Air Quality EN VI RONMENTAL QUALI TY 

Heather McTeer Toney 

Regional Administrator 

USEP A Region 4 

Atlanta Federal Center 

61 Forsyth Street, SW 

Atlanta, GA 30303-8960 

December 4, 2015 

PAT MCCRORY G01·er1101 

DONALD R. VAN DER VAART 

Seo·ett1n 

SHEILA C. HOLMAN D1recto1 

Subject: Certification for Clean Air Act Section 11 O(a)(l) and (2) Infrastructure Requirements 

for the 2012 Annual Fine Particulate Matter (PM2.s) Primary Standard 

Dear Ms. Toney: 

I am pleased to submit the final certification demonstrating that the North Carolina 

Department of Environmental Quality, Division of Air Quality (DAQ) has met the requirements 

of the Clean Air Act Section 1 lO(a)(l) and (2) for the 2012 Annual Fine Particulate Matter 

(PM2.s) Primary National Ambient Air Quality Standard (NAAQS). Attachment 1 contains 

copies of the EPA memoranda and notices used to develop the Infrastructure SIP. Attachment 2 

contains the public notice and the EPA' s no-comment letter. An exact duplicate electronic copy 

of the entire package is provided on a compact disc. 

The North Carolina General Statutes identified in this certification are cited as reference 

material only, and should not be adopted as part of North Carolina's SIP. The DAQ believes that 

legal documents and statutes are not required to be adopted into the SIP based upon the EPA 

Federal Register (FR) notice on May 19, 2010 regarding California's legal authority (7 5 FR 

2793 8). In this final rule, the EPA states, "We also noted that the actual statutory provisions and 

other legal documents relied upon to support a State's assurance of adequate legal authority need 

not be approved into the SIP under CAA section 110 or [USEPA's] SIP regulations under 40 

[Code of Federal Regulation] part 51 (although such provisions are required to be submitted with 

the plan). Thus, [USEPA] could approve, consistent with CAA and [USEPA] requirements, and 

did so in this instance, a wholesale revisions to the original legal authority chapter without also 

approving the actual statutory provisions and other legal documents cited there." 

Dear Sir or Madam: 

The DAQ issued a public notice announcement on October 27, 2015, in accordance with 

40 CFR 51 .102, indicating that the "North Carolina Certification For Clean Air Act Sections 

11 O(a)(l) and (2) Infrastructure State Implementation Plan for the 2012 Annual Particulate 

Matter (PM2.5) National Ambient Air Quality Standard" was available for public comment and 

posted on the DAQ website for review. The public notice announcement indicated that anyone 

may request a public hearing. 

State of North Carolina I Environmental Qua lity I Air Quality 

1641 Mail Service Center I 217 W. Jones Street, Suite 4000 I Raleigh, NC 27609- 164 1 

919 707 8400 T 
Heather McTeer Toney 

December 4, 2015 

Page 2 

In addition to posting on the DAQ website, the public notice announcement was sent to a 

number of e-mail distribution lists managed by the DAQ that includes numerous stakeholders 

from industry and environmental groups. The DAQ believes that sending the public notice 

announcement to these groups is more effective than publishing the notice in a few local 

newspapers and is consistent with the requirements described in the April 6, 2011, memorandum, 

"Regional Consistency for the Administrative Requirements of the State Implementation Plan 

Submittals and the Use of Letter Notices. " 

Additionally, the Rich Site Summary (RSS) feed on the DAQ website offers regular 

delivery to persons interested in receiving updates to the website content. The document was 

also made available for review during normal business hours at the DAQ Central Office in 

Raleigh and all of the DAQ's Regional Offices. 

The public comment period was open from October 27, 2015 through November 30, 

2015. The DAQ did not receive any requests for a public hearing or any comments from the 

public or the EPA. 

The DAQ believes it has in good faith addressed the requirements of Section 1 lO(a)(l) 

and (2) for the 2012 annual PM2.s primary NAAQS. If you should have any questions regarding 

this submittal, please contact Randy Strait of my staff at (919) 707-8721. 

SCH/rps 

Attachments 

cc: Michael Abraczinskas, NCDAQ 

Sushma Masemore, NCDAQ 

Randy Strait, NCDAQ 

Scott R. Davis, USEP A 

Lynorae Benjamin, USEPA 

Sincerely, 

Sheila C. Holman, Director 

Division of Air Quality, NCDEQ 

William Barnette, Forsyth County Office of Environmental Assistance and Protection 

Leslie Rhodes, Mecklenburg County Air Quality 

David Brigman, Western Regional Air Quality Agency 
Final North Carolina Certification 1

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

North Carolina Certification For

Clean Air Act Sections 110(a)(1) and (2)

Infrastructure State Implementation Plan for the

2012 Annual Particulate Matter (PM2.5)

National Ambient Air Quality Standard

The United States Environmental Protection Agency (EPA) revised the annual National Ambient 

Air Quality Standard (NAAQS) for fine particulate matter (PM2.5) on December 14, 2012 by 

lowering the primary (health-based) standard to 12.0 micrograms per cubic meter (μg/m3) from 

the previous 15.0 μg/m3standard. The EPA did not revise the secondary annual PM2.5 standard 

of 15.0 μg/m3set in 1997, the 24-hour primary and secondary PM2.5 standards of 35 μg/m3set in 

2006, or the 24-hour primary and secondary coarse particle matter (PM10) standards of 150 

μg/m3set in 1987. 

On December 18, 2014, the EPA Administrator notified the Governor of North Carolina that 

“...no area within North Carolina violates the 2012 standard or contributes to a nearby violation 

of the standard. As a result, the EPA is designating all of North Carolina as “unclassifiable/ 

attainment.” (See http://ncair.org/planning/pm2dot5/EPA_PM25_Designations_12182014.pdf). 

When the EPA revises an existing standard, Clean Air Act (CAA) Sections 110(a)(1) and (a)(2) 

require each state to revise their State Implementation Plan (SIP) to show they have the authority 

and programs needed to implement, maintain, and enforce the standard. States must submit an 

infrastructure SIP within three years after a federal standard is adopted or revised. 

This document serves as North Carolina’s infrastructure SIP for the 2012 annual PM2.5 NAAQS.

The DAQ relied on EPA’s September 13, 2013 memorandum, “Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” and 

EPA’s September 25, 2009 memorandum, “Guidance on SIP Elements Required Under Sections 

110(a)(1) and (2) for the 2006 24-Hour Fine Particulate (PM2.5) NAAQS” for preparing this 

certification demonstration. Attachment 1 contains copies of the EPA memorandums and 

notices used to develop the Infrastructure SIP. Each of the basic or infrastructure requirements,

listed below, identify the corresponding North Carolina State rule or general statute

implementing each SIP element. 

The State rules can be found on the North Carolina Division of Air Quality (DAQ) website 

(www.ncair.org). The North Carolina General Statutes (NCGS) referenced in this document can 

be found on the North Carolina General Assembly website 

(http://www.ncleg.net/gascripts/statutes/Statutes.asp). These statutes are stated as reference 

material, and should not be adopted as part of North Carolina’s SIP. 
Final North Carolina Certification 2

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Emission Limits and Other Control Measures [§ 110(a)(2)(A)]: 

Section 110(a)(2)(A) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall - 

“include enforceable emission limitations and other control measures, means, or 

techniques (including economic incentives such as fees, marketable permits, and auctions 

of emissions rights), as well as schedules and timetables for compliance, as may be 

necessary or appropriate to meet the applicable requirements of this [Act].”

15A North Carolina Administrative Code (NCAC) 2D .0500, “Emission Control Standards”, 

serves to establish emission limits for PM2.5. The following rules address additional control 

measures, means, and techniques:

 15A NCAC 2D .0600 “Monitoring: Recordkeeping: Reporting”

 15A NCAC 2D .0900 “Volatile Organic Compounds”

 15A NCAC 2D .1000 “Motor Vehicle Emission Control Standards”

 15A NCAC 2D .1200 “Control of Emissions from Incinerators”

 15A NCAC 2D .1400 “Nitrogen Oxides”

 15A NCAC 2D .1700 “Municipal Solid Waste Landfills”

 15A NCAC 2D .1800 “Control of Odors”

 15A NCAC 2D .1900 “Open Burning”

 15A NCAC 2D .2000 “Transportation Conformity”

 15A NCAC 2D .2200 “Special Orders”

 15A NCAC 2D .2300 “Banking Emission Reduction Credits”

 15A NCAC 2D .2600 “Source Testing”

 2002 North Carolina Clean Smoke Stacks Act (CSA), Session Law 2002-4 (NCGS 143-

215.107d)

o On September 26, 2011, the system-wide nitrogen oxide (NOx) and sulfur dioxide 

(SO2) emissions caps in the CSA became federally enforceable as part of North 

Carolina’s SIP (76 FR 59250)

 Federal Implementation Plan - Cross State Air Pollution Rule (CSAPR)

Sulfur dioxide is a primary precursor to the secondary formation of particulate matter in the air. 

The reduction in SO2 emissions required by the CSA was paramount in attaining the 2006 PM2.5

standard in the Hickory and Greensboro/High Point areas in North Carolina. In December 2009, 

North Carolina Department of Environmental Quality (DEQ) submitted to the EPA a 

redesignation demonstration and maintenance plan for these areas and then supplemented the 

maintenance plan in December 2010. As part of the redesignation demonstration and 

maintenance plan, DEQ relied on the CSA SO2 reductions as permanent and enforceable 

measures that demonstrate continued maintenance of the PM2.5 standard. On Sept. 26, 2011, the 

EPA adopted the CSA emission caps into the SIP (76 FR 59250). On Nov. 18, 2011, the EPA 

approved the redesignation demonstration and maintenance plan for the Hickory and 

Greensboro/High Point areas (76 FR 71452 and 71455). In this action, the EPA redesignated the 
Final North Carolina Certification 3

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

area to attainment, effective Dec. 19, 2011. The approval of the North Carolina PM2.5

redesignation demonstration was made possible due to the CSA SO2 emission caps. 

NCGS 143-215.107(a)(5), Air quality standards and classifications, provides the North Carolina 

Environmental Management Commission (EMC) with the statutory authority, “To develop and 

adopt emission control standards as in the judgment of the Commission may be necessary to 

prohibit, abate, or control air pollution commensurate with established air quality standards.”

Although North Carolina is not relying on CSAPR for maintaining compliance with the PM2.5

NAAQS, CSAPR is a federally enforceable program that once fully implemented may yield 

residual SO2 and NOx emissions reduction benefits. On April 29, 2014, the U.S. Supreme Court 

reversed the D.C. Circuit Court of Appeals’ decision to vacate CSAPR. Following this ruling, 

on October 23, 2014 the D.C. Circuit granted the EPA’s request to lift the CSAPR stay and toll 

the CSAPR compliance dates by three years. Beginning on January 1, 2015, SO2 and NOx 

emissions levels under Phase I took effect. However, on July 28, 2015, the D.C. Circuit Court of 

Appeals released a decision invalidating the EPA’s 2014 ozone-season NOx budgets for North 

Carolina and 10 other states.1 The Court remanded without vacatur to the EPA to reconsider the 

Phase II NOx budgets that may be too restrictive, but did not sustain other challenges to the rule. 

North Carolina is on track to comply with the Phase I CSAPR requirements which are federally 

enforceable. North Carolina will continue to comply with the Phase I CSAPR requirements, as 

well as the Phase II requirements (beginning on January 1, 2017) when applicable.

 

1 EPA v. EME Homer City Generation, L.P. U.S. Court of Appeals for the D.C. Circuit, No. 11-1302 (July 28, 

2015), http://www.epa.gov/airtransport/CSAPR/index.html. 
Final North Carolina Certification 4

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Ambient Air Quality Monitoring/Data System [§ 110(a)(2)(B)]:

Section 110(a)(2)(B) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall -

“(B) provide for establishment and operation of appropriate devices, methods, systems, 

and procedures necessary to—

(i) monitor, compile, and analyze data on ambient air quality, and 

(ii) upon request, make such data available to the Administrator.”

The DAQ’s Annual Monitoring Network Plan provides for an ambient air quality monitoring 

system for PM2.5 in the State. The development and implementation of the PM2.5 monitoring 

network is ongoing to ensure compliance with the latest monitoring strategies and protocols. As 

of the date of this infrastructure SIP submittal, North Carolina’s PM2.5 monitoring strategy is set 

forth in the 2014-2015 Annual Monitoring Network Plan approved by the EPA on July 16, 2015. 

The DAQ submitted to the EPA for review and approval its Annual Monitoring Network Plan 

for 2015-2016 and a five-year network assessment plan on July 27, 2015. The five-year network 

assessment is a look forward at the projected needs of the ambient air monitoring program for the 

next five years. The need for changes to the program is driven by a number of factors, including: 

1) changes to the national ambient air quality standards due to better understanding of the 

science, 2) increases in population or shifts in that population, 3) new emission sources, and 4) 

changes in technology. Changes to the network may also be necessary due to changes in funding 

or priorities. These submissions fulfill the monitoring requirements for the PM2.5 NAAQS. 

NCGS 143-215.107(a)(2), Air quality standards and classifications, provides the North Carolina 

EMC with the statutory authority “To determine by means of field sampling and other studies, 

including the examination of available data collected by any local, State or federal agency or any 

person, the degree of air contamination and air pollution in the State and the several areas of the 

State.”
Final North Carolina Certification 5

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Programs for Enforcement of Control Measures and for Construction or Modification of 

Stationary Sources [§ 110(a)(2)(C)]: 

Section 110(a)(2)(C) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“(C) include a program to provide for the enforcement of the measures described in 

subparagraph (A), and regulation of the modification and construction of any stationary 

source within the areas covered by the plan as necessary to assure that national ambient 

air quality standards are achieved, including a permit program as required in parts C 

and D.” 

This element consists of three sub-elements: enforcement, state-wide permitting of minor 

sources, and permitting of major sources and major modifications in areas designated attainment 

or unclassifiable for the subject NAAQS (also called the major source Prevention of Significant 

Determination - PSD program). 

NCGS 143-215.61, Enforcement Procedures, provides DEQ with the statutory authority to 

enforce air quality rules. 

NCGS 143-215.108, Control of sources of air pollution; permits required, provides the North 

Carolina EMC with the statutory authority to permit sources of air pollution. 

NCGS 143-215.107(a)(7), Air quality standards and classifications, provides the North Carolina 

EMC with the statutory authority “To develop and adopt standards and plans necessary to 

implement programs for the prevention of significant deterioration and for the attainment of air 

quality standards in nonattainment areas.” 

The following North Carolina air quality rules address minor source pre-construction, minor 

source modifications, and pre-construction PSD permitting of major sources:

 15A NCAC 2D .0500 “Emission Control Standards”, 2D .0530 “Prevention of 

Significant Deterioration” applies to the construction of any new major stationary source 

or any project at an existing major stationary source in an area designated as attainment 

or unclassifiable. 

 15A NCAC 2D .0531 “Sources in Nonattainment Areas” applies to the construction of 

any new major stationary source or major modification at an existing major stationary 

source in an area designated as nonattainment. 

 15A NCAC 2Q .0300 “Construction and Operation Permits”, requires stationary sources,

prior to construction or operation, to have an air permit if the source is above an emission 

threshold or operates air pollutant control devices. 

 15A NCAC 2Q .0500 “Title V Procedures”, establishes an air quality permitting program 

as required under Title V and 40 CFR Part 70. 

North Carolina has submitted all PSD requirements to EPA for approval, including a SIP 

revision related to adoption of PSD requirements established in the 2008 New Source Review 
Final North Carolina Certification 6

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

(NSR) PM2.5 Rule and the 2010 PM2.5 Increments, Significant Impact Level (SILs) and 

Significant Monitoring Concentration (SMC) Rule to comply with 2006 PM2.5 infrastructure 

requirements for elements C, (D)(i) and (J). These requirements will also satisfy the same 

elements for the 2012 annual PM2.5 infrastructure SIP. The PSD rules became state effective on 

September 5, 2013, after adoption by the North Carolina EMC and the Rules Review 

Commission. The DAQ made a final submission to the EPA on September 5, 2013.

Part D programs are required for areas that are designated nonattainment for a NAAQS. Since 

there are no PM2.5 nonattainment areas in North Carolina, a Part D permit program is not 

required.

The EPA has stated that “structural PSD program provisions need to include provisions 

necessary for the PSD program to address all regulated sources and NSR pollutants, including 

greenhouse gases (GHG).” On October 18, 2011, the EPA approved revisions to North 

Carolina’s PSD program to incorporate federal Tailoring Rule Revisions (76 FR 64240) related 

to GHGs into 15A NCAC 02D .0544 (Prevention of Significant Deterioration Requirements for 

Greenhouse Gases). 

On June 23, 2014, the U.S. Supreme Court issued a decision in Utility Air Regulatory Group 

(UARG) v. the EPA addressing the application of stationary source permitting requirements to 

GHG emissions. In its decision, the Supreme Court said that the EPA may not treat GHGs as an 

air pollutant for the purposes of determining whether a source is a major source required to 

obtain a PSD or Title V permit. Subsequently, the North Carolina EMC adopted a temporary 

rule in November 2014 to incorporate the Supreme Court’s decision into 15A NCAC 02D .0544

and 15A NCAC 02Q .0502, Applicability, to remove requirements that major stationary sources 

obtain a PSD or Title V permit solely on the basis of GHG emissions. The temporary rule

became effective on December 2, 2014, and the final rule became State effective on September 

1, 2015. Thus, North Carolina is complying with these requirements. 
Final North Carolina Certification 7

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Interstate Pollution Transport Provisions [§ 110(a)(2)(D)(i)]: 

Section 110(a)(2)(D)(i) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall-

“(D) contain adequate provisions –

(i) prohibiting, consistent with the provisions of this subchapter, any source or other type 

of emissions activity within the State from emitting any air pollutant in amounts which 

will -

(I) contribute significantly to nonattainment in, or interfere with maintenance by, any 

other State with respect to any such national primary or secondary ambient air 

quality standard, or 

(II) interfere with measures required to be included in the applicable implementation 

plan for any other State under part C of this subchapter to prevent significant 

deterioration of air quality or to protect visibility.”

Subsection 2(D)(i)(I)

Section 110(a)(2)(D)(i)(I) is also known as the good neighbor provision of the CAA in that 

upwind states are responsible for the effects of their pollution on downwind states. Under this 

section of the Act, states are responsible for reducing their “significant contribution” to those 

downwind nonattainment or maintenance areas. 

The following rules address additional control measures, means, and techniques that ensure that 

North Carolina is not interfering with attainment or maintenance of the annual PM2.5 NAAQS in 

a downwind state:

 15A NCAC 2D .0600 “Monitoring: Recordkeeping: Reporting”

 15A NCAC 2D .0900 “Volatile Organic Compounds”

 15A NCAC 2D .1000 “Motor Vehicle Emission Control Standards”

 15A NCAC 2D .1200 “Control of Emissions from Incinerators”

 15A NCAC 2D .1400 “Nitrogen Oxides”

 15A NCAC 2D .1700 “Municipal Solid Waste Landfills”

 15A NCAC 2D .1800 “Control of Odors”

 15A NCAC 2D .1900 “Open Burning”

 15A NCAC 2D .2000 “Transportation Conformity”

 15A NCAC 2D .2200 “Special Orders”

 15A NCAC 2D .2300 “Banking Emission Reduction Credits”

 15A NCAC 2D .2600 “Source Testing”

 2002 North Carolina CSA, Session Law 2002-4 (NCGS 143-215.107d)

o On September 26, 2011, the system-wide NOx and SO2 emissions caps in the CSA 

became federally enforceable as part of North Carolina’s SIP (76 FR 59250)

 Federal Implementation Plan - CSAPR
Final North Carolina Certification 8

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

On December 18, 2014, the EPA Administrator notified the Governor of North Carolina that no 

area within North Carolina violates the 2012 annual PM2.5 standard or contributes to a nearby 

violation of the standard. As a result, the EPA designated all of North Carolina as 

“unclassifiable/attainment” (see 81 FR 2206). 

For the purpose of evaluating compliance with the good neighbor provisions, the DAQ examined 

the annual PM2.5 design values calculated from EPA-validated monitoring data collected from 

2011 through 2013 and 2012 through 2014 for the monitors in each state surrounding North 

Carolina and found that the monitored annual PM2.5 design values in each state are below the 

NAAQS (see Table 1). This information also shows that the design value for each state is

trending downward indicating that it is highly unlikely that North Carolina is interfering with the 

ability of our neighboring states to maintain compliance with the standard. 

Table 1. Monitored 2012 Annual PM2.5 NAAQS Design Values (μg/m3)

State Location

2011-2013 Monitoring Data 2012-2014 Monitoring Data

Design Value

Percent of 

NAAQS Design Value

Percent of 

NAAQS

NC Wake County 10.1 84 10.3 86

NC Davidson County 10.1 84 9.8 82

GA Bibb County 11.8 98 10.9 91

SC Lexington County 10.3 86 9.7 81

TN Hamilton County 10.1 84 9.6 80

VA Frederick County 9.5 79 9.2 77

Source: EPA-validated design values in this table are taken from the EPA Air Trends/Design Values website; File 

“PM25_DesignValues_20122014_FINAL_08_19_15.xlsx”; Tab “Table 6, Site DV History” located at: 

http://www3.epa.gov/airtrends/values.html.

For downwind states that do not border North Carolina, the EPA designated three areas in 

Pennsylvania (Allegheny, Delaware, and Lebanon Counties) as moderate nonattainment for the 

2012 annual PM2.5 standard; effective April 15, 2015. The DAQ reviewed the air quality 

modeling analyses that the EPA conducted in support of its decision to revise the 2012 annual 

PM2.5 standard. In this study, the EPA concluded that all of the states downwind of North 

Carolina would be in compliance with the 2012 annual PM2.5 NAAQS by 2020; which is one 

year prior to the attainment year for the three areas in Pennsylvania (see Table 2). Given that all 

of North Carolina and the states between North Carolina and Pennsylvania (i.e., Virginia, West 

Virginia, and Maryland) are all attaining the 2012 annual PM2.5 standard, North Carolina 

believes that it does not have any significant contribution to annual PM2.5 concentrations in the 

moderate nonattainment areas in Pennsylvania.
Final North Carolina Certification 9

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Table 2. Modeled 2020 Annual PM2.5 NAAQS Design Values (μg/m3)

State Location

2020 Predicted Annual Design 

Value Percent of NAAQS

NC Haywood County 9.1 76

GA Bibb and Wilkinson Counties 10.9 91

SC Greenville County 9.8 82

TN Knox County 10.2 85

VA Roanoke City 8.9 74

PA Allegheny County 11.1 93

MD Baltimore City 8.9 74

Source: Projected Fine Particle Concentrations for Counties with Monitors in 2020, 

http://www.epa.gov/pm/2012/2020table.pdf. This reference is supplementary information posted with the Air 

Quality Modeling Technical Support Document for the Regulatory Impact Analysis for the Revisions to the National 

Ambient Air Quality Standards for Particulate Matter, U.S. Environmental Protection Agency, Office of Air Quality 

Planning and Standards Air Quality Assessment Division, Research Triangle Park, NC 27711, December 2012

(http://www.epa.gov/pm/actions.html). 

As shown in Figure 1 and Table 3, North Carolina’s statewide annual PM2.5, NOx, and SO2

emissions have significantly declined since 1996 due to the state and federal programs. From 

1996 through 2011, PM2.5, NOx, and SO2 emissions have declined by about 36, 48, and 80, 

percent, respectively. From 2011 through 2017, PM2.5, NOx, and SO2 emissions are estimated to 

decline by an additional 31, 39, and 50 percent, respectively. 

Figure 1. Trends in North Carolina’s Statewide Emissions (Thousand Tons / Year)
Final North Carolina Certification 10

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Table 3. Trends in North Carolina’s Annual Statewide Emissions (Thousand Tons / Year)

Pollutant 1990 1996 1999 2002 2005 2008 2011 2013 2017

PM2.5 147 135 164 111 129 243 87 84 60

NOx 631 739 660 609 523 459 386 277 234

SO2 473 603 582 597 651 301 119 88 59

Sources: For 1990 through 2011, emissions are from the EPA’s National Emissions Inventory located at

http://www3.epa.gov/ttn/chief/eiinformation.html. For 2013, emissions were estimated by the DAQ. 

For 2017, emissions are from the EPA’s 2017 v6.2 modeling platform emissions summary, located at: 

ftp://ftp.epa.gov/EmisInventory/2011v6/v2platform/reports/2017eh_cb6v2_v6_11g_state_sector_totals.xlsx.

According to the EPA’s emissions projections, emissions are expected to continue to decline 

through 2017 and beyond due to on-the-books national rules for onroad and nonroad mobile 

sources including the following:

Onroad

 Tier 3 Motor Vehicle Emission and Fuel Standards Program, 

 Light-Duty Vehicle Tier 2 Rule, 

 Heavy Duty Diesel Rule, 

 Mobile Source Air Toxics Rule, 

 Renewable Fuel Standard, 

 Light-Duty Greenhouse Gas/Corporate Average Fuel Efficiency Standards for 2012-

2016, 

 Heavy-Duty Vehicle Greenhouse Gas Rule, and

 2017 and the Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and 

Corporate Average Fuel Economy Standards Rule. 

Nonroad

 Clean Air Nonroad Diesel Final Rule - Tier 4

 Control of Emissions from Nonroad Large Spark-Ignition Engines, and Recreational 

Engines (Marine and Land-Based)

 Small Engine Spark Ignition (“Bond”) Rule

The DAQ believes that, in conjunction with the continued implementation of the state’s ability to 

limit NOx and SO2 emissions through North Carolina’s CSA and federally enforceable emission 

limitations and other control measures, means, or techniques, low monitored values of PM2.5 will 

continue in and around North Carolina. In other words, PM2.5 emissions and emissions 

precursors to PM2.5 formation from North Carolina are not expected to cause or contribute to a 

violation or interfere with the maintenance of the 2012 annual PM2.5 NAAQS in another state. 
Final North Carolina Certification 11

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Subsection 2(D)(i)(II)

Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other 

type of emissions activity in one state from interfering with measures required of any other state 

to prevent significant deterioration of air quality, or from interfering with measures required of 

any other state to protect visibility. 

The following North Carolina air quality rules address the requirements under this subsection:

There are no nonattainment areas subject to Nonattainment New Source Review for the 2012

annual PM2.5 NAAQS.

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” applies to the 

construction of any new major stationary source or any project at an existing major 

stationary source in an area designated as attainment or unclassifiable. 

 “Regional Haze SIP for North Carolina Class I areas”, December 17, 2007

North Carolina has developed and implemented a Regional Haze SIP to protect visibility in five

Class I areas: Great Smoky Mountains National Park, Joyce Kilmer-Slickrock Wilderness Area,

Linville Gorge Wilderness Area, Shining Rock Wilderness Area, and Swanquarter National 

Wildlife Refuge. North Carolina’s Regional Haze SIP also addresses visibility impacts to

downwind states. On June 27, 2012, the EPA finalized a limited approval of North Carolina’s 

Regional Haze SIP, as meeting some of the applicable regional haze requirements set forth in 

Sections 169A and 169b of the Clean Air Act and in 40 CFR 51.300-308. The limited approval 

was due to the disapproval of certain portions of the SIP which relied on CAIR. In response to 

this action, North Carolina submitted to the EPA a SIP revision titled “Alternative to Source 

Specific Best Available Retrofit Technology (BART) Demonstration for Electric Generating 

Facilities In North Carolina” on October 31, 2014. This SIP submittal demonstrates that the SO2

and NOx emissions reductions required by the CSA are equal to or better than BART for six 

EGUs subject to BART as a long-term strategy sufficient to achieve reasonable progress goals. 

This SIP revision is based on the requirements specified in EPA’s Regional Haze Rule (70 FR 

39104) and Alternative BART Final Rulemaking (71 FR 60612). The EPA has not yet taken 

action on this SIP submittal. 

The DAQ has been participating in an EPA-facilitated stakeholder process that is exploring 

revisions to the Regional Haze Rule and guidance. Possible revisions to the rule include 

adjusting the date for submitting the next 10-year plan and 5-year progress report from 2018 to 

2021 to synchronize planning and technical analyses with other regulatory initiatives (e.g., 

revisions to the 2008 ozone standard) that affect some of the same air pollution sources. In 

addition, contributions from natural events and international emissions to visibility impairment 

can mask improvements in visibility achieved by reductions of anthropogenic emissions. To 

address this issue, the EPA is considering revisions to its guidance to focus on the metrics for 

tracking reasonable progress goals on domestic anthropogenic (controllable) emissions. The 

DAQ has been actively participating in this stakeholder process to share information and stay 

current with any changes the EPA may make to the program to ensure compliance with the 

Regional Haze Rule and guidance.
Final North Carolina Certification 12

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Although North Carolina is not relying on CSAPR for maintaining compliance with the 2012 

annual PM2.5 NAAQS, CSAPR is a federally enforceable program that once fully implemented 

may yield residual NOx and SO2 emissions reduction benefits.

Although North Carolina is not relying on CSAPR for maintaining compliance with the PM2.5

NAAQS, CSAPR is a federally enforceable program that once fully implemented may yield 

residual SO2 and NOx emissions reduction benefits. On April 29, 2014, the U.S. Supreme Court 

reversed the D.C. Circuit Court of Appeals’ decision to vacate CSAPR. Following this ruling, 

on October 23, 2014 the D.C. Circuit granted the EPA’s request to lift the CSAPR stay and toll 

the CSAPR compliance dates by three years. Beginning on January 1, 2015, SO2 and NOx 

emissions levels under Phase I took effect. However, on July 28, 2015, the D.C. Circuit Court of 

Appeals released a decision invalidating the EPA’s 2014 ozone-season NOx budgets for North 

Carolina and 10 other states.

2

 The Court remanded without vacatur to the EPA to reconsider the 

Phase II NOx budgets that may be too restrictive, but did not sustain other challenges to the rule. 

North Carolina is on track to comply with the Phase I CSAPR requirements which are federally 

enforceable. North Carolina will continue to comply with the Phase I CSAPR requirements, as 

well as the Phase II requirements (beginning on January 1, 2017) when applicable.

NCGS 143-215.107(a)(7) provides the authority “To develop and adopt standards and plans 

necessary to implement programs for the prevention of significant deterioration and for the 

attainment of air quality standards in nonattainment areas.”

 

2 EPA v. EME Homer City Generation, L.P. U.S. Court of Appeals for the D.C. Circuit, No. 11-1302 (July 28, 

2015), http://www.epa.gov/airtransport/CSAPR/index.html. 
Final North Carolina Certification 13

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Interstate Pollution Abatement and International Air Pollution [§ 110(a)(2)(D)(ii)]: 

Section 110(a)(2)(D)(ii) of the CAA requires that North Carolina’s SIP for the 2012 annual 

PM2.5 NAAQS shall -

“contain adequate provisions -

(ii) insuring compliance with the applicable requirements of sections 126 and 115 of this 

title (relating to interstate and international pollution abatement).”

The following rules address the requirements of Section 126(a) which directs each SIP to include 

provisions requiring a new or modified source to notify neighboring states of potential impacts 

from the source:

 15A NCAC 2D .0530 “Prevention of Significant Deterioration”

 15A NCAC 2D .0531 “Sources in Nonattainment Areas”

North Carolina has submitted all PSD requirements to EPA for approval, including a SIP 

revision related to adoption of PSD requirements established in the 2008 NSR PM2.5 Rule, the 

2010 PM2.5 Increments-SILs and SMC Rule, and subsequent court decisions to comply with 

2006 PM2.5 infrastructure requirements for elements C, (D)(i) and (J). These requirements will 

also satisfy the same elements for the 2012 annual PM2.5 infrastructure SIP. The PSD rules were 

adopted by the North Carolina EMC and the Rules Review Commission and became state 

effective September 1, 2013. The DAQ made a final submission to the EPA on September 5, 

2013. 

Unless a state is the subject of a Section 126(b) or 126(c) petition with respect to PM2.5, the state 

has no continuing obligation under these sections. North Carolina is not the subject of a Section 

126(b) or 126(c) petition. Since there are no pending EPA actions pursuant to Section 115 of the 

CAA, there is no expectation that North Carolina would need to submit anything in regards to 

Section 115 at this time.
Final North Carolina Certification 14

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Adequate Resources and Authority, Conflict of Interest, and Oversight of Local 

Governments [§ 110(a)(2)(E)]: 

Section 110(a)(2)(E) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“provide

i. necessary assurances that the State (or, except where the Administrator 

deems inappropriate, the general purpose local government or 

governments, or a regional agency designated by the State or general 

purpose local governments for such purpose) will have adequate 

personnel, funding, and authority under State (and, as appropriate, local) 

law to carry out such implementation plan (and is not prohibited by any 

provision of Federal or State law from carrying out such implementation 

plan or portion thereof).

ii. requirements that the State comply with the requirements respecting State 

boards under section 128, and

iii. necessary assurances that, where the State has relied on a local or 

regional government, agency, or instrumentality for the implementation of 

any plan provision, the State has responsibility for ensuring adequate 

implementation of such plan provision.”

15A NCAC 2Q .0200 “Permit Fees”, provides the mechanism by which stationary sources that 

emit air pollutants pay a fee based on the quantity of emissions emitted. The statutory authority 

to allow rulemaking and requiring permit fees can be found in NCGS 143‐215.3 General powers 

of Commission and Department; auxiliary powers. Additionally, NCGS 143-215.107(a)(1) Air 

quality standards and classifications, provides the North Carolina EMC with the statutory 

authority “To prepare and develop, after proper study, a comprehensive plan or plans for the 

prevention, abatement and control of air pollution in the State or in any designated area of the 

State.” In general, the elements of 110(a)(2)(E)(i) are met when the EPA performs a 

completeness determination for each SIP submittal. Each submittal provides for adequate 

personnel, funding and legal authority under State law to carry out the SIPs and related issues. 

