UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 27711 

### AUG 1 5 2006

OFFICE OF 

### MEMORANDUM AIR QUALITY PLANNING AND STANDARDS


### SUBJECT:

FROM:

TO: Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 11O(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 

### National Ambient Air Quality Standards William T. Harnett, Director

# tIJ~

# (,**~** Air Quality PolicyDivision, OAQPS (C539-01) Regional Air Division Director, Regions I-X The purpose 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 bythe Clean Air Interstate Rule (CAIR) must do concerning emissions that significantly contribute to nonattainment or interfere with maintenance ofthe 8- hour ozone or fine particulates (PM2.5) 

### National Ambient Air Quality Standard (NAAQS) in another State. This guidance, therefore, addresses what States that are not affected bythe CAIR should consider in meeting the "significant contribution" and "interfere with maintenance" requirements ofsection 11O(

### a)(2)(D)(i), and what all States (inside or outside the CAIRregion) should considerwith respect to making submissions to meet the "prevention ofsignificant deterioration" and "protect visibility" requirements ofsection 11O(a)(2)(D)(i). Because the CAIRregion differs for purposes of8-hour ozone and PM2.5, 

### some States maybe within the CAIR region for purposes ofone NAAQS, butnot the other, and should make section 110(a)(2)(D)(i) SIP submissions that account for this distinction. On July 18, 1997, EPA promulgated NAAQS for ozone and for fine particulate matter. Section 110(a)(1) ofthe Clean Air Act requires States to submit new SIPs to provide for the implementation, maintenance, and enforcement ofnew orrevised NAAQS. Section 11O(

### a)(2) lists the elements that the new SIP submissions must contain. Among otherthings, SIPs for new orrevised NAAQS must contain adequate provisions to address interstate transport ofair pollution, pursuant to section 110(a)(2)(D)(i).

Intemet Address (URL) • http://www.epa.gov Recycled/Recyclable. Printed wnh Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer)2

Section 11

### O(a)(1) explicitlyprovides that States must adopt and submit to the EPA Administrator new SIP submissions within 3 years after the promulgation ofa new orrevised NAAQS, meeting the provisions of 110(a)(2), as applicable. Therefore, States should have submitted SIPs to EPA for the 8-hour ozone NAAQS and the PM2 .5NAAQS byno later than July 2000. However, at this time no State has submitted a new SIP. We recognize that litigation overboth the 8-hour ozone NAAQS and the PM2 .5NAAQS created substantial uncertainty as to how to proceed. Moreover, in the case ofPM2 .5

, additional time was needed for creation ofa monitoring network, collection of at least three years ofdata, and analysis ofthose data. OnApril 25, 2005, EPApublished an action in the Federal Register making a finding that States had failed to make statutorilyrequired SIP submissions for the 8-hour ozone and PM2 .5 NAAQS. The EPA explicitly limited this finding offailure to submit to the requirements of section 110(a)(2)(D)(i) pertaining to interstate transport. The finding offailure to submit action started a 24-month clock for EPAto issue a final Federal Implementation Plan (FIP) to meet the requirements ofsection 110(a)(2)(D)(i), for boththe 8-hour ozone and PM2.5 standards, unless EPA instead approves a State SIP submission to meet those requirements in advance ofthat date. The finding offailure to submit SIPs addressing section 11O(a)(2)(D)(i) is the first action required under a Consent Decree between EPA and plaintiffs who sued the Agency for failure to take action to require the submission ofnew SIPs for the 8-hour ozone and PM2 .5NAAQS, orto issue FIPs in lieu thereof. The EPA has also committed in the Consent Decree to take later actions to determine whether States have submitted the remaining SIP elements required by section 110(a)(I) and (2) for the 8-hour ozone and PM2 .5 NAAQS byno later than December 15, 2007, for ozone, and byno laterthan October 5, 2008, for PM2.5. The Agency intends to provide States with additional information concerning the remaining section 110(a)(I) and (2) SIP

. elements, in separate regulations orguidance documents. We emphasize that this document is merely guidance and that States or EPAmayelect to follow or deviate from this guidance, as appropriate. The ultimate detennination ofwhether a given SIP submissionby a State meets the statutoryrequirements ofsection 11O(a)(2)(D)(i) will be accomplished through casebycase notice and commentrulemaking in which the facts and

.circumstances ofeach State submission will be evaluated byEPA. We ask that the EPA Regional Offices work with theirrespective States in the development oftheir SIP submissions. Ifyou 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, OGC Norm Possiel, AQAD 3

### Guidance for State Implementation Plan Submissions to Meet Current Outstanding Obligations Under Section llO(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 

### National AmbientAir 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 merelyprovides suggestions and that States orEPA may elect to follow ordeviate from this guidance"as appropriate. The ultimate determination ofwhether a given SIP submissionby a State meets the requirements of section 110(a)(2)(D)(i) will be accomplished byarea specific notice and commentrulemaking in which-the facts and circumstances ofeach State submission will be evaluated byEPA. Sections 110(a)(1) and (2) ofthe Clean AirAct (CAA), require States to submit SIPs that implement, maintain, and enforce a new orrevised national ambient air quality standard (NAAQS) within 3 years following the promulgation ofthe standard. In July 1997, EPA issued the 8-hour ozone and PM2.5 

### NAAQS. States were thus required to submit SIPs that satisfy the applicable CAA requirements under section 11O(a)(1) and (2) for these NAAQS byJuly 2000. Among the SIP elements identified in section 11O(a)(2) is the requirement to address interstate transport ofpollutants pursuant to section 110(a)(2)(D)(i). The EPA has determined that section 11O(a)(2)(D)(i) is among the SIP requirements with which States must complyin accordance with the schedule ofsection 110(a)(1).1 On April 25, 2005, EPA notified States oftheir failure to make the required SIP , submission addressing interstate transport ofpollutants related to ozone and PM2.5 

### in downwind States. 2

### Pursuant to section 110(c), EPA's April 25, 2005 finding offailure to submit started a 24-month clock for EPA to issue a final 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

ISee, "Rule to Reduce Interstate Transport ofFine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx 

### SIP Call; Final Rule," 70 FR 25,162 at 25,263-69 (May 12,2005). 2See, "Finding ofFailure 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 offailure to submit, and will end on May 25, 2007. The EPA's finding offailure to submit SIPs that address section 11

### O(a)(2)(D)(i) is the first action required under a Consent Decree. 3 Under the Consent Decree, EPA is also obligated to make later determinations as to whether States have made the required SIP submissions to meet the remaining applicable requirements ofsection 110(a)(1) and (2). The EPA is obligated to make these later determinations byDecember 15,2007, for SIP submissions for the 8-hour ozone NAAQS, and by October 5, 2008, for SIP submissions pertaining to the PM2.5 NAAQS. The EPAbelieves that Section 11O(a)(2)(D)(i) provides an important tool for attainment and maintenance ofthe NAAQS by addressing the problem ofinterstate transport ofair pollutants. This provision applies to eachpollutant covered by a NAAQS and to all areas ofeach State regardless ofthe attainment ornonattainment designation ofsuch areas. Section 11O(a)(2)(D)(i) specificallyprovides that each State's SIP must contain adequate provisions to prohibit airpollutant emissions from within the State that significantly contribute to nonattainment oftheNAAQS, orthat interfere with maintenance ofthe NAAQS, in any other State. In addition, this section requires that each State's SIP must contain adequate provisions to prohibit emissions ofairpollutants within the State that interfere with measures required to prevent significant deterioration ofair quality orto protect visibility in any other State. The EPA intends to provide additional information to States concerning the remaining section 110(a)(1) and (2) SIP elements, eitherinregulations implementing the 8-hour ozone or PM2.5 NAAQS, or in later guidance documents.



### 2. What is required under section llO(a)(2)(D)(i): Section 110(a)(1) requires States to make a SIP submission for a new orrevised NAAQS within 3 years ofpromulgation ofsuch new orrevised NAAQS. Section 110(a)(2) lists the elements those SIPs must contain. For example, this section lists certain SIP infrastructure elements reiated to the new orrevised standards such as requirements for provisions pertaining to modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance ofthe standards. An important SIP element

3The Consent Decree is betweenEnvironmental 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 CAA section 113(g). See, 70 FR 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 SIP that prohibits emissions that adversely affect another State in the ways contemplated in the statute. Section 11O(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 othertype ofemissions activitywithin the State from emitting any airpollutant in amounts which will

- 

### (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any ... national primary or secondary air quality standard, or (II) interfere with measures required to be included in the applicable implementationplan for any other State

.... to prevent significant deterioration of air quality orto protect visibility. The EPA's April 25, 2005 finding offailure 

### to submit reflected EPA's determination that States had not yet made SIP submissions for the 8-hour ozone and PMZ.5 NAAQS necessary to meet the requirements ofsection 110(a)(2)(D)(i). Theprecise nature and contents ofsuch a submission is not stipulated in the statute. EPA believes that the contents ofthe SIP submission required by section 110(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 ofthe required submission. In some instances, this submissionmaybe more detailed and substantive, as when existing data and analyses alreadyprovide the requisite information. In other instances, the submission maybe more preliminary and simplified, as when there is currentlyinsufficient information to support a determination that there are interstate transport impacts, orwhen other laterregulatory actions are prerequisites to making such a determination. The sections belowprovide guidance concerning the types ofSIP submissions that EPA believes wouldbe appropriate in response to the April 25, 2005, finding offailure to submit.



### 3

### 3. States subject to the Clean AirInterstate Rule: In March of2005, EPA promulgated the Clean Air Interstate Rule (CAIR).4 Based upon the requirements ofsection 1l0(a)(2)(D)(i), EPA determined in the CAIR that NOx emissions from sources in 25 States and the District ofColumbia contribute significantly to nonattainment and interfere with maintenance ofthe 8-hour ozone standard in other downwind States. The EPA also determined that S02and NOxemissions from sources 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 nonattaipment and interfere with maintenance ofthe PM2 .5NAAQS.5(See Attachment A listing the States subject to the CAIR). Inthe CAIR, EPA concluded that the States will meet their section 11O(a)(2)(D)(i) obligations to address the "significant contribution" and "interference with maintenance" requirements by complying with the CAIRrequirements. Consequently, States within the CAIR region need not submit a separate SJP revision to satisfy the section 110(a)(2)(D)(i) requirements provided that they submit a SJP 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 ofsignificant deterioration" and "protect visibility" requirements ofsection 11O(a)(2)(D)(i). It should be noted that because the CAIRregion differs for purposes ofozone andPM2 .5

, some States maybe inside the CAIRregion for purposes ofone NAAQS, but outside the CAIR region for the other, and should make section UO(a)(2)(D)(i) SIP submissions that account for this distinction. Accordingly, EPA has structured this guidance to address the different types of considerations that States mayneed to evaluate in making their respective submissions.



### 4. SIP Submissions from States pertaining to the "significant contribution" and "interfere with maintenance" requirements ofsection llO(a)(2)(D)(i): States not covered bythe CAIRmust make a section 110(a)(2)(D)(i) SIP submission addressing significant contribution to nonattainment and interference with maintenance ofthe 8-hour ozone and PM2 .5NAAQS in any other States.

4See, supra note 1. 5See, Inclusion ofDelaware and New Jersey in Clean AirInterstate Rule, 71 FR 25288 (April 28, 2006). 4The EPA anticipates, based upon existing infonnation developed in connection with the CAIR, that emissions from sources in States not covered bythe CAIR do not contribute significantly to nonattainment or interfere with maintenance ofthe 8-hour ozone orPM2.5 NAAQS in any other State. Unless a State excluded from the CAIRhas contrary infonnation 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 ofthe 8-hour ozone orPM2 .5in another State. EPAbelieves that a negative declaration from each ofthe non-CAIR States, which certifies that the State in question does not significantly contribute to nonattainment or interfere with maintenance ofthe NAAQS in another State, should be adequate to satisfy the requirements ofsection 11

### O(a)(2)(D)(i). States should submit a technical demonstration to support a negative declaration. EPA believes that this demonstration should contain the infonnation which the State deems appropriate to support its claim that it does not significantly contribute to nonattainment or interfere withmaintenance ofthe standards in another State. Suitable infonnation might include, but is not be limited to, infonnation concerning emissions in the State, meteorological conditions inthe State, the distance to the nearest nonattainment area in another State, reliance onmodeling conducted byEPA in detennining that such State should not be included within the ambit ofthe CAIR, or such other infonnation as the State considers probative on the issue ofsignificant contribution and interference with maintenance. The EPAbelieves that it would be appropriate for States to make this assessment using considerations comparable to those used by EPA in evaluating significant contribution in the CAIR, Sh&" assessing the impacts ofemissiop.s on nearbynonattainment areas as ofthe year 2010, and evaluating mitigation strategies based upon emissions reductions achievable through highly cost effective controls. In addition, States that are not subject to the CAIR, but are subject to the NOx SIP Call, maywish to indicate that SIPs submitted to meet the NOx SIP Call should be sufficient to satisfy the section 110(a)(2)(D)(i) obligation for the 8-hour oZone NAAQS. EPA initially addressed interstate transport for ozone in the NOx SIP Call rule published in 1998.6 The NOx SIP Call is substantiallyreducing 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 significantlybe contributing to nonattainment or interferring with maintenance in any down wind state. The EPA will assist each State to evaluate the available infonnation and to develop a sufficient SIP submission and demonstration to meet this element ofsection 110(a)(2)(D)(i).

6 "Finding ofSignificant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for the Purposes ofReducing Regional Transport of Ozone Rule, (63 FR 57356, October 27, 1998). 5EPA will 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 ofsignificant deterioration" requirement ofsection llO(a)(2)(D)(i): Section 110(a)(2)(D)(i)(lI) also contains a requirement for all States to submit SIPs that contain adequate provisions prohibiting "

.... any source or othertype ofemission activity within the State from emitting any airpollutant in amounts which will

- interfere with measures required to be included in the applicable implementationplan for any other State

.... to prevent significant deterioration ofair quality

..." Under EPA regulations, each SIP must include a preconstruction review program for major sources to satisfy the requirements ofsection 11O(a)(2)(D)(i) ofthe Act. 40 C.F.R. § 51.165(b)(1). In nonattainment areas, the preconstruction review program is known as Nonattainment New Source Review (NNSR) and in attainment areas, preconstructionreview is part ofthe Prevention ofSignificant 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 permittingprogram is also the primarymeasure that each SIP must include to prevent significant deterioration ofair quality in accordance with Title I, Part C and section 110(a)(2)(D)(i)(lI) 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 "from emitting any airpollutant in amounts which will

-- ... interfere with measures required to be included in the applicable implementationplan for any other State underpart C ofthis subchapter to prevent significant deterioration ofair quality

...." 42 U.S.C. § 741O(a)(2)(D)(i)(II). Because all areas are currently subject to some form ofpreconstruct ion permitting

. program for ozone and PM2.5, it is not necessary, at this time, for States to make a SIP

submission containing rule changes ormodeling demonstrations in orderto address section 110(a)(2)(D)(i)(II) for the 8-hour ozone and PM2.5NAAQS. EPAhas established orwill 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 currently subject to an equivalent PSD orNNSRpermitting program for the 8-hour ozone standard and an interim PSD orNNSRpermittingprogram for PM2.5. Ifa particular state SIP lacks an approved PSD program, the PSD permitting requirements must be implemented in that state or local area through a federal PSD program that can be administered by the state or local permitting authorityunder a delegation agreement with EPA. Where a state lacks an approved NNSRprogram, the state may issue NNSRpermits

6pursuant to an EPA regulation at 40 CFR Part 51, Appendix S. Ifsuch a state lacks authority to issue permits consistent with appendix S, EPA is the permitting authority. In April 2004 and November 2005, EPA promulgated regulations in two phases that addressed (among other topics) the implementation ofthe PSD and NNSRprograms under the 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 ofNNSR in accordance with an area's 8- hour ozone classification after revocation ofthe I-hour ozone NAAQS. See 69 FR at 23985. The EPA revoked the I-hour ozone NAAQS on June 15,2005. Thus, new and modified major sources ofvolatile organic compound and NOx are currently subject to NNSRbased on the designation and classification ofthe area inwhich they are located under the 8-hour ozone NAAQS. In an 8-hour ozone nonattainment area that currentlyhas no approved nonattainment plan or otherwise lacks authority to implement nonattainment NSR for the 8-hour ozone NAAQS through a SIP-approved permittingprogram, permits for new and modified major stationary sources in such areas mustbe consistent with the requirements in appendix S of40 CFR. Part 51. IEPA determined that states did not need to submit anyrevisions oftheir existing PSD programs to implement ofthe 8-hour ozone NAAQS, but the Agency simultaneouslypromulgated new rules to establish NOx as a precursor for ozone under the PSD program. See 68 FR. 32802, 32843-44 (Jun. 2, 2003); 70 FR at 71679. The EPA establishedJune 15,2007 as the deadline for states to provide SIP submissions that incorporate the requirements ofthe phase II ozone implementationrule into their PSD and NNSRprograms. See 70 FR at 71683. ForPM2 .5, EPA has recommended that states employ an interim PM2.5 program that involves implementing existing PSD and NNSRprograms for PMlO as a surrogate for the PM2 .5 requirements until the necessarytools are inplace for states to adopt PSD and NNSRprograms for PM2 .5. See, Memorandum from John Seitz, EPA OAQPS, "Interim Implementation for the New Source Review Requirements for PM2.5," (October 23, 1997); Memorandum from Steve Page, EPA OAQPS, "Implementation ofNew Source Review Requirements inPM2.5 Nonattainment Areas." (AprilS, 2005). In November 2005, EPAhas proposed regulations that establish the minimum requirements for PSD and NNSRprograms for PM2.5, 70 FR 65984, 66033 (Nov. 1,2005),but the Agencyhas not promulgated final regulations onthis subject. States are notrequired to submit PSD and NNSRprogram SIPs for PM2 .5until EPA completes these regulations and finalizes the submission schedule, which we have proposed to be AprilS, 2008. Until the submission date is established in EPA's final PM2 .5 implementationrule for NSR, states maycontinue to implement interim programs based on PMlO and need not provide PSD orNNSRprogram submissions containing rule changes for PM2 .5. The air quality demonstrations required for issuance ofa PSD and NNSRpermit mustbe made for all areas that are potentially impactedbythe emissions from a proposed source or modification requiring a permit. As a result, the implementation ofa PSD and NNSRpermitting program in each state serves to prevent significant deterioration inneighboring states and thus largely satisfies the requirements ofsection 110(a)(2)(D)(i)(II) ofthe CAA. A PSD permit may not be issued unless the new or modified source demonstrates that emissions from the 7

### construction or operation ofthe facility will not cause or contribute to airpollution in any area that exceeds ofanyNAAQS or anymaximum allowable increase (known as the PSD increment). 42 U.S.c. § 747S(a)(3); 40 CFR § Sl.I66(k). 

### A NNSRpermit maynot be issued unless the new ormodified source shows it has obtained sufficient emissions reductions to offset increases in emissions ofthe pollutants for which an area is in nonattainment, consistent withreasonable further program toward attainment. These offsetting reductions could also help serve to prevent significant deterioration in any instance where the emissions ofa nonattainment pollutant from a source in a nonattainment area would impact a nearby attainment area for thatpollutant. In 

### addition to PSD permitting program, a SIP may include additional measures as necessary to prevent airpollution in excess ofthe PSD incrementthat defines significant deterioration for each area. 40 CFR § Sl.I66(a). The EPA has not established PSD increments for ozone orPM2.5 . 

### Without these components ofa PSD program, it is difficult for states to determine ifadditional measures are needed to prevent significant deterioration within the state. Likewise, a neighboring state cannot determine whether its SIP would interfere with such additional measures in another state's SIP. However, notwithstanding the absence ofPSD increments for ozone and PM2.5, 

### states may continue to rely on their existing PSD and NNSR permitting programs to prevent significant deterioration ofair quality within their own boundaries and in adjacent states. Because the PSD and NNSRpermitting programs currently applicable in each area require a demonstration that new ormodified sources will not cause or contribute to airpollution in excess ofthe NAAQS in neighboring states orthat sources innonattainment areas procure offsets, EPA believes that states need not make an additional SIP submission containing rule changes ormodeling demonstrations to address the "prevent significant deterioration" requirement ofsection 11O(a)(2)(D)(i)(II) for the 8-hour ozone and PM2.5 

### NAAQS. For 8-hour ozone, each state onlyneeds to make a SIP submission confirming that major sources in the state are currently subject to PSD and NNSRpermitting programs that implement the 8-hour ozone standard and that SIP-approved states are on track to meet the June IS, 

### 2007 deadline for SIP submissions adopting the requirements ofthe Phase II ozone implementationrule. ForPM2.5, 

### states need onlyprovide a SIP submission confirming that major sources inthe state are subject to PSD and NNSRpermittingprograms implemented in accordance with EPA's interim guidance calling for use ofPM lO 

### as a surrogate for PM2.5 

### in the PSD and NNSRprograms. Additional SIP submissions will be due after the final NSR implementation rules for PM2.5 

### are promulgated. The EPA will assist each State to evaluate the available information and to develop a sufficient SIP submission and demonstration to meet this element ofsection 11O(a)(2)(D)(i). The EPA will take action on the SIP submissions made by States through notice and comment rulemaking, thereby assuring that the requirements are met.

8

### 6. SIP Submissions from States pertaining to the "protect visibility" requirement of section llO(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 othertype ofemission activity within the State from emitting any airpollutant in amounts which will

- interfere with measures required to be included in the applicable implementationplan 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 bythe emissions ofair pollutants from one, or a small number ofsources, and issuing regulations in 1999 to address regional haze, i.e., "visibilityimpairment that is caused bythe emission ofair pollutants from numerous sources located over a wide geographic area.,,7 Under the 1980 regulations, 33 States and the Virgin Islands were required to submit SIPs to address reasonably attributable visibility impairment. At this point in time, EPA has made no determination that emissions from any State interfere with measures required to be included in a plan to address reasonably attributable visibilityimpairment. Further, EPA is not aware ofany certification of existing reasonably attributable impairment ofvisibilityby a Federal Land Manager that has not alreadybeenresolved. 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 interfere with measures included in the visibility SIPs under the 1980 regulations. In 1999, EPA found that all States contain sources whose emissions are reasonably anticipated to contribute to regional haze in one ormore Class I areas. 8 Pursuant to this finding, States are currently under an obligation to submit SIPs that contain measures to address regional haze, including a long-term strategy to address visibility impairment for each Class I area which maybe affected by emissions from a State.9 The States and Regional Planning Organizations are currently engaged in the task ofidentifying those Class I areas impactedby each State's emissions and developing 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 ornot State SIPs for 8-hour ozone orPM2.5 contain adequate provisions to prohibit emissions that interfere with measures in other States' SIPs designed to address regional haze. Accordingly, EPA believes that States maymake a simple SIP submission confirming that it is not possible at this time to assess whether there is any interference with measures in the applicable SIP for another

7 See, 40 CFR section 51.300-308. 8See, "Regional Haze Regulations," 64 FR 35,714,35,721 (July 1, 1999). 940 CFR 51.308(d)(3). 9State designed to "protect visibility" for the 8-hour ozone and PM2.5 NAAQS until regional haze SIPs are submitted and approved. The EPA will assist each State to evaluate the available information and to develop a sufficient SIP submission and demonstration to meet this element ofsection 11O(a)(2)(D)(i). EPA will take action on the SIP submissions made by States through notice and comment rulemaking, thereby assuring that the requirements are met.



### 7. When should States make section llO(a)(2)(D)(i) SIP submissions? The EPA made the finding offailure to submit in April of2005, with an effective date of May 25,2005. As a result ofthe finding offailure to submit, the CAA imposes a 24-month clock for EPA to issue a FIP, unless a State has made the required**submis~ion** 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 FIP for alljurisdictions in the CAIRregion to provide a federal backstop to insure timely and effective reductions ofemissions from those States in accordance with section 110(a)(2)(D)(i)(I). The EPA has not, however, promulgated a FIP addressing section 110(a)(2)(D)(i) for any States outside oftheCAIRregion. States outside the CAIRregion must therefore make submissions to meet the significant contribution and interference with maintenance requirements ofsection 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 SIP submission to meet the requirements ofsection 110(a)(2)(D)(i)(II) in avoid a FIP for those requirements. The EPA is currently under an obligation to issue a FIP byMay 25, 2007, for any State that does not make a submission that cures the outstanding elements ofsection 110(a)(2)(D)(i) for that State. Unless the State makes the necessary SIP submission sufficiently in advance of that date for EPA to evaluate the submission and to take the necessaryrulemaking action to approve or disapprove it, EPAmayneed to initiate the FIP rulemaking process in order to meet the May 2007 FIP deadline. Forthis reason, EPA believes that it would be appropriate for each State to make the SIP submission necessaryto meet its outstanding obligations under section 110(a)(2)(D)(i) well in advance ofthe May 25,2007 FIP deadline. The EPA therefore suggests that States should make their SIP submission byno later thanNovember 25,2006, in order to allow adequate time for the necessary Agency action onthe submission. The EPArecognizes that this target SIP submission date is only 18 months after the effective date ofthe finding offailure to submit, and that the Agency is issuing this guidance concerning the necessary SIP submissions only shortly in advance ofthe target date. As a result, EPA intends to be as flexible as possible with respect to the target SIP submission date and will work with States to insure that they can make appropriate SIP submissions as close to 10

### November 25, 2006, as possible. However, in the event ofsubmissions significantly later than this date, EPA mayneed to initiate the FIP process to meet its own statutory obligations to implement FIPs where States fail to submit SIPs that the Agency can approve in advance ofthe May 25,2007 FIP deadline.

11

### 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 ofColumbia
Minnesota (PM 2.5 only)

12