Draft as of 6/17/11

1

MEMORANDUM
SUBJECT: Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the

2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)
FROM: Scott Mathias

Interim Director, OAQPS
TO: Regional Air Division Directors, Regions 1

– 10 This guidance addresses the “infrastructure” elements for State Implementation Plans (SIPs) to meet the requirements of sections 110(a)(1) and 110(a)(2) of the Cl ean Air Act ( CAA) for the 2008 Pb NAAQS (see 73 FR 66964). http://69.175.53.6/register/2008/nov/12/E8

- 25654.pdf

. On October 15, 2008, EPA revised the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter ( μg/m 3 ) to 0.15 μg/m 3

. Pursuant to sections 110(a)(1) and 110(a)(2) of the CAA, each State is required to submit a plan to provide for the implementation, maintenance, and enforcement of a newly promulgated or revised NAAQS.
The CAA directs s tates to address basic SIP requirements (see Attachment A), to ensure attainment and main tenance of the NAAQS. The CAA provides that states are to submit SIPs addressi ng the requirements of sections 110(a)(1) and 110(a)(2) within 3 years of promulgation of a new or revised standard. 1 EPA recognizes th at many of the required section 110(a)(2) elements relate to the general information and authorities that constitute the infrastructure of a State’s air quality management program

– elements that have been in place since the initial SIPs were submitted in respons e to the Clean Air Act of 1970 and some required element may have been adopted to satisfy the infrastructure SIP requirements for the 1997 PM 2.5, 1997 8

- hour ozone, and 2006 PM 2.5 NAAQS. It is the responsibility of each State to review its air quality management program's infrastructure SIP provisions in light of each new or revised NAAQS.

1 Although the effective date of the Federal Register notice for the final rule was January 12, 2009, the rule was signed by the Administrator and publicly disseminated on October 15, 2008. Therefore, the deadline for submittal of infrastructure SIPs for the 2008 Pb NAAQS is October 15, 2011. http://www.epa.gov/oaqps001/lead/fr/20081112.pdfDraft as of 6/17/11

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Determining Completeness of State Submittals
Pursuant to section 110(a)(1), States will have to review and revise, as appropriate, their existing Pb NAAQS SIPs to ensure that the SIPs are adequate to address the 2008 Pb NAAQS. States should, in consultation with EPA Regional Offices, refer to applic able EPA regulations governing SIP submittals per 40 CFR Part 51. http://ecfr.gpoaccess.gov/cgi/t/text/text

idx?c=ecfr&tpl=/ecfrbrowse/Title40/ 40cfr51_main_02.tpl These regulations include, but are not limited to:

- Subpart I

– Review of New Sources and Modifications

- Subpart J

– Ambient Air Quality Surveillance

- Subpart K

– Source Surveillance

- Subpart L

– Legal Authority

- Subpart M

– Intergovernment al Consultation

- Subpart O

– Miscellaneous Plan Content Requirements

- Subpart P

– Protection of Visibility

- Subpart Q

– Reports. If a State determines that its existing SIP is adequate, then the State's SIP submittal may be a certification that the existing SIP contains provisions addressing all requirements of the section 110(a)(2) infrastructure elements as applicable for the 2008 Pb NAAQS. Such certification ( e.g. , in the form of a letter to EPA from the Governor or her/his designee) should cite the appli cable provisions in the existing SIP. As for all SIP submittals, section 110(l) directs the state to provide reasonable public notice and opportunity for public hearing on a certification letter prior to submission to EPA. Section 110(a)(2) specifies the elements and sub

- elements that are required In order for EPA to determine that an infrastructure SIP submittal is complete. Specifically, each State should include documentation demonstrating a correlation between each infrastructure element and an equiv alent State statutory or regulatory authority in the existing or submitted SIP. At a minimum, a complete submittal is a letter from an appropriate State official ( e.g., Governor or designee) certifying compliance with each element which has gone through s tate notice and hearing procedures. Furthermore, the State should provide a specific description of how compliance with each element is achieved. Submittals lacking a detailed explanation for how the State’s SIP meets each applicable requirement of secti on 110(a)(2) should be found incomplete and a letter should be sent to the state notifying it of the finding of incompleteness. EPA's criteria for determining the completeness of a SIP submittal are set out in EPA's regulations at 40 CFR Part 51, Appendix V. http://ecfr.gpoaccess.gov/cgi/t/text/text

-Draft as of 6/17/11

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idx?c=ecfr&sid=efccd778ba0879113d39b8894d179d4a &rgn=div9&view=text&node=40:2.0.1.1 .2.22.11.14.36&idno=40

EPA has determined that the elements and sub

- elements of section 110(a)(2) with respect to the 2008 Pb NAAQS are, for the most part, severable. 2 For example:

 SIP submi ttals that address some but not all elements or sub

- elements of section 110(a)(2) should be found incomplete for the unaddressed elements or sub

elements.

