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# AUG 1 5 2006 MEMORANDUM OFFICE OF AIRQUALITY PLANNING ANDSTANDARDS SUBJECT: Guidance for State Implementation Plan (SIP) Submissions to Meet Current

OutstandingObligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PMZ,5 National Ambient Air Quality Standards FROM : William

T. Harnett, Director 

# 7t_~ Air Quality Policy Division, OAQPS (C539-01) TO : Regional Air Division Director, Regions I-X Thepurpose ofthis memorandum is to provide guidance concerning the State implementation plan (SIP) submissions States should make to meet their currently outstanding obligations under section 110(a)(2)(D)(i) . The Environmental Protection Agency (EPA) has previously indicated through rulemaking what States affected by the Clean Air Interstate Rule (CAIR) must do concerning emissions that significantly contribute to nonattainment or interfere with maintenance of the 8- hour ozone or fine particulates (PMZ.5) National Ambient Air Quality Standard (NAAQS) in another State. This guidance, therefore, addresses what States that are not affected by the CAIR should consider in meeting the "significant contribution" and "interfere with maintenance" requirements ofsection 110(a)(2)(D)(i), and what all States (inside or outside the CAIRregion) should consider with respect to making submissions to meet the "prevention ofsignificant deterioration" and "protect visibility" requirements of section 110(a)(2)(D)(i) . Because the CAIRregion differs for purposes of 8-hour ozone and PM2.5, some States may be within the CAIR region for purposes ofone NAAQS, but not the other, and should make section 110(a)(2)(D)(i) SIP submissions that account for this distinction. On July 18, 1997, EPApromulgated NAAQS for ozone and for fine particulate matter . Section 110(a)(1) of the Clean Air Act requires States to submit newSIPs to provide for the implementation, maintenance, and enforcement ofnew or revised NAAQS. Section 110(a)(2) lists the elements that the new SIP submissions must contain. Among other things, SIPs for new or revised NAAQS must contain adequate provisions to address interstate transport ofair pollution, pursuant to section 110(a)(2)(D)(i) .

Intemet Addres (URL) " http://www .epa.gov Recycled/Recyclable . Printed wiih Vegetable 0 Based Inks on Recycled Paper (Minimum25% Postconsurner)Section 110(a)(1) explicitly provides that States must adopt and submit to the EPA

Administrator new

SIPsubmissions within 3 years after the promulgation of a new or revised NAAQS, meeting the provisions of 110(a)(2), as applicable. Therefore, States should have submitted SIPs to EPAfor the 8-hour ozone NAAQS andthe PM2,j NAAQS by no later than July 2000

. However, at this time.no State has submitted a new SIP . We recognize that litigation over both the 8-hour ozone NAAQS and the PM2 .5 NAAQScreated substantial uncertainty as to how to proceed. Moreover, in the case of PMz,s, additional time was needed for creation of a monitoring network, collection of at least three years of data, and analysis of those data. On April 25, 2005, EPApublished an action in the Federal Register making a findingthat States had failed to make statutorily required SIPsubmissions for the 8-hour ozone and PM2 .5 NAAQS . The EPAexplicitly limited this finding of failure to submit to the requirements of section 110(a)(2)(D)(i) pertaining to interstate transport. The findingof failure to submit action started a 24-month clock for EPAto issue a final Federal Implementation Plan (FIP) to meet the requirements of section 110(a)(2)(D)(i), for both the 8-hour ozone and PM2 .5 standards, unless EPAinstead approves a State SIPsubmission to meet those requirements in advance of that date. The findingof failure to submit SINaddressing section 110(a)(2)(D)(i) is the first action required under a Consent Decree between EPAandplaintiffs whosued the Agency for failure to take action to require the submission of new SIPs for the 8-hour ozone and PM2 .5 NAAQS, or to issue FIPs in lieu thereof . The EPAhas also committed in the Consent Decree to take later actions to determine whether States have submitted the remaining SIPelements required by section 110(a)(1) and (2) forthe 8-hour ozone and PM2 .5 NAAQS by no later than December 15, 2007, for ozone, and by no later than October 5, 2008, for PM2,5 . The Agency intends to provide States with additional information concerning the remaining section 110(a)(1) and (2) SIP elements, in separate regulations or guidance documents. We emphasize that this document is merely guidance and that States or EPAmay elect to followor deviate fromthis guidance, as appropriate. The ultimate determination ofwhether a given SIPsubmission by a State meets the statutory requirements ofsection 110(a)(2)(D)(i) will be accomplished through case by case notice and comment rulemaking inwhich the facts and circumstances of each State submission will be evaluated by EPA . We ask that the EPA Regional Offices work with their respective States in the development oftheir SIPsubmissions. If you have questions concerning this guidance, please contact Mr . Larry D . Wallace (919) 541-0906. Please ensure that the appropriate air agency officials for the States in your Region are made aware ofthis guidance.Attachment

cc: Margo Oge, OTAQ Steve Page, OAQPS Brian McLean, OAP Scott Mathias, AQPD Kevin McLean, OGC Barbara Driscoll, AQPD Larry Wallace, AQPD Kimber Scavo, AQPD Geoffrey Wilcox, QGC NormPossiel, AQADGuidance for State Implementation Plan Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2 .5 National Ambient Air Quality Standards 1 . Introduction: This document provides guidance to States concerning State Implementation Plan (SIP) submissions that States must make pursuant to section 110(a)(2)(D)(i) . The Environmental Protection Agency (EPA) emphasizes that this guidance document merely provides suggestions and that States or EPA may elect to followor deviate fromthis guidance, . as appropriate. The ultimate determination ofwhether a given SIP submission by a State meets the requirements of section 110(a)(2)(D)(i) will be accomplished by area specific notice and comment rulemaking in which-the facts and circumstances of each State submission will be evaluated by EPA . Sections 110(a)(1) and (2) of the CleanAir Act (CAA), require States to submit SIPs that implement, maintain, and enforce a new or revised national ambient air quality standard (NAAQS) within 3 years following the promulgation of the standard. In July 1997, EPAissued the 8-hour ozone and PM2 .5 NAAQS

. States were thus required to submit SIPs that satisfy the applicable CAArequirements under section 110(a)(1) and (2) for these NAAQS byJuly 2000 . Among the SIPelements identified in section 110(a)(2) is the requirement to address interstate transport of pollutants pursuant to section 110(a)(2)(D)(i). The_ EPAhas determined that section 110(a)(2)(D)(i) is among the SIP requirements withwhich States must comply in accordance with the schedule of section 110(a)(1) .1 OnApril 25, 2005, EPA notified States of their failure to make the required SIP , submission addressing interstate transport ofpollutants related to ozone and PM2.5 in downwind States.2Pursuant to section 110(c), EPA's April 25, 2005 finding offailure to submit started a 24-month clock for EPAto issue afinal Federal Implementation Plan (FIP) to address the requirements ofsection 110(a)(2)(D)(i), unless a State makes the required submission and EPA approves such submission within that 24-month period. The 24-month FIP clock began on

' Sce, ."Rule to Reduce Interstate Transport ofFine Particulate Matter and- Ozone (Clean Air Interstate Rule) ; Revisions to Acid Rain Program ; Revisions to the NO,, SIP Call ; Final Rule," 70FR25,162 at 25,263-69 (May 12, 2005) . ZSee, "Finding of Failure to Submit Section 110 State Implementation Plans for Interstate Transport for the National Ambient Air Quality Standards for 8-Hour Ozone and PM 2.5," 70 FR 21,147 (April 25, 2005) . 1May 25, 2005, the effective date ofthe finding of failure to submit, and will end on May 25,

2007. The EPA's finding of failure to submit SIPs that address section 110(a)(2)(D)(i) is the first action required under a Consent Decree.3 Under the Consent Decree, EPAis also obligated to make later determinations as to whether States have made the required SIP submissions to meet the remaining applicable requirements of section 110(a)(1) and (2) . The EPAis obligated to make these later determinations by December 15, 2007, for SIPsubmissions for the 8-hour ozone NAAQS, and by October 5, 2008, for SIP submissions pertaining to the PM2 .5 NAAQS. The EPA believes that Section 110(a)(2)(D)(i) provides an important tool for attainment and maintenance ofthe NAAQS by addressing the problemof interstate transport of air pollutants. This provision applies to each pollutant covered by a NAAQS and to all areas of each State regardless ofthe attainment or nonattainment designation of such areas. Section 110(a)(2)(D)(i) specifically provides that each State's SIP must contain adequate provisions to prohibit air pollutant emissions from within the State that significantly contribute to nonattainment ofthe.NAAQS, or that interfere with maintenance of the NAAQS, in any other State. In addition, this section requires that each State's SIP must contain adequate provisions to prohibit emissions of air pollutants within the State that interfere with measures required to prevent significant deterioration of air quality or to protect visibility in any other State. The EPAintends to provide additional information to States concerning the remaining section 110(a)(1) and (2) SIP elements, either in regulations implementing the 8-hour ozoneor PM2,5 NAAQS, or in later guidance documents. 2 . What is required undersection 110(a)(2)(D)(i) : Section 110(a)(1) requires States to make a SIPsubmission for a new or revised NAAQS within 3 years ofpromulgation ofsuch new or revised NAAQS

. Section 110(a)(2) lists the elements those STPs must contain. For example, this section lists certain SIP infrastructure elements related to the new or revised standards such as requirements for provisions pertaining to modeling, monitoring, and emissions inventories that are designed to assure attainment andmaintenance ofthe standards. An important SIPelement

'The Consent Decree is between Environmental Defense and American Lung Association, as plaintiffs, and EPA, as defendant, signed March 10, 2005. The Consent Decree resolved the case entitled "Environmental Defense, et al . v. Johnson," No. 1 :05CV00493(D.D.C.) . EPA gave notice of, and took comment on, the proposed consent decree in accordance with CAAsection 113(g) . See, 70FR 15,623 (March 28, 2005) . 2listed in section 110(a)(2) is the requirement that States address emissions that impact other

States through interstate transport. The "good neighbor" provisions in section 110(a)(2)(D)(i) require each State to submit a SIPthat prohibits emissions that adverselyaffect another State in theways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport . Each State must submit a SIP which contains adequate provisions:

prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amountswhichwill - (1) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any . . . national primary or secondary airquality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State .. . . to prevent significant deterioration of air quality or to protectvisibility. The EPA's April 25, 2005 finding of failure to submit reflected EPA's determination that States had notyet made SIP submissions forthe 8-hour ozone and PM2,5 NAAQS necessary to meet the requirements of section 110(a)(2)(D)(i) . The precise nature and contents of such a submission is not stipulated in the statute. EPA believes that the contents ofthe SIPsubmission required bysection I 10(a)(2)(D)(i) may vary depending upon the facts and circumstances related to the specific NAAQS. In particular, the data and analytical tools available at the time the State develops and submits a SIP for a new or revised NAAQS necessarily affects the content of the required submission. In some instances, this submission maybe more detailed and substantive, as when existing data and analyses already provide therequisite information. In other instances, the submission may be more preliminary and simplified, as when there is currently insufficient information to support a determination that there are interstate transport impacts, or when other later regulatory actions are prerequisites to making such a determination. The sections below

provide guidance concerning the types of SIP submissions that EPA believes would be appropriate in response to the April 25, 2005, finding of failure to submit .3. States subject to the Clean Air Interstate Rule: In March of 2005, EPA promulgated the Clean Air Interstate Rule (CAIR) .4 Based upon the requirements of section 110(a)(2)(D)(i), EPA determined in the CAIR that NO . emissions from sources in 25 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the 8-hour ozone standard in other downwind States. The EPA also determined that SOZ and NO . emissions fromsources in 23 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance ofthe PM 2 .5 standards in other downwind States. Subsequently, EPA determined that two additional States contribute to nonattainment and interfere with maintenance of the PM2,5 NAAQS.5 (See Attachment A listing the States subject to the CAIR) . In the CAIR, EPAconcluded that the States will meet theirsection 110(a)(2)(D)(i) obligations to address the "significant contribution" and "interferencewith maintenance" requirements by complying with the CAIR requirements. Consequently, States within the CAIR region need not submit a separate SIP revision to satisfy the section 110(a)(2)(D)(i) requirements provided that they submit a SIP revision to satisfy CAIR . Pursuant to section 110(a)(1), those States not within the CAIR region must also make a submission with respect to those two requirements. Also in accordance with the statute, all States, both inside and outside the CAIR region must make a submission with respect to the "prevention of significant deterioration" and "protect visibility" requirements of section 110(a)(2)(D)(i) . It should be noted that because the CAIR region differs for purposes of ozone and PMZ,5, some States may be inside the CAIRregion for purposes of one NAAQS, but outside the CAIR region for the other, and should make section 1 .10(a)(2)(D)(i) SIP submissions that account for this distinction. Accordingly, EPAhas structured this guidance to address the different types of considerations that States mayneed to evaluate in mal{ing their respective submissions. 4 . SIPSubmissions fromStates pertaining to the "significant contribution" and "interfere with maintenance" requirements of section 110(a)(2)(D)(i) : States not covered by the CAIR must make a section 110(a)(2)(D)(i) SIPsubmission addressing significant contribution to nonattainment and interference with maintenance of the 8-hour ozone and PMZ.5 NAAQS in anyother States. 'See. sunra note 1. SSee, Inclusion of Delaware and New Jersey in Clcan Air Interstate Rule, 71 FR 25288 (April 28, 2006) .The EPAanticipates, based upon existing information developed in connection with the

CAM, that emissions from sources in States not covered by the CAIR do not contribute significantly to nonattainment or interfere with maintenance ofthe 8-hour ozoneor PMZ,5 NAAQS in any other State. Unless aState excluded fromthe CATR has contrary information or analysis, EPAbelieves that such State should be able to make a relatively simple SIP submission verifying that the State does not significantly contribute to nonattainment or interfere with' maintenance of the 8-hour ozone or PMZ .5 in another State

. EPAbelieves that a negative declaration fromeach of the non-CAIR States, whichcertifies that the Statein question does not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another State, should be adequate to satisfy the requirements of section 110(a)(2)(D)(i) . States should submit atechnical demonstration to support a negative declaration. EPA believes that this demonstration should contain the informationwhich the State deems appropriate to support its claimthat it does not significantly contribute to nonattainment or interfere with maintenance ofthe standards in another State. Suitable information mightinclude, but is not be limited to, information concerning emissions in the State, meteorological conditions in the State, the distance to the nearest nonattainment area in another State, reliance on modeling conducted by EPAin determining that such State should not be included within the ambit of the CAIR, or such other information as the State considers probative on the issue of significant contribution and interference with maintenance . The EPAbelieves that it would be appropriate for States to make this assessment using considerations comparable to thoseused by EPAin evaluating significant contribution in the CAIR, e.g., assessing the impacts ofemissions on nearby nonattainment areas as of the year 2010, and evaluating mitigation strategies based upon emissions reductions achievable through highly cost effective controls. In addition, States that are not subjectto the CAIR, but are subject to the NO . SIPCall, maywish to indicate that SIPs submitted to meet the NO . SIPCall should be sufficient to satisfy the section 110(a)(2)(D)(i) obligation for the 8-hour ozone NAAQS. EPAinitiallyaddressed interstate transport for ozone in the NO,, SIPCall rule published in 1998.6 The NO,, SIPCall is substantially reducing ozone transport, and is helping downwind areas meet the 8-hour ozone standards. The EPAbelieves that states outside the CAIR region that are meeting the NOx SIP Call should not significantly be contributing to nonattainment or interferring with maintenance in anydownwind state. The EPAwill assist each State to evaluate the available information and to develop a sufficient SIP submission and demonstration to meet this element of section 110(a)(2)(D)(i) . 6 "Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for the Purposes of Reducing Regional Transport of OzoneRule, (63 FR57356, October 27, 1998) . 5EPAwill take action on the SIP submissions made by States through notice and comment

rulemaking, thereby assuring that the requirements are met. 5 . SIP Submissions from States pertaining to the "prevention of significant deterioration" requirement of section 110(a)(2)(D)(i) : Section 110(a)(2)(D)(i)(II) also contains a requirement for all States to submit SIPs that contain adequate provisions prohibiting " . .. . any source or other type of emission activity within the State fromemitting any air pollutant in amountswhich will - interfere with measures required to be included in the applicable implementation plan forany other State . . . . to prevent significant deterioration of air quality . . ." Under EPA regulations, each SIP must include a preconstruction reviewprogramfor major sources to satisfy the requirements ofsection 110(a)(2)(D)(i) ofthe Act. 40 C .F.R . § 51 .165(b)(1) . In nonattainment areas, the preconstruction reviewprogramis known as Nonattainment New

Source Review(NNSR) and in attainment areas, preconstruction review is part of the Prevention of Significant Deterioration (PSD) program . These programs require preconstruction permits to protect the air quality within each state and also serve to prohibit construction ofnew

major sources and major modifications at existing major sources from contributing to nonattainment in adjacent states. The PSD permitting programis also the primary measure that each SIP must include to prevent significant deterioration of air quality in accordance with Title I, Part C and section 110(a)(2)(D)(i)(II) ofthe Act. See, 40 CFR § 51 .166. Section 110(a)(2)(D)(i)(II) requires that SIPs contain adequate provisions prohibiting sources or emissions activity within each state "fromemitting 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 Cof this subchapter to prevent significant deterioration of air quality . . . ." 42 U.S.C. § 7410(a)(2)(D)(i)(II) . Because all areas are currentlysubject to some formofpreconstruction permitting program forozone and PM2

.5, it is not necessary, at this time, for States to make a SIP submission containing rule changes or modeling demonstrations in order to address section 110(a)(2)(D)(i)(II) for the 8-hour ozone and PMZ.5 NAAQS. EPAhas established or will establish schedules for SIP submissions that incorporate revisions to EPA's preconstruction permitting regulations that are specific to the 8-hour ozone and PM2 .5 NAAQS. Areas will need to revise their SIPs consistent with such schedules. Each area ofthe country is currentlysubject to an equivalent PSDor NNSRpermitting program for the 8-hour ozone standard and an interimPSDor NNSR permitting program for PMZ,5. If aparticular state SIP lacks an approved PSD program, the PSDpermitting requirements must be implemented in that state or local area through a federal PSDprogram that canbe administered by the state or local permitting authority under a delegation agreement with EPA . Where a state lacks an approved NNSR program, the state may issue NNSRpermitspursuant to an EPAregulation at 40 CFRPart 51, Appendix S. Ifsuch a state lacks authority to

issue permits consistent with appendix S, EPAis thepermitting authority. In April 2004 and November 2005, EPApromulgated regulations in two phases that addressed (among other topics) the implementation of the PSDand NNSR programs underthe 8-hour ozone NAAQS. See 69 FR 23951 (Apr. 30,2004) ; 70 Fed . Reg . 71612 (Nov. 29, 2005). The first phase ofthese rules requires implementation of NNSR in accordance with an area's 8- hour ozone classification after revocation ofthe 1-hour ozone NAAQS. See 69 FRat 23985. The EPArevoked the 1-hour ozone NAAQS on June 15, 2005. Thus, new and modified major sources of volatile organic compound and NO,, are currentlysubject to NNSRbasedon the designation and classification ofthe area in which they are located underthe 8-hour ozone NAAQS. In an 8-hour ozone nonattainmeAt area that currently has no approved nonattainment plan or otherwise lacks authority to implement nonattainment NSRforthe 8-hour ozone NAAQS through a SIP-approved permitting program, permits for new and modified major stationary sources in such areas must be consistent with the requirements in appendix S of 40 CFR . Part 51 . IEPA determined that states did not need to submit anyrevisions of their existing PSDprograms to implement of the 8-hour ozone NAAQS, but the Agency simultaneously promulgated new rules to establish NOx as a precursor for ozone under the PSDprogram . See 68 FR

. 32802, 32843-44 (Jun. 2, 2003); 70 FRat 71679 . The EPAestablished June 15, 2007 as the deadline for states to provide SIPsubmissions that incorporate the requirements of the phase II ozone implementation rule into their PSDand NNSR programs. See 70 FRat 71683. For PMZ,5, EPAhas recommendedthat states employ an interimPM2 .5 program

that involves implementing existing PSDandNNSRprograms for PM,o as a surrogate forthe PM2 .5 requirements until the necessary tools are in place for states to adopt PSDand NNSR programs for PM2s. See, Memorandum from John Seitz, EPAOAQPS, "InterimImplementation forthe New Source Review

Requirements for PM2

.5," (October 23, 1997) ; MemorandumfromSteve Page, EPAOAQPS, "Implementation of New Source Review

Requirements in PM2

.5 Nonattainment Areas." (April 5, 2005) . In November 2005, EPAhas proposed regulations that establish the minimum

requirements for PSDand NNSR programs for PMZ,5, 70 FR 65984, 66033 (Nov. 1, 2005), but the Agency has not promulgated final regulations on this subject. States arenot required to submit PSDand NNSRprogram SIPs for PM2

.5 until EPAcompletes these regulations and finalizes the submission schedule, which we have proposed to be April 5, 2008. Until the submission date is established in EPA's final PM2 .5 implementation rule for NSR, states may continue to implement interimprograms based on PMIoand need not provide PSDor NNSRprogram

submissions containing rule changes for PM2 .5. The air qualitydemonstrations required for issuance ofa PSDand NNSRpermit must be madefor all areas that are potentially impacted by the emissions froma proposed source or modification requiring a permit . As a result, the implementation of a PSDand NNSRpermitting program in each state serves to prevent significantdeterioration in neighboring states and thus largely satisfies the requirements ofsection 110(a)(2)(D)(i)(II) ofthe CAA . APSDpermit may not be issued unless the new or modified source demonstrates that emissions fromtheconstruction or operation of the facility will not cause or contribute to air pollution in anyarea

that exceeds ofany NAAQS or any maximum allowable increase (known as the PSDincrement) . 42 U .S.C. § 7475(a)(3) ; 40 CFR § 51 .166(k) . ANNSRpermit maynot be issued unless the new or modified source shows it has obtained sufficient emissions reductions to offset increases in emissions ofthe pollutants for which an area is in nonattainment, consistent with reasonable further program

toward attainment . These offsetting reductions. could also help serve to prevent significant deterioration in any instance where the emissions of a nonattainment pollutant froma source in a nonattainment area would impact a nearby attainment area forthat pollutant . In addition to PSDpermitting program, a SIP may include additional measures as necessary to prevent air pollution in excess ofthe PSD increment that defines significant deterioration for each area. 40 CFR § 51 .166(a) . The EPAhas not established PSD increments for ozone or PMZ,5

. Without thesecomponents ofa PSDprogram, it is difficult for states to determine if additional measures are needed to prevent significant deterioration within the state. Likewise, a neighboring state cannot determinewhether its SIPwould interfere with such additional measures in another state's SIP. However, notwithstanding the absence of PSD increments for ozone and PMZ.5, states maycontinue to rely on their existing PSDand NNSR permitting programs to prevent significant deterioration of airquality within their own boundaries and in adjacent states. Becausethe PSDand NNSR permitting programs currently applicable in each area require a demonstration that new or modified sources will not cause or contribute to air pollution in excess ofthe NAAQS in neighboring states or that sources in nonattainment areas procure offsets, EPAbelieves that states need not make an additional SIPsubmission containing rule changes or modeling demonstrations to address the "prevent significant deterioration" requirement of section 110(a)(2)(D)(i)(II) for the 8-hour ozone and PM2 .5 NAAQS. For 8-hour ozone, each state only needs to make a SIP submission confirming that major sources in the state are currently subject to PSDand NNSRpermitting programs that implementthe 8-hour ozone standard and that SIP-approved states are on trackto meet the June 15, 2007 deadline for SIP submissions adopting therequirements ofthe Phase II ozone implementation rule. For PMZ.5, states need only provide a SIPsubmission confirrning that major sources in the state are subject to PSDand NNSRpermitting programs implemented in accordance with EPA's interim guidance calling for useof PM,oas a surrogate for PMZ.S in the PSDand NNSR programs. Additional SIPsubmissions will be due after the final NSRimplementation rules for PM2 .5 are promulgated. The EPAwill assist each State to evaluate the available information and to develop a sufficient SIP submission and demonstration to meet this element of section 110(a)(2)(D)(i) . The EPAwill take action on the SIP submissions made by States through notice and comment rulemaking, thereby assuring that the requirements are met .6

. SIPSubmissions from States pertaining to the "protect visibility" requirement of section 110(a)(2)(D)(i) : Section 110(a)(2)(D)(i)(II) also contains a requirement for all States to submit SINthat containadequate provisions prohibiting " .. . any source or other type of emission activity within the State fromemitting any air pollutant in amounts which will - interfere with measures required to be included in the applicable implementation plan for any other State . . . .to protect visibility." The EPA adopted a phased approach to visibility protection, issuing regulations in 1980 to address reasonably attributable visibility impairment, i .e., visibility impairment that is caused by the emissions ofair pollutants fromone, or a small number of sources, and issuing regulations in 1999 to address regional haze, i .e., "visibility impairment that is caused by the emission ofair pollutants fromnumerous sources located over a wide geographic area.0 Underthe 1980 regulations, 33 States and the Virgin Islands were required to submit SIPs to address reasonably attributable visibility impairment . At this point in time, EPAhas made no determination that emissions fromany State interfere with measures required to be included in a plan to address reasonably attributable visibility impairment . Further, EPAis not aware of any certification of existing reasonably attributable impairment ofvisibility by a Federal Land Manager that has not already been resolved. The EPA accordingly believes that States should be able to make a relatively simple SIP submission verifying that no source within the State emits pollutants that interferewith measures included in the visibility SINunder the 1980 regulations. In 1999, EPAfound that all States contain sources whose emissions are reasonably anticipated to contribute to regional haze in one or more Class I areas.$ Pursuant to this finding, States are currently under an obligation to submit SIPs that contain measures to address regional haze, includinga long-termstrategy to address visibility impairment foreach Class Iarea which maybe affected by emissions froma State .9 The States and Regional Planning Organizations are currently engaged in the task ofidentifying those Class I areas impacted by each State's emissions anddeveloping strategies for addressing regional haze to be included in the States' regional haze SIPs. These SIP submissions are due no later than December 17, 2007. As a result, EPAbelieves that it is currently premature to determine whether or not State SINfor 8-hour ozone or PM2 .5 contain adequate provisions to prohibit emissions that interfere with measures in other States' SINdesigned to address regional haze. Accordingly, EPA believes that States maymake a simple SIPsubmission confirming that it is not possible at this time to assess whether there is any interference with measures in the applicable SIP for another

See, 40CFRsection 51 .300-308. $See, "Regional Haze Regulations," 64 FR 35,714, 35,721 (July 1, 1999) . 940 CFR51 .308(d)(3)

.State designed to "protect visibility" for the 8-hour ozone and PMZ,5 NAAQS until regional haze

SIPs are submitted and approved. The EPAwill assist each State to evaluate the available information and to develop a sufficient SIP submission and demonstration to meet this element of section 110(a)(2)(D)(i) . EPAwill take action on the SIPsubmissions made by States through notice and comment rulemaking, thereby assuring that the requirements are met. 7. When should States make section 110(a)(2)(D)(i) SIPsubmissions? The EPA made the finding of failure to submit in April of 2005, with an effective date of May 25, 2005. As a result ofthe finding of failure to submit, the CAA imposes a 24-month clock for EPA to issue a FIP, unless a State has made the required submission to cure the failure to submit and EPA has acted to approve such submission fully in advance ofthe end ofthe 24-month period. In conjunction with the CAIR, EPAhas promulgated a F1Pfor alljurisdictions in the CAIRregion to provide a federal backstop to insure timely and effective reductions of emissions fromthose States in accordance with section 110(a)(2)(D)(i)(1) . The EPAhas not, however, promulgated a FIPaddressing section 110(a)(2)(D)(i) forany States outside ofthe.CA1R region. States outside the CAIR region must therefore make submissions to meet the significant contribution and interference with maintenance requirements of section 110(a)(2)(D)(i)(I) to avoid a FIP addressing those requirements. In addition, all States have an outstanding statutory obligation to make a SIPsubmission to meet the requirements of section 110(a)(2)(D)(i)(II) in avoid a FIP forthose requirements. The EPAis currently underan obligation to issue a FIP by May25, 2007, for any State that does not make a submission that cures the outstanding elements of section 110(a)(2)(D)(i) for that State

. Unless the State makes the necessary SIP submission sufficiently in advance of that date for EPAto evaluate the submission and to take the necessary rulemaking action to approve or disapprove it, EPAmayneed to initiate the FIPrulemaking process in order to meet the May 2007 FIPdeadline. Forthis reason, EPAbelieves that it would be appropriate foreach State to make the SIP submission necessary to meet its outstanding obligations under section 110(a)(2)(D)(i) well in advance ofthe May 25, 2007 FIPdeadline. The EPAtherefore suggests that States should make their SIP submission by no later than November 25, 2006, in order to allow

adequate time for the necessary Agency action on the submission. The EPArecognizes that this target SIPsubmission date is only 18 months after the effective date of the finding of failure to submit, . and that theAgency is issuingthis guidance concerning the necessary SIP submissions only shortly in advance of the target date. As a result, EPAintends to be as flexible as possible with respect to the target SIP submission date and will workwith States to insure that they canmake appropriate SIPsubmissions as close to 10November 25, 2006, as possible. However, in the event of submissions significantly later than

this date, EPAmayneed to initiate the FIPprocess to meet its own statutory obligations to implement FII's where States fail to submit SfPs that theAgency can approve in advance ofthe May 25, 2007 FIPdeadline.Attachment A : States subject to the CAIR Alabama Mississippi Arkansas (ozone only) Missouri Connecticut (ozone only) New York Florida New Jersey Delaware North Carolina Georgia (PM

2.5 only) Ohio Illinois Pennsylvania Indiana South Carolina Iowa Tennessee Kentucky Texas (PM 2.5 only) Louisiana Virginia . Maryland West Virginia Massachusetts (ozone only) Wisconsin Michigan District of Columbia Minnesota (PM

2.5 only) I ' - 12