Air Quality

EN VI RONMENT AL QUA LI T Y

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) Infrastructur e 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 Caro li na I Environme ntal Qua li ty I Air Quality 1641 Mail Service Center I 217 W. Jone s Street, S u ite 4000 I Raleigh
, NC 27609- 1 64 1 919 707 8400 THeather 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 distribu t ion 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 webs i te 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 t he 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) 707-872 1.

SCH / rps

Attachments

cc: M i chael Abraczinskas, NCDAQ Sushma Masemore, NCDAQ Randy S t rait
, 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 Les li e Rhodes
, Mecklenburg County Air Quality David Brigman, Western Regional Air Quality AgencyFinal North Carolina Certification 1

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015



### North Carolina Certification For Clean Air Act Section s 110(a)(1) and (2) Infrastructure State Implementation Plan for the 201 2 Annual Particulate Matter (PM 2.5 

### ) National Ambient Air Quality Standard

T he United States Environmental Protection Agency (EPA) revised the annual Nation al Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM 2.5 

### ) o n December 14, 2012 by lowering the primary (health

- based) standard to 12.0 micrograms per cubic meter (μg/m 3 

### ) from the previous 15.0 μg/m 3 

### standard

. The EPA did not revise the secondary annual PM 2.5 

### standard of 15.0 μg/m 3 

### set in 1997 , the 24

- hour primary and secondary PM 2.5 

### standards of 35 μg/m 3 

### set in 2006 , or the 24

- hour prima ry and secondary coarse particle matter (PM10) standards of 150 μg/m 3 

### set 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_P M25_Designations_12182014.pdf )

.
When the EPA revises an existing standard, Clean Air Act (CAA) Section s 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 afte r a federal standard is adopted or revised.

This document serves as North Carolina’s infrastructure SIP for the 20 1 2 annual PM 2.5 

### 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 certificatio n demonstration

. Attach ment 1 contains copies of the EPA memorandums and notices used to develop the Infrastructure SIP. Each of the basi c or infrastructure requirements
, listed below , identify the corresponding North Carolina S tate r ule or general stat u te implement ing 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 Statu t es (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 ad opted as part of North Carolina’s SIP.Final North Carolina Certification 2

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Emission L imits and O ther C ontrol M easures [§ 110(a)(2)(A)] :
Section 110(a)(2)(A) of the CAA requires that North Carolina’s SIP for the 201 2 annual PM 2.5 

### 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 o r appropriate to meet the applicable requirements of this [Act]

. ”

15A North Carolin a Administrative Code (NCAC) 2D .0500, “Emission Control Standards”
, serves to establish emission lim its for PM 2.5 

### . The following r ules 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 ( SO 2 

### ) 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 partic ulate matter in the air. The reduction in SO 2 

### emissions required by the CSA was paramount in attaining the 2006 PM 2.5 

### standard in the Hickory and Greensboro/High Point areas in North Carolina. In December 2009, North Carolina Departmen t of Environment al Quality (DE Q ) submitted to the EPA a redesignation demonstration and maintenance plan for these areas and then supplemented the maintenance plan in Dec ember 2010. As part of the redesignation demonstration and maintenance plan, DE Q reli ed on the CSA SO 2 

### reductions as permanent and enforceable measures that demonstrate continued maintenance of the PM 2.5 

### 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 theFinal North Carolina Certification 3

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### area to attainment, effective Dec. 19, 2011. The approval of the North Carolina PM 2.5 

### redes ignation demonstration was made possible due to the CSA SO 2 

### emission caps. NC GS 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 c ompliance with the PM 2.5 

### NAAQS, CSAPR is a federally enforceable program that once fully implemented may yield residual SO 2 

### and NOx emission s reduction benefits. On April 29, 2014, t he 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 CS APR stay and toll the CSAPR compliance dates by three years. Beginning on January 1, 2015
, SO 2 

### 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 reconside r 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 wit h 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://ww w.epa.gov/airtransport/CSAPR/index.html

.Final North Carolina Certification 4

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Ambient A ir Q uality M onitoring/ D ata S ystem [§ 110(a)(2)(B)] : Section 110(a)(2)(B) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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 PM 2.5 

### in the State. The development and implementation of the PM 2.5 

### 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 PM 2.5 

### monitoring strategy is set forth in the 2014

- 2015 Annual Monitoring Networ k Plan approved by the EPA on July 16, 2015

. T he 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

. Th e five

- year network assessment is a look forwar d 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 PM 2.5 

### 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 availabl e data collected by any local, S tate 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 PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Program s for E nforcement of C ontrol M easures and for C onstruction or M odifi cation of S tationary S ources [§ 110(a)(2)(C)] :
Section 110(a)(2)(C) of the CAA requires that North Carolina’s SIP for the 201 2 annual PM 2.5 

### 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 so urce Prevention of Significant Determination

- PSD program).

NCGS 143

- 215.61, Enforcement Procedures , provides DE Q with the statutory authority to enforce air quality rules.

NCGS 143

- 215.108, Control of sources of air pollution; permits required
, pro vides 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 proj ect at an existing major stationary source in an area designated as attainment or unclassifiable.

