The EPA Region 9 Regional Administrator, Jared Blumenfeld, signed the following proposed rule on April 

25, 2014, and EPA is submitting it for publication in the Federal Register (FR). While we have taken steps to 

ensure the accuracy of this Internet version of the rule, it is not the official version of the rule for purposes of 

compliance. Please refer to the official version in a forthcoming FR publication, which will appear on the 

Government Printing Office’s FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on 

Regulations.gov (http://www.regulations.gov) in Docket No. EPA-R09-OAR-2014-0317. 

1 

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-R09-OAR-2014-0317; FRL-_________] 

Approval and Promulgation of State Implementation Plans; Hawaii; Infrastructure 

Requirements for the 2008 8-Hour Ozone and the 2010 Nitrogen Dioxide National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve elements of 

a State Implementation Plan (SIP) revision submitted by the State of Hawaii on April 04, 2014, 

pursuant to the requirements of Section 110(a)(1) and (2) of the Clean Air Act (CAA or the Act) 

for the 2008 8-Hour Ozone and the 2010 Nitrogen Dioxide national ambient air quality standards 

(NAAQS). Section 110(a) of the CAA requires that each state adopt and submit a SIP for the 

implementation, maintenance, and enforcement of each NAAQS promulgated by EPA. We are 

taking comments on this proposal and plan to follow with a final action. 

DATES: Written comments must be received on or before [Insert date 30 days after 

publication in the Federal Register]. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R09-OAR-2014-

0317, by one of the following methods: 

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments. 

2. E-mail: richmond.dawn@epa.gov

3. Fax: 415-947-3579 

4. Mail or deliver: Dawn Richmond, Air Planning Office (AIR-2), U.S. Environmental 

Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. 

Deliveries are only accepted during the Regional Office’s normal hours of operation. 

Instructions: All comments will be included in the public docket without change and may 

be made available online at http://www.regulations.gov, including any personal information 

provided, unless the comment includes Confidential Business Information (CBI) or other 

information whose disclosure is restricted by statute. Information that you consider CBI or 

otherwise protected should be clearly identified as such and should not be submitted through 

http://www.regulations.gov or e-mail. http://www.regulations.gov is an anonymous access 

system, and EPA will not know your identity or contact information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail address will be 

automatically captured and included as part of the public comment. If EPA cannot read your 

comment due to technical difficulties and cannot contact you for clarification, EPA may not be 

able to consider your comment. 

Docket: The index to the docket for this action is available electronically at 

http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San 

Francisco, California. While all documents in the docket are listed in the index, some 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

3 

information may be publicly available only at the hard copy location (e.g., copyrighted material), 

and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy 

materials, please schedule an appointment during normal business hours with the contact listed 

directly below. 

FOR FURTHER INFORMATION CONTACT: Dawn Richmond, Air Planning Office (AIR–

2), U.S. Environmental Protection Agency, Region IX, (415) 972–3207, 

richmond.dawn@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

TABLE OF CONTENTS: 

I. Background 

A. Statutory Framework 

B. Regulatory History 

II. EPA’s Approach to the Review of Infrastructure SIP Submissions 

III. State Submittal and EPA Action 

IV. EPA’s Evaluation and Proposed Action 

V. Statutory and Executive Order Reviews 

I. Background 

A. Statutory Framework 

Section 110(a)(1) of the CAA requires states to make a SIP submission within 3 years 

after the promulgation of a new or revised primary NAAQS. Section 110(a)(2) includes a list of 

specific elements that “[e]ach such plan” submission must include. Many of the section 110(a)(2) 

SIP elements relate to the general information and authorities that constitute the "infrastructure" 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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of a state's air quality management program and SIP submittals that address these requirements 

are referred to as “infrastructure SIPs.” These infrastructure SIP elements are as follows: 

· Section 110(a)(2)(A): Emission limits and other control measures. 

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

· Section 110(a)(2)(C): Program for enforcement of control measures and regulation of 

new stationary sources. 

· Section 110(a)(2)(D)(i): Interstate pollution transport. 

· Section 110(a)(2)(D)(ii): Interstate and international pollution abatement. 

· Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight 

of local governments and regional agencies. 

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

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

· Section 110(a)(2)(H): SIP revisions. 

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

prevention of significant deterioration (PSD) and visibility protection. 

· Section 110(a)(2)(K): Air quality modeling and submission of modeling data. 

· Section 110(a)(2)(L): Permitting fees. 

· Section 110(a)(2)(M): Consultation/participation by affected local entities. 

