# Guidance on Infrastructure State Implementation Plan (SIP) Elements u nder Clean Air Act Sections 110(a)(1) and 110(a)(2)
September 2013i

List of Selected Acronyms and Abbreviations

AERMOD A merican M eteorological S ociety/ EPA Regulatory Model AMTIC Ambient Monitoring Technology Information Center AQI Air Quality Index CAA Clean Air Act CMAQ Community Multi

- scale Air Quality [Model] CAMx Comprehensive Air Quality Model with Extensions CFR Code of Federal Regulations CSAPR Cross

- State Air Pollution Rule EPA Environmental Protection Agency EGU Electric generating unit FIP Federal i mplementation p lan FR Federal Register GHG Greenhouse gas es IBR Incorporation by r eference NAAQS National Ambient Air Quality Standards NO 2 Nitrogen dioxide NOAA National Oceanic and Atmospheric Administration NPS National Park Service NSR New Source Review OAQPS Office of Air Quality Planning and Standards Pb Lead PM 2.5 F ine particulate matter
ppm Parts per million PSD Prevention of significant deterioration RAVI Reasonably Attributable Visibility Impairment SHL Significant harm level SIP State implementation plan (also, if indicated by the context, a tribal implementation plan) SO 2 Sulfur dioxide SSM Startup, shutdown
, and malfunction TAR Tribal Authority Rule TIP Tribal Implementation Plan UBR Unavoidable breakdown rule μg/m 3 Micrograms per cubic meterii

Table of Contents

I. Introduction

................................ ................................ ................................ ........................... 1 II. General Guidance on Infrastructure SIPs

................................ ................................ .......... 4 Which e lements of CAA 110(a)(2) a ffect i nfrastructure SIPs?

................................ ......... 4 Developing and Submitting an Infrastructure SIP Submission

................................ ......... 5 Certifications

................................ ................................ ................................ ................... 7 Determining Completeness of an Infrastructure SIP Submission

................................ .... 10 Effect of a Federal Implementation Plan on an Infrastructure SIP

................................ .. 12 III. Guidance on Individual Infras tructure SIP Elements

................................ .................... 18 Element A

– Section 110(a)(2)(A): Emission L imits and O ther C ontrol M easures

......... 18 Element B

– Section 110(a)(2)(B): Ambient A ir Q uality M onitoring/ D ata S ystem

........ 22 Element C

– Section 110(a)(2)(C): Programs for E nforcement of C ontrol M easures and for C onstruction or M odification of S tationary S ources.

............... 23 Elements D(i)(I) and (II)

– Section 110(a)(2)(D)(i): Interstate P ollution T ransport

......... 30 Element D(ii)

– Section 110(a)(2)(D)(ii): Interstate P ollution A batement and I nternational A ir P ollution

................................ ................................ .................. 35 Element E

– Section 110(a)(2)(E): Adequate R esources and A uthority, C onflict of I nterest, and O versight of L ocal G overnments and R egional A gencies

............... 39 Element F

– Section 110(a)(2)(F): Stationary S ource M onitoring and R eporting

............ 45 Element G

– Section 110(a)(2)(G): Emergency E pisodes

................................ ............... 47 Element H

– Section 110(a)(2)(H): SIP R evisions

................................ ......................... 51 Element I

– Section 110(a)(2)(I): Plan R evisions for N onattainment A reas

.................... 52 Element J

– Section 110(a)(2)(J): Consultation with G overnment O fficials, P ublic N otification, and PSD and V isibility P rotection

................................ .................. 52 Element K

– Section 110(a)(2)(K): Air Q uality M odeling and S ubmission of M odeling D ata

................................ ................................ ................................ ... 55 Element L

– Section 110(a)(2)(L): Permitting F ees

................................ ........................ 56 Element M

– Section 110(a)(2)(M): Consultation and P articipation by A ffected L ocal E ntities

................................ ................................ ................................ ..... 561



### Guidance on Infrastructure State Implementation Plan (SIP) Elements under
Clean Air Act Sections 110(a)(1) and 110(a)(2)

I. Introduction

Under Clean Air Act (CAA) sections 110(a)(1) and 110(a)(2), each state 1 is required to submit a state implementatio n plan ( SIP ) 2 that provides for the implementation, maintenance,
and enforcement of each primary or secondary national ambient air quality standard ( NAAQS ). Moreover, section 110(a)(1) and section 110(a)(2) require each state to make this new SIP
submissio n within 3 years after promulgation of a new or revised NAAQS. 3 This type of SIP submission is commonly referred to as an “infrastructure SIP.”

Section 110(a)(1) generally directs each state to submit an infrastructure SIP to the U.S.
Environmental Protect ion Agency after reasonable noti ce and public hearing. 4 Section 110(a)(2) specifies the substantive elements these submi ssions need to address, as applicable, for th e EPA ’s approval

. The subsections of section 110(a)(2) list a variety of requirements, some of which address authority, some of which address substantive requirements, and some of which consist of a combination of authority and substantive requirements. The conceptual purp ose of an

1 These CAA sections and this guidance may also apply, as appropriate under the Tribal Authority Rule (TAR) in 40 CFR part 49
, to an Indian tribe that receives a determ ination of eligibility for treatment as a state for purposes of administering a tribal air quality m anagement program under section 110(a) of the CAA

. Tribes should look to the TAR and engage their respective EPA Regional O ffices in discussing how this guidance may impact the development and approvability of their tribal implementation plans ( TI Ps )

. We encourage states to provide outreach and engage in discussions with tribes about their SIPs as they are being developed.

2 In the CAA and in this guidance
, “ plan ,” “SIP,” and “T IP ” may, depending on context, refer either to (i) all or part of the e xisting state (or tribal) implementation plan ( i.e. , the collection of all submission s previously approved by the EPA as me eting CAA requirements) or (ii) a submission that adds to or modifies the existing plan as directed by section 110 (a) (l).

3 The Admin istrator may specify a shorter period.

4 The EPA rules provide that a public hearing must be offered by the air agency but is only required if a request is made.2

infrastructure SIP submission is to assure that the air agency’s 5 SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substan tive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity for the responsible air agency , the public
, and the EPA to review the basic structural requirements of the air agency’s air quality man agement program in light of each new or revised NAAQS.

This non

- binding guidance 6 provides recommendations for air agencies’ development
and the EPA's review of infrastructure SIPs for the 2008 ozone primary and secondary NAAQS, 7 the 2010 primary nitrogen dioxide (NO 2 ) NAAQS, 8 the 2010 primary sulfur dioxide (SO 2 ) NAAQS, 9 and the 2012 primary fine particulate matter (PM 2.5 ) NAAQS
, 10 as well as

5 This guidance uses the term “air agency” to generally refer to a state, territory, or tribe that develops and submits an infrastructure SIP or TIP, except when quoting or paraphrasing a CAA section or a EPA regulation that uses the term “state.”

6 None of the recommendations contained in this guidance are binding or enforceable against any perso n, and no part of the guidance or the guidance as a whole constitutes final agency action that could injure any person or represent the consummation of agency decision making. Only final actions taken to approve or disapprove SIP submissions that implement any of the recommendations in this guidance would be final actions for purposes of CAA section 307(b). Therefore, this guidance is not judicially reviewable. This document is not a rule or regulation, and the guidance it contains may not apply to a partic ular situation based upon the individual facts and circumstances. This guidance does not change or substitute for any law, regulation, or other legally binding requirement and is not legally enforceable. The use of non

- mandatory language such as “guidance
, ” “recommend
, ” “may
, ” “ should,” and “can” is intended to describe the EPA’s policies and recommendations. Mandatory terminology such as “must” and “required ” is intended to describe controlling legal requirements under the terms of the CAA and the EPA regulations. N either such language nor anything else in this document is intended to or does establish legally binding requirements in and of itself.

7 The EPA revised the levels of the primary and secondary 8

- hour ozone standards to 0.075 parts per millio n (ppm). 40 CFR 50.15. 73 FR 16436 (Mar ch 27, 2008 )

. 8 The EPA revised the primary NO 2 standard by adding a 1

- hour level of 100 parts per billion (ppb), while retaining the previous annual primary and secondary standards. 40 CFR 50.11(b) and (f). 75 FR 6474 (Feb ruary 9, 2010 ) . The EPA has also recently reviewed the air quality criteria and the secondary NAAQS for nitrogen oxide s and sulfur oxides and retained the current NO 2 and SO 2 secondary standards, 77 FR 20218 (Apr il 3, 2012)

. 9 On June 2, 2010, the EPA established a new 1

- hour SO 2 standard at a level of 75 ppb. 40 CFR 50.17. This rule also provided for the automatic future revocation of the previous annual and 24

- hour SO 2 NAAQS for most areas following 1 year after designat ion under the new NAAQS. 40 CFR 50.4(e). The previous 3

- hou r secondary standard remain s in place indefinitely. 40 CFR 50.5. 75 FR 35520 (June 22, 2010 )

. The EPA has also recently reviewed the air quality criteria and the secondary NAAQS f or nitrogen oxides and sulfur oxides and retained the current NO 2 and SO 2 secondar y standards, 77 FR 20218 (Apr il 3, 2012)

. 10 The EPA revised the annual PM 2.5 standard by lowering the level to 12.0 micrograms per cubic meter ( μ g/m 3 ). 78 FR 3086 (Jan uary 15, 2013 ).3

infrastructure SIPs for new or revised NAAQS promulgated in the future. As a result, air agencies may continue to re ly on this guidance for developing infrastructure SIPs for future new or revised NAAQS until this guidance is supplemented or replaced by future guidance . This guidance does not address section 110(a)(2)(D)(i)(I), which concerns interstate pollution transp ort affecting attainment and maintenance of the NAAQS. The EPA expects to issue guidance in the future with respect to this section of the CAA

.

Section II of this document provides general guidance for the development of infrastructure SIPs, and section I II presents guidance on the individual elements (and sub

elements ) that constitute an infrastructure SIP.4

II. General Guidance on Infrastructure SIPs

Which e lements of CAA 110(a)(2) a ffect i nfrastructure SIPs?

Infrastructure SIP elements are addressed in portions of section 110(a)(2) of the CAA. Under this section, states are required to develop and maintain an air quality management

program that meets various basic structural requirements, including, but not limited to :

e nforceable emiss ion limitations ; an ambient monitoring program ; an enforcement program ; air quality modeling capabilities ; and adequate personnel, resources
, and legal authority.

Although
, as stated in section I of this document, infrastructure SIPs are required to be
sub mitted within 3 years after the promulgation of a new or revised NAAQS, the EPA interprets
section 110(a)(2) to exclude two elements that could not be governed by the 3

- year submission
deadline of section 110(a)(1)

. Both t hese elements pertain to part D, i n title I of the CAA, which addresses SIP requirements and submission deadlines for designated nonattainment areas for a NAAQS. Therefore, the following elements are considered by the EPA to be outside the scope of infrastructure SIP actions: (1) section 1 10(a)(2)(C) to the extent that it refers to permit programs (known as “nonattainment new source review”) under part D; and (2) section 110(a)(2)(I) in its entirety , which addresses SIP revisions for nonattainment areas. Both t hese elements pertain to
SIP r evisions that collectively are referred to as a nonattainment SIP or an attainment plan, which would be due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as 10 years following area designations for some eleme nts. Because the CAA directs states to submit these plan elements on a separate schedule, the EPA does not believe it is necessary for states to include these elements in the infrastructure SIP submission due 3 years after adoption or revision of a NAAQS. While an infrastructure SIP submission is not expected to meet the requirements for a nonattainment SIP, the scope of an infrastructure SIP does not
exclude geographical areas that have been designated nonattainment for the new or revised NAAQS or an earli er NAAQS for the same pollutant. Sections 110(a)(1) and 110(a)(2) reflect the congressional intent that each air agency have an air quality program, covering all5

geographical areas of the state, that includes the specified air agency authorities, requireme nts, and activities.

T he infrastructure SIP submission requirement does not move up the date for any required submission of a part D plan for areas designated nonattainment for the new NAAQS

. However , in order to cover all parts of the state or area of Indian country, an infrastructure SIP submission may reference pre

- existing SIP emission limits or other rules contained in part D plans for the predecessor to the relevant new or revised NAAQS. It may also include recently adopted emission limits that are intended to be part of the not

- yet

- submitted part D plan for the new or revised NAAQS. To avoid confusion about the legal effect of the EPA’s action on an infrastructure SIP submission, we intend to make clear in each final action that EPA approval of the infrastructure SIP submission is solely with regard to whether the submission meets particular infrastructure SIP required elements (as opposed to nonattainment SIP elements). This means that the EPA may approve a submission as meeting the air agency’ s obligation under
section 110(a)(1) and 110(a)(2) stemming from the particular new or revised NAAQS, without necessarily determining whether the submission meets the applicable requirements for
nonattainment SIPs under part D of title I of the CAA for the same or any other NAAQS

. An approval on this basis will make the referenced or newly submitted SIP emission limits or other rules federally enforceable
, and will make clear that the re has been no disapproval of an applicable required SIP submission and th us that there is no federal implementation plan ( FIP ) obligation stemming from CAA section 110(a)(1) or (2). 11

Developing and Submitting an Infrastructure SIP Submission

Upon the promulgation of a new or revised NAAQS, the infrastructure SIP process
should begin with the air agency’s review of the adequacy of its existing SIP provisions for

11 In general, a finding by the EPA that an air agency has failed to submi t a complete SIP or an action by the EPA to disapprove a SIP or SIP element initiates a FIP obligation, if the submission is required by the CAA. Mandatory sanctions would not apply under CAA section 179 because the failure to submit a SIP is neither with respect to a submission that is required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5). Some of the sections of this guidance document address FIP implications on individual elements more specifically.6

purpose of meeting the infrastructure SIP requirements for the new or revised NAAQS. In order to develop an infrastructure SIP submission, an air agency may cite existin g EPA

- approved provisions and/or adopt new or revised statutory authorities and regulations , as necessary, in order to address each element of the infrastructure SIP. Further, with respect to a given NAAQS, an air agency may elect to make multiple submissi ons; each addressing some but not all elements
or sub

- elements of section 110(a)(2) so long as those submissions meet all of the infrastructure requirements in the aggregate. An air agency may also elect to make one submission to address
infrastructure SIP requirements for multiple NAAQS, if it represents the submission as such during its adoption process and in its transmittal to the EPA. Of course, such a submission to address multiple NAAQS should establish how the air agency believes that the SIP meets each of the requirements of section 110(a)(2), as applicable, for each of the relevant NAAQS.