 If EPA makes a finding of failure to submit a SIP, that finding will only apply to the elements or sub

- ele ments that were not addressed by the state’s SIP revision. In order for EPA to make a determination as to whether a subsequent SIP submittal is complete, the state only be required to submit those elements that were earlier found not to have been submitte d.

 A State's obligation to make a SIP submittal that addresses one or more infrastructure SIP elements cannot be fulfilled through a letter from the State that merely promises a future submittal. A finding that a SIP submittal is complete does not necessar ily mean that the submittal is approvable, because the completeness review only addresses whether the State has provided information sufficient to warrant formal EPA review for approvability. Section 110(k) directs EPA to take final action on a SIP submit tal within 1 year after the SIP is determined to be complete. If EPA makes an affirmative finding that a SIP submittal is complete, the date of the finding establishes the "completeness date" for the submittal; if EPA makes no finding, the submittal is de emed complete, by operation of law, on the date 6 months after the submittal date. Actions on a SIP submittal may include approval (full, partial, or conditional) and disapproval (full or partial). The obligations of EPA to promulgate a Federal Implement ation Plan (FIP) are set out in section 110(c) of the CAA. EPA's obligation to promulgate a FIP for a state is triggered if EPA takes any of the following actions associated with the required SIP: 1) EPA makes a finding that a State has failed to make a SIP submittal; 2) EPA makes a finding that a state has made an incomplete submittal; or 3) EPA disapproves a SIP submittal. If EPA takes one of these actions, Section 110(c) directs EPA to take further action within 2 years, under what is commonly

2 Please see Attachment A for clarification of “severable” versus “non

- severable” infrastructure elements.Draft as of 6/17/11

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referre d to as the "FIP clock. ” In order to remove EPA from the FIP obligation, a state SIP submittal must meet the applicable requirements and be approved by EPA.
For Further Information If you have any questions concerning this guidance, please contact Mia South by telephone at (919) 541

- 5550 or by email at south.mia@epa.gov. Please ensure that the appropriate air agency officials for states in your Region are made aware of this guidance.
Attachments

cc:Draft as of 6/17/11

5 Attachment A : Required Section 110 Infrastruc ture SIP Elements
The Clean Air Act (CAA) directs states to address basic State Implementation Plan ( SIP ) requirements to implement, maintain and enforce the standards. Under CAA sections, By law, sections 110(a)(1) and 110(a)(2) states are to submit these SIPs within 3 years after promulgation of a new or revised standard. Many of the section 110(a)(2) SIP elements relate to the general information and authorities that constitute the "infrastructure" of a state's air quality

ma nagement program, and these have been in place since the initial SIPs were su bmitted in response to the 1970 CAA. It is the responsibility of each state to review its air quality management program's infrastructure SIP provisions in light of each new or revised NAAQS.

States should review and revise, as appropriate, their existing SIPs to ensure that they are adeq uate to address the 2008 NAAQS. States should, in consultation with EPA Regional Offices, follow applicable EPA regulations governing SIP submi ttals in 40 CFR Part 51

- e.g., Subpart I ("Review of New Sources and Modifications"), Subpart J (Ambient Air Quality Surveillance), Subpart K (Source Surveillance), Subpart L (Legal Authority), Subpart M ("Intergovernmental Consultation"), Subpart O (Misc ellaneous Plan Content Requirements), Subpart P ("Protection of Visibility"), and Subpart Q ("Reports").
For many infrastructure SIP elements, a SIP submittal should refer to and include citations to relevant state regulations. See, e.g. , our guidance be low regarding elements (F), (H), (J), and (M). For EPA's general criteria for SIP submittals, refer to 40 CFR Part 51, Appendix V, "Criteria for Determining the Completeness of Plan Submissions." http://cfr.vlex.com/vid/51

- criteria

- determining

- completeness

- 19784745

. For example, in accordance with Appendix V,Draft as of 6/17/11

6

paragraph 2.1(d), a SIP submittal would include a copy of the actual regulation that the state is submitting for approval and incorporation by reference into its SIP.