Two elements identified in section 110(a)(2) are not governed by the three-year 

submission deadline of section 110(a)(1) and are therefore not addressed in this action. These 

elements relate to part D of title I of the CAA, and submissions to satisfy them are not due within 

three years after promulgation of a new or revised NAAQS, but rather are due at the same time 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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nonattainment area plan requirements are due under section 172. The two elements are: (i) 

section 110(a)(2)(C) to the extent it refers to permit programs required under part D 

(nonattainment New Source Review (NSR)), and (ii) section 110(a)(2)(I), pertaining to the 

nonattainment planning requirements of part D. As a result, this action does not address 

infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or 

related to 110(a)(2)(I). 

B. Regulatory Background 

On March 12, 2008, EPA issued a revised NAAQS for ozone.1 On January 22, 2010, 

EPA issued a revised NAAQS for nitrogen dioxide.2 These revisions to the ozone and nitrogen 

dioxide NAAQS, triggered requirements for states to submit infrastructure SIPs to address the 

applicable requirements of section 110(a)(2) within three years of issuance of each of these 

revised NAAQS. 

On January 15, 2013, EPA found that Hawaii had failed to make a submittal for the 2008 

ozone NAAQS to satisfy the requirements of section 110(a)(2)(A), (B), (C) to the extent it refers 

to enforcement, to permitting programs for minor sources and to PSD permitting programs 

required by part C of title I of the CAA, (D)(i)(II), (D)(ii), (E)–(H) and (J)–(M).3 We explained 

that “sections 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) (in all four subsections for the PSD-related 

 

1 73 FR 16436 (March 27, 2008). EPA revised the previous 8-hour primary ozone standard of 0.08 parts per million 

(ppm) to 0.075 ppm. EPA also revised the secondary 8-hour standard to the level of 0.075 ppm making it identical 

to the revised primary standard. In September 2009, EPA announced it would reconsider the 2008 8-hour ozone 

NAAQS. However, in September 2011, EPA announced its decision to merge the reconsideration of the 2008 

NAAQS with the next scheduled 5-year review of the ozone NAAQS, and advised the states that the 2008 NAAQS 

would be implemented. 

2 75 FR 6474 (February 9, 2010). EPA established a 1-hour standard of 100 parts per billion (ppb), based on the 3-

year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations, to supplement 

the existing annual standard.EPA set the annual NO2 standard to 0.053 ppm. 

3 78 FR 2882. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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and notification-related requirements only) are already addressed for Hawaii through an existing 

PSD FIP that remains in place. Therefore, this action will not trigger any additional FIP 

obligations with respect to the PSD-related and notification-related requirements in these four 

subsections.”4 

We also explained that we were not issuing findings of failure to submit a SIP addressing 

section 110(a)(2)(D)(i)(I) of the CAA, due to the D.C. Circuit’s recent opinion in EME Homer 

City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012). 

II. EPA’s Approach to the Review of Infrastructure SIP Submissions 

EPA is acting upon the SIP submission from Hawaii that addresses the infrastructure 

requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 8-Hour Ozone and the 2010 

Nitrogen Dioxide NAAQS. The requirement for states to make a SIP submission of this type 

arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP 

submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the 

promulgation of a national primary ambient air quality standard (or any revision thereof),” and 

these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of 

such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, 

and the requirement to make the submissions is not conditioned upon EPA’s taking any action 

other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific 

elements that “[e]ach such plan” submission must address. 

EPA has historically referred to these SIP submissions made for the purpose of satisfying 

the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. 

 

4

 Id. at 2889. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to 

distinguish this particular type of SIP submission from submissions that are intended to satisfy 

other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” 

submissions to address the nonattainment planning requirements of part D of title I of the CAA, 

“regional haze SIP” submissions required by EPA rule to address the visibility protection 

requirements of CAA section 169A, and nonattainment new source review permit program 

submissions to address the permit requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP 

submissions, and section 110(a)(2) provides more details concerning the required contents of 

these submissions. The list of required elements provided in section 110(a)(2) contains a wide 

variety of disparate provisions, some of which pertain to required legal authority, some of which 

pertain to required substantive program provisions, and some of which pertain to requirements 

for both authority and substantive program provisions.5 EPA therefore believes that while the 

timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions 

are ambiguous. In particular, EPA believes that the list of required elements for infrastructure 

SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required 

for inclusion in an infrastructure SIP submission. 

