Gerardo Rios, Chief, Permits Office 

(AIR–3), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3974: 

rios.gerardo@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On January 29, 2010 (75 FR 4742), 

under the Clean Air Act (CAA or ‘‘Act’’), 

we proposed to clarify that the statutory 

provisions submitted by California in 

1972 supporting the State’s legal 

authority chapter of the original 

implementation plan were superseded 

by a subsequent approval by EPA in 

1980 of a revision to California’s legal 

authority chapter of the plan. 

In support of our proposed action, we 

provided a detailed account of the 

regulatory context in which the original 

California State implementation plan 

(SIP) was submitted and approved by 

EPA. We also described in detail the 

contents of the original California SIP, 

which consisted of 13 parts, the first 

part (‘‘State General Plan’’) of which 

included a chapter 7 (‘‘Legal 

Considerations’’), referred to herein as 

the ‘‘legal authority’’ chapter. The 

original SIP also included an appendix 

(entitled ‘‘Appendix II: State Statutes 

and other Legal Documents Pertinent to 

Air Pollution Control in California’’) to 

the legal authority chapter. The legal 

authority chapter included many 

citations to individual sections within 

the California Health & Safety Code 

(CH&SC) and other California codes, as 

well as citations to (then) recently 

approved legislation, and attorney 

general opinions as support for the 

assurance that adequate legal authority 

exists in the State to meet CAA and EPA 

SIP requirements. 

As described in the proposal, the 

appendix to the legal authority chapter 

in the plan (herein, ‘‘appendix II’’) 

included the specific sections of 

California code and other legal 

documents cited in chapter 7, but also 

included many sections of California 

code that were not cited specifically in 

chapter 7. Our proposed rule describes 

in detail the contents of appendix II and 

its 14 categories of statutory and other 

legal documents. 

In May 1972, we approved in part and 

disapproved in part the original 

California SIP. See 37 FR 10842 (May 

31, 1972) and 40 CFR 52.220(b). EPA’s 

approval included both chapter 7 and 

the statutory and other documents 

contained in appendix II as described 

above. 

As explained in our proposed rule, in 

response to EPA’s request and in 

response to the Clean Air Act 

Amendments of 1977, California 

undertook a comprehensive update to 

the California SIP. On March 16, 1979, 

the California Air Resources Board 

(ARB) submitted a revision to the legal 

authority chapter of the SIP, entitled 

‘‘Chapter 3—Legal Authority, Revision 

to State of California Implementation 

Plan for the Attainment and 

Maintenance of Ambient Air Quality 

Standards (December 1978),’’ (also 

referred to herein as ‘‘Chapter 3—Legal 

Authority’’ or the ‘‘revised legal 

authority’’ chapter). Much like the 

original legal authority chapter, the 

revised legal authority chapter provides 

an overview of air pollution control in 

California. While the general topics 

covered in the revised legal authority 

chapter were similar to those covered in 

the original legal authority chapter, the 

discussion is completely re-organized 

and updated to reflect, among other 

things, recodifications of statutory 

provisions. Also, like the legal authority 

chapter in the original SIP, the revised 

legal authority chapter includes 

numerous citations to individual 

sections of the CH&SC (which had been 

re-numbered and re-codified since the 

time of the original SIP), certain 

citations to other California codes and 

other legal documents. However, unlike 

the legal authority chapter in the 

original SIP, the revised legal authority 

chapter, as submitted in 1979, did not 

include physical copies of the actual 

statutory provisions nor the other 

documents cited in the chapter. Instead, 

the 1979 SIP revision simply 

incorporates by reference the 1978 

edition of California Air Pollution 

Control Laws as ‘‘appendix 3–A’’ to the 

chapter. Later in 1979, we proposed 

approval of the revised SIP ‘‘Chapter 3— 

Legal Authority’’ as an update and 

clarification of the 1972 SIP. See 44 FR 

38912 (July 3, 1979). The following year, 

we took final action, effective 

September 10, 1980, to approve the 

revised legal authority chapter. See 45 

FR 53136 (August 11, 1980) and 40 CFR 

52.220(c)(48). Since that time, EPA has 

not approved any other revision to the 

chapter that addresses legal authority in 

the California SIP. 