 15A NCAC 2D .0531 “ Sources in Nonattainment Area s ” applies to the construction of any new major stationary source or major modification at an existing major stationary source in an area designated as non attainment

.
 15A NCAC 2 Q .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 ”
, establish es an air quality permitting program as required under Title V and 40 CFR Part 70

.
North Car olina 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 ReviewFinal North Carolina Certification 6

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### (NSR) PM 2.5 

### Rule and the 2010 PM 2.5 

### Increments , S ignificant Impact L evel ( SILs ) and Significant Monitoring C oncentration ( SMC ) Rule to comply with 2006 PM 2.5 

### infrastructure requirements for element s C, (D)(i) and (J). These requirements will also satisfy the same elements for the 2012 annual PM 2.5 

### infrastructure SIP. The PSD rules becam e state effective on September 5, 2013, after adoption by the North Carolina EMC and the Rules Review C omm ission. 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 PM 2.5 

### 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 R ule 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 Co urt’s decision into 15A NCAC 02D .0544 and 15A NCAC 02Q .0502
, Applicability
, to remove requirement s that major stationary sources obtain a PSD or Title V permit solely on the basis of GHG emissions

. The temporary rule beca me 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 PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Interstate P ollution T ransport P rovisions [§ 110(a)(2)(D) (i) ] :
Section 110(a)(2)( D ) (i) of the CAA requires that North Carolina’s S IP for the 2012 annual PM 2.5 

### 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 s tates. Under this section of the Act, s tates are responsible for reducing their “significant contribution” to t hose 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 PM 2.5 

### NAAQS in a downwind st ate:

 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 Reductio n 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 SO 2 

### emissions caps in the CSA became federally enforceable as part of North Carolina’s SIP (76 FR 59250)

 Federal Implementation Plan

- CSAPRFinal North Carolina Certification 8

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 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 PM 2.5 

### standard or contributes to a nearby violation of the standard. As a result, the EPA designated all of North Carolina a s “unclassifiable/attainment” (s ee 81 FR 2206 ).

For the purpose of evaluating compliance with the good neighbor provisions
, the DAQ examined the annual PM 2.5 

### design values calculated from EPA

- vali dated 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 PM 2.5 

### design values in each state are below the NAAQS (see Table 1 )

. This informatio n also shows that the design value for each state is t r ending 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 PM 2.5 

### NAAQS Design Values (μg/m 3 

### )

State Location 2011

- 2013 Monitoring Data 2012

- 2014 Monitoring Data
Design Value Percent of

NAAQS Design Value Percent of NAAQS NC W ake 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 sta tes 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 PM 2.5 

### 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 PM 2.5 

### standard. In this study, the EPA concluded that all of the states downwind of North Carolina would be in compliance with the 2012 annual PM 2.5 

### 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 Pennsylv ania (i.e., Virginia, West Virginia, and Maryland) are all attaining the 2012 annual PM 2.5 

### standard, North Carolina believes that it does not have any significant contribution to annual PM 2.5 

### concentrations in the moderate nonattainment areas in Pennsylvan ia.Final North Carolina Certification 9

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Table 2

. Modeled 202 0 Annual PM 2.5 

### NAAQS Design Values (μg/m 3 

### )

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 Pa rticulate 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 PM 2.5 

### , NOx, and SO 2 

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

. From 1996 through 2011, PM 2.5 

### , NOx, and SO 2 

### emissions have declined by about 36, 48, and 80, percent, respectively. From 2011 through 2017, PM 2.5 

### , NOx, and SO 2 

### emissions are estimated to decline by an additional 31, 39, and 50 percent, respectively.

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

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 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 PM 2.5 

### 147 135 164 111 129 243 87 84 60 NOx 631 739 660 609 523 459 386 277 234 SO 2 

### 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, emiss ions 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

.


### A ccording to the EPA’s emissions p rojections, emissions are expected to continue to decline through 2017 and beyond due to on

- the

- books national rules for onroad and nonr o a d mobile

sources including the following :

Onroad

 Tier 3 Motor Vehicle Emission and Fuel Standards Program,

 Light

- Du ty Vehicle Tier 2 Rule,

 Heavy Duty Diesel Rule,

 Mobile Source Air Toxics Rule,

 Renewable Fuel Standard,

 Light

- Duty Green h ouse Gas/Corporate Average Fuel Efficiency S tandards 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 (Mari ne 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 NO x and SO 2 

### emissions through North Carolina’s CSA and federally enforceable emission limitations and other control measures, means, or techniques , low monitored values of PM 2.5 

### will continue in and around North Carolina

. In other words, PM 2.5 

### emissions and emissions precursors to PM 2.5 

### formation from North Carolina are not expected to cau se or contribute to a violation or interfere with the maintenance of the 201 2 annual PM 2.5 

### NAAQS in another state.Final North Carolina Certification 11

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Subsection 2(D)(i)(I I )
Section 110(a)(2)(D)(i)(I I ) requires SIPs to include provisions prohibiting any source or other type of emissions a ctivity 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 qu ality rules address the requirements under this subsection: There are no nonattainment areas subject to Nonattainment New Source Review for the 201 2 annual PM 2.5 

### 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 C arolina has developed and implemented a Regional Haze SIP to protect visib ility in five Class I areas: Great Smoky Mountai ns National Park, Joyce Kilmer