The following examples of ambiguities illustrate the need for EPA to interpret some 

section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP 

submissions for a given new or revised NAAQS. One example of ambiguity is that section 

 

5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal 

authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIPapproved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) 

provides that states must have legal authority to address emergencies as well as contingency plans that are triggered 

in the event of such emergencies. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while 

EPA has long noted that this literal reading of the statute is internally inconsistent and would 

create a conflict with the nonattainment provisions in part D of title I of the Act, which 

specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to 

nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to 

address nonattainment area requirements are due. For example, section 172(b) requires EPA to 

establish a schedule for submission of such plans for certain pollutants when the Administrator 

promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity 

illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal 

sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to 

infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements 

in a single SIP submission, and whether EPA must act upon such SIP submission in a single 

action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, 

EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing 

infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP 

 

6 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); 

Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162, at 25163 – 65 (May 12, 

2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). 

7

 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set 

specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various 

pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or 

revised NAAQS. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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submissions to meet the infrastructure SIP requirements, EPA can elect to act on such 

submissions either individually or in a larger combined action.8 Similarly, EPA interprets the 

CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure 

SIP submission for a given NAAQS without concurrent action on the entire submission. For 

example, EPA has sometimes elected to act at different times on various elements and subelements of the same infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to 

infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not 

every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, 

for each new or revised NAAQS. The states’ attendant infrastructure SIP submissions for each 

NAAQS therefore could be different. For example, the monitoring requirements that a state 

might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) 

could be very different for different pollutants, for example because the content and scope of a 

state’s infrastructure SIP submission to meet this element might be very different for an entirely 

new NAAQS than for a minor revision to an existing NAAQS.10 

 

8 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source 

Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA’s final action approving the 

structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of 

EPA’s 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) 

(EPA’s final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). 

9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and 

Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) 

and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took 

final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), 

EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of 

Tennessee’s December 14, 2007 submittal. 

10 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to 

measure ambient levels of that new indicator species for the new NAAQS. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

10 

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews 

other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP 

submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) 

that logically apply to these other types of SIP submissions. For example, section 172(c)(7) 

requires that attainment plan SIP submissions required by part D have to meet the “applicable 

requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must 

meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control 

measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it 

is clear that attainment plan SIP submissions required by part D would not need to meet the 

portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of 

the CAA, because PSD does not apply to a pollutant for which an area is designated 

nonattainment and thus subject to part D planning requirements. As this example illustrates, each 

type of SIP submission may implicate some elements of section 110(a)(2) but not others. 

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) 

and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In 

other words, EPA assumes that Congress could not have intended that each and every SIP 

submission, regardless of the NAAQS in question or the history of SIP development for the 

relevant pollutant, would meet each of the requirements, or meet each of them in the same way. 

Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions 

against the list of elements in section 110(a)(2), but only to the extent each element applies for 

that particular NAAQS. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

11 

Historically, EPA has elected to use guidance documents to make recommendations to 

states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising 

issues and in some cases conveying interpretations that have already been developed and applied 

to individual SIP submissions for particular elements.11 EPA most recently issued guidance for 

infrastructure SIPs on September 13, 2013 (2013 Guidance). 12 EPA developed this document to 

provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. 

Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to 

meet basic structural SIP requirements within three years of promulgation of a new or revised 

NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) 

that are relevant in the context of infrastructure SIP submissions.13 The guidance also discusses 

the substantively important issues that are germane to certain subsections of section 110(a)(2). 

Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP 

submissions need to address certain issues and need not address others. Accordingly, EPA 

reviews each infrastructure SIP submission for compliance with the applicable statutory 

provisions of section 110(a)(2), as appropriate. 

 

11 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for 

infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP 

submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. 

EPA elects to issue such guidance in order to assist states, as appropriate. 

12

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

and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013. 

13 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP 

submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court 

agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted 

the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected 

not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is 

neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no 

impact on a state’s CAA obligations. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

12 

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for 

infrastructure SIP submissions. Under this element, a state must meet the substantive 

requirements of section 128, which pertain to state boards that approve permits or enforcement 

orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure 

SIP submissions to ensure that the state’s SIP appropriately addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there 

may be a variety of ways by which states can appropriately address these substantive statutory 

requirements, depending on the structure of an individual state’s permitting or enforcement 

program (e.g., whether permits and enforcement orders are approved by a multi-member board 

or by a head of an executive agency). However they are addressed by the state, the substantive 

requirements of section 128 are necessarily included in EPA’s evaluation of infrastructure SIP 

submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the 

provisions of section 128. 