Based upon our review of the relevant 

provisions of the original California SIP 

and the related 1979 SIP revision, and 

the corresponding EPA approval 

actions, we proposed to clarify the 

contents of the SIP to reflect our 

determination that the statutory 

provisions and other legal documents 


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1ARB described the nature and purpose of that 

agency’s comprehensive update of the California 

SIP during the late 1970’s as follows: ‘‘The [EPA] 

has formally requested that the [ARB] update the 

State of California Implementation Plan for 

Achieving and Maintaining the National Ambient 

Air Quality Standards, usually referred to simply as 

the ‘SIP.’ The original SIP document, submitted to 

EPA in 1972, has become obsolete largely because 

of the many modifications to Federal, state, and 

local air pollution rules and regulations and 

substantial advancements in technical aspects of air 

pollution prediction and control. A new SIP 1978 

Working Document has been prepared as an initial 

response to the EPA request and contains an 

updated summary and description of the California 

SIP. * * * The SIP 1978 Working Document is a 

step towards replacing the obsolete 1972 SIP.’’ See 

page 1 of Chapter 1 (‘‘Introduction’’) (April 1978) of 

the SIP—78 Working Document. Therefore, the 

revised legal authority chapter was intended by 

ARB, and approved by EPA, as a wholesale 

replacement of the original legal authority chapter, 

including the related statutory provisions and other 

materials submitted in support of the original 

chapter. 

2We view the revised legal authority chapter’s 

incorporation (as appendix 3–A) of the 1978 edition 

of California Air Pollution Control Laws as simply 

providing a general reference to where the statutory 

citations in the chapter could be located rather than 

as having the effect of a literal reading of the 

provisions into the chapter. 

3CAA section 301(a)(1) states: ‘‘The 

Administrator is authorized to prescribe such 

regulations as are necessary to carry out his 

functions under this chapter. * * *.’’ We believe 

that our rule proposed herein today is necessary to 

clarify the contents of the California SIP and 

thereby carry out the functions of EPA in 

connection with the state’s plan. 

4As noted in the proposed rule, the status of the 

statutory provisions from the original SIP has 

recently come into question in the context of third 

party litigation, an EPA rulemaking action on a 

revision to new source review rules in the San 

Joaquin Valley, and a lawsuit filed against EPA 

challenging certain EPA actions on the premise that 

such actions were arbitrary and capricious if a 

certain statutory provision submitted and approved 

by EPA in connection with the original SIP remains 

in effect as part of the current applicable California 

SIP. Thus, we believe that clarification of the status 

of the statutory provisions (and other legal 

documents) submitted in connection with the 

original SIP is necessary and appropriate at this 

time. 

submitted in support of the legal 

authority chapter in the original SIP 

were superseded by our 1980 approval 

of the revised legal authority chapter of 

the California SIP (codified at 40 CFR 

52.220(c)(48)) and are no longer part of 

the California SIP. Our determination 

that the 1979 submittal of the revised 

legal authority chapter represented a 

wholesale replacement of the original 

chapter was based on the nature and 

scope of the revised chapter and the 

mismatch between the statutory 

citations in the revised chapter and 

those contained in the original chapter.1

We also noted that the actual statutory 

provisions and other legal documents 

relied upon to support a State’s 

assurance of adequate legal authority 

need not be approved into the SIP under 

CAA section 110 or EPA’s SIP 

regulations in 40 CFR part 51 (although 

such provisions are required to be 

submitted with the plan). Thus, EPA 

could approve, consistent with CAA 

and EPA requirements, and did so in 

this instance, a wholesale revision to the 

original legal authority chapter without 

also approving the actual statutory 

provisions and other legal documents 

cited therein.2

To memorialize our interpretation of 

the effect of our 1980 approval of the 

revised legal authority chapter of the 

California SIP, we proposed under CAA 

section 301(a)(1) 3 to revise 40 CFR 

52.220(b)(12)(i) to clarify that none of 

the statutory provisions (and other legal 

documents) submitted in connection 

with chapter 7 (‘‘Legal Considerations’’) 

of the original California SIP remain in 

the SIP, not just the few provisions 

currently listed as being deleted.4

Additional background information 

for today’s action can be found in our 

January 29, 2010 proposed rule (75 FR 

4742). 

II. Public Comments and EPA 

Responses 

Our January 29, 2010 proposed rule 

(75 FR 4742) provided for a 30-day 

comment period. During that period, we 

received comments from four groups: 

Earthjustice, on behalf of the Sierra 

Club, by letter dated March 1, 2010; 

Center on Race, Poverty & the 

Environment (referred to herein as 

‘‘AIR’’), on behalf of the Association of 

Irritated Residents and many other 

community and environmental groups, 

by letter dated March 1, 2010; San 

Joaquin Valley Air Pollution Control 

District (‘‘District’’), by letter dated 

February 24, 2010; and GreenbergGlusker law firm (referred to herein as 

‘‘Dairy Cares’’), on behalf of Dairy Cares, 

a coalition of California’s dairy producer 

and processor associations, by letter 

dated March 1, 2010. 