- Slickrock Wilderness Area, Linville Gorge Wilderness Area, Shining Rock Wilderness Area, and Swanquart er 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 disapp roval 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 Generatin g Facilities In North Carolina ” on October 31, 2014. This SIP submittal demonstrates that the SO 2 

### 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 201 8 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 e missions to visibility impairment can mask improvements in visibility achieved by reductions of anthropogenic e 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 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 PM 2.5 NAAQS Clean Air Act Section s 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 PM 2.5 

### NAAQS, CSAPR is a federally enforceable program that once fully implemented may yield residual NOx and SO2 emissions reduction benef its.
Although North Carolina is not relying on CSAPR for maintaining compliance with the PM 2.5 

### NAAQS, CSAPR is a federally enforceable program that once fully implemented may yield residual SO 2 

### 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. Beg inning on January 1, 2015 , SO 2 

### 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 fede rally 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/CS APR/index.html

.Final North Carolina Certification 13

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Interstate P ollution A batement and International Ai r P ollution [§ 110(a)( 2)(D)(ii)] : Section 110(a)(2)(D)(ii) of the CAA requires that North Carolina’s S IP for the 2012 annual PM 2.5 

### NAAQS shall

- “contain adequate provisions

- (ii) i nsur ing compliance with the applicable requirements of sections 1 26 a nd 1 15 of this title (relating to interstate and international pollution abatement). ” The following r ules 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 p otential 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 ad option of PSD requirements established in the 2008 NSR PM 2.5 

### Rule, the 2010 PM 2.5 

### Increments

- SILs and SMC Rule
, and subsequent court decisions to comply with 2006 PM 2.5 

### infrastructure requirements for element s C, (D)(i ) and (J). These requirements will also satisfy the same elements for the 2012 annual PM 2.5 

### infrastructure SIP. The PSD rules were adopted by the North Carolina EMC and the Rules Review Comm ission and became state effective September 1, 2013 . The DAQ ma de a final submission to the EPA on September 5, 2013.

U nless a state is the subject of a Section 126(b) or 126(c) petition with respect to PM 2.5 

### , the state has no continuing obligation under these sections. North Carolina is not the subject of a Sect ion 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 PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Adequate R esources and A uthority, C onflict of I nterest, and O versight of L ocal G overnments [§ 110(a)(2)(E)] :
Section 110(a)(2)(E) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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 req uirements 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 ens uring 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 rul emaking and requiring p ermit fees can be found in NCGS 143

‐ 215.3 General powers of Commission and Department; auxiliary powers . Additionally, NCGS 1 43

- 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 S tate l aw to carry out the SIPs and related issues. This information is contain ed 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 or ders . 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 DE Q has submitted S ection 128 certification procedures to the EPA t o comply with the 1997 8

- hour ozone infrastructure SIP requirements.Final North Carolina Certification 15

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### The pending EPA approval of th is SIP revision will satisfy Section 110(a)(2)(E)(ii) requirement s for the 201 2 annual PM 2.5 

### NAAQS Infrastructure SIP.

North Carolina addresses Section 110(a)(2)(E)(iii) of the CAA as listed above by requir ing 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 pro grams , provides the North Carolina EMC with the statutory authority “to review and have general oversight and supervision over all local air pollution control programs .” I n order for submittals made by the local air program deemed complete, all local and regional implementation plans must be submitted through DE Q to the EPA

.Final North Carolina Certification 16

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Stationary S ource M onitoring and R eporting [§ 110(a)(2)(F)]
Section 110(a)(2)(F) of the CAA dictates that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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 r ules require monitoring of emissions from stationary sources:

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

 15A NCAC 2D .0605 “General Record keeping 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 R ule requires stationary sources to submit periodic emissions reports to the s tate. North Carolina’s requirements meet the emissions reporting requirements of 40 C FR 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 wou ld prevent the use of any credible evidence of noncompliance.Final North Carolina Certification 17

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Emergency E pisodes [§ 110(a)(2)(G)] :
Section 110(a)(2)(G) of the CAA requires that North Carolina’s S IP for the 2012 annual PM 2.5 

### 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 e ndangerment 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 ade quate contingency plans (40 CFR 51.150 through 51.153) to implement such authority is intended to establish emergency episode plans for responding to elevated po llutant 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

– SO 2 

### , inhalable particulate matter (PM 10 

### ), 2010 nitrogen dioxide ( NO 2 

### )
, carbon monoxide ( CO ) , and ozone. Part 51.16 was restructured as Subp art 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 PM 2.5 

### , the EPA has not proposed a priority classification sch eme for states to use in determining their priority classification or significant harm level s

. 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 PM 2.5 

### standard . However, although this 2009 guidance addresses the 24

- hour PM 2.5 

### standard
, it does not specifically address the annual PM 2.5 

### standard

. 3
, 4



### On December 18, 2014, the EPA Administrator designated the entire state of North Carolina as “unclassifiable/attainment” for the 2012 annual PM 2.5 

### NAAQS. The highest annual PM 2.5 

### concentration recorded in North Carolina is 10.1 μg/m 3 

### (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 e pisode 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 Requir ed 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 T he 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 PM 2.5 NAAQS Clean Air Act Section s 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 PM 2.5 