This information is contained in all final SIP submittal packages in the historical record of the 

rule.

Section 110(a)(2)(E)(ii) of the CAA, as listed above, requires that the state comply with the 

requirements of Section 128 “State Boards”. Section 128(a)(1) requires any board or body 

which approves permits or enforcement orders shall have at least a majority of members who 

represent the public interest and do not derive any significant portion of their income from 

persons subject to permits or enforcement orders. Section 128(a)(2) requires any potential 

conflicts of interest by members of such boards or body or the head of an executive agency with 

similar powers be adequately disclosed. The DEQ has submitted Section 128 certification 

procedures to the EPA to comply with the 1997 8-hour ozone infrastructure SIP requirements. 
Final North Carolina Certification 15

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

The pending EPA approval of this SIP revision will satisfy Section 110(a)(2)(E)(ii) requirements

for the 2012 annual PM2.5 NAAQS Infrastructure SIP.

North Carolina addresses Section 110(a)(2)(E)(iii) of the CAA as listed above by requiring the 

state to provide the necessary assurances that where the state relied on a local or regional 

government for the implementation of any plan provision, the state has the responsibility for

ensuring adequate implementation of such plan provisions. North Carolina has three local 

programs that implement the air program. These agencies are located in Buncombe, Forsyth and 

Mecklenburg Counties. NCGS 143‐215.112 Local air pollution control programs, provides the 

North Carolina EMC with the statutory authority “to review and have general oversight and 

supervision over all local air pollution control programs.” In order for submittals made by the 

local air program deemed complete, all local and regional implementation plans must be 

submitted through DEQ to the EPA. 
Final North Carolina Certification 16

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Stationary Source Monitoring and Reporting [§ 110(a)(2)(F)]

Section 110(a)(2)(F) of the CAA dictates that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall -

“require, as may be prescribed by the Administrator—

(i) the installation, maintenance, and replacement of equipment, and the 

implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, 

(ii) periodic reports on the nature and amounts of emissions and emissions-related 

data from such sources, and 

(iii) correlation of such reports by the State agency with any emission limitations or 

standards established pursuant to this chapter, which reports shall be available at 

reasonable times for public inspection.”

The following North Carolina rules require monitoring of emissions from stationary sources:

 15A NCAC 2D .0604 “Exceptions to Monitoring and Reporting Requirements”

 15A NCAC 2D .0605 “General Recordkeeping and Reporting Requirements”

 15A NCAC 2D .0611 “Monitoring Emissions from Other Sources”

 15A NCAC 2D .0612 “Alternative Monitoring and Reporting Procedures”

 15A NCAC 2D .0613 “Quality Assurance Program”

 15A NCAC 2D .0614 “Compliance Assurance Monitoring”

 15A NCAC 2Q .0207 “Annual Emissions Reporting”

The Annual Emissions Reporting Rule requires stationary sources to submit periodic emissions 

reports to the state. North Carolina’s requirements meet the emissions reporting requirements of 

40 CFR Part 51, including the Air Emissions Reporting Rule requirements. NCGS 143-

215.107(a)(4) Air quality standards and classifications, provides the EMC with the statutory 

authority “To collect information or to require reporting from classes of sources which, in the 

judgment of the [EMC], may cause or contribute to air pollution.”

With respect to Section 110(a)(2)(F)(i), the cited provisions in this SIP exclude any provision 

that would prevent the use of any credible evidence of noncompliance. 
Final North Carolina Certification 17

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Emergency Episodes [§ 110(a)(2)(G)]: 

Section 110(a)(2)(G) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“provide for authority comparable to that in section 303 of this title and adequate 

contingency plans to implement such authority.” 

Section 303 provides legal authority to the EPA to stop the emission of air pollutants that present 

an imminent and substantial endangerment to public health or welfare or the environment. The 

EPA is authorized to either bring a lawsuit in federal court or, if such civil action cannot assure 

prompt protection of public health or welfare, to issue such orders as may be necessary to protect 

public health or welfare or the environment. The requirement for states to provide adequate 

contingency plans (40 CFR 51.150 through 51.153) to implement such authority is intended to 

establish emergency episode plans for responding to elevated pollutant levels in urban areas. 

Emergency episode plans are required in areas that record ambient pollutant concentrations in 

excess of threshold levels specified in 40 CFR Part 51.150.

Section 110(a)(2)(G) of the CAA requires that SIPs must provide for the authority comparable to 

that in Section 303 and must include adequate contingency plans to implement such authority. 

Pursuant to these provisions, the EPA promulgated 40 CFR 51.16 (36 FR 24002), which 

established “significant harm levels” for five criteria pollutants – SO2, inhalable particulate 

matter (PM10), 2010 nitrogen dioxide (NO2), carbon monoxide (CO), and ozone. Part 51.16 was 

restructured as Subpart H and Appendix L of Part 51. The requirement to submit an emergency 

plan for the five criteria pollutants is based on a priority classification scheme under 40 CFR Part 

51 Subpart H. 

For PM2.5, the EPA has not proposed a priority classification scheme for states to use in 

determining their priority classification or significant harm levels. In its “Guidance on 

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

and 110(a)(2)” dated September 13, 2013, the EPA recommends that states follow previous EPA 

guidance regarding the 2006 PM2.5 standard. However, although this 2009 guidance addresses 

the 24-hour PM2.5 standard, it does not specifically address the annual PM2.5 standard.

3, 4

 

On December 18, 2014, the EPA Administrator designated the entire state of North Carolina as 

“unclassifiable/attainment” for the 2012 annual PM2.5 NAAQS. The highest annual PM2.5

concentration recorded in North Carolina is 10.1 μg/m3(based on monitoring data collected from 

2011 through 2013) which is 16% below the standard. Based on this information, it is highly 

unlikely that North Carolina would ever experience a long-term event or set of events that would 

trigger the need for developing an emergency episode plan for the annual standard. Should a 

 

3 Memorandum from William T. Harnett, Director, Air Quality Policy Division, Office of Air Quality Planning and 

Standards, US Environmental Protection Agency to Regional Air Division Directors, Regions I-X, "Guidance on 

SIP Elements Required Under Sections 110(a)(l) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS), September 25, 2009. See, 

http://www.epa.gov/ttn/oarpg/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf. 

4 The issue paper can be found at http://www.epa.gov/ttn/caaa/gen/aqi_issue_paper_020707.pdf. 
Final North Carolina Certification 18

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

need ever arise, 15A NCAC 2D .0300 “Air Pollution Emergencies” provides the means to 

implement emergency air pollution episode measures and is authorized under NCGS 143-

215.3(a)(1) and NCGS 143.215.3(a)(12). Based on this information, the DAQ believes that 

North Carolina does not need to adopt an emergency episode plan for the 2012 annual PM2.5

standard. 
Final North Carolina Certification 19

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Future SIP Revisions [§ 110(a)(2)(H)]: 

Section 110(a)(2)(H) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“provide for revision of such plan—

(i) from time to time as may be necessary to take account of revisions of such 

national primary or secondary ambient air quality standard or the availability 

of improved or more expeditious methods of attaining such standard, and 

(ii) except as provided in paragraph (3)(C), whenever the Administrator finds on 

the basis of information available to the Administrator that the plan is 

substantially inadequate to attain the national ambient air quality standard 

which it implements or to otherwise comply with any additional requirements 

established under this chapter.”

NCGS 143-215.107(a)(1) and (a)(10) provide the authority “To prepare and develop, after proper 

study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in 

the State or in any designated area of the State” and “To develop and adopt standards and plans 

necessary to implement requirements of the federal Clean Air Act and implementing regulations 

adopted by the United States Environmental Protection Agency”, respectively.
Final North Carolina Certification 20

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Plan Revisions for Nonattainment Areas [§ 110(a)(2)(I)]:

Section 110(a)(2)(I) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall -

“in the case of a plan or plan revision for an area designated as a nonattainment area, 

meet the applicable requirements of part D of this subchapter (relating to nonattainment 

areas).” 

This requirement only applies when an area is designated nonattainment with the 2012 annual 

PM2.5 NAAQS and is only addressed when an attainment demonstration is required, as required 

by a separate provision and schedule as defined by the CAA. Therefore, no submission for this 

element is necessary.
Final North Carolina Certification 21

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Consultation and Public Notification [§ 110(a)(2)(J)]: 

Section 110(a)(2)(J) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“meet the applicable requirements of section 121 of this title (relating to consultation), 

section 127 of this title (relating to public notification), and part C of this subchapter 

(relating to prevention of significant deterioration of air quality and visibility 

protection).”

This element contains four separable sub-elements: consultation with identified officials on 

certain air agency actions, public notification, prevention of significant deterioration, and 

visibility protection.

Consultation with identified officials on certain actions: Section 121 requires that states provide 

a satisfactory process of consultation with general purpose local governments, designated 

organizations of elected officials of local governments, and any affected federal land manager 

(FLM) in carrying out CAA requirements. North Carolina’s authority to satisfy these 

requirements is found in:

 15A NCAC 2D .2000 “Transportation Conformity”

 15A NCAC 2D .0531 “Sources in Nonattainment Areas” address consultation 

requirements with the FLMs when permitting stationary sources. 

 “Regional Haze SIP for North Carolina Class I areas”, December 17, 2007

Public Notification: Section 127 requires states to provide measures which will be effective to

notify the public on a regular basis of instances or areas in which any air quality standard is 

exceeded during the preceding calendar year, to advise the public of the health hazards 

associated with such pollution, and to enhance public awareness of measures that can be taken to 

prevent such standards from being exceeded. North Carolina’s authority to satisfy these 

requirements is found in:

 15A NCAC 2D .0300 “Air Pollution Emergencies”

Additionally, the DAQ has several public notice mechanisms in place, including social media, to 

notify the public of ambient air quality levels of ozone and PM2.5 through the North Carolina Air 

Quality Forecasting Program. The DAQ also has an extensive outreach program to educate the 

public and promote voluntary emission reduction measures through the North Carolina Air 

Awareness Program. North Carolina participates in the EPA’s AirNOW program, which also 

enhances public awareness of air quality in North Carolina and throughout the United States. 
Final North Carolina Certification 22

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Prevention of Significant Determination: The requirements for Element J are the same as those 

described earlier with respect to Element C. North Carolina’s authority resides in the following 

rules:

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” 

 15A NCAC 2D .0531 “Sources in Nonattainment Areas”

 15A NCAC 2Q .0300 “Construction and Operation permits”

 15A NCAC 2Q 0.500 “Title V Procedures”

North Carolina has submitted all PSD requirements to EPA for approval, including a SIP 

revision related to adoption of PSD requirements established in the 2008 NSR PM2.5 Rule, the 

2010 PM2.5 Increments-SILs and SMC Rule, and subsequent court decisions to comply with 

2006 PM2.5 infrastructure requirements for elements C, (D)(i) and (J). These requirements will 

also satisfy the same elements for the 2012 annual PM2.5 infrastructure SIP. The PSD rules were 

adopted by the North Carolina EMC and the Rules Review Commission and became effective 

September 1, 2013. The DAQ made a final submission to the EPA on September 5, 2013. 

Visibility Protection: These requirements are addressed through –

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” 

 “Regional Haze SIP for North Carolina Class I areas”, December 17, 2007

On June 27, 2012, the EPA finalized a limited approval of a revision to the North Carolina’s 

Regional Haze SIP, as meeting some of the applicable regional haze requirements set forth in 

Sections 169A and 169b of the Clean Air Act and in 40 CFR 51.300-308. In response to this 

action, North Carolina submitted to the EPA a SIP revision titled “Alternative to Source Specific 

Best Available Retrofit Technology (BART) Demonstration for Electric Generating Facilities In 

North Carolina” on October 31, 2014. This SIP submittal demonstrates that the SO2 and NOx 

emissions reductions required by the CSA are equal to or better than BART for six EGUs subject 

to BART and addresses concerns about a long-term strategy sufficient to achieve reasonable 

progress goals. This SIP revision is based on the requirements specified in EPA’s Regional Haze 

Rule (70 FR 39104) and Alternative BART Final Rulemaking (71 FR 60612). The EPA has not 

yet taken action on this SIP submittal. NCGS 143-215.107(a)(7) provides the authority “To 

develop and adopt standards and plans necessary to implement programs for the prevention of 

significant deterioration and for the attainment of air quality standards in nonattainment areas.”

The DAQ has been participating in an EPA-facilitated stakeholder process that is exploring 

revisions to the Regional Haze Rule and guidance. Possible revisions to the rule include 

adjusting the date for submitting the next 10-year plan and 5-year progress report from 2018 to 

2021 to synchronize planning and technical analyses with other regulatory initiatives (e.g., 

revisions to the 2008 ozone standard) that affect some of the same air pollution sources. In 

addition, contributions from natural events and international emissions to visibility impairment 

can mask improvements in visibility achieved by reductions of anthropogenic missions. To 

address this issue, the EPA is considering revisions to its guidance to focus on the metrics for 

tracking reasonable progress goals on domestic anthropogenic (controllable) emissions. The 

DAQ has been actively participating in this stakeholder process to share information and stay 
Final North Carolina Certification 23

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

current with any changes the EPA may make to the program to ensure compliance with the 

Regional Haze Rule and guidance.

There are no other applicable visibility protection obligations under Section 110(a)(2)(J) as a 

result of the 2012 annual PM2.5 NAAQS.
Final North Carolina Certification 24

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Air Quality Modeling and Reporting [§ 110(a)(2)(K)]: 

Section 110(a)(2)(K) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall -

“provide for-

(i) the performance of such air quality modeling as the Administrator may 

prescribe for the purpose of predicting the effect on ambient air quality of any 

emissions of any air pollutant for which the Administrator has established a 

national ambient air quality standard, and 

(ii) the submission, upon request, of data related to such air quality modeling to 

the Administrator.”

On December 18, 2014, the EPA classified the entire state of North Carolina as “unclassifiable/ 

attainment” for the 2012 annual PM2.5 NAAQS. Therefore, North Carolina is not required to 

perform air quality modeling to support attainment demonstrations for submittal to the EPA. 

However, the DAQ has and will continue to maintain in the future, personnel with training and 

experience with benchmarking and running photochemical grid, source apportionment, 

trajectory, meteorological, and dispersion models and emissions processors for preparing input 

files to air quality models. The DAQ’s modeling work complies with the EPA’s final guidance

on the use of models in attainment demonstrations, and uses the latest methods and techniques to 

document modeling information and computer model performance evaluations. The DAQ works 

closely with the southeast region and other areas to conduct air quality modeling to ensure 

compatibility with federal guidelines. In addition, the DAQ’s staff conduct for selected regions 

across North Carolina daily air quality forecasting of PM2.5 year-round following the EPA’s 

established procedures and guidance.

Emissions data collected through 15A NCAC 2D .0600 “Monitoring: Recordkeeping: 

Reporting” (authorized under NCGS 143-215.107(a)(4)) provide the necessary information to 

model potential impacts of major and some minor stationary sources. 
Final North Carolina Certification 25

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Permitting Fees [§ 110(a)(2)(L)]: 

Section 110(a)(2)(L) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“require the owner or operator of each major stationary source to pay to the permitting 

authority, as a condition of any permit required under this chapter, a fee sufficient to 

cover—

(i) the reasonable costs of reviewing and acting upon any application for such a 

permit, and 

(ii) if the owner or operator receives a permit for such source, the reasonable 

costs of implementing and enforcing the terms and conditions of any such 

permit (not including any court costs or other costs associated with any 

enforcement action), until such fee requirement is superseded with respect to 

such sources by the Administrator’s approval of a fee program under 

subchapter V of this chapter.”

North Carolina’s authority to satisfy these requirements is found in:

 15A NCAC 2Q .0200 “Permit Fees”

This rule provides the mechanism by which stationary sources that emit air pollutants pay a fee 

based on the type of permit and the quantity of emissions emitted. These fees cover the costs of 

reviewing, approving, implementing and enforcing a permit. The statutory authority to allow 

permit fees can be found in NCGS 143‐215.3 General powers of Commission and Department; 

auxiliary powers.
Final North Carolina Certification 26

2012 Annual PM2.5 NAAQS

Clean Air Act Sections 110(a)(1) and (2) Infrastructure SIP December 4, 2015

Consultation and Participation by Affected Local Entities [§ 110(a)(2)(M)]: 

Section 110(a)(2)(M) of the CAA requires that North Carolina’s SIP for the 2012 annual PM2.5

NAAQS shall –

“provide for consultation and participation by local political subdivisions affected by the 

plan.”

North Carolina’s authority related to this element is found in:

 15A NCAC 2D .0530 “Prevention of Significant Deterioration” requires that the 

Department notify the public of the application, preliminary determination, degree of 

incremental consumption, and the opportunity for comment prior to making a final 

permitting decision.

 15A NCAC 2D .2000 “Transportation Conformity” requires a consultation with all 

affected partners to be implemented for transportation conformity determinations. 

All State rules go through the public review process as defined in the North Carolina 

Administrative Procedures Act (NCGS 150B-21.1 and 150B-21.2). All Attainment 

Demonstrations, Redesignation Demonstrations, and Maintenance Plans go through a public 

notification process prior to submittal to the EPA for inclusion in the SIP. Additionally, the 

Regional Haze State Implementation Plan planning efforts undergo an extensive consultation 

process between appropriate state, local, and tribal air pollution control agencies as well as the 

corresponding FLMs. Finally, the DAQ organizes stakeholder meetings to support SIP 

development and rule-making efforts. 

In addition, the DAQ has developed and signed Memoranda of Understanding (MOU) with 

local, state, and federal transportation planning partners that formalizes the consultation process 

for developing metropolitan transportation plans, transportation improvement plans and updates, 

and motor vehicle emissions budgets for maintenance plans. 
Attachment 1

The United States Environmental Protection Agency’s 

Memorandums and Notices used in Developing the 

North Carolina Certification for 

Clean Air Act Section 110(a)(1) and (2) 

2012 Annual PM2.5 Standard
(This page intentionally left blank)
USEPA Memorandums and Notices 1 

2012 Annual PM2.5 NAAQS Attachment 1

Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP December 4, 2015 

This document contains the United States Environmental Protection Agency’s (USEPA’s) two 

guidance documents, a memorandum, and a Federal Register notice used in developing the North 

Carolina Certification for Clean Air Act Section 110(a)(1) and (2) requirements for the 2012 

annual PM2.5 national ambient air quality standards. Below is a table of contents of the reference 

documents used. The page numbers in the table of contents refer to the page number of the 

Portable Document Format (PDF) at which the first page of the guidance document, 

memorandum, or notice begins. 

USEPA September 13, 2013 memorandum, “Guidance on Infrastructure State Implementation

Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).” .............................33 

USEPA September 25, 2009 memorandum, “Guidance on SIP Elements Required Under 

Sections 110(a)(l) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS).” ......................................................................................................95 

USEPA April 6, 2011, memorandum, “Regional Consistency for the Administrative 

Requirements of State Implementation Plan Submittals and the Use of Letter Notices.” ...........105 

USEPA Federal Register notice, May 19, 2010, California’s legal authority (75 FR 27938) .....119
(This page intentionally left blank)
MEMORANDUM 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

RESEARCH TRIANGLE PARK, NC 27711 

SEP '13 2013 

OFFICE OF 

AIR QUALITY PLANNING 

AND STANDARDS 

SUBJECT: Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air 

FROM: 

TO: 

Act Sections 1 lO(a)(l) and l lO(a)i) () / . 

Stephen D. Page, Director ~ 1,\}.A,cJ.A \ l J..A t{_,;;,. 

Office of Air Quality Planning and Standards 

Regional Air Directors, Regions 1 - 10 

The purpose of this memorandum is to distribute non-binding guidance from the U.S. Environmental 

Protection Agency on the requirements of certain provisions of the Clean Air Act (CAA) titled, 

"Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 

1 lO(a)(l) and 110(a)(2)." 

Sections 1 lO(a)(l) and 110(a)(2) of the CAA direct each state to develop and submit to the EPA a plan 

that provides for the implementation, maintenance, and enforcement of the national ambient air quality 

standards (NAAQS). 1 Moreover, section 1 lO(a)(l) requires that each state make a new SIP submission 

within 3 years after promulgation of a new or revised primary or secondary NAAQS, for approval into 

the existing SIP to assure that the SIP meets the applicable requirements for such new or revised 

NAAQS. This type of SIP submission is commonly referred to as an "infrastructure SIP." 

The attached guidance, developed with the benefit of extensive written comments from state and local 

air agencies on a draft version, provides advice on the development of infrastructure SIPs for the 2008 

ozone NAAQS, the 2010 nitrogen dioxide NAAQS, the 2010 sulfur dioxide NAAQS, and the 2012 fine 

particulate matter (PM2.5) NAAQS, as well as infrastructure SIPs for new or revised NAAQS 

promulgated in the future. This guidance does not address CAA section 110(a)(2)(D)(i)(I), which 

concerns interstate pollution transport affecting attainment and maintenance of the NAAQS. The EPA 

expects to issue guidance in the future with respect to section 110(a)(2)(D)(i)(I). 

Section 1 lO(a)(l) directs each state to make an infrastructure SIP submission to the EPA within 3 years 

of promulgation of a new or revised NAAQS, 2 after reasonable notice and public hearing. 3 Section 

1 These CAA sections and this guidance may also apply, as appropriate under the Tribal Authority Rule in 40 CFR Part 49, to 

an Indian tribe that receives a determination of eligibility for treatment as a state for purposes of administering a tribal air 

quality management program under section l lO(a) of the CAA. This memorandum and the guidance uses the term "air 

agency" to refer to a state or tribe that develops and submits an infrastructure SIP, except when quoting or paraphrasing a 

CAA section or EPA regulation that uses the term "state." 

2 The Administrator may specify a shorter period. 

Internet Address (URL) • http://www.epa.gov 

Recycled/Recyclable• Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer) 
l 10(a)(2) specifies the substantive elements that infrastructure SIP submissions need to address, as 

appropriate, for EPA approval. Many of the elements listed in section 110( a)(2) relate to the general 

information and authorities that constitute the basic structural requirements for a SIP needed for an air 

agency's overall air quality management program to be effective- elements that have been required to 

be in place since the initial SIPs were submitted in response to the CAA of 1970. Other elements listed 

in section l 10(a)(2) relate to SIP requirements that have been added in successive amendments to the 

CAA since 1970. Although the l 10(a)(2) requirements do not explicitly distinguish among the different 

criteria pollutants or different NAAQS, the structural SIP provisions needed to meet these requirements 

may depend on the particular new or revised NAAQS whose promulgation has triggered the requirement 

for a new infrastructure SIP submission. For example, a new or revised NAAQS may be accompanied 

by new ambient monitoring requirements tailored to that NAAQS or new prevention of significant 

deterioration program requirements. Overall, the requirement for a new infrastructure SIP submission 

provides an opportunity for the air agency, the public and the EPA to review the basics of the air quality 

management program in light of each new or revised NAAQS. 

We acknowledge that air agencies continue to express concerns about the EPA's issuance of timely 

guidance to assist their efforts to implement a new or revised NAAQS. Our goal in providing the 

attached guidance document is to provide air agencies with recommendations in order to develop 

infrastructure SIPs that will meet the CAA requirements for recently promulgated NAAQS. The EPA 

will work to assist air agencies in the development and completion of these infrastructure SIPs so they 

may be submitted as soon as possible. 

The attached guidance is also intended to provide comprehensive recommendations for infrastructure 

SIPs for new or revised NAAQS promulgated in the future. Our expectation is that this guidance will 

help to address the timeliness concerns expressed by air agencies and serve as guidance to address 

infrastructure SIP requirements for future NAAQS. As a result, the EPA intends that air agencies may 

continue to rely on this guidance for preparing infrastructure SIP submissions necessary for future 

NAAQS revisions, until such time as this guidance is supplemented or replaced by future guidance. 

Moreover, as air agencies and the EPA develop and act upon infrastructure SIP submissions through 

notice-and-comment rulemaking, the EPA anticipates that additional clarity will be provided about the 

best means to meet the statutory requirements. 

Although this guidance provides recommendations for the development and review of infrastructure 

SIPs for multiple NAAQS, we are not recommending whether an air agency should or should not make 

a single infrastructure SIP submission to address requirements for more than one NAAQS 

simultaneously. Air agencies should consult with the appropriate EPA Regional Office for advice 

regarding combining infrastructure SIP submissions for multiple NAAQS. 

Please share this guidance with the air agencies in your Region. 

For Further Information 

If you have any questions concerning this guidance, please contact H. Lynn Dail, at (919) 541-2363, 

dail.lynn@epa.gov, or Lisa Sutton, at (919) 541-3450, sutton.lisa@epa.gov. 

Attachment 

3 The EPA's rules provide that a public hearing must be offered by the air agency, but is only required if a request is made. 
Guidance on Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2)

September 2013
i

List of Selected Acronyms and Abbreviations

AERMOD American Meteorological Society/EPA Regulatory Model

AMTIC Ambient Monitoring Technology Information Center

AQI Air Quality Index

CAA Clean Air Act

CMAQ Community Multi-scale Air Quality [Model]

CAMx Comprehensive Air Quality Model with Extensions

CFR Code of Federal Regulations

CSAPR Cross-State Air Pollution Rule

EPA Environmental Protection Agency

EGU Electric generating unit

FIP Federal implementation plan

FR Federal Register

GHG Greenhouse gases

IBR Incorporation by reference

NAAQS National Ambient Air Quality Standards

NO2 Nitrogen dioxide

NOAA National Oceanic and Atmospheric Administration

NPS National Park Service

NSR New Source Review

OAQPS Office of Air Quality Planning and Standards

Pb Lead

PM2.5 Fine particulate matter

ppm Parts per million

PSD Prevention of significant deterioration

RAVI Reasonably Attributable Visibility Impairment

SHL Significant harm level

SIP State implementation plan (also, if indicated by the context, a tribal 

implementation plan)

SO2 Sulfur dioxide

SSM Startup, shutdown, and malfunction

TAR Tribal Authority Rule

TIP Tribal Implementation Plan

UBR Unavoidable breakdown rule

μg/m3 Micrograms per cubic meter
ii

Table of Contents

I. Introduction ...........................................................................................................................1

II. General Guidance on Infrastructure SIPs ..........................................................................4

Which elements of CAA 110(a)(2) affect infrastructure SIPs? .........................................4

Developing and Submitting an Infrastructure SIP Submission .........................................5

Certifications...................................................................................................................7

Determining Completeness of an Infrastructure SIP Submission....................................10

Effect of a Federal Implementation Plan on an Infrastructure SIP ..................................12

III. Guidance on Individual Infrastructure SIP Elements ....................................................18

Element A – Section 110(a)(2)(A): Emission Limits and Other Control Measures.........18

Element B – Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System ........22

Element C – Section 110(a)(2)(C): Programs for Enforcement of Control 

Measures and for Construction or Modification of Stationary Sources................23

Elements D(i)(I) and (II) – Section 110(a)(2)(D)(i): Interstate Pollution Transport.........30

Element D(ii) – Section 110(a)(2)(D)(ii): Interstate Pollution Abatement and 

International Air Pollution..................................................................................35

Element E – Section 110(a)(2)(E): Adequate Resources and Authority, Conflict of 

Interest, and Oversight of Local Governments and Regional Agencies...............39

Element F – Section 110(a)(2)(F): Stationary Source Monitoring and Reporting............45

Element G – Section 110(a)(2)(G): Emergency Episodes...............................................47

Element H – Section 110(a)(2)(H): SIP Revisions .........................................................51

Element I – Section 110(a)(2)(I): Plan Revisions for Nonattainment Areas....................52

Element J – Section 110(a)(2)(J): Consultation with Government Officials, Public 

Notification, and PSD and Visibility Protection..................................................52

Element K – Section 110(a)(2)(K): Air Quality Modeling and Submission of 

Modeling Data ...................................................................................................55

Element L – Section 110(a)(2)(L): Permitting Fees........................................................56

Element M – Section 110(a)(2)(M): Consultation and Participation by Affected 

Local Entities.....................................................................................................56
1

Guidance on Infrastructure State Implementation Plan (SIP) Elements under 

Clean Air Act Sections 110(a)(1) and 110(a)(2) 

I. Introduction

Under Clean Air Act (CAA) sections 110(a)(1) and 110(a)(2), each state1 is required to 

submit a state implementation plan (SIP)

2 that provides for the implementation, maintenance, 

and enforcement of each primary or secondary national ambient air quality standard (NAAQS). 

Moreover, section 110(a)(1) and section 110(a)(2) require each state to make this new SIP 

submission within 3 years after promulgation of a new or revised NAAQS.3 This type of SIP 

submission is commonly referred to as an “infrastructure SIP.”

Section 110(a)(1) generally directs each state to submit an infrastructure SIP to the U.S. 

Environmental Protection Agency after reasonable notice and public hearing.4 Section 110(a)(2) 

specifies the substantive elements these submissions need to address, as applicable, for the 

EPA’s approval. The subsections of section 110(a)(2) list a variety of requirements, some of 

which address authority, some of which address substantive requirements, and some of which 

consist of a combination of authority and substantive requirements. The conceptual purpose of an 

 

1 These CAA sections and this guidance may also apply, as appropriate under the Tribal Authority Rule (TAR) in 40 

CFR part 49, to an Indian tribe that receives a determination of eligibility for treatment as a state for purposes of 

administering a tribal air quality management program under section 110(a) of the CAA. Tribes should look to the 

TAR and engage their respective EPA Regional Offices in discussing how this guidance may impact the 

development and approvability of their tribal implementation plans (TIPs). We encourage states to provide outreach 

and engage in discussions with tribes about their SIPs as they are being developed.

2 In the CAA and in this guidance, “plan,” “SIP,” and “TIP” may, depending on context, refer either to (i) all or part 

of the existing state (or tribal) implementation plan (i.e., the collection of all submissions previously approved by the 

EPA as meeting CAA requirements) or (ii) a submission that adds to or modifies the existing plan as directed by 

section 110(a)(l).

3 The Administrator may specify a shorter period.

4 The EPA rules provide that a public hearing must be offered by the air agency but is only required if a request is 

made.
2

infrastructure SIP submission is to assure that the air agency’s5 SIP contains the necessary 

structural requirements for the new or revised NAAQS, whether by establishing that the SIP 

already contains the necessary provisions, by making a substantive SIP revision to update the 

SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity for the 

responsible air agency, the public, and the EPA to review the basic structural requirements of the 

air agency’s air quality management program in light of each new or revised NAAQS.

This non-binding guidance6 provides recommendations for air agencies’ development 

and the EPA's review of infrastructure SIPs for the 2008 ozone primary and secondary NAAQS,7

the 2010 primary nitrogen dioxide (NO2) NAAQS,8 the 2010 primary sulfur dioxide (SO2) 

NAAQS,9 and the 2012 primary fine particulate matter (PM2.5) NAAQS,

10 as well as 

 

5 This guidance uses the term “air agency” to generally refer to a state, territory, or tribe that develops and submits 

an infrastructure SIP or TIP, except when quoting or paraphrasing a CAA section or a EPA regulation that uses the 

term “state.” 

6 None of the recommendations contained in this guidance are binding or enforceable against any person, and no 

part of the guidance or the guidance as a whole constitutes final agency action that could injure any person or 

represent the consummation of agency decision making. Only final actions taken to approve or disapprove SIP 

submissions that implement any of the recommendations in this guidance would be final actions for purposes of 

CAA section 307(b). Therefore, this guidance is not judicially reviewable. This document is not a rule or regulation, 

and the guidance it contains may not apply to a particular situation based upon the individual facts and 

circumstances. This guidance does not change or substitute for any law, regulation, or other legally binding 

requirement and is not legally enforceable. The use of non-mandatory language such as “guidance,” “recommend,” 

“may,” “should,” and “can” is intended to describe the EPA’s policies and recommendations. Mandatory 

terminology such as “must” and “required” is intended to describe controlling legal requirements under the terms of 

the CAA and the EPA regulations. Neither such language nor anything else in this document is intended to or 

does establish legally binding requirements in and of itself.

7 The EPA revised the levels of the primary and secondary 8-hour ozone standards to 0.075 parts per million (ppm). 

40 CFR 50.15. 73 FR 16436 (March 27, 2008).

8 The EPA revised the primary NO2 standard by adding a 1-hour level of 100 parts per billion (ppb), while retaining 

the previous annual primary and secondary standards. 40 CFR 50.11(b) and (f). 75 FR 6474 (February 9, 2010). The 

EPA has also recently reviewed the air quality criteria and the secondary NAAQS for nitrogen oxides and sulfur

oxides and retained the current NO2 and SO2 secondary standards, 77 FR 20218 (April 3, 2012).

9 On June 2, 2010, the EPA established a new 1-hour SO2 standard at a level of 75 ppb. 40 CFR 50.17. This rule also 

provided for the automatic future revocation of the previous annual and 24-hour SO2 NAAQS for most areas 

following 1 year after designation under the new NAAQS. 40 CFR 50.4(e). The previous 3-hour secondary standard 

remains in place indefinitely. 40 CFR 50.5. 75 FR 35520 (June 22, 2010). The EPA has also recently reviewed the 

air quality criteria and the secondary NAAQS for nitrogen oxides and sulfur oxides and retained the current NO2 and 

SO2 secondary standards, 77 FR 20218 (April 3, 2012).

10 The EPA revised the annual PM2.5 standard by lowering the level to 12.0 micrograms per cubic meter (μg/m3

). 78 

FR 3086 (January 15, 2013).
3

infrastructure SIPs for new or revised NAAQS promulgated in the future. As a result, air 

agencies may continue to rely on this guidance for developing infrastructure SIPs for future new 

or revised NAAQS until this guidance is supplemented or replaced by future guidance. This 

guidance does not address section 110(a)(2)(D)(i)(I), which concerns interstate pollution 

transport affecting attainment and maintenance of the NAAQS. The EPA expects to issue 

guidance in the future with respect to this section of the CAA. 

Section II of this document provides general guidance for the development of 

infrastructure SIPs, and section III presents guidance on the individual elements (and subelements) that constitute an infrastructure SIP. 
4

II. General Guidance on Infrastructure SIPs

Which elements of CAA 110(a)(2) affect infrastructure SIPs? 

Infrastructure SIP elements are addressed in portions of section 110(a)(2) of the CAA. 

Under this section, states are required to develop and maintain an air quality management 

program that meets various basic structural requirements, including, but not limited to:

enforceable emission limitations; an ambient monitoring program; an enforcement program; air 

quality modeling capabilities; and adequate personnel, resources, and legal authority.

Although, as stated in section I of this document, infrastructure SIPs are required to be 

submitted within 3 years after the promulgation of a new or revised NAAQS, the EPA interprets 

section 110(a)(2) to exclude two elements that could not be governed by the 3-year submission 

deadline of section 110(a)(1). Both these elements pertain to part D, in title I of the CAA, which 

addresses SIP requirements and submission deadlines for designated nonattainment areas for a 

NAAQS. Therefore, the following elements are considered by the EPA to be outside the scope of 

infrastructure SIP actions: (1) section 110(a)(2)(C) to the extent that it refers to permit programs 

(known as “nonattainment new source review”) under part D; and (2) section 110(a)(2)(I) in its 

entirety, which addresses SIP revisions for nonattainment areas. Both these elements pertain to 

SIP revisions that collectively are referred to as a nonattainment SIP or an attainment plan, which 

would be due by the dates statutorily prescribed under subparts 2 through 5 under part D, 

extending as far as 10 years following area designations for some elements. Because the CAA 

directs states to submit these plan elements on a separate schedule, the EPA does not believe it is 

necessary for states to include these elements in the infrastructure SIP submission due 3 years 

after adoption or revision of a NAAQS. While an infrastructure SIP submission is not expected 

to meet the requirements for a nonattainment SIP, the scope of an infrastructure SIP does not 

exclude geographical areas that have been designated nonattainment for the new or revised 

NAAQS or an earlier NAAQS for the same pollutant. Sections 110(a)(1) and 110(a)(2) reflect 

the congressional intent that each air agency have an air quality program, covering all 
5

geographical areas of the state, that includes the specified air agency authorities, requirements, 

and activities. 

The infrastructure SIP submission requirement does not move up the date for any

required submission of a part D plan for areas designated nonattainment for the new NAAQS. 

However, in order to cover all parts of the state or area of Indian country, an infrastructure SIP 

submission may reference pre-existing SIP emission limits or other rules contained in part D 

plans for the predecessor to the relevant new or revised NAAQS. It may also include recently 

adopted emission limits that are intended to be part of the not-yet-submitted part D plan for the 

new or revised NAAQS. To avoid confusion about the legal effect of the EPA’s action on an 

infrastructure SIP submission, we intend to make clear in each final action that EPA approval of

the infrastructure SIP submission is solely with regard to whether the submission meets 

particular infrastructure SIP required elements (as opposed to nonattainment SIP elements). This 

means that the EPA may approve a submission as meeting the air agency’s obligation under 

section 110(a)(1) and 110(a)(2) stemming from the particular new or revised NAAQS, without 

necessarily determining whether the submission meets the applicable requirements for 

nonattainment SIPs under part D of title I of the CAA for the same or any other NAAQS. An 

approval on this basis will make the referenced or newly submitted SIP emission limits or other 

rules federally enforceable, and will make clear that there has been no disapproval of an 

applicable required SIP submission and thus that there is no federal implementation plan (FIP)

obligation stemming from CAA section 110(a)(1) or (2).11

Developing and Submitting an Infrastructure SIP Submission

Upon the promulgation of a new or revised NAAQS, the infrastructure SIP process 

should begin with the air agency’s review of the adequacy of its existing SIP provisions for 

 

11In general, a finding by the EPA that an air agency has failed to submit a complete SIP or an action by the EPA to 

disapprove a SIP or SIP element initiates a FIP obligation, if the submission is required by the CAA. Mandatory 

sanctions would not apply under CAA section 179 because the failure to submit a SIP is neither with respect to a 

submission that is required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5). 

Some of the sections of this guidance document address FIP implications on individual elements more specifically.
6

purpose of meeting the infrastructure SIP requirements for the new or revised NAAQS. In order 

to develop an infrastructure SIP submission, an air agency may cite existing EPA-approved 

provisions and/or adopt new or revised statutory authorities and regulations, as necessary, in 

order to address each element of the infrastructure SIP. Further, with respect to a given NAAQS, 

an air agency may elect to make multiple submissions; each addressing some but not all elements 

or sub-elements of section 110(a)(2) so long as those submissions meet all of the infrastructure 

requirements in the aggregate. An air agency may also elect to make one submission to address 

infrastructure SIP requirements for multiple NAAQS, if it represents the submission as such 

during its adoption process and in its transmittal to the EPA. Of course, such a submission to 

address multiple NAAQS should establish how the air agency believes that the SIP meets each of 

the requirements of section 110(a)(2), as applicable, for each of the relevant NAAQS.

It is important that the SIP submission demonstrate the authority of the responsible air 

agency (or agencies, if responsibility for implementation is shared, e.g., between state and local 

agencies) to implement the new or revised NAAQS that has triggered the need for the 

infrastructure SIP submission. This can be an issue for approval if an older underlying legal 

authority enumerates specific ambient standards by pollutant, indicator, averaging period, level, 

and/or date of promulgation but does not include the new or revised NAAQS in its list. Air 

agencies are encouraged to discuss any situations of this type with their respective EPA Regional 

Offices. 

We encourage each air agency to consult with the appropriate EPA Regional Office, to 

consider the completeness of the submission, and to consider how the submission satisfies the 

applicable EPA regulations governing approval of infrastructure SIP submissions in 40 CFR 

part 51 ("Requirements for Preparation, Adoption, and Submittal of Implementation Plans"). The

regulations are referenced in this document, some with overlapping provisions across subparts, 

and include the following:

• Subpart A – Air Emissions Reporting Requirements

• Subpart F – Procedural Requirements

• Subpart G – Control Strategy

• Subpart H – Prevention of Air Pollution Emergency Episodes
7

• Subpart I – Review of New Sources and Modifications

• Subpart J – Ambient Air Quality Surveillance

• Subpart K – Source Surveillance

• Subpart L – Legal Authority

• Subpart M – Intergovernmental Consultation

• Subpart O – Miscellaneous Plan Content Requirements

• Subpart P – Protection of Visibility

• Subpart Q – Reports

Once the air agency has made one or more infrastructure SIP submissions, the EPA will 

evaluate the submission(s) for completeness. The EPA's criteria for determining completeness of 

a SIP submission are codified at 40 CFR part 51 appendix V and are discussed in a later 

subsection of this guidance. An air agency’s familiarity with the EPA's regulatory completeness 

criteria will benefit the air agency during the process of developing an approvable submission.

The EPA’s review can be expedited if a SIP submission includes a detailed explanation 

of how the existing EPA-approved SIP in combination with any newly submitted provisions 

meets each of the applicable requirements of section 110(a)(2). The EPA expects the 

submissions to include a description of the correlation between each infrastructure element and 

an equivalent set of statutory, regulatory, and/or non-regulatory provisions, as appropriate, that 

are part of or (for some elements) are referred to by the existing SIP or the new submission. 

(Refer to section III for more detail on submission requirements for each individual element.)

When an air agency’s infrastructure SIP submission more clearly identifies the CAA element(s) 

being met by the SIP and how they are met, the EPA can more easily determine whether the 

submission is complete and approvable with respect to that element.

Certifications

Where an air agency determines that the provisions in or referred to by its existing EPAapproved SIP are adequate with respect to a given infrastructure SIP element (or subelement) 

even in light of the promulgation of a new or revised NAAQS, the air agency may make a SIP 

submission in the form of a certification. This type of infrastructure SIP submission may, e.g., 
8

take the form of a letter to the EPA from the Governor or her/his designee containing a 

"certification" (or declaration) that the already-approved SIP contains or references provisions 

that satisfy all or some of the requirements of section 110(a)(2), as applicable, for purposes of 

implementing the new or revised NAAQS. In such a case, the submission would not need to 

include a paper copy of the relevant pre-existing provisions (e.g., rules or statutes).12 Rather, the 

certification submission should provide citations to the state, local, or tribal statutes, regulations, 

or non-regulatory measures, as appropriate, in or referenced by the already EPA-approved SIP 

that meet particular infrastructure SIP element requirements and should include an explanation as 

to how those existing provisions meet the relevant requirements. The air agency should consult 

with its EPA Regional Office on the wording of this type of infrastructure SIP submission prior 

to making its submission. As for any other SIP submission, an air agency (unless the EPA has 

approved a request for parallel processing) would need to provide reasonable notice and 

 

12 In contrast, where an air agency’s infrastructure SIP submission seeks the EPA’s approval of or references a new

provision (e.g., a rule or statute) that has not already been approved, or submitted for approval, into the SIP, a 

complete SIP submission should include at least one hard copy and an exact duplicate electronic version of the 

adopted provisions (unless otherwise agreed to by the air agency and the Regional Office). Memorandum dated 

April 6, 2011, from Janet McCabe, titled “Regional Consistency for the Administrative Requirements of State 

Implementation Plans and the Use of Letter Notices.” The EPA is investigating means to provide for states a method 

to transmit SIP submissions electronically with no requirement for paper copy submissions.
9

opportunity for comment prior to submitting a certification SIP submission to the EPA.13 This 

"reasonable notice and public hearing" requirement for approvable infrastructure SIP 

submissions appears at sections 110(a)(1) and the introductory text of section 110(a)(2), and it 

has much the same wording as the more generally applicable procedural requirement at 

section 110(l) of the CAA ("Plan Revisions"). See CAA sections 110(a)(1) and (2) and 110(l). 

Compliance with this procedural requirement is verified through an additional certification by 

the air agency that a public hearing (if one was requested) was held in accordance with the EPA's 

regulatory procedural requirements for public hearings.14 See 40 CFR 51.102 and 40 CFR 

part 51, appendix V, paragraph 2.1(g).

 

13 The EPA regulations at 40 CFR part 51 appendix V provide that a public hearing must always be offered and that 

a hearing must be held if requested. The EPA has received comment that when all of the elements in an existing 

infrastructure SIP were previously subject to a public comment process, including the opportunity for public 

hearing(s), when they were first submitted for the EPA's approval and incorporation into the SIP, no public 

comment requirements should apply to a “certification” infrastructure submission. The EPA believes this suggested 

interpretation is inconsistent with the plain text of section 110(a)(1) of the CAA. Section 110(a)(1) first provides that 

“[e]ach State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within 

3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a [primary NAAQS] 

(or any revision thereof) ... a plan [i.e., infrastructure SIP] which provides for implementation, maintenance, and 

enforcement of such primary standard.” The clause “after reasonable notice and public hearings” is most naturally 

read as imposing that procedure on the immediately following phrase, “adopt and submit,” the direct object of which 

is the infrastructure SIP itself. The suggested interpretation would instead apply the phrase “after reasonable notice 

and public hearings” to SIP revisions submitted before the promulgation of the new or revised primary NAAQS, 

despite the complete absence of a reference to those earlier SIP revisions in section 110(a)(1). Any possible residual 

ambiguity is removed by the last sentence of section 110(a)(1), which requires an infrastructure SIP for a secondary 

NAAQS to be considered (unless a separate public hearing is provided) “at the hearing required by the first sentence 

of this paragraph.” The only possible interpretation of this sentence is that there must be an opportunity for public 

hearing for the infrastructure SIPs for both the primary and secondary NAAQS. This is a reasonable interpretation 

because it informs the public that the SIP is being revised and allows for comment as to whether the air agency’s 

earlier approved regulations also satisfy the relevant obligation stemming from the promulgation of the new or 

revised NAAQS. Furthermore, the next footnote explains that the EPA has recently clarified procedures for 

providing notice and opportunity for comment that reduce the burden on air agencies while still assuring adequate 

notice to the public.

14 Additional guidance regarding how an air agency may submit a SIP or a SIP revision can be found in a 

memorandum dated April 6, 2011, from Janet McCabe, Deputy Assistant Administrator, Office of Air and

Radiation, to Regional Administrators, titled "Regional Consistency for the Administrative Requirements of State 

Implementation Plans and the Use of 'Letter Notices'." Refer also to a memorandum dated Nov. 22, 2011, jointly 

from Janet McCabe, Deputy Assistant Administrator, Office of Air and Radiation, and Becky Weber, Director, Air 

and Waste Management Division, Region 7, to Air Division Directors, Regions 1-10, titled "Guidelines for 

Preparing Letters Submitting State Implementation Plans (SIPs) to EPA and for Preparing Public Notices for SIPs." 

These guidance memos identify certain streamlining approaches that are available to an air agency, depending on the 

situation.
10

As with any SIP submission, the EPA’s review can be expedited if a SIP certification 

submission includes a detailed explanation of how the existing SIP meets each of the applicable

requirements of section 110(a)(2). This should include a description of the correlation between 

each infrastructure element and an equivalent set of statutory, regulatory, and/or non-regulatory 

provisions, as appropriate, that are part of or are referenced by the existing SIP. When an air 

agency’s infrastructure certification submission more clearly identifies the CAA element(s) 

being met by the SIP and how they are met, the EPA can more easily determine whether the 

submission is complete and approvable with respect to that element.

Determining Completeness of an Infrastructure SIP Submission

Section 110(k)(2) directs the EPA to take final action on a SIP submission within 1 year

after the submission is determined to be complete under section 110(k)(l). If the EPA makes an 

affirmative finding that a SIP submission is complete, the date of the finding establishes the 

"completeness date" for the submission. If, however, the EPA makes no affirmative 

completeness finding, then the submission is deemed complete by operation of law on the date 

6 months after the submission date. A finding that an infrastructure SIP submission is complete

does not necessarily mean that the submission is approvable; the completeness review only 

addresses whether the air agency has provided information sufficient to commence formal EPA 

review for approvability. Refer to 40 CFR part 51 appendix V ("Criteria for Determining the 

Completeness of Plan Submissions").

Historically, when reviewing infrastructure SIP submissions, the EPA has operated on the 

basis that the elements and sub-elements of section 110(a)(2) for a given NAAQS are, for the 

most part, severable.15 The EPA may elect to make a finding of failure to submit in whole or in 

part, based upon whether a state has made a complete infrastructure SIP submission for the 

relevant elements of section 110(a)(2). For a state that has not made any infrastructure SIP 

 

15 See, e.g., 76 FR 81371 (December 28, 2011), “Approval and Promulgation of Implementation Plans; Texas;

Infrastructure and Interstate Transport Requirements for the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS, 

Final Rule,” where the EPA approved severable portions of infrastructure SIP revisions submitted by Texas.
11

submission, the EPA generally will make a finding with respect to all of the relevant elements.16

For a state that has made a SIP submission but whose submission is incomplete for some of the 

relevant elements, the EPA generally will issue a finding of failure to submit only with respect to 

those elements. This separation makes clear what mandatory EPA duty subsequently exists with 

respect to each element or subelement. If the EPA has made separate findings as to the 

completeness of submissions for two or more elements (and sub-elements), the 12-month 

statutory deadline for EPA action to approve or disapprove the elements for which the air agency 

has made a complete submission and the 24-month statutory deadline for EPA action to 

promulgate FIPs for incomplete elements would apply separately. The EPA intends to continue 

its practice of acting on infrastructure SIP elements together or separately, as appropriate. 

Any SIP submission is deemed by operation of law to be complete six months after 

submission, unless the EPA has before that date made an affirmative finding that the submission 

is complete or incomplete. Any inconsistency between the scope of the submission as described 

in the pre-submission public notice of the SIP submission and the actual submission, or between 

the description of the scope of the submission in the transmittal letter to the EPA and the actual 

substantive coverage of the submission can create ambiguity as to which infrastructure SIP 

elements in fact have been submitted and thus are capable of becoming complete by operation of 

law (and triggering a deadline for the EPA’s action) and which have in fact not yet been 

submitted.17 To provide clarity for all parties, air agencies should be very clear and accurate in 

the wording of their public notices and transmittal letters. It is also advisable for the air agency to 

discuss this wording with its EPA Regional Office before submission. On its part, an EPA 

Regional Office, in receipt of a submission with any inconsistencies of the type described, should 

consider steps it can take or ask the air agency to take prior to the six-month point in order to 

avoid the creation of ambiguity or an incorrect result as to which SIP elements have actually 

 

16 Under the TAR, a tribe is not subject to deadlines for certain planning requirements (including submission of 

infrastructure SIPs). See 63 FR 7254 (Feb. 12, 1998) for more information.

17 The EPA’s experience is that the existence of a FIP for PSD or regional haze may increase the risk of such 

inconsistencies occurring inadvertently. FIP-related aspects are discussed in more detail in the next section of this 

guidance.
12

been submitted and are complete and consequently subject to a statutory deadline for the EPA 

action.

Section 2.3 of 40 CFR part 51 appendix V waives certain completeness requirements if

the EPA has granted an air agency request for parallel processing of the submission. Under the 

parallel processing approach, the EPA proposes to approve a draft SIP submission so that final 

approval can be given more quickly after the final adoption of any new measures as state, local, 

or tribal law and conclusion of the public comment process normally required for any SIP 

submission. The EPA intends to grant requests for parallel processing of infrastructure SIP 

submissions if (1) the only missing elements of completeness are final state adoption of rules or 

other provisions and/or conclusion of the public comment process for the SIP submission, 

including evidence thereof as specified in section 2.3 of appendix V, and (2) the schedule 

provided by the air agency for the conclusion of the adoption process and/or the public comment 

process for the SIP submission is reasonably expeditious.

18 In such a case, the EPA generally 

would also either make a finding of completeness for the submission or allow it to become 

complete by operation of law. If both these conditions are not met, the EPA will not grant the 

parallel processing request. However, the EPA generally will not make a finding of failure to 

submit a complete SIP but may be required to do so if under a court order.

Effect of a Federal Implementation Plan on an Infrastructure SIP

The CAA directs states to submit SIPs to the EPA for approval. In some cases, and for 

various reasons, the EPA may have previously determined that an air agency had not satisfied a 

SIP requirement, and so accordingly promulgated a FIP to address the gap in the SIP. The 

infrastructure SIP process can be affected when an air agency is currently subject to a FIP that is 

related to an infrastructure SIP element. Therefore, this section describes the potential impact of 

pre-existing FIPs on the infrastructure SIP process. This explanation is relevant not only for air 

 

18 With regard to the 1992 EPA Memorandum from John Calcagni, Air Quality Management Division, OAQPS, to 

EPA Air Division Directors, Regions I through X, “State Implementation Plan (SIP) Actions Submitted in Response 

to Clean Air Act (Act) Deadlines,” October 29, 1992, note that the EPA no longer considers the section titled 

“Requests for Parallel Process to Meet Act Deadlines” to be its guidance for infrastructure SIPs that are submitted 

with requests for parallel processing.
13

agencies that currently have a FIP in effect but also for air agencies that may be subject to a FIP 

in the future. 

The EPA’s obligation to promulgate a FIP is set out in section 110(c) of the CAA. A FIP 

may be triggered if the EPA takes any of the following actions: (1) the EPA finds that a state has 

failed to make a required SIP submission; (2) the EPA finds that a required submission was 

incomplete; or (3) the EPA disapproves a required SIP submission in whole or in part. If the EPA

takes one of these actions, section 110(c) obligates the EPA to promulgate a FIP within 2 years

of the action, a deadline that is commonly referred to as a "FIP clock." In order to remove the 

EPA's FIP obligation, the state must make a SIP submission that meets the applicable CAA 

requirements and is approved by the EPA prior to the EPA’s promulgation of a FIP. Whenever 

the EPA promulgates a FIP for a state air agency, the FIP rulemaking will identify the specific 

CAA provisions that required the promulgation of the FIP, and the FIP will be codified in the 

appropriate section of 40 CFR part 52.

Under the TAR, a tribe is not subject to deadlines for planning requirements (including 

submission of infrastructure SIPs).

19 In general, the concept of failure to submit a complete 

implementation plan does not apply in tribal situations, and there is no FIP clock started if a tribe 

has not submitted an infrastructure TIP. Under the TAR, in the absence of an approved tribal 

implementation plan the EPA will promulgate a FIP for one or more infrastructure SIP elements 

when and if it is necessary and appropriate to do so. For example, the EPA has promulgated new 

source review FIPs to govern permitting of sources in Indian country.

If the EPA has promulgated a FIP, then this means that the EPA has previously 

determined that the air agency’s SIP did not meet some CAA requirement as of the date of 

promulgation of that FIP. While the intent and effect of the FIP is to achieve the same air quality 

protection as the SIP should have achieved, it is the EPA’s interpretation of sections 110(a)(1) 

and 110(a)(2) that the EPA cannot give “credit” for the FIP when determining whether an air 

agency has met any later obligations under these sections.

 

19 See 63 FR 7254 (February 12, 1998) for more information on the TAR.
14

As an example of a FIP that affects the infrastructure SIP submission process, we note 

that, for various reasons, several states do not have EPA-approved major source preconstruction 

permit programs in their SIPs for prevention of significant deterioration (PSD) as required by 

part C of title I of the CAA. The EPA has promulgated a set of PSD rules which establish 

authority for the EPA (or an air agency to which the EPA has delegated authority to administer 

the federal PSD program)20 to issue preconstruction permits to major stationary sources in any 

area not covered by a PSD program in a SIP.21 The EPA has also promulgated FIPs for each area 

without a SIP-approved PSD program, indicating that this set of federal PSD rules applies in that 

area.

22 Such a PSD FIP may be relevant to infrastructure Element C, Element J, Element D(i)(II), 

and the portion of Element D(ii) related to notification to other states. As another example, the 

EPA has promulgated full or partial FIPs to address reasonably attributable visibility impairment 

(RAVI) and regional haze for some air agencies.23 A RAVI FIP or a regional haze FIP may be 

relevant to Element D(i)(II). These linkages are further discussed in the section pertaining to 

each of these elements.

The infrastructure SIP process will vary to some extent depending on whether or not the 

air agency’s SIP submission purports to, and actually does, satisfy infrastructure SIP 

requirements that are currently being met by means of a FIP, as explained in the following 

paragraphs. 

Consider an air agency that is currently subject to a FIP that is relevant to certain 

infrastructure SIP elements makes a submission and states in a general way in the transmittal 

letter that the submission satisfies all elements of CAA section 110(a)(2), or if it specifically 

states that the submission satisfies the elements to which the FIP is relevant, the EPA would 

 

20 The EPA is planning on extending the opportunity for delegation of new source review permitting to qualified 

tribes.

21 See 40 CFR 52.21; Prevention of Significant Deterioration of Air Quality.

22 See, e.g., 40 CFR 52.738 for the PSD program applicable to sources in Illinois.

23 Some of these regional haze FIPs relied on the Cross-State Air Pollution Rule (CSAPR), which was subsequently 

vacated by the U.S. Court Appeals for the D.C. Circuit. EME Homer City Generation, L.L.P. v. EPA, 696 F.3d 7 

(D.C. Cir. 2012). The Supreme Court has accepted the EPA’s petition for it to review the D.C. Circuit’s decision. 

Air agencies should consult with their EPA Regional Offices regarding the current status of this litigation and the 

implications if any for infrastructure SIP submissions.
15

evaluate whether the submission, in fact, contains existing or new substantive provisions to 

address the section 110(a)(2) requirement presently covered by the FIP. If the submission does 

not substantively address the elements or sub-elements presently covered by the FIP, then the 

EPA Regional Office should encourage the air agency to clarify its intentions as to which 

elements have been submitted. The air agency might then clarify that it has made no submission 

for certain elements, in which case the EPA would not make a finding of complete submission 

for those elements and those elements could not become complete by operation of law. (The 

EPA may make a finding of failure to submit for those elements.) In the absence of such a 

clarification, the EPA Regional Office should determine that the air agency has failed to make a 

complete submission for those elements. Such a finding generally would create an obligation for 

the EPA to adopt a FIP within 24 months. However, based on the PSD FIP example and to the 

extent that the SIP deficiency is addressed by continuing to implement the existing PSD FIP, the 

EPA would have no additional FIP obligation under section 110(c) and the air agency would not 

have to take any further action for the current FIP-based permitting process to continue 

operating. Mandatory sanctions would not apply under CAA section 179 because such a finding 

of failure to submit a complete SIP was made neither with respect to a submission that is 

required under CAA title I part D nor in response to a SIP call under CAA section 110(k)(5).

To provide further clarity, consider how the following three scenarios may prompt 

differing EPA actions. 

First scenario. Under this scenario, the transmittal letter for the infrastructure SIP 

submission makes clear that the submission is not intended to satisfy certain elements that can be

addressed by continuing to apply the FIP. In this situation, the EPA would make a completeness 

finding that extends only to the SIP elements actually submitted by the air agency, and a finding 

that other relevant applicable elements were not submitted.24 The EPA would be required to take 

action only on the elements that were submitted, within 12 months after those elements have 

been determined to be complete. The overall infrastructure SIP would not be approvable with 

 

24 If, instead, the submission that clearly addressed only some required elements has become complete at the 6-

month point by operation of law, the EPA would still consider the air agency to not have made a complete

submission for the missing elements.
16

respect to the elements that were not submitted, and thus the EPA could only partially approve 

the overall infrastructure SIP.

25

Second scenario. Under the second scenario, suppose the air agency makes a SIP 

submission that references the existence of a PSD FIP and asserts that the existence of the FIP is 

a sufficient basis for EPA approval of the submission with respect to these elements. The EPA 

would not consider the existence of the PSD FIP, even if referenced in the submission, as 

meeting completeness or approvability criteria for these elements. This is because a FIP is not a 

state plan and thus cannot serve to satisfy the state’s obligation to submit a SIP. The EPA’s 

action on the SIP submission would indicate that the air agency has not met the underlying 

statutory obligations in section 110(a)(2) with respect to Elements C and J. However, when the 

SIP deficiency is being addressed by the existing PSD FIP, the EPA would have no additional 

FIP obligation under section 110(c) and the state would not have to take any further action for

the current FIP-based permitting process to continue operating. In this example, the EPA may be 

able to approve a state-developed SIP later, if the air agency develops and submits a SIP meeting 

all statutory and regulatory requirements relevant to Elements C and J. 

Third scenario. Under this scenario, the transmittal letter for the infrastructure SIP 

submission explicitly or implicitly indicates that the submission is intended to satisfy all required 

elements (including the elements that may be addressed by continuing to apply the existing PSD 

FIP), and the 6-month point has passed without any clarification by the air agency or any finding 

by the EPA Regional Office regarding completeness. In this situation, the EPA will generally 

treat the submission as having been intended to address all the required elements and to be 

complete for all elements. The 12-month clock for EPA action on the submission would apply to 

all elements and the EPA would proceed to disapprove the submission for the same elements 

with respect to the subject NAAQS that were previously addressed in the context of earlier 

NAAQS by the FIP. However, similar to the first scenario in which the SIP deficiency has 

 

25 Note: Because an infrastructure SIP is not a required plan submission under part D of title I of the CAA, 

disapproval of (or a finding of failure to submit) an infrastructure SIP or element thereof does not trigger mandatory 

sanctions under CAA section 179, unless the submission was required in response to a SIP call under 

section 110(k)(5) of the CAA.
17

already been addressed, to the extent that the existing FIP addresses the deficiency, the EPA 

would have no additional FIP obligation under section 110(c) and the state would not have to 

take any further action for the current FIP-based permitting process to continue operations. As in 

the first scenario, the EPA may be able to approve a state-developed SIP later, if the air agency 

develops and submits a SIP meeting all statutory and regulatory requirements relevant to 

Elements C and J.

For some state air agencies and some sources in Indian country, there are RAVI or 

regional haze FIPs in place that may be relevant to the subelement of Element D(i)(II) related to 

interference with measures by another state to protect visibility. This subelement is sometimes 

referred to as the “visibility transport” prong or simply, as “prong 4.” While fully approved 

RAVI and regional haze SIPs can be relied upon in satisfying this subelement, as explained later 

in this document, it may be possible in some cases for the element to be satisfied even if there is 

a FIP in place. Air agencies in this situation should read the section on Element D(i)(II) and 

consult with their respective EPA Regional Offices on this aspect of their infrastructure SIP 

submission.

If a new submission in fact does address the substance of the element or subelement 

covered by a FIP, the EPA would review the submission and may approve the infrastructure SIP. 

The EPA may also withdraw the FIP that had been addressing that element or subelement for 

previous NAAQS, if all relevant CAA requirements are met by the SIP.
18

III. Guidance on Individual Infrastructure SIP Elements

The EPA interprets section 110(a)(1) and section 110(a)(2) to require infrastructure SIP 

submissions to meet the elements of section 110(a)(2), as applicable. As described in section II, 

the EPA interprets the portion of section 110(a)(2)(C) that pertains to a permitting program that 

applies to nonattainment NSR within nonattainment areas, and the requirements of 

section 110(a)(2)(I) that pertain to the specific requirements for attainment plans for designated 

nonattainment areas, to be outside the scope of the infrastructure SIP requirements because of the 

separate statutory schedules for area designations and submission of attainment plans provided 

elsewhere in the CAA. With respect to the remaining elements of section 110(a)(2), 

subsections (A) through (M), the CAA imposes an obligation on states to address those elements, 

as appropriate, within the 3-year infrastructure SIP submission deadline. This section provides 

recommendations to air agencies about how to make infrastructure SIP submissions to meet 

these remaining relevant elements, as applicable. 

Element A – Section 110(a)(2)(A): Emission Limits and Other Control Measures

Each such plan shall –

(A) include enforceable emission limitations and other control measures, means, 

or techniques (including economic incentives such as fees, marketable permits, 

and auctions of emissions rights), as well as schedules and timetables for 

compliance, as may be necessary or appropriate to meet the applicable 

requirements of this Chapter.

To satisfy Element A, an air agency’s submission should identify existing EPA-approved 

SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA 

approval that limit emissions of pollutants relevant to the subject NAAQS, including precursors 

of the relevant NAAQS pollutant where applicable. Emissions limitations and other control 

measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS will 

be due on a different schedule from the section 110 infrastructure elements and will be reviewed 

and acted upon with regard to approvability for the specific purposes of such an attainment plan 

under CAA title I part D through a separate process at a later time. See “Which elements of CAA 
19

110(a)(2) affect infrastructure SIPs?” in section II of this guidance for additional discussion of 

this distinction.

There are two issues that relate to Element A for which we are providing general 

guidance. These are whether air agencies would need to correct the following in order for the 

EPA to approve their infrastructure SIP submissions: (1) previously approved emissions 

limitations that may treat startup, shutdown, and malfunction (SSM) events inconsistently with 

the CAA as interpreted by our longstanding guidance on excess emissions (the EPA’s SSM 

Policy) and more recently by multiple courts; and (2) previously approved SIP provisions for 

"director's variance" or "director's discretion" that purport to allow revisions to or exemptions 

from SIP emission limitations with limited public process or without requiring further approval 

by the EPA.26 The guidance provided here is consistent with the EPA interpretations articulated 

in provisions in several recent EPA final actions on SIPs.

27, 28

In recent infrastructure SIP actions, the EPA has drawn an important distinction with 

respect to SSM issues and director’s discretion issues in this particular context. The EPA does 

not interpret section 110(a)(2) to require air agencies and the EPA to address potentially deficient 

 

26 For further description of EPA's SSM Policy, see, e.g., a memorandum dated September 20, 1999, titled, "State 

Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown," from 

Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, 

Assistant Administrator for Air and Radiation. Also, the EPA issued a proposed action on February 12, 2013, titled 

“State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP 

Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction.” 

This rulemaking responds to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 

39 states’ SIPs. It clarifies and restates the EPA’s SSM SIP policy.

27 See, e.g., a SIP call issued to Utah (72 FR 21639, Apr. 18, 2010) concerning treatment of malfunction events 

under Utah's "unavoidable breakdown rule" (UBR). The EPA determined that Utah’s SIP was substantially 

inadequate because its UBR allowed operators of CAA-regulated facilities to avoid enforcement actions when they 

suffer an unexpected and unavoidable equipment malfunction. In this SIP call, the EPA called on Utah to 

promulgate a new UBR that conforms to the EPA’s interpretation of the CAA. Litigants maintained that the SIP call 

was arbitrary and capricious and asked the Tenth Circuit Court to vacate it. The Court denied the petition for review 

of the Utah SIP call. U.S. Magnesium, LLC v. EPA, U.S. Court of Appeals, No. 09-1269, January 14, 2011. 

28 As another example that presents the EPA's position on infrastructure SIPs with respect to this issue, see the 

preamble language in the final rule published in the Federal Register on July 13, 2011 (76 FR 41075), "Approval 

and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; 

Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards." In 

section II of the preamble, the EPA described at length the position summarized in this guidance regarding existing 

provisions related to excess emissions during periods of SSM and existing provisions related to "director's variance" 

or "director's discretion."
20

pre-existing SIP provisions of these types in the context of acting on an infrastructure SIP 

submission. The EPA considers this a reasonable interpretation of the CAA in such a context. 

The EPA notes that it has alternative tools in the CAA to address existing SIP deficiencies of this 

type, in appropriate circumstances.

However, any “new” provisions in the infrastructure SIP submission that are relevant to 

SSM (e.g., any newly created enforcement discretion provisions, affirmative defense provisions, 

or special emissions limitations that apply during SSM periods but that have not already been 

approved by the EPA) should be consistent with the EPA’s policy on what types of SSM 

provisions are permissible in SIPs under the CAA. For instance, new provisions as part of an 

approvable SIP submission cannot allow an air director the discretion to determine whether an 

instance of excess emissions is a violation of an emission limitation, because such a 

determination could bar the EPA and citizens from enforcing applicable requirements. Similarly, 

new provisions in a SIP for the exercise of enforcement discretion with regard to SSM events 

may only apply to state or tribal government personnel so that they do not limit enforcement by 

the EPA or citizens. Excess emissions, including those occurring during SSM periods, might 

prevent attainment and maintenance of the NAAQS and compliance with other applicable CAA 

requirements. The EPA views all periods of excess emissions as violations of the applicable 

emission limitation. Therefore, if an infrastructure SIP contains provisions that have not already 

been approved by the EPA, and that impermissibly exempt from enforcement excess emissions 

that may occur at a facility during SSM periods or that otherwise are inconsistent with the EPA’s 

interpretation of the CAA as outlined in its SSM Policy, the EPA will not propose to fully

approve the submission as meeting section 110(a)(1) and (2) requirements.

With regard to “director’s discretion” to revise emission limits, any "new" provisions in 

the infrastructure SIP submission (i.e., provisions that have not already been approved by the 

EPA) should be consistent with the EPA's interpretation of the CAA as expressed in its policy

regarding director's discretion.

29

 

29 See 77 FR 34309 and 34311 (June 11, 2012). “Approval and Promulgation of Implementation Plans; Tennessee;

110(a)(1) and (2) Infrastructure Requirements for the 1997 Annual and 2006 24-Hour Fine Particulate National

Ambient Air Quality Standards, Proposed Rule.”
21

The EPA will continue to consider for approval, as it has in recent final SIP actions,30

SIPs that provide for a limited affirmative defense to civil penalties for excess emissions 

occurring during properly demonstrated and documented malfunction periods.

In summary, the EPA in recent final actions on infrastructure SIP submissions has 

maintained that the CAA does not require that new infrastructure SIP submissions address 

existing potentially inadequate provisions concerning SSM or director's discretion in order to be 

approved as meeting the CAA section 110(a)(1) and (2) requirements triggered by the new or 

revised NAAQS. The EPA’s stated position has been that it can approve an infrastructure SIP 

submission, even if the infrastructure SIP may incorporate by reference previously approved SIP 

provisions that are or may not be consistent with the EPA’s SSM Policy and its policy on 

director’s discretion to revise emission limits. The EPA articulated this position in a number of 

infrastructure SIP actions taken in 2011, noting in the preambles for those actions that existing 

provisions for SSM and director's discretion may be dealt with separately, outside the context of 

acting on an air agency’s new infrastructure SIP submission.31 However, if an air agency submits 

an infrastructure SIP submission that would create a new SIP provision related to SSM that is 

inconsistent with the EPA’s interpretation of the requirements of the CAA, the EPA may 

disapprove it. We intend to continue this practice and affirm it as part of this guidance.

 

30 See 75 FR 68989 at 68992 (November 10, 2010), “Approval and Promulgation of Implementation Plans; Texas: 

Excess Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities.” In Luminant Generation 

Co. v. EPA, No. 10-60934, 2012 WL 4841615 (5th Cir. 2012), the Court upheld the EPA’s approval of an 

affirmative defense for malfunctions and disapproval of an affirmative defense provision in a SIP submission that 

pertained to “planned activities,” which included startup, shutdown, and maintenance. The EPA disapproved this 

provision, in part because it provided an affirmative defense for maintenance. The Court rejected challenges to the 

EPA’s disapproval of this provision, holding that under Chevron step 2, the EPA’s interpretation of the CAA was 

reasonable. See also the Federal Register notice signed on February 12, 2013, restating the EPA’s policy on 

affirmative defense provisions and proposing 36 SIP calls to correct affirmative defense and other SSM-related SIP 

provisions.

31 As one example of preamble language that presents the EPA's position on infrastructure SIPs with respect to this 

issue, see the final rule published in the Federal Register on July 13, 2011 (76 FR 41075), "Approval and 

Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; 

Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards." In 

section II of the preamble, the EPA described at length the position summarized here regarding existing provisions 

related to excess emissions during periods of SSM and existing provisions related to "director's variance" or 

"director's discretion." 
22

Element B – Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System

Each such plan shall –

(B) provide for establishment and operation of appropriate devices, methods, 

systems, and procedures necessary to –

 (i) monitor, compile, and analyze data on ambient air quality, and 

 (ii) upon request, make such data available to the Administrator.

To meet Element B requirements, the best practice for an air agency submitting an

infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the SIP),

the statutory or regulatory provisions that provide the air agency or official with the authority 

and responsibility to perform the actions listed in the bullets below along with a narrative 

explanation of how the provisions meet the requirements of this element.32

• Monitor air quality for the relevant NAAQS pollutant(s) at appropriate locations in 

accordance with the EPA's ambient air quality monitoring network requirements. See

the EPA's Ambient Monitoring Technology Information Center (AMTIC) website, 40 

CFR part 53 ("Ambient Air Monitoring Reference and Equivalent Methods"), and 40 

CFR part 58 ("Ambient Air Quality Surveillance"). See also 40 CFR 51.190 

(referencing 40 CFR part 58).33

• Submit data to the EPA's Air Quality System (AQS) in a timely manner in 

accordance with 40 CFR part 58. Under 40 CFR part 58, subpart B ("Monitoring 

Network"), for example, see 40 CFR 58.16 ("Data submittal and archiving 

requirements").

• Provide to the EPA Regional Office information regarding air quality monitoring 

activities, including a description of how the air agency has complied with monitoring 

requirements, and an explanation of any proposed changes to the network. 

 

32 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.

33 Note that despite the recent reorganization of 40 CFR part 58 without a corresponding conforming update of the 

cross-reference to part 58 in 40 CFR 51.190, all requirements under part 58 must still be met.
23

Submission of annual monitoring network plans consistent with the EPA's ambient air 

monitoring regulations is one way of providing this information. Under 40 CFR 

part 58, subpart B, see, e.g., 40 CFR 58.10 ("Annual monitoring network plan and 

periodic network assessment").

• Obtain the EPA’s approval of any planned changes to monitoring sites or to the 

network plan, consistent with applicable requirements in 40 CFR 58.14 (“System 

Modification”).

If an air agency chooses not to include the relevant statute or regulation in its SIP, then 

the air agency should provide a reference or citation to the authority provisions along with a 

narrative explanation of how the provisions meet the requirements of this element, as well as a 

copy of the relevant authority to accompany the SIP as required by 40 CFR 51.231.

For any new or revised NAAQS, the infrastructure SIP submission should provide

assurance that the state will meet changes in monitoring requirements related to the new or 

revised NAAQS.

Element C – Section 110(a)(2)(C): Programs for Enforcement of Control Measures and for 

Construction or Modification of Stationary Sources.

Each such plan shall –

(C) include a program to provide for the enforcement of the measures described 

in subparagraph (A), and regulation of the modification and construction of any 

stationary source within the areas covered by the plan as necessary to assure that 

national ambient air quality standards are achieved, including a permit program 

as required in parts C and D of this Subchapter.

This element consists of three sub-elements; enforcement, state-wide regulation of new 

and modified minor sources and minor modifications of major sources; and preconstruction 

permitting of major sources and major modifications in areas designated attainment or 

unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source 
24

PSD program).34,35 While this section outlines the general requirements for approvability of an 

infrastructure SIP with respect to Element C, air agencies previously subject to FIPs with respect 

to this element for major source PSD in the context of earlier NAAQS have the option, as 

discussed in more detail below and in Section II: “Which elements of CAA 110(a)(2) affect 

infrastructure SIPs?”, to remain subject to those FIPs as the remedy for infrastructure SIP 

deficiencies for a new or revised NAAQS.

Enforcement: To satisfy this subelement, an infrastructure SIP submission should identify 

the statutes, regulations, or other provisions in the existing SIP (or new provisions that are 

submitted as part of the infrastructure SIP to be incorporated into the SIP) that provide for 

enforcement of those emission limits and control measures that the air agency has identified in 

its submission for purposes of satisfying Element A (Emissions limits and other control 

measures). 

Regulation of minor sources and minor modifications: To satisfy the subelement for preconstruction regulation of the modification and construction of minor stationary sources and the 

minor modification of major stationary sources, an infrastructure SIP submission should identify

the existing EPA-approved SIP provisions and/or include new provisions that govern the minor 

source pre-construction program that regulates emissions of the relevant NAAQS pollutant(s).

The EPA rules addressing SIP requirements for pre-construction regulatory programs that apply 

to minor sources and minor modifications are at 40 CFR sections 51.160 through 51.164. 

 

34 The terms "major" and "minor" categorize a stationary source or a modification of a stationary source, for NSR 

applicability purposes, in terms of an annual emissions rate (tons per year) or change in annual emission rate for a 

pollutant. The pre-construction minor NSR program generally applies to minor stationary sources and minor 

modification projects at major stationary sources. A major “stationary source” is defined in the applicable PSD or 

nonattainment NSR regulations. Some air agencies exempt small minor sources and modifications from preconstruction regulatory requirements. 

35 As explained in section II of this document, the EPA considers evaluation of permit provisions that implement 

CAA title I part D (the major source nonattainment NSR program) to generally be outside the scope of infrastructure 

SIP actions. Hence, to address the sub-element regarding major source permitting, only the major source permitting 

program applicable in areas designated attainment or unclassifiable is an issue. In contrast, because part D does not 

impose any special requirements for permitting of minor sources in nonattainment areas, the infrastructure SIP due 

3 years after a new or revised NAAQS should address Element C with regard to minor sources in unclassifiable, 

attainment, and nonattainment areas, without regard to designation.
25

Preconstruction PSD permitting of major sources:36 To satisfy the subelement regarding 

the PSD program required by CAA title I part C, an infrastructure SIP submission should 

demonstrate that one or more air agencies has the authority to implement a comprehensive PSD 

permit program under CAA title I part C, for all PSD-subject sources located in areas that are 

designated attainment or unclassifiable for one or more NAAQS. The infrastructure SIP

submission should also identify the existing SIP provisions that govern the major source PSD 

program. As explained in more detail below, to be approvable the infrastructure SIP submission 

should also address any new or revised PSD permitting program requirements for which the 

deadline for SIP submissions has passed as of the date of EPA’s proposed action on the 

infrastructure submission. 

The SIP permitting provisions that implement CAA title I part C (the PSD program) 

govern preconstruction review and permitting of any new or modified major stationary sources 

of air pollutants regulated under the CAA (as well as any precursors to the formation of those 

pollutants when identified for regulation by the Administrator) in areas designated as attainment 

or unclassifiable. The EPA rules providing the minimum requirements for approvable PSD 

programs can be found generally at 40 CFR 51.166 (general provisions for PSD programs 

approved in SIPs) and 40 CFR 51.307 (specific provisions pertaining to new source review for 

potential impacts on air quality related values in Class I areas).

The EPA interprets Element C to mean that each infrastructure SIP submission for a 

particular NAAQS would need to demonstrate that the air agency has a complete PSD permitting

program in place covering the requirements for all regulated NSR pollutants, including 

greenhouse gases (GHG), in order to demonstrate that the SIP meets Element C.

37

Element C requires that each infrastructure SIP contain a permitting program “as required 

by part C.” CAA title I part C is applicable to all pollutants subject to regulation under the CAA. 

See, e.g., CAA section 165(a)(4). There is no specific language in the last clause of Element C 

 

36 The discussion here of the PSD portion of Element C also applies in full to the PSD portion of Element J.

37 See, e.g., 77 FR 64737 (October 23, 2012), “Partial Approval and Partial Disapproval of Air Quality State

Implementation Plans; Nevada; Infrastructure Requirements for Ozone and Fine Particulate Matter.”
26

that restricts its application to only those provisions of CAA title I part C that pertain to the 

particular new or revised NAAQS addressed by the particular infrastructure SIP action. Because 

the scope of CAA title I part C is comprehensive (covering all pollutants subject to regulation 

under the CAA, including GHG), the EPA likewise reads the unrestricted reference to CAA 

title I part C in Element C to mean that this provision has the same scope as CAA title I part C 

itself. Thus, an infrastructure SIP submission for any one of the recently revised NAAQS must 

be “comprehensive” in that it would need to meet all CAA title I part C requirements for other 

regulated NSR pollutants as well.

The broad scope of Element C with respect to major source PSD permitting raises the 

question of how the EPA will proceed when the timing of requirements for multiple, related SIP 

submissions (e.g., for mandatory PSD SIP revisions) impacts the ability of the air agency and the 

EPA to address certain substantive issues in the infrastructure SIP submission in a reasonable 

fashion. It is appropriate for the EPA to take into consideration the timing of related 

requirements for SIP submissions in determining what an air agency can reasonably be expected

to have addressed in an infrastructure SIP submission for a NAAQS at the time when the EPA 

acts on such submission. The EPA does not consider it reasonable to interpret Element C to

require the EPA to propose to disapprove an air agency’s infrastructure SIP submission because 

the air agency had not submitted a PSD permitting program revision that was not yet due as of 

the date of EPA’s proposed action. Because it would be unreasonable to propose such a 

disapproval, the EPA likewise does not consider it reasonable to take final disapproval action

under such circumstances. In other words, the EPA interprets these CAA sections to allow the 

EPA to approve an infrastructure SIP submission for the major source PSD permitting 

subelement of Element C (and Element J) provided that the EPA has already approved or is 

simultaneously approving the air agency’s SIP submission(s)38 with respect to all structural PSD

permitting program revision requirements that were due under the EPA regulations or the CAA 

on or before the date of the EPA’s proposed action on the infrastructure SIP submission. To 

adopt a different approach, by which the EPA could not act on an infrastructure SIP or at least 

 

38 These submissions may be submitted separately or together with the infrastructure SIP submission on which the 

EPA is proposing action.
27

could not approve an infrastructure SIP whenever there was any impending revision to the PSD 

permitting program regulations required by another collateral rulemaking action, would result in

regulatory gridlock and make it impracticable or impossible for the EPA to act on infrastructure 

SIPs if the EPA had recently revised its PSD permitting regulations but the submission required 

by such revisions was not yet due. The EPA believes that such an outcome would be an 

unreasonable reading of the statutory process for the infrastructure SIPs contemplated in 

sections 110(a)(1) and (2).

Consequently, the EPA generally plans to proceed as follows. The EPA may propose to 

approve an infrastructure SIP submission with respect to the major source PSD permitting 

subelement of Element C if the air agency has submitted, in a timely manner, all structural PSD 

permitting program provisions for which the SIP submission deadline has passed as of the date 

of the proposed approval.39 Subject to consideration of public comments on the proposed action, 

the EPA believes it may proceed to fully approve an infrastructure submission with respect to 

Element C if all such structural PSD permitting program submissions have been or are being 

simultaneously fully approved into the SIP. The EPA does not intend to treat any structural PSD 

permitting program requirement for which the SIP submission deadline falls after the date of the 

EPA’s proposed action on the infrastructure SIP as a required criterion for approval of the 

infrastructure SIP. The PSD permitting program revisions treated in this manner may include not 

only those related to the new or revised NAAQS whose promulgation has triggered the need for 

a new infrastructure SIP submission but also those related to any other regulated NSR pollutants 

as required by CAA title I part C and 40 CFR part 51.166.40

If an air agency lacks a PSD permitting program in its existing EPA-approved SIP 

addressing all regulated NSR pollutants, and it is already subject to a FIP, then major stationary 

 

39 Structural PSD program provisions include provisions necessary for the PSD program to address all regulated 

sources and NSR pollutants, including GHG. Structural PSD program provisions do not include provisions which 

under 40 CFR 51.166 are at the option of the air agency, such as the option for air agencies to provide 

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

40 See, e.g., “Approval and Promulgation of Implementation Plans; Mississippi: New Source Review – Prevention of 

Significant Deterioration; Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards,” 77 FR 59095 

(September 26, 2012), a recent infrastructure SIP approval action that addressed a state’s PSD SIP status with 

respect to the 2008 PM2.5 NSR Rule.
28

sources within its jurisdiction are subject to the federal PSD permitting requirements in 40 

CFR 52.21. Some air agencies are subject to a FIP for PSD permitting of all regulated NSR 

pollutants, and fewer air agencies are subject to a FIP for PSD permitting that is limited to 

particular pollutants (such as GHG). For sources subject to a pre-existing FIP for PSD 

permitting, either the EPA Regional Office issues PSD permits or, in instances where federal 

authority is delegated by the EPA Regional Office to it, the state or local air agency issues the 

PSD permits under the FIP (and tribes might be delegated in the same manner in the future). The 

EPA recognizes that some states have indicated a preference to operate under an EPAadministered PSD permitting program. Many air agencies have for some time been delegated the 

authority to implement a PSD FIP program. Other states have implemented their SIP-approved 

PSD permitting program. When an area is already subject to a FIP for PSD permitting (whether 

or not a state, local, or tribal air agency has been delegated federal authority to implement the 

PSD FIP), the air agency may choose to continue to rely on the PSD FIP to have permits issued 

pursuant to the FIP. If so, the EPA could not fully approve the infrastructure SIP submission with 

respect to Element C; however, the EPA anticipates that there would be no adverse consequences 

to the air agency or to sources from this lack of full approval of the infrastructure SIP. 

Mandatory sanctions would not apply under CAA section 179 because the failure to submit a 

PSD SIP is neither with respect to a submission that is required under CAA title I part D, nor in 

response to a SIP call under CAA section 110(k)(5). This relationship between a pre-existing FIP 

and the EPA’s action on an infrastructure SIP element is also explained in section II of this 

document. 

The EPA has maintained that the CAA allows the EPA to approve infrastructure SIP

submissions that do not implement the NSR Reform Rules promulgated mainly in 2002.

41 We 

articulated this position in a number of infrastructure SIP final actions taken in 2011, noting in 

the preambles for those actions that existing SIP provisions for PSD programs that have not 

 

41 The NSR rules have undergone a series of improvements over many years. Significant reforms were promulgated 

in a rulemaking commonly referred to as the "2002 NSR Reform Rules," which were published in the Federal 

Register at 67 FR 80186 (December 31, 2002).
29

addressed the NSR Reform Rules may be dealt with separately, outside the context of acting on a 

state’s infrastructure SIP.42

Air agencies may wish to reduce the need to amend their major source PSD rules after 

each new or revised NAAQS by writing them so that their coverage of pollutants and NAAQS

automatically updates with the promulgation of a new or revised NAAQS, and/or so that the 

specific PSD program requirements automatically update to stay matched with the federal PSD 

program requirements in 40 CFR 52.21. Depending on state or tribal law provisions, it may be 

possible to do one or both of these through the use of “rolling” incorporation by reference (IBR). 

An advantage of the rolling IBR approach is that it enables air agencies to quickly implement 

requirements of the CAA that may be immediately applicable to regulated sources upon the 

effective date of the new or revised NAAQS and before the deadline for air agencies to make 

infrastructure SIP submissions to the EPA. For example, one of the PSD program requirements is 

the requirement under section 165(a)(3) of the CAA that a permit applicant show it will not 

cause or contribute to a violation of any NAAQS. This requirement generally43 applies to any 

NAAQS in effect on the date a PSD permit decision is issued and is not deferred until an 

infrastructure SIP submission is due. Where permissible under state or tribal law, a rolling IBR 

approach is advisable to enable air agencies to implement this type of CAA requirement 

immediately upon the effective date of a NAAQS, thus ensuring that there is a mechanism in 

place for regulated sources in the state or an area of Indian country to meet CAA requirements 

resulting from a new or revised NAAQS as soon as it becomes applicable.

 

42 As one example of the preamble language that presents the EPA's position on infrastructure SIPs with respect to 

the issue of NSR Reform, see the final rule published in the Federal Register on July 13, 2011, "Approval and 

Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; 

Infrastructure SIP Requirements for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards." 76 

FR 41075. In section II of the preamble, the EPA applied the described position to existing provisions for PSD 

programs in light of the "NSR Reform Rules" that we promulgated mainly in 2002; see 67 FR 80186 (Dec. 31, 

2002).

43 In some circumstances, the EPA has authorized “grandfathering” of pending PSD permit applications. See 78 FR 

3086, January 15, 2012.
30

Elements D(i)(I) and (II) – Section 110(a)(2)(D)(i): Interstate Pollution Transport

Each such plan shall –

(D) contain adequate provisions –

 (i) prohibiting, consistent with the provisions of this subchapter, any source or 

other type of emissions activity within the State from emitting any air pollutant in 

amounts which will –

 (I) contribute significantly to nonattainment in, or interfere with maintenance by, 

any other State with respect to any such national primary or secondary ambient 

air quality standard, or 

 (II) interfere with measures required to be included in the applicable 

implementation plan for any other State under part C of this subchapter to 

prevent significant deterioration of air quality or to protect visibility.

Section 110(a)(2)(D)(i) contains two subsections: (D)(i)(I) and (D)(i)(II).

Section 110(a)(2)(D)(i)(I) addresses any emissions activity in one state that contributes 

significantly to nonattainment, or interferes with maintenance, of the NAAQS in another 

state. The EPA sometimes refers to these requirements as prong 1 (significant 

contribution to nonattainment) and prong 2 (interference with maintenance). Neither 

prong 1 nor prong 2 is addressed in this guidance. This guidance does not modify any 

prior statements by the EPA with respect to prongs 1 and 2 and does not address, discuss, 

or in any way alter any requirements set forth in either prong. 

Element D(i)(II) requires SIPs to include provisions prohibiting any source or other type 

of emissions activity in one state from interfering with measures required of any other state to 

prevent significant deterioration of air quality or from interfering with measures required of any 

other state to protect visibility (referring to visibility in Class I areas). The EPA sometimes refers 

to these requirements under subsection 110(a)(2)(D)(i)(II) as prong 3 (interference with PSD) 

and prong 4 (interference with visibility protection). The EPA interprets section 110(a)(2) to 

require air agencies to address prong 3 and prong 4 as part of each infrastructure SIP submission.

Prong 3: Under section 110(a)(2)(D)(i)(II), SIPs would need to have provisions 

prohibiting emissions that would interfere with measures required to be in any other air agency’s 
31

SIP under part C of the CAA to prevent significant deterioration of air quality. Because part C 

requires an air agency’s PSD permitting program to address all pollutants subject to regulation 

under the CAA, the EPA interprets prong 3 to mean that the infrastructure SIP submission should 

have provisions to prevent emissions of any regulated pollutant from interfering with any other 

air agency’s comprehensive PSD permitting program, in addition to the new or revised NAAQS 

that is the subject of the infrastructure submission. Moreover, the infrastructure SIP should

address the potential for such interference by sources throughout the jurisdiction of the air 

agency.

One way to meet prong 3 (”interference with PSD”), specifically with respect to those 

in-state sources and pollutants that are subject to PSD permitting, is through an air agency’s 

confirmation in its infrastructure SIP submission that new major sources and major modifications 

are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to 

all regulated NSR pollutants and that satisfies the requirements of the EPA’s PSD 

implementation rule(s), as discussed above for purposes of Element C. This is because in order 

to be approved by the EPA, a major source PSD permitting program would need to fully 

consider source impacts on air quality in other states.

In-state sources not subject to PSD for any one or more of the pollutants subject to 

regulation under the CAA because they are in a nonattainment area for a NAAQS related to 

those particular pollutants may also have the potential to interfere with PSD in an attainment or 

unclassifiable area of another state. The EPA cannot ignore this potential when reviewing an 

infrastructure SIP for this prong. The EPA will consider and may rely on an air agency’s EPAapproved nonattainment NSR provisions in determining whether a SIP satisfies prong 3 with 

respect to sources located in areas subject to nonattainment NSR for any one or more pollutants 
32

and thus not subject to PSD permitting for those NAAQS pollutants. 44 SIP revisions to address 

nonattainment NSR requirements for any new or revised NAAQS are, however, due on a 

separate timeframe under section 172(b) of the CAA and are not subject to the timeframe for 

submission of infrastructure SIPs under section 110(a)(1). Therefore, a fully approved 

nonattainment NSR program with respect to any previous NAAQS may generally be considered 

by the EPA as adequate for purposes of meeting the requirement of prong 3 with respect to 

sources and pollutants subject to such program. Also, if an air agency makes a submission 

indicating that it issues permits pursuant to 40 CFR part 51 appendix S in a nonattainment area 

because a nonattainment NSR program for a particular NAAQS pollutant has not yet been 

approved by the EPA for that area, that permitting program may generally be considered by the 

EPA as adequate for purposes of meeting the requirements of prong 3 with respect to sources and 

pollutants subject to such program. Such reliance for infrastructure purposes would not constitute 

approval under CAA title I part D, and the EPA will explain this in the preambles to any

proposed or final actions that rely on this rationale to support the conclusion that prong 3 is 

satisfied. 

For an air agency without an EPA-approved major source PSD program and/or, where 

required, an EPA-approved nonattainment NSR program, it may still be possible for the EPA to 

also find, given the facts of the situation, that other SIP provisions and/or physical condition are

adequate to prohibit interference with other air agencies’ measures to prevent significant 

deterioration of air quality.

Prong 4: Under section 110(a)(2)(D)(i)(II), an infrastructure SIP submission cannot be 

approved with respect to prong 4 (visibility transport) until the EPA has issued final approval of 

SIP provisions that the EPA has found to adequately address any contribution of that state's 

 

44 Refer, e.g., to a memorandum issued by William T. Harnett, Director, OAQPS/AQPD, "Guidance for State 

Implementation Plan (SIP) 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," dated August 15, 2006. According to that 

2006 Harnett memo, in section 5, “[t]he implementation of a PSD and NNSR permitting program in each state 

serves to prevent significant deterioration in neighboring states and thus largely satisfies the requirements of 

section 110(a)(2)(D)(i)(II) of the CAA.” Nevertheless, nonattainment-related provisions, although identified in 

section 110(a)(2) of the CAA, are considered by the EPA to be outside the scope of infrastructure SIP actions, as 

discussed in section II of this guidance.
33

sources to impacts on visibility program requirements in other states. The EPA interprets this 

prong to be pollutant-specific, such that the infrastructure SIP submission need only address the 

potential for interference with protection of visibility caused by the pollutant (including 

precursors) to which the new or revised NAAQS applies. Carbon monoxide does not affect 

visibility, so an infrastructure SIP for any future new or revised NAAQS for carbon monoxide 

need only state this fact in order to meet prong 4. Significant impacts from lead (Pb) emissions 

from stationary sources are expected to be limited to short distances from the source and most, if 

not all, Pb stationary sources are located at distances from Class I areas such that visibility 

impacts would be negligible. Although Pb can be a component of coarse and fine particles, Pb 

generally comprises a small fraction of coarse and fine particles. Furthermore, when evaluating 

the extent to which Pb could impact visibility, Pb-related visibility impacts were found to be 

insignificant (e.g., less than 0.10 percent).45 Although we anticipate that Pb emissions will 

contribute only negligibly to visibility impairment in Class I areas, the air agency’s submission 

of an infrastructure SIP for a new or revised Pb NAAQS should include an explanation in 

support of the air agency’s conclusion (and, if appropriate, should include control measures in its 

submission to limit impacts in other states). 

One way in which prong 4 may be satisfied for any relevant NAAQS is through an air 

agency’s confirmation in its infrastructure SIP submission that it has an approved regional haze 

SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 

specifically require that a state participating in a regional planning process include all measures 

needed to achieve its apportionment of emission reduction obligations agreed upon through that 

process. See, for example, 40 CFR 51.308(d)(3)(ii). A fully approved regional haze SIP will 

ensure that emissions from sources under an air agency’s jurisdiction are not interfering with 

measures required to be included in other air agencies’ plans to protect visibility. However, if the 

air agency has submitted a 5-year progress report SIP that indicates that the regional haze SIP is 

deficient with respect to ensuring reasonable progress toward natural visibility conditions in a 

 

45 Memorandum from Mark Schmidt, OAQPS, “Ambient Pb’s Contribution to Class I Area Visibility Impairment,”

June 17, 2011.
34

Class I area in another state, the infrastructure SIP submission would need to explain how 

nevertheless the overall SIP satisfies prong 4. 

After the next round of regional haze SIPs become due in 2018, the EPA may find it 

appropriate to supplement the guidance provided here regarding the relationship between 

regional haze SIPs and prong 4.

A number of air agencies do not have fully approved regional haze SIPs in place and 

instead have FIPs in place, which cannot be relied upon to satisfy prong 4.

46 The presence of a 

regional haze FIP does not necessarily require disapproval of the infrastructure SIP for prong 4. 

A state air agency may elect to satisfy prong 4 by providing, as an alternative to relying on its 

regional haze SIP alone, a demonstration in its infrastructure SIP submission that emissions 

within its jurisdiction do not interfere with other air agencies’ plans to protect visibility. Such an 

infrastructure SIP submission would need to include measures to limit visibility-impairing 

pollutants and ensure that the reductions conform with any mutually agreed regional haze 

reasonable progress goals for mandatory Class I areas in other states.47

If the EPA determines the SIP to be incomplete or partially disapproves an infrastructure 

SIP submission for prong 4, a FIP obligation will be created. If a FIP or FIPs are already in effect 

that correct all regional haze SIP deficiencies, there will be no additional practical consequences 

from the partial disapproval for the affected air agency, the sources within its jurisdiction, or the 

 

46 Some approved regional haze SIPs have relied on the fact that electric generating units (EGUs) in the state must 

comply with a FIP previously promulgated by the EPA as part of the CSAPR to satisfy best achievable retrofit 

technology requirements for EGUs. In this limited way, if a regional haze SIP of this type has itself been approved 

by the EPA, it is possible for FIP provisions to be taken into account by the EPA in determining whether an 

infrastructure SIP may be approved for prong 4.

47 As examples of the possibility that an infrastructure SIP submission can satisfy prong 4 even though the regional 

haze SIP has not been fully approved, see: (i) “Approval and Promulgation of State Implementation Plans; State of 

Colorado; Interstate Transport of Pollution Revisions for the 1997 8-Hour Ozone and 1997 PM2.5 NAAQS: 

‘Interference With Visibility’ Requirement – Final Rule”, 76 FR 22036 (April 20, 2011); and (ii) “Approval and 

Promulgation of Implementation Plans; Kentucky; 110(a)(1) and (2) Infrastructure Requirements for the 2008 8-

Hour Ozone National Ambient Air Quality Standards – Final Rule,” 78 FR 14681 (March 7, 2013). In the first 

action, the EPA approved the infrastructure SIP submission with respect to prong 4 without having approved a 

regional haze SIP, based on the state’s demonstration that it does not interfere with other states’ measures to protect 

visibility through their regional haze SIPs. In the second proposed action, the EPA approved Kentucky’s submission 

with respect to prong 4 based on the partial approval of its regional haze SIP and its CSAPR SIP. 
35

EPA. The EPA will not be required to take further action with respect to prong 4 because the FIP

already in place would satisfy the requirements with respect to prong 4. In addition, unless the 

infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), 

mandatory sanctions under CAA section 179 would not apply because the deficiencies are not

with respect to a submission that is required under CAA title I part D. Nevertheless, the EPA 

continues to encourage all air agencies that may be subject to full or partial FIPs for regional 

haze requirements to consider adopting additional SIP provisions that would allow the EPA to 

fully approve the regional haze SIP and thus to withdraw the FIP and approve the infrastructure 

SIP with respect to prong 4.

Element D(ii) – Section 110(a)(2)(D)(ii): Interstate Pollution Abatement and International 

Air Pollution

Each such plan shall –

(D) contain adequate provisions –

 (ii) insuring compliance with the applicable requirements of sections 126 and 

115 (relating to interstate and international pollution abatement).

Element D(ii) is satisfied when an infrastructure SIP ensures compliance with the 

applicable requirements of CAA sections 126(a), 126(b) and (c), and 115. 

Interstate Pollution Abatement:

 Sec. 126. (a) Each applicable implementation plan shall –

(1) require each major proposed new (or modified) source –

 (A) subject to part C (relating to significant deterioration of air quality) or

 (B) which may significantly contribute to levels of air pollution in excess of the 

national ambient air quality standards in any air quality control region outside 

the State in which such source intends to locate (or make such modification), to 

provide written notice to all nearby States the air pollution levels of which may be 

affected by such source at least sixty days prior to the date on which 

commencement of construction is to be permitted by the State providing notice, 

and

(2) identify all major existing stationary sources which may have the impact 

described in paragraph (1) with respect to new or modified sources and provide 

notice to all nearby States of the identity of such sources not later than 

three months after the date of enactment of the Clean Air Act Amendments of 

1977.
36

Under section 126(a)(1) of the CAA, each SIP would need to contain provisions requiring 

each new or modified major source required by CAA title I part C to be subject to PSD to notify 

neighboring air agencies of potential impacts from the source. Consistent with EPA’s 

interpretation of part C with respect to the requirements of Element C, the notification 

requirements apply to potential impacts from all PSD-regulated pollutants, not only the new or 

revised NAAQS for which the infrastructure SIP submission is being made. Section 126(a)(1)

also requires that each SIP contain provisions requiring each new or modified major source to 

provide similar notification if it may significantly contribute to levels of pollution in excess of a 

NAAQS in any air quality control region outside of the state in which the source is located.

Air agencies with PSD programs that have been approved into their SIPs should already 

have a regulatory provision in place, consistent with 40 CFR 51.166(q)(2)(iv), which requires the 

permitting authority to notify air agencies whose lands may be affected by emissions from that 

source. Inasmuch as the information that the permitting authority provides to other air agencies is 

submitted by the source to the permitting authority, the EPA considers the notification by the 

permitting authority to satisfy the requirement of CAA section 126(a)(1)(A) that a new or 

modified major source subject to part C notify neighboring air agencies of its potential 

downwind impact.

A state that is subject to a FIP for its PSD program may not have an infrastructure SIP 

that satisfies Element D(ii) with respect to section 126(a)(1) of the CAA, depending on the scope 

of the gap in the SIP that led to the PSD FIP. Where some or all pollutants in a state are subject 

to a PSD FIP, the EPA may find the infrastructure SIP submission to be incomplete with respect 

to Element D(ii) and could not fully approve the infrastructure SIP submission with respect to 

Element D(ii) if the approved SIP has no other provision meeting the notification requirements 

of section 126(a)(1). Nonetheless, as noted above, the EPA anticipates that there would be no 

adverse consequences to the air agency or to sources within its jurisdiction from this lack of full 

approval. The EPA would not likely be required to take further action with respect to notification 

under this element, because the federal PSD rules should fully address the notification issue

through the requirements of 40 CFR 52.21(q) and 40 CFR 124.10(c)(vii) and thus satisfy the FIP 
37

requirement triggered by the disapproval of the infrastructure SIP.

48 In addition, unless the 

infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), 

mandatory sanctions under CAA section 179 would not apply because the deficiencies are not

with respect to a submission that is required under CAA title I part D.

The EPA notes that the requirement stated in CAA section 126(a)(2) was a one-time 

obligation on states that does not apply to the EPA’s review of infrastructure SIP submissions.

Interstate Pollution Abatement:

Section 126...

(b) Any State or political subdivision may petition the Administrator for a finding 

that any major source or group of stationary sources emits or would emit any air 

pollutant in violation of the prohibition of section 110(A)(2)(D)(ii) or this section. 

Within 60 days after receipt of any petition under this subsection and after public 

hearing, the Administrator shall make such a finding or deny the petition.

(c) Notwithstanding any permit which may have been granted by the State in 

which the source is located (or intends to locate), it shall be a violation of [this 

section and] the applicable implementation plan in such State –

 (1) for any major proposed new (or modified) source with respect to which a 

finding has been made under subsection (b) to be constructed or to operate in 

violation of [this section and] the prohibition of section 110(a)(2)(D)(ii) or this 

section, or 

 (2) for any major existing source to operate more than three months after such 

finding has been made with respect to it.

The Administrator may permit the continued operation of a source referred to in 

paragraph (2) beyond the expiration of such three-month period if such source 

complies with such emission limitations and compliance schedules (containing 

increments of progress) as may be provided by the Administrator to bring about 

compliance with the requirements contained in section 110(a)(2)(D)(ii) as 

expeditiously as practicable, but in no case later than three years after the date of 

such finding. Nothing in the preceding sentence shall be construed to preclude 

any such source from being eligible for an enforcement order under 

section 113(d) after the expiration of such period during which the Administrator 

has permitted continuous operation.

 

48 40 CFR part 124, including 124.10(c)(vii), provides for EPA notification to states whose lands may be affected by 

emissions from the source and applies to all federal PSD permits issued in accordance with 40 CFR 52.21.
38

Please note that the EPA has concluded that the cross-reference in CAA section 126(b) to 

CAA section 110(a)(2)(D)(ii) is a scrivener’s error and that Congress intended to refer to 

section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d -1032, 1040-44 (D.C. Cir. 

2001). Section 110(a)(2)(D)(i), in short, prohibits any source or emissions activity in a state from 

emitting any amount of air pollutant which will contribute significantly to nonattainment or 

interfere with maintenance of the NAAQS in another state. (42 U.S.C. § 7410.)

The required content of an infrastructure SIP with respect to Element D(ii) is affected by

sections 126(b) and 126(c) of the CAA only if: (1) the Administrator has, in response to a 

petition, made a finding under section 126(b) of the CAA that emissions from a source or

sources within the air agency’s jurisdiction emit prohibited amounts of air pollution relevant to 

the new or revised NAAQS for which the infrastructure SIP submission is being made; and (2) 

under section 126(c) of the CAA, the Administrator has required the source or sources to cease 

construction, cease or reduce operations, or comply with emissions limitations and compliance 

schedule requirements for continued operation. Where appropriate, the EPA recommends that an 

infrastructure SIP submission concerning section 126(c) include a statement to the following 

effect: “No source or sources within the state [or tribal area] are the subject of an active finding 

under section 126 of the CAA with respect to the particular NAAQS at issue.” Otherwise, where 

a source or sources within the air agency’s jurisdiction are subject to such a finding and there are 

substantive SIP requirements imposed by the Administrator under section 126(c) of the CAA, 

then we encourage the air agency to consult with its EPA Regional Office. 

International Air Pollution:

 Sec. 115. (a) Whenever the Administrator, upon receipt of reports, surveys or 

studies from any duly constituted international agency has reason to believe that 

any air pollutant or pollutants emitted in the United States cause or contribute to 

air pollution which may reasonably be anticipated to endanger public health or 

welfare in a foreign country or whenever the Secretary of State requests him to do 

so with respect to such pollution which the Secretary of State alleges is of such a 

nature, the Administrator shall give formal notification thereof to the Governor of 

the State in which such emissions originate. 

(b) The notice of the Administrator shall be deemed to be a finding under 

section 110(a)(2)(H)(ii) which requires a plan revision with respect to so much of 

the applicable implementation plan as is inadequate to prevent or eliminate the 

endangerment referred to in subsection (a). Any foreign country so affected by 
39

such emission of pollutant or pollutants shall be invited to appear at any public 

hearing associated with any revision of the appropriate portion of the applicable 

implementation plan.

Section 115 of the CAA authorizes the Administrator to require a state to revise 

its SIP under certain conditions to alleviate international transport into another country. 

Because of the appearance of the phrase “applicable requirements of section[]...115” in 

Element D(ii), the EPA interprets this requirement to be NAAQS-specific. That is, when

acting on an infrastructure SIP submission for a new or revised NAAQS, the EPA will 

look to whether the Administrator has made a finding with respect to emissions of the 

particular NAAQS pollutant and its precursors, if applicable. Where appropriate, the EPA 

recommends that infrastructure SIP submission requirements concerning section 115 

include a statement to the following effect: "There are no final findings under section 115 

of the CAA against this state [or tribal area] with respect to the particular NAAQS at 

issue." If there are one or more final findings under section 115 of the CAA, then we 

encourage the air agency to consult with its EPA Regional Office.

Element E – Section 110(a)(2)(E): Adequate Resources and Authority, Conflict of 

Interest, and Oversight of Local Governments and Regional Agencies

Each such plan shall –

(E) provide (i) necessary assurances that the State (or, except where the 

Administrator deems inappropriate, the general purpose local government or 

governments, or a regional agency designated by the State or general purpose 

local governments for such purpose) will have adequate personnel, funding, and 

authority under State (and, as appropriate, local) law to carry out such 

implementation plan (and is not prohibited by any provision of Federal or State 

law from carrying out such implementation plan or portion thereof), 

(ii) requirements that the State comply with the requirements respecting State 

boards under section 128, and (iii) necessary assurances that, where the State has 

relied on a local or regional government, agency, or instrumentality for the 

implementation of any plan provision, the State has responsibility for ensuring 

adequate implementation of such plan provision.
40

Subelement (i): The SIP should provide necessary assurances49 that the air agency has

adequate personnel and funding to implement the relevant NAAQS. In accordance with the 

EPA's regulations at 40 CFR part 51, subpart M (“Intergovernmental Consultation”), the 

infrastructure SIP submission should identify the organizations that will participate in 

developing, implementing, and enforcing the EPA-approved SIP provisions related to the new or 

revised NAAQS and thus require resources for doing so. The infrastructure SIP submission 

should identify the responsibilities of such organizations and include related agreements among 

the organizations. For compliance with section 110(a)(2)(E), see 40 CFR 51.240 ("General plan 

requirements"). Also, in accordance with the EPA's regulations at 40 CFR part 51, subpart O 

(“Miscellaneous Plan Content Requirements”), the infrastructure SIP submission should describe 

the resources that are available to these organizations for carrying out the SIP. Resources to be 

described should include: (1) those available to these organizations as of the date of 

infrastructure SIP submission; (2) those considered necessary during the 5 years following 

infrastructure SIP submission; and (3) projections regarding acquisition of the described 

resources. For compliance with section 110(a)(2)(E) with respect to resources, see 40 CFR 

51.280 ("Resources"). 

Further, the infrastructure SIP submission should assure that the responsible state, local, 

and/or regional agencies, or a tribal authority, have adequate authority under statutes, rules, and 

regulations to carry out SIP obligations with respect to the relevant NAAQS. See the EPA's 

regulations at 40 CFR part 51, subpart L ("Legal Authority") and subpart O. In accordance with 

the EPA's regulations at subpart L, the infrastructure SIP submission should show that the 

responsible organizations have the legal authority to carry out the provisions identified in the SIP 

submission.

 

49 As with any SIP submission, the EPA’s review can be expedited if a SIP submission for this element includes a 

detailed explanation of how the existing SIP (supplemented by any new provisions included in the submission) 

meets each of the applicable requirements of section 110(a)(2)(E)(i). This should include a description of the 

correlation between the requirements of this element and an equivalent set of statutory, regulatory, and/or nonregulatory provisions, as appropriate. When an air agency’s infrastructure submission more clearly identifies each

CAA element being met by the SIP submission and explains how it is met, the EPA can more easily determine 

whether the submission is complete and approvable with respect to that element.
41

In accordance with 40 CFR 51.231, the infrastructure SIP submission should identify the 

provisions of law or regulations that the air agency determines provide the necessary authority,

and the air agency should submit copies of those laws or regulations with the infrastructure SIP 

submission. If an official, legal copy of a particular law or regulation has already been provided 

to the EPA in an earlier SIP submission, that copy only needs to be referenced with sufficient 

specificity to avoid ambiguity, rather than a new copy submitted.50 For compliance with 

section 110(a)(2)(E) with respect to legal authority, see 40 CFR 51.230 and 40 CFR 51.231.

Having reviewed and approved air agency SIP submissions with respect with this 

element, the EPA expects that it would be unusual for air agencies to need to make SIP revisions 

regarding personnel, funding, or legal authority in order to satisfy this subelement. However, for 

any new or revised NAAQS, the air agency should explain in the infrastructure SIP submission 

how resources and personnel and legal authority are adequate and provide any additional 

assurances needed to meet changes in resource requirements by the new or revised NAAQS.

Subelement (ii): 

State Boards:

The infrastructure SIP submission (possibly in combination with earlier submissions 

already approved by the EPA) would need to include the statutory or regulatory provisions that 

impose the requirements mandated by CAA section 128 pertaining to certain boards, bodies, and 

personnel involved in approving permits or enforcement orders. Because CAA 

section 110(a)(2)(e)(ii) directs states to “provide requirements that the state comply with the 

 

50 Refer to a memorandum dated November 22, 2011, jointly from Janet McCabe, Deputy Assistant Administrator, 

Office of Air and Radiation, and Becky Weber, Director, Air and Waste Management Division, Region 7, to Air 

Division Directors, Regions 1-10, titled "Guidelines for Preparing Letters Submitting State Implementation Plans 

(SIPs) to EPA and for Preparing Public Notices for SIPs."
42

requirements respecting state boards under section 128,”51 the provisions that implement CAA 

section 128 would need to be contained within the SIP. That is, the EPA would not approve an 

infrastructure SIP submission that only provides a narrative description of existing air agency 

laws, rules, and regulations that are not approved into the SIP to address CAA section 128 

requirements. If an existing rule regarding conflict of interest and disclosure requirements has 

been adopted under the authority of a state or tribal law, the rule would need to be included in the 

SIP submission, but the authorizing law would not. If the state or tribal law is self-executing and 

there is no rule that could be included in the SIP, then the law would need to be incorporated into 

the SIP. Inclusion of an existing law in the SIP does not prevent the state legislature or tribal 

council from amending that law at a later date as a matter of state law, although eventually the 

EPA-approved SIP will need to be updated with any such amendment in order to revise the 

federally enforceable SIP. 

All air agencies are subject to the provisions of CAA section 128. However, if there is no

board or body authorized to approve permits or enforcement orders under the CAA, then a 

negative declaration to that effect may serve to satisfy the "board or body" requirements under 

paragraph (a)(1) of CAA section 128. It is the EPA’s stated interpretation that a multi-member 

board or body that has authority under state or tribal law to hear appeals of CAA permits or 

 

51 Sec. 128. (a) Not later than the date one year after the date of the enactment of 

this section, each applicable implementation plan shall contain requirements 

that –

(1) any board or body which approves permits or enforcement orders under this 

Act shall have at least a majority of members who represent the public interest 

and do not derive any significant portion of their income from persons subject to 

permits or enforcement orders under this Act, and

(2) any potential conflicts of interest by members of such board or body or the 

head of an executive agency with similar powers be adequately disclosed.

A State may adopt any requirements respecting conflicts of interest for such 

boards or bodies or heads of executive agencies, or any other entities which are 

more stringent than the requirements of (paragraphs (1) and (2), and the 

Administrator shall approve any such more stringent requirements submitted as 

part of an implementation plan.
43

enforcement orders is considered to have authority to “approve” those permits or enforcement 

orders. Accordingly, the requirements of section 128(a)(1) related to public interest and 

limitations on sources of income are applicable to such a board or body and would need to be 

met through provisions incorporated into the SIP.52,53

The provisions of section 128(a)(2), which concern disclosure of potential conflicts of 

interest, would need to be substantively met by provisions incorporated into the SIP, regardless 

of whether it is a board, some other body, or the head of an executive agency that has 

responsibility for approving permits or enforcement orders in that state or an area of Indian 

country. It is the EPA’s stated interpretation that a multi-member board or body that has 

authority under state or tribal law to hear appeals of CAA permits or enforcement orders is 

considered to have authority to “approve” those permits or enforcement orders. Accordingly, the 

requirement of section 128(a)(2) related to disclosure is applicable to such a board or body and 

would need to be met through provisions incorporated into the SIP.

In 1978, the EPA issued a guidance memorandum recommending ways air agencies 

could meet the requirements of section 128, including suggested interpretations of certain terms 

in section 128.54 EPA has not issued further guidance or regulations of general applicability on 

the subject since that time. However, as part of its actions on several infrastructure SIP 

submissions, the EPA has more recently proposed certain interpretations of section 128 as 

applied to these specific submissions, invited comment on these interpretations, and finalized its 

actions. Within those actions, EPA has thus provided additional interpretation of the terms of 

section 128 given specific facts and circumstances, consistent with the statutory requirements. 

 

52 The EPA expressed this interpretation in a proposed action on the infrastructure SIP for Arizona. June 27, 2012. 

“Partial Approval and Disapproval of Air Quality Implementation Plans; Arizona: Infrastructure Requirement for 

Ozone and Fine Particulate Matter.” 77 FR 38239. This action was finalized on November 5, 2012, 77 FR 66398.

53 “Approval and Promulgation of State Implementation Plans; Hawaii Infrastructure Requirements for the 1997 8-

Hour Ozone and the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards.” 77 FR 47530 

(August 9, 2012). The EPA’s action on the infrastructure SIP for Arizona referenced the proposal for this action on 

the infrastructure SIP for Hawaii.

54 See Memorandum from David O. Bickart to Regional Air Directors, "Guidance to States for Meeting Conflict of 

Interest Requirements of Section 128," Suggested Definitions, March 2, 1978.
44

See, e.g., EPA's proposed (77 FR 44555, July 30, 2012) and final (77 FR 66398, November 5, 

2012) actions on an infrastructure SIP submission from Arizona. Unlike the recommendations of 

the 1978 guidance memorandum, in this action the EPA interpreted the term “state board” to 

exclude an individual official. As in the 1978 guidance memorandum, in this action the EPA 

interpreted the requirement regarding representation of the public interest and limitations on 

income to apply to a board that does not issue permits and compliance orders but does hear 

appeals of permits and compliance orders. The EPA notes that air agencies in different 

jurisdictions may have very different organizational structures and very different allocations of 

authorities and responsibilities with respect to permits and enforcement orders. Thus, the EPA 

recommends that air agencies consult with their respective EPA Regional Offices about the most 

appropriate method for assuring that the requirements of section 110(a)(2)(E)(ii) and section 128 

are met in that jurisdiction under the relevant facts and circumstances.

Subelement (iii): The infrastructure SIP submission should provide necessary 

assurances55 that the state retains responsibility for ensuring adequate implementation of SIP 

obligations with respect to relevant NAAQS. A state may authorize a local or regional agency to 

carry out the SIP or a portion of the SIP within that agency's jurisdiction, if the SIP demonstrates 

that the local agency has the necessary legal authority. However, in these cases the infrastructure 

SIP submission needs to also provide assurances that the state air agency retains responsibility 

for ensuring adequate implementation of the SIP. Under subpart L, see 40 CFR 51.232 

("Assignment of legal authority to local agencies").

 

55 As with any SIP submission, the EPA’s review can be expedited if a SIP submission for this element includes a 

detailed explanation of how the existing SIP meets each of the applicable requirements of section 110(a)(2)(E)(i). 

This should include a description of the correlation between the requirements of this element and an equivalent set 

of statutory, regulatory, and/or non-regulatory provisions, as appropriate, that are part of the existing SIP. When an 

air agency’s infrastructure submission more clearly identifies each CAA element being met by the SIP submission 

and explains how the element is met, the EPA can more easily determine whether the submission is complete and 

approvable with respect to that element.
45

Element F – Section 110(a)(2)(F): Stationary Source Monitoring and Reporting

Each such plan shall –

(F) require, as may be prescribed by the Administrator –

 (i) the installation, maintenance, and replacement of equipment, and the 

implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, 

 (ii) periodic reports on the nature and amounts of emissions and emissionsrelated data from such sources, and 

 (iii) correlation of such reports by the State agency with any emission limitations 

or standards established pursuant to this Chapter, which reports shall be 

available at reasonable times for public inspection.

Subelement (i): The EPA’s rules regarding how SIPs would need to address requirements 

for source monitoring are contained in 40 CFR 51.212 (“Testing, inspection, enforcement, and 

compliance”). This EPA regulation requires SIPs to provide for a program of periodic testing and 

inspection of stationary sources, to provide for the identification of allowable test methods, and 

to exclude any provision that would prevent the use of any credible evidence of noncompliance. 

The infrastructure SIP submission should describe the air agency’s program for source testing, 

reference the statutory authority for the air agency’s program, and certify the absence of any 

provision preventing the use of any credible evidence. 

Subelement (ii): To address periodic reporting requirements, the infrastructure SIP 

submission should include air agency requirements providing for periodic reporting of emissions 

and emissions-related data by sources to the air agency, as required by the following emissions 

reporting requirements: 40 CFR 51.211 (“Emissions reports and recordkeeping”); 40 CFR 

sections 51.321 through 51.323 (“Source Emissions and State Action Reporting”); and the EPA’s 

Air Emissions Reporting Rule, 40 CFR part 51, subpart A (“Air Emissions Reporting 

Requirements”).56 We note that the section 51.321 requirement that emissions reports from states 

be made through the appropriate EPA Regional Office has been superseded in practice, as these 

data are now to be reported electronically through a centralized data portal pursuant to 40 CFR 

 

56 40 CFR sections 51.321 through 51.323 nominally address emission reporting but merely cross-reference to 

subpart A.
46

51.45(b), which refers to the website http://www.epa.gov/ttn/chief for the latest information on 

data reporting procedures. However, states should consult with the appropriate EPA Regional 

Office as they prepare and submit these data. All states have existing periodic source reporting of 

emissions and emission inventory reporting practices. Thus for any new or revised NAAQS, the 

infrastructure SIP may be able to certify existing authority and commitments and provide any 

additional assurance needed to meet changes in reporting and inventory requirements associated 

with the new or revised NAAQS.

Subelement (iii): The infrastructure SIP submission should reference and describe 

existing air agency requirements that have been approved into the SIP by the EPA, or include air 

agency requirements being newly submitted, that provide for the following: (1) correlation57 by 

the air agency of emissions reports by sources with applicable emission limitations or standards;

and (2) the public availability of emission reports by sources. Under 40 CFR part 51 subpart G, 

40 CFR 51.116 ("Data availability"), contains the requirements for correlating data. Correlation 

with applicable emissions limitations or standards is relevant only for those reports of source 

emissions that reflect the test method(s) and averaging period(s) specified in applicable emission 

limitations or standards. Thus, source reports of annual, ozone season, or summer day emissions 

used by the air agency to create the annual and triennial emission inventory submission to the 

EPA under 40 CFR part 51 subpart A in general would not need to be correlated with specific 

emission limitations or standards, as many sources do not have applicable emission limitations 

defined for those averaging periods. However, if the sources have applicable emissions 

limitations that are defined for these averaging periods, then they would need to be correlated.

 

57 As defined in 40 CFR 51.116(c), the term "correlated" means "presented in such a manner as to show the 

relationship between measured or estimated amounts of emissions and the amounts of such emissions allowable 

under the applicable emission limitations or other measures."
47

Element G – Section 110(a)(2)(G): Emergency Powers

Each such plan shall –

(G) provide for authority comparable to that in section 303 and adequate 

contingency plans to implement such authority.

Section 303 of the CAA provides authority to the EPA Administrator to seek a court 

order to restrain any source from causing or contributing to emissions that present an "imminent 

and substantial endangerment to public health or welfare, or the environment." The EPA has 

interpreted section 110(a)(2)(G) as imposing two basic requirements for purposes of an 

infrastructure SIP submission. 

To meet Element G requirements, the best practice for an air agency submitting an 

infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the SIP), 

the statutory or regulatory provisions that provide the air agency or official with authority 

comparable to that of the EPA Administrator under section 303 (see, e.g., 40 CFR 51.230(c)),

along with a narrative explanation of how they meet the requirements of this element.

58 If an air 

agency chooses not to include the relevant statute or regulation in its SIP, then the air agency 

should provide a reference or citation to the authority provisions, along with a narrative 

explanation of how the provisions meet the requirements of this element, as well as a copy of the 

relevant authority to accompany the SIP as required by 40 CFR 51.231.

The air agency is also required to submit, for approval into the SIP (if not already part of 

the SIP), an adequate contingency plan to implement the air agency’s emergency episode 

authority. This can be met by submitting a plan that meets the applicable requirements of 40 

CFR part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution 

Emergency Episodes”) for the relevant NAAQS if the NAAQS is covered by those regulations.

The EPA’s subpart H regulations provide specific ambient levels for contingency plan 

purposes for most NAAQS. In the case of the 2006 PM2.5 NAAQS, for which the EPA has not 

 

58 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.
48

yet promulgated regulations that provide the ambient levels to classify different priority levels, 

the EPA has recommended these levels through guidance.59

Subpart H includes criteria for classification of areas into priority regions, based on 

ambient air concentrations of the particular pollutant being addressed. The currently applicable 

priority classifications for regions for each state can be found in 40 CFR part 52 subparts B 

through DDD (see sections titled “Classification of Regions”). As noted above, the air agency’s 

infrastructure SIP submission would need to include the contingency plan, if one is required and 

has not yet been approved by the EPA. If an area is classified as a Priority I, IA, or II region for a 

specified pollutant, then the infrastructure SIP should contain an emergency contingency plan 

meeting the specific requirements of 40 CFR 51.151 and 51.152, as appropriate, with respect to 

that pollutant. For such areas, the infrastructure submission should demonstrate that the air 

agency’s existing EPA-approved SIP already contains an adequate contingency plan, if that is the 

case; otherwise, the submission should include the substantive SIP revisions necessary to meet 

the emergency contingency plan requirements with respect to that pollutant.

Specifically, if an area is classified as a Priority I region for a specified pollutant, the 

area’s contingency plan (with respect to that pollutant) would need to include provisions that 

trigger actions to prevent air quality concentrations from reaching a “significant harm level” 

(SHL), which represents an imminent and substantial endangerment to public health. See 40 CFR 

51.151 and the more detailed explanation below. Each implementation plan for a Priority I, IA,

or II region would need to include a contingency plan that provides for taking certain specified 

actions. Specifically, 40 CFR sections 51.152(b) and (c) state that: 

(b) Each contingency plan for a Priority I region must provide for the following: 

(1) Prompt acquisition of forecasts of atmospheric stagnation conditions and of 

updates of such forecasts as frequently as they are issued by the National Weather 

Service. 

(2) Inspection of sources to ascertain compliance with applicable emission

control action requirements. 

 

59 See a memorandum from William T. Harnett, Director, Air Quality Policy Division, OAQPS, to Regional Air 

Division Directors, Regions I through X, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for 

the 2006 Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS).” (September 25, 2009).
49

(3) Communications procedures for transmitting status reports and orders as to 

emission control actions to be taken during an episode stage, including 

procedures for contact with public officials, major emission sources, public 

health, safety, and emergency agencies and news media. 

(c) Each plan for a Priority IA and II region must include a contingency plan that 

meets, as a minimum, the requirements of paragraphs (b)(1) and (b)(2) of this 

section. Areas classified as Priority III do not need to develop episode plans.

To satisfy a Priority I, IA, or II region's contingency plan requirements under 40 CFR 

51.152(b)(1) regarding forecasts of atmospheric stagnation conditions, an infrastructure SIP 

submission may cite existing ambient monitoring and forecasting networks (such as AIRNow).60

Areas that maintain air quality at ambient levels lower that the concentrations listed in 

sections 51.150(b), (c), and (d), with respect to the pollutants listed, are classified as Priority III 

regions. These areas are subject to the requirements of CAA Element G. However, according to 

40 CFR 51.152(c), areas classified as Priority III regions are not required to develop emergency 

episode plans, which the EPA has interpreted to mean the contingency plans otherwise required 

under Element G.

In a final rulemaking signed on December 14, 2012, to revise the PM2.5 NAAQS, the 

EPA retained the pre-existing level of 500 μg/m3

, 24-hour average, for the Air Quality Index 

(AQI) value of 500 and did not establish an SHL for PM2.5.

61 In addition, there is currently no 

established SHL for Pb. For those pollutants for which there is an SHL, the SHL is an important 

part of air pollution Emergency Episode Plans. Even in the absence of an SHL, the EPA believes 

that the central components of a contingency plan would be to reduce emissions from the 

source(s) at issue (if necessary by curtailing operations of Pb or PM2.5 sources) and public 

communication as needed. In addition, if an air agency believes, based on its inventory of Pb or 

 

60 The EPA, in partnership with National Oceanic and Atmospheric Administration (NOAA), National Park Service 

(NPS), and tribal, state, and local agencies, developed the AIRNow website (see http://www.airnow.gov) to provide 

easy public access to national air quality information. The website offers daily AQI forecasts as well as real-time 

AQI conditions for over 300 cities across the U.S. and provides links to more detailed state and local air quality 

websites.

61 See 78 FR 3086 (January 15, 2013), “National Ambient Air Quality Standards for Particulate Matter.” The 

published version is posted at http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/pdf/2012-30946.pdf.
50

PM2.5 sources and historic ambient monitoring data, that it does not need a more specific 

contingency plan beyond having authority to restrain any source from causing or contributing to 

an imminent and substantial endangerment, then the air agency could provide such a detailed 

rationale as part of its SIP submission. Additionally, because smoke from fires has the potential 

to be the cause of extremely high levels of PM2.5, the EPA recommends that air quality-triggered 

responses incorporated into an Emergency Episode Plan for PM2.5 be developed through a 

collaborative process working with state and tribal air quality, forestry, and agricultural agencies, 

federal land management agencies, private land managers, and the public.

An episode in which concentrations of NO2 or SO2 approach the SHL is likely to be due 

to a single facility's equipment malfunction. Accordingly, as part of a SIP to satisfy a Priority I 

region's contingency plan requirements, an infrastructure SIP submission for an NO2 NAAQS or 

an SO2 NAAQS may specify the facility-specific or equipment-specific measures to be taken in 

the event of an air pollution emergency. 

In accordance with 40 CFR 51.152(d)(1) and (2), the Administrator may either: (i)

exempt portions of a Priority I, IA, or II region that have been designated as attainment or 

unclassifiable under section 107 of the CAA from the requirements of 40 CFR 51.152 to develop 

an emergency episode contingency plans, or (ii) limit the requirements pertaining to emission 

control actions in Priority I regions to certain areas or to certain major sources. Air agencies 

interested in such an exemption or limitation in appropriate circumstances should contact their 

respective EPA Regional Offices.

Appendix L to 40 CFR part 51 provides example regulations that air agencies could use 

to develop contingency plans and inform decisions concerning air pollution emergency episodes. 

The example regulations provided in appendix L reflect generally recognized ways of preventing 

air pollution from reaching levels that would cause imminent and substantial endangerment to 

the health of persons located within affected areas. States with Priority I, IA, or II areas are 

directed by subpart H to have emergency episode contingency plans that contain alert levels for 

SO2, PM10, carbon monoxide, NO2, and ozone, but air agencies are not required to adopt the 

appendix L example regulations.
51

Element H – Section 110(a)(2)(H): SIP Revisions

Each such plan shall –

(H) provide for revision of such plan –

 (i) from time to time as may be necessary to take account of revisions of such 

national primary or secondary ambient air quality standard or the availability of 

improved or more expeditious methods of attaining such standard, and 

 (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on 

the basis of information available to the Administrator that the plan is 

substantially inadequate to attain the national ambient air quality standard which 

it implements or to otherwise comply with any additional requirements 

established under this chapter.

To demonstrate that the requirements under Element H are met, the best practice for an air agency

submitting an infrastructure SIP would be to submit, for inclusion into the SIP (if not already part of the 

SIP), the statutory or regulatory provisions that provide the air agency or official with the 

authority to perform the following actions along with a narrative explanation of how they meet 

the requirements of this element: (1) revise its section 110 plan from time to time as may be 

necessary to take into account revisions of such primary or secondary NAAQS or the availability 

of improved or more expeditious methods of attaining such standards; and (2) revise the plan in 

the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS or 

otherwise meet all applicable CAA requirements.62

If an air agency chooses not to include the relevant statute or regulation in its SIP, then 

the air agency should provide a reference or citation to the authority provisions, along with a 

narrative explanation of how the provisions meet the requirements of this element, as well as a 

copy of the relevant authority to accompany the SIP as required by 40 CFR 51.231. More 

information may be found under 40 CFR part 51, subpart F ("Procedural Requirements"), 

specifically, 40 CFR 51.104 ("Revisions").

 

62 The EPA recognize that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.
52

Element I – Section 110(a)(2)(I): Plan Revisions for Nonattainment Areas 

Each such plan shall –

(I) in the case of a plan or plan revision for an area designated as a 

nonattainment area, meet the applicable requirements of part D of this 

subchapter (relating to nonattainment areas).

As noted earlier in this document, the EPA does not expect infrastructure SIP 

submissions to address subsection 110(a)(2)(I). The specific SIP submissions for designated 

nonattainment areas, as required under CAA title I part D, are subject to a different submission 

schedule63 than those for section 110 infrastructure elements and will be reviewed and acted 

upon through a separate process. Air agencies do not need to address Element I in an 

infrastructure SIP submission. For clarity’s sake, to better inform the public comment process on 

the SIP submission, the air agency may wish to clearly state that Element I is not being addressed

and reiterate in the infrastructure SIP submission that, according to the EPA’s interpretation of 

the CAA this element does not need to be addressed in the context of an infrastructure SIP 

submission.

Element J – Section 110(a)(2)(J): Consultation with Government Officials, Public 

Notification, and PSD and Visibility Protection

Each such plan shall –

(J) meet the applicable requirements of section 121 (relating to consultation), 

section 127 (relating to public notification), and part C (relating to prevention of 

significant deterioration of air quality and visibility protection)....

This element contains four separable sub-elements: consultation with identified officials 

on certain air agency actions; public notification; prevention of significant deterioration; and 

visibility protection.

Consultation with identified officials on certain actions:

 

63 These elements are typically referred to as nonattainment SIP or attainment plan elements and are due by the dates 

prescribed under subparts 2 through 5 of part D, extending as far as 10 years following designation for some 

elements.
53

 Sec. 121. In carrying out the requirements of this Act requiring applicable 

implementation plans to contain –

(1) any transportation controls, air quality maintenance plan requirements or 

preconstruction review of direct sources of air pollution, or 

(2) any measure referred to –

 (A) in part D (pertaining to nonattainment requirements), or

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

and in carrying out the requirements of section 113(d) (relating to certain 

enforcement orders), the State shall provide a satisfactory process of consultation 

with general purpose local governments, designated organizations of elected 

officials of local governments and any Federal land manager having authority 

over Federal land to which the State plan applies, effective with respect to any 

such requirement which is adopted more than one year after the date of 

enactment of the Clean Air Act Amendments of 1977 as part of such plan. Such 

process shall be in accordance with regulations promulgated by the 

Administrator to assure adequate consultation. The Administrator shall update as 

necessary the original regulations required and promulgated under this section 

(as in effect immediately before the date of the enactment of the Clean Air Act 

Amendments of 1990) to ensure adequate consultation. Only a general purpose 

unit of local government, regional agency, or council of governments adversely 

affected by action of the Administrator approving any portion of a plan referred 

to in this subsection may petition for judicial review of such action on the basis of 

a violation of the requirements of this section.

The infrastructure SIP submission would need to show that there is an established process 

for consultation with general-purpose local governments, designated organizations of elected 

officials of local governments, and any federal land manager having authority over federal land 

to which the plan applies, consistent with CAA section 121, which lists the specific types of 

actions for which such consultation is required. If the relevant statute is self-executing such that 

there is no associated regulation or other documents such as a memorandum of understanding, 

then the statute would need to be included in the SIP. If a regulation or other document meeting 

the CAA requirements exists, then the regulation or other document would need to be included in 

the SIP submission, and the authorizing statute should be referenced but the statute is not 

required to be part of the EPA-approved SIP. Under the requirements of 40 CFR 51.240, the SIP 

would need to identify organizations “that will participate in developing, implementing, and 

enforcing the plan and the responsibilities of such organizations.” The plan should also include 
54

any related agreements or memoranda of understanding among the organizations. See subpart M 

("Intergovernmental Consultation").

Public Notification:

Section 127. (a) Each State plan shall contain measures which will be effective to 

notify the public during any calendar [year] on a regular basis of instances or 

areas in which any national primary ambient air quality standard is exceeded or 

was exceeded during any portion of the preceding calendar year to advise the 

public of the health hazards associated with such pollution, and to enhance public 

awareness of the measures which can be taken to prevent such standards from 

being exceeded and the ways in which the public can participate in regulatory 

and other efforts to improve air quality. Such measures may include the posting of 

warning signs on interstate highway access points to metropolitan areas or 

television, radio, or press notices or information.

(b) The Administrator is authorized to make grants to States to assist in carrying 

out the requirements of subsection (a).

The infrastructure SIP submission would need to show that the air agency does the 

following: regularly notifies the public of instances or areas in which the new or revised primary

NAAQS was exceeded; advises the public of the health hazards associated with such 

exceedances; and enhances public awareness of measures that can prevent such exceedances and 

of ways in which the public can participate in regulatory and other efforts to improve air quality.

40 CFR 51.285 ("Public notification"), repeats the language of CAA section 127.

Prevention of significant deterioration: The approvability of an air agency’s PSD 

program is essential to the approvability of an infrastructure SIP submission with respect to CAA 

section 110(a)(2)(J). The requirements for Element J in relation to a comprehensive PSD 

permitting program are the same as described earlier in this document with respect to Element C. 

Generally, every PSD-related requirement of Element C applies, including the requirement that 

the PSD permitting program address all regulated pollutants. Please refer to that section. 

Visibility protection: Under 40 CFR part 51 subpart P, implementing the visibility 

requirements of CAA title I, part C, states are subject to requirements for RAVI, new source 

review for possible impacts on air quality related values in Class I areas, and regional haze 

planning. Specific requirements stemming from these CAA sections are codified at 40 CFR 
55

part 51 subpart P. However, when the EPA establishes or revises a NAAQS, these requirements

under part C do not change. The EPA believes that there are no new visibility protection 

requirements under part C as a result of a revised NAAQS. Therefore, there are no newly 

applicable visibility protection obligations pursuant to Element J after the promulgation of a new 

or revised NAAQS. Air agencies do not need to address the visibility subelement of Element J in 

an infrastructure SIP submission. For clarity’s sake, to better inform the public comment process 

on the SIP submission, the air agency may wish to clearly state that the visibility subelement of 

Element J is not being addressed, and reiterate in the submission that according to EPA’s 

interpretation of the CAA this element does not need to be addressed.

Element K – Section 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data

Each such plan shall –

(K) provide for –

 (i) the performance of such air quality modeling as the Administrator may 

prescribe for the purpose of predicting the effect on ambient air quality of any 

emissions of any air pollutant for which the Administrator has established a 

national ambient air quality standard, and 

 (ii) the submission, upon request, of data related to such air quality modeling to 

the Administrator.

To meet Element K, the best practice would be for an air agency to submit, for inclusion 

into the SIP (if not already part of the SIP), the statutory or regulatory provisions that provide the 

air agency or official with the authority to perform the following actions along with a narrative 

explanation of how the provisions meet the requirements of this element64: (1) conduct air 

quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant 

for which a NAAQS has been promulgated, and (2) provide such modeling data to the EPA 

Administrator upon request.

 

64 The EPA recognizes that some air agencies may have general authorizing provisions that do not specifically 

enumerate specific activities but do implicitly authorize the air agency to perform such activities, in which case 

inclusion of those provisions would meet the intent of this best practice.
56

If an air agency chooses not to include the relevant statute or regulations in its SIP, then 

the air agency should provide a reference or citation to the authority provisions, along with a 

narrative explanation of how they meet the requirements of this element, as well as a copy of the 

relevant authority to accompany the SIP as required by 40 CFR 51.231. 

Element L – Section 110(a)(2)(L): Permitting Fees

Each such plan shall –

(L) require the owner or operator of each major stationary source to pay to the 

permitting authority, as a condition of any permit required under this chapter, a 

fee sufficient to cover –

 (i) the reasonable costs of reviewing and acting upon any application for such a 

permit, and 

 (ii) if the owner or operator receives a permit for such source, the reasonable 

costs of implementing and enforcing the terms and conditions of any such permit 

(not including any court costs or other costs associated with any enforcement 

action),

until such fee requirement is superseded with respect to such sources by the 

Administrator's approval of a fee program under subchapter V of this chapter.

Currently, every state has an EPA-approved fee program under CAA title V. However, 

this fee program is not required to be part of the EPA-approved SIP. The infrastructure SIP 

should provide citations to the regulations providing for collection of permitting fees under the 

state’s EPA-approved Title V permit program. These citations to the EPA-approved title V 

regulations will not cause the title V program to be treated as part of the EPA-approved SIP, and 

the EPA will not re-review the title V program itself in the context of reviewing infrastructure 

SIP submissions. See 40 CFR 70.9 ("Fee determination and certification") and 40 CFR part 70, 

appendix A ("Approval Status of State and Local Operating Permits Programs"). If the state 

title V program fees cover all CAA permitting, implementation, and enforcement for new and 

modified major sources as well as existing major sources, this reference to the title V program 

will satisfy this element. If a state’s approved title V permit program fees do not cover the 

reasonable costs of reviewing and acting upon applications for PSD and NNSR permits for major 
57

sources65 (along with the reasonable costs of implementing and enforcing the terms and 

conditions of PSD and NNSR permits), then the air agency should contact its Regional Office 

regarding what needs to be in the submission to fulfill this Element.

Element M – Section 110(a)(2)(M): Consultation and Participation by Affected Local 

Entities

Each such plan shall –

(M) provide for consultation and participation by local political subdivisions 

affected by the plan.

To satisfy Element M, the SIP should provide for consultation with affected local 

political subdivisions. As part of an infrastructure SIP submission, an air agency may simply 

identify its policies or procedures that allow and promote such consultation. For example, the 

infrastructure SIP submission may cite a policy wherein the air agency, before adopting or 

amending a plan, policy, or program, will consult with the regional planning coalition composed 

of local political subdivisions potentially affected by the action and explain how such 

information is used in the development of a SIP submission to the EPA for approval into the SIP. 

The normal public hearing process prior to adoption and submission of a SIP revision may also 

be cited as a component of the provisions for consultation, since leaders of political subdivisions 

have the opportunity to participate in that public process.

For Further Information

If you have any questions concerning this guidance, please contact Mr. H. Lynn Dail, by 

telephone at (919) 541-2363, or by email at dail.lynn@epa.gov, or Ms. Lisa Sutton, by telephone 

at (919) 541-3450 or by email at sutton.lisa@epa.gov.

 

65 Substantive NNSR provisions will not be reviewed as part of the EPA’s action on the infrastructure SIP 

submission. See discussion in Section II, “Which elements of CAA 110(a)(2) affect infrastructure SIPs?”
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

RESEARCH TRIANGLE PARK, NC 27711 

SEP 2 5 2009 

OFFICE OF 

MEMORANDUM AIR QUALITY PLANNING 

AND STANDARDS 

SUBJECT: 

FROM: 

TO: 

Guidance on SIP Elements Required Under Sections 11 O(a)(1) and (2) 

for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality 

Standards (NAAQS) 

William 

Air Quality 

T. Harnett, 

Policy Division 

Director 

(C539-

{J)~ 0l) T: ~ 

Regional Air Division Directors, Regions 1-X 

The purpose of this memorandum is to provide guidance on addressing the 

"infrastructure" elements for State Implementation Plans (SIPs) required under sections 

110(a)(l) and 110(a)(2) ofthe Clean Air Act (CAA) for the 2006 24-hour PM2.s NAAQS (71 FR 

61144). On December 18,2006, EPA revised the 24-hour average PM2.s primary and secondary 

NAAQS from 65 micrograms per cubic meter ()lg/m3

) to 35 ~tg/m . Under sections 11 O(a)(1) 

and 11 O(a)(2) of the CAA, after promulgation of a new or revised NAAQS, each state is required 

to submit a plan to provide for the implementation, maintenance, and enforcement of that 

NAAQS. 

States are r~quired to address basic SIP requireme.nts (see Attachment A), to assure 

attainment and maintenance ofthe standards. By law, SIPs to address sections 110(a) (1) and 

11 0( a)(2) are to be submitted by states within 3 years after promulgation of a new or revised 

standard. 1 In many cases the section 11 0( a)(2) SIPs for the 1997 PM2.s NAAQS may already be 

adequate to implement the 2006 24-hour PM2.s NAAQS. Many of the required section 11 0( a)( 1) 

and 11 0( a)(2) SIP elements relate to the general information and authorities that constitute the 

" infrastructure" of a state's air quality management program, and these have been in place since 

the initial SIPs were submitted in response to the ·1970 Clean Air Act. However, it is still the 

responsibility of each state to make this determination for each new or revised NAAQS. 

Determining Completeness of State Submittals 

As required by section 110(a)(l), states will have to review and revise, as appropriate, 

their existing particulate matter SIPs to ensure that they are adequate to address the 2006 24-hour 

PM2.s NAAQS. States should, in consultation with EPA Regional Offices, refer to applicable 

EPA regulations governing SIP submittals in 40 CFR Part 51 - e.g., Subpart H ("Prevention of 

1 Although the rule for the revised PM2.5 standard has an effective date of December 18, 2006, the rule was signed 

by the Administrator and publically disseminated on September 21, 2006. Therefore, the deadline for submittal of 

11 0(a) SIPs for the 2006 24-hour PM25 NAAQS is September 21, 2009 based on the signature date. 

Internet Address (URL) • http://www.epa.gov 

Recycled/Recyclable • Printed wHh Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer) 
2 

Air Pollution Emergency Episodes"), Subpart I ("Review of New Sources and Modifications"), 

Subpart J (Ambient Air Quality Surveillance), Subpart K (Source Surveillance), Subpart L 

(Legal Authority), Subpart M ("Intergovernmental Consultation"), Subpart 0 (Miscellaneous 

Plan Content Requirements), Subpart I' ("Protection of Visibility"), and Subpart Q ("Reports"). 

If a state determines that its existing SIP is adequate, then the state needs to certifY through a SIP 

submittal (e.g., a letter to the Agency fi·om the Governor or his/her designee) that demonstrates 

the existing SIP contains provisions addressing all requirements of the section II O(a)(2) 

infi·astructure elements as applicable for the 2006 24-hour PM2,; NAAQS. For purposes of the 

2006 24-hour PM2.5 NAAQS, in cases where a state believes that it meets the requirements of 

sections II O(a)(l) and 11 O(a)(2) without further revision of its SIP, EPA believes it is 

appropriate for the state to submit a certification letter without holding an additional public 

hearing. Because prior submissions for infi·astructure requirements will have met the statutory 

requirements for notice and public hearing, EPA believes that such process is not required now. 

The public will have an opportunity to review the certification when EPA takes action on the 

submittal through the notice-and-comment rulemaking process. 

In order for EPA to determine that a submittal for a SIP is complete, the submittal must 

affirmatively address all required elements/sub-elements, and should include documentation 

demonstrating a correspondence between each infrastructure element and an equivalent state 

statutory or regulatory authority in the existing or submitted SIP. At a minimum, a complete 

submission is a letter fi·om an appropriate state official (i.e., Governor or designee) certifying 

compliance with each element and with a specific description of how compliance with each 

element is achieved. Submissions lacking a detailed explanation for how the state's SIP meets 

each applicable requirement of section II O(a)(2) should be deemed incomplete. Submissions 

that address some but not all elements/sub-elements should not be deemed complete for the 

unaddressed elements/sub-elements, but will result in findings of failure to submit fur only the 

unaddressed elements/sub-elements. After EPA makes a finding of failure to submit, the state 

would only be required to submit those elements that were found not to have been submitted in 

order for EPA to make a determination that the SIP is fully complete. Letters stating that the 

state will submit a SIP revision some time in the future are not complete. 

A finding that the submittal is complete does not mean that the submittal is approvable 

because the completeness review only addresses whether the state has provided information 

sufficient to warrant formal EPA review for approvability. Once EPA determines a SIP 

submission to be complete , or after six months when that submission is deemed complete by 

operation oflaw, EPA has up to I year to take action on (i.e., to approve or disapprove) the 

submission. EPA must promulgate a Federal Implementation Plan (PIP) for the state if EPA 

takes any of the following final actions associated with the required SIP: (I) determines that a 

state has failed to make a SIP submission, (2) determines that a state has made an incomplete 

submission, or (3) disapproves a SIP submission. Any of these actions starts a two year PIP 

clock. In order to stop or rescind a PIP, the state must submit, and EPA must approve, a SIP 

submission that meets the applicable requirements. 
3 

Guidance for Satisfying the Section 110(a)(2)(D) Requirement 

Compliance with CAA section 11 O(a)(2)(D) requires that states address 4 separate 

elements. 

1. SIP Submissions from States pertaining to the "significant contribution" 

t·equirement of section 110(a)(2)(D)(i). 

Section 11 O(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain 

adequate provisions to prohibit air pollutant emissions fl"om within the state that significantly 

contribute to nonattainment of the NAAQS in any other state. Therefore, the state's submission 

must explain whether or not emissions from the state have this impact and, if so, address the 

impact. 

The state's conclusion must be supported by an adequate technical analysis. Information to 

support the state's determination with respect to significant contribution to nonattainment might 

include, but is not limited to, information concerning emissions in the state, meteorological 

conditions in the state and the potentially impacted states, monitored ambient concentrations in 

the state and the potentially impacted states, the distance to the nearest area that is not attaining 

the NAAQS in another state, and air quality modeling. The EPA believes that it would be 

appropriate for states to make this assessment by considering the impact of current or future 

emissions on nearby nonattainment areas, and evaluating the air quality impact and potential 

mitigation strategies.2 Using these kinds of evaluations, it is EPA's intention to complete a rule 

to address interstate pollution transport in the eastern half of the continental United States. 

EPA is currently working on a new rule to replace the CAIR rule that will address issues 

raised by the court in North Carolina v. EPA, 531 F. 3d 896 (D.C. Cir. 2008). That new rule will 

assist states with obligations to address interstate transport that significantly contributes to 

nonattainment in another state. However, all states must submit complete 110 SIPs at this time 

that address the requirements of section 11 O(a)(2)(D) for the 2006 24-hour PM2.5 NAAQS, and 

states cannot wait for the CAIR replacement rule without getting a finding of failure to submit at 

this time. In addition, even if the CAIR rule were not remanded by the court, states cannot rely 

on the current CAIR rule for this submission for the 2006 24-hour PM2.5 NAAQS because the 

CAIR rule does not address this NAAQS. 

2. SIP Submissions ft·om States pertaining to the "interfere with maintenance" 

requirement of section 110(a)(2)(D)(i). 

Section 11 O(a)(2)(D)(i)(I) specifically provides that each state's SIP must contain 

adequate provisions to prohibit air pollutant emissions fl"om within the state that interfere with 

maintenance of the NAAQS in any other state. States' submissions must address this 

independent requirement of the statute. This provision requires evaluation of impacts on areas of 

other states that are meeting the 2006 24-hour PM2.5 NAAQS, not merely areas formerly 

2 If assessing future emissions the state should attempt to represent a future year that is no further in the future than 

the year in which attainment of the NAAQS is required in the downwind state. In most cases we expect the 

attainment date to be no later than 5 years from the date ofnonattainment designations. Since designations are 

expected to be issued in 2009, the maximum attainment date would be 2014. 
4 

designated nonattainment that are subject to a maintenance SIP. Therefore, the state's 

submission must explain whether or not emissions fi:om the state have this impact and, if so, 

address the impact. 

A state's submission for this requirement should provide the technical information which the 

state deems appropriate to supp01t its conclusions. Suitable information might include, but is not 

limited to, information concerning emissions in the state, meteorological conditions in the state 

and the potentially impacted states, monitored ambient concentrations in the state and the 

potentially impacted states, and air quality modeling. 

Using these kinds of evaluations, it is EPA's intention to complete a rule to address interstate 

pollution transp01t in the eastern half of the continental United States. However, all states must 

submit complete II 0 SIPs at this time that address the requirements of section I I O(a)(2)(D) for 

the 2006 24-hour PM2.s NAAQS and states cannot wait for the CAIR replacement rule without 

getting a finding of failure to submit at this time. 

3. SIP submissions pertaining to the "prevention of significant deteriomtion" 

requirement of section IIO(a)(2)(D)(i). 

Section II O(a)(2)(D)(i)(II) 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 fi'01n emitting any air pollutant in amounts which will interfere with measures required 

to be included in the applicable implementation plan for any other state .... to prevent significant 

deterioration of air quality ... " 

EPA believes this requirement is satisfied for PM2.5 if a state's SIP includes 

preconstruction review programs for major sources that satisfy the requirements of 40 CFR 

51.165(b)(l) and 40 CFR 51.166 (i.e., New Source Review for major stationary sources locating 

in attainment areas when the source will cause or contribute to a violation of the NAAQS, and 

Prevention of Significant Deterioration (PSD), respectively). Unless the area has known 

outstanding permit program deficiencies, it is not necessary, at this time, for states to make a SIP 

submission containing rule changes specifically to address section II O(a)(2)(D)(i)(II) for the 

2006 24-hour PM2.5 NAAQS. If this is the case, the state can submit an appropriate ce1tification 

as described previously in this guidance. 

All areas are currently required to have some form ofpreconstruction permitting program 

for PM2v This program may include a transitional program or a program that conforms with the 

minimum requirements ofEPA's May 2008 final rule on implementation of the NSR program 

for PM2.5• 73 Fed. Reg. 28321. In this action, EPA issued new final rules for certain 

components ofPM2.s preconstruction permitting programs Rll' attainment and nonattainment 

areas. States are currently required to revise their preconstruction review permit programs to 

incorporate these new requirements into an approved SIP by May 20 I I. However, this provision 

under the May 2008 rules has been challenged and is now under a petition for reconsideration 

whereby EPA has agreed to reconsider the schedule tor revising state PSD programs for PM2 5. 

Accordingly, EPA may revise the schedule for submitting the revised PSD SIPs un· EPA 

approval. For the present time, however, the deadline for adopting and submitting PM2.5 SIPs for 

NSR/PSD is May 201 I. Thus, states are not required to adopt the May 2008 rules for the 
5 

purposes of satisfying the section llO(a) SIP requirement by September 2009 and may rely 

instead on implementing a transitional program for PM2.5, For example, the state's PSD program 

would satisfy the requirements of 40 CFR 51.166 at this time if the applicable rule defines the 

pollutants subject to regulation, e.g., "regulated NSR pollutant," in such way as to automatically 

include any new NAAQS, e.g., 24-hour PM2.s NAAQS, that EPA may promulgate. 

States with PSD F!Ps in place generally are required under a delegation agreement with 

EPA to implement .PSD in accordance with the federal PSD program, which provides for the 

automatic protection of any new NAAQS that EPA may promulgate. These states must ensure 

that their delegation agreement clearly authorizes them to implement the federal PSD program 

requirements as amended in May 2008. If a delegation agreement is def!eient in this regard, the 

state should work with EPA to modify the agreement to enable implementation ofPM2 5 

requirements. 

In addition to the PSD permitting program, a state's SIP may include additional measures 

as necessary to prevent air pollution in excess of the PSD increment that defines significant 

deterioration for each area. 40 CFR 51.166(a). However, EPA has not yet established PSD 

increments for PM2.5. Without these components of a PSD program, it is difficult for states to 

determine if additional 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 PM2.5, EPA believes that at this time states may continue to rely on their existing 

PSD and NNSR permitting programs to prevent significant deterioration of air quality within 

their own boundaries and in adjacent states until such increments are established. 

4. SIP Submissions from States pertaining to the "protect visibility" requirement of 

section 110(a)(2)(D)(i). 

Section II O(a)(2)(D)(i)(Il) 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 fi·om emitting 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." 

EPA believes this requirement can be satisfied by an approved SIP addressing reasonably 

attributable visibility impairment (RA VI), if required, and an approved SIP addressing regional 

haze. EPA promulgated regulations in 1980 to address RA VI in Class I areas that is caused by 

the emissions of air pollutants fi·om one source, or a small number of sources. See 45 FR 80084 

(December 2, 1980) and current 40 CFR 51.300-51.307. A state must take specified steps to 

address RA VI after a Federal Land Manager at any time certifies that RA VI exists at a specific 

Class 1 Area. 40 CFR 51.302(c)(l). 

Under the 1980 regulations, 35 states and the U.S. Virgin Islands were required to submit 

SIPs to address RA VI. EPA issued F!Ps to address the requirements ofRAVI for those states 

that had failed to submit SIPs. See 50 FR 28544 (July 12, 1985) and 52 FR 45132 (November 

24, 1987). EPA is not aware of any certification by a Federal Land Manager of existing RA VI 

that remains unaddressed by a currently approved SIP or FIP. Accordingly, we believe that 

states for which EPA has approved into the state's current SIP some or all RAY! elements, 
6 

should be able to make a relatively simple SIP submission verifying tbat no source within the 

state emits pollutants that interfere with RAVI measures included in the applicable 

implementation plan (SIP or FIP) of any other state. As noted above for PSD, those states 

having full or partial F!Ps in place will not satisfy the independent section II O(a)(2)(D)(i)(II) 

requirement unless they submit, and EPA approves into the SIP, all required RAVI elements. 

In 1999, EPA issued regulations requiring states to address regional haze impacting 

visibility in Class I areas. See 64 FR 35714 (July I, 1999) and current 40 CFR 51.308 - 51.309. 

Regional haze is visibility impairment that is produced by a multitude of sources and activities 

which emit visibility-impairing pollutants and their precursors and which are located across a 

broad geographic area. 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 may be affected by emissions Ji·om a state. These SIP 

submissions were due on December 17, 2007. In January 2009, EPA found that 37 states, the 

District of Columbia, and the U.S. Virgin Islands had failed to make all or patt of the required 

SIP submissions to address regional haze. See 74 FR 2392 (January 15, 2009). These findings 

require EPA to issue F!Ps within 2 years, by January, 2011, unless the states submit SIPs and 

EPA approves them before that date. States that intend to rely on the required regional haze SIPs 

to satisfy this element of their section II O(a) SIP but have not formally indicated this intention in 

a SIP submission, or have not yet submitted the regional haze SIP, may receive an additional 

finding of failure to submit this element of their section IIO(a) SIP. EPA will be able to fully 

approve the submittal as satisfying section II O(a)(2)(D)(i)(II) only after we have taken final 

action approving the regional haze SIP. 

Guidance for Satisfying the Section 110(a)(2)(G) Requirement 

To address the section II O(a)(2)(G) element, states with air quality control regions 

identified as either Priority I, Priority lA, or Priority II by the "Prevention of Air Pollution 

Emergency Episodes" rules at 40 CFR 51.150, must develop emergency episode contingency 

plans. Currently, those regulations do not specifically address PM2.5• 

Until the Agency finalizes changes to the emergency episode regulations to establish for 

PM2.s specific levels for classifying areas as Priority I, lA, and II tor PM2.s, and to establish a 

significant harm level (SHL), EPA recommends that states through their public processes set 

Priority levels and emergency action levels for PM2.s necessary to develop emergency episode 

plans consistent with the requirements in 40 CFR 51.150 through 51.153. We fmther 

recommend that states consider the levels discussed in the February 12, 2007 EPA issue paper 

titled "Revising the Air Quality Index and Setting a Significant Harm Level for PM2.5" and to 

Attachment B to this guidance in establishing Priority levels and emergency action levels, 

including' a SHL. 3 Using the recommendations in Attachment B, for the purposes of satisfying 

the requirements of section 110(a)(2)(G), states would develop emergency episode plans for any 

area that has monitored and recorded 24-hour PM2.s levels greater than 140.4 )lg/m since 2006. 

If this level was never exceeded in any area of the state, the state can certify that it has 

appropriate general emergency powers to address PM2.5-related episodes, and that no specific 

3 The issue paper can be found at http://www.epa.gov/ttn/caaa/qen/aqi issue paper 020707.pdf 
7 

emergency episode plans are necessary at this time, given the existing monitored levels 4 States 

should develop submissions to meet this requirement through appropriate public processes. 

In submittals addressing the 1997 PM2.s NAAQS, several states committed to make SIP 

submittals addressing section II O(a)(2)(G) only after EPA completed a rulemaking to establish a 

SHL for PM2. 5• We understand the motivation for taking this approach, and EPA is working to 

complete this rulemaking. Nevertheless, under section II O(k)(l )(B), EPA cannot find such 

submittals to be complete. It is for this reason that EPA is providing the recommendations in this 

memorandum as guidance for states to make submittals to address section II O(a)(2)(G). The 

SHL, Priority levels, and emergency action levels recommended in Attachment B are relevant 

for both the 1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS. If a state elects not to make a 

submittal that addresses section II O(a)(2)(G) for the 2006 24-hour PM2.s NAAQS in accordance 

with the Agency's recommendations or otherwise meeting the statutory requirements, EPA will 

have reason to make a finding of failure to submit fi.Jr this NAAQS. 

For Further Information 

If you have any questions concerning this guidance, please contact David Sanders at 

(919) 541-3356. Please ensure that the appropriate air agency officials for states in your Region 

are made aware of this guidance. 

Attachments 

cc: Brian McLean, OAP 

Kevin McLean, OGC 

Margo Oge, OT AQ 

Steve Page, OAQPS 

Peter Tsirigotis, OAQPS 

Richard Wayland, OAQPS 

Lydia Wegman, OAQPS 

4 Under these conditions the contingency plan portion of section llO(a)(2)(G) for the 1997 PM2.; NAAQS, lor 

which we issued a finding for failure to submit in October 2008, may also be resolved (73 FR 62902). 
Attachment A: Required Section 110 "Infrastructure" SIP Elements5 

Section 110(a)(2)(A)- Emission limits and other control measures: requires SIPs to include 

enforceable emission limits and other control measures, means, or techniques, and schedules for 

compliance. 

Section 110(a)(2)(B)- Ambient air quality monitoring/data system: requires SIPs to provide 

for establishment and operation of ambient air quality monitors, collection and analysis of 

ambient air quality data, and to make these data available to EPA upon request. 

Section 110(a)(2)(C)- Program for enforcement of control measures: requires SIPs to 

include a program providing for enforcement of all SIP measures and the regulation of 

construction of new and modified stationary sources as necessary to assure that the NAAQS are 

achieved, including a permit program as required in parts C and D. 

Section 110(a)(2)(D)- Interstate transport pi"Ovisions: requires SIPs to contain adequate 

provisions prohibiting emissions generated within the state fi·om contributing significantly to 

nonattainment in, or interfering with maintenance by, any other state with respect to the 

NAAQS, or fi"Om interfering with measures required to be included in the SIP of any other state 

to prevent significant deterioration or to protect visibility. 

Section 110(a)(2)(E)- Adequate resources: requires SIPs to provide necessary assurances tor 

adequate personnel, funding, and authority under state law to carry out its SIP, to contain 

requirements addressing potential conflicts of interest, and to provide necessary assurances that 

the state retains responsibility fbr ensuring adequate implementation of the SIP where the state 

relies on a local or regional government f(Jr implementation of any SIP provision. 

Section 110(a)(2)(F)- Stationary source monitoring system: requires SIPs to establish a 

system to monitor emissions from stationary sources, to submit periodic emissions reports, to 

correlate the emissions rep01ts with the corresponding SIP emission limits and standards, and to 

make emissions repotis available to the public. 

Section 110(a)(2)(G)- Emergency episodes: requires SIPs to provide for authority to address 

activities causing imminent and substantial endangerment to public health and to provide for 

adequate contingency plans to implement such authority. 

Section 110(a)(2)(H)- Future SIP revisions: requires SIPs to provide for SIP revisions in 

response to changes in the NAAQS, or availability of improved methods fbr attaining the 

NAAQS, and in response to an EPA finding that the SIP is substantially inadequate. 

Section llO(a)(2)(J)- Consultation with government officials, public notitication, PSD and 

visibility protection: requires states to provide a process for consultation with local 

governments and Federal Land Managers carrying out NAAQS implementation requirements; 

5 The specific nonattainment area plan requirements of sections IIO(a)(2)(C) and IIO(a)(2)(1) are subject to the 

timing requirement of section 172, not the timing requirement of section II O(a)( I), and therefore not considered 

required elements of the "infi·astructure SIP." 
requires SIPs to notify the public ifNAAQS are exceeded in an area and to enhance public 

awareness of measures that can be taken to prevent exceedances; and requires SIPs to meet 

applicable requirements of part C related to prevention of significant deterioration and visibility 

protection. 

Section 110(a)(2)(K)- Air quality modeling/data: requires SIPs to provide for the performance 

of air quality modeling for predicting effects on air quality of emissions of any NAAQS pollutant 

and the submission of such data to EPA upon request. 

Section 110(a)(2)(L)- Permitting fees: requires SIPs to require each major stationary source to 

pay permitting fees to cover the cost of reviewing, acting upon, implementing and enforcing a 

permit until such fee requirement is superseded by EPA approval of a fee program under title V 

of the Clean Air Act. 

Section 110(a)(2)(M)- Consultation/participation by affected local entities: requires SIPs to 

provide toi· consultation and pmiicipation in SIP development by local political subdivisions 

affected by the SIP. 
Attachment B: Recommended Interim Significant Hum Level, Pl"iority Levels, and Action 

Levels for PMz.sEmergency Episode Plans (EEPs) 

Current AQI - PMz.s AQI Under Recommended Recommended Consideration - EEP Priority EEP Action 24-honr Region Level 

Index 24-hom· Average Classification .Category Avera~e ** Values (~-tglm )t * (~-tg!m·) 

Good 0-50 0.0-15.4 0.0-15.4 

. Moderate 51-100 15.5-40.4 15.5-35.4 

Unhealthy tor 101-150 40.5-65.4 35.5-55.4 Sensitive Groups 

Unhealthy 151-200 65.5-150.4 55.5-140.4 

Very Unhealthy 201-300 150.5-250.4 140.5-210.4 Priority Level II Alert 

Hazardous 1 301-400 250.5-350.4 210.5-280.4 Priority Level Warning I and !A 

Hazardous 2 401-500 350.5-500 280.5-350.4 Emergency 

Significant Harm Level (SHL) 350.5 

t For a discussion of possible revisions to the AQI and SHL, see the EPA issue paper found 

at hl1p:j/',yw)Y~.£!2'l·gslvfttJ . .JLcamJ{ggnLi!Sli. i'!ol!~~Jl-ill29L. 0 2_Q7 OlJLqJ * Based on historical incidence of24-hour average concentrations using the most recent 3 

calendar years of data. 

**See 40 CFRPmt 51 Appendix L "Example Regulations for Prevention of Air Pollution 

Emergency Episodes" tor an example of the application of emergency action levels. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

APR - 6 2011 OFFICE OF 

AIR AND RADIATION 

SUBJECT: Regional Consistency for the Administrative Requirements of 

FROM: 

TO: 

State Implementation Plan Submittals and the Use of"Letter Notices" 

Janet McCabe, Deputy Assistant Administrator )E:(l ..... 

Office of Air & Radiation 

Regional Administrators, Regions I - X 

The National State Implementation Plan (SIP) Reform Workgroup is a cooperative 

initiative between EPA, the National Association of Clean Air Agencies (NACAA), and the 

Environmental Council ofthe States (ECOS), and includes representatives from Sacramento, 

California; Linn County, Iowa; Kentucky; Maryland; Nevada; New York; Ohio; South Carolina, 

Utah and Wisconsin, as well as EPA's Office of Air and Radiation (OAR), EPA Regions I, III 

and VII and the ECOS and NACAA Headquarters offices. It is facilitated by Jim Blizzard of 

ECOS, Nancy Kruger ofNACAA, and Carey Fitzmaurice of OAR. The ECOS and NACAA 

memberships have identified a number of SIP-related issues for improving the entire "SIP 

Pro<:ess" from the time EPA promulgates a new or revised NAAQS through to the time of formal 

submittals to Regional Offices for completeness determinations and rulemakings. Given these 

issUt ~s identified by ECOS and NACAA, as well as our own recognition that the SIP process 

needs to be improved and streamlined, there are a number of ongoing initiatives related to SIP 

Reform. Many of the ECOS/NACAA-identified SIP reform issues involve EPA providing states 

and localities the opportunity to participate upfront in such things as designation procedures, 

implementation rules, and other forms of national SIP guidance related to modeling, weight of 

evidence (WOE), etc. Tackling these SIP reform issues requires action on the part of OAR, and 

representatives from OAQPS are actively participating on the Workgroup. However, many of 

the ECOS/NACAA-identified issues center around Regional consistency. The Regional Air 

Division Directors and Air Program Managers agree that addressing these issues is primarily the 

Regions' responsibility. 

The purpose of this memorandum is to address the first group of issues identified by the 

Workgroup. These issues involve consistency between all ten Regional Offices and represent the 

first increment of success in this collective effort to improve the SIP process. Attachment A's 

focus is to standardize what every Regional Office requires from its State, Local, and Tribal 

agencies when those agencies formally submit a SIP revision (hereafter the term State will be 

used to mean all those agencies formally authorized to submit SIPs and TIPs) and to simplify 

lntemet Address (URL) • http://www.epa.gov 

Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper 
those requirements where possible. It addresses the issue raised by ECOS and NACAA urging 

EPA to reduce the number of hard paper copies required when submitting SIP revisions. 

The other attachments to this memorandum cover issues related to the public notice and 

hearing requirements for SIP revisions, the differences between Clean Data Determinations and 

Red!signations, and the types of SIP revisions eligible for approval by "Letter Notice" versus 

full ·'notice and comment" rulemaking. 

Nothing in the attachments to this memorandum is intended to require changes to the 

Clecn Air Act (CAA), the current Code of Federal Regulations (CFR) at 40 CFR Part 51 or 

Appendix V to Part 51. However, with regard to Attachment A there remains the need to satisfy 

the requirements of 40 CFR Part 51.1 03(a) as to the number and types of copies of a SIP revision 

that must be submitted by the State to EPA. 40 CFR Part 51.103(a) says the State must provide 

"fivt! hard copies or at least two hard copies with an electronic version of the hard copy (unless 

otherwise agreed to by the State and Regional Office) of the plan to the appropriate Regional 

Office with a letter giving notice of such action. If the State submits an electronic copy, it must 

be an exact duplicate of the hard copy." Given the flexibility afforded in Part 51.1 03(a), 

compliance with its requirements can be achieved by each Regional Office having a record of an 

agreement between the Region and its States that the procedures outlined in Attachment A be 

followed when submitting a SIP revision. The Office of General Counsel (OGC) has advised 

that all ten Regions could easily pursue such an agreement with a presumptive letter from each 

Reg,onal Administrator (RA) to the States in his/her Region, i.e. "We are agreeing to the 

following procedures for SIP submittals from you, and assume that you agree to these procedures 

unless we hear otherwise from you by (date]." Such letters would enclose this memorandum 

and its attachments. A model letter has been developed for use by all ten Regions. 

The attachments to this memorandum have the concurrence of all ten Regional Air 

Division Directors, OAR and OGC. There is consensus among all ten Regions to implement 

thes ~ standardized procedures as quickly as possible via the RA letter described in the preceding 

paragraph. The ECOS/NACAA members of the National SIP Reform Workgroup were given 

the opportunity to provide feedback on these procedures and have endorsed their implementation 

as a significant step in our SIP reform efforts. 

There will be additional efforts to address the remaining and any future issues concerning 

Reg onal consistency and communications with States. For example, the Regions will work 

together to develop procedures to: 

1. Require the same level of detail and documentation in the technical portions of SIP 

submittals from all States. 

2. Provide early, upfront and consistent guidance to all States regarding how to interpret 

and meet the requirements of implementation plans and other national rules. 

3. Work with Multi-jurisdictional Organizations (MJOs) and Regional Planning 

Organizations (RPOs) that are performing the technical work (emission inventories, 

modeling, etc.), developing model rules, and designing SIP templates for their 

member States such that when the States submit their SIPs that include these 

2 
MJO/RPO work products there are no EPA requests for additional submissions and/or 

revisions late in the SIP submittal process. 

The Regional members of the longstanding SIP Processing Work Group (which is separate from 

the National SIP Reform Workgroup) are contacts to whom questions regarding this 

memorandum may be addressed. They are as follows: 

Region 1 - Donald Cooke 

Region 2 - Paul Truchan 

Region 3 - Harold Frankford 

Region 4 - Nacosta Ward/Sara Waterson 

Region 5 - Christos Panos 

Region 6 - Carl Young 

Region 7- Jan Simpson 

Region 8 - Kathy Dolan 

Region 9 - Cynthia Allen/Lisa Tharp 

Region 10 - Donna Deneen 

cc: Regional Air Division Directors 

Regional Air Program Managers 

Regional Counsels for Air 

OAR Office Directors in OAQPS, OT AQ, and OAP 

OGC Air Office 

ECOS/NACAA SIP Reform Work Group Members 

(for distribution to full memberships) 

3 
Attachment A- Number and Types of Copies of SIP Submittals 

Required to be Submitted 

lde11tified Constraints: 

Currently the Federal Courts only recognize the "paper" (hard copy) of the rulemaking docket as 

the official docket when a SIP approval or disapproval is subject to litigation. The same is true 

when a Federal enforcement action is taken against a source for a SIP violation. Therefore, at 

this time, each EPA Regional Office must create and maintain a paper docket, including the State 

submittal, as well as theE-Docket to upload in the Federal Document Management System 

(FDMS) for each SIP-related rulemaking. It is also, therefore, necessary for the letter submitting 

the ~IP revision to be a signed, dated paper original letter from the State official authorized to 

submit SIP revisions. 

EPA also needs an electronic copy of the State submittal in searchable. pdf format to load into the 

FDMS. The Regions are prepared to generate this form of electronic copy in those instances 

when a State is unable to do so. 

SIP Submittals: 

l. One paper copy of the SIP revision submitted to EPA by an original, dated letter signed 

by the State official authorized to submit SIP revisions and addressed to either the 

Regional Administrator (RA) or the Director of the Air Division in a given Regional 

Office (provided the RA has delegated the authority to receive SIP revisions to the Air 

Division Director). Many of the administrative requirements for complete SIP revisions 

found at 40 CFR Part 51, Appendix V, 2.1, may be met by statements made in the 

submittal letters. 

2. One electronic copy of the entire SIP revision along with the paper copy, preferably on 

disk, or otherwise made available to the Regional Office e.g., by e-mail, from a File 

Transfer Protocol (FTP) site or from the State website at the same time the paper copy is 

submitted. It makes it much easier for EPA if the electronic copy is made available in 

searchable. pdf format because that is the format required to be uploaded in to the FDMS. 

3. In the original, dated paper version of the letter signed by the State official authorized to 

submit SIP revisions, there must be statement certifying that any electronic copy 

provided by the State to EPA whether by disk or otherwise made available to the 

Regional Office is an exact duplicate of the hard copy. 

·1. If the State is unable to provide an electronic copy in searchable. pdf format, the Regional 

Office can accept an electronic copy in image.pdfformat, Microsoft Word, or Microsoft 

Excel and convert it to searchable. pdf format to load into the FDMS. Likewise, if a State 

only submits a paper copy and has no means of making an electronic copy available to 

EPA, the EPA Regional Office will scan the paper copy and create an electronic copy in 

searchable. pdf format to load into the FDMS. 

4 
5. Even for the single official paper copy identified under number 1. above; States do not 

have to submit paper copies of large data files such as ambient air quality data, emissions 

inventories, model input files, etc. if the State puts such supporting data files on a disk (or 

disks) and submits the disk along with the paper copy. Such disks should be submitted 

with the official paper copy in order for the official SIP submittal to be complete. EPA 

cannot "complete" the official submittal for the State by accessing such data files from an 

e-mail, FTP or website. 

5. "Model" SIP submittal letters are available from the Regional Offices. 

CaYeats: 

l. EPA is able to "retrieve" the "unofficial" electronic copy via e-mail, from an FTP or a 

state website only because the State submitted the official paper copy. Whatever material 

EPA receives via e-mail or accesses from an FTP or website is not the official submittal. 

2. The State should identify any copyrighted material in its submittal as EPA does not place 

such material on the web when creating the E-Docket for loading into FDMS. 

3. States are urged not to include any material considered Confidential Business 

Information (CBI) in their SIP submittals. In rare instances where such information is 

necessary to justify the control requirements and emission limitations established by the 

SIP revision (e.g., for a source-specific SIP revision), States should confer with their 

Regional Offices prior to submittal and must clearly identify such material as CBI in the 

submittal itself. EPA does not place such material in either the paper docket or the web 

when creating theE-Docket for loading into FDMS. However, where any such material 

is considered emissions data within the meaning of Section 114 of the CAA, it cannot be 

withheld as CBI and must be made publically available. 

Notes: The use of STAG (1 05) funds by States to purchase the software/equipment needed to 

create electronic copies in searchable. pdf format is an acceptable expense, and many States have 

optEd to do so. A State may indicate such purchases in the appropriate portion of its 1 05 grant 

application. 

Futlue Activities: EPA is committed to work with the Department of Justice to continue to 

purwe options for reducing and eventually eliminating the paper (hardcopy) submittals of SIP 

revi >ions in favor of electronic submittals. 

5 
Attachment B- Public Notices/Hearings Required by Sec. 110 of the CAA 

lde11tified Constraints: 

As explained below, EPA has made significant reforms in the SIP process regarding public 

notices and public hearings. However, States may implement these reform opportunities only to 

the t.!xtent allowed by State law because a basic requirement for an approvable SIP revision is 

that it was developed and adopted by the State agency in accordance with such law and its legal 

autl.ority. 

Pu~ lie/Notice Hearing: 

l. The public notice and public hearing requirements for SIP revisions are found at 40 CFR 

Part 51.102. These Federal regulations indicate that the State must afford the opportunity 

to submit written comments and allow the public to request a public hearing either by 

announcing a hearing in the notice for comments or by providing the opportunity to 

request a hearing in that notice. Each State must have legal authority setting out its 

public notice procedures and EPA has already approved these procedures as meeting the 

minimum requirements of the CAA. 

2. EPA has determined that the term "prominent advertisement" as used in 40 CFR Part 51 

when referring to the public notice required by Section 110 of the CAA for SIP revisions 

is media neutral. The State may continue the use of newspapers to publish these notices 

or may opt to publish such notices elsewhere so long as the State has determined that the 

public would have routine and ready access to such alternative publishing venues. States 

may also choose a combination approach whereby a short (and presumably less 

expensive) notice is published in a newspaper that informs the public where to access the 

complete public notice that satisfies all of 40 CFR Part 51 requirements. 

J. EPA recognizes that many States use a single public notice and hearing to satisfy their 

own State adoption process requirements, Section 110 of the CAA and 40 CFR Part 51. 

This has long been and continues to be an acceptable practice. However, in order to 

satisfy the CAA and 40 CFR Part 51 , the notice must clearly state that the regulations 

and/or documents that are the subject of the public notice will be submitted to the United 

States Environmental Protection Agency to be included in or to revise the State 

Implementation Plan required by the Clean Air Act and should identify the CAA 

requirements the revisions are intended to meet. Unless the public notice includes this 

statement, Section 110 of the CAA has not been satisfied. 

•L The regulations provide that any public hearing must be announced in a public notice at 

least 30 days prior to the hearing, and that notice must include the date, place, and time of 

the public hearing. If the State receives a request for a public hearing, it must hold the 

already scheduled hearing as described in the original public notice or schedule a public 

hearing through a separate notice. To avoid having to re-publish a second notice to 

provide 30 days advance notice of a public hearing, States are strongly encouraged to 

schedule a public hearing in the original public notice. Under 40 CFR part 51.1 02(a), the 

6 
State may cancel the public hearing if no request for a public hearing is received during 

the 30-day notification period, so long as the original public notice aiiDouncing the 30-

day notification period clearly states: If no request for a public hearing is received, the 

hearing will be cancelled; identifies the method and time for announcing that the hearing 

has been cancelled; and provides a contact phone number for the public to call to find 

out if the hearing has been cancelled. 

5. Pursuant to the regulations, the entire SIP revision must be made available for public 

review and comment including supporting technical materials and other information the 

State has relied upon or intends to rely upon to justify the approvability of the SIP 

revision. 

Caveats: 

As noted above, States often publish a single public notice and hold a single public hearing to 

sati~ fy State requirements for adoption of State rules/regulations as well as Section 11 0 of the 

CAA and 40 CFR Part 51 requirements. This usually means that the public notice and hearing 

are held on a proposed state rule/regulation. Two important points: 

l. There is no independent Federal requirement that the public notice and hearing required 

by Section 110 of the CAA or 40 CFR Part 51 be held on proposed State regulations. 

However, 40 CFR Part 51, Appendix V, 2.1 (e) requires that the State must have 

followed all ofthe procedural requirements of the State's law and constitution in 

conducting and completing adoption/issuance of the SIP revision. So if State law 

requires public notice and hearing at the proposed stage of regulation adoption, then 

public notice must be given and hearing must be held on proposed regulations to satisfy 

40 CFR Part 51. 

EPA is aware that under State law certain types of SIP regulations are not required to 

undergo public notice and hearing procedures as part of the State adoption process. In 

such instances, the public notice and hearing requirements of 40 CFR Part 51.102 may be 

held on fully adopted State regulations. The Federal requirement for public notice and 

hearing is to inform the public that the SIP is being revised and allow for comment as to 

whether the State regulations satisfy a specific obligation under the CAA. 

.?. The Federal requirement for public notice and hearing is to inform the public that the 

State intends certain regulations and other actions to fulfill specific CAA requirements 

and thus to revise the SIP. So if a regulation is significantly changed by the State 

between the time of proposal and final adoption, it may be necessary for the State to 

conduct the public participation procedures required by 40 CFR Part 51.102 on the final 

regulations being submitted as a SIP revision. 

Notes: EPA Regional Offices will provide "model" public notices for States to use satisfy 

Section 110, and 40 CFR Part 51.102 upon request. 

7 
Attachment C- Determinations of Attainment by an Area's Attainment Date 

v. Clean Data Determinations 

& 

Redesignation Requests and Maintenance Plans 

Introduction: The issue ofRedesignations v. Clean Data Determinations and what a State must 

provide to an EPA Regional Office for each type of submittal has been raised by the States to 

EPA for both clarification and Regional consistency. These are very different types of actions 

and achieve different results as explained in this Attachment. 

There is also a distinction between a Determination of Attainment by an area's attainment date 

and a Clean Data Determination which is explained below. 

The~ Distinction between a Determination of Attainment by an Area's Attainment Date and 

a Clean Data Determination 

It is important to distinguish between two different types of attainment determinations that EPA 

makes for areas that are designated nonattainment. Both types require notice-and-comment 

rule making. 

(1) Determinations of Attainment by an area's attainment date, and 

(2) Determinations of Attainment for purposes of suspending the State's obligation to 

submit certain planning SIPs linked to attainment (so-called Clean Data Determinations). 

Wif1 respect to Type 1, the Clean Air Act requires EPA to determine whether a nonattainment 

area has attained the standard as of its applicable attainment date. These Determinations of 

Attainment provide a historical snapshot-- they evaluate attainment only as of an area's 

attainment deadline, and are issued to comply with Section 181(b)(2) for ozone and Sections 172 

and 179 for PM2.

5• Determinations of Attainment by an attainment deadline are separate and 

independent ofthe second type of attainment determinations, Clean Data Determinations, which 

are not compelled by the CAA. 

With respect to Type 2, Clean Data Determinations originated in EPA's Clean Data Policy, but 

are now linked to EPA regulations. These determinations invoke either 40 CFR Part 51.918 for 

ozone or 51.1 004( c) for PM2.5. Unlike determinations by an attainment deadline, Clean Data 

Determinations are subject to revision based on changes in air quality, and must be sustained by 

continuing attainment. They function to suspend a State's obligation to submit certain 

attainment-related planning SIP obligations for a designated nonattainment area. The suspension 

continues until EPA determines that a violation has occurred, or EPA redesignates the area from 

nonattainment to attainment. 

Tht: se two types of determinations are conceptually and legally distinct. They arise from 

different authorities and result in different consequences. However, they both address air quality 

and can be based on the same or overlapping years of air quality data. 

8 
Clnn Data Determinations- See 40 CFR Part 51.918 for ozone and 51.1004(c) for PM2.5. 

Criteria: Either the State may request or EPA may, on its own, initiate the rulemaking to make 

a Clean Data Determination. A Clean Data Determination requires a demonstration that what is 

needed is for the most recent 3 years of complete air quality data have been entered into AIRSAQ S, have been quality assured, and indicate attainment. In addition, the air quality data 

avai I able to date (meaning as of the date of the final rulemaking action), even if not complete. 

should be consistent with continued attainment. As the determination of what is complete and 

inccmplete data as of the time of final rulemaking differs from criteria pollutant to criteria 

pollutant depending upon the form of the standard, the Regional Office will work closely with 

the State to ensure that the available data at the time of final rulemaking is considered consistent 

with continued attainment. 

The EPA Regional Office will conduct the notice and comment rulemaking to make the Clean 

Data Determination. The key issues in the rulemaking action are the validity of the ambient air 

quality data themselves and the location and operation of the monitor(s) from which those data 

have been collected in order to ensure that the data are complete, quality assured and 

representative of the designated nonattainment area. 

Results: Upon EPA's promulgation of a final Clean Data Determination for a nonattainment 

area, the obligation for the State to submit for such an area the attainment demonstration, 

asscciated reasonably available control measures, reasonable further progress plan, contingency 

measures, and other attainment-related planning requirements is suspended until such time as the 

area is redesignated to attainment, at which time the requirements no longer apply; or until EPA 

determines that the area has violated the NAAQS, at which time the obligations would again 

apply. 

The suspension of the planning requirements saves the State and EPA the resources involved in 

devdoping, adopting, submitting, evaluating, and performing rulemaking for unneeded planning 

reqeirements as SIP revisions. 

The Clean Data Determination serves as notice to the public that the nonattainment area's air 

quality meets the NAAQS. 

Caveats: A Clean Data Determination does not have the effect of a redesignation to attainment. 

The area remains designated nonattainment and nonattainment area requirements such as New 

Sou··ce Review (NSR) and conformity continue to apply until the State submits a request for 

redesignation including the CAA-required maintenance plan and EPA approves them. 

If a State has an area for which a Clean Data Determination has been made and the State has 

submitted or submits SIP revisions for the suspended planning requirements, it may inform EPA 

that it wants these SIPs approved (for example, to enable the State to submit a redesignation 

request). Otherwise the State may opt to withdraw the SIPs submitted for the suspended 

requirements. Prior to requesting withdrawal, the State should consider the fact that it may want 

the mobile budgets in an attainment demonstration or RFP plan approved. Where the State does 

not withdraw any such SIP submissions, EPA remains obligated to act on them. 

9 
Requests for Redesignations and Maintenance Plans - See Section 107(d)(3)(E) 

Intl'oduction: To redesignate an area from nonattainment to attainment is an important action 

that demonstrates success in the air quality planning process. Redesignation acknowledges not 

nl ' that an area has met the relevant air quality standard, but also that the State has satisfied 

relevant requirements and shown that the area can continue to meet the standard for the decade 

following redesignation. EPA recognizes that the nonattainment designation of an area can 

affect its ability to attract economic development. Once an area is redesignated from 

non'ilttainment to attainment, it is likely better positioned to attract new and expanding businesses 

and industry. When an urban area is redesignated from nonattainment to attainment, the city 

may move up in the ranking of "Most Livable Cities" which may help it attract new residents 

and retain its existing population. Given these considerations, EPA is committed to work closely 

with States in the preparation and submittal of redesignation requests and maintenance plans and 

to make this work a priority so that submittals can be evaluated quickly and effectively. That 

said, individual Regions and States are encouraged to confer and determine which SIP revisions 

are ;:he highest priorities as certain SIP revisions may be needed to avoid findings, halt 

sanc:tions/FIP clocks, respond to SIP calls, and/or be necessary to be approved in order for an 

area to be eligible for redesignation from nonattainment to attainment. 

Criteria: Requests to redesignate an area from nonattainment to attainment and the submittal of 

the CAA-required maintenance plans as SIP revisions are State-initiated actions. EPA approves 

the redesignations in 40 CFR Part 81 and the maintenance plans as SIP revisions in 40 CFR Part 

52. There are five statutory requirements that must be met for EPA to approve the redesignation 

of a:1 area from nonattainment to attainment: 

l. EPA determines that area has attained the NAAQS (three years of complete quality 

assured data in AIRS-AQS that show attainment); 

~. EPA has fully approved the area's applicable implementation plan (i.e., the plan 

developed for the particular nonattainrnent pollutant) under section llO(k) of the CAA; 

:3. EPA determines the improvement in the area's air quality is due to enforceable 

reductions in emissions resulting from implementation of the applicable implementation 

plan, applicable Federal air pollution control regulations, and other permanent 

enforceable reductions; 

•L The area has a fully approved maintenance plan meeting section 175A of the CAA; and 

) . The State has met all of the requirements applicable (for purposes ofredesignation) to the 

area under Section 110 (the applicable infrastructure SIP requirements) and Part D (the 

applicable nonattainment area SIP elements). 

SIP Submittals: A Section 175A maintenance plan is a SIP revision and must meet all of the 

administrative requirements of Part 51 and Part 51 Appendix V for a complete submittal. 

Under the CAA, a Section 175A maintenance plan must provide for the maintenance ofthe 

NAAQS in the area for at least 10 years after the redesignation; this means for at least 10 years 

from EPA's final rule approving the redesignation. As the CAA provides up to 18 months for 

EPA to complete rulemaking on a redesignation request, the maintenance plan at the time of 

subnittal should provide for attainment for at least 11 years and six months. EPA recommends 

to Slates that it provide for attainment for 12 years from the time of formal submittal to allow for 

completing the redesignation rulemaking processes. 

10 
When submitting a request for redesignation, the State does not have to re-submit SIP revisions it 

has already submitted to EPA to satisfy section 11 0 and Part D of the CAA. In its submittal of 

the redesignation request it may cite to the submittal dates of those SIP revisions. For any SIP 

revisions that have been already been approved, it may provide the dates and Federal Register 

citations of the EPA approvals. 

Wh:m evaluating a redesignation request and maintenance plan to determine whether or not all 

Sec:ion 110 and Part D SIP requirements have been met, EPA does not require that the area have 

a fully approved nonattainment pre-construction NSR permitting program for new major sources 

and major modifications, if the State demonstrates that the area can continue to maintain the 

standard with the Prevention of Significant Deterioration (PSD) program. Once an area is 

rede signated from nonattainment to attainment the Part C requirements for Prevention of 

Significant Deterioration apply for the pre-construction permitting of new major sources and 

modifications. 

The contingency measures of a Section 175A maintenance plan, unlike the contingency 

measures of an attainment demonstration plan or reasonable further progress (RFP) plan, may 

not be implemented "early" by the State. These are the contingency measures that the State will 

implement if the maintenance plan's triggers for such measures occur (e.g., emissions 

projections exceed the levels projected in the plan or the area violates the NAAQS). These 

com ingency measures and their schedule for implementation need to be clearly identified in the 

mabtenance plan. 

How much documentation is necessary for the maintenance plan's "maintenance demonstration" 

of maintenance for 1 0 years after the EPA's final approval of the redesignation is dependent 

upo.1 the form of the "maintenance demonstration." For example, if growth projections are used 

to "grow" a recently already approved SIP emission inventory (or inventories where multiple 

precursors are involved) for the area, it may not be necessary to resubmit all of the 

documentation for that emission inventory as part of the maintenance plan. In such cases the 

Stat! may be able to cite to the submittal and/or approval of that emissions inventory to EPA. 

However, the State will still need to explain and justify their growth projections and any other 

factors applied to that inventory. 

The maintenance plan for areas where RFP plans and attainment demonstrations have been 

approved will also have to identify mobile budgets. For other areas, the maintenance plan will 

still need to include provisions for how conformity will be done after the area is redesignated. 

Efft cts of a Redesignation: Once redesignated to attainment, the area's applicable SIP's NSR 

provisions for minor sources apply and the requirements of the Prevention of Significant 

Deterioration (PSD) program apply for the pre-construction permitting of new major sources and 

major modifications. The conformity requirements applicable in the attainment area will then 

apply as outlined in the approved maintenance plan including any applicable mobile budgets. 

In the event the area violates the NAAQS after redesignation, the area is not immediately subject 

to rfdesignation back to nonattainment. Rather the maintenance plan's contingency measures 

are to be implemented and other actions taken by the State to promptly correct the violation (e.g. 

non· compliance of a source or sources) and address the situation. 

11 
Attachment D-The Use of Letter Notices 

Coustraints: Because the use of Letter Notices by EPA to approve SIP revisions does not 

prO' fide for public comment, the use of such letters is limited to those types of SIP revisions 

where "common sense" would indicate that the public and regulated sector would have no 

interest in commenting on EPA's approval. 

EPA's rulemaking procedures for SIP revisions are governed by the Federal Administrative 

Proeedures Act (AP A). While that statute does not include provisions for Letter Notices to do 

SIP approvals, EPA has been using Letter Notices to approve a very narrow range of SIP 

revisions because such actions fit under the good cause exemption of the AP A's notice and 

corrJnent requirements. 

Even purely administrative SIP revision approvals that do not make any substantive changes to 

SIP requirements do amend the CFR, namely the State's Subpart of 40 CFR Part 52. 

Accordingly, the Office of the Federal Register would have to be consulted before additional 

types of SIP revisions would become candidates for approval by Letter Notices. 

Ty1= es of SIP Revisions for Which Letter Notices May be Used by EPA: 

As tirst described in the 1989 SIP Processing Reform notice (54 FR 2218), under the Letter 

Not.ce procedure, EPA sends a letter to the affected states and parties rather than undertaking a 

noti :e-and-comment rulemaking. Use of Letter Notice is limited to truly insignificant SIP 

actions. No notice will be published in the Federal Register prior to sending final letter notice 

approvals to the State and affected parties. The letter to the State will be EPA's only and final 

action approving such minor SIP revisions. 

The Agency periodically publishes a summary list of all Letter Notice actions in the Federal 

Register to keep the general public informed of SIP matters. The effective date of the Letter 

Not: ce approvals is the date of the letter sent to the State, not the date of the subsequent 

summary Federal Register notice. Letter Notice approvals do, however, remain subject to 

judi:ial review until sixty days after the date of the summary Federal Register notice is 

published. 

Categories of SIP actions appropriate for letter notice include: 

1. ~e-codification involving no substantive changes; 

2. Minor technical amendments or error corrections; 

3. Typographical corrections; 

4. Address changes; and 

5. :)imilar non-substantive matters 

Caveats: The SIP revisions submitted by states that are eligible for approval by EPA by Letter 

Notice must still meet the administrative requirements for SIP submittal of 40 CFR Part 51.102 

and Appendix V 

12 
Future Activities: The members of the SIP Reform Workgroup will continue to pursue whether 

additional types of non-substantive SIP revisions may be added to the list of actions appropriate 

for Letter Notice. The Workgroup will also explore whether to modify 40 CFR Part 51.102 to 

provide less to provide less rigorous notice and comment requirements for such non-substantive 

SIP revisions. 

13 
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27938 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

that is a qualified nonpersonal use 

vehicle as defined in section 274(i) and 

§ 1.274–5(k). 

* * * * * 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: May 5, 2010. 

Michael Mundaca, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 2010–11767 Filed 5–18–10; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0269; FRL–9152–6] 

Approval and Promulgation of 

Implementation Plans; State of 

California; Legal Authority 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

clarify the contents of the applicable 

implementation plan for the State of 

California under the Clean Air Act. 

Specifically, EPA is taking final action 

to clarify that the statutory provisions 

submitted by California and approved 

by EPA in 1972 supporting the State’s 

legal authority chapter of the original 

implementation plan were superseded 

by a subsequent approval by EPA in 

1980 of California’s revision to the legal 

authority chapter of the plan. EPA is 

taking this action to clarify the status in 

the California plan of the statutory 

provisions submitted and approved in 

1972. 

DATES: Effective Date: This rule is 

effective on June 18, 2010. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2009–0269 for 

this action. The index to the docket is 

available electronically at http:// 

www.regulations.gov or 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 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 in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Gerardo Rios, Chief, Permits Office 

(AIR–3), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3974: 

rios.gerardo@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On January 29, 2010 (75 FR 4742), 

under the Clean Air Act (CAA or ‘‘Act’’), 

we proposed to clarify that the statutory 

provisions submitted by California in 

1972 supporting the State’s legal 

authority chapter of the original 

implementation plan were superseded 

by a subsequent approval by EPA in 

1980 of a revision to California’s legal 

authority chapter of the plan. 

In support of our proposed action, we 

provided a detailed account of the 

regulatory context in which the original 

California State implementation plan 

(SIP) was submitted and approved by 

EPA. We also described in detail the 

contents of the original California SIP, 

which consisted of 13 parts, the first 

part (‘‘State General Plan’’) of which 

included a chapter 7 (‘‘Legal 

Considerations’’), referred to herein as 

the ‘‘legal authority’’ chapter. The 

original SIP also included an appendix 

(entitled ‘‘Appendix II: State Statutes 

and other Legal Documents Pertinent to 

Air Pollution Control in California’’) to 

the legal authority chapter. The legal 

authority chapter included many 

citations to individual sections within 

the California Health & Safety Code 

(CH&SC) and other California codes, as 

well as citations to (then) recently 

approved legislation, and attorney 

general opinions as support for the 

assurance that adequate legal authority 

exists in the State to meet CAA and EPA 

SIP requirements. 

As described in the proposal, the 

appendix to the legal authority chapter 

in the plan (herein, ‘‘appendix II’’) 

included the specific sections of 

California code and other legal 

documents cited in chapter 7, but also 

included many sections of California 

code that were not cited specifically in 

chapter 7. Our proposed rule describes 

in detail the contents of appendix II and 

its 14 categories of statutory and other 

legal documents. 

In May 1972, we approved in part and 

disapproved in part the original 

California SIP. See 37 FR 10842 (May 

31, 1972) and 40 CFR 52.220(b). EPA’s 

approval included both chapter 7 and 

the statutory and other documents 

contained in appendix II as described 

above. 

As explained in our proposed rule, in 

response to EPA’s request and in 

response to the Clean Air Act 

Amendments of 1977, California 

undertook a comprehensive update to 

the California SIP. On March 16, 1979, 

the California Air Resources Board 

(ARB) submitted a revision to the legal 

authority chapter of the SIP, entitled 

‘‘Chapter 3—Legal Authority, Revision 

to State of California Implementation 

Plan for the Attainment and 

Maintenance of Ambient Air Quality 

Standards (December 1978),’’ (also 

referred to herein as ‘‘Chapter 3—Legal 

Authority’’ or the ‘‘revised legal 

authority’’ chapter). Much like the 

original legal authority chapter, the 

revised legal authority chapter provides 

an overview of air pollution control in 

California. While the general topics 

covered in the revised legal authority 

chapter were similar to those covered in 

the original legal authority chapter, the 

discussion is completely re-organized 

and updated to reflect, among other 

things, recodifications of statutory 

provisions. Also, like the legal authority 

chapter in the original SIP, the revised 

legal authority chapter includes 

numerous citations to individual 

sections of the CH&SC (which had been 

re-numbered and re-codified since the 

time of the original SIP), certain 

citations to other California codes and 

other legal documents. However, unlike 

the legal authority chapter in the 

original SIP, the revised legal authority 

chapter, as submitted in 1979, did not 

include physical copies of the actual 

statutory provisions nor the other 

documents cited in the chapter. Instead, 

the 1979 SIP revision simply 

incorporates by reference the 1978 

edition of California Air Pollution 

Control Laws as ‘‘appendix 3–A’’ to the 

chapter. Later in 1979, we proposed 

approval of the revised SIP ‘‘Chapter 3— 

Legal Authority’’ as an update and 

clarification of the 1972 SIP. See 44 FR 

38912 (July 3, 1979). The following year, 

we took final action, effective 

September 10, 1980, to approve the 

revised legal authority chapter. See 45 

FR 53136 (August 11, 1980) and 40 CFR 

52.220(c)(48). Since that time, EPA has 

not approved any other revision to the 

chapter that addresses legal authority in 

the California SIP. 

Based upon our review of the relevant 

provisions of the original California SIP 

and the related 1979 SIP revision, and 

the corresponding EPA approval 

actions, we proposed to clarify the 

contents of the SIP to reflect our 

determination that the statutory 

provisions and other legal documents 


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1ARB described the nature and purpose of that 

agency’s comprehensive update of the California 

SIP during the late 1970’s as follows: ‘‘The [EPA] 

has formally requested that the [ARB] update the 

State of California Implementation Plan for 

Achieving and Maintaining the National Ambient 

Air Quality Standards, usually referred to simply as 

the ‘SIP.’ The original SIP document, submitted to 

EPA in 1972, has become obsolete largely because 

of the many modifications to Federal, state, and 

local air pollution rules and regulations and 

substantial advancements in technical aspects of air 

pollution prediction and control. A new SIP 1978 

Working Document has been prepared as an initial 

response to the EPA request and contains an 

updated summary and description of the California 

SIP. * * * The SIP 1978 Working Document is a 

step towards replacing the obsolete 1972 SIP.’’ See 

page 1 of Chapter 1 (‘‘Introduction’’) (April 1978) of 

the SIP—78 Working Document. Therefore, the 

revised legal authority chapter was intended by 

ARB, and approved by EPA, as a wholesale 

replacement of the original legal authority chapter, 

including the related statutory provisions and other 

materials submitted in support of the original 

chapter. 

2We view the revised legal authority chapter’s 

incorporation (as appendix 3–A) of the 1978 edition 

of California Air Pollution Control Laws as simply 

providing a general reference to where the statutory 

citations in the chapter could be located rather than 

as having the effect of a literal reading of the 

provisions into the chapter. 

3CAA section 301(a)(1) states: ‘‘The 

Administrator is authorized to prescribe such 

regulations as are necessary to carry out his 

functions under this chapter. * * *.’’ We believe 

that our rule proposed herein today is necessary to 

clarify the contents of the California SIP and 

thereby carry out the functions of EPA in 

connection with the state’s plan. 

4As noted in the proposed rule, the status of the 

statutory provisions from the original SIP has 

recently come into question in the context of third 

party litigation, an EPA rulemaking action on a 

revision to new source review rules in the San 

Joaquin Valley, and a lawsuit filed against EPA 

challenging certain EPA actions on the premise that 

such actions were arbitrary and capricious if a 

certain statutory provision submitted and approved 

by EPA in connection with the original SIP remains 

in effect as part of the current applicable California 

SIP. Thus, we believe that clarification of the status 

of the statutory provisions (and other legal 

documents) submitted in connection with the 

original SIP is necessary and appropriate at this 

time. 

submitted in support of the legal 

authority chapter in the original SIP 

were superseded by our 1980 approval 

of the revised legal authority chapter of 

the California SIP (codified at 40 CFR 

52.220(c)(48)) and are no longer part of 

the California SIP. Our determination 

that the 1979 submittal of the revised 

legal authority chapter represented a 

wholesale replacement of the original 

chapter was based on the nature and 

scope of the revised chapter and the 

mismatch between the statutory 

citations in the revised chapter and 

those contained in the original chapter.1

We also noted that the actual statutory 

provisions and other legal documents 

relied upon to support a State’s 

assurance of adequate legal authority 

need not be approved into the SIP under 

CAA section 110 or EPA’s SIP 

regulations in 40 CFR part 51 (although 

such provisions are required to be 

submitted with the plan). Thus, EPA 

could approve, consistent with CAA 

and EPA requirements, and did so in 

this instance, a wholesale revision to the 

original legal authority chapter without 

also approving the actual statutory 

provisions and other legal documents 

cited therein.2

To memorialize our interpretation of 

the effect of our 1980 approval of the 

revised legal authority chapter of the 

California SIP, we proposed under CAA 

section 301(a)(1) 3 to revise 40 CFR 

52.220(b)(12)(i) to clarify that none of 

the statutory provisions (and other legal 

documents) submitted in connection 

with chapter 7 (‘‘Legal Considerations’’) 

of the original California SIP remain in 

the SIP, not just the few provisions 

currently listed as being deleted.4

Additional background information 

for today’s action can be found in our 

January 29, 2010 proposed rule (75 FR 

4742). 

II. Public Comments and EPA 

Responses 

Our January 29, 2010 proposed rule 

(75 FR 4742) provided for a 30-day 

comment period. During that period, we 

received comments from four groups: 

Earthjustice, on behalf of the Sierra 

Club, by letter dated March 1, 2010; 

Center on Race, Poverty & the 

Environment (referred to herein as 

‘‘AIR’’), on behalf of the Association of 

Irritated Residents and many other 

community and environmental groups, 

by letter dated March 1, 2010; San 

Joaquin Valley Air Pollution Control 

District (‘‘District’’), by letter dated 

February 24, 2010; and GreenbergGlusker law firm (referred to herein as 

‘‘Dairy Cares’’), on behalf of Dairy Cares, 

a coalition of California’s dairy producer 

and processor associations, by letter 

dated March 1, 2010. 

Earthjustice expresses support for 

EPA’s proposed rule. The three other 

commenters object to our proposed 

action. Dairy Cares joins in the District’s 

comments and adds comments of its 

own. In the following paragraphs, we 

provide a summary of all significant 

adverse comments and we provide our 

corresponding responses. For the 

purposes of this section of the 

document, ‘‘District’’ refers herein to 

both the District and Dairy Cares, 

whereas ‘‘Dairy Cares’’ is used in 

reference to the additional comments 

submitted by this commenter. 

Comment #1: AIR contends that there 

has never been an exemption for 

agricultural sources in the SIP as it 

relates to San Joaquin Valley. Under the 

Safe Air case, AIR contends that there 

can be no exemptions in the SIP by 

virtue of the original 1972 SIP and 1978 

SIP Revision because the SIP’s plain 

language as adopted and submitted 

contains no exemption and the vague 

references to California statutory 

authority are not in the SIP as 

incorporated by reference in the Code of 

Federal Regulations (CFR). AIR also 

asserts that EPA could not have lawfully 

approved the original 1972 SIP and 

1978 SIP Revision with exemptions for 

agricultural sources without violating 

the Clean Air Act. 

Response #1: We recognize that our 

approval of the original California SIP in 

40 CFR 52.220(a) (‘‘Title of plan: ‘The 

State of California Implementation Plan 

for Achieving and Maintaining the 

National Ambient Air Quality 

Standards’ ’’) and (b) (‘‘The plan was 

officially submitted on February 21, 

1972’’) on May 31, 1972 (37 FR 10842, 

at 10851) says nothing about the 

contents of the original SIP. To uncover 

its contents, we reviewed a copy of the 

original SIP maintained in the collection 

of materials at the National Archives 

and Record Center in San Bruno, 

California. From that copy, we 

determined that the original SIP 

contained an appendix to the legal 

authority chapter that contained various 

statutory provisions, and other legal 

documents. 

Among the statutes in the appendix 

was CH&SC section 24265, which 

excludes certain categories of emission 

sources, including equipment used in 

agricultural operations in the growing of 

crops or raising of fowls or animals, 

from the general grant of authority to 

local air districts to require permits for 

new and existing emissions sources 

(herein, ‘‘agricultural permitting 

exemption’’). We found no evidence in 

the original SIP itself that the materials 

in the appendix to the legal authority 

chapter were not intended by the State 

to be included in the plan itself. Nor did 

we find any evidence in our approval 

action that we did not intend to approve 

the entire contents of the appendix to 

the legal authority chapter of the 

original California SIP. In our May 31, 

1972 final approval of the original 

California SIP, we added 40 CFR 52.233, 

which states: ‘‘With the exceptions set 

forth in this subpart, the Administrator 

approves California’s plan for the 

attainment and maintenance of the 

national standards.’’ See 37 FR 10842, at 

10852. In the case of our May 1972 

action on the original SIP, none of the 

‘‘exceptions set forth in this subpart,’’ 

such as our findings in 40 CFR 52.225 

(‘‘Legal Authority’’) that the California 

SIP failed to provide sufficient legal 


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27940 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

authority to meet the requirements 

related to air pollution emergencies and 

to make emissions data publicly 

available, provide evidence that we 

disapproved any of contents of the 

appendix to the legal authority chapter 

of the original SIP. Therefore, we 

concluded that the statutory provisions 

and other legal documents contained in 

the appendix to the legal authority 

chapter of the original California SIP 

were approved along with the rest of the 

plan in May 1972, and the agricultural 

permitting exemption found in CH&SC 

section 24265 was swept into the SIP by 

virtue of being included among the 

appendix materials so approved. 

AIR points to the Safe Air case in 

support for its contention that no 

exemptions are in the SIP by virtue of 

the original 1972 SIP (submitted and 

approved in 1972) and the ‘‘1978 SIP 

Revision’’ (i.e., the revision to the legal 

authority chapter, which was adopted in 

December 1978, submitted in March 

1979, and approved in September 1980). 

In so doing, AIR states that the SIP’s 

plain language contains no exemption 

and asserts that the vague references to 

California statutory authority are not in 

the SIP as incorporated by reference in 

the CFR. In the Safe Air case, the court 

held that ‘‘SIPs are interpreted based on 

their plain meaning when such a 

meaning is apparent, not absurd, and 

not contradicted by the manifest intent 

of EPA, as expressed in the 

promulgating documents available to 

the public.’’ See Safe Air for Everyone v. 

EPA, 488 F.3d 1088, 1100 (9th Cir. 

2007). Under the circumstances of the 

Safe Air case, the court found that the 

plain language of the Idaho SIP did not 

include the State’s statutory restrictions 

on regulation of field burning, nor were 

the statutory restrictions on regulation 

of field burning made manifest in EPA’s 

approval of the State’s open burning 

rule, and thus, were not relevant in 

interpreting the existing SIP. 

With respect to the agricultural 

permitting exemption and the California 

SIP, the existence of the exemption as 

part of the original California SIP as 

approved by EPA is apparent from a 

review of the submitted plan itself. We 

also do not believe our approval of the 

exemption in 1972 to be absurd or 

contradicted by the manifest intent of 

the State of California or EPA. As such, 

our interpretation is consistent with the 

holding of the Safe Air case. As clarified 

in today’s action, our approval of 

California’s 1979 update to the legal 

authority chapter of the California SIP 

superseded the original legal authority 

chapter and the related supporting 

appendix materials in the California 

SIP, including the agricultural 

permitting exemption. 

Lastly, AIR asserts that EPA should 

interpret the Agency’s California SIP 

approvals under the presumption that, 

absent a demonstration to the contrary, 

we acted consistent with the CAA and 

related Agency policies, and because in 

AIR’s view, we could not have lawfully 

approved the original 1972 SIP and the 

‘‘1978 SIP Revision’’ with exemptions 

for agricultural sources without 

violating the Clean Air Act, then the 

presumption should be that the 

exemptions were not approved into the 

SIP. First, we did not approve the 

agricultural permitting exemption when 

we took action in 1980 to approve 

California’s 1979 update to the legal 

authority chapter of the SIP. As 

discussed in our January 29, 2010 

proposed rule, we have concluded, 

however, that we did approve the 

agricultural permitting exemption in 

1972 when we approved the original 

California SIP. 

We disagree that our 1972 approval 

did not comport with the requirements 

for SIPs under the Clean Air Act and 

EPA’s regulations in effect at that time. 

Given the state of air pollution 

knowledge at the time, a SIP exemption 

from permitting for agricultural sources 

is not surprising. In 1972, stationary 

sources had yet to be divided under the 

Clean Air Act into ‘‘major’’ and ‘‘minor’’ 

categories (the requirement for 

permitting of ‘‘major’’ sources came 

later), and given the state of knowledge 

concerning air pollution sources and 

control methods at the time, it is 

certainly plausible that neither the State 

of California nor EPA foresaw that 

regulation of new and modified 

agricultural sources, as opposed to new 

and modified factories and smelters, 

and the regulation of motor vehicles, 

would be necessary to attain and 

maintain the national ambient air 

quality standards (NAAQS). 

As noted above, we have concluded 

that the agricultural permitting 

exemption, along with the other statutes 

and legal documents, submitted in the 

appendix to the legal authority chapter 

in the original 1972 SIP were approved 

by EPA and made part of the applicable 

SIP. To the extent, however, that 

uncertainty remains on this point, it 

does not matter from the standpoint of 

the California SIP over the past 30 years, 

because, as we are clarifying in this final 

rule, our 1980 approval of the legal 

authority chapter superseded the 1972 

approval of the corresponding chapter 

(and its related appendix) such that the 

agricultural exemption was no longer in 

the SIP beginning with the effective date 

of our final rule approving the revised 

chapter (i.e., September 10, 1980). 

Comment #2: The District contends 

that California’s agricultural permitting 

exemption was approved into the SIP in 

1972. 

Response #2: We agree. As explained 

in detail in the January 29, 2010 

proposed rule (75 FR at 4743), we have 

concluded that the statutory provisions 

contained in appendix II to chapter 7 of 

the original California SIP, including the 

agricultural permitting exemption in 

CH&SC section 24265, were indeed 

approved into the California SIP. Our 

interpretation of SIP requirements is 

that, while the SIP must provide 

‘‘necessary assurances’’ of ‘‘adequate 

authority’’ and must identify the 

provisions of law that provide for 

‘‘adequate authority,’’ the statutes 

themselves need not be approved as part 

of the SIP. That does not mean that the 

statutes supporting the legal authority 

portion of a SIP cannot be approved into 

the SIP, only that they need not be. In 

1972, California submitted the statutes 

supporting the legal authority chapter of 

the original California SIP to EPA, and 

EPA approved the original SIP, with 

exceptions not relevant here. Thus, 

while the statutory provisions need not 

have been approved into the California 

SIP, we agree that they in fact were so 

approved in 1972. 

Comment #3: The District disagrees 

with EPA’s finding that the statutes 

supporting California’s revised legal 

authority chapter, as submitted in 1979, 

were not physically submitted as part of 

the SIP revision containing the revised 

chapter. In support of its position, the 

District cites ‘‘appendix 3–A’’ to ‘‘chapter 

3—Legal Authority,’’ which was 

submitted in 1979 and approved by EPA 

in 1980, and which, in the District’s 

view, contains the 1978 edition of the 

California Air Pollution Control Laws, 

including the agricultural permitting 

exemption [by then re-codified to 

CH&SC section 42310(e)]. 

Response #3: The legal authority 

chapter and appendix, as revised in 

1979 by California and submitted to 

EPA, includes several references to the 

1978 edition of California Air Pollution 

Control Laws. On page 1, the revised 

legal authority chapter states: 

‘‘All section references hereafter in this 

chapter are to the Health and Safety Code 

unless otherwise indicated. The 1978 edition 

of California Air Pollution Control Laws 

include all applicable sections of the Health 

and Safety Code, the Business and 

Professional Code, and the Vehicle Code. 

This edition is incorporated as appendix 3– 

A to this chapter available separately from 

the ARB Public Information Office, P.O. Box 

2815, Sacramento, CA 95812.’’ 


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As noted in footnote 3 of our January 

29, 2010 proposed rule (at 75 at 4744), 

we view the phrase ‘‘this edition is 

incorporated as appendix 3–A’’ as 

simply providing a general reference to 

where the statutory citations in the 

chapter could be located, rather than as 

having the effect of a literal reading of 

the provisions into the chapter. Our 

view is supported by the fact that the 

revised legal authority chapter does not 

‘‘incorporate by reference’’ the 1978 

edition of California Air Pollution 

Control Laws nor does the chapter 

identify any State law or rule that 

provides for a literal reading of large 

volumes of text into another State 

document, similar in purpose to the 

Office of the Federal Register’s rules 

concerning ‘‘incorporation by reference’’ 

in connection with Federal rules (See 1 

CFR part 51). In contrast, the statutory 

provisions and other legal documents 

supporting the legal authority chapter 

were physically submitted in ‘‘appendix 

II’’ to the original California SIP, as 

discussed above. ‘‘Appendix 3–A’’ itself 

is only found in the table of contents to 

the 1979 revised legal authority chapter. 

Next to the listing of ‘‘Appendix 3–A’’ in 

the table of contents is the following 

statement: ‘‘California Air Pollution 

Control Laws, 1978 Edition, California 

Air Resources Board, Sacramento, CA 

95812 (available from ARB’s Public 

Information Office).’’ 

Given the facts discussed above, we 

believe that the District is incorrect in 

claiming that appendix 3–A to the 1979 

revised legal authority chapter 

‘‘contains’’ the 1978 edition of California 

Air Pollution Control Laws. At most, it 

refers to the 1978 edition of California 

Air Pollution Control Laws. Not only did 

the revised legal authority chapter not 

contain the statutes, we believe that 

ARB’s approach to keeping the statutes 

themselves physically separate from the 

revised legal authority chapter evinces 

an intent on the part of ARB not to 

include the statutes themselves in the 

SIP. 

Comment #4: Regardless of whether 

the statutes were resubmitted, the 

District claims that EPA provides no 

support for its finding that the statutory 

provisions and other legal documents 

contained in the 1972 SIP were 

superseded by its approval of 

California’s 1979 revised legal authority 

chapter. 

Response #4: In our proposed rule (75 

FR at 4744), we provide the following 

support for our conclusion that our 

approval of the 1979 legal authority 

chapter superseded our earlier approval 

of the legal authority chapter as well as 

the statutes and other legal documents 

submitted in support of the legal 

authority chapter from the original 

California SIP: 

• Contemporaneous statements by 

ARB as to the wholesale nature of the 

SIP update undertaken in 1978 and 

1979; 

• The mismatch between the 

statutory citations in the revised legal 

authority chapter and the statutes 

submitted in support of the legal 

authority chapter of the original SIP; 

and 

• Our conclusion that statutes 

providing support for a State’s 

‘‘necessary assurances’’ of adequate legal 

authority for the purposes of CAA 

section 110(a)(2)(E) need not be 

approved in the SIP. 

As to the third bulleted item, above, 

the District objects to EPA’s conclusion 

that the statutes providing support for a 

State’s ‘‘necessary assurances’’ of 

adequate legal authority need not be 

approved in the SIP to meet CAA and 

EPA SIP requirements. The District 

contends that EPA’s reading of the SIP 

requirements in this regard is illogical 

and unsupported because there is no 

reason to conclude that statutes that 

must be submitted with the plan need 

not be approved into the plan. However, 

as explained below, the language of both 

the statute itself and our SIP regulations 

support our finding that the statutes 

supporting a State’s ‘‘necessary 

assurances’’ of adequate legal authority 

need not be approved into the SIP. In 

other words, the statutes may be 

approved into the SIP, but are not 

required to be approved into the SIP. 

First, under CAA section 110(a)(2), 

each SIP shall ‘‘(E) provide (i) necessary 

assurances that the State * * * will 

have adequate * * * authority under 

State * * * law to carry out such 

implementation plan * * *.’’ The 

statute thus requires that SIPs provide 

‘‘necessary assurances,’’ of adequate 

legal authority, not that SIPs must 

include statutes that establish legal 

authority. A State’s demonstration of 

‘‘necessary assurances’’ must be 

contained in the SIP, but the form in 

which the demonstration is made can 

take various forms, including but not 

limited to a narrative discussion (e.g., 

legal authority chapter), an Attorney 

General’s letter, the statutes themselves, 

or some combination of the above. In 

contrast, for other SIP elements, the 

CAA requires the underlying regulations 

to be included in the SIP, not just 

‘‘necessary assurances’’ of such 

regulations. For instance, under section 

110(a)(2)(A), each SIP must ‘‘include 

enforceable emission limitations and 

other control measures * * *.’’ A State’s 

‘‘necessary assurances’’ of such 

enforceable emission limitations is not 

enough to satisfy this CAA requirement. 

The State must submit the enforceable 

emission limitations themselves, which 

generally take the form of air pollution 

control rules and regulations, to comply 

with the relevant CAA requirement. 

Second, the relevant EPA SIP 

regulations require that ‘‘Each plan must 

show that the State has legal authority 

to carry out the plan, * * *’’ (emphasis 

added) (See 40 CFR 51.230), but, as to 

the statutes themselves, EPA’s 

regulations state: ‘‘The provisions of law 

or regulation which the State 

determines provide the authorities 

required * * * must be specifically 

identified, and copies of such laws or 

regulations be submitted with the plan.’’ 

(emphasis added). See 40 CFR 51.231(a). 

The phrase, ‘‘each plan must show,’’ 

refers to elements that must be included 

as part of the plan, whereas the latter 

phrase, ‘‘submitted with the plan,’’ is, at 

most, ambiguous as to whether the 

items that must be submitted must also 

be included in the plan itself. But, when 

considered with the statutory language 

in CAA section 110(a)(2)(E) that requires 

the SIP to include ‘‘necessary 

assurances’’ of adequate legal authority, 

not the statutes themselves, it is 

reasonable to interpret 40 CFR 51.231(a) 

as requiring the submittal of the 

statutory provisions (providing support 

for the necessary showing of adequate 

legal authority) for the purpose of 

allowing EPA to conduct an informed 

review of a State’s demonstration of 

‘‘necessary assurances’’ of adequate legal 

authority, and as not requiring approval 

of the statutory provisions themselves as 

part of the SIP. 

Lastly, the District points to EPA’s 

own description of the Agency’s 

approval of the revised legal authority 

chapter as ‘‘nonsignificant’’ and 

‘‘administrative in nature’’ as 

inconsistent with EPA’s contention that 

the approval of the revised legal 

authority chapter superseded the earlier 

chapter and related statutory provisions 

given the significance that the District 

attaches to the supersession of those 

provisions. However, EPA’s description 

of its action approving the revised legal 

authority chapter as ‘‘administrative’’ 

mirrors ARB’s foreword to the revised 

legal authority chapter: ‘‘Chapter 3 is an 

Air Resources Board (ARB) revision to 

the State of California Implementation 

Plan for the Attainment and 

Maintenance of Ambient Air Quality 

Standards (SIP). It is an administrative 

chapter which outlines the State’s legal 

authority to implement the measures 

contained in the State Implementation 

Plan required by the Clean Air Act 

* * *.’’ Our approval action was thus 


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27942 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 

5The District refers to 40 CFR 52.220(b)(12)(i) as 

an instance where California removed certain 

sections of the CH&SC approved in 1972 from the 

California SIP. California did not remove these 

CH&SC sections; EPA did so under the error 

correction authority of CAA section 110(k)(6). See 

69 FR 67062 (November 16, 2004). We now 

recognize that we did not need to do so, since all 

of the statutory provisions submitted in support of 

the original legal authority chapter of the SIP had 

been superseded by our approval of the revised 

legal authority chapter in 1980. See response to 

comment #7. 

consistent with ARB’s description of the 

revised legal authority action. 

Retention of the statutory provisions 

that had been submitted as part of the 

original SIP would imply that they have 

significance outside of their purpose in 

providing support for the State’s 

‘‘necessary assurances’’ of adequate legal 

authority, which ARB submitted in the 

form of a narrative chapter. But, ARB’s 

description of the chapter itself as 

‘‘administrative’’ shows that the 

underlying statutory provisions have no 

place in the applicable SIP other than 

with the demonstration of ‘‘necessary 

assurances.’’ Our conclusion that the 

statutes submitted in support of the 

original chapter were superseded upon 

our approval of the revised chapter is 

consistent with this understanding of 

the inherent connection between the 

‘‘necessary assurances’’ demonstration in 

the SIP and the supporting statutory 

provisions. 

As described above, the statutes 

submitted by a State in support of the 

‘‘necessary assurances’’ demonstration of 

adequate legal authority may be 

approved as part of the SIP (e.g., original 

California SIP) but are not required to be 

part of the SIP. Where EPA has 

approved the supporting statutes into 

the SIP, EPA views the statutes as 

‘‘nonregulatory’’ provisions of the SIP. 

See, e.g., 62 FR 27968, at 27971 (May 

22, 1997) (‘‘Examples of nonregulatory 

SIP provisions include, but are not 

limited to, the following subject matter: 

SIP narratives * * * State Statutes 

* * *.’’); and again in 72 FR 64158, at 

64160 (November 15, 2007) (‘‘EPAapproved non-regulatory control 

measures include * * * State statutes 

* * * which have been submitted for 

inclusion in the SIP by the State. * * * 

Examples of EPA-approved documents 

and materials associated with the SIP 

include, * * * State Statutes submitted 

for the purposes of demonstrating legal 

authority; * * *.’’). ARB’s and EPA’s 

description of the revised legal authority 

chapter of the California SIP as 

‘‘administrative’’ is consistent with the 

idea that even if the supporting statutes 

had been approved into the SIP in 1980 

(which they were not), EPA would have 

categorized the statutes as 

‘‘nonregulatory.’’ 

The statutes are considered 

‘‘nonregulatory’’ because statutes that 

provide State or local administrative 

agencies with the authority to establish 

regulatory requirements do not in 

themselves establish the requirements. 

Rather, the rules promulgated under the 

relevant authorities establish the 

requirements. In this instance, such 

rules have included permitting rules 

that were adopted by the individual 

county-based air districts in San Joaquin 

Valley (and later by the San Joaquin 

Valley Unified Air Pollution Control 

District) exempting agricultural sources, 

that were approved by EPA as part of 

the San Joaquin Valley portion of the 

California SIP, and that continued in 

effect in the SIP until 2004, 

notwithstanding the supersession of the 

underlying statutory provision back in 

1980. Hence, EPA’s description of the 

Agency’s approval of the revised legal 

authority chapter as being 

‘‘nonsignificant,’’ because no new 

requirements would be imposed nor 

would any requirements be withdrawn, 

is correct. Such requirements are not 

established in the statutes providing the 

legal authorities, but are found in the 

approved State and local district rules.5

Comment #5: The District states that 

the agricultural permitting exemption 

was removed from State law in 2003 as 

it relates to major sources, but states that 

the change in State law was never 

submitted to EPA as a SIP revision and 

thus the agricultural permitting 

exemption remains in the SIP. 

Response #5: We agree that the State 

law replacing the full agricultural 

permitting exemption with a limited 

permitting exemption for certain minor 

agricultural sources (Senate Bill 700) 

has never been submitted to EPA as a 

SIP revision. However, as we clarify 

through this final rule, California did 

not need to submit SB 700 to EPA as a 

SIP revision to remove the agricultural 

permitting exemption from the SIP 

because it was removed from the 

California SIP upon the effective date of 

our 1980 final rule approving the State’s 

revision to the legal authority chapter of 

the California SIP. 

Comment #6: The District contends 

that Clean Air Act section 301(a)(1) does 

not authorize EPA to unilaterally amend 

the agricultural exemption out of the 

California SIP. 

Response #6: We agree that CAA 

section 301(a)(1) does not authorize EPA 

to unilaterally amend the SIP. To amend 

the SIP, EPA is authorized to take action 

under CAA section 110. For instance, 

our action in 1980 to approve 

California’s revised legal authority 

chapter of the California SIP was an 

action taken by EPA under section 110. 

We do not view our action today as 

amending the California SIP. Our view 

as expressed in the proposed rule and 

in responses to comments above is that 

we are simply clarifying the effect of a 

previous rulemaking. We are taking this 

action to avoid further confusion as to 

the current status of the statutory 

provisions (such as the agricultural 

permitting exemption) submitted as part 

of the original 1972 California SIP. 

CAA section 301(a) authorizes EPA to 

prescribe such regulations as are 

necessary to carry out the Agency’s 

functions under the CAA. One of the 

basic functions of the Agency under the 

CAA is to take actions on SIPs and SIP 

revisions (See section 110(k)), and in 

doing so, we are responsible for 

ensuring that the regulatory effect of our 

action is clearly set forth through rules 

published in the Federal Register and 

that our codification of SIP approvals in 

40 CFR part 52 reasonably identifies the 

approved provisions. 

In this instance, we have discovered 

that our 1979 proposed rule and 1980 

final rule approving a revision to the 

California SIP did not clearly identify 

the materials being superseded, and we 

appropriately rely upon our rulemaking 

authority under CAA section 301(a) to 

clarify the superseding effect of our 

1980 action. In so doing, we are not 

amending the California SIP, but merely 

clarifying what the current SIP includes, 

or to be more specific, what the current 

SIP does not include. 

Comment #7: Dairy Cares notes that, 

in 2004, EPA undertook a rulemaking to 

remove from the SIP several specific 

statutes that were included in the 1972 

original California SIP, and claims that 

such action would have been 

unnecessary if the statutory provision 

submitted with the original California 

SIP had been superseded by EPA’s 

approval action on the revised legal 

authority chapter of the California SIP 

in 1980. Dairy Cares asserts that EPA’s 

action in 2004 reveals the Agency’s 

understanding then that the statutory 

provisions from the original California 

SIP remain in the SIP, and concludes 

that there is simply no way to reconcile 

EPA’s actions in 2004 with the action it 

now proposes as they are entirely 

inconsistent. 

Response #7: In our January 29, 2010 

proposed rule, we recognize that our 

2004 rulemaking (69 FR 67062, 

November 16, 2004) removed certain 

variance-related statutory provisions 

from the California SIP. See 75 FR at 

4742, at 4744. We agree that our 

conclusion in the current rulemaking 

that all of the statutory provisions 

submitted in connection with the legal 


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Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations 27943 

authority chapter of the original 

California SIP were superseded in 1980 

is not consistent with our 2004 

rulemaking. We also agree that, if all of 

the statutory provisions in question had 

been superseded in 1980, then removal 

of the specific variance-related 

provisions in 2004 would not have been 

necessary. 

Upon review of the 2004 rulemaking, 

however, we find no evidence of the 

type of detailed research into the 

contents of the California SIP that was 

conducted for this rulemaking. 

Furthermore, we believe that the 

Agency’s own mistaken understanding 

in 2004 of the status of the variancerelated statutory provisions simply 

highlights the need for the Agency to 

take some action, such as the one taken 

today, to clarify the status of the 

statutory provisions and other legal 

documents submitted in support of the 

legal authority chapter of the original 

California SIP. As described above, we 

have the authority under CAA section 

301(a) to identify the superseding effect 

of a prior rulemaking (in this case, a 

rulemaking in 1980) and to thereby 

clarify the contents of the current 

California SIP. 

III. Final Action 

None of the comments have caused us 

to modify our proposed rule, and thus, 

under CAA section 301(a)(1) and for the 

reasons discussed in the proposed rule 

and in this final rule, EPA is taking final 

action to clarify that the statutory 

provisions and other legal documents 

approved in connection with the legal 

authority chapter of the original 1972 

California SIP were superseded in the 

California SIP by EPA’s approval of a 

revised legal authority chapter in 1980 

(and codified at 40 CFR 52.220(c)(48)). 

We are memorializing our interpretation 

of the effect of the 1980 final rule by 

revising the relevant provision in 40 

CFR 52.220 accordingly. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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 Clean Air Act. 

Accordingly, this action merely clarifies 

the effect of a previous approval by EPA 

of a State submittal as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this 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); 

• 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 Clean Air Act; 

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. 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 19, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: May 5, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

■ Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

revising paragraph (b)(12)(i) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(b) * * * 

(12) * * * 

(i) Previously approved on May 31, 

1972 in paragraph (b) and deleted 

without replacement, effective 

September 10, 1980, chapter 7 (‘‘Legal 

Considerations’’) of part I (‘‘State General 

Plan’’) of the plan submitted on 

February 21, 1972, and all of the 

statutory provisions and other legal 

documents contained in appendix II 

(‘‘State Statutes and other Legal 

Documents Pertinent to Air Pollution 

Control in California’’) to chapter 7. 

* * * * * 

[FR Doc. 2010–11867 Filed 5–18–10; 8:45 am] 

BILLING CODE 6560–50–P 


erowe on DSK5CLS3C1PROD with RULES
Attachment 2

North Carolina Department of Environmental Quality

Public Notice and EPA Comment Letter
(This page intentionally left blank)
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY 

PUBLIC NOTICE 

PURPOSE: 

COMMENT 

PROCEDURES: 

REQUESTS FOR A 

PUBLIC HEARING: 

INFORMATION: 

The North Carolina Department of Environmental Quality, Division of Air Quality 

(NCDAQ) hereby gives notice regarding its Certification of Clean Air Act Section 

llO(a)(l) and (2) Requirements for the 2012 Annual Fine Particulate Matter (PM2.s) 

Primary National Ambient Air Quality Standard. The certification describes basic 

program "infrastructure" elements that address the provisions of Section 110( a)(l) and 

(2). The certification once finalized will be submitted to the United States Environmental 

Protection Agency to be included in the State Implementation Plan as required by the 

Clean Air Act. Persons wishing to submit comments or request a public hearing 

regarding the certification are invited to do so. 

Any person wishing to comment may submit a written statement for inclusion in 

the record of proceedings regarding the Certification of Clean Air Act Section llO(a)(l) 

and (2) Requirements for the 2012 annual PM2.s standard. 

Written comments should be received by no later than November 30, 2015. 

Requests for a public hearing must be in writing and include a statement 

supporting the need for such a hearing, an indication of your interest in the subject, and a 

brief summary of the information intended to be offered at such hearing. A public 

hearing will be scheduled if requested. A separate notice will be announced for the 

hearing including the date, time and location. Written requests for a public hearing 

should be received no later than Tuesday, November 10, 2015 and addressed to Randy 

Strait, Division of Air Quality, 1641 Mail Service Center, Raleigh, North Carolina 

27699-1641. 

Comments can be submitted electronically to the following: 

daq.publiccomments@ncdenr.gov 

(Please type "2012 PM2.5 Infrastructure SIP" in the subject line) 

Comments can be mailed to: 

Randy Strait 

NC Division of Air Quality 

1641 Mail Service Center 

Raleigh, NC 27699-1641 

Comments can be F AXed to the attention of Randy Strait: 

(919) 715-0717 

Copies of the certification may be downloaded from the NCDAQ web site at: 

http://ncair.org/planning/cert/ 

The certification may be reviewed in person during normal business hours at the 

following North Carolina Department of Environmental Quality, Division of Air Quality 

offices: 

Raleigh Central Office, Planning Section 

Asheville 828/296-4500 

Mooresville 704/663-1699 

Washington 252/946-6481 

Winston-Salem 336/771-5000 

Sheila C. Holman, Director 

919-707-8721 

Fayetteville 

Raleigh 

Wilmington 

910/433-3300 

919/791-4200 

910/796-7215 
(This page intentionally left blank)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 4 

Ms. Sheila C. Holman, Director 

Division of Air Quality 

ATLANTA FEDERAL CENTER 

61 FORSYTH STREET 

ATLANTA, GEORGIA 30303-8960 

November 30, 2015 

North Carolina Department of Environmental Quality 

1641 Mail Service Center 

Raleigh, North Carolina 27699-1 641 

Dear Ms. Holman: 

Thank you for your letter dated October 27, 2015, transmitting a prehearing package regarding the 

section 1 IO(a)(l) and (2) Infrastructure State Implementation Plan requirements for the 2012 Annual 

Fine Particulate Matter National Ambient Air Quality Standards. These revisions were the subject of a 

public comment period beginning October 27, 2015, with written comments due by the close of business 

on November 30, 2015. We have completed our review of the prehearing submittal and offer no 

comments at this time. 

We look forward to continuing to work with you and your staff. If you have any questions, please 

contact Ms. Lynorae Benjamin, Chief, Air Regulatory Management Section at (404) 562-9040, or have 

your staff contact Nacosta C. Ward at ( 404) 562-9140. 

Sincerely, 

R. Scott Davis 

Chief 

Air Planning and Implementation Branch 

Internet Address (URL) • http://www.epa.gov 

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