It is important that the SIP submission demonstrate the authority of the responsible air agency (or agencies, if responsibility for implementation is shared
, e.g. , between state and local agencies) to implement the new or revised NAAQS that has triggered the need for the infrastructure SIP submission. This can be an issue for approval if an older underlying legal authority enumerates specific ambient standards by p ollutant, indicator, averaging period, level, and/or date of promulgation but does not include the new or revised NAAQS in its list. Air agencies are encouraged to discuss any situations of this type with their respective EPA Regional
Office s

.
We encourag e each air agency to consult with the appropriate EPA Regional Office, to consider the completeness of the submission, and to consider how the submission satisfies the applicable EPA regulations governing approval of i nfrastructure SIP submissions in 40 CFR part 51 ("Requirements for Preparation, Adoption, and Submittal of Implementation Plans"). The regulations are referenced in this document, some with overlapping provisions across subparts,
and include the following :

• Subpart A

– Air Emissions Reporting Requirements

• Subpart F

– Procedural Requirements

• Subpart G

– Control Strategy

• Subpart H

– Prevention of Air Pollution Emergency Episodes7

• Subpart I

– Review of New Sources and Modifications

• Sub part J

– Ambient Air Quality Surveillance

• Sub part K

– Source Surveillance

• Sub part L

– Legal Authority

• Sub part M

– Intergovernmental Consultation

• Sub part O

– Miscellaneous Plan Content Requirements

• Sub part P

– Prot ection of Visibility

• Sub part Q

– Reports Once the air agency has made one or more infrastructure SIP submissions, the EPA will evaluate the submission(s) for completeness. The EPA's criteria for determining completeness of a SIP submission are codified at 40 CFR part 51 appendix V and are discussed in a later subsection of this guidance. An air agency’s familiarity with the EPA 's regulatory completeness criteria will benefit the air agency during the process of developin g an approvable submission.

The EPA’s review can be expedited if a SIP submission include s a detailed explanation
of how the existing EPA

- approved SIP in combination with any newly submitted provisions

meets each of the applicable requirement s of section 1 10(a)(2). The EPA expects the submissions to include a description of the correlation between each infrastructure element and an equivalent set of statutory, regulatory, and/or non

- regulatory provisions, as appropriate
, that

are part of or (for some elemen ts) are referred to by the existing SIP or the new submission

. (Refer to section III for more detail on submission requirements for each individual element .)
When an air agency’s i nfrastructure SIP submission more clearly identifies the CAA element(s)
bein g met by the SIP and how they are met
, the EPA can mo re easily determine whether the
submission is complete and approvable with respect to that element.

Certifications

Where an air agency determines that the provi sions in or referred to by its existing EPA

approved SIP are adequate with respect to a given infrastructure SIP element (or subelement) even in light of the promulgation of a new or revised NAAQS, the air agency may make a SIP submission in the form of a certification. This type of infrastructu re SIP submission may, e.g. ,8

take the form of a letter to the EPA from the Governor or her/his designee containing a "certification" (or declaration) that the already

- approved SI P contains or references provisions that satisfy all or some of the requiremen ts of section 110(a)(2) , as applicable, for purposes of implementing the new or revised NAAQS. In such a case, the submission would not need to include a paper copy of the relevant pre

- existing provisions ( e.g. , rules or statutes). 12 Rather, the
certificati on submission should provide citations to the state, local, or tribal statutes, regulations,

or non

- regulatory measures, as appropriate, in or referenced by the already EPA

- approved SIP that meet particular infrastructure SIP element requirements and shoul d include an explanation as
to how those existing provisions meet the relevant requirements. The air agency should consult with its EPA Regional Office on the wording of this type of infrastructure SIP submission prior to making its submission. As for any other SIP submission, an air agency (unless the EPA has approved a request for parallel processing) would need to provide reasonable notice and

12 In contrast, w h ere an air agency’s infrastructure SIP submission seeks the EPA’s approval of or references a new provision ( e.g. , a rule or statute) that has not already been approved , or submitted for approval, into the SIP, a complete SIP submission should include at l east one hard copy and an exact duplicate electronic version of the adopted provisions (unless otherwise agreed to by the air agency and the Regional Office). Memorandum dated April 6, 2011, from Janet McCabe, titled “Regional Consistency for the Administr ative R equirements of State Implementa t i on Plan s and the Use of Letter Notices .” The EPA is investigating means to provide for states a method to transmit SIP submissions electronically with no requirement for paper copy submissions.9

o pportunity for comment prior to submitting a certification SIP submission to the EPA. 13 Th is
"reasonable notice and public hearing" requirement for approvable infrastructure SIP
submissions appear s at sections 110(a) (1) and the introductory text of section 110(a)(2 ) , and it has much the same wording as the more general ly applicable procedural requirement at
section 110( l ) of the CAA ("Plan Revisions")

. See CAA sections 110(a)(1) and (2) and 110(l). Compliance with this procedural requirement is verified through a n additional certification by
the air agency that a public hearing (if one was re quested ) was held in acco rdance with the EPA ' s regulatory procedural requirements for public hearings. 14 See 40 CFR 51.102 and 40 CFR part 51, appendix V , paragraph 2.1(g)

.

13 The EPA regulations at 40 CFR part 51 appendix V provide that a public hearing must always be offered and that a hearing must be held if requested. The EPA has received comment that when all of the elements in an existing infrastructure SIP were previousl y subject to a public comment process, including the opportunity for public hearing(s), when they were first submitted for the EPA's approval and incorporation into the SIP, no public comment requirements should apply to a “certification” infrastructure su bmission . The EPA believes this suggested interpretation is inconsistent with the plain text of secti on 110(a)(1) of the CAA. Section 110(a)(1) first provides that “[e]ach State shall, after reasonable notice and public hearings , adopt and submi t to the Ad ministrator, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a [primary NAAQS] (or any revision thereof) ... a plan [ i.e., infrastructure SIP] which provides for implementation, maintenance, and enforcemen t of such primary standard.” The clause “after reasonable notice and public hearings” is most naturally read as imposing that procedure on the immediately following phrase, “adopt and submit,” the direct object of which is the infrastructure SIP itself. Th e suggested interpretation would instead apply the phrase “after reasonable notice and public hearings” to SIP revisions submitted before the promulgation of the new or revised primary NAAQS, despite the complete absence of a reference to those e arlier SIP revisions in section 110(a)(1). Any possible residual ambiguity is removed by the last sentence of s ection 110(a)(1), which requires an infrastructure SIP for a secondary NAAQS to be considered (unless a separate public hearing is provided) “at the hearin g required by the first sentence of this paragraph.” The only possible interpretation of this sentence is that there must be an opportunity for public hearing for the infrastructure SIPs for both the primary and secondary NAAQS. This is a reasonable interp retation because it inform s the public that the SIP is being revised and allow s for comment as to whether the air agency ’s earlier approved regulations also satisfy the relevant obligation stemming from the promulgation of the new or revised NAAQS. Further more, the next footnote explains that the EPA has recently clarified procedures for providing notice and opportunity for comment that reduce the burden on air agencies while still assuring adequate notice to the public.

14 Additional guidance regarding how an air agency may submit a SIP or a SIP revision can be fo und in a memorandum dated April 6, 2011, from Janet McCabe, Deputy Assistan t Administrator, Office of Air and Radiation, to Reg ional Administrators, titled " Regional Consistency for the Administrati ve Requirements of State Implementation Plans a nd the Use of 'Letter Notices'." Refer also to a memorandum dated Nov. 22, 2011, jointly from Janet McCabe, Deputy Assistan t Administrator, Office of Air and Radiation, and Becky Weber, Director, Air and Wa ste Management Division, Region 7, to Air Division Dir ectors, Regions 1

- 10, titled " Guidelines for Preparing Letters Submitting State Implementation Plans (SIPs) to EPA and for Preparing Public Notices for SIPs. " These guidance memos identify certain streamli ning approaches that are available to an air agency, depending on the situation.10

As with any SIP submission, the EPA’s review can be expedited if a SIP certification
submission include s a detailed explanation of how the existing SIP meets each of the applicable requirement s of section 110(a)(2). This should include a description of the correlation between each infrastructure element and an equivalent set of statutory, regulatory, and/or non

- regulatory provisions, as appropriate
, that are part of or are referenced by the existing SIP. When an air agency’s i nfrastructure certification sub mission more clearly identifies the CAA element(s) being met by the SIP and how they are met
, the EPA can mo re easily determine whether the
submission is complete and approvable with respect to that element.

Determining Completeness of an Infrastructure SI P Submission

Section 110(k)(2) directs the EPA to take final action on a SIP submission within 1 year after the submission is determined to be complete under section 110(k)(l) . If the EPA makes an affirmative finding that a SIP subm iss i on is complete, the date of the finding establishes the

" completeness date " for the submi ssion. I f , however, the EPA makes no affirmative completeness finding, then the submission is deemed complete by operation of law on the date
6 months after the submi ssion date. A finding that an infrastructure SIP submi ssion is complete does not necessarily mean that the submi ssion is approvable ; the completeness review only
addresses whether the air agency has provided information sufficient to commence formal EPA review for approvability. Refer to 40 CFR part 51 appendix V ("Criteria for Determi ning the Completeness of Plan Submissions " ).

Historically, when reviewing infrastructure SIP submissions, the EPA has operated on the
basis that the elements and sub

- elements of section 110(a)(2) for a given NAAQS are, for the most part, severable. 15 The EP A may elect to make a finding of failure to submit in whole or in part, based upon whether a state has made a complete infrastructure SIP submission for the
relevant elements of section 110(a)(2). For a state that has not made any infrastructure SIP

15 See, e.g., 76 FR 81371 (Dec ember 28, 2011 )
, “ Approval and Promulgation of Implementation Plans; T exas; Infrastructure and Interstate Transport Requirements for the 1997 Ozone and the 1997 and 2006 PM 2.5 NAAQS
, Final Rule,” where the EPA approved severable portions of infrastructure SIP revisions submitted by Texas

.11

submi s sion , the EPA generally will make a finding with respect to all of the relevant elements. 16
For a state that has made a SIP submission but whose submission is incomplete for some of the relevant elements, the EPA generally will issue a finding of failure to submit only with respect to those elements. This separation makes clear what mandatory EPA duty subsequently exists with respect to each element or subelement. If the EPA has made separate findings as to the completeness of submissions for two or more ele ments ( and sub

- elements )
, the 12

- month statutory deadline for EPA action to approve or disapprove the elements for which the air agency has made a complete submission and the 24

- month statutory deadline for EPA action to promulgate FIPs for incomplete elem ents would apply separately. The EPA intends to continue its practice of acting on infrastructure SIP elements together or separately, as appropriate.

Any SIP submission is deemed by operation of law to be complete six months after submission, unless the EPA has before that date made an affirmative finding that the submission is complete or incomplete. A ny inconsistency between the scope of the submission as descri b ed
in the pre

- submission public notice of the SIP submission and the actual submission, or b etween the description of the scope of the submission in the transmittal letter to the EPA and the actual substantive coverage of the submission can create ambigu ity as to which infrastructure SIP elements in fact have been submitted and thus are capable o f becoming complete by operation of law ( and triggering a deadline for the EPA ’s action) and which have in fact not yet been
submitted. 17 To provide clarity for all parties, air agencies should be very clear and accurate in the wording of their public notices and transmittal letters. It is also advisable for the air agency to discuss this wording with i t s EPA Regional Office before submissi on. On its part, an EPA Regional Office
, in receipt of a submission with any inconsistencies of the type described
, should consider steps it can take or ask the air agency to take prior to the six

- month point in order to avoid the creation of ambiguity or an incorrect result as to which SIP elements have actually

16 Under the TAR, a tribe is not subject to deadlines for certain planning requirements (including submission of infrastructure SIPs). See 63 FR 7254 (Feb. 12, 1998) for more information.

17 The EPA’s experience is that the existence of a FIP for PSD or regio nal haze may increase the risk of such inconsistencies occurring inadvertently. FIP

- related aspects are discussed in more detail in the next section of this guidance.12

been submitted and are complete and consequently subject to a statutory deadline for the EPA
action.

Section 2.3 of 4 0 CFR part 51 appendix V waives certain completeness requirements if
the EPA has granted an air agency request for parallel processing of the submission. Under the parallel processing approach, the EPA proposes to approve a draft SIP submission so that final approval can be given more quickly after the final adoption of any new measur es as state, local, or tribal law and conclusion of the public comment process normally required for any SIP submission. The EPA intends to grant requests for parallel processing of infrastructure SIP submissions if (1) the only missing elements of complet eness are final state adoption of rules or other provisions and/or conclusion of the public comment process for the SIP submission, including evidence thereof as specified in section 2.3 of appendix V, and (2) the schedule provided by the air agency for th e conclusion of the adoption process and/or the public comment process for the SIP submission is reasonably expeditious

. 18 In such a case, the EPA generally would also either make a finding of completeness for the submission or allow it to become complete b y operation of law. If both these conditions are not met, the EPA will not grant the parallel processing request. However, the EPA generally will not make a finding of failure to submit a complete SIP but may be required to do so if under a court order.

Ef fect of a Federal Implementation Plan on an Infrastructure SIP

The CAA directs states to submit SIPs to the EPA for approval. In some cases, and for various reasons, the EPA may have previously determined that an air agency had not satisfied a
SIP requirem ent , and so accordingly promulgated a FIP to address the gap in the SIP. The infrastructure SIP process can be affected when an air agency is currently subject to a FIP that is related to an infrastructure SIP element. Therefore, this section describes the potential impact of

pre

- existing FIPs on the infrastructure SIP process. This explanation is relevant not only for air

18 With regard to the 1992 EPA Memorandum from John Calcagni, Air Quality Management Divis ion, OAQPS, to EPA Air Division Directors, Regions I through X, “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (Act) Deadlines,” October 29, 1992, note that the EPA no longer considers the section titled “Requests for Paral lel Process to Meet Act Deadlines” to be its guidance for infrastructure SIPs that are submitted with requests for parallel processing.13

agencies that currently have a FIP in effect but also for air agencies that may be subject to a FIP
in the future.

The EPA ’s obligation to promulgate a FIP is set out in section 110(c) of the CAA. A FIP may be triggered if the EPA takes any of the following actions: ( 1) the EPA find s that a state has
failed to make a required SIP submi ssion ; ( 2) the EPA find s that a required submi ssion was incomplete ; or ( 3) the EPA disapproves a required SIP submi ssion in whole or in part . If the EPA takes one of these actions, section 110(c) obligates the EPA to promulgate a FIP within 2 years of the action
, a deadline that is commonly refer red to as a " FIP clock

. " In order to remove the
EPA's FIP obligation, the state must make a SIP submission that meet s the applicable CAA requirements and is approved by the EPA prior to the EPA’s promulgation of a FIP

. Whenever
the EPA promulgates a FIP fo r a state air agency , the FIP rulemaking will identify the specific
CAA provisions that required the promulgation of the FIP, and the FIP will be codified in the appropriate section of 40 CFR part 52.

Under the T AR , a tribe is not subject to deadlines for planning requirements (including submission of infrastructure SIPs)

. 19 In general, the concept of failure to submit a complete implementation plan does not apply in tribal situations, and there is no FIP clock started if a tribe
has not submitted an infras tructure T IP. Under the T AR , in the absence of an approved tribal implementation plan the EPA will promulgate a FIP for one or more infrastructure SIP elements when and if it is necessary and appropriate to do so. For example, t he EPA has promulgated new

s ource review FIPs to govern permitting of sources in Indian country.

If the EPA has promulgated a FIP, then this means that the EPA has previously determined that the air agency’s SIP did not meet some CAA requirement as of the date of promulgation of that FIP. While the intent and effect of the FIP is to achieve the same air quality protection as the SIP should have achieved, it is the EPA’s interpretation of sections 110(a)(1) and 110(a)(2) that the EPA cannot give “credit” for the FIP when determining wh ether an air agency has met any later obligations under these sections.

19 See 63 FR 7254 (February 12, 1998) for more information on the TAR.14

As an example of a FIP that affects the infrastructure SIP submission process, we note that, for various reasons, several states do not have EPA

- approved major source preconstruction

p ermit programs in their SIPs for prevention of significant deterioration (PSD) as required by part C of title I of the CAA. The EPA has promulgated a set of PSD rules which establish authority for the EPA (or an air agency to which the EPA has delegated au thority to administer the federal PSD program) 20 to issue preconstruction permits to major stationary sources in any area not covered by a PSD program in a SIP. 21 The EPA has also promulgated FIPs for each area
without a SIP

- approved PSD program, indicating that this set of federal PSD rules applies in that

area. 22 Such a PSD FIP may be relevant to infrastructure Element C, Element J, Element D(i)(II),
and the portion of Element D(ii) related to notification to other states. As another example, the EPA has pro mulgated full or partial FIPs to address reasonably attributable visibility impairment (RAVI) and regional haze for some air agencies. 23 A RAVI FIP or a regional haze FIP may be
relevant to Element D(i)(II). These linkages are further discussed in the secti on pertaining t o each of these elements.

The infrastructure SIP process will vary to some extent depending on whether or not the air agency’s SIP submission purports to
, and actually does
, satisfy infrastructure SIP requirements that are currently being me t by means of a FIP, as explained in the following paragraphs.

Consider an air agency that is currently subject to a FIP that is relevant to certain infrastructure SIP elements makes a submission and states in a general way in the transmittal
letter that the submission satisfies all elements of CAA section 110(a)(2), or if it specifically states that the submission satisfies the elements to which the FIP is relevant, the EPA would

20 The EPA is planning on extending the opportunity for delegation of new source review permitting to qualified tribes.

21 See 40 CFR 52.21 ; Prevention of Significant Deterioration of Air Quality.

22 See , e.g ., 40 CFR 52.738 for the PSD program applicable to sources in Illinois.

23 Some of these regional haze FIPs relied o n the Cross

- State Air Pollution Rule ( CSAPR), which was subsequently vacated by the U.S. Court Appeals for the D.C. Circuit. EME Homer City Generation, L.L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012). The Supreme Court has accepted the EPA’s petition for it to review the D.C. Circuit’s decision. Air agencies should consult with their EPA Regional Offices regarding the current status of this litigation and the implications i f any for infrastructure SIP submissions.15

evaluate whether the submission, in fact, contains existing or new substanti ve provisions to
address the section 110(a)(2) requirement presently covered by the FIP. If the submission does not substantively address the elements or sub

- elements presently covered by the FIP, then the EPA Regional Office should encourage the air agenc y to clarify its intentions as to which elements have been submitted. The air agency might then clarify that it has made no submission for certain elements, in which case the EPA would not make a finding of complete submission
for those elements and those elements could not become complete by operation of law. (The EPA may make a finding of failure to submit for those elements.) In the absence of such a clarification, the EPA Regional Office should determine that the air agency has failed to make a complete submission for those elements. Such a finding generally would create an obligation for the EPA to adopt a FIP within 24 months. However, based on the PSD FIP example and to the
extent that the SIP deficiency is addressed by continuing to implement the exi sting PSD FIP, the EPA would have no additional FIP obligation under section 110(c) and the air agency would not have to take any further action for the current FIP

- based permitting process to continue operating. Mandatory sanctions would not apply under C AA section 179 because such a finding
of failure to submit a complete SIP wa s made neither with respect to a submission that is required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5).

To provide further clarity, consider how the following t hree scenarios may prompt
differ ing EPA actions.

First scenario. Under this scenario, the transmittal letter for the infrastructure SIP
submission makes clear that the submission is not intended to satisfy certain elements that can be addressed by continuing to apply the FIP. In this situation, the EPA would make a completeness finding that extends only to the SIP elements actually submitted by the air agency , and a finding that other relevant applicable elements were not submit ted. 24 The EPA would be required to take
action only on the elements that were submitted
, within 12 months after those elements have been determined to be complete. The overall infrastructure SIP would not be approvable with

24 If, instead, the submission that clearly addressed only some required elements has become complete at the 6

- month point by operation of law, the EPA would still consider the air agency to not have made a complete submission for the missing elements.16

respect to the element s that wer e not submitted, and thus the EPA could only partially approve
the overall infrastructure SIP

. 25

Second scenario. Under the second scenario, suppose the air agency ma k e s a SIP
submission that reference s the existence of a PSD FIP and assert s that the exist ence of the FIP i s a sufficient basis for EPA approval of the submission with respect to these elements. The EPA would not consider the existence of the PSD FIP, even if referenced in the submission, as meeting completeness or approvability criteria for th ese elements. This is because a FIP is not a state plan and thus cannot serve to satisfy the state ’s obligation to submit a SIP. The EPA’s action on the SIP submission would indicate that the air agency has not met the underlying statutory obligations in s ection 110(a)(2) with respect to Elements C and J . However, when the SIP deficiency is be ing addressed by the existing PSD FIP, the EPA would have no additional FIP obligation under section 110(c) and the state would not have to take any further action for
the current FIP

- based permitting process to continue operating. In this example, t he EPA may be able to approve a state

- developed SIP later , if the air agency develops and submits a SIP meeting
all statutory and regulatory requirements relevant to Elements C and J.

Third scenario. Under this scenario, the transmittal letter for the infrastructure SIP submission explicitly or implicitly indicates that the submission is intended to satisfy all required elements (including the elements that may be add ressed by continuing to apply the existing PSD FIP), and the 6

- month point has passed without any clarification by the air agency or any finding by the EPA Regional Office regarding completeness. In this situation, the EPA will generally
treat the submissi on as having been intended to address all the required elements and to be complete for all elements . The 12

- month clock for EPA action on the submission would apply to all elements and the EPA would proceed to disapprove the submission for the same element s with respect to the subject NAAQS that were previously addressed in the context of earlier NAAQS by the FIP. However, similar to the first scenario in which the SIP deficiency has

25 Note : Because an infrastructure SIP is not a required plan submission under part D of title I of the CAA, disapproval of (or a finding of failure to submit) an infrastructure SIP or element thereof does not trigger mandatory sanctions under CAA section 179, unless the submission was required in response to a SIP call under section 110(k)(5) of the CAA.17

already been addressed, to the extent that the existing FIP addresses the deficiency, the EPA would have no additional FIP obligation under section 110(c) and the state would not have to take any further action for the current FIP

- based permitting process to continue operati o ns

. As in the first scenario, the EPA may be able to a pprove a state

- developed SIP later , if the air agency develops and submits a SIP meeting all statutory and regulatory requirements relevant to
Elements C and J

.

For some state air agencie s and some sources in Indian country, there are RAVI or regional haze FIPs in place that may be relevant to the subelement of Element D(i)(II) related to interference with measures by another state to protect visibility. This subelement is sometimes referred to as the “visibility transport” prong or simply, as “prong 4.” Wh ile fully approved RAVI and regional haze SIPs can be relied upon in satisfying this subelement, as explained later in this document, it may be possible in some cases for the element to be satisfied even if there is a FIP in place. Air agencies in this sit uation should read the section on Element D(i)(II) and
consult with their respective EPA Regional Office s on this aspect of their infrastructure SIP
submission.

If a new submission in fact does address the substance of the element or subelement covered by a FIP, the EPA would review the submission and may approve the infrastructure SIP. The EPA may also withdraw the FIP that had been addressing that element or subelement for previous NAAQS , if all relevant CAA requirements are met by the SIP.18

II I. Guidance on Individual Infrastructure SIP Elements

The EPA interprets section 110(a)(1) and section 110(a)(2) to require infrastructure SIP
submissions to meet the elements of section 110(a)(2), as applicable. As described in s ection II
, the EPA interp rets th e portion of section 110(a)(2)(C) that pertains to a permitting program that applies to nonattainment NSR within nonattainment areas, and the requirements of
section 110(a)(2)(I) that pertain to the specific requirements for attainment plans for des ignated
nonattainment areas
, to be outside the scope of the infrastructure SIP requirements because of the separate statutory schedules for area designations and submission of attainment plans provided elsewhere in the CAA. With respect to the remaining el ements of section 110(a)(2),
subsections (A) through (M), the CAA imposes an obligation on states to address those elements, as appropriate, within the 3

- year infrastructure SIP submission deadline . This section provides recommendations to air agencies abo ut how to make infrastructure SIP submissions to meet these remaining relevant elements, as applicable.

Element A

– Section 110(a)(2)(A): Emission L imits and O ther C ontrol M easures
Each such plan shall

– (A) include enforceable emission limitations and o ther 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

re quirements of this Chapter

. To satisfy Element A, an air agency’s submission should identify existing EPA

- approved SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA approval that limit emissions of pollutants releva nt to the subject NAAQS, including precursors of the relevant NAAQS pollutant where applicable. Emissions limitations and other control

measures needed to attain the NAAQS in areas designated nonattainment for th at NAAQS will
be due on a different schedule f rom the section 110 infrastructure elements and will be reviewed and acted upon with regard to approvability for the specific purposes of such an attainment plan
under CAA title I part D through a separate process at a later time

. See “ Which e lements of CAA19

110(a)(2) a ffect i nfrastructure SIPs? ” in section II of this guidance for additional discussion of
this distinction.

There are two issues that relate to Element A for which we are providing general guidance. The se are whether air agencies would need to correct the following in order for the EPA to approve their infrastructure SIP submissions: (1) previously approved emissions limitations that may treat startup, shutdown
, and malfunction (SSM) events inconsistently with the CAA as interpreted by our long standing guidance on excess emissions (the EPA’s SSM Policy) and more recently by multiple courts; and (2) previously approved SIP provisions for

" director ' s variance" or "director's discretion " that purport to allow revisions to or exemptions
from SIP emi ssion limit ation s with limited public process or without requiring further approval by the EPA. 26 The guidance provided here is consistent with the EPA interpretations articulated in provisions in several recent EPA final actions on SIPs

. 27
, 28

In recent inf rastructure SIP actions, the EPA has drawn an important distinction with respect to SSM issues and director’s discretion issues in this particular context. The EPA does not interpret section 110(a)(2) to require air agencies and the EPA to address potentia lly deficient

26 For further description of EPA ' s SSM Policy
, see , e.g., a memorandum dated September 20, 1999, titled, " State Impl ementation 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. Also, the EPA issued a proposed action on February 12, 2013, titled “State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Start up, Shutdown and Malfunction.” This rulemaking responds to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 39 states’ SIPs. It clarifies and restates the EPA’s SSM SIP policy.

27 See , e.g., a SIP call issued to Utah ( 72 FR 21639, Apr. 18, 2010 ) concerning treatment of malfunction events under Utah's "unavoidable breakdown rule" (UBR). The EPA determined that Utah’s SIP was substantially inadequate because its UBR allowed operators of CAA

- regulated facilities to avoid enforc ement actions when they suffer an unexpected and unavoidable equipment malfunction. In this SIP call, the EPA called on Utah to promulgate a new UBR that conforms to the EPA’s interpretation of the CAA. Litigants maintained that the SIP call was arbitrary and capricious and asked the Tenth Circuit Court to vacate it. The Court denied the petition for review of the Utah SIP call. U.S. Magnesium, LLC v

. EPA, U.S. Court of Appeals, No. 09

- 1269, January 14, 2011.