### standard.Final North Carolina Certification 19

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Future SIP R evisions [§ 110(a)(2)(H)] : Section 110(a)(2)(H) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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 paragr aph (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 additi onal 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 a ny 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 PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Plan Revisions for Nonattainment A rea s [§ 110(a)(2)(I)] :
Section 110(a)(2)(I) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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 PM 2.5 

### 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 PM 2.5 NAAQS Clean Air Act Section s 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 PM 2.5 

### NAAQS shall

– “meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of t his 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 re quirements. 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 meas ures 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 PM 2.5 

### 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 PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Prevention of Sign ificant 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 PM 2.5 

### Rule
, the 2010 PM 2.5 

### Increments

- SILs and SMC Rule
, and subsequent court decisions to comply with 2006 PM 2.5 

### infrastructure requirements for element s C, (D)(i) and (J). These requirements will also satisfy the same elements for the 2012 annual PM 2.5 

### infrastructure SIP. The PSD rules were adopted by the North Carolina EMC and the Rules Review Comm ission and became effective September 1, 2013 . The DAQ made a final submission to the EPA on Septem ber 5, 2013.
Visibility Protection: These requirements are address ed 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 S ections 169A and 169b of the Clean Air Act and in 40 CFR 51.300

- 308. In response to this acti on, 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 demonstrate s that the SO 2 

### 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) provide s 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 e xploring 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 othe r 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 visibil ity 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 b een actively participating in this stakeholder process to share information and stayFinal North Carolina Certification 23

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 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 protect ion obligations under Section 110(a)(2)(J) as a result of the 2012 annual PM 2.5 

### NAAQS.Final North Carolina Certification 24

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Air Q uality M odeling and Reporting [§ 110(a)(2)(K)] : Section 110(a)(2)(K) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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 PM 2.5 

### 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 wit h benchmarking and running photochemical grid, source apportionment, trajectory, meteorological , and dispersion models and emissions processors for preparing inpu t 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 qual ity modeling to ensure compatibility with federal guidelines. In addition, the DAQ ’s staff conduct for selected regions across North Carolina daily air quality forecast ing of PM 2.5 

### year

- round following the EPA’s established procedures and guidance.

Emi ssions data collected through 15A NCAC 2D .0 600 “ Monitoring: Recordkeeping: Reporting ” (authorized under NCGS 143

- 215.107(a)(4)) provide the necessary information to model potential impact s of major and some minor stationary sources.Final North Carolina Certification 25

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Permitting F ees [§ 110(a)(2)(L)] : Section 110(a)(2)(L) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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

pe rmit, 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), un til 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 per mit. The statutory authority to allow p ermit fees can be found in NCGS 143

‐ 215.3 General powers of Commission and Department ; auxiliary powers

.Final North Carolina Certification 26

2012 Annual PM 2.5 NAAQS Clean Air Act Section s 110(a)(1) and (2) Infrastructure SIP December 4
, 2015 

### Consultation and Participation by A ffected L ocal E ntities [§ 110(a)(2)(M)] :
Section 110(a)(2)(M) of the CAA requires that North Carolina’s SIP for the 2012 annual PM 2.5 

### 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:

 1 5A 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 Admin istrative 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 p lan ning 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 me etings to support SIP development and rule

- making efforts.

In addition, t he DAQ has developed and signed Memorand a of Understanding (MOU) with local, state, and federal transportation planning partners that formalize s the consultation process for develo ping 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)

20 1 2 Annual PM2.5 Standard

### (This page intentionally left blank)USEPA Memorandums and Notices 1 2012 Annual PM 2.5 NAAQS Attachment 1 Clean Air Act Section 110(a)(1) and 110(a)(2) Infrastructure SIP December 4 , 201 5 

### Thi s document contains the United States Environmental Protection Agency’s (USEPA’s) two guidance documents, a memorand um, 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 PM 2.5 

### 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.

USE PA 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 Par ticle (PM2.5) National Ambient Air Quality S tandards (N AAQS) .” ......................................................................................................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) .....11 9

### ( 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 (PM 2

. 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 u nder Clean Air Act Sections 110(a)(1) and 110(a)(2)
September 2013

### i

List of Selected Acronyms and Abbreviations

AERMOD A merican M eteorological S ociety/ 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 i mplementation p lan
FR Federal Register GHG Greenhouse gas es IBR Incorporation by r eference NAAQS National Ambient Air Quality Standards NO 2 

### 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
PM 2.5 

### F ine 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)
SO 2 

### Sulfur dioxide SSM Startup, shutdown
, and malfunction
TAR Tribal Authority Rule
TIP Tribal Implementation Plan
UBR Unavoidable breakdown rule μg/m 3 

### Micrograms per cubic meter

### ii

Table of Contents

I. Introduction

................................ ................................ ................................ ........................... 1
II. General Guidance on Infrastructure SIPs

................................ ................................ .......... 4
Which e lements of CAA 110(a)(2) a ffect i nfrastructure 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 Infras tructure SIP Elements

................................ .................... 18
Element A

– Section 110(a)(2)(A): Emission L imits and O ther C ontrol M easures

......... 18
Element B

– Section 110(a)(2)(B): Ambient A ir Q uality M onitoring/ D ata S ystem

........ 22
Element C

– Section 110(a)(2)(C): Programs for E nforcement of C ontrol M easures and for C onstruction or M odification of S tationary S ources.