Pursuant to section 110(a), states must prov ide reasonable notice and opportunity for public hearing for all infrastructure SIP submittals. Pursuant to EPA's regulations at 40 CFR
Part 51, a SIP submittal will include a certification by the state that the public hearing was held in accordance with EPA's procedural requirements for public hearings. See paragraph 2.1(g) of Appendix V to Part 51 and 40 CFR 51.102. http://cfr.vlex.com/vid/51

- 102

- public

- hearings

19784894

.
If a state believes that its existing approved infrastructure SIP is adequate, then the state's SIP submission may be a certification that the existing SIP contains provisions addressing all requirements of the section 110(a)(2) infrastructure elements as applicable for the 2008 Pb NAAQS. Such certification (e.g., in the form of a letter to EPA from the Governor or her/his designee) should cite the applicable provisions in the existing SIP and provide a specific description of how compliance with each element is achi eved.

S ection 110(a)(2) of the CAA directs all states to develop and maintain an air quality management infrastructure that includes enforceable emission limitations, an ambient monitoring program, an enforcement program, air quality modeling capabilit ies, and adequate personnel, resources, and legal authority. Section 110(a)(2)(D ) also directs SIPs to prevent emissions from within the state that contribute significantly to nonattainment in any other state, or that interfere with maintenance in any oth er state, or that interfere with programs under part C of the CAA to prevent significant deterioration of air quality or to protect visibility in any other state.Draft as of 6/17/11

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

- year submission dead line of section 11 0(a)(1). The elements pertain to part D, in title I of the CAA, which addresses plan requirements for nonattainment areas. Therefore, the following section 110(a)(2) elements are considered by EPA to be outside the scope of infrastructure SIP actions: (1) section 110(a)(2)(C ) to the extent it refers to permit programs (known as "nonattainme nt new source review") under part D; and (2) section 110(a)(2)(I) in its entirety. EPA does not expect infrastructure SIP submittals to include regulations or emission limits developed spe cifically for attaining the relevant standard. Those submittals are due at the time the nonattai nment area planning elements are due (18 months following designation).
Except as described above, s ubsections (A) through (M) of section 110(a)(2) set forth the infrastructure elem ents that a SIP should address , in order to be approved by EPA. The elements are presented below in context of the 2008 Pb NAAQS.
Section 110(a)(2)(A): Emission limits and other control measures

“Each such plan shall [. . .] include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be nece ssary or appropriate to meet the applicable requirements of this chapter.”
EPA would not expect infrastructure SIP submission to identify nonattainment emission controls. Emissions limitations and other control measures to attain the 2008 NAAQS in areas designated nonattainment for the 2008 Pb NAAQS are due on a different schedule from theDraft as of 6/17/11

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section 110 infrastructure elements and will be reviewed and acted upon through a separate
process. However, the infrastructure SIP submission should include a list or table referencing all Pb emission reduction measures adopted and relied on by the state to meet other CAA requirements, such as maintenance of the 2008 NAAQS. SIP submittals such as for the 2008 Pb NAAQS should be consistent with EPA's longstanding poli cy on SSM and director's discretion, which policy is briefly summarized as follows 3 See page 2565 2 http://69.175.53.6/register/2011/may/05/2011

- 10995.pdf

. Because excess emissions mig ht aggravate air quality so as to prevent attainment and maintenance of the NAAQS and compliance with other CAA requirements, EPA views all periods of excess emissions as violations of the applicable emission limitation. Therefore, an approvable SIP submi ttal cannot exempt from enforcement excess emissions that may occur at a facility during a period of startup or shutdown. Further, an approvable SIP submittal cannot automatically exempt from enforcement excess emissions claimed to result from an equipmen t malfunction. In addition, an approvable SIP submittal cannot allow a state air director the discretion to determine whether an instance of excess emissions is a violation of an emission limitation, because such a
determination could bar EPA and citizens from enforcing applicable requirements.

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

3 For further description of EPA's policy on SSM and director's discretion, see, e.g. , a memorandum dated September 20, 1999, entitled, "State Imple mentation 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.Draft as of 6/17/11

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“Each such plan shall [. . .] provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.”
To meet section 110(a)(2)(B) requirements for thi s NAAQS, the state’s SIP monitoring system
should :

 Monitor air quality for Pb at appropriate locations throughout the state using EPA approved F ederal R eference M ethod or equivalent monitors. States would need to install

new Pb monitors in accordance with recent revisions to the Pb monitoring network
requ irements. See the Lead Ambient Air Monitoring Requirements, December 14, 2010 http://origin.www.gpo.gov/fdsys/pkg/FR

- 2010

- 12

- 27/pdf/2010

- 32153.pdf#page=1

.