As another example, EPA’s review of infrastructure SIP submissions with respect to the 

PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the 

structural PSD program requirements contained in part C and EPA’s PSD regulations. Structural 

PSD program requirements include provisions necessary for the PSD program to address all 

regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program 

requirements do not include provisions that are not required under EPA’s regulations at 40 CFR 

51.166 but are merely available as an option for the state, such as the option to provide 

grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in 

the context of an infrastructure SIP action. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

13 

For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure 

SIP submission focuses on assuring that the state’s SIP meets basic structural requirements. For 

example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to 

regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor 

new source review program and whether the program addresses the pollutants relevant to that 

NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not 

think it is necessary to conduct a review of each and every provision of a state’s existing minor 

source program (i.e., already in the existing SIP) for compliance with the requirements of the 

CAA and EPA’s regulations that pertain to such programs. 

With respect to certain other issues, EPA does not believe that an action on a state’s 

infrastructure SIP submission is necessarily the appropriate type of action in which to address 

possible deficiencies in a state’s existing SIP. These issues include: (i) existing provisions related 

to excess emissions from sources during periods of startup, shutdown, or malfunction that may 

be contrary to the CAA and EPA’s policies addressing such excess emissions (“SSM”); (ii) 

existing provisions related to “director’s variance” or “director’s discretion” that may be contrary 

to the CAA because they purport to allow revisions to SIP-approved emissions limits while 

limiting public process or not requiring further approval by EPA; and (iii) existing provisions for 

PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR 

Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 

2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission 

without scrutinizing the totality of the existing SIP for such potentially deficient provisions and 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

14 

may approve the submission even if it is aware of such existing provisions. 14 It is important to 

note that EPA’s approval of a state’s infrastructure SIP submission should not be construed as 

explicit or implicit re-approval of any existing potentially deficient provisions that relate to the 

three specific issues just described. 

EPA’s approach to review of infrastructure SIP submissions is to identify the CAA 

requirements that are logically applicable to that submission. EPA believes that this approach to 

the review of a particular infrastructure SIP submission is appropriate, because it would not be 

reasonable to read the general requirements of section 110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each and every provision of a state’s existing SIP against all 

requirements in the CAA and EPA regulations merely for purposes of assuring that the state in 

question has the basic structural elements for a functioning SIP for a new or revised NAAQS. 

Because SIPs have grown by accretion over the decades as statutory and regulatory requirements 

under the CAA have evolved, they may include some outmoded provisions and historical 

artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant 

problem for the purposes of “implementation, maintenance, and enforcement” of a new or 

revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA 

believes that a better approach is for states and EPA to focus attention on those elements of 

section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the 

promulgation of a new or revised NAAQS or other factors. 

 

14 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that 

contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would 

need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of 

the action on the infrastructure SIP. 
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9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

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For example, EPA’s 2013 Guidance gives simpler recommendations with respect to 

carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 

110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an 

infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need 

only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). 

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is 

based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides 

other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. 

These other statutory tools allow EPA to take appropriately tailored action, depending upon the 

nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a 

“SIP call” whenever the Agency determines that a state’s SIP is substantially inadequate to attain 

or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.15

Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP 

submissions.16 Significantly, EPA’s determination that an action on a state’s infrastructure SIP 

submission is not the appropriate time and place to address all potential existing SIP deficiencies 

does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the 

basis for action to correct those deficiencies at a later time. For example, although it may not be 

 

15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of 

excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011). 

16 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See 

“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). EPA has 

previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 

1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 

16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada 

SIPs). 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

16 

appropriate to require a state to eliminate all existing inappropriate director’s discretion 

provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 

110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing 

such deficiency in a subsequent action.17 

III. State Submittal and EPA Action 

On April 4, 2014, the Hawaii Department of Health (HDOH) submitted the “Hawaii State 

Implementation Plan Revision for 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air 

Quality Standard Clean Air Act section 110(a)(1) & (2)” (Hawaii Ozone and Nitrogen Dioxide 

Infrastructure SIP), which includes (1) a “Proposed Certification of Adequacy Table” 

(Attachment 1), (2) a “Proposed List of Revisions to Regulatory and Statutory Provisions in the 

Hawaii State Implementation Plan” (Attachment 2); (3) Summary of Public Participation 

Proceedings (Attachment 3); (4) Hawaii Revised Statutes Title 19, Health Chapter 342B, Air 

Pollution Control Sections 4 and 5 (Appendix A); (5) Hawaii Administrative Rules, Chapter 11-

60.1, Section 31(Appendix B); and (6) other supporting materials.18 

On April 21, 2014, EPA determined that the SIP revision was complete, except for the 

following sub-elements: 110(a)(2)(C) sub-element 3 (preconstruction PSD permitting of major 

sources); 110(a)(2)(D); and 110(a)(2)(J) sub-elements 1 (consultation with identified officials on 

certain air agency actions) and 3 (PSD). 