............... 23
Elements D(i)(I) and (II)

– Section 110(a)(2)(D)(i): Interstate P ollution T ransport

......... 30
Element D(ii)

– Section 110(a)(2)(D)(ii): Interstate P ollution A batement and I nternational A ir P ollution

................................ ................................ .................. 35
Element E

– Section 110(a)(2)(E): Adequate R esources and A uthority, C onflict of I nterest, and O versight of L ocal G overnments and R egional A gencies

............... 39
Element F

– Section 110(a)(2)(F): Stationary S ource M onitoring and R eporting

............ 45
Element G

– Section 110(a)(2)(G): Emergency E pisodes

................................ ............... 47
Element H

– Section 110(a)(2)(H): SIP R evisions

................................ ......................... 51
Element I

– Section 110(a)(2)(I): Plan R evisions for N onattainment A reas

.................... 52
Element J

– Section 110(a)(2)(J): Consultation with G overnment O fficials, P ublic N otification, and PSD and V isibility P rotection

................................ .................. 52
Element K

– Section 110(a)(2)(K): Air Q uality M odeling and S ubmission of M odeling D ata

................................ ................................ ................................ ... 55
Element L

– Section 110(a)(2)(L): Permitting F ees

................................ ........................ 56
Element M

– Section 110(a)(2)(M): Consultation and P articipation by A ffected L ocal E ntities

................................ ................................ ................................ ..... 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 state 1 

### is required to
submit a state implementatio n 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
submissio n 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 Protect ion Agency after reasonable noti ce and public hearing. 4 

### Section 110(a)(2) specifies the substantive elements these submi ssions need to address, as applicable, for th e
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 purp ose 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 determ ination of eligibility for treatment as a state for purposes of administering a tribal air quality m anagement program under section 110(a) of the CAA

. Tribes should look to the TAR and engage their respective EPA Regional O ffices in discussing how this guidance may impact the development and approvability of their tribal implementation plans ( TI Ps )

. 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 “T IP ” may, depending on context, refer either to (i) all or part of the e xisting state (or tribal) implementation plan ( i.e. , the collection of all submission s previously approved by the EPA as me eting CAA requirements) or (ii) a submission that adds to or modifies the existing plan as directed by section 110 (a) (l).

3 The Admin istrator 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’s 5 

### 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 substan tive 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 man agement program in light of each new or revised NAAQS.

This non

- binding guidance 6 

### 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 (NO 2 

### ) NAAQS, 8 

### the 2010 primary sulfur dioxide (SO 2 

### ) NAAQS, 9 

### and the 2012 primary fine particulate matter (PM 2.5 

### ) 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 perso n, 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 partic ular 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. N either 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 millio n (ppm). 40 CFR 50.15. 73 FR 16436 (Mar ch 27, 2008 )

. 8 The EPA revised the primary NO 2 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 (Feb ruary 9, 2010 ) . The EPA has also recently reviewed the air quality criteria and the secondary NAAQS for nitrogen oxide s and sulfur oxides and retained the current NO 2 and SO 2 secondary standards, 77 FR 20218 (Apr il 3, 2012)

. 9 On June 2, 2010, the EPA established a new 1

- hour SO 2 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 SO 2 NAAQS for most areas following 1 year after designat ion under the new NAAQS. 40 CFR 50.4(e). The previous 3

- hou r secondary standard remain s 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 f or nitrogen oxides and sulfur oxides and retained the current NO 2 and SO 2 secondar y standards, 77 FR 20218 (Apr il 3, 2012)

.
10 The EPA revised the annual PM 2.5 standard by lowering the level to 12.0 micrograms per cubic meter ( μ g/m 3 ). 78 FR 3086 (Jan uary 15, 2013 ).

### 3

infrastructure SIPs for new or revised NAAQS promulgated in the future. As a result, air agencies may continue to re ly 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
transp ort 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 I II presents guidance on the individual elements (and sub

elements ) that constitute an infrastructure SIP.

### 4

II. General Guidance on Infrastructure SIPs

Which e lements of CAA 110(a)(2) a ffect i nfrastructure 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 :

e nforceable emiss ion 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
sub mitted 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 t hese elements pertain to part D, i n 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 1 10(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 t hese elements pertain to
SIP r evisions 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 eleme nts. 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 earli er 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, requireme nts,
and activities.

T he 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 the re has been no disapproval of an applicable required SIP submission and th us 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

11 In general, a finding by the EPA that an air agency has failed to submi t 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 existin g 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 submissi ons; 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 p ollutant, 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
Office s

.
We encourag e 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 i nfrastructure 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

• Sub part J

– Ambient Air Quality Surveillance

• Sub part K

– Source Surveillance

• Sub part L

– Legal Authority

• Sub part M

– Intergovernmental Consultation

• Sub part O

– Miscellaneous Plan Content Requirements

• Sub part P

– Prot ection of Visibility

• Sub part 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 developin g an approvable submission.