Earthjustice expresses support for 

EPA’s proposed rule. The three other 

commenters object to our proposed 

action. Dairy Cares joins in the District’s 

comments and adds comments of its 

own. In the following paragraphs, we 

provide a summary of all significant 

adverse comments and we provide our 

corresponding responses. For the 

purposes of this section of the 

document, ‘‘District’’ refers herein to 

both the District and Dairy Cares, 

whereas ‘‘Dairy Cares’’ is used in 

reference to the additional comments 

submitted by this commenter. 

Comment #1: AIR contends that there 

has never been an exemption for 

agricultural sources in the SIP as it 

relates to San Joaquin Valley. Under the 

Safe Air case, AIR contends that there 

can be no exemptions in the SIP by 

virtue of the original 1972 SIP and 1978 

SIP Revision because the SIP’s plain 

language as adopted and submitted 

contains no exemption and the vague 

references to California statutory 

authority are not in the SIP as 

incorporated by reference in the Code of 

Federal Regulations (CFR). AIR also 

asserts that EPA could not have lawfully 

approved the original 1972 SIP and 

1978 SIP Revision with exemptions for 

agricultural sources without violating 

the Clean Air Act. 

Response #1: We recognize that our 

approval of the original California SIP in 

40 CFR 52.220(a) (‘‘Title of plan: ‘The 

State of California Implementation Plan 

for Achieving and Maintaining the 

National Ambient Air Quality 

Standards’ ’’) and (b) (‘‘The plan was 

officially submitted on February 21, 

1972’’) on May 31, 1972 (37 FR 10842, 

at 10851) says nothing about the 

contents of the original SIP. To uncover 

its contents, we reviewed a copy of the 

original SIP maintained in the collection 

of materials at the National Archives 

and Record Center in San Bruno, 

California. From that copy, we 

determined that the original SIP 

contained an appendix to the legal 

authority chapter that contained various 

statutory provisions, and other legal 

documents. 

Among the statutes in the appendix 

was CH&SC section 24265, which 

excludes certain categories of emission 

sources, including equipment used in 

agricultural operations in the growing of 

crops or raising of fowls or animals, 

from the general grant of authority to 

local air districts to require permits for 

new and existing emissions sources 

(herein, ‘‘agricultural permitting 

exemption’’). We found no evidence in 

the original SIP itself that the materials 

in the appendix to the legal authority 

chapter were not intended by the State 

to be included in the plan itself. Nor did 

we find any evidence in our approval 

action that we did not intend to approve 

the entire contents of the appendix to 

the legal authority chapter of the 

original California SIP. In our May 31, 

1972 final approval of the original 

California SIP, we added 40 CFR 52.233, 

which states: ‘‘With the exceptions set 

forth in this subpart, the Administrator 

approves California’s plan for the 

attainment and maintenance of the 

national standards.’’ See 37 FR 10842, at 

10852. In the case of our May 1972 

action on the original SIP, none of the 

‘‘exceptions set forth in this subpart,’’ 

such as our findings in 40 CFR 52.225 

(‘‘Legal Authority’’) that the California 

SIP failed to provide sufficient legal 


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authority to meet the requirements 

related to air pollution emergencies and 

to make emissions data publicly 

available, provide evidence that we 

disapproved any of contents of the 

appendix to the legal authority chapter 

of the original SIP. Therefore, we 

concluded that the statutory provisions 

and other legal documents contained in 

the appendix to the legal authority 

chapter of the original California SIP 

were approved along with the rest of the 

plan in May 1972, and the agricultural 

permitting exemption found in CH&SC 

section 24265 was swept into the SIP by 

virtue of being included among the 

appendix materials so approved. 

AIR points to the Safe Air case in 

support for its contention that no 

exemptions are in the SIP by virtue of 

the original 1972 SIP (submitted and 

approved in 1972) and the ‘‘1978 SIP 

Revision’’ (i.e., the revision to the legal 

authority chapter, which was adopted in 

December 1978, submitted in March 

1979, and approved in September 1980). 

In so doing, AIR states that the SIP’s 

plain language contains no exemption 

and asserts that the vague references to 

California statutory authority are not in 

the SIP as incorporated by reference in 

the CFR. In the Safe Air case, the court 

held that ‘‘SIPs are interpreted based on 

their plain meaning when such a 

meaning is apparent, not absurd, and 

not contradicted by the manifest intent 

of EPA, as expressed in the 

promulgating documents available to 

the public.’’ See Safe Air for Everyone v. 

EPA, 488 F.3d 1088, 1100 (9th Cir. 

2007). Under the circumstances of the 

Safe Air case, the court found that the 

plain language of the Idaho SIP did not 

include the State’s statutory restrictions 

on regulation of field burning, nor were 

the statutory restrictions on regulation 

of field burning made manifest in EPA’s 

approval of the State’s open burning 

rule, and thus, were not relevant in 

interpreting the existing SIP. 

With respect to the agricultural 

permitting exemption and the California 

SIP, the existence of the exemption as 

part of the original California SIP as 

approved by EPA is apparent from a 

review of the submitted plan itself. We 

also do not believe our approval of the 

exemption in 1972 to be absurd or 

contradicted by the manifest intent of 

the State of California or EPA. As such, 

our interpretation is consistent with the 

holding of the Safe Air case. As clarified 

in today’s action, our approval of 

California’s 1979 update to the legal 

authority chapter of the California SIP 

superseded the original legal authority 

chapter and the related supporting 

appendix materials in the California 

SIP, including the agricultural 

permitting exemption. 

Lastly, AIR asserts that EPA should 

interpret the Agency’s California SIP 

approvals under the presumption that, 

absent a demonstration to the contrary, 

we acted consistent with the CAA and 

related Agency policies, and because in 

AIR’s view, we could not have lawfully 

approved the original 1972 SIP and the 

‘‘1978 SIP Revision’’ with exemptions 

for agricultural sources without 

violating the Clean Air Act, then the 

presumption should be that the 

exemptions were not approved into the 

SIP. First, we did not approve the 

agricultural permitting exemption when 

we took action in 1980 to approve 

California’s 1979 update to the legal 

authority chapter of the SIP. As 

discussed in our January 29, 2010 

proposed rule, we have concluded, 

however, that we did approve the 

agricultural permitting exemption in 

1972 when we approved the original 

California SIP. 

We disagree that our 1972 approval 

did not comport with the requirements 

for SIPs under the Clean Air Act and 

EPA’s regulations in effect at that time. 

Given the state of air pollution 

knowledge at the time, a SIP exemption 

from permitting for agricultural sources 

is not surprising. In 1972, stationary 

sources had yet to be divided under the 

Clean Air Act into ‘‘major’’ and ‘‘minor’’ 

categories (the requirement for 

permitting of ‘‘major’’ sources came 

later), and given the state of knowledge 

concerning air pollution sources and 

control methods at the time, it is 

certainly plausible that neither the State 

of California nor EPA foresaw that 

regulation of new and modified 

agricultural sources, as opposed to new 

and modified factories and smelters, 

and the regulation of motor vehicles, 

would be necessary to attain and 

maintain the national ambient air 

quality standards (NAAQS). 

As noted above, we have concluded 

that the agricultural permitting 

exemption, along with the other statutes 

and legal documents, submitted in the 

appendix to the legal authority chapter 

in the original 1972 SIP were approved 

by EPA and made part of the applicable 

SIP. To the extent, however, that 

uncertainty remains on this point, it 

does not matter from the standpoint of 

the California SIP over the past 30 years, 

because, as we are clarifying in this final 

rule, our 1980 approval of the legal 

authority chapter superseded the 1972 

approval of the corresponding chapter 

(and its related appendix) such that the 

agricultural exemption was no longer in 

the SIP beginning with the effective date 

of our final rule approving the revised 

chapter (i.e., September 10, 1980). 

Comment #2: The District contends 

that California’s agricultural permitting 

exemption was approved into the SIP in 

1972. 

Response #2: We agree. As explained 

in detail in the January 29, 2010 

proposed rule (75 FR at 4743), we have 

concluded that the statutory provisions 

contained in appendix II to chapter 7 of 

the original California SIP, including the 

agricultural permitting exemption in 

CH&SC section 24265, were indeed 

approved into the California SIP. Our 

interpretation of SIP requirements is 

that, while the SIP must provide 

‘‘necessary assurances’’ of ‘‘adequate 

authority’’ and must identify the 

provisions of law that provide for 

‘‘adequate authority,’’ the statutes 

themselves need not be approved as part 

of the SIP. That does not mean that the 

statutes supporting the legal authority 

portion of a SIP cannot be approved into 

the SIP, only that they need not be. In 

1972, California submitted the statutes 

supporting the legal authority chapter of 

the original California SIP to EPA, and 

EPA approved the original SIP, with 

exceptions not relevant here. Thus, 

while the statutory provisions need not 

have been approved into the California 

SIP, we agree that they in fact were so 

approved in 1972. 

Comment #3: The District disagrees 

with EPA’s finding that the statutes 

supporting California’s revised legal 

authority chapter, as submitted in 1979, 

were not physically submitted as part of 

the SIP revision containing the revised 

chapter. In support of its position, the 

District cites ‘‘appendix 3–A’’ to ‘‘chapter 

3—Legal Authority,’’ which was 

submitted in 1979 and approved by EPA 

in 1980, and which, in the District’s 

view, contains the 1978 edition of the 

California Air Pollution Control Laws, 

including the agricultural permitting 

exemption [by then re-codified to 

CH&SC section 42310(e)]. 