IV. EPA’s Evaluation and Proposed Action 

 

17 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a 

director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 

42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26, 

2011) (final disapproval of such provisions). 

18 A copy of the complete Hawaii ozone and nitrogen dioxide Infrastructure SIP submittal has been placed in the 

docket for this action and is available online at http://www.regulations.gov, docket number EPA-R09-OAR-2014-

0317. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

17 

EPA has evaluated the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP in relation 

to the infrastructure SIP requirements of CAA section 110(a)(2) and the applicable implementing 

regulations in 40 CFR Part 51. The Technical Support Document (TSD) for this action, which is 

available in the docket to this action, includes our evaluation for each element, as well as our 

evaluation of various statutory and regulatory provisions. In particular, we evaluated Hawaii 

Administrative Rules (HAR) section 11-60.1-31 Hawaii Revised Statutes (HRS) sections 342B-4 

342B-5 for approval into the Hawaii SIP and HRS sections 342-14, 342-18 and 342-19 for 

removal from the SIP. 

Based upon this analysis, EPA proposes to approve HAR section 11-60.1-31 and HRS 

sections 342B-4 and 342B-5 into the Hawaii SIP and to remove HRS sections 342-14, 342-18 

and 342-19 from the SIP. We also propose to approve the Hawaii Ozone and Nitrogen Dioxide 

Infrastructure SIP with respect to the following requirements: 

· Section 110(a)(2)(A): Emission limits and other control measures. 

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

· Section 110(a)(2)(C) (in part): Program for enforcement of control measures and 

regulation of new stationary sources (minor NSR program). 

· Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight 

of local governments and regional agencies. 

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

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

· Section 110(a)(2)(H): SIP revisions. 

· Section 110(a)(2)(J) (in part): Public notification (sub-element 2). 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

18 

· Section 110(a)(2)(K): Air quality modeling and submission of modeling data. 

· Section 110(a)(2)(L): Permitting fees. 

· Section 110(a)(2)(M): Consultation/participation by affected local entities. 

As explained above, we previously found the Hawaii Ozone and Nitrogen Dioxide 

Infrastructure SIP incomplete with respect to various sub-elements. Where EPA determines that 

a portion of a SIP submission is incomplete, “the State shall be treated as not having made the 

submission (or, in the Administrator's discretion, part thereof).”19 Accordingly, we are not 

proposing to act on the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP with respect to 

110(a)(2)(C) sub-element 3 (preconstruction PSD permitting of major sources); 110(a)(2)(D) all 

sub-elements; and 110(a)(2)(J) sub-elements 1 (consultation with identified officials on certain 

air agency actions) and 3 (PSD). 

 

V. Statutory and Executive Order Reviews 

Under the CAA, the Administrator is required to approve a SIP submission that complies 

with the provisions of the Act and applicable Federal regulations (42 U.S.C. 7410(k), 40 CFR 

52.02(a)). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided 

that they meet the criteria of the CAA. Accordingly, this proposed action merely approves some 

state law as meeting federal requirements; this proposed action does not impose additional 

requirements beyond those imposed by state law. For that reason, this proposed action: 

· Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management 

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); 

 

19 CAA section 110(k)(1)(C). 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

19 

· Does not impose an information collection burden under the provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.); 

· Is certified as not having a significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 

· Does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–

4); 

· Does not have Federalism implications as specified in Executive Order 13132 (64 FR 

43255, August 10, 1999); is not an economically significant regulatory action based on 

health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); 

· Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, 

May 22, 2001); 

· Is not subject to requirements of section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the CAA; and, 

· Does not provide EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). 

In addition, this rule does not have tribal implications as specified by Executive Order 

13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian 

country located in the State, and EPA notes that it will not impose substantial direct costs on 

tribal governments or preempt tribal law. 
This document is a prepublication version, signed by Jared Blumenfeld, Regional Administrator, EPA Region 

9 on April 25, 2014. We have taken steps to ensure the accuracy of this version, but it is not the official 

version. 

20 

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental relations, Oxides of 

nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 

 

__________________ ________________________ 

Dated: Jared Blumenfeld, 

Regional Administrator, 

EPA Region 9.