The EPA’s review can be expedited if a SIP submission include s a detailed explanation
of how the existing EPA

- approved SIP in combination with any newly submitted provisions

meets each of the applicable requirement s of section 1 10(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 elemen ts) 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 i nfrastructure SIP submission more clearly identifies the CAA element(s)
bein g met by the SIP and how they are met
, the EPA can mo re easily determine whether the
submission is complete and approvable with respect to that element.

Certifications

Where an air agency determines that the provi sions in or referred to by its existing EPA

approved 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 infrastructu re 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 SI P contains or references provisions that satisfy all or some of the requiremen ts 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
certificati on 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 shoul d 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, w h ere 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 l east 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 Administr ative R equirements of State Implementa t i on Plan s 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

o pportunity for comment prior to submitting a certification SIP submission to the EPA. 13 

### Th is
"reasonable notice and public hearing" requirement for approvable infrastructure SIP
submissions appear s at sections 110(a) (1) and the introductory text of section 110(a)(2 ) , and it has much the same wording as the more general ly 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 a n additional certification by
the air agency that a public hearing (if one was re quested ) was held in acco rdance 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 previousl y 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 su bmission . The EPA believes this suggested interpretation is inconsistent with the plain text of secti on 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 submi t to the Ad ministrator, 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 enforcemen t 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. Th e 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 e arlier SIP revisions in section 110(a)(1). Any possible residual ambiguity is removed by the last sentence of s ection 110(a)(1), which requires an infrastructure SIP for a secondary NAAQS to be considered (unless a separate public hearing is provided) “at the hearin g 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 interp retation because it inform s the public that the SIP is being revised and allow s 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. Further more, 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 fo und in a memorandum dated April 6, 2011, from Janet McCabe, Deputy Assistan t Administrator, Office of Air and Radiation, to Reg ional Administrators, titled " Regional Consistency for the Administrati ve Requirements of State Implementation Plans a nd the Use of 'Letter Notices'." Refer also to a memorandum dated Nov. 22, 2011, jointly from Janet McCabe, Deputy Assistan t Administrator, Office of Air and Radiation, and Becky Weber, Director, Air and Wa ste Management Division, Region 7, to Air Division Dir ectors, 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 streamli ning 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 include s a detailed explanation of how the existing SIP meets each of the applicable requirement s 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 i nfrastructure certification sub mission more clearly identifies the CAA element(s) being met by the SIP and how they are met
, the EPA can mo re easily determine whether the
submission is complete and approvable with respect to that element.

Determining Completeness of an Infrastructure SI P 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 subm iss i on is complete, the date of the finding establishes the

" completeness date " for the submi ssion. I f , 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 submi ssion date. A finding that an infrastructure SIP submi ssion is complete does not necessarily mean that the submi ssion 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 Determi ning 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 EP A 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 (Dec ember 28, 2011 )
, “ Approval and Promulgation of Implementation Plans; T exas; Infrastructure and Interstate Transport Requirements for the 1997 Ozone and the 1997 and 2006 PM 2.5 NAAQS
, Final Rule,” where the EPA approved severable portions of infrastructure SIP revisions submitted by Texas

.

### 11

submi s sion , 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 ele ments ( 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 elem ents 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. A ny inconsistency between the scope of the submission as descri b ed
in the pre

- submission public notice of the SIP submission and the actual submission, or b etween 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 ambigu ity as to which infrastructure SIP elements in fact have been submitted and thus are capable o f 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 i t s EPA Regional Office before submissi on. 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 regio nal 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 4 0 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 measur es 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 complet eness 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 th e 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 b y 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.

Ef fect 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 requirem ent , 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 Divis ion, 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 Paral lel 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 find s that a state has
failed to make a required SIP submi ssion ; ( 2) the EPA find s that a required submi ssion was incomplete ; or ( 3) the EPA disapproves a required SIP submi ssion 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 refer red to as a " FIP clock

. " In order to remove the
EPA's FIP obligation, the state must make a SIP submission that meet s 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 fo r 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 T AR , 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 infras tructure T IP. Under the T AR , 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, t he EPA has promulgated new

s ource 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 wh ether 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

p ermit 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 au thority 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 pro mulgated 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 secti on pertaining t o 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 me t 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 o n 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 i f any for infrastructure SIP submissions.

### 15

evaluate whether the submission, in fact, contains existing or new substanti ve 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 agenc y 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 exi sting 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 C AA section 179 because such a finding
of failure to submit a complete SIP wa s 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 t hree scenarios may prompt
differ ing 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 submit ted. 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 element s that wer e 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 ma k e s a SIP
submission that reference s the existence of a PSD FIP and assert s that the exist ence of the FIP i s 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 th ese 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 s ection 110(a)(2) with respect to Elements C and J . However, when the SIP deficiency is be ing 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, t he 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 add ressed 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 submissi on 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 element s 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 operati o ns

. As in the first scenario, the EPA may be able to a pprove 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 agencie s 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.” Wh ile 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 sit uation should read the section on Element D(i)(II) and
consult with their respective EPA Regional Office s 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

II I. 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 s ection II
, the EPA interp rets th e 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 des ignated
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 el ements 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 abo ut how to make infrastructure SIP submissions to meet these remaining relevant elements, as applicable.