Response #3: The legal authority 

chapter and appendix, as revised in 

1979 by California and submitted to 

EPA, includes several references to the 

1978 edition of California Air Pollution 

Control Laws. On page 1, the revised 

legal authority chapter states: 

‘‘All section references hereafter in this 

chapter are to the Health and Safety Code 

unless otherwise indicated. The 1978 edition 

of California Air Pollution Control Laws 

include all applicable sections of the Health 

and Safety Code, the Business and 

Professional Code, and the Vehicle Code. 

This edition is incorporated as appendix 3– 

A to this chapter available separately from 

the ARB Public Information Office, P.O. Box 

2815, Sacramento, CA 95812.’’ 


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As noted in footnote 3 of our January 

29, 2010 proposed rule (at 75 at 4744), 

we view the phrase ‘‘this edition is 

incorporated as appendix 3–A’’ as 

simply providing a general reference to 

where the statutory citations in the 

chapter could be located, rather than as 

having the effect of a literal reading of 

the provisions into the chapter. Our 

view is supported by the fact that the 

revised legal authority chapter does not 

‘‘incorporate by reference’’ the 1978 

edition of California Air Pollution 

Control Laws nor does the chapter 

identify any State law or rule that 

provides for a literal reading of large 

volumes of text into another State 

document, similar in purpose to the 

Office of the Federal Register’s rules 

concerning ‘‘incorporation by reference’’ 

in connection with Federal rules (See 1 

CFR part 51). In contrast, the statutory 

provisions and other legal documents 

supporting the legal authority chapter 

were physically submitted in ‘‘appendix 

II’’ to the original California SIP, as 

discussed above. ‘‘Appendix 3–A’’ itself 

is only found in the table of contents to 

the 1979 revised legal authority chapter. 

Next to the listing of ‘‘Appendix 3–A’’ in 

the table of contents is the following 

statement: ‘‘California Air Pollution 

Control Laws, 1978 Edition, California 

Air Resources Board, Sacramento, CA 

95812 (available from ARB’s Public 

Information Office).’’ 

Given the facts discussed above, we 

believe that the District is incorrect in 

claiming that appendix 3–A to the 1979 

revised legal authority chapter 

‘‘contains’’ the 1978 edition of California 

Air Pollution Control Laws. At most, it 

refers to the 1978 edition of California 

Air Pollution Control Laws. Not only did 

the revised legal authority chapter not 

contain the statutes, we believe that 

ARB’s approach to keeping the statutes 

themselves physically separate from the 

revised legal authority chapter evinces 

an intent on the part of ARB not to 

include the statutes themselves in the 

SIP. 

Comment #4: Regardless of whether 

the statutes were resubmitted, the 

District claims that EPA provides no 

support for its finding that the statutory 

provisions and other legal documents 

contained in the 1972 SIP were 

superseded by its approval of 

California’s 1979 revised legal authority 

chapter. 

Response #4: In our proposed rule (75 

FR at 4744), we provide the following 

support for our conclusion that our 

approval of the 1979 legal authority 

chapter superseded our earlier approval 

of the legal authority chapter as well as 

the statutes and other legal documents 

submitted in support of the legal 

authority chapter from the original 

California SIP: 

• Contemporaneous statements by 

ARB as to the wholesale nature of the 

SIP update undertaken in 1978 and 

1979; 

• The mismatch between the 

statutory citations in the revised legal 

authority chapter and the statutes 

submitted in support of the legal 

authority chapter of the original SIP; 

and 

• Our conclusion that statutes 

providing support for a State’s 

‘‘necessary assurances’’ of adequate legal 

authority for the purposes of CAA 

section 110(a)(2)(E) need not be 

approved in the SIP. 

As to the third bulleted item, above, 

the District objects to EPA’s conclusion 

that the statutes providing support for a 

State’s ‘‘necessary assurances’’ of 

adequate legal authority need not be 

approved in the SIP to meet CAA and 

EPA SIP requirements. The District 

contends that EPA’s reading of the SIP 

requirements in this regard is illogical 

and unsupported because there is no 

reason to conclude that statutes that 

must be submitted with the plan need 

not be approved into the plan. However, 

as explained below, the language of both 

the statute itself and our SIP regulations 

support our finding that the statutes 

supporting a State’s ‘‘necessary 

assurances’’ of adequate legal authority 

need not be approved into the SIP. In 

other words, the statutes may be 

approved into the SIP, but are not 

required to be approved into the SIP. 

First, under CAA section 110(a)(2), 

each SIP shall ‘‘(E) provide (i) necessary 

assurances that the State * * * will 

have adequate * * * authority under 

State * * * law to carry out such 

implementation plan * * *.’’ The 

statute thus requires that SIPs provide 

‘‘necessary assurances,’’ of adequate 

legal authority, not that SIPs must 

include statutes that establish legal 

authority. A State’s demonstration of 

‘‘necessary assurances’’ must be 

contained in the SIP, but the form in 

which the demonstration is made can 

take various forms, including but not 

limited to a narrative discussion (e.g., 

legal authority chapter), an Attorney 

General’s letter, the statutes themselves, 

or some combination of the above. In 

contrast, for other SIP elements, the 

CAA requires the underlying regulations 

to be included in the SIP, not just 

‘‘necessary assurances’’ of such 

regulations. For instance, under section 

110(a)(2)(A), each SIP must ‘‘include 

enforceable emission limitations and 

other control measures * * *.’’ A State’s 

‘‘necessary assurances’’ of such 

enforceable emission limitations is not 

enough to satisfy this CAA requirement. 

The State must submit the enforceable 

emission limitations themselves, which 

generally take the form of air pollution 

control rules and regulations, to comply 

with the relevant CAA requirement. 

Second, the relevant EPA SIP 

regulations require that ‘‘Each plan must 

show that the State has legal authority 

to carry out the plan, * * *’’ (emphasis 

added) (See 40 CFR 51.230), but, as to 

the statutes themselves, EPA’s 

regulations state: ‘‘The provisions of law 

or regulation which the State 

determines provide the authorities 

required * * * must be specifically 

identified, and copies of such laws or 

regulations be submitted with the plan.’’ 

(emphasis added). See 40 CFR 51.231(a). 

The phrase, ‘‘each plan must show,’’ 

refers to elements that must be included 

as part of the plan, whereas the latter 

phrase, ‘‘submitted with the plan,’’ is, at 

most, ambiguous as to whether the 

items that must be submitted must also 

be included in the plan itself. But, when 

considered with the statutory language 

in CAA section 110(a)(2)(E) that requires 

the SIP to include ‘‘necessary 

assurances’’ of adequate legal authority, 

not the statutes themselves, it is 

reasonable to interpret 40 CFR 51.231(a) 

as requiring the submittal of the 

statutory provisions (providing support 

for the necessary showing of adequate 

legal authority) for the purpose of 

allowing EPA to conduct an informed 

review of a State’s demonstration of 

‘‘necessary assurances’’ of adequate legal 

authority, and as not requiring approval 

of the statutory provisions themselves as 

part of the SIP. 

Lastly, the District points to EPA’s 

own description of the Agency’s 

approval of the revised legal authority 

chapter as ‘‘nonsignificant’’ and 

‘‘administrative in nature’’ as 

inconsistent with EPA’s contention that 

the approval of the revised legal 

authority chapter superseded the earlier 

chapter and related statutory provisions 

given the significance that the District 

attaches to the supersession of those 

provisions. However, EPA’s description 

of its action approving the revised legal 

authority chapter as ‘‘administrative’’ 

mirrors ARB’s foreword to the revised 

legal authority chapter: ‘‘Chapter 3 is an 

Air Resources Board (ARB) revision to 

the State of California Implementation 

Plan for the Attainment and 

Maintenance of Ambient Air Quality 

Standards (SIP). It is an administrative 

chapter which outlines the State’s legal 

authority to implement the measures 

contained in the State Implementation 

Plan required by the Clean Air Act 

* * *.’’ Our approval action was thus 


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5The District refers to 40 CFR 52.220(b)(12)(i) as 

an instance where California removed certain 

sections of the CH&SC approved in 1972 from the 

California SIP. California did not remove these 

CH&SC sections; EPA did so under the error 

correction authority of CAA section 110(k)(6). See 

69 FR 67062 (November 16, 2004). We now 

recognize that we did not need to do so, since all 

of the statutory provisions submitted in support of 

the original legal authority chapter of the SIP had 

been superseded by our approval of the revised 

legal authority chapter in 1980. See response to 

comment #7. 

consistent with ARB’s description of the 

revised legal authority action. 