28 As another example that presents the EPA's po sition on infrastructure SIPs with respect to this issue, see the preamble language in the final rule published in the Federal Register on July 13, 2011 (76 FR 41075) , "Approval and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure SIP Requirements for the 1997 8

- Hour Ozone and PM 2.5 National Ambient Air Quality Standards." In section II of the preamble, the E PA described at length the position summarized in this guidance regarding existing provisions related to excess emissions during periods of SSM and existing provisions related to "director's variance" or "director's discretion."20

pre

- existing SIP provisions of these types in the context of acting on an infrastructure SIP submission. The EPA considers this a reasonable interpretation of the CAA in such a context.
The EPA notes that it has alternative tools in the CAA t o address existing SIP deficiencies of this type, in appropriate circumstances.

However , any “new” provisions in the infrastructure SIP submission that are relevant to SSM ( e .g., any newly created enforcement discretion provisions, affirmative defense prov isions, or special emissions limitation s that apply during SSM periods but that have not already been approved by the EPA) should be consistent with the EPA’s policy on what types of SSM provisions are permissible in SIPs under the CAA. For instance, n ew p rovisions as part of an approvable SIP submi ssion can not allow a n 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 the EPA and citizens from enforcing applicable requirements . Similarly, new provisions in a SIP for the exercise of enforcement discretion with regard to SSM events may only apply to state or tribal government personnel so that they do not limit enforcement by
th e EPA or citizens. E xcess emissions , including those occurring during SSM periods, might prevent attainment and maintenance of the NAAQS and compliance with other applicable CAA requirements . The EPA view s all periods of excess emissions as violations of t he applicable
emission limitation. Therefore, if an infrastructure SIP contains provisions that have not already been approved by the EPA
, and that impermissibly exempt from enforcement excess emissions that may occur at a facility during SSM periods or th at otherwise are inconsistent with the EPA’s interpretation of the CAA as outlined in its SSM P olicy, the EPA will not propose to fully approve the submission as meeting section 110(a)(1) and (2) requirements

.
With regard to “director’s discretion” to rev ise emission limits, any " new " provisions in
the infrastructure SIP submission ( i.e., provisions that have not already been approved by the
EPA ) should be consistent with the EPA' s interpretation of the CAA as expressed in its polic y regarding director ' s d iscretion

. 29

29 See 77 FR 34309 and 34311 (June 11, 2012 ). “ Approval and Promulgation of Implementation Plans; Tennessee; 110(a)(1) and (2) Infrastructure Requirements for the 1997 Annual and 2006 24

- Hour Fine Particulat e National Ambient Air Quality Standards , Proposed Rule.”21

The EPA will continue to consider for approval, as it has in recent final SIP actions, 30 SIPs that provide for a limited affirmative defense to civil penalties for excess emissions occurring during properly demonstrated and documented malfunction periods.

In summary, the EPA in recent final actions on infrastructure SIP submissions has
maintain ed that the CAA does not require that new infrastructure SIP submissions address
existin g potentially inadequate provisions concerning SSM or director's discretion in order to be approved as meeting the CAA section 110(a)(1) and (2) requirements tr iggered by the new or revised NAAQS

. The EPA’s stated position has been that it can approve an infrastructure SIP submission, even if the infrastructure SIP may incorporate by reference previously approved SIP provisions that are or may not be consistent w ith the EPA’s SSM Policy and its policy on
director’s discretion to revise emission limits. The EPA articulated this position in a number of infrastructure SIP actions taken in 2011, noting in the preambles for those actions that existing provisions for SS M and director ' s discretion may be dealt with separately, outside the context of acting on a n air agency ’s new infrastructure SIP submission. 31 However, if an air agency submits
an infrastructure SIP submission that would create a new SIP provision related to SSM that is inconsistent with the EPA’s interpretation of the requirements of the CAA, the EPA may disapprove it. We intend to continue this practice and affirm it as part of this guidance.

30 See 75 FR 68989 at 68992 (Nov ember 10, 2010 ) , “Approval and Promulgation of Implementation Plans; Texas: Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities.” In Luminant Generation Co. v. EPA, No. 10

- 60934, 2012 WL 4841615 (5 th Cir. 2012), the Court upheld the EPA’s approval of an affirmative defense for malfunctions and disapproval of an affirmative defense provision in a SIP submission that pertained to “planned activities,” which included startup, shutdown, and maintenance. The EPA disapproved this provision, in p art because it provided an affirmative defense for maintenance. The Court rejected challenges to the EPA’s disapproval of this provision, holding that under Chevron step 2, the EPA’s interpretation of the CAA was reasonable. See also the Federal Register n otice signed on February 12, 2013, restating the EPA’s policy on affirmative defense provisions and proposing 36 SIP calls to correct affirmative defense and other SSM

- related SIP provisions.

31 As one example of preamble language that presents the EPA's po sition on infrastructure SIPs with respect to this issue, see the final rule published in the Federal Register on July 13, 2011 (76 FR 41075), "Approval and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wis consin; Infrastructure SIP Requirements for the 1997 8

- Hour Ozone and PM 2.5 National Ambient Air Quality Standards." In section II of the preamble, the EPA described at length the position summarized here regarding existing provisions related to excess emi ssions during periods of SSM and existing provisions related to "director's variance" or "director's discretion."22

Element B

– Section 110(a)(2)(B): Ambient A ir Q uality M onitorin g/ D ata S ystem

Each such plan shall

– (B) p rovide for establishment and operation of appropriate devices, methods, systems, and procedures ne cessary to

–

(i ) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator

.

To meet Element B requirements, the best practice for a n air agency submitting an
infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the SIP), the statutory or regulatory provisi ons that provide the air agency or official with the authority and responsibility to perform the actions listed in the bullets below along with a narrative explanation of how the provisions meet the requirements of this element. 32

• Monitor air quality for t he relevant NAAQS pollutant(s) at appropriate locations in

a ccordance with the EPA's ambient air quality monitoring network requirements. See the EPA's Ambient Monitoring Technology Information Center (AMTIC) web site
, 40 CFR part 53 ("Ambient Air Monitoring Reference and Equivalent Methods") , and 40 CFR part 58 ("Ambient Air Quality Surveillance")

. See also 40 CFR 51.190 (referencing 40 CFR part 58). 33

• Submit dat a to the EPA' s Air Quality System (AQS) in a timely manner in accordance with 40 CFR part 58. Under 40 CFR part 58, sub part B ("Monitoring Network") , for example, see 40 CFR 58.16 ("Data submittal and archiving requirements" )

.

• Provide to the EPA Regional Office infor mation regarding air quality monitoring activities, including a d escription of how the air agency has complied with monitoring requirements, a nd an explana tion of any proposed changes to the network

.

32 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically enumerate specific activities b ut do implicitly authorize the air agency to perform such activities, in which case inclusion of those provisions would meet the intent of this best practice.

33 Note that despite the recent reorganization of 40 CFR part 58 without a corresponding conforming update of the

cross

- reference to part 58 in 40 CFR 51.190 , all requirements under part 58 must still be met.23

Submission of annual monitoring network plan s consistent with the EPA' s ambient air monitoring regulations is one way of providing this information

. Under 40 CFR part 58, subpart B, see , e.g. , 40 CFR 58.10 ("Annual monitoring network plan and periodic network assessment" )

.

• Obtain the EPA ’s approval of any planned changes to monitoring sites or to the network plan , consistent with applicable requirements in 40 CFR 58.14 (“System Modification”)

. If an air agency chooses not to include the relevant statute or regulation in its SIP, then the air agency should provide a reference or citation to the authority provision s along with a narrative explanation of how the provisions meet the requirements of this element, as well as a copy of the relevant authority to accompany the SIP a s required by 40 CFR 51.231.
For any new or revised NAAQS, the infrastructure SIP submission should provide
assurance that the state wi ll meet changes in monitoring requirements related to the new or revised NAAQS.

Element C

– Section 110(a)(2)(C): Programs for E nforcement of C ontrol M easures and for C onstruction or M odification of S tationary S ources.
Each such plan shall

– (C) i nclude a program to provide for the enforcement of the measures descri bed 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 qualit y standards are achieved, including a permit program as required in parts C and D of this Subchapter

. This element consists of three sub

- elements ; enforcement, state

- wide regulation of new and modified minor sources and minor modifications of major sources ; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C ( i.e ., the major source24

PSD program). 34
, 35 While this section outlines the gene ral requirements for approvability of an infrastructure SIP with respect to Element C
, air agencies previously subject to FIPs with respect to this element for major source PSD in the context of earlier NAAQS have the option , as discussed in more detail be low and in Section II: “ Which e lements of CAA 110(a)(2) a ffect
i nfrastructure SIP s? ”
, to remain subject to those FIPs as the remedy for infrastructure SIP
deficiencies for a new or rev i sed NAAQS

.

Enforcement : To satisfy this subelement, an infrastructure S IP submission should identify the statutes, regulations, or other provisions in the existing SIP (or new provisions that are submitted as part of the infrastructure SIP to be incorporated into the SIP) that provide for
enforcement of those emission limits and control measures that the air agency has identified in its submission for purposes of satisfying Element A (Emissions limits and other control measures).

Regulation of minor sources and minor modifications : To satisfy the subelement for pre

construction regulation of the modification and construction of minor stationary sources and the minor modification of major stationary sources, an infrastructure SIP submission should identify the existing EPA

- approved SIP provisions and/or include ne w provisions that govern the minor

source pre

- construction program that regulates emissions of the relevant NAAQS pollutant(s). The EPA rules addressing SIP requirements for pre

- construction regulatory programs that apply
to minor sources and minor modific ations are at 40 CFR sections 51.160 through 51.164

.

34 The terms " major " and " minor " categorize a stationary source or a modification of a stationary source , for NSR applicability purposes, in terms of an annual emissions rate (tons per year) or change in annual emission rate for a pollutant. The pre

- construction minor NSR program g enerally applies to minor stationary source s and minor modification projects a t major stationary sources. A major “stationary source” is defined in the applicable PSD or nonattainment NSR regulations. Some air agencies exempt small minor sources and modifications from pre

construction regulatory requirements.

35 As explained in sect ion II of this document, the EPA considers evaluation of permit provisions that implement CAA title I part D (the major source nonattainment NSR program) to generally be outside the scope of infrastructure SIP actions . Hence, to address the sub

- element reg arding major source permitting, only the major source permitting program applicable in areas designated attainment or unclassifiable is an issue. In contrast, because part D does not impose any special requirements for permitting of minor sources in nonatt ainment areas, the infrastructure SIP due 3 years after a new or revised NAAQS should address Element C with regard to minor sources in unclassifiable, attainment, and nonattainment areas, without regard to designation.25

Preconstruction PSD permitting of major source s: 36 To satisfy the subelement regarding the PSD program required by CAA title I part C, an infrastructure SIP submission should demonstrate that one or more air agencies has the authority to implement a comprehensive PSD permit program under CAA title I part C, for all PSD

- subject sources located in areas that are designated attainment or unclassifiable for one or more NAAQS. The infrastructure SIP
submission should also identify the existing SIP provisions that govern the major source PSD program. As explained in more d etail below, to be approvable the infrastructure SIP submission should also address any new or revised PSD permit ting program requirements for which the deadline for SIP submissions has passed as of the date of EPA’s proposed action on the
infrastructure s ubmission

.
The SIP permitting provisions that implement CAA title I part C (the PSD 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 forma tion of those pollutants when identified for regulation by the Administrator) in areas designated as attainment or unclassifiable. The EPA rules providing the minimum requirements for approvable PSD programs can be found generally at 40 CFR 51.166 (general provisions for PSD programs approved in SIPs) and 40 CFR 51.307 (specific provisions pertaining to new source review for potential impacts on air quality related values in Class I areas).

The EPA interprets Element C to mean that each infrastructure SIP submission for a particular NAAQS would need to demonstrate that the air agency has a complete PSD permit ting program in place covering the requirements for all re gulated NSR pollutants, including greenhouse gases (GHG), in order to demonstrate that the SIP meets Element C

. 37

Element C requires that each infrastructure SIP contain a permit ting program “as required by part C.” CAA title I part C is applicable to all pollutants subject to regulation under the CAA.
See , e.g. , CAA section 165(a)(4). There is no specific language in the last clause of Element C

36 The discussion here of the PSD por tion of Element C also applies in full to the PSD portion of Element J.

37 See , e.g. , 77 FR 64737 (Oct ober 23, 2012 ) , “Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; Nevada; Infrastructure Requirements for Ozone and Fine Particulate Matter.”26

that restricts its application to only those provisions of CAA title I part C that pertain to the particular new or revised NAAQS addressed by the particular infrastructure SIP action. Because the scope of CAA title I part C is comprehensive (covering all pollutants subject to regulation under the CAA, including GHG), the EPA likewise reads the unrestricted referenc e to CAA
title I part C in Element C to mean that this provision has the same scope as CAA title I part C itself. Thus, an infrastructure SIP submission for any one of the recently revised NAAQS must
be “ comprehensive ” in that it would need to meet all CAA title I part C requirements for other regulated NSR pollutants as well.

The broad scope of Element C with respect to major source PSD permitting raises the question of how the EPA will proceed when the timing of requirements for multiple
, related SIP
submissions ( e.g. , for mandatory PSD SIP revisions) impact s the ability of the air agency and the
EP A to address certain substantive issues in the infrastructure SIP submission in a reasonable
fashion. It is appropriate for the EPA to take int o consideration the timing of related requirements for SIP submissions in determining what an air agency can reasonabl y be expected
to have addressed in an infrastructure SIP submission for a NAAQS at the time when the EPA

acts on such submission. The EPA does not consider it reasonable to interpret Element C to require the EPA to propose to disapprove an air agency’s infrastructure SIP submission because
the air agency had not submitted a PSD permit ting program revision that was not yet due as of
the date of EPA’s proposed action. Because it would be unreasonable to propose such a disapproval
, the EPA likewise does not consider it reasonable to take final disapproval action
under such circumstances . In other words, the EPA interprets these CAA sections to allow the EPA to approve an infrastructure SIP submission for the major source PSD permitting
subelement of Element C (and Element J) provided that the EPA has already approved or is simultaneously approving the air agency’s SIP submission(s) 38 with respect to all structural PSD permit ting program revision requirement s that were due under the EPA regulations or the CAA
on or before the date of the EPA’s proposed action on the infrastructure SIP submi ssion. To adopt a different approach
, by which the EPA could not act on an infrastructure SIP or at least

38 These submissions may be submitted separately or together with the infrastructure SIP submission on which the EPA is proposing action.27

could not approve an infrastructure SIP whenever there was any impending revision to the PSD permit ting program regulations required by another collat eral rulemaking action
, would result in regulatory gridlock and make it impracticable or impossible for the EPA to act on infrastructure
SIPs if the EPA had recently revised its PSD permitting regulations but the submission required by such revisions was n ot yet due

. The EPA believes that such an outcome would be an
unreasonable reading of the statutory process for the infrastructure SIPs contemplated in
sections 110(a)(1) and (2).

Consequently, the EPA generally plans to proceed as follows. The EPA may propose to approve an infrastructure SIP submission with respect to the major source PSD permitting
subelement of Element C if the air agency has submitted, in a timely manner, all st ructural PSD permitting program provisions for which the SIP submission deadline has passed as of the date of the proposed approval. 39 Subject to consideration of public comments on the proposed action, the EPA believes it may proceed to fully approve an in frastructure submission with respect to
Element C if all such structural PSD permitting program submissions have been or are being simultaneously fully approved into the SIP. The EPA does not intend to treat any structural PSD permitting program requiremen t for which the SIP submission deadline falls after the date of the EPA’s proposed action on the infrastructure SIP as a required criterion for approval of the infrastructure SIP. The PSD permitting program revisions treated in this manner may include not only those related to the new or revised NAAQS whose promulgation has triggered the need for a new infrastructure SIP submission but also those related to any other regulated NSR pollutants as required by CAA title I part C and 40 CFR part 51.166. 40

If an air agency lacks a PSD permitting program in its existing EPA

- approved SIP addressing all regulated NSR pollutants, and it is already subject to a FIP, then major stationary

39 Structural PSD pro gram provisions include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHG. Structural PSD program provisions do not include provisions which under 40 CFR 51.166 are at the option of the air agency, such as the option for air agencies to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 NAAQS.

40 See , e.g. , “Approval and Promulgation of Implementation Plans; Mississippi: New Source Review

– Prevention of Significant Deterioration; Fine Particulate Matter (PM 2.5 ) National Ambient Air Quality Standards ,” 77 FR 59095 (Sept ember 26, 2012) , a recent infrastructure SIP approval action that address ed a state’s PSD SIP status with respect to the 200 8 PM 2.5 NSR Rule.28

sources within its jurisdiction are subject to the federal PSD permitting requirem ents in 40
CFR 52.21 . Some air agencies are subject to a FIP for PSD permitting of all regulated NSR pollutan ts, and fewer air agencies are subject to a FIP for PSD permitting that is limited to particular pollutants (such as GHG). For sources subject to a pre

- existing FIP for PSD permitting, either the EPA Regional Office issue s PSD permits or , in instances wher e federal authority is delegated by the EPA Regional Office to it, the state or local air agency issue s the PSD permits under the FIP (and tribes might be delegated in the same manner in the future)

. The EPA recognizes that some states have indicated a pre ference to operate under an EPA

administered PSD permitting program. M any air agencies have for some time been delegated the authority to implement a PSD FIP program. Other states have implemented their SIP

- approved
PSD permitting program. When a n area is already subject to a FIP for PSD permitting (whether

or not a state, local, or tribal air agency has been delegated federal authority to implement the PSD FIP), the air agency may choose to continue to rely on the PSD FIP to have permits issued pursuant to the FIP. If so, the EPA could not fully approve the infrastructure SIP submission with respect to Element C; however, the EPA anticipates that there would be no adverse consequences to the air agency or to sources from this lack of full approval of the infrastructure SIP.
M andatory sanctions would not apply under CAA section 179 because the failure to submit a
PSD SIP is neither with re spect to a submission that is required under CAA title I part D, nor in response to a SIP call unde r CAA section 110(k) (5). This relationship between a pre

- existing FIP and the EPA’s action on an infrastructure SIP element is also explained in section II of this
document.

The EPA has maintain ed that the CAA allows the EPA to approve infrastructure SIP
submission s that do not implement the NSR Reform R ules promulgated mainly in 2002

. 41 We
articulated this position in a number of infrastructure SIP final actions taken in 2011, noting in the preambles for those actions that existing SIP provisions for PSD programs that have not

41 The NSR rules have undergone a series of improvements over many years. Significant reforms were promulgated in a rulemaking commonly referred to as the "2002 NSR Reform Rules," which we re published in the Federal Register at 67 FR 80186 (December 31, 2002).29

addressed the NSR Reform R ules may be dealt with separately, outside the context of acting on a state’s infrastructure SIP. 42

Air agencies may wish to reduce the need to amend their major source PSD rules after each new or revised NAAQS by writing them so that their coverage of pollutants and NAAQS automatically updates with the promulgation of a new or revised NAAQS, and/or so that the specific PSD program requirements automatically update to stay matched with the federal PSD program requirements in 40 CFR 52.21. Depending on state or tribal law provisions, it may be possible to do one or both of these through the use of “rolling” incorporation by reference (IBR). An advantage of the rolling IBR approach is that it enables air agencies to quickly implem ent requirements of the CAA that may be immediately applicable to regulated sources upon the effective date of the new or revised NAAQS and before the deadline for air agencies to make infrastructure SIP submissions to the EPA. For example, one of the PSD program requirements is the requirement under section 165(a)(3) of the CAA that a permit applicant show it will not cause or contribute to a violation of any NAAQS. This requirement generally 43 applies to any NAAQS in effect on the date a PSD permit decisio n is issued and is not deferred until an infrastructure SIP submission is due. Where permissible under state or tribal law, a rolling IBR approach is advisable to enable air agencies to implement this type of CAA requirement immediately upon the effective date of a NAAQS, thus ensuring that there is a mechanism in place for regulated sources in the state or an area of Indian country to meet CAA requirements resulting from a new or revised NAAQS as soon as it become s applicable.

42 As one example of the preamble language that presents the EPA's position on infrastructure SIPs with respect to the issue of NSR Reform, see the final rule published in the Federal Register on July 13, 2011, "Approval and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure SIP Requirements for the 1997 8

- Hour Ozone and PM 2.5 National Ambient Air Quality Standards." 76 FR 41075. In section II of the preamble, the EPA applied the described position to existing provisions for PSD programs in light of the "NSR Reform Rules" that we promulgated mainly in 2002; see 67 FR 80186 (Dec. 31, 2002).

43 In some circumstances, th e EPA has authorized “grandfathering” of pending PSD permit applications. See 78 FR 3086, January 15, 2012.30

Elements D(i)(I) and (II)

– Section 110(a)(2)(D)(i): Interstate P ollution T ransport

Each such plan shal l

– (D) contain adequate provisions

– (i) pro hibiting, consistent with the provisions of this subchapter , any source or other type of emissions activit y within the S tate from emitting any air pollutant in amounts which wil l

–

(I) c ontribute significantly to nonattainment in, or interfere with maintenance by, any other S tate with respect to any such national primary or secondary a mbient air quality standard, or

(II) i nterfe re with measures required to be included in the applicable implementation plan for any other S tate under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility

.

Section 110(a)(2) (D)(i) contains two subsec tions : (D)(i)(I) and (D)(i)(I I ).
S ection 110(a)(2)(D)(i)(I) addresses any emissions activity in one state that contributes significantly to nonattainment, or interferes with maintenance, of the NAAQS in another state. The EPA sometimes refers to these requ irements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance). Neither

prong 1 nor prong 2 is addressed in this guidance. This guidance does not modify any prior statements by the EPA with respect to prongs 1 a nd 2 and does not address, discuss, or in any way alter any requirements set forth in either prong.

Element 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 (referring to visibility in Class I areas). The EPA sometimes refers to these requirements under subsection 110(a)(2)(D)(i)(II) as prong 3 (interference with PSD) and prong 4 (interference with visibility protection). The EPA interprets section 110(a)(2) to require air agencies to address prong 3 and prong 4 as part of each infrastructure SIP su bmission.

Prong 3 : Under section 110(a)(2)(D)(i)(II ), SIPs would need to have provisions prohibiting emissions that would interfere with measures required to be in any other air agency’s31

SIP under part C of the CAA to prevent significant deterioration of a ir quality. Because part C requires an air agency’s PSD permit ting program to address all pollutants subject to regulation under the CAA, the EPA interprets prong 3 to mean that the infrastructure SIP submission should have provisions to prevent emissions of any regulated pollutant from interfering with any other air agency’s comprehensive PSD permitting program, in addition to the new or revised NAAQS that is the subject of the infrastructure submission. Moreover, the i nfrastructure SIP should address the potential for such interference by sources throughout the jurisdiction of the air

agency.
One way to meet prong 3 ( ” interference with PSD ” ) , specifically with respect to those
in

- state sources and pollutants that are s ubject to PSD permitting, is through an air agency’s confirmation in its infrastructure SIP submission that new major sources and major modifications are subject to a comprehensive EPA

- approved PSD permitting program in the SIP that applies to all regulate d NSR pollutants and that satisfies the requirements of the EPA’s PSD implementation rule(s), as discussed above for purposes of Element C. This is because in order to be approved by the EPA, a major source PSD permitting program would need to fully
consid er source impacts on air quality in other states.

In

- state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. The EPA cannot ignore this potential when reviewing an infrastructure SIP for this prong. The EPA will consider and may rely on an air agency’s EPA

appr oved nonattainment NSR provisions in determining whether a SIP satisfies prong 3 with respect to sources located in areas subject to nonattainment NSR for any one or more pollutants32

and thus not subject to PSD permitting for those NAAQS pollutants. 44 SIP r evisions to address nonattainment NSR requirement s for any new or revised NAAQS are, however, due on a separate timeframe under section 172(b) of the CAA and are not subject to the timeframe for
submission of infrastructure SIPs under section 110(a)(1). Th erefore, a fully approved nonattainment NSR program with respect to any previous NAAQS may generally be considered by the EPA as adequate for purposes of meeting the requirement of prong 3 with respect to sources and pollutants subject to such program. Als o, if an air agency makes a submission indicating that i t issues permits pursuant to 40 CFR part 51 a ppendix S in a nonattainment area because a nonattainment NSR program for a p articular NAAQS pollutant has not yet been approved by the EPA for that area, that permitting program may generally be considered by the EPA as adequate for purposes of meeting the requirements of prong 3 with respect to sources and pollutants subject to such program. Such reliance for infrastructure purposes would not constitute

ap proval under CAA title I part D, and the EPA will explain this in the preambles to any proposed or final actions that rely on this rationale to support the conclusion that prong 3 is
satisfied

.
For an air agency without an EPA

- approved major source PSD pr ogram and/or, where required, an EPA

- approved nonattainment NSR program, it may still be possible for the EPA to also find, given the facts of the situation, that other SIP provision s and/ or physical condition are adequate to prohibit interference with oth er air agencies’ measures to prevent significant deterioration of air quality.

Prong 4 : Under section 110(a)(2)(D)(i)(II), an infrastructure SIP submission cannot be approved with respect to prong 4 (visibility transport) until the EPA has issued final ap proval of
SIP provisions that the EPA has found to adequately address any contribution of that state ' s

44 Refer, e.g., to a memorandum issued by William T. Harnett, Director, OAQPS/AQPD, " Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8

- Hour Ozone and PM 2.5 National Ambient Air Quality Standards," dated August 15, 2006. According to that 2006 Harnett memo, in section 5, “[t]he implementation of a PSD and NNSR permitt ing program in each state serves to prevent significant deterioration in neighboring states and thus largely satisfies the requirements of section 110(a)(2)(D)(i)(II) of the CAA.” Nevertheless, nonattainment

- related provisions, although identified in secti on 110(a)(2) of the CAA, are considered by the EPA to be outside the scope of infrastructure SIP actions, as discussed in section II of this guidance.33

sources to impacts on visibility program requirements in other states. The EPA interprets this prong to be pollutant

- specific, such that the infrastructu re SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies. Carbon monoxide does not affect visibility, so an infrastructure SIP for any future new or revised NAAQS for carbon monoxide need only state this fact in order to meet prong 4. S ignificant impacts from lead ( 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 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. Furt hermore, when evaluating
the extent to which Pb could impact visibility, Pb

- related visibility impacts were found to be insignificant ( e.g., less than 0.10 percent). 45 Although we anticipate that Pb emissions will contribute only negligibly to visibility impairment in Class I areas, the air agency’s submission of an infrastructure SIP for a new or revised Pb NAAQS should include an explanation in support of the air agen cy’s conclusion (and, if appropriate, should include control measures in its submission to limit impacts in other states).

One way in which prong 4 may be satisfied for any relevant NAAQS is through a n air agency’s confirmation in its infrastructure SIP s ubmission that it has an approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures
needed to achieve its apportionment of emission reduction obligations agreed upon through that

process. See , for example, 40 CFR 51.308(d)(3)(ii). A fully approved regional haze SIP will
ensure that emissions from sources under an air agency’s jurisdiction are not interfer ing with

measures required to be included in other air agencies’ plans to protect visibility

. However, if the air agency has submitted a 5

- year progress report SIP that indicates that the regional haze SIP is deficient with respect to ensuring reasonable p rogress toward natural visibility conditions in a

45 Memorandum from Mark Schmidt, OAQPS, “Ambient Pb’s Contribution to Class I Area Visibility Impairment,” June 17, 2011.34

Class I area in another state, the infrastructure SIP submission w ould need to explain how nevertheless the overall SIP satisfies prong 4.

After the next round of regional haze SIPs become due in 2018, the EPA may find it appropriate to supplement the guidance provided here regarding the relationship between regional haze SIPs and prong 4.

A number of air agencies do not have fully approved regional haze SIPs in place and instead have FIPs in place , which cannot be relied upon to satisfy prong 4

. 46 T he presence of a regional haze FIP does not ne ce ssarily require disapproval of the infrastructure SIP for prong 4. A state air agency may elect to satisfy prong 4 by providing , as an alternative to relying on its regional haze SIP alone, a demonstration in its infra s tructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies’ plans to protect visibility. Such a n infrastructure SIP submission would need to include meas ures to limit visibility

- impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states. 47

If the EPA determines the SIP to be incomplete or partially disapproves an infrastructure SIP submission for prong 4, a FIP obligation will be created. I f a FIP or FIPs are already in effect
that correct all regional haze SIP deficiencies
, there will be no additional practical consequences from the partial disappro val for the affected air agency , the sources within its jurisdiction , or the

46 Some approved regional haze SIPs have relied on the fact that electric generating units (EGUs) in the state must comply with a FIP previously promulgated by the EPA as part of the CSAPR to satisfy best achievable retrofit technology requi rements for EGUs. In this limited way, if a regional haze SIP of this type has itself been approved by the EPA, it is possible for FIP provisions to be taken into account by the EPA in determining whether an infrastructure SIP may be approved for prong 4.

47 As examples of the possibility that an infrastructure SIP submission can satisfy prong 4 even though the regional haze SIP has not been fully approved, see : (i) “Approval and Promulgation of State Implementation Plans; State of Colorado; Interstate Trans port of Pollution Revisions for the 1997 8

- Hour Ozone and 1997 PM2.5 NAAQS: ‘Interference With Visibility’ Requirement

– Final Rule”, 76 FR 22036 (April 20, 2011); and (ii) “Approval and Promulgation of Implementation Plans; Kentucky; 110(a)(1) and (2) Inf rastructure Requirements for the 2008 8

- Hour Ozone National Ambient Air Quality Standards

– Final Rule,” 78 FR 14681 (March 7, 2013). In the first action, the EPA approved the infrastructure SIP submission with respect to prong 4 without having approved a regional haze SIP, based on the state’s demonstration that it does not interfere with other states’ measures to protect visibility through their regional haze SIPs. In the second proposed action, the EPA approved Kentucky’s submission with respect to prong 4 based on the partial approval of its regional haze SIP and its CSAPR SIP.35

EPA. The EPA will not be required to take further action with respect to prong 4 because the FIP already in place would satisfy the requirements with respect to prong 4

. In additi on, unless the infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply because the deficiencies are not with re spect to a submission that is required under C AA title I part D. Nevertheless, the EPA continues to encourage all air agencies that may be subject to full or partial FIP s for regional haze requirements to consider adopting additional SIP provisions that would allow the EPA to fully approve the regional haze SIP and thus to withdraw the FIP and approve the infrastructure SIP with respect to prong 4

.

Element D(ii)

– Section 110(a)(2)(D)(ii): Interstate P ollution A batement and I nternational A ir P ollution

Each such plan shall

– (D) contain adequat e provisions

– (ii) insuring compliance with the applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement)

. Element D(ii) is satisfied when an infrastructure SIP e nsures compliance with the applicable requirements of CAA sections 126(a), 126(b) and (c), and 115.

Interstate Pollution Abatement : Sec. 126

. ( a ) Each applicable implementation plan shall

– ( 1) require each major proposed new (or modified) source

– ( A ) subject to part C (relating to significant deterioration of air quality) or (B) which may significantly contribute to levels of air pollution in excess of the national ambient air quality standards in any air quality control region outside the State in which such source intends to loc ate (or make such modification), to provide written notice to all nearby States the air pollution levels of which may be affected by such source at least sixty days prior to the date on which commencement of construction is to be permitted by the State pro viding notice, and (2) identify all major existing stationary sources which may have the impact described in paragraph (1) with respect to new or modified sources and provide notice to all nearby States of the identity of such sources not later than three months after the date of enactment of the Clean Air Act Amendments of 1977.36

Under section 126(a) (1) of the CAA
, each SIP would need to c ontain provisions requiring

e a ch new or modified major source required by CAA title I part C to be subject to PSD to no tify neighboring air agencies of potential impacts from the source. Consistent with EPA’s interpretation of part C with respect to the requirements of Element C, t he notification requirements apply to potential impacts from all PSD

- regulated pollutants, no t only the new or revised NAAQS for which the infrastructure SIP submission is being made. Section 126(a) (1) also requires that each SIP contain provisions requiring each new or modified major source to provide similar notification if it may significantly contribute to levels of pollution in excess of a NAAQS in any air quality control region outside of the state in which the source i s locate d

.
Air agencies with PSD programs that have been approved into their SIPs should already have a regulatory provision in place, consistent with 40 CFR 51.166(q)(2)(iv) , which requires the permitting authority to notify air agencies whose lands may be affected by emissions from that

source. Inasmuch as the information that the permitting authority provides to other air agencies is submitted by the source to the permitting authority, the EPA considers the notification by the permitting authority to satisfy the requirement of CAA section 126(a)(1)(A) that a new or modified major source subject to part C notify neighboring air agencies of its potential downwind impact.

A s tate that is subject to a FIP for its PSD program may not have an infrastructure SIP
that satisf ies Element D(ii) with respect to section 126(a) (1) of the CAA, depending on the scope of the gap in the SIP that led to the PSD FIP. Where some or all pollutants in a state are subject to a PSD FIP, the EPA may f ind the infrastructure SIP submission to be incomplete with respect
to Element D(ii) and could not fully approve the infrastructure SIP submission with respect to
Element D(ii) if the approved SIP has no other provision meeting the notification requirement s of section 126(a) (1) . Nonetheless, as noted above, the EPA anticipates that there would be no adverse consequences to the air agency or to sources within its jurisdiction from this lack of full approval . The EPA would not likely be required to take furth er action with respect to notification under this element, because the federal PSD rules should fully address the notif ication issue through the requirements of 40 CFR 52.21(q) and 40 CFR 124.10(c)(vii) and thus satisfy the FIP37

requirement triggered by the disapproval of the infrastructure SIP

. 48 In addition, unless the infrastructure SIP submission is req uired in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply because the deficiencies are not with re spect to a submission that is required under CAA title I part D.

The EPA notes that the requirement stated in CAA section 126(a)(2) was a one

- time obligation on states that does not apply to the EPA’s review of infrastructure SIP submissions.

Interstate Pollution Abatement : Section 126

... (b) Any State or political subdivision may petition t he Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 110(A)(2)(D)(ii) or this section. Within 60 days after receipt of any petition under this s ubsection and after public hearing, the Administrator shall make such a finding or deny the petition. ( c ) Notwithstanding any permit which may have been granted by the State in which the source is located (or intends to locate), it shall be a violation of [this section and] the applicable implementation plan in such State

–

(1) for any major proposed new (or modified) source with respect to which a finding has been made under subsection (b) to be constructed or to operate in violation of [this section an d] the prohibition of section 110(a)(2)(D)(ii) or this section, or

(2) for any major existing source to operate more than three months after such finding has been made with respect to it. The Administrator may permit the continued operation of a source referred to in paragraph (2) beyond the expiration of such three

- month period if such source complies with such emission limitations and compliance schedules (containing increments of progress) as may be provided by the Administrator to bring about complia nce with the requirements contained in section 110(a)(2)(D)(ii) as expeditiously as practicable, but in no case later than three years after the date of such finding. Nothing in the preceding sentence shall be construed to preclude any such source from bei ng eligible for an enforcement order under section 113(d) after the expiration of such period during which the Administrator has permitted continuous operation.

48 40 CFR part 124, including 124.10(c)(vii), provides for EPA notificat ion to states whose lands may be affected by emissions from the source and applies to all federal PSD permits issued in accordance with 40 CFR 52.21.38

Please n ote that the EPA has concluded that the cross

- reference in CAA section 126(b) to
CAA section 110(a)(2)(D)(ii) is a scrivener’s error and that Congress intended to refer to
section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d

- 1032, 1040

- 44 (D.C. Cir. 2001). Section 110(a)(2)(D)(i), in short, prohibits any source or emissions activity in a s tate from emitting any amount of air pollutant which will contribute significantly to nonattainment or interfere with maintenance of the NAAQS in another state. (42 U.S.C. § 7410.)

The required content of an infrastr ucture SIP with respect to E lement D(ii) is affected by
sections 126(b) and 126(c) of the CAA only if : (1) the Administrator has , in response to a petition, made a finding under section 126(b) of the CAA that emissions from a source or

sources within the a ir agency’s jurisdiction emit prohibited amounts of air pollution relevant to the new or revised NAAQS for which the infrastructure SIP submission is being made ; and (2)
under section 126(c) of the CAA, the Administrator has required the source or sources to cease construction, cease or reduce operations, or comply with emissions limitations and compliance schedule requirements for continued operation

. Where appropriate, the EPA recommends that an infrastructure SIP submission concerning section 126(c) incl ude a statement to the following
effect: “ No source or sources within the state [or tribal area] are the subject of an active finding
under section 126 of the CAA with respect to the particular NAAQS at issue. ” Otherwise, where
a source or sources within t he air agency’s jurisdiction are subject to such a finding and there are substantive SIP requirements imposed by the Administrator under section 126(c) of the CAA,
then we encourage the air agency to consult with its EPA Regional Office.

International Air Pollution : Sec. 1 15. (a) Whenever the Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute t o air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate. (b) The notice of the Administrator shall be deemed to be a finding under section 110(a)(2)(H)(ii) which requires a plan revision wit h respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment referred to in subsection (a). Any foreign country so affected by39

such emission of pollutant or pollutants shall be invited to appear at an y public hearing associated with any revision of the appropriate portion of the applicable implementation plan.

Section 115 of the CAA authorizes the Administrator to require a state to revise
its SIP under certain conditions to alleviate international transport into another country. Because of the appearance of the phrase “applicable requirements of section[]...115” in
Element D(ii), the EPA interprets this requirement to be NAAQS

- specific. That is, when acting on an infrastructure SIP submission for a ne w or revised NAAQS, the EPA will look to whether the Administrator has made a finding with respect to emissions of the particular NAAQS pollutant and its precursors
, if applicable. Where appropriate, the EPA
recommends that infrastructure SIP submission re quirements concerning section 115 include a statement to the following effect: "There are no final findings under section 115 of the CAA against this state [or tribal area] with respect to the particular NAAQS at
issue." If there are one or more final find ings under section 115 of the CAA, then we encourage the air agency to consult with its EPA Regional Office.

Element E

– Section 110(a)(2)(E): Adequate R esources and A uthority, C onflict of I nterest, and O versight of L ocal G overnments and R egional A gencies

Each such plan shall

– ( E) provide (i) necessary assurances that the S tate (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the S tate or general purpose local governments for such purpose) will have adequate personnel , funding, and authority under S tate (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of F ederal or S tate law from carrying out such imp lementation plan or portion thereof), (ii) requirements that the S tate comply with the requirements respec ting State boards under section 128 , and (iii) necessary assurances that, where the S tate has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the S tate has responsibility for ensuring adequate implementation of such plan provision

.40

Sube lement (i) : T he SIP should provide n ecessary assur ances 49 that the air agency has adequate personnel and funding to implement the relevant NAAQS. In accordance with the EPA's regulations at 40 CFR part 51, subpart M (“Intergovernmental Consultation”), the
infrastructure SIP submission should identify the organizations that will participate in developing, implementing, and enforcing the EPA

- approved SIP provisions related to the new or revised NAAQS and thus require resources for doing so. The infrastructure SIP submission should identify the r esponsibilities of such organizations and include related agreements among the organizations. For compliance with section 110(a)(2)(E), see 40 CFR 51.240 ("General plan requirements" ). Also, in accordance with the EPA's regulations at 40 CFR part 51, subpart O (“Miscellaneous Plan Content Requirements”), the infrastructure SIP submission should describe
the resources that are available to these organizations for carrying out the SIP. Resources to be
described should include: (1) those availabl e to these organizations as of the date of infrastructure SIP submission; (2) those considered necessary during the 5 years following infrastructure SIP submission; and (3) projections regarding acquisition of the described resources. For compliance with s ection 110(a)(2)(E) with respect to resources, see 40 CFR 51.280 ("Resources" ). Further, the infras tructure SIP submission should assure that the responsible state, local, and/or regional agencies , or a tribal authority, have adequate authority under statutes, rules, and regulations to carry out SIP obligations with respect to the relevant NAAQS. See th e EPA's regulations at 40 CFR part 51, subpart L ("Legal Authority") and subpart O. In accordance with the EPA's regulations at sub part L, the infrastructure SIP submission should show that the responsible org anizations have the legal authority to carry out the provisions identified in the SIP
submission

.

49 As with any SIP submission, the EPA’s review can be expedited if a SIP submission for this element inclu des a detailed explanation of how the existing SIP (supplemented by any new provisions included in the submission) meets each of the applicable requirements of section 110(a)(2) (E)(i) . This should include a description of the correlation between the requir ements of this element and an equivalent set of statutory, regulatory, and/or non

regulatory provisions, as appropriate. When an air agency’s infrastructure submission more clearly identifies e ach CAA element being met by the SIP submission and explains ho w i t is met, the EPA can more easily determine whether the submission is complete and approvable with respect to that element.41

I n accordance with 40 CFR 51.231 , the infrastructure SIP submission should identify the provisions of law or regulations that the air agency determines provide the necessary authority
, and the air agency should submit copies of those laws or regulations with the infrastructure SIP
submission. If an official, legal copy of a particular law or regulation has already been provided to the EPA in an earlier SIP submission, that copy only needs to be referenced with sufficient specificity to avoid ambiguity, rather than a new copy submitted. 50 For compliance with

se ction 110(a)(2)(E) with respect to legal authority, see 40 CFR 51.230 and 40 CFR 51.231

.
Having reviewed and approved air agency SIP submissions with respect with this element, the EPA expects that it would be unusual for air agencies to need to make SIP revisions

rega rding personnel, funding, or legal authority in order to satisfy this subelement. However, for any new or revised NAAQS, the air agency should explain in the infrastructure SIP submission how resources and personnel and legal authority are adequate and pro vide any additional assurances needed to meet changes in resource requirements by the new or revised NAAQS.