Element A

– Section 110(a)(2)(A): Emission L imits and O ther C ontrol M easures

Each such plan shall

– (A) include enforceable emission limitations and o ther 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

re quirements 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 releva nt 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 th at NAAQS will
be due on a different schedule f rom 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 e lements of CAA

### 19

110(a)(2) a ffect i nfrastructure 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. The se 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 long standing 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 emi ssion limit ation s 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 inf rastructure 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 potentia lly deficient

26 For further description of EPA ' s SSM Policy
, see , e.g., a memorandum dated September 20, 1999, titled, " State Impl ementation 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 Start up, 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 enforc ement 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 po sition 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 PM 2.5 National Ambient Air Quality Standards." In section II of the preamble, the E PA 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 t o 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 prov isions, or special emissions limitation s 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, n ew p rovisions as part of an approvable SIP submi ssion can not allow a n 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
th e EPA or citizens. E xcess emissions , including those occurring during SSM periods, might prevent attainment and maintenance of the NAAQS and compliance with other applicable CAA requirements . The EPA view s all periods of excess emissions as violations of t he 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 th at otherwise are inconsistent with the EPA’s interpretation of the CAA as outlined in its SSM P olicy, 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 rev ise 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 polic y regarding director ' s d iscretion

. 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 Particulat e 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
maintain ed that the CAA does not require that new infrastructure SIP submissions address

existin g 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 tr iggered 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 w ith 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 SS M and director ' s discretion may be dealt with separately, outside the context of acting on a n 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 (Nov ember 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 (5 th 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 p art 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 n otice 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 po sition 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; Wis consin; Infrastructure SIP Requirements for the 1997 8

- Hour Ozone and PM 2.5 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 emi ssions 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 A ir Q uality M onitorin g/ D ata S ystem

Each such plan shall

– (B) p rovide for establishment and operation of appropriate devices, methods, systems, and procedures ne cessary 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 a n 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 provisi ons 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 t he relevant NAAQS pollutant(s) at appropriate locations in

a ccordance with the EPA's ambient air quality monitoring network requirements. See the EPA's Ambient Monitoring Technology Information Center (AMTIC) web site
, 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 dat a to the EPA' s Air Quality System (AQS) in a timely manner in accordance with 40 CFR part 58. Under 40 CFR part 58, sub part B ("Monitoring Network") , for example, see 40 CFR 58.16 ("Data submittal and archiving requirements" )

.

• Provide to the EPA Regional Office infor mation regarding air quality monitoring activities, including a d escription of how the air agency has complied with monitoring requirements, a nd an explana tion 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 b ut 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 plan s 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 provision s 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 a s required by 40 CFR 51.231.
For any new or revised NAAQS, the infrastructure SIP submission should provide
assurance that the state wi ll meet changes in monitoring requirements related to the new or revised NAAQS.

Element C

– Section 110(a)(2)(C): Programs for E nforcement of C ontrol M easures and for C onstruction or M odification of S tationary S ources.

Each such plan shall

– (C) i nclude a program to provide for the enforcement of the measures descri bed 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 qualit y 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 gene ral 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 be low and in Section II: “ Which e lements of CAA 110(a)(2) a ffect
i nfrastructure SIP s? ”
, to remain subject to those FIPs as the remedy for infrastructure SIP
deficiencies for a new or rev i sed NAAQS

.

Enforcement : To satisfy this subelement, an infrastructure S IP 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 pre

construction 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 ne w 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 modific ations 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 g enerally applies to minor stationary source s and minor modification projects a t 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 pre

construction regulatory requirements.

35 As explained in sect ion 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 reg arding 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 nonatt ainment 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 source s: 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 d etail below, to be approvable the infrastructure SIP submission should also address any new or revised PSD permit ting program requirements for which the deadline for SIP submissions has passed as of the date of EPA’s proposed action on the
infrastructure s ubmission

.
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 forma tion 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 permit ting program in place covering the requirements for all re gulated 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 permit ting 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 por tion of Element C also applies in full to the PSD portion of Element J.

37 See
, e.g. , 77 FR 64737 (Oct ober 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 referenc e 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) impact s the ability of the air agency and the

EP A to address certain substantive issues in the infrastructure SIP submission in a reasonable
fashion. It is appropriate for the EPA to take int o consideration the timing of related requirements for SIP submissions in determining what an air agency can reasonabl y 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 permit ting 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 permit ting program revision requirement s 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 submi ssion. 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 permit ting program regulations required by another collat eral 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 n ot 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 st ructural 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 in frastructure 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 requiremen t 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 pro gram 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 PM 2.5 NAAQS.

40 See
, e.g. , “Approval and Promulgation of Implementation Plans; Mississippi: New Source Review

– Prevention of Significant Deterioration; Fine Particulate Matter (PM 2.5 ) National Ambient Air Quality Standards ,” 77 FR 59095 (Sept ember 26, 2012) , a recent infrastructure SIP approval action that address ed a state’s PSD SIP status with respect to the 200 8 PM 2.5 NSR Rule.

### 28

sources within its jurisdiction are subject to the federal PSD permitting requirem ents in 40
CFR 52.21 . Some air agencies are subject to a FIP for PSD permitting of all regulated NSR pollutan ts, 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 issue s PSD permits or , in instances wher e federal authority is delegated by the EPA Regional Office to it, the state or local air agency issue s 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 pre ference to operate under an EPA

administered PSD permitting program. M any 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 a n 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.

M andatory sanctions would not apply under CAA section 179 because the failure to submit a
PSD SIP is neither with re spect to a submission that is required under CAA title I part D, nor in
response to a SIP call unde r 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 maintain ed that the CAA allows the EPA to approve infrastructure SIP
submission s that do not implement the NSR Reform R ules 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 we re published in the Federal Register at 67 FR 80186 (December 31, 2002).

### 29

addressed the NSR Reform R ules 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 implem ent 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 generally 43 

### applies to any NAAQS in effect on the date a PSD permit decisio n 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 become s 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 PM 2.5 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, th e 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 P ollution T ransport

Each such plan shal l

– (D) contain adequate provisions

– (i) pro hibiting, consistent with the provisions of this subchapter , any source or other type of emissions activit y within the S tate from emitting any air pollutant in amounts which wil l

–

(I) c ontribute significantly to nonattainment in, or interfere with maintenance by, any other S tate with respect to any such national primary or secondary a mbient air quality standard, or

(II) i nterfe re with measures required to be included in the applicable implementation plan for any other S tate 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 subsec tions : (D)(i)(I) and (D)(i)(I I ).
S ection 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 requ irements 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 a nd 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 su bmission.

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 a ir quality. Because part C requires an air agency’s PSD permit ting 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 i nfrastructure 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 s ubject 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 regulate d 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
consid er 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 EPA

appr oved 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 r evisions to address nonattainment NSR requirement s 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). Th erefore, 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. Als o, if an air agency makes a submission indicating that i t issues permits pursuant to 40 CFR part 51 a ppendix S in a nonattainment area because a nonattainment NSR program for a p articular 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

ap proval 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 pr ogram 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 provision s and/ or physical condition are adequate to prohibit interference with oth er 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 ap proval 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 PM 2.5 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 permitt ing 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 secti on 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 infrastructu re 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. S ignificant 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. Furt hermore, 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 agen cy’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 a n air agency’s confirmation in its infrastructure SIP s ubmission 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 interfer ing 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 p rogress 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 w ould 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 

### T he presence of a regional haze FIP does not ne ce ssarily 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 infra s tructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies’ plans to protect visibility. Such a n infrastructure SIP submission would need to include meas ures 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. I f 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 disappro val 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 requi rements 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 Trans port 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) Inf rastructure 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 additi on, 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 re spect to a submission that is required under C AA title I part D. Nevertheless, the EPA continues to encourage all air agencies that may be subject to full or partial FIP s 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 P ollution A batement and I nternational A ir P ollution

Each such plan shall

– (D) contain adequat e 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 e nsures 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 loc ate (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 pro viding 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 c ontain provisions requiring

e a ch new or modified major source required by CAA title I part C to be subject to PSD to no tify 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, t he notification requirements apply to potential impacts from all PSD

- regulated pollutants, no t 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 i s locate d

.
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 s tate that is subject to a FIP for its PSD program may not have an infrastructure SIP
that satisf ies 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 f ind 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 requirement s 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 furth er action with respect to notification under this element, because the federal PSD rules should fully address the notif ication 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 req uired 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 re spect 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 t he 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 s ubsection 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 an d] 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 complia nce 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 bei ng 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 notificat ion 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 n ote 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 s tate 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 infrastr ucture SIP with respect to E lement 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 a ir 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) incl ude 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 t he 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. 1 15. (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 t o 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 wit h 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 an y 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 ne w 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 re quirements 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 find ings 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 R esources and A uthority, C onflict of I nterest, and O versight of L ocal G overnments and R egional A gencies

Each such plan shall

– ( E) provide (i) necessary assurances that the S tate (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the S tate or general purpose local governments for such purpose) will have adequate personnel , funding, and authority under S tate (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of F ederal or S tate law from carrying out such imp lementation plan or portion thereof), (ii) requirements that the S tate comply with the requirements respec ting State boards under section 128 , and (iii) necessary assurances that, where the S tate has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the S tate has responsibility for ensuring adequate implementation of such plan provision

.

### 40

Sube lement (i) : T he SIP should provide n ecessary assur ances 49 

### 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 r esponsibilities 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 availabl e 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 s ection 110(a)(2)(E) with respect to resources, see 40 CFR 51.280 ("Resources" ). Further, the infras tructure 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 th e EPA's regulations at 40 CFR part 51, subpart L ("Legal Authority") and subpart O. In accordance with the EPA's regulations at sub part L, the infrastructure SIP submission should show that the responsible org anizations 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 inclu des 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 requir ements of this element and an equivalent set of statutory, regulatory, and/or non

regulatory provisions, as appropriate. When an air agency’s infrastructure submission more clearly identifies e ach CAA element being met by the SIP submission and explains ho w i t is met, the EPA can more easily determine whether the submission is complete and approvable with respect to that element.

### 41

I n 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

se ction 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

rega rding 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 pro vide 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) wou ld 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 Assistan t Administrator, Office of Air and R adiation, a nd Becky Weber, Director, Air and Wa ste Management Division, Region 7, to Air Division Dir ectors, Regions 1

- 10, titled " Guidelines for Preparