# Technical Support Document

Evaluation of 201 3 Hawaii Infrastructure State Implementation Plan ( SIP )

for 2008 Lead (Pb) National Ambient Air Quality Standards ( NAAQS )

U.S. Environmental Protection Agency ( EPA ) , Region 9

September 201 31

B ACKGROUND 1

S ection 110(a)(1) and (2) of the Clean Air Act (CAA) requires states to address basic SIP requirements to implement, maintain and enforce the NAAQS no later than three years after the promulgation of a new or revised NAAQS. Many of the section 110(a)(2) SIP elements relate to the general information and authorities that constitute the "infrastructure" of a state's air quality management program and SIP submittals that address these requirements are referred to as “inf rastructure SIPs.”

On October 1 5

, 2008 , EPA issued a revised NAAQS for Pb

. 2 This action triggered a requi rement for states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within three years of issuance of the new or revised NAAQS. On October 14, 2011, EPA issued “ Guidance on Section 110 Infrastructure

SIPs for the 2008 Pb NAAQS .” 3

On February 13, 2013, the Hawaii Department of Health (HDOH) submitted the “ Hawaii State Imp lementation Plan Revision for 2008 Pb National Ambient Air Quality Standard

Clean Air Act section 110(a)(1) & (2) ” (Hawaii Pb Infrastructure SIP), which includes (1) an “Infrastructure SIP Certification of Adequacy

, ” (2) Hawaii Administrative Rules (HAR) s ection 11

- 60.1

- 90 ; (3) technical support documents concerning interstate transport under 110(a)(2)(D) and (4) other supporting materials. 4

On February 26, 2013, EPA found that Hawaii had failed to make a complete submittal to satisfy the requirements of section 110(a)(2) for the 2008 Pb NAAQS

. 5 Specifically, EPA

found Hawaii failed to submit the infrastructure SIP elements that relate to the prevention of significant deterioration (PSD ) program for the 2008 Pb NAAQS in CAA sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J)

. 6 We also explained that, because EPA had already promulgated a FIP that addresses PSD

- related requirements for Hawaii, the

1 Please see the preamble to our proposed rule “ Approval and Promulgation of State Implementation Plans; Hawaii; Infrastructure Requirements for the 2008 Lead National Ambient Air Quality Standard ” ( EPA

R09

- OAR

- 2013

- 0681 ) for additional information concerning the statutory and regulatory background for

this document

.

2 73 FR 66964 . The final rule was signed on October 15, 2008 and published in the Federal Register on November 12, 2008. The 1978 Pb standard (1.5 μg/m3 as a quarterly average) was modified to a rolling 3 month average not to be exceeded of 0.15 μg/m 3 . The EPA also rev ised the secondary NAAQS to 0.15 μg/m 3 and made it identical to the revised primary standard (73 FR 66964).

3 See Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Division Directors, Regions 1

- 10 (October 14, 2011).

4 A copy of the complete Hawaii Pb Infrastructure SIP submittal has been placed in the docket for this action and is available online at http://www.regulations.gov, docket number EPA

- R09

- OAR

- 2013

- 0681

.

5 78 FR 12961.

6 Id.2

finding of failure to submit would not trigger any additional PSD FIP obl igations for

Hawaii.

S UMMARY

This technical support document (TSD) summarizes EPA’s technical review of the

Hawaii Pb Infrastructure SIP in relation to the infrastructure SIP requirements (or

“ elements ”) of CAA section 110(a)(2) and 40 CFR Part 51

. 7 In this TSD , we first provide

an evaluation of HAR section 11

- 60.1

- 90 in relation to the general SIP requirements of

the CAA. Then, f

or each infrastructure SIP element we describe the requirements, provide the State’s response to the requirement 8 and prese nt our evaluation of the

submittal.

As explained above, we previously found the Hawaii Pb Infrastruct ure SIP incomplete with respect to the PSD

- related requirements of section 110(a)(2). Under CAA section 110(k)(1)(C), where EPA determines that a portion of a SIP submission is incomplete, “the State shall be treated as not having made the submission (or, in the Administrator's discretion, part thereof).” Accordingly, we are not acting on the Hawaii Pb Infrastructure

SIP with respect to t he PSD

- related req uirements of CAA sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J).

HAR S ECTION 11

- 60.1

- 90

CAA requirement(s) :

CAA section 110(a)(2) generally requires that SIP rules be enforceable. 9 CAA section 110(l) prohibits EPA from approving any revision of a SIP “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of [the Act].” We have evaluated this

HAR section 11

- 60.1

- 90 to determine whether it is enf orceable and whether it would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the Act

.

7 Two section 110(a)(2) requirements are considered by EPA to be outside the scope of infrastructure SIP actions because they pe rtain to plan requirements for nonattainment areas: (1) section 110(a)(2)(C) to the extent it refers to permit programs under part D; and (2) section 110(a)(2)(I) in its entirety. Therefore, this TSD does not address these requirements.

8 For each of the e lements, we provide the relevant excerpt from the Infrastructure SIP Certification of Adequacy , using italics to indicate direct quotations. In addition, for section 110(a)(2)(D), we provide a summary of the State’s technical support documents for this ele ment.

9 See CAA section 110(a)(2)(A) and (E).3

State of Hawaii response to this requirement:

HDOH provided the full te xt of HAR 11

- 60.1

- 90 in Attachment 2 to the Hawaii Pb

Infrastructure SIP

EPA Analysis:

HAR 11

- 60.1

- 90 requires all “covered source” 10 permits issued by HDOH to contain certain content, including monitoring, recordkeeping, and reporting provisions sufficient to represent a permitted source’s compliance status with each applicable emission limit.

SIP approval of HAR section 11

- 60.1

- 90 will enhance the enforce ability of other SIP

approved permit rules by ensuring that these requirements for inclusion of monitoring, recordkeeping and reporting are federally enforceable under the applicable SIP. Nothing

in section 11

- 60.1

- 90 interferes with Hawaii’s authority or capacity to carry out the implementation plan as required by CAA section 110(a)(2)(E). HAR section 11

- 60.1

- 90

also does not relax any applicable requirements and thus will not interfere with any existing SIP requirement , consistent with CAA section 110(l).

Therefore, we propose to approve HAR section 11

- 60.1

- 90 into the Hawaii SIP.

S ECTION 110( A )(2)(A): E MISSION L IMITS AND O THER C ONTROL M EASURES

CAA requirement(s) :

Section 110(a)(2)(A) requires SIPs to “include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable r equirements
of this Act.”

State of Hawaii response to this requirement:

Statutory provisions relevant to this element:

HRS section 342B

- 3 General functions, duties, and powers of the director 11

HRS section 342B

- 11 Prohibition

10 HDOH’s permitting program differentiates between covered and noncovered sources. Covered sources include all title V (part 70) major sources, all PSD major sources, all sources subject to a standard under

se ction 111 of the CAA, and all sources subject to a standard pursuant to section 112 of the CAA, excluding section 112(r)

.

11 As defined in HRS section 342B

- 1, the “director” means the director of health.4

HRS section 342B

- 12 Specific powers of the director

HRS section 342B

- 21 Specific functions, duties, and powers of the director

Hawaii Revised Statutes 342B

- 3, 342B

- 11, 342B

- 12, and 342B

- 21 give the department 12
the authority and duty to establish rules to prevent, control, an d abate air pollution and the emission of air pollutants 13 in the State. This includes establishing, administering and enforcing a permit program to ensure compliance with each applicable federal or state standard, regulation or requirement. The statutes al so grant specific powers for establishing rules to control sources of air pollution such as open burning, fugitive dust, visible emissions, vehicular smoke and other areas of air pollution to allow for varying

conditions.

Regulatory provisions relevant to this element:

HAR section 11

- 60.1

- 1 Definitions

HAR section 11

- 60.1

- 2 Prohibition of air pollution

 This rule specifies that no person shall engage in any activity which causes air pollution or causes or allows the emission of any regulated or hazardous air pollutant without first securing approval in writing from the director.

HAR section 11

- 60.1

- 15 Reporting of equipment shutdown

 This provision requires prior notification of the intent to shutdown air pollution control equipment but does not exempt sour ces from enforcement action if emissions occur as a result of a planned shutdown.

HAR section 11

- 60.1

- 16 Prompt reporting of deviations

 This requires sources to submit prompt notification if excess emissions occur as a result of the breakdown or malfunctio n of any emission unit, air pollution control equipment or related equipment but does not exempt sources from enforcement action if such excess emissions occur.

HAR section 11

- 60.1

- 32 Visible Emissions

 This sets visible emission limitations on stationary s ources. HAR section 11

- 60.1

- 34 Motor vehicle

 Restricts the emission of visible smoke from gasoline or diesel

- powered motor vehicles, the amount of time and location an engine may idle, and prohibits the dismantling or failure to maintain or operate any equ ipment or feature of a motor vehicle air pollution control system or mechanism that is required by the provisions of the Clean Air Act.

HAR section 11

- 60.1

- 90 Permit content (This is the initial submission of HAR section 11

- 60.1

- 90 for incorporation into H awaii’s SIP.)

12 As defined in HRS section 342B

- 1, the “department” means the department of health.

13 The statutory definition of “air pollutant’ has the same meaning as in the Clean Air Act, 42 U.S.C. section 7602(g).5

 Requires that all covered source permits consider and incorporate emission limitations and standards, including operational requirements and limitations to assure compliance with all applicable requirements at the time of permit issuance;

 Req uires the installation of devices for the measurement or analysis of source
emissions;

 Requires source emissions tests to determine compliance with terms and conditions of the covered source permit and applicable requirements;

 Requires recordkeeping and re porting requirements to assure compliance with all terms and conditions of the permit.

Discussion :

Additionally, 40 CFR section 51.117(a)(1) requires that each plan demonstrate attainment and maintenance of the lead standard in areas with the following point sources: Primary and secondary lead smelters, primary copper smelters, lead gasoline additive plants, and lead

- acid storage battery manufacturing plants. Hawaii does not have any of these identified sources of lead.

40 CFR section 51.117(a)(2) requ ires control strategy demonstration for any areas with lead concentrations in excess of the NAAQS since 1/1/74. Hawaii has been in attainment of the lead NAAQS since monitoring began in 1984. See Appendix E, “Hawaii Ambient Air Quality Lead Data: 1974

- 2010

. ”

EPA Analysis:

EPA approved all of the statutory provisions listed above into the Hawaii SIP as
part of our action on a SIP revision submitted by HDOH on December 14, 2011 to address the infrastructure requirements of CAA section 110(a)(2) for the 1997 8

- hour ozone NAAQS and the 1997 and 2006 NAAQS for PM 2.5 (2011 Hawaii Infrastructure SIP). 14 EPA has also approved all of the regulations lis ted above ( with the exception of

HAR section 11

- 60.1

- 90 ) into the Hawaii SIP. 15 The TSD accompanying our approval of

those rules explained how those regulations address CAA Section 110(a)(2)(A) by establishing enforceable emission limitations and other control measures

. This evaluation

is also relevant to Pb, since the statutes and regulations at issue ge nerally apply to any

“ air pollutant ” or “regulated air pollutant.” HRS 342B

- 1 and HAR section 11

- 60.1

- 1 adopt the definition of “air pollutant" section 302(g) of the CAA, 42 U.S.C. (g). Section 302(g), in turn, defines “air pollutant” as:

. . . any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material,

14 77 FR 47530 (August 9, 2012).

15 77 FR 25084 (April 27, 2012)

.6 special nuclear material, and byproduct material) substance or matter

which is emitted into or otherwise enters the ambient air

. . .

HRS 342B

- 1 and HAR section 11

- 60.1

- 1 define “regulated air pollutant” to include (among other things) any air pollutant for which a NAAQS has been adopted. Therefore, the previously

- approved statutory and regulatory provisions

cited in relation to CAA Section 110(a)(2)(A) also apply to Pb

.

In addition to these already

- approved SIP provisions , HAR section 11

- 60.1

- 90 will enhance the enforceability of other SIP

- approved permit rules by ensuring that these requirements for inclusion of mon itoring, recordkeeping and reporting in covered source permits are federally enforceable under the applicable SIP.

Therefore , w e propose to find that the Hawaii Pb Infrastructure SIP meet s the requirements of 110( a)(2)(A) for the 2008 Pb NAAQS

.

S ECTION 110( A )(2)(B): A MBIENT A IR Q UALITY M ONITORING / DATA S YSTEM

CAA requirement(s) :

Section 110(a)(2)(B) requires SIPs to “provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to

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

State of Hawaii response to this requirement:

Statutory provisions relevant to this element:

HRS section 342B

- 7(1) Annual Reports

Pu rsuant to this statute, the department is required to compile an annual report summarizing air quality data from all air quality monitoring stations.

Discussion :

On August 10, 1981, EPA approved an air quality surveillance plan as a revision to the Hawaii SIP, 46 FR 40512. On July 9, 2004, EPA approved an amendment to the state’s air quality surveillance network as a revision to the Hawaii SIP, 69 FR 41431.

Hawai i monitors for all criteria pollutants as required in 40 CFR Part 58 Appendix D.

L ead is monitored by an EPA approved Federal Reference Method at the Kapolei NCore

station.

The annual air monitoring network plans have been submitted in accordance with 40 CFR 58.10. The monitoring network is operated in accordance with 40 CFR 58 Appendices A,7

C, D, and E. The 2012 network plan was submitted by July 1, 2012, and included the lead monitoring information at the NCore station. The 2011 network plan was submitte d by July 1, 2011, and approved by EPA on October 31, 2011.

The annual data certification letter is submitted to the Administrator in accordance with

40 CFR 58.15.

All quality assured, validated data is submitted to EPA’s AQS in accordance with 40 CFR

58.16.

The annual data summary and annual network plan are provided for public viewing on the department’s website.

EPA Analysis:

On February 13, 2013 EPA approved Hawaii’ s 201 2 Annual Air Monitoring Network

Plan

. 16 This plan provides for an existing network of 12 monitors , which meet the technical requirements of 40 CFR 58, Subpart B.

The State of Hawaii submits data to AQS in accordance with the deadlines in 40 CFR

58.16. EPA's last Technical System Audit (TSA) of Hawaii was completed in 2011 and

f ound that Hawaii's operations met the requirements for collecting regulatory data. 17

We propose to find that the Hawaii Pb Infrastructure SIP meet s the requirements of CAA Section 110(a)(2)(B) for the 2008 Pb NAAQS.

S ECTION 110( A )(2)(C): P ROGRAMS FOR E NF ORCEMENT , PSD, AND NSR

CAA requirement(s) :

CAA s ection 110(a)(2)(C) requires SIPs to “include a program to provide for the enforcement of the measures described in [section 110(a)(2)(A)], and regulation of the modification and construction of any station ary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D [of Title I of the Clean Air Act].”

State of Hawaii response to this r equirement:

Sub

- element 1: enforcement of emissions limitations and other control measures

16 A copy of our approval letter is in th e docket for this rulemaking.

17 A copy of the TSA is in the docket for this rulemaking.8

Statutory provisions that provide the authority for this element:

HRS section 342B

- 15 Complaints; hearings; appointment of masters

 Allows for the receipt or initiation, investigation, and legal proceedings of complaints on air pollution.

HRS section 342B

- 41 Inspection of premises

 In accordance with the law, provides for the inspection or investigation of actual or suspected sources of air pollution to ascertai n compliance or noncompliance with any rule, standard or permit.

HRS section 342B

- 42 Enforcement

 Specifies the enforcement procedures on any person in violation of this chapter, rule or any issued permit or variance.

HRS section 342B

- 43 Emergency powers; p rocedures

 Provides emergency powers to the governor or director in the event that there is an imminent peril to public health and safety due to the release of any air pollutant or combination of air pollutants that requires immediate action.

HRS section 34 2B

- 44 Injunctive and other relief

 Allows the director to impose and collect civil and administrative penalties or obtain other relief.

HRS section 342B

- 45 Citation

 Any person who violates the vehicular smoke emission and open burning control rules may be i ssued a summons or citation for the violation.

HRS section 342B

- 46 Appeal

 Provides for the appeal process for an enforcement decision.

HRS section 342B

- 47 Civil penalties

 Sets fines for violations of the vehicular smoke emission rule, open burning

control rule, and any other rule or condition of an issued permit.

HRS section 342B

- 48 Administrative penalties

HRS section 342B

- 49 Criminal penalties

HRS section 342B

- 50 Disposition of collected fines and penalties

 Requires that all fines and penalties collected under this chapter be deposited into the environmental response revolving fund.

HRS section 342B

- 51 Enforcement by state and county authorities

HRS section 342B

- 52 Nonliability of department personnel

HRS section 342B

- 53 Other action not barred

H RS section 342B

- 54 Priority in courts

HRS section 342B

- 55 Consent orders; settlement agreements

Regulatory provision for the implementation of the statutory authorities:

HAR section 11

- 60.1

- 19 Penalties and remedies

 States that any person who violates any provision of this chapter or any term or condition of a permit shall be subject to the penalties and remedies provided in 342B sections 42, 44, 47, and 48.9

Sub

- element 2: regulation of the construction and modification of stationary sources

Statutory provisions that provide the authority for this element:

HRS section 342B

- 21 Specific functions, duties, and powers of the director

HRS section 342B

- 22 Permit and permit renewal; requirements

 Requires that the owner or operator of a covered source obtain a permit from the department.

HRS section 342B

- 23 Application for permit

HRS section 342B

- 24 Action on a permit application

HRS section 342B

- 25 Approval of permit

HRS section 342B

- 26 General and temporary permits; single permit

HRS section 342B

- 27 Other permit action

 Provides conditions under which the director may terminate, modify, suspend, or revoke and reissue any permit.

HRS section 342B

- 28 Recordkeeping and monitoring requirements

HRS section 342B

- 29 Fees

HRS section 342B

- 30 Judicial review

HRS sect ion 342B

- 31 Government records; confidential information

HRS section 342B

- 32 Clean air special fund

HRS section 342B

- 33 Minimum permit conditions

HRS section 342B

- 34 Exceptions

 The construction and modification of stationary sources in Hawaii is primarily regulated through the Hawaii Administrative Rules section 11

- 60.1 which encompasses the covered source permit program and have been approved into
Hawaii’s SIP. See 77 FR 24148 and 77 FR 25084.

Regulatory provisions for the implementation of the statutory authorities include:

HAR section 11

- 60.1

- 1 Definitions

HAR section 11

- 60.1

- 2 Prohibition of air pollution

HAR section 11

- 60.1

- 3 General conditions for considering applications

HAR section 11

- 60.1

- 5 Permit conditions

 Allows the director to impose more restrictive conditions in a permit to further limit the air pollutants and operation of the source.

HAR section 11

- 60.1

- 7 Transfer of permit

 Except for temporary permits issued pursuant to this chapter, this rule prohibits the transfer of a permit fr om one person to another or from one location to another without approval from the director.

HAR section 11

- 60.1

- 11 Sampling, testing, and reporting methods

HAR section 11

- 60.1

- 12 Air quality models

HAR section 11

- 60.1

- 14 Public access to information

HAR s ection 11

- 60.1

- 81 Definitions

 Covers the definitions used for the covered source program.10

HAR section 11

- 60.1

- 82 Applicability

HAR section 11

- 60.1

- 83 Initial covered source permit application

HAR section 11

- 60.1

- 84 Duty to supplement or correct permit appl ications

HAR section 11

- 60.1

- 90 Permit content (This is the initial submission of HAR section 11

- 60.1

- 90 for incorporation into Hawaii’s SIP.)

 Lists elements to be considered and incorporated into all covered source permits as applicable, including (but not limited to):

o Emission limitations and standards, including operational requirements;

o Requirements for the installation of measurement devices for source emissions or ambient concentrations of air pollutants;

o Requirement for source emissions tests or alternative testing methodologies;

o Monitoring and recordkeeping requirements

HAR section 11

- 60.1

- 91 Temporary covered source permits

 Requires owners or operators of a temporary covered source to certify its intention to operate at various locations with th e same equipment and similar operational

methods.

HAR section 11

- 60.1

- 92 Covered source general permits

 Governs the issuance of general permits for similar nonmajor covered sources.

HAR section 11

- 60.1

- 93 Federally

- enforceable permit terms and conditions

 S tates that terms and conditions in a covered source permit are federally enforceable.

HAR section 11

- 60.1

- 99 Public participation

HAR section 11

- 60.1

- 103 Applications for minor modifications

 Every application for a minor modification to a covered source is required to submit sufficient information to enable the director to make a decision on the application. Some of the information required include:

o A clear description of all changes;

o A statement of why the modification is determined to be minor;

o Maximum em ission rates;

o The identification of any new applicable requirements that will apply if the minor modification occurs.

HAR section 11

- 60.1

- 104 Applications for significant modifications

 This rule states that every application for a significant modification to a covered source is subject to the same requirements as for an initial covered source permit application pursuant to 11

- 60.1

- 83 as it pertains to the proposed significant modification.

Discussion :

EPA determined that Hawaii’s SIP did not include approvable procedures for preventing significant deterioration of air quality. Therefore EPA incorporated 40 CFR 52.21 into the applicable Hawaii plan, see 40 CFR 52.632(b). DOH has been delegated the authority to implement the provisions of 40 CFR 52.21 s ince 1983.11

EPA Analysis:

CAA section 110(a)(2)(C) consist of three sub

- elements: enforcement, state

- wide regulation of new and modified minor sources and minor modifications of major sources ( i.e. minor source NSR) , and pre

- construction 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 source PSD program)

. 18 As explained above, we are not acting on the Hawaii Pb Infrastructure SIP with respect to the major

source PSD permitting program. Therefore, we are evaluating only the enforcement and

minor source NSR sub

- elements of 110(a)(2)(C)

.

On April 27 , 2012, EPA approve d a number of DOH regulations, including several of those cited by Hawaii in re l a tion to 110(a)(2)(C) , into the applicable SIP

. 19 The TSD for those rules provides further analysis with respect to how the submitted regulations

address the enforcement program requirement of 110(a)(2)(C).

I n addition, on April 23 , 2012, EPA approve d into the Hawaii SIP additional regulations

that update and replace Hawaii’s existing minor new source review (minor NSR) rules

, including the remainder of the regulations listed above ( with the exception of HAR

section 11

- 60.1

- 90 )

. 20 The TSD s for those rules provides further analysis with respect to how the submitted regulations address CAA Section 110(a)(2)(C). As explained under section 110(a)(2)(A) above, these analyses are also relevant to Pb, since the statutes and regulations at issue general ly apply to any “air pollutant” or “regulated air pollutant.”

In addition to these already

- approved rules

, HAR section 11

- 60.1

- 90 , which we are proposing to approve as part of this action, will enhance the enforceability of other SIP

approved permit rules by ensuring that these requirements for inclusion of monitoring, recordkeeping and reporting in covered source permits are federally enforceable under the applicable SIP.

Based on those a nalys e s, we propose to find that the Hawaii Pb Infrastructure SIP meets
the enforcement and minor NSR requirements of 110(a)(2)(C) with respect to the 2008 Pb NAAQS

.

18 As explained above, EPA interprets the portion of section 110(a)( 2)(C) that pertains to a permitting program that applies to nonattainment NSR 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 under part D, in title I of the CAA.

19 77 FR 25084.

20 77 FR 24148.12

S ECTION 110( A )(2)(D): I NTERSTATE T RANSPORT P ROVISIONS

CAA requirement(s) :

CAA Section 110(a)(2)(D) requires SIPs to: “contain adequate provisions

— (i) prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in

amounts which will

— (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the appli cable implementation plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility. (ii) Each such plan shall contain adequate provisions insuring compliance with the applicable requir ements of sections 126 and 115 (relating to interstate and international pollution abatement).”

State of Hawaii response to this requirement:

Statutory provision relevant to this element:

HRS §342B

- 11 Prohibition

This states that no person shall engage in any activity which causes air pollution or causes or allows the emission of any regulated air pollutant without first securing approval in writing from the director.

Regulatory provision relevant to this element:

HAR §11

- 60.1

- 2 Prohibition of air pol lution

Discussion :

As noted in Section 110(a)(2)(C) above, EPA determined that Hawaii’s SIP did not include approvable procedures for preventing significant deterioration of air quality. Therefore EPA incorporated 40 CFR 52.21 into the applicable Hawaii plan, see 40 CFR 52.632(b). DOH has been delegated the authority to implement the provisions of 40 CFR 52.21 since 1983. Hawaii is the most isolated state in the country, located approximately 2,292 miles from Alaska and 2,395 miles from California. Inter nationally, Vancouver, Canada lies approximately 2,709 miles northeast of Hawaii, Mexico City 3,789 miles to the east and Tokyo, Japan 3,862 miles to the northwest.

The prevailing winds for the state come from the northeast direction which would generally transport air pollutants southwest, away from the continental United States.13

The Republic of the Marshall Islands and the Independent State of Samoa are the nearest downwind nations lying approximately 1,986 and 2,591 miles, respectively, from Hawaii.

The nearest downwind continent is Australia, about 4,080 miles southwest of Hawaii. EPA has determined that due to the physical properties of lead, unless there is a large source in close proximity to a state boundary, it is unlikely to significantly contribu te to nonattainment or interfere with maintenance by any other state. Due to Hawaii’s low lead emissions (only 0.3% of the 2008 National Emissions Inventory) and distance from any other state or nation it is highly unlikely emissions would contribute to

no nattainment or interfere in any maintenance plan. According to the 2010 NEI, the largest lead emitter was Covanta Honolulu Resource Recovery Venture with 0.3856 tons/year.

In addition to the foregoin g
, Hawaii supplied three technical support documents (At tachments 3, 4 and 5 of the Hawaii Pb Infrastructure SIP ) that support its conclusions regarding CAA section 110(a)(2)(D). These documents are summarized in the following paragraphs and figures.

1. Hawaii’s Geographic Location

The State of Hawaii lies approximately 2,390 miles southwest of the Continental United States and about 3,850 miles from Japan. The State of Hawaii lies approximately 2,390 miles from the nearest nonattainment area for lead, the Los Angeles non

- attainment area

, as shown in Figure 1 : Hawaii's Geographic Location Relative to the Continental United

States , below. The State of Hawaii also lies approximately 2,390 miles from the nearest attainment area for lead, Santa Barbara.14

Figure 2 : Hawaii's Geographic Location Relative to the Continental United States

2. The Trade Wind Pattern

T he trade wind pattern over the Pacific Ocean is one of the largest and most consistent

w indfields in the world

. Present from 85% to 95% of the time in the summer, and from 50% to 80% of the time in the winter [Sanderson, 1993], the northeast trades prevail over the islands throughout the year. Becaus e of Hawaii’s geographic location, the

p redominant northeast trade winds would generally transport air pollutants away from the

Continental United States

.

3. T he National Emissions Inventory (NEI) data

The NEI is prepared every three (3) years by EPA. The NEI is based primarily on emission estimates and emission model inputs provided by State, Local, and Tribal air agencies for sources in their jurisdictions, and supplemented by data developed by EPA. The NEI data discussed below is NEI 2008, Version 1 .5, released on May 16, 2011.

Figure 2: 2008 NEI version 1.5 Pb emissions for Hawaii , below, is a graph which depicts

lead emissions for Hawaii. Figure 3: 2008 NEI version 1.5 Pb emissions data for the

United States , below, is a graph which depicts lead emissions for the United States. According to Figure 2, Hawaii emitted three (3) tons of Pb in 2008, which is 0.3% of the 1,016 tons per year emitted nationally as shown in Figure 3. Figure 4: 2008 actual Pb

emissions data for Hawaii , below, sh ows the actual Pb emissions data for facilities in Hawaii. HPOWER, located on the Island of Oahu, has Pb emission s of 0.57 tons per year. Los Angeles South Coast Air B asin,
Nonattainment Area

~ 2,390 miles

N

E

S W15

The Chevron Hawaii Refinery, and HECO Kahe Power plant, both located on the Island of Oahu, have Pb emissions of 0.20 tons per year, and 0.18 tons per year respectively.

Hawaii’s low total Pb emissions, combined with Hawaii’s distance from the closest state, make it highly unlikely Hawaii’s Pb emissions would significantly contribute to nonattainment in any other sta te.

Figure 2: 2008 NEI version 1.5 Pb emissions for Hawaii16

Figure 3: 2008 NEI version 1.5 lead emissions data for the United States17 Facility Island Emissions (tons/year)

HPOWER Oahu 0.57 Chevron Hawaii Refinery Oahu 0.20

HECO

– Kahe Power Plant Oahu 0.18 Kalaeloa Cogeneration Plant Oahu 0.09

HC&S

– Puunene Sugar Mill Maui 0.09

HECO

– Waiau Power Plant Oahu 0.07

MECO

– Maalaea Generating Station Maui 0.05

MECO

– Kahului Power Plant Maui 0.04

KIUC

– Port Allen Generating Station Kauai 0.03 Tesoro Refinery Oahu 0.02

HELCO

– Kanoelehua Hill Generating

Station Hawaii 0.02

HECO

– Honolulu Generating Station Oahu 0.01

HELCO

– Keahole Power Plant Hawaii 0.01

HELCO

– Puna Power Plant Hawaii 0.01 AES Hawaii, Inc. Oahu 0.01

MECO

– Palaau Power Plant Molokai 0.00

MECO

– Miki Basin Power Plant Lanai 0.00

HELCO

– Shipman Power Plant Hawaii 0.00 Maui Pineapple Co. Maui 3.74E

- 4 Ameron Hawaii Kapaa Quarry Oahu 2.18E

- 4

HELCO

– Waimea Power Plant Hawaii 1.73E

- 4

Ameron Hawaii Camp 10 Quarry Maui 1.40E

- 5 Figure 4: 2008 actual Pb emissions data for Hawaii

4. Modeled Pb Air Quality from the H ighest Emitting S ources.

Hawaii DOH modeled the air quality concentrations of the top three (3) Pb emitting point source facilities: 1) Covanta Honolulu Resource Recovery Venture (HPOWER)

, 2)

Chevron Hawaii Refiner y, and 3) Hawaiian Electric Company (HECO)

– Kahe Power

Plant

, as well as the highest mobile source sector, aircraft. The sources used in th e A ir Quality Impact Analysis account for 87% of the total Pb emissions for the State of

Hawaii.

Figure 5: 3

- Month Maximum Concentrations (Wide View)

, and Figure 6: 3

- Month Maximum Concentrations (Close

- up View) , below, show the concentration isop leths of the

maximum 3

- month concentrations by receptor. As the figures illustrate, the maximum impact of the Pb emissions is located just offshore of the island of Oahu , and the impact is limited to the area directly to the south of the island. This suppo rt s the assertion that it is highly unlikely Hawaii’s Pb emissions would contribute to nonattainment or interfere in any maintenance plan of the Continental United States

.18

Figure 5: 3

- Month Maximum Concentrations (Wide View)

Figure 6: 3

- Month Maximum Concentrations (Close

- up View) Chevron Hawaii Refinery

HECO

- Kahe

H NL

Chevron Hawaii Refinery

HPOWER HECO

- Kahe HPOWER

HNL19

5. Hawaii DOH’s Conclusion

Hawaii DOH concludes that, d ue to Hawaii’s remote distance, the prevailing wind
direction, relatively low emissions , and low modeled impact, Hawaii’s sources will not
contribute significantly to nonattainment in, or interfere with maintenance by, any other
State with respect to any s uch national primary or secondary ambient air quality standard

for Pb.

EPA Analysis:

1. Analysis of Section 110(a)(2)(D)(i)(I) Requirements

CAA Section 110(a)(2)(D)(i) requires SIPs to “contain adequate provisions prohibiting . .

. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard.” These two requirements are referred to as prong 1 ( "significant contribution to nonattainment") and prong 2 ( " interference with maintenance") of the interstate transport requirements of 110(a)(2)(D)(i)

.

In 2012, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) held that

states are not required to submit 110(a)(2)(D)(i)(I) SIPs until EPA has quantified their obligations under that section

. See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted , 2013 U.S. Lexis 4801 (2013). On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to review

this D.C. Circuit decision. However, at this time the D.C. Circuit decision remains in place and, in accordance with that decision, EPA is not treating the 110(a)(2)(D)(i)(I) SIP submission from Hawaii as a required SIP submission. Regardless of whether a particular SIP submission is considered “required,” section 110(k)(2) of the CAA requires EPA to

act on the submission. Therefore, EPA is proposing to act on the portion of Hawaii’s SIP submission that addresses the requirements of section 110(a)(2)(D)(i)(I).

a. Section 110(a)(2)(D)(i)(I) Prong 1 ( Significant C ontribution to Nonattainment )

.

To address the requirements of Section 110(a)(2)(D)(i)(I), DOH submitted an analysis of

the NEI for Pb , and a modeling assessment of all sources with Pb emissions above 0.1
tons per year.

DOH presents a comparison of the level of Pb emissions for Hawaii and for the United States of America, shown above . Given the State of Hawaii’s relatively small emission inventory for Pb , and the large distance (approximately 2,390 miles) to the nearest non

attainment area (Los Angeles), EPA proposes to find that DOH reasonably co ncludes that

Hawaii does not contribute to any exceedance of the Pb NAAQS in another State.20

Based on the analysis presented in the plan, EPA propose s to approve the Hawaii Pb

Infrastructure SIP with respect to prong 1 of CAA Section 110(a)(2)(D)(i)(I) fo r the 2008

Pb NAAQS.

b. Section 110(a)(2)(D)(i)(I) Prong 2 ( I nterfere with Maintenance )

.

To address the requirements of Section 110(a)(2)(D)(i)(I), DOH submitted an analysis of

the NEI for Pb , and a modeling assessment of all sources with Pb emissions above 0.1
tons per year.

DOH presents a comparison of the level of Pb emissions for Hawaii and for the United States of America, shown below. Given the State of Hawaii’s relatively small emission inventory for Pb , and the large distance (approximately 2,390 miles) to the nearest attainment area ( Santa Barbara ), EPA proposes to find that DOH reasonably concludes

that P b emissions from the State of Hawaii do not interfere with maintenance of the Pb NAAQS in another any other State.

Based on the analysis presented in the plan, EPA propose s to approve the Hawaii Pb Infrastructure SIP with respect to prong 2 of CAA Section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.

2. Analysis of Section 110(a)(2)(D)(i)(I I ) Requirements

Section 110(a)(2)(D )(i)(II) requires SIPs to “contain adequate provisions prohibiting . . .

any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility.” These two requirements are referred to as prong 3 (PSD) and prong 4 (protection of visibility) of the interstate transport requirements of 110(a)(2)(D)(i).

As explained above, we are not taking action with respect to prong 3 (i.e. the requirement in CAA section 110(a)(2)(D)(i)(II) not to interfere with measures to prevent significant

deterioration ).

With respect to prong 4, Hawaii did not specifically address 110(a)(2)(D)(i)(II) in its technical demonstrations regarding interstate transport. However, these demonstrations,
as well as Hawaii’s discussion i n its certification of adequacy, are relevant to prong 4 as

well.

Hawaii is currently subject to two visibility protection FIPs

– one to address reasonably attributable visibility impairment (RAVI) (i.e. visibility impairment that is caused by the emissions of air pollutants from one , or a small number of sources) 21 and o ne to address

21 See 40 CFR 52.633(a)

- (c).21

regional haze ( visibility impairment that is produced by a multitude of sources and

activities that emit visibility

- impairing pollutants and their precursors and which are

located across a broad geographic area). 22 However, neither of these FI Ps regulate Pb. Furthermore, as a general matter, EPA has found that Pb

- related visibility impacts at Class I areas are insignificant (e.g., less than 0.10%). 23 Therefore, the existence of these two FIPs does not indicate any deficiency of the Hawaii SIP wi th respect to visibility impacts resulting from the transport of Pb.

We also note that EPA include d Hawaii in the regional haze program was “because of the potential for emissions from sources within [its] borders to contribute to regional haze impairmen t in Class I areas also located within [Hawaii’s] own jurisdiction ." 64 FR at 35720 (emphasis added). This rationale differs from that applicable to most other states covered by the rule, which were included because of the potential for emissions from

sour ces within their borders to contribute to regional haze impairment in Class I areas

outside of their own jurisdiction (i.e., in downwind states). In other words, at the time the Regional Haze Rule was promulgated, EPA did not believe that sources in Hawaii were emitting air pollutant in amounts that would interfere with protection of visibility by other states. We are not aware of any new facts that would disturb this conclusion.

Therefore, we propose to find that the Hawaii Pb Infrastructure SIP meets th e visibility protection requ irements (prong 4) of 110(a)(2)(D)(i)(II) with respect to the 2008 Pb NAAQS.

3 . Analysis of Section 110(a)(2)(D)( ii ) Requirements

As explained above, we are not taking action with respect to the requirement for

notifications to other states in CAA section 110 (a)(2)(D)(ii).

S ECTION 110( A )(2)(E): A DEQUATE P ERSONNEL , F UNDING , AND A UTHORITY , S TATE
B OAR DS AND A DEQUATE I MPLEMENTATION BY L OCAL G OVERNMENTS

CAA requirement(s) :

CAA Se ction 110(a)(2)(E) requires SIPs to “ provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose ) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out

22 See 40 CFR 52.633(d).

23 Analysis by Mark Schmidt, OAQPS, “ The Estimated Contribution of Ambient Lead (Pb) to Class I Area Visibility Impairment ,” November 7, 2011.22

such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the impleme ntation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision.”

State of Hawaii response to this requirement:

Sub

- element (i): adequacy of personnel, funding, and authority to carry out an impleme ntation plan

Statutory provisions that provide the legal authority for implementation:

HRS section 342B

- 2: Administration

 Specifies that the department shall administer this chapter through the director who may delegate to any person the power and author ity vested in the director by this chapter as the director deems reasonable and proper for the effective administration of this chapter, except the power to make rules.

HRS section 342B

- 3 General functions, duties, and powers of the director

 Provides the director the authority to: (a) prevent, control, and abate air pollution and the emission of air pollutants in the

state; (b) adopt, amend, and repeal state rules controlling and prohibiting air pollution and the release of air pollutants or as otherwise necessary for the purposes of this chapter; and, (c) appoint hearings officers to conduct contested case hearings and public participation activities, including public hearings and public informational meetings.

HRS section 342B

- 12 Specific powers of the d irector

 Identifies additional specific powers of the director to administer and manage the air program.

Discussion :

The entire air program is administered and managed at the state level by the Department of Health, Environmental Health Administration, En vironmental Management Division, Clean Air Branch with support services provided by the State laboratories Division, Air Surveillance and Analysis Section.

The majority of the program’s funding is obtained through the collection of fees from the regulated community and placed into a special fund with the sole purpose of developing and administering the air program. State matching and federal grant monies provide the remainder of funding support. Funding is reviewed annually to ensure adequacy for

program o

perations. The state does not rely on any local or regional government agency or entity for the implementation of any SIP provision. In fiscal year 2012, the available23

funds for the air program has been over $6 million dollars. At the present time, this fu nding is adequate.

Sub

- element (ii): ensure compliance with State Board requirements

The department does not have a State Board within the meaning of CAA section 128. The director is provided the authority to administer all aspects of the air program thr ough

HRS section 342B

- 2 and HRS section 342B

- 3. Provisions in HRS section 84 (Standards of Conduct) prescribes a code of ethics for elected officers and public employees of the state and is administered by the State Ethics Commission. Standards of conduct and conflict of interest provisions included in this chapter are as follows:

HRS section 84

- 1 Construction

 This chapter shall be liberally construed to promote high standards of ethical conduct in state government.

HRS section 84

- 2 Applicability

 This chap ter applies to every nominated, appointed, or elected officer, employee, and candidate to elected office of the State.

HRS section 84

- 3 Definitions

HRS section 84

- 11 Gifts

HRS section 84

- 11.5 Reporting of gifts

HRS section 84

- 12 Confidential information

HRS section 84

- 14 Conflicts of interests

 This rule prohibits an employee from taking any official action directly affecting: 1) a business or other undertaking in which there is a substantial financial interest or, 2) a private undertaking in which the employee serves as legal counsel, advisor, consultant, representative, or other capacity. This rule also prohibits an employee from acting or assisting on behalf of any person or business for a fee or other compensation if the employee is involved in any o fficial capacity.

HRS section 84

- 17 Requirements of disclosure

HRS section 84

- 18 Restrictions on post employment

 Prohibits state employees within 12 months after separation of service from representing any person or business for a fee or other consideratio n, on matters in which the former employee participated in an official capacity.

Sub

- element (iii): implementation of the plan by local or regional government, agency, or instrumentality

The state Department of Health is solely responsible for administer ing the air program. The state does not rely on any other local or regional government, agency, or instrumentality for the implementation of the plan.24

EPA Analysis:

Sub

- element (i)

As part of our action on Hawaii’s 2011 Infrastructure SIP, EPA approve d into the applicable SIP all of the statutory provisions cited by DOH in relation to CAA section 110(a)(2)(E)(i), section as well as various other statutory provisions. 24 We also

determine d that these provisions provide d necessary assurances that Ha waii ha d adequate authority under State law to carry out its SIP and is not prohibited by any provision of Federal or State law from carrying out such implement ation plan or portion thereof. 25 We
now propose to make the same determination with respect to th e 2008 Pb NAAQS

.
Hawaii has certified that in 201 2

, there is an overall budget of over $6 million and that this is adequate funding and personnel to implement the Pb NAAQS.

W e propose to find that the Hawaii Pb Infrastructure SIP meets the requirements of CAA

section 110(a)(2)(E)(i) for the 2008 Pb NAAQS.

Sub

- element (ii)

CAA section 128 (a) provide s that:

Not later than the date one year after August 7, 1977, 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 enf orcement orders under this Act, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately

disclosed.

42 U.S.C. 7428. States are allowed to adopt “any requirements ... which are more stringent,” and the Administrator is required to “approve any such more stringent requirements.”

With respect to 128(a)(1), Hawaii does not have a “board or body which approves permits or enforcement orders” under the CAA. Instead

, the Dir ec tor of H DOH is vested

24 See 77 FR 47530 (August 9, 2012). A list of these statutory provisions and their complete text are found in Attachment 1 and Appendix A of the 2011 Hawaii Infrastructure SIP, respectively

.

25 See “EPA Region IX, Technical Support Document: Evaluation of 2011 Hawaii Infrastructure SIP for 1997 Ozone; 1997 Particulate Matter; and 2006 Particulate Matter NAAQS” (March 2012)(2011 Hawaii Infrastructure SIP TSD).25

with the authority to approve permits and enforcement orders. See, e.g., HRS section

342B

- 21 & 342B

- 42.

A s part of its 2011 Infrastructure SI P, section Ha waii submitted for incorporation into the

SIP several provisions of state law that set forth standards of conduct for government employees (HRS Chapter 84). In particular, HRS section 84

- 17(c)(2) requires “[t]he directors and their deputies, the division chiefs, the executive directors and the executi ve secretaries and their deputies . . . regardless of the titles by which the foregoing persons are designated, of every state agency and department” to “ file annually with the state

ethics commission a disclosure of financial interests

. ” 26 Pursuant to HRS section 84

- 17(d) (2), these financial disclosure statements are public records and available for inspection and duplication. In addition, under HRS section 84

- 11.5

, all state employees are required to file a n annual “ gifts disclosure statement ” w ith the state ethics commission, if they (or their spouse or dependent child) receive gifts meeting certain

conditions.

As part of our action on Hawaii’s 2011 Infrastructure SIP, EPA approved these provisions into the applicable implementation plan for H awaii and determined that the y met the requirements of CAA section 110(a)(2)(E)(ii) for the NAAQS addressed by that

action

.

We now propose to determine that these provisions also meet the requirements of CAA

section 110(a)(2)(E)(ii) for the 2008 Pb NAAQS

.

Sub

- element (iii)

Hawaii’s SIP submittal indicates that DOH does not currently rely on any local or regional government, agency, or instrumentality for the implementation of any plan provision. We note that HRS section 342B

- 51 provides that “all state and county health authorities and police officers shall enforce this chapter and the rules, orders, and permits of the department.” T his enforcement authority is concurrent with DOH ’s enforce ment authority, as set forth in HRS Chapter 342B, Part IV. Therefore, any shortcoming in implementation by local officials c ould be easily remedied through the exercise of DOH’s own enforcement authority. Accordingly, we propose to find that Hawaii has met the requirements of CAA section 110(a)(2)(E)(iii) for the 2008 Pb NAAQS

.

26 Under HRS section 84

- 3, “f inancial interest” is defined as: an interest held by an individual, the individual's spouse, or dependent children which is: (1) An ownership interest in a business. (2) A creditor interest in an insolvent business. (3) An employment, or prospective employment for which negotiations have begun. (4) An ownership interest in real or personal property. (5) A loan or other debtor interest. (6) A directorship or officership in a business.26

S ECTION 110( A )(2)(F): S TATIONARY S OURCE M ONITORING AND R EPORTING

CAA requirement(s) :

CAA Section 110(a)(2)(F), provides that each SIP:

shall require, as may be prescribed by the Administrator

— (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emission s and emissions

- related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public insp ection.

State of Hawaii response to this requirement:

Sub

- element (i): requirements to monitor emissions

Statutory provision relevant to this element:

HRS section 342B

- 28 Recordkeeping and monitoring requirements

 Provides the director with the authority to require an owner or operator of any source on a continuous, periodic, or one

- time basis to: (1) Establish, maintain, and submit records; (2) Draft reports; (3) Install, use, and maintain monitoring equipment, and use audit procedures or methods; (4) Sample emissions in accordance with such procedures or methods, at locations, intervals, during periods, and in the manner prescribed by the director; (5) Keep records on the source and the control equipment parameters, production

variable s, or other indirect data when direct monitoring is impractical; (6) Sample and analyze the composition of the fuel, waste, or other products being burned or incinerated; (7) Submit compliance certifications; and, (8) Provide other information as the department may require.

Regulatory provisions applicable to this element include:

HAR section 11

- 60.1

- 11 Sampling, testing, and reporting methods

 This rule specifies that: (a) all sampling and testing be made and results calculated in accordance with EPA reference methods or as approved by the director;27 (b) the department may conduct emission tests of air pollutants or require the source to conduct tests at the owner or operator’s expense; (c) the director may require the source to maintain files o n process information, nature, amount, and time periods or durations of emissions or any other information deemed necessary to determine compliance with applicable limits, national or state ambient air quality standards, or other provisions of this chapter ; (d) the information be summarized and reported to the director as specified in the permit; (e) the reports be retained for a specified time period; and (f) the owners or operators correlate applicable emission limits and other requirements in the r eport.

HAR section 11

- 60.1

- 90 Permit content (This is the initial submission of HAR section 11

- 60.1

- 90 for incorporation into Hawaii’s SIP.)

 The following conditions within this provision require covered source permits to

include: (5) a requirement for the installation of devices for the measurement or analysis of source emissions or ambient concentrations of air pollutants; (6) a condition for source emissions tests or alternative methodology to determine compliance with permit conditions and applicab le requirements; (7)(B) monitoring and related recordkeeping and reporting requirements to assure compliance with terms and conditions of the permit; (7)(D) a requirement to install, use, and maintain monitoring equipment.

Sub

- element (ii): periodic reports on emissions and emissions

- related data

Statutory provision relevant to this element:

HRS section 342B

- 7 Annual reports

 Pursuant to this statute, the department must compile, among other things, a report summarizing annual criteria pollutant emis sions and all completed or issued enforcement actions.

HRS section 342B

- 28 Recordkeeping and monitoring requirements

 Regulatory provisions applicable to this element include:

HAR section 11

- 60.1

- 11 Sampling, testing, and reporting methods

HAR section 11

- 60 .1

- 90 Permit content (This is the initial submission of HAR section 11

- 60.1

- 90 for incorporation into Hawaii’s SIP.)

 The following conditions within this provision require covered source permits to

include: (7)(A) all reporting, emissions monitoring and analysis procedures or test methods; (7)(B) monitoring and related recordkeeping and reporting requirements to assure compliance with terms and conditions of the permit; (7)(F) specifics of sampling or measurements such as place, date, time, entity tha t performed the analyses, analytical techniques or methods used, results and operating conditions during testing or sampling;28 (7)(G) other records including support information, such as calibration and maintenance records, original stripchart recordings or computer printouts for continuous monitoring instrumentation; (7)(H) retention period for all required monitoring data and support information; (7)(I) time period for submission of reports; (7)(J) prompt reporting of permit deviations

Sub

- element (iii): correlation of reports to emission limits or standards and availability for public inspection

Statutory provision relevant to this element:

HRS section 342B

- 7 Annual reports

HRS section 342B

- 31 Government records; confidential information

 This ru le requires the department to make all records pursuant to this chapter open to public inspection unless access is restricted or closed by law. The following permit program documents are deemed to be government records: (1) Permit applications and all supporting information; (2) Compliance plans (including schedules of compliance); (3) Emissions or compliance monitoring reports; (4) Certifications; (5) Permits, and (6) Any other information submitted to the department pursuant to the permit

pr ogram. Regarding confidentiality, the rule states: “upon a showing satisfactory to the director by any person that records, reports, or information, or particular part thereof (other than emission data), to which the director has access pursuant to this c hapter, contain information of a confidential nature concerning secret processes or methods of manufacture, these records, reports, or information shall be kept confidential except that such record, report, or information may be disclosed to other officers or employees of the department and EPA concerned with carrying out this chapter or when relevant in any proceeding pursuant to this chapter.” Therefore, emissions data is not considered confidential information under this rule.

HRS section 342B

- 41 Inspection of premises

 Provides that the director, in accordance with the law, be allowed to enter and inspect any building or place to investigate an actual or suspected source of air pollution, ascertain compliance or noncompliance with this chapter or a ny rule, standard, permit or approval granted by the department, and make reasonable

tests in connection therewith.

Regulatory provisions applicable to this element include:

HAR section 11

- 60.1

- 11 Sampling, testing, and reporting methods (f) Owners or o

perators of stationary sources shall correlate applicable emission limitations and other requirements within the report.

HAR section 11

- 60.1

- 14 Public access to information29

 The following information shall be made available for public inspection: (1) All permit applications; (2) All supporting information for permit applications; (3) Compliance plans and schedules; (4) Reports and results associated with performance tests and continuous emission
monitors; (5) Ambient air monitoring data and emissio ns inventory data; (6) Certifications; (7) Any other information submitted to the department pursuant to the noncovered and covered source permit program; (8) Permits; and (9) Public comments or testimonies received during any public comment period or public hearing. Exceptions are provided for materials to which “access is restricted or closed by law” or which contain information of a confidential nature. The procedures for determining confidential information are established by HAR section 11

- 60.1

- 14(b)

- (f).

HAR section 11

- 60.1

- 68 Permit content

 In part, the condition states: (5)(F) A requirement for the retention of records of all required monitoring data and support information for a period of at least three years from the date of the monitoring sample, measurement, report, or application.

Other information pertaining to Pb :

40 CFR section 51.117(e)(1) requires that the emissions data (point source inventory) contain all sources that emit ≥5 tons per year (TPY) of Pb . Hawaii submits a ll Pb emissions data to EPA as required and does not have any emission sources which emit ≥5 TPY of Pb

.

EPA Analysis:

EPA approved all of the statutory provisions listed above into the Hawaii SIP as part of

our action on the 2011 Hawaii Infrastructure SI P

. 27 EPA has also approved all of the regulations listed above with the exception of HAR section 11

- 60.1

- 90, into the Hawaii

SIP. 28 The TSD accompanying our approval of those rules explained how those regulations address CAA Section 110(a)(2)( F )

. This evalua tion is also relevant to Pb, since the statutes and regulations at issue generally apply to any “air pollutant” or “regulated air pollutant.” HRS 342B

- 1 and HAR section 11

- 60.1

- 1 adopt the definition of “air pollutant" section 302(g) of the CAA, 42 U.S.C. (g). Section 302(g), in turn, defines “air pollutant” as:

27 77 FR 47530 (August 9, 2012).

28 77 FR 25084.30 . . . any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter

which is emitted into or otherwise enters the ambient air. . .

HRS 342B

- 1 and HAR section 11

- 60.1

- 1 define “regulated air pollutant” to include (among other things) any air pollutant for which a NAAQS has been adopted. Therefore,

these previously

- approved statutory and regulatory provisions also apply to Pb.

In addition to these already

- approved provisions

, approval of HAR section 11

- 60.1

- 90 into the applicable SIP, will further ensure that requirements for inclusion of monitoring, recordkeeping and reporting in covered source permits are federally enforceable under the applicable SIP.

Therefore, w e propose to find tha t Hawaii’s SIP meets the requirements of 110(a)(2)(F)

for the 2008 Pb NAAQS

.

S ECTION 110( A )(2)(G): E MERGENCY E PISODES

CAA requirement(s) :

CAA section 110(a)(2)(G) requires SIPs to “ provide for authority comparable to that in [section 303 of the CAA] and adequate contingency plans to implement such authority.”

State of Hawaii response to this requirement:

Statutory provision comparable to that found in section 7603 [303] of the CAA:

HRS section 342B

- 43 Emergency powers; procedures

 Provides that if the governor or the director determines that an imminent peril to the public health and safety i s or will be caused by the release of any air pollutant or combination of air pollutants that requires immediate action, they can, without a public hearing, order any person causing or contributing to the release of the air pollutant to immediately reduce or stop the release and may take any and all other actions as necessary.

Regulatory provision relevant to this element:

HAR section 11

- 60.1

- 17 Prevention of air pollution emergency episodes

 Designed to prevent excessive buildup of air contaminants during air pollution episodes and set conditions for the proclamation of an air pollution alert, warning or emergency.31

Discussion :

EPA notes that 40 CFR Part 51, subpart H (51.150

- 51.152) 29 and 40 CFR Part 51 Appendix L do not apply to lead. Hawaii does not have sources that emit significant amounts of lead and a specific contingency plan is not required.

EPA Analysis:

Section 303 of the Act provides in relevant part that:

. . . the Admin istrator, upon receipt of evidence that a pollution source or combination of sources (including moving sources) is presenting an imminent and substantial endangerment to public health or welfare, or the environment, may bring suit on behalf of the United S tates in the appropriate United States district court to immediately restrain any person causing or contributing to the alleged pollution to stop the emission of air pollutants causing or contributing to such pollution or to take such other action as may b e necessary. If it is not practicable to assure prompt protection of public health or welfare or the environment by commencement of such a civil action, the Administrator may issue such orders as may be necessary to protect public health or welfare or the

environment. . . .

In its SIP submission , Hawaii certifies that HRS section 342B

- 43 provide s statutory authority comparable to that in section 303 of the CAA. We find that it provides the requisite authority

.

W e propose to find that Hawaii’s SIP meet s the requirements of CAA Section 110(a)(2)(G) for the 2008 Pb NAAQS

.

S ECTION 110( A )(2)(H): F UTURE SIP R EVISIONS

CAA requirement(s) :

CAA Section 110(a)(2)(H) requires SIPs to:

. . . provide for revision of such plan

— (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and

29 Memorandum issued by Stephen D. Page, Director, Office of Air Quality Planning and Standards, “Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).”32 (ii) except as provided in p aragraph (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 a dditional requirements established under this chapter (Act).

State of Hawaii response to this requirement:

Sub

- elements (i) and (ii)

Statutory provisions relevant to this element include:

HRS section 342B

- 3 General functions, duties, and powers of the director

 Grants the director the function, duty and power to: (a) prevent, control, and abate air pollution and the emission of air pollutants in the state; (b) adopt, amend, and repeal state rules controlling and prohibiting air pollution

and the release of air pollutants or as otherwise necessary for the purposes of this chapter.

HRS section 342B

- 11 Prohibition

 This states that no person shall engage in any activity which causes air pollution or causes or allows the emission of any regulated air pollutant without first securing approval in writing from the director.

Regulatory provision relevant to this element:

HAR section 11

- 60.1

- 2 Prohibition of air pollution Provides the regulatory basis for the prohibition of air pollution without first securing

app roval, in writing, from the director.

Discussion :

The department has the authority to revise the Hawaii SIP as necessary to account for NAAQS revisions or the availability of improved or more expeditious methods of attaining such standard or whenever the Administrator finds that the state’s plan is substantially inadequate to attain the NAAQS or does not comply with requirements

established under the CAA.

The department is currently working on Hawaii’s SIP to address all updated NAAQS and

will continue t o do so as necessary and will submit SIP revisions whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or does not comply with requirements established under the CAA.33

EPA Analysis:

Hawaii has the legal authority to revise the Hawaii SIP (1) as 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 (2)

whenever the Administrator finds that Hawaii’s plan is substantially inadequate to attain the NAAQS or does not comply with requirements established under the Act.

In addition, Hawaii has certified that DOH will also work to submit SIP revisions

whenever the Adminis trator finds that Hawaii’s plan is substantially inadequate to attain the NAAQS or does not comply with requirements established under the Act.

We therefore propose to find that Hawaii’s SIP meet s the requirements of CAA Section 110(a)(2)(H) for the 2008 Pb NAAQS

.

S ECTION 110( A )(2)(I): N ONATTAINMENT A REA P LAN OR P LAN R EVISION U NDER P ART D

CAA requirement(s) :

Section 110(a)(2)(I) provides that each SIP, “ shall in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of
part D of this subchapter (relating to nonattainment areas). ”

State of Hawaii response to this requirement:

The state of Hawaii is in attainment of all criteria pollutants

. All ambient air monitoring data, is collected, submitted, and certified in accordance with 40 CFR Part 58.

EPA Analysis:

As explained above, s ubmissions to satisfy s ection 110(a)(2)(I ) are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under part D, in title I of the CAA . As a result, we have not evaluated the Hawaii Pb Infrastructure SIP in relation to CAA section 110(a)(2)(I).

S ECTION 110 ( A )(2)(J): C ONSULTATION WITH G OVERNMENT O FFICIALS , P UBLIC
N OTIFICATION , PSD, AND V ISIBILITY P ROTECTION

CAA requirement(s) :

Pursuant to CAA Section 110(a)(2)(J), SIPs are required to “ meet the applicable requirements of section 121 of this title (relatin g to consultation), section 127 of this title34

(relating to public notification), and part C of this subchapter (relating to prevention of significant deterioration of air quality and visibility protection).

State of Hawaii response to this requirement:

Consultation With Government Officials and Public Notification

Statutory provisions relevant to this element include:

HRS section 342B

- 13 Public participation

 This statute requires that the director provide public notice and opportunity for

comment.
HRS section 342B

- 16(3) Research, educational, and training programs

 Provides the director with the authority to conduct and supervise statewide educational and training programs on air pollution prevention, control, and abatement, including preparing and distr ibuting information relating to air pollution.

Discussion :

Hawaii’s PSD delegation agreement with EPA (January 5, 1989) includes joint oversight and approval of the pre

- construction review for major stationary sources. In that delegation agreement, the d epartment “must consult with the appropriate Federal, State, and local land use agencies prior to issuance of preliminary determinations on PSD permits.”

Regarding public access to information, the department provides near real

- time data and

the current a ir quality index for public viewing on its website in addition to EPA’s AirNow Hawaii page. Administrative rules as well as proposed rule revisions are also posted on the department’s webpage. Public notices are placed in the newspapers of each applicable county as well as on its webpage for all new or renewed covered source permits, exceptional events documentation, annual air monitoring network plan, annual air monitoring book, and any other event or report requiring public notice.

Part C relating to PS

D and visibility protection

EPA has determined that the Hawaii SIP does not meet the requirements of the CAA, therefore 40 CFR 52.21 has been incorporated into the applicable Hawaii plan (see 40 CFR 52.632(b)). DOH has been delegated authority to impleme nt the provisions of 40

CFR 52.21.

EPA determined the Hawaii SIP does not meet the requirements of CAA pertaining to visibility in mandatory Class I federal areas and has incorporated the provisions of 40 CFR 52.26, 52.27, 52.28, and 52.29 into the applic able plan. See 52.633(b)

- (c).35

EPA Analysis:

Sub

- Element 1: Consultation With Government Officials

CAA section 121 (42 U.S.C. 7421) requires that:

In carrying out the requirements of this chapter 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 measure referred to

— (A) in part D of this subchapter (pertaining to nonattainment requirements), or

(B) in part C of this subchapter (pertaining to prevention of significant deterioration),

. . . the State shall provide a satisfactory process of consultation with general purpose local governments, designated organizations of elected officials of local governmen ts and any Federal land manager having authority over Federal land to which the State plan applies, effective with respect to any such requirement which is adopted more than one year after August 7, 1977, as part of such plan. Such process shall be in

acco rdance with regulations promulgated by the Administrator to assure adequate

consultation. . . . 30

As explained above, we are not acting on the Hawaii Pb Infrastructure SIP with respect to
the PSD

- related requirements of 110(a)(2)(J).

Sub

- Element 2: Public Notification CAA section 127 (42 U.S.C. 7427) requires SIPs to:

. . . 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 qualit y 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 include the posting of warning signs on interstate highway access points to metropolitan areas or television, ra dio, or press notices

or information.

30 Section 121 was added by the CAA Amendments of 1977, and it also refers to section 113(d) (relating to certain enforcement orders), but section 113(d) was significantly amended by the CAA Amendments of 1990, and as so amended, no longer relates to state enforcement orders.36

Hawaii’s SIP submission ex plains that HDOH meets this requirement by posting air quality data, including notices of NAAQS exceedances, on the web . Specifically,

HDOH notifies the public of exceedances of the NAAQS thr ough its website: http://hawaii.gov/health/environmental/air/cab/cab_notification/exceedances_index.html Additional air quality monitoring data from HDO H is also available at: http://emdweb.doh.hawaii.gov/air

- quality/ and http://www.airnow.gov/index.cfm?action=airnow.main

.

We propose to find that Hawaii’s SIP meets the public notification requirements of 110(a)(2)(J)

.

Sub

- Element 3: Prevention of Significant Deterioration As explained above, we are not acting on the Hawaii Pb Infrastructure SIP with respect to
the PSD

- related requirem ents of 110(a)(2)(J).

Sub

- Element 4: Visibility Protection

EPA notes t hat, whil e the SIP must independently meet the visibility protection requirements of part C by virtue of the specific SIP requirements in sections 169A and 169B of the Act, these requirements are not altered by the promulgation of a new or revised NAAQS. Therefore

, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) in relation to the 2008 Pb NAAQS

.

S ECTION 110( A )(2)(K): A IR Q UALITY M ODELING / DATA

CAA requirement(s) :

CAA section 110(a)(2)(K) requires SIPs to provide for

— (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to

the Administrator.

State of Hawaii response to this requirement:

Sub

- element (i): air quality modeling Statutory provisions relevant to this element include:

HRS section 342B

- 17 Air quality modelers

 Provides the authority to establish air modeler positions for the purpose of assessing the impact of air releases.37

Rules pertaining to modeling include:

HAR section 11

- 60.1

- 12 Air quality models

 This rule requires that appropriate air modeling assessments be conducted for new and modified covered sources as specified in 40 CFR Part 51 Appendix W.

HAR section 11

- 60.1

- 83(a)( 11), (12), (13), and (14) Initial covered source permit application

 For initial covered source permit applications, sources are required to conduct an assessment of the ambient air quality impact and perform a comparison with the NAAQS as well as conduct a risk assessment if requested by the director.

HAR section 11

- 60.1

- 104(a)(12), (13), and (14) Applications for significant modification

 For significant modifications to covered source permits, sources are required to conduct an assessment of the ambient ai r quality impact and perform a comparison with the NAAQS as well as conduct a risk assessment if requested by

the director.

Sub

- element (ii): submission of data related to air quality modeling

HRS section 342B

- 31 Government records; confidential informat ion

 Information, including modeling, that is submitted as part of the permit program is considered government records available for public inspection. Upon request, the department will submit current and future data relating to such air quality modeling to EPA.

HAR section 11

- 60.1

- 94 Transmission of information to the Administrator

 The department is required to submit all proposed and final covered source applications to EPA. Additionally, the owner or operator is required to simultaneously submit a copy to EPA, of the covered source permit application, including applications for renewal and permit amendment for a proposed minor or significant modification. The submittal includes the applicable modeling

assessment.

Discussion :

40 CFR section 51.117(c)(1) r equires special modeling provisions for urbanized areas with measured lead concentrations in excess of 4.0 μg/m3 quarterly mean measured since January 1, 1974. Hawaii has not had any quarterly means >4.0 μg/m3 since monitoring began in 1984.

Additionally, 40 CFR section 51.117(c)(3) requires special modeling provisions for each area in the vicinity of an air quality monitor that has recorded lead concentrations in excess of the NAAQS. Hawaii has not exceeded any of the lead NAAQS since monitor ing began in 1984.38

EPA Analysis:

Hawaii’s 201 3 Infrastructure SIP demonstrates that the state (1) has the authority and technical capability to conduct air quality modeling in order to assess the effect on ambient air quality of relevant pollutant em issions; and (2) can provide relevant data as part of the permitting and N AAQS implementation processes. Hawaii has also committed

to submit current and future data relating to such air quality modeling to the

Administrator , upon request

.

Therefore, we p ropose to find that the Hawaii SIP meets the requirements of section 110(a)(2)(K) for the 2008 Pb NAAQS

.

S ECTION 110( A )(2)(L): P ERMITTING F EES

CAA requirement(s) :

CAA section 110(a)(2)(L) provides that: Each such plan shall require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this chapter, a fee sufficient to cover

— (i) the reasonable costs of reviewing and acting up on any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associa ted with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under subchapter (title) V of this chapter.

State of Hawaii response to this requirement:

Discussion :

Hawaii’s title V program, including the fee program, has been fully approved. See 40 CFR part 70, Appendix A; 66 FR 62945 (December 4, 2001); and 72 FR 19804 (April 20, 2007). Therefore, Hawaii’s SIP is not required to include fee provisions under this

section.

EPA Analysis:

We propose to find that the Hawaii SIP meets the requirements of CAA section 110(a)(2)(L) for the 2008 Pb NAAQS because the State has an EPA

- approved title V program that provides for the collection of the necessary fees.39

S ECTION 110( A )(2)(M): C ONSULTATION / PARTICIPATION BY A FFECTED L OCAL E NTITIES

CAA requirement(s) :

CAA section 110(a)(2)(M) requires SIPs to “ provide for consultation and participation by local political subdivisions affected by the plan. ”

State of Hawaii response to this requirement:

Section XIII of Hawaii’s initial SIP, approved by EPA on May 31, 1972, contains inter

governmental cooperation provisions.

Statutory provisions relevant to this element include:

HRS section 342B

- 13

 This describes the depar tment’s general procedures for public participation including the requirement to hold a public hearing when revising the state implementation plan as required by the amendments and regulations of the CAA.

HRS section 342B

- 45 Citations

 This statute provides the authority for police officers to issue citations for violations of the vehicular smoke emission (HAR section 11

- 60.1

- 34) and open burning control rules.

HRS section 342B

- 51 Enforcement by state and county authorities

 Provides for all state and county health authorities and the police to enforce the provisions of this chapter as well as the rules, orders, and permits of the department.

Discussion :

In developing rules or engaging in other actions that may affect other local agencies, the department, as a matter of practice, solicits input, consultation, review and guidance from the affected agencies. Some of the agencies include, but are not limited to: county law enforcement and fire departments; state and county civil defense agencies; county Mayor of fices; county water boards; state Department of Land and Natural Resources; and state and county transportation departments.

EPA Analysis:

As part of our action on Hawaii’s 2011 Infrastructure SIP, EPA approved the cited
statutory provisions into the Haw aii SIP and determined that, together with the existing intergovernmental cooperation provisions of Hawaii’s SIP, these provisions meet the requirements of CAA Section 110(a)(2)(M) for the relevant NAAQS. We now propose to find that these provisions collec tively meet the requirements of CAA Section 110(a)(2)(M) for the 2008 Pb NAAQS.