Subelement (ii) :

State Boards : The infrastructure SIP submission (possibly in combination with earlier submissions already approved by the EPA) wou ld need to include the statutory or regulatory provisions that impose the requirements mandated by CAA section 128 pertaining to certain boards, bodies, and personnel involved in approving permits or enforcement orders. Because CAA
section 110(a)(2)(e)(ii) directs states to “provide requirements that the state comply with the

50 Refer to a memorandum dated November 22, 2011, jointly from Janet McCabe, Deputy Assistan t Administrator, Office of Air and R adiation, a nd Becky Weber, Director, Air and Wa ste Management Division, Region 7, to Air Division Dir ectors, Regions 1

- 10, titled " Guidelines for Preparing Letters Submitting State Implementation Plans (SIPs) to EPA and for Preparing Public Notices for SIP s. "42

requirements respecting state boards under section 128
, ” 51 the provisions that implement CAA
section 128 would need to be contained within the SIP. That is, the EPA would not approve an infrastructure SIP submission that only provides a narrative description of existing air agency laws, rules, and regulations that are not approved into the SIP to address CAA section 128

r equirements. If an existing rule regarding conflict of interest and disclosure requirements has been adopted under the authority of a state or tribal law, the rule would need to be included in the SIP submission, but the authorizing law would not. If the s tate or tribal law is self

- executing and there is no rule that could be included in the SIP, then the law would need to be incorporated into the SIP. Inclusion of an existing law in the SIP does not prevent the state legislature or tribal
council from amen ding that law at a later date as a matter of state law, although eventually the
EPA

- approved SIP will need to be updated with any such amendment in order to revise the federally enforceable SIP.

All air agencies are subject to the provisions of CAA sectio n 128 . However, if there is no board or body authorized to approve permits or enforcement orders under the CAA, then a negative declaration to that effect may serve to satisfy the "board or body" requirements under paragraph (a)(1) of CAA section 128. It i s the EPA’s stated interpretation that a multi

- member board or body that has authority under state or tribal law to hear appeals of CAA permits or

51 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 mem bers of such board or body or the head of an executive agency with similar powers be adequately disclosed. A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities w hich 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.43

enforcement orders is considered to have authority to “ approve ” those permits or enforcement
orders . Accordin gly, the requirements of section 128(a)(1) related to public interest and
limitations on sources of income are applicable to such a board or body and would need to be met through provisions incorporated into the SIP. 52
, 53

The provisions of section 128(a)(2), which concern disclosure of potential conflicts of interest, would need to be substantively met by provisions incorporated into the SIP, regardless of whether it is a board, some other body, or the head of an executive agency that has responsibility for a pproving permits or enforcement orders in that state or an area of Indian country. It is the EPA’s stated interpretation that a multi

- member board or body that has authority under state or tribal law to hear appeals of CAA permits or enforcement orders is considered to have authority to “approve” those permits or enforcement orders. Accordingly, the requirement of section 128(a)(2) related to disclosure is applicable to such a board or body and
would need to be met through provisions incorporated into the S IP.

In 1978, the EPA issued a guidance memorandum recommending ways air agencies could meet the requirements of section 128, including suggested interpretations of certain terms
in section 128. 54 EPA has not issued further guidance or regulations of general applicability on the subject since that time. However, as part of its actions on s everal infrastructure SIP submissions, the EPA has more recently proposed certain interpretations of section 12 8 as applied to these specific submissions, invited comment on these interpretations, and finalized its actions. Within those actions, EPA has thus provided additional interpretation of the terms of
section 128 given specific facts and circumstances, consi stent with the statutory requirements.

52 The EPA expressed this interpretation in a proposed action on the infra structure SIP for Arizona. June 27, 2012.

“ Partial Approval and Disapproval of Air Quality Implementation Plans; Arizona: Infrastructure Requirement for Ozone and Fine Particulate Matter. ” 77 FR 38239. This action was finalized on Nov ember 5, 2012, 77 FR 66398

. 53 “Approval and Promulgation of State Implementation Plans; Hawaii Infrastructure Requirements for the 1997 8

- Hour Ozone and the 1997 and 2006 Fine Particulate Mat ter National Ambient Air Quality Standards.” 77 FR 47530 (August 9, 2012). The EPA’s action on the infrastructure SIP for Arizona referenced the proposal for this action on the infrastructure SIP for Hawaii.
54 See Memorandum from David O . Bickart to Regional Air Directors, "Guidance to States for Meeting Conflict of I nterest Requirements of Section 128 ," Suggested Definitions, March 2, 1978.44

See , e.g., EPA's proposed (77 FR 44555, July 30, 2012) and final (77 FR 66398, November 5, 2012) actions on an infrastructure SIP submission from Arizona. Unlike the recommendations of the 1978 guidance memorandum, in this action the EPA interpreted the term “state board” to exclude an individual official. As in the 1978 guidance memorandum, in this action the EPA interpreted the requirement regarding representation of the public interest and limitations on
income to a pply to a board that does not issue permits and compliance orders but does hear appeals of permits and compliance orders. The EPA notes that air agencies in different jurisdictions may have very different organizational structures and very different alloca tions of authorities and responsibilities with respect to permits and enforcement orders. Thus, the EPA recommends that air agencies consult with their respective EPA Regional Office s about the most appropriate method for assuring that the requirements of section 110(a)(2)(E)(ii) and section 128 are met in that jurisdiction under the relevant facts and circumstances.

Sube lement (iii) : T he infrastructure SIP submission should provide necessary

assurances 55 that the state retains responsibility for ensuring ad equate implementation of SIP obligations with respect to relevant NAAQS. A state may authorize a local or regional agency to carry out the SIP or a portion of the SIP within th at agency ' s jurisdiction, if the SIP demonstrates that the local agency has the necessary legal authority . However, in these cases the infrastructure
SIP submission needs to also provide assurances that the state air agency retains responsibility
for ensuring adequate implementation of the SIP. Under subpart L, see 40 CFR 51.232 ("Assignment of legal authority to local agencies" )

.

55 As with any SIP submission, the EPA’s review can be expedited if a SIP submission for this element includes a detailed explanation of how the existing SIP meets each of the applicable requirements of section 110(a)(2) (E)(i)

. This should include a description of the correlation between the requirements of this element and an equivalent set of statutory, regulator y, and/or non

- regulatory provisions, as appropriate, that are part of the existing SIP. When an air agency’s infrastructure submission more clearly identifies each CAA element being met by the SIP submission and explains how the element is met, the EPA can more easily determine whether the submission is complete and approvable with respect to that element.45

Element F

– Section 110(a)(2)(F): Stationary S ource M onitoring and R eporting

Each such plan shall

– (F) require, as may be prescribed by the Administrator

– (i) t he installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationar y sources to monitor emissions from such sources,

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

related data from such source s, and

(iii) correlation of such reports by the S tate agency with any emission limitations or st andards established pursuant to this Chapter , which reports shall be available at reasonable times for public inspection

. Sube lement (i) : The EPA’s rules regarding how SIPs would need to address requirements for source monitoring are contained in 40 CFR 51.212 (“Testing, inspection, enforcement, and compliance”). This EPA regulation requires SIPs to provide for a program of periodic testing and inspection of stationary sources, to provide for the identification of allowable test methods, and

to exclude any provision that would prevent the use of any credible evidence of noncompliance.
The infrastructure SIP submiss ion should describe the air agency’s program for source testing, reference the statutory authority for the air agency’s program, and certify the absence of any provision preventing the use of any credible evidence.

Sube lement (ii) : To address periodic reporting requirements, t he infrastructure SIP
submission should include air agency requirements providing for periodic reporting of emissions
and emissions

- related data by sources to the air agency, as required by the following emissi ons reporting requirements: 40 CFR 51.211 (“Emissions reports and recordkeeping”) ; 40 CFR
sections 51.321 thro ugh 51.323 (“Source Emissions and State Action Reporting”) ; and the EPA’s Air Emissions Reporting Rule, 40 CFR part 51, subpart A (“Air Emissions Reporting Requirements”). 56 We note that the section 51.321 requirement that emissions reports from states
be m ade through the appropriate EPA Regional Office has been superseded in practice, as these data are now to be reported electronically through a centralized data portal pursuant to 40 CFR

56 40 CFR sections 51.321 through 51.323 nominally address emission reporting but merely cross

- reference to subpart A.46

51.45(b), which refers to the website http://www.epa.gov/ttn/chief for the latest information on data reporting procedures

. However, states should consult with the appropriate EPA Regional Office as they prepare and submit these data. All states have existing periodic source reporting of emissions and emission inventory reporting practices. Thus for any new or revised NAAQS, t he infrastructure SIP may be able to certify existing authority and commitments and provide any additional assurance needed to meet changes in reporting and inventory requirements associated with the new or revised NAAQS.

Sube lement (iii) : The infrastructu re SIP submission should reference and describe existing air agency requirements that have been approved into the SIP by the EPA, or include air agency requirements being newly submitted, that provide for the following: (1) correlation 57 by the air agency o f emissions reports by sources with applicable emission limitations or standards ; and (2) the public availability of emission reports by sources. Under 40 CFR part 51 s ubpart G, 40 CFR 51.116 ("Data availability" ) , contains the requirements for correlating data. Correlation with applicable emissions limitations or standards is relevant only for those repo rts of source emissions that reflect the test method(s) and averaging period(s) specified in applicable emission limitations or standards. Thus, source reports of annual, ozone season, or summer day emissions used by the air agency to create the annual and triennial emission inventory submission to the
EPA under 40 CFR part 51 subpart A in general would not need to be correlated with specific
emission li mitations or standards, as many sources do not have applicable emission limitations defined for those averaging periods. However, if the sources have applicable emissions limitations that are defined for these averaging periods, then they would need to be correlated.

57 As defined in 40 CFR 51.116 (c), the term "correlated" means "presented in such a manner as to show the relationship between measured or estimated amounts of emissions a nd the amounts of such emissions allowable under the applicable emission limitations or other measures."47

Element G

– Section 110(a)(2)(G): Emergency P owers
Each such plan shall

– (G) p rovide for authority comparable to that in section 303 and adequate contingency plans to implement such authority

. Sec tion 303 of the CAA provides authority to the EPA Administrator to seek a court
order to restrain any source from causing or contributing to emissions that present an " imminent
and substantial endangerment to public health or welfare, or the environment. " The E PA has interpreted section 110(a)(2)(G) as impos ing two basic requirements for purposes of an
infrastructure SIP submission.

To meet Element G requirements, t he best practice for a n air agency submitting an
infrastructure SIP would be to submit, for incl usion into the SIP (if not already part of the SIP), the statutory or regulatory provisions that provide the air agency or official with authority comparable to that of the EPA Administrator under section 303 ( see , e.g. , 40 CFR 51.230(c) )
, along with a narrative explanation of how they meet the r equi rements of this element

. 58 If an air agency chooses not to include the relevant statute or regulation in its SIP, then the air agency
should provide a reference or citation to the authority provision s , along with a narrative explanation of how the provisions meet the requirements of this element, as well as a copy of the relevant authority to accompany the SIP as required by 40 CFR 51.231.

T he air agency is also required to submit, for approval into the SIP (if not already part of the SIP), a n adequate contingency plan to implement the air agency’s emergency episode authority. This ca n be met by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution Emergency Episodes”) for the relevant NAAQS if the NAAQS is covered by those regulations

.

The EPA’s subpart H regulations provide specific ambient levels for contingency plan purposes for most NAAQS. In the case of the 2006 PM 2.5 NAAQS, for which the EPA has not

58 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically enumerate specific activities but do impl icitly authorize the air agency to perform such activities, in which case inclusion of those provisions would meet the intent of this best practice.48

yet promulgated regulations that provide the ambient levels to classify different priority levels,
th e EPA has recommended these levels through guidance. 59

Subpart H includes criteria for classification of areas into priority regions, based on ambient air concentrations of the particular pollutant being addressed. The currently applicable priority classifications for regions for each state can be found in 40 CFR part 52 subparts B through DDD ( see sections titled “Classification of Regions ”). As noted above, the air agency ’s
infrastructure SIP submission would need to include the contingency plan, i f one is required and has not yet been approved by the EPA. If an area is classified as a Priority I, IA, or II region for a specified pollutant, then the infrastructure SIP should contain an emergency contingency plan meeting the specific requirements of 40 CFR 51.151 and 51.152, as appropriate, with respect to that pollutant. For such areas, the infrastructure submission should demonstrate that the air agency’s existing EPA

- approved SIP already contains an adequate contingency plan, if that is the

case; o therwise, the submission should include the substantive SIP revisions necessary to meet the emergency contingency plan requirements with respect to that pollutant.

Specifically, if an a rea is classified as a Priority I region for a specified pollutant, th e area’s contingency plan (with respect to that pollutant) would need to include provisions that trigger actions to prevent air quality concentrations from reaching a “significant harm level” (SHL), which represents an imminent and substantial endangerment to public health. See 40 CFR
51.151 and the more detailed explanation below. Each implementatio n plan for a P riority I, IA, or II region would need to include a contingency plan that provides for taking certain specified actions. Specifically, 40 CFR sections 51.152(b) and (c) state that:
(b) Each contingency plan for a Priority I region must provide for the fol lowing: (1) Prompt acquisition of forecasts of atmospheric stagnation conditions and of updates of such forecasts as frequently as they are issued by the National Weather Service. (2) Inspection of sources to ascertain compliance with applicable emission control action requirements.

59 See a memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS, to Regional Air D ivision Directors, Regions I through X, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS)

. ” (September 25, 2009).49

(3) Communications procedures for transmitting status reports and orders as to emission control actions to be taken during an episode stage, including procedures for contact with public officials, major emission sources, publ ic health, safety, and emergency agencies and news media. (c) Each plan for a Priority IA and II region must include a contingency plan that meets, as a minimum, the requirements of paragraphs (b)(1) and (b)(2) of this sectio n. Areas classified as Priorit y III do not need to develop episode plans.
To satisfy a Priority I, IA, or II region's contingency plan requirements under 40 CFR 51.152(b)(1) regarding forecasts of atmospheric stagnation conditions, an infrastructure SIP submission may cite existing ambient monitoring and forecasting networks (such as AIRNow ). 60

Areas that maintain air quality at ambient levels lower that the concentrations listed in
sections 51.150(b), (c), and (d), with respect to the pollutants lis ted, are classified as Priority III regions. These areas are subject to the requirements of CAA E l ement G. However, according to 40 CFR 51.152(c), areas c lassified as Priority III regions are not required to develop emergency episode plans, which the EPA has interpreted to mean the contingency plans otherwise required
under E lement G.

In a final rulema king signed on December 14, 2012, to revise the PM 2.5 NAAQS, t he
EPA retained the pre

- existing level of 500 μ g/m 3 , 24

- hour average, for the Air Quality Index (AQI) value of 500 and did not establish an SHL for PM 2.5 . 61 In addition, there is currently no

es tablished SHL for Pb. For those pollutants for which there is an SHL, t he SHL is an important part of air pollution Emergency Episode Plans . Even in the absence of an SHL, the EPA believes that the central components of a contingency plan would be to reduc e emissions from the source(s) at issue (if necessary by curtailing operations of Pb or PM 2.5 sources) and public communication as needed. In addition, if an air agency believes, based on its inventory of Pb or

60 The EPA, in partnership with National Oc eanic and Atmospheric Administration ( NOAA )
, National Park Service ( NPS )
, and tribal, state, and local agencies
, developed the AIRNow w eb site ( see http://www.airnow.gov ) to provide easy public access to national air quality information. The w ebsite offers daily AQI forecasts as well as real

- t ime AQI conditions for over 300 cities across the U

. S

. and provides links to more detailed s tate and local air quality

w ebsites.

61 See 78 FR 3086 (January 15, 2013), “National Ambient Air Quality Standards for Particulate Matter.” The published version is posted at http://www.gpo.gov/fdsys/pkg/FR

- 2013

- 01

- 15/pdf/20 12

- 30946.pdf

.50

PM 2.5 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 air agency could provide such a detailed rationale as part of it s SIP submission. Additionally, because smoke from fires has the potential to be the cause of extremely high levels of PM 2.5 , t he EPA recommends that air quality

- triggered

responses incorporated into an Emergency Episode Plan for PM 2.5 be developed through a collaborative process working with s tate and t ribal air quality, forestry
, and agricultural agencies,
f ederal land management agencies, private land managers
, and the public.

An episode in which concentrations of NO 2 or SO 2 approach the SHL is likely to be due to a single facility's equipment malfunction. Accordingly, as part of a SIP to satisfy a Priority I region's contingency plan requirements, an infrastructure SIP submission for an NO 2 NAAQS or
an SO 2 NAAQS may specify the facility

- specific or equip ment

- specific measures to be taken in
the event of an air pollution emergency.

In accordance with 40 CFR 51.1 52(d)(1) and (2)
, the Administrator may either : (i) exempt portions of a Priority I, IA, or II region that have been designated as attainment or
unclassifiable under section 107 of the CAA from the requirements of 40 CFR 51.152 to develop an emergency episode contingency plans, or (ii) limit the requirements pertaining to emiss ion control actions in Priority I regions to certain areas or to certain major sources

. Air agencies interested in such an exemption or limitation in appropriate circumstances should contact their respective EPA Regional Office s

.
Appendix L to 40 CFR part 51 provides example regulations that air agencies could use to develop contingency plans and inform decisions concerning air pollution emergency episodes. The example r egulations provided in appen dix L reflect generally recognized ways of preventing air pollution from reaching levels that would cause imminent and substantial endangerment to the health of persons located within affec ted areas. States with Priority I, IA, or II areas are directed by sub part H to have emergency episode contingency plans that contain alert levels for
SO 2 , PM 10 , carbon monoxide, NO 2 , and ozone, but air agencies are not required to adopt the appendix L example regulations.51

Element H

– Section 110(a)(2)(H): S IP R evisions

Each such plan shall

– (H) p rovide for revision of such plan

– (i) f rom 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

. To demonstrate that the requirements under Element H are met, the best practice for a n air agency submitting an infrastructure SI P would be to submit, for inclusion into the SIP (if not already part of the SIP), the statutory or regulatory provisions that provide the air agency or official with the authority to perform the following actions along with a narrative explanation of how they meet the requirements of this element : (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 at taining suc h standards; and (2) revise the plan in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS or otherwise meet all applicable CAA requirements. 62

If an air agency chooses not to include the relevant statute or regu lation in its SIP, then the air agency should provide a reference or citation to the authority provision s , along with a narrative explanation of how the provisions meet the requirements of this element, as well as a copy of the relevant authority to accomp any the SIP as required by 40 CFR 51.231. More information may be found u nder 40 CFR part 51, subpart F ("Procedural Requirements")
, specifically, 40 CFR 51.104 ("Revisions" )

.

62 The EPA recognize that some air agencies may have general authorizing provisions that do not specifically enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case inclusion of those provisions woul d meet the intent of this best practice.52

Element I

– Sectio n 110(a)(2)(I): Plan R evisions for N onattainment A reas
Each such plan shall

– (I) i n 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 earlier in this document, the EPA does not expect infrastructure SIP
submissions to address sub section 110(a)(2)(I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I part D , are s ubject to a different submission
schedule 63 than th ose for section 110 infrastructure elements and will be reviewed and acted upon through a separate process. Air agencies do not need to address Element I in an infrastructure SIP submission. For clarity’s s ake, to better inform the public comment process on the SIP submission, the air agency may wish to clearly state that Element I is not being addressed
and reiterate in the infrastructure SIP submission that
, according to the EPA’s interpretation of
the CAA this element does not need to be addressed in the context of an infrastructure SIP
submission

.

Element J

– Section 110(a)(2)(J): Consultation with G overnment O fficials, P ublic N otification, and PSD and V isibility P rotection

Each such plan shall

– (J) m ee t the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification), and part C (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 :

63 These elements are typically referred to as nonattainment SIP or attainment plan elements and are due by the dates prescribed under subparts 2 through 5 of part D, extending as far as 10 years following designatio n for some elements.53

Sec. 12 1. In carrying out the requirements of this Act requiring applicable implementation plans to contain

– (1) any transportation controls, air quality maintenance plan requirements or preconstruction review of direct sources of air pollution, or

(2) any measu re referred to

– ( A ) in part D (pertaining to nonattainment requirements), or (B) in part C (pertaining to prevention of significant deterioration), and in carrying out the requirements of section 113(d) (relating to certain enforcement orders), the S tate shall provide a satisfactory 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 State plan app lies, effective with respect to any such requirement which is adopted more than one year after the date of enactment of the Clean Air Act Amendments of 1977 as part of such plan. Such process shall be in accordance with regulations promulgated by the Admin istrator to assure adequate consultation. The Administrator shall update as necessary the original regulations required and promulgated under this section (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) t o ensure adequate consultation. Only a general purpose unit of local government, regional agency, or council of governments adversely affected by action of the Administrator approving any portion of a plan referred to in this subsection may petition for ju dicial review of such action on the basis of a violation of the requirements of this section.

The infrastructure SIP submission would need to show that there is an established proce ss for consultation with general

- purpose local governments, designated orga nizations of elected officials of local governments, and any federal land manager having authority over federal land to which the plan applies, consiste nt with CAA section 121 , which lists the specific types of
actions for which such consultation is required

. If the relevant statute is self

- executing such that
there is no associated regulation or other documents such as a m emorandum of u nderstanding
, then the statute would need to be included in the SIP. If a regulation or other document meeting
the C AA requirements exists, then the regulation or other document would need to be included in
the SIP submission
, and the authorizing statute should be referenced but the statute is not required to be part of the EPA

- approved SIP. Under the requirements of 40 CFR 51.240 , the SIP
would need to identify organizations “ that will participate in developing, implementing
, and enforcing the plan and the responsibilities of such organizations. ” The plan should also include54

any related agreements or memoranda of understanding among the organizations. See subpart M ("Intergovernmental Consultation")

.

Public Notification :

Section 12 7. (a) Each State plan shall contain measures which will be effective to notify the public during any calendar [year] on a regular basis of instances or areas in which any national primary ambient air quality standard is exceeded or was exceeded during any portion of the preceding calendar year to advise the public of the health hazards associated with such pollution, and to enhance public awareness of the measures which can be taken to prevent such standards from being exceeded and the ways in which the public can participate in regulatory and other efforts to improve air quality. Such measures may inc lude the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information. (b) The Administrator is authorized to make grants to States to assist in carrying out the requirements of s ubsection (a).

The infrastructure SIP submission would need to show that the air agency does the following: regularly notifies the public of instances or areas in which the new or revised primary NAAQS was exceeded; advises the public of the health hazards associated with such
exceedances ; and enhances public awareness of measures that can prevent such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. 40 CFR 51.285 ("Public notification" ) , repeats the language of CAA section 127.

Prevention of significant deterioration : The approvability of an air agency’s PSD program is essential to the approvability of an infrastructure SIP submission with respect to CAA
section 110(a)(2)(J). The requirements for Element J in relation to a comprehensive PSD permitting program are the same as described earl ier in th is document with respect to Element C. Generally, every PSD

- related requirement of Element C applies, including the requirement that
the PSD permitting program address all regulated pollutants. Please refer to that section.

Visibility protection : Under 40 CFR part 51 subpart P, implementing the visibility requirements of CAA title I, part C, states are subject to requirements for RAVI, new source review for possible impacts on air quality related values in Class I areas, and r egional h aze
p lanning

. Specific requirements stemming from these CAA sections are codified at 40 CFR55

part 51 subpart P. However, when the EPA establishes or revises a NAAQS, the se requirements
under part C do not change. The EPA believes that there are no new vis ibility protec tion requirements under part C as a result of a revised NAAQS. Therefore, there are no newly applicable visibility protection obligations pursuant to Element J after the promulgation of a new or revised NAAQS. Air agencies do not need to address the visibi lity subelement of Element J in an infrastructure SIP submission. For clarity’s sake, to better inform the public comment process on the SIP submission, the air agency may wish to clearly state that the visibility subelement of
Element J is not being addre ssed , and reiterate in the submission that according to EPA’s interpretation of the CAA this element does not need to be addressed.

Element K

– Section 110(a)(2)(K): Air Q uality M odelin g and S ubmission of M odeling D ata

Each such plan sha l l

– (K) provide f or

– (i) t he 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

.
T o meet Element K, t he best practice w ould be for an air agency to submit, for inclusion
into the SIP (if not already part of the SIP)
, the statutory or regulatory provisions that provide the air agency or official with the authority to perform the following actions along with a narrative explanation of how the provisions meet the requirements of this element 64 : (1) conduct air quality mode ling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA Administrator upon request.

64 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case inclusion o f those provisions would meet the intent of this best practice.56

If an air agency chooses not to include the relevant statute or regulations in its SIP, then the air agency should provide a reference or citation to the authority provision s , along with a narrative explanation of how th ey meet the requirements of this element , as well as a copy of the relevant authority to accompany the SIP as required by 40 CFR 51.231

.

Element L

– Section 110(a)(2)(L): Permitting F ees
Each such plan sha ll

– (L) r equire the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit re quired under this chapter , a fee sufficient to cove r

–

(i) t he 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 a nd 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

. Currently, every state has an EPA

- approved fee program under CAA title V. However, this fee program is not required to be part of the EPA

- approved SIP. The infrastructure SIP
should provide citations to the regu lations providing for collection of permitting fees under the
state’s EPA

- approved Title V permit program

. These citations to the EPA

- approved title V regulations will not cause the title V program to be treated as part of the EPA

- approved SIP, and
the EPA will not re

- review the title V program itself in the context of reviewing infrastructure
SIP submissions

. See 40 CFR 70.9 ("Fee determination and certification") and 40 CFR part 70,

a ppendix A (" Approval Status of State and Local Operating Permits Programs" )

. If the state
title V program fees cover all CAA permitting, implementation
, and enforcement for new and modified major sources as well as existing major sources, this reference to the t itle V program will satisfy this element. If a state’s approved title V permit program fees do not cover the reasonable costs of reviewing and acting upon applications for PSD and NNSR permits for major57

sources 65 (along with the reasonable costs of implementing a nd enforcing the terms and conditions of PSD and NNSR permits), then the air agency should contact its Regional Office regarding what needs to be in the submission to fulfill this Element.

E lement M

– Section 110(a)(2)(M): Consultation and P articipation by A ffected L ocal E ntities

Each such plan sha l l

– (M) p rovide for consultation and participation by local political subdivisions affected by the plan.
To satisfy Element M , the SIP should provide for consultation with affected local political subdivisions. As part of an infrastructure SIP submission, an air agency may simply identify its policies or procedures that allow and promote such consultation. For example, the infrastructure SIP submission may cite a policy wherein the air agency, befo re adopting or amending a plan, policy, or program, will consult with the regional planning coalition composed of local political subdivisions potentially affected by the action and explain how such information is used in the development of a SIP submissio n to the EPA for approval into the SIP. The normal public hearing process prior to adoption and submission of a SIP revision may also be cited as a component of the provisions for consultation, since leaders of political subdivisions have the opportunity t o participate in that public process.

For Further Information If you have any questions concerning this guidance, please contact Mr. H. L ynn Dail, by telephone at (919) 541

- 2363, or by email at dail.lynn@epa.gov , or Ms. Lisa Sutton, by telephone at (919) 541

- 3450 or by email at sutton.lisa@epa.gov

.

65 Substantive NNSR provisions will not be reviewed as part of the EPA’s action on the infrastructure SIP submission. See discussion in Section II, “Which e lements of CAA 110(a)(2) a ffect i nfr astructure SIPs ?”