Retention of the statutory provisions 

that had been submitted as part of the 

original SIP would imply that they have 

significance outside of their purpose in 

providing support for the State’s 

‘‘necessary assurances’’ of adequate legal 

authority, which ARB submitted in the 

form of a narrative chapter. But, ARB’s 

description of the chapter itself as 

‘‘administrative’’ shows that the 

underlying statutory provisions have no 

place in the applicable SIP other than 

with the demonstration of ‘‘necessary 

assurances.’’ Our conclusion that the 

statutes submitted in support of the 

original chapter were superseded upon 

our approval of the revised chapter is 

consistent with this understanding of 

the inherent connection between the 

‘‘necessary assurances’’ demonstration in 

the SIP and the supporting statutory 

provisions. 

As described above, the statutes 

submitted by a State in support of the 

‘‘necessary assurances’’ demonstration of 

adequate legal authority may be 

approved as part of the SIP (e.g., original 

California SIP) but are not required to be 

part of the SIP. Where EPA has 

approved the supporting statutes into 

the SIP, EPA views the statutes as 

‘‘nonregulatory’’ provisions of the SIP. 

See, e.g., 62 FR 27968, at 27971 (May 

22, 1997) (‘‘Examples of nonregulatory 

SIP provisions include, but are not 

limited to, the following subject matter: 

SIP narratives * * * State Statutes 

* * *.’’); and again in 72 FR 64158, at 

64160 (November 15, 2007) (‘‘EPAapproved non-regulatory control 

measures include * * * State statutes 

* * * which have been submitted for 

inclusion in the SIP by the State. * * * 

Examples of EPA-approved documents 

and materials associated with the SIP 

include, * * * State Statutes submitted 

for the purposes of demonstrating legal 

authority; * * *.’’). ARB’s and EPA’s 

description of the revised legal authority 

chapter of the California SIP as 

‘‘administrative’’ is consistent with the 

idea that even if the supporting statutes 

had been approved into the SIP in 1980 

(which they were not), EPA would have 

categorized the statutes as 

‘‘nonregulatory.’’ 

The statutes are considered 

‘‘nonregulatory’’ because statutes that 

provide State or local administrative 

agencies with the authority to establish 

regulatory requirements do not in 

themselves establish the requirements. 

Rather, the rules promulgated under the 

relevant authorities establish the 

requirements. In this instance, such 

rules have included permitting rules 

that were adopted by the individual 

county-based air districts in San Joaquin 

Valley (and later by the San Joaquin 

Valley Unified Air Pollution Control 

District) exempting agricultural sources, 

that were approved by EPA as part of 

the San Joaquin Valley portion of the 

California SIP, and that continued in 

effect in the SIP until 2004, 

notwithstanding the supersession of the 

underlying statutory provision back in 

1980. Hence, EPA’s description of the 

Agency’s approval of the revised legal 

authority chapter as being 

‘‘nonsignificant,’’ because no new 

requirements would be imposed nor 

would any requirements be withdrawn, 

is correct. Such requirements are not 

established in the statutes providing the 

legal authorities, but are found in the 

approved State and local district rules.5

Comment #5: The District states that 

the agricultural permitting exemption 

was removed from State law in 2003 as 

it relates to major sources, but states that 

the change in State law was never 

submitted to EPA as a SIP revision and 

thus the agricultural permitting 

exemption remains in the SIP. 

Response #5: We agree that the State 

law replacing the full agricultural 

permitting exemption with a limited 

permitting exemption for certain minor 

agricultural sources (Senate Bill 700) 

has never been submitted to EPA as a 

SIP revision. However, as we clarify 

through this final rule, California did 

not need to submit SB 700 to EPA as a 

SIP revision to remove the agricultural 

permitting exemption from the SIP 

because it was removed from the 

California SIP upon the effective date of 

our 1980 final rule approving the State’s 

revision to the legal authority chapter of 

the California SIP. 

Comment #6: The District contends 

that Clean Air Act section 301(a)(1) does 

not authorize EPA to unilaterally amend 

the agricultural exemption out of the 

California SIP. 

Response #6: We agree that CAA 

section 301(a)(1) does not authorize EPA 

to unilaterally amend the SIP. To amend 

the SIP, EPA is authorized to take action 

under CAA section 110. For instance, 

our action in 1980 to approve 

California’s revised legal authority 

chapter of the California SIP was an 

action taken by EPA under section 110. 

We do not view our action today as 

amending the California SIP. Our view 

as expressed in the proposed rule and 

in responses to comments above is that 

we are simply clarifying the effect of a 

previous rulemaking. We are taking this 

action to avoid further confusion as to 

the current status of the statutory 

provisions (such as the agricultural 

permitting exemption) submitted as part 

of the original 1972 California SIP. 

CAA section 301(a) authorizes EPA to 

prescribe such regulations as are 

necessary to carry out the Agency’s 

functions under the CAA. One of the 

basic functions of the Agency under the 

CAA is to take actions on SIPs and SIP 

revisions (See section 110(k)), and in 

doing so, we are responsible for 

ensuring that the regulatory effect of our 

action is clearly set forth through rules 

published in the Federal Register and 

that our codification of SIP approvals in 

40 CFR part 52 reasonably identifies the 

approved provisions. 

In this instance, we have discovered 

that our 1979 proposed rule and 1980 

final rule approving a revision to the 

California SIP did not clearly identify 

the materials being superseded, and we 

appropriately rely upon our rulemaking 

authority under CAA section 301(a) to 

clarify the superseding effect of our 

1980 action. In so doing, we are not 

amending the California SIP, but merely 

clarifying what the current SIP includes, 

or to be more specific, what the current 

SIP does not include. 

Comment #7: Dairy Cares notes that, 

in 2004, EPA undertook a rulemaking to 

remove from the SIP several specific 

statutes that were included in the 1972 

original California SIP, and claims that 

such action would have been 

unnecessary if the statutory provision 

submitted with the original California 

SIP had been superseded by EPA’s 

approval action on the revised legal 

authority chapter of the California SIP 

in 1980. Dairy Cares asserts that EPA’s 

action in 2004 reveals the Agency’s 

understanding then that the statutory 

provisions from the original California 

SIP remain in the SIP, and concludes 

that there is simply no way to reconcile 

EPA’s actions in 2004 with the action it 

now proposes as they are entirely 

inconsistent. 

Response #7: In our January 29, 2010 

proposed rule, we recognize that our 

2004 rulemaking (69 FR 67062, 

November 16, 2004) removed certain 

variance-related statutory provisions 

from the California SIP. See 75 FR at 

4742, at 4744. We agree that our 

conclusion in the current rulemaking 

that all of the statutory provisions 

submitted in connection with the legal 


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 Attachment 1 

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Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 27943 

authority chapter of the original 

California SIP were superseded in 1980 

is not consistent with our 2004 

rulemaking. We also agree that, if all of 

the statutory provisions in question had 

been superseded in 1980, then removal 

of the specific variance-related 

provisions in 2004 would not have been 

necessary. 

Upon review of the 2004 rulemaking, 

however, we find no evidence of the 

type of detailed research into the 

contents of the California SIP that was 

conducted for this rulemaking. 

Furthermore, we believe that the 

Agency’s own mistaken understanding 

in 2004 of the status of the variancerelated statutory provisions simply 

highlights the need for the Agency to 

take some action, such as the one taken 

today, to clarify the status of the 

statutory provisions and other legal 

documents submitted in support of the 

legal authority chapter of the original 

California SIP. As described above, we 

have the authority under CAA section 

301(a) to identify the superseding effect 

of a prior rulemaking (in this case, a 

rulemaking in 1980) and to thereby 

clarify the contents of the current 

California SIP. 

III. Final Action 

None of the comments have caused us 

to modify our proposed rule, and thus, 

under CAA section 301(a)(1) and for the 

reasons discussed in the proposed rule 

and in this final rule, EPA is taking final 

action to clarify that the statutory 

provisions and other legal documents 

approved in connection with the legal 

authority chapter of the original 1972 

California SIP were superseded in the 

California SIP by EPA’s approval of a 

revised legal authority chapter in 1980 

(and codified at 40 CFR 52.220(c)(48)). 

We are memorializing our interpretation 

of the effect of the 1980 final rule by 

revising the relevant provision in 40 

CFR 52.220 accordingly. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely clarifies 

the effect of a previous approval by EPA 

of a State submittal as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 19, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: May 5, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

revising paragraph (b)(12)(i) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(b) * * * 

(12) * * * 

(i) Previously approved on May 31, 

1972 in paragraph (b) and deleted 

without replacement, effective 

September 10, 1980, chapter 7 (‘‘Legal 

Considerations’’) of part I (‘‘State General 

Plan’’) of the plan submitted on 

February 21, 1972, and all of the 

statutory provisions and other legal 

documents contained in appendix II 

(‘‘State Statutes and other Legal 

Documents Pertinent to Air Pollution 

Control in California’’) to chapter 7. 

* * * * * 

[FR Doc. 2010–11867 Filed 5–18–10; 8:45 am] 

BILLING CODE 6560–50–P 


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 Attachment 1 

 August 23, 2013 
Public Notice Annoucment 

2010 1-hour Nitrogen Dioxide NAAQS Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP

 1  Attachment 2 August 23, 2013
USEPA Comment Letter 

2010 1-hour Nitrogen Dioxide NAAQS Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure 

 1  Attachment 3 August 23, 2013 
USEPA Comment Letter 

2010 1-hour Nitrogen Dioxide NAAQS Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure 

 2  Attachment 3 August 23, 2013