- Sub mit data to EPA’s Air Quality System (AQS) in a timely manner. AQ data reporting 51.320, http://cfr.vlex.com/vid/51

- 320

- annual

- air

- quality

- data

- report

- 19785104

 Submit approvable annual monitoring plans to EPA that describe how the state has complied with monitoring requirements and explain any proposed changes to the network.

 Provide the EPA R egional O ffice prior notification of any planned changes to monitoring sites or to the network plan. Sect ion 110(a)(2)(C): Programs for e nforcement, PSD, and NSR “Each such plan shall [. . .] include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D of this subchapter.”Draft as of 6/17/11

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The Prevention of Significant Deterioration (PSD) and non attainment New Source Review (N NSR) programs contained in parts C and D of Title I of the CAA, and collectively referred to as the major New Source Review (NSR) pr ogram, govern preconstruction review and permitting of any new or modified major stationary sources of air pollutants regulated under the CAA as well as any precursors to the formation of that pollutant when identified for regulation by the Administrator. 4 The EPA rules addressing these programs can be found generally at 40 CFR 51.166 and 52.21 (for PSD), a nd 51.165, 52.24, and Part 51, Appendix S (for N NSR). http: //cfr.vlex.com/vid/51

- 166

- prevention

- significant

- deterioration

- 19784998 , http://cfr.vlex.com/vid/124

- 41

- definitions

- applicable

- psd

- permits

- 19811787 , http://cfr.vlex.com/vid/51

- 165

- permit

- requirements

- 19784994 http://www. federalregister.gov/articles/2007/03/08/E7

- 3888/nonattainment

- new - source - review

nsr To meet section 110(a)(2)(C) requirements for this NAAQS, the SIP submitted should :

 Reference relevant sta te and federal regulations that provide for enforcement of Pb

em iss i on limits and control measures.

 Identify the various state regulations that govern permitting of new and modified stationary sources (minor and major) of Pb in the state.

4 The terms “major” and “minor” categorize a stationary source, for NSR applicability purposes, in terms of an annual emissions rate (tons per year, tpy) for a pollutant. Generally, a minor source is any source that is not “major.” “Major” is defined in t he applicable NSR regulations

— PSD or nonattainment NSR.Draft as of 6/17/11

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 Revise its PSD program regulations to address any applicable EPA amendments to Pb PSD rules within 3 years from the date of such amendments.

For areas subject to a state’s SIP

- approved PSD program, the state should demonstrate that it is authorized to implement its existing PSD permit program to ensure that the construction and modification of major stationary sources does not cause or contribu te to a violation of the Pb NAAQS

. For areas subject to a state’s SIP

- approved PSD program, the state should demonstrate that it is authorized to implement its existing PSD permit program to ensure that the construction and modification of major station ary sources does not cause or contribute to a violation of Pb NAAQS. The state's PSD program should ensure that new or modified sources will apply the Best Available Control Technology to reduce Pb emissions in accordance with CAA
sections 165 (a)(3) and (4).
The state's PSD program should apply to sources that emit greenhouse gases (GHG) in accordance with EPA's Tailoring Rule. 5 Among other things, the state's PSD program must either: (i) limit PSD applicability to GHG

- emitting sources by adopting the a pplicability thresholds included in the Tailoring Rule; or (ii) adopt lower GHG thresholds and show that the state has adequate personnel and funding to administer and implement those lower thresholds. Otherwise, the state is directed to remove from EPA’s consideration for approval that portion of the SIP (or SIP submission) for which EPA rescinded our previous approval of the PSD program

5 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 2010)

.Draft as of 6/17/11

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(in a rulemaking referred to as the "GHG PSD SIP Narrowing Rule"). 6 To request such removal, a state may choose to fol low the example of the letter request submitted by South Carolina. 7

If a state lacks a SIP

- approved PSD program, it is subject to a federal implementation plan (FIP), and major stationary sources within its jurisdiction are subject to the federal PSD
requ irements in 40 CFR 52.21. Some states are subject to a FIP for PSD permitting of all regulated NSR pollutants, and fewer states are subject to a FIP for PSD permitting that is limited to GHG. Note that a state subject to a FIP for PSD permitting, whether applicable to all regulated NSR pollutants or limited to GHG, remains obligated to adopt and submit a PSD program for EPA approval that applies to all regulated NSR pollutants, including GHG. Until a state provides such a program, its SIP would not be ap provable with respect to
section 110(a)(2)(C).
Minor NSR programs are subject to the statutory requirements in section 110(a)(2)(C) of the CAA which requires “...regulation of the modification and construction of any stationary source ...as necessary to assure that the [NAAQS] are achieved.” These programs should be established in each state within 3 years of the promulgation of a new or revised NAAQS.
EPA has not proposed to amend the PSD regulations with regard to the Pb NAAQS. EPA is planning to issue Pb modeling guidance to supplement the guidance contained in EPA’s

6 Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas

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

7 South Carolina's letter request can be found at http://ww w.regulations.gov , at EPA

- R04

- OAR

- 2010

- 0721

- 0006.Draft as of 6/17/11

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Guideline on Air Quality Models (40 CFR Part 51 Appendix S), which will assist states and prospective sources in carrying ou t the analyses necessary to satisfy the PSD requirements for Pb.

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

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

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 interfere with measure s required to be included in the applicable implementation plan for any other state under part C of this subchapter to prevent significant deterioration of air quality to protect visibility.”
Section 110(a)(2)(D)(i) provides for SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state. (The preceding requirements, from subsecti on (2)(D)(i)(I), respectively refer to what may be called prongs 1 and 2.) Further, this section directs SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality, or from interfering with measures required to protect visibility ( i.e. , measures to address regional haze) in any state. (The preceding requirements, from subsection (2)(D)(i)(II), respectively refer to what may be called prongs 3 and 4.) The physical properties of Pb prevent Pb emissions from experiencing the same travel or formation phenomena as PM 2.5 or ozone. More specifically, there is a shar p decrease in Pb concentrations, at least in the coarse fraction, a s the distance from a Pb source increases. 8

8 Reference forthcomingDraft as of 6/17/11

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Accordingly, while it may be possible for a source in a state to emit Pb in a location and in quantities that may contribute significantly to nonattainment in, or interfere with maintenance by, any other state, EPA anticipates that this would be a rare situation, e.g., where large sources are in close proximity to state boundaries. EPA believes that requirements of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through a state’s assessment as to whether or not emissions from Pb sources located in close proximity to their state borders (e.g., within 2 miles) have emissions that impact the neighboring state such that they contribute significantly to nonattainment by having a emissions threshold of
0 .5 tons per year or greater or interfere with maintenance in that state. 9 The states’ conclusions could be supported by the technical information or data used to support the initial area designations for Pb. Therefore, to address prongs 1 and 2 of section 110(a)(2)(D) ( i ) (I) the state’s submission
should include an explanation in support of the state’s conclusion and, if applicable, should address the impact i n their submittal.

Under section 110(a)(2)(D)(i)(II), the PSD sub

- element (prong 3) may be met by t he state’s confirmation in a SIP submission that new major sources and major modifications in the state are subject to PSD and (if the state contains a nonattainment area for the relevant pollutant) NNSR programs that implement the 2008 Pb NAAQ S

. 10

9 Reference forthcoming

10 Memorandum issued by William T. Harnett, Director, OAQPS/AQPD, “Guidance on SIP E lements Required Under Sections 110(a)(1) and (2) for the 2006 24

- Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS),” dated September 25, 2009.Draft as of 6/17/11

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With regard to the requirement of prong 4, i.e. , visibility under subsection (2)(D)(i)(II), significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from the source and most, if not all Pb stationary sour ces are located at distances from Class I areas such that visibility impacts would be negligible. In addition, Pb is not directly regulated under sections 169(A) and (B) (visibility program) of the CAA. Although Pb can be a component of coarse and fine particles, Pb comprises a small fraction of coarse and fine particles. Furthermore, when evaluating the extent that Pb could impact visibility, Pb

- related visibility impacts were found to be insignificant (e.g., less than 0.10%) . 11 Since all areas are currently subject to the regional haze progam which addresses visibility

- impairing pollutants, at this time EPA would not expect infrastructure SIP submissions for the Pb NAAQS to address prong 4.

Section 110(a)(2)(D)(ii): Interstate and International tra nsport provisions
“Each such plan shall [. . .] contain adequate provisions insuring compliance with the applicab le requirements of sections 115 or 126 (b) that involve Pb emissions (relating to interstate and international pollution abatement).” EPA has no reason to approve or disapprove any existing state rules with regard to these pro visions. S ection 126(a) of the CAA directs each SIP to include provisions requiring a new or modified source to notify neighboring states of potential impacts fr om the source. States with SIP

approved PSD programs should have a regulatory provision in place, consistent with 40 CFR

11 Ambient Pb’s Contribution to Class 1 Area Visibility Impairment, 6/172011, Mark Schmidt, OAQPS.Draft as of 6/17/11

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51.166(q)(2)(iv), that requires such notification of other state and local agencies. http://cfr.vlex.com/vid/51

- 166

- prevention

- significant

- deterioration

- 19784998

. States relying on the federal program requirements of 40 CFR 52.21(q), which provide for notification of affected state and local air ag encies , to satisfy this requirement have programs that are technically deficient and not approvable. http://edocket.access.gpo.gov/cfr_2010/julqtr/pdf/40cfr124.41.pdf

. Although, these p rograms are deficient and these States have not “submitted” anything to EPA, EPA would not be required to take further action with respect to this element because the federal rules represent a FI P which fully addresses the notification iss ue. In addition, mandatory sanctions would not apply because the deficiencies are neither with regard to a required submittal under p art D nor in response to a SIP call under Section 110 (k) (5). http:// www.epa.gov/air/caa/caaa.txt . As described in this infrastructure SIP guidance for element (c), such states remain obligated to adopt and submit a PSD program for EPA approval that applies to all regulated NSR pollutants, including, GHG. Until a state pr ovides such a program, its SIP would not be approvable with respect to section 110 (a) (2) (D) (ii).

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

“Each such plan shall [. . .] provide: (i) necessary assurances that the state (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the state or general purpose local governments for such purpose) will h ave 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 f ederal or state law from carrying out such implementation plan or portion thereof) ,Draft as of 6/17/11

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(ii) requirements that the state comply with the requirements respecting state boards under section 128, (See section 40 CFR 52.1182, http://edocket.access.gpo.gov/cfr_20 04/julqtr/pdf/40cfr52.1180.pdf (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implem entation of such plan provision.”

The SIP should assure that the state has adequate authority under its rules and regulations to carry out the state's SIP obligations with respect to the 20008 Pb NAAQS and to revise the SIP as necessary. See EPA's reg ulations at 40 CFR Part 51,subpart L (“Legal Authority”) and subpart O (“Miscellaneous Plan Content Requirements ”). For example:

 In accordance with EPA's regulations at subpart L, the SIP should show that the state has the legal authority to carry out th e plan; the provisions of the state's laws or regulations that provide that authority are to be specifically identified in the SIP, and copies of the laws or regulations should be included in the SIP submittal. See 40 CFR sections 51.230 through 51.231. http://ecfr.gpoaccess.gov/cgi/t/text/text

idx?c=ecfr&sid=b458b0027fa357aba560ed3fc0cbd3ef&rgn=div8 &view=text&node= 40:2.0.1.1.2.9.8.1&idno=40 \

 A state may assign responsibility for carrying out a portion of a SIP to a state government agency other than the state air pollution control agency, if the SIP demonstrates that such other agency has the necessa ry legal authority. Similarly, the state may authorize a local agency to carry out a SIP or portion of a SIP within the local agency's jurisdiction, if the SIP demonstrates that the local agency has theDraft as of 6/17/11

18 necessary legal authority; however, the authorizing state is not relieved of responsibility for carrying out the SIP. See 40 CFR 51.232, "Assignment of legal authority to local agencies." http://cfr.vlex.com/vid/51

- 232

- assignment

- legal

- local

agencies

- 19785032

 In accordance with EPA's regulations at subpart O, the SIP submittal should include copies of rules and regulations that show that the state has adopted the emission limitations and other measures necessary for atta inment and maintenance of the 2008 Pb NAAQS. See 40 CFR 51.281, "Copies of rules and regulations." http://cfr.vlex.com/vid/51

- 281

- copies

- rules

- and

- regulations

- 19785057

Further, the SIP should assure that the state has adequate funding and personnel to implement the Pb NAAQS. See EPA's regulations at 40 CFR Part 51, subpart M ("Intergovernmental Consultation") and subpart O ("Miscellaneous Plan Content Requirements"). F or example:

 In accordance with EPA's regulations at subpart M, the SIP should identify the organizations that will participate in developing, implementing, and enforcing the SIP. The SIP should identify the responsibilities of such organizations and inclu de related agreements among the organizations. See 40 CFR 51.240, "General plan requirements." http://cfr.vlex.com/vid/51

- 240

- general

- plan

- requirements

- 1 9785034

 In accordance with EPA's regulations at subpart O, the SIP should describe resources for carrying out the SIP. Resources to be described include: (1) those available to the state (and local agencies, where appropriate) as of the date of SIP subm ittal;Draft as of 6/17/11

1 9

(2) those considered necessary during the 5 years following SIP submittal; and (3) projections regarding acquisition of the described resources. See 40 CFR 51.280,
"Resources." http://law.justia.com/cfr/title40/40

- 2.0.1.1.2.12.9.1.html

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

“Each such plan shall [. . .] require, as may be prescribed by the Administrator: (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emiss ions and emissions

- related data from such source (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public inspecti on.” The SIP should provide citations to the state's regulations for source monitoring, recordkeeping, and reporting requirements applicable to Pb. For example: The Air Emission Reporting Rule (AERR)

. http://www.federalregister.gov/articles/2008/12/17/E8

- 29737/air

emissions

- reporting

- requirements

. In accordance with EPA regulations at 40 CFR Part 51, subpart K ("Source Surveillance"), the SIP should provide for monitoring the status of sources' compliance with the Pb NAAQS. http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=0dd0e4252c33076cd2cbb6b9423d9006&r gn=div6&view=text&node=40:2.0.1.1.2.8&idno=40 For example, the SIP should include provis ions for owners or operators of stationary sources to maintain records of emissions and other information as may be necessary to enable the state to determine whether the sources are in compliance, and the SIP should further include provisions for the sour ces to periodically reportDraft as of 6/17/11

20

that information to the state. See 40 CFR 51.211, "Emission reports and recordkeeping." http://cfr.vlex.com/vid/51

- 211

- emission

- reports

- recor dkeeping

- 19785011 The SIP should include provisions for stat ionary sources subject to the Pb NAAQS to install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions, and the SIP should further include provisions fo r the sources to maintain the monitoring data and periodically submit it to the state. See 40 CFR 51.214, "Continuous emission monitoring." http://cfr.vlex.com/vid/51

- 2 14

- continuous

- emission

- monitoring

- 19785021
In accordance with EPA regulations at 40 CFR Part 51, subpart A (" Air Emissions Reporting Requirements") http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&tpl=/ecfrbrowse/Title40/40cfr51_main_02.tpl and subpart Q ("Reports"), the responsible state agency should analyze the Pb emissions data and correlate such data with applicable emission limitations or standards. The SIP should provide for periodic reporting of emissions inventory data by the state to the Administrator (through the appropriate Regional Office). See e.g. , 40 CFR 51.321. http://cfr.vlex.com/vid/51

- 321

- annual

source - emissions

- report

- 19785106 . All reports should be made available to the public.

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

“Each such plan shall provide for authority comparable to that in section 303 of this title and adequate contingency plans to implement such authority.” Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from causing or contributing to emissions which present an “imminent and sub stantialDraft as of 6/17/11

21

endangerment to public health or welfare, or the environment

. As directed under section 110(a)(2)(G), each SIP submittal should specify authority, rested in an appropriate official, to restrain any source from causing or controlling Pb emissions. The SIP should also contain a plan determined adequate by the state to implement the authority to constrain sources of Pb emissions ,

as neces sary, in an emergency situation. As part of the infrastructure SIP submittal, the plan should be comply with regulations at 40 CFR 51.150 through 51.153 as applicable. http://cfr.vlex.com/vid/51

- 150

- classification

- regions

- episode

- 19784960

For Pb, EPA regulations do not specify priority region classifications or other specific requirements for the content of contingency plans

. Therefore, states should determine the content of an adequate plan. Example regulations that states could choose to adopt to satisfy the element (G) are presented in Appendix L to 40 CFR Part 51. http://cfr.vlex.com/vid/appendix

- 51

- example

- pollution

- episodes

- 19784732

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

“Each such plan shall [. . .] provide for revision of such plan

— (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of in formation available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements established under this chapter (CAA).”Draft as of 6/17/11

22

The SIP should provide citation s to the state regulatory provisions requiring the state to 1) revise its section 110 plan from time to time as may be necessary to take into account revisions of such primary or secondary NAAQS or the availability of improved or more expeditious methods of attaining such standards; and 2) revise its section 110 plan in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS. See 40 CFR 51.104 , “Revisions”

. http://cfr.vlex.com/vid/51

- 104

- revisions

- 19784899

Secti on 110(a)(2)(I): Nonattainment area plan or plan r evision Under Part D

“Each such plan shall [. . .] in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D of this subchapter (relating to nonattainment areas).” As noted in the inductor text of this infrastructure SIP guidance document, EPA would not expect infrastructure SIP submission s to ad dress s ubsection 110(a) (2) ( I )

. Nonattainment area plans required under part D are required on a different schedule from the section 110 infrastructure elements and will be reviewed and acted upon through a separate process.

Section 110(a)(2)(J): Consultation with government officials, public notification, PSD and visibility protection

“Each such plan shall [. . .] meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to publ ic notification), and part C of this subchapter (relating to prevention of significant deterioration of air quality and visibility protection).”Draft as of 6/17/11

23

The SIP should reference the state rules that provide a process of consultation with general purpose local go vernments, designated organizations of elected officials of local governments , and any f ederal land manager having authority over f ederal land to which the plan applies, consistent with the requirements of CAA § 121. The SIP should provide citation s to re gulations requiring the state to regularly notify the public of : instances or areas in which any primary NAAQS was exceeded; the associated health hazards; and ways in which the public can participate in regulatory and other efforts to improve air quality. See 40 CFR 51.285 , “Public notification”. http://cfr.vlex.com/vid/51

- 285

- public

notification

- 19785060 Pursuant to the CAA, a SIP should allow a state to implement any new PSD re quirements that are triggered upon the effective date of any new NAAQS. However, sources in a state may be subject to the federal PSD requirements pursuant to 40 CFR 52.21, if a state does not have a
SIP

- approved PSD program. http://cfr.vlex.com/vid/52

- prevention

- significant

- deterioration

19785934

. As described in this infrastructure SIP guidance for element (C), such states remain obligated to adopt and submit a PSD program for EPA approval that applies to all regulated NSR pollutants, including GHG. Until a state provides such a program, its SIP would not be approvable with respect to section 110(a)(2)(J).
With regard to the requirement of the plan to meet the applicable requirements for visibility protection, EPA would not expect to treat this provision as applicable for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibility protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, in the event of the establishment of a new primary NAAQS,Draft as of 6/17/11

24

the visibility protection and regional haze program requirements under part C do not change. Thus, EPA concludes there are no new applicable visibility protection obligations under section 110(a)(2)(J) as a result of the 2008 Pb NAAQS

.

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

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

— (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air qua lity standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.” The SIP should demonstrate that the s tate has the authority and technical capability to conduct air quality modeling in order to as sess the effect on ambient air quality of relevant pollutant emissions; and that the state can provide relevant data as part of the permitting and NAAQS implement ation processes. The SIP should also provide that, upon request, the state will submit curren t and future data relating to such air quality modeling to the Administrator. EPA anticipates that the predominant type of air quality modeling to be conducted with respect to implementing the Pb NAAQS will be source

- oriented dispersion modeling with mode ls such as
AERMOD. Section 110(a)(2)(L): Permitting fees

“Each such plan shall require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this chapter, a fee sufficient to cover

— (i) the reasonable costs of reviewing and acting upon any application for such a permit, andDraft as of 6/17/11

25

(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 p ermit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under subchapter (title) V of this chapter.” The SIP should provide citation s to the regulations providing for collection of permitting fees under the state’s EPA

- approved Title V permit program. See 40 CFR 70.9 (“Fee
de termination and certification”), http://cfr.vlex.com/vid/70

- 9

- fee

- determination

- certification

19801429 , 40 CFR Part 70, Appendix A, “Approval Status of State and Local Operating Permits Programs” , http://law.justia.com/cfr/title40/40

- 15.0.1.1.7.0.1.12.14.html

.

Section 110(a)(2) (M): Consultation/participation by affected local entities
“Each such plan shall [. . .] provide for consultation and participation by local political subdivisions affected by the plan.” To satisfy this element (M), and in accordance with EPA's regulations at 40 CFR Part 51, subpart M ("Intergovernmental Consultation"), http://cfr.vlex.com/vid/51

- 240

- general

- plan

requirements

- 19785034 the SIP should identify the organizations that will participate in developing, implementing, and enforcing the SIP. Further, the SIP should identify the responsibilities of such organizations and include related agreements among the organizations.
See 40 CFR 51.240, "General plan requirements." http://cfr.vlex.com/vid/51

- 240

- general

- plan

requirements

- 19785034
The SIP should identify policies or procedures requiring consultation and participation by local political subdivisions affected by the SIP. For example, the SIP should provi de a citation to the state regulations that provide notice and opportunity for public hearing in accordance withDraft as of 6/17/11

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EPA regulations at 40 CFR Part 51, subpart F ("Procedural Requirements") http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&rgn=div8&view=text&node=40:2.0.1.1.2.3.8. 1&idno=40 . Prior to submitting a SIP revision or a compliance schedule, a state must provide notice, provide the opportunity to submit written comments, and allow the public the opportunity to request a public hearing. See 40 CFR 51.102, "Public hearings." http://cfr.vlex.com/vid/51

- 102

- public

- hearings

- 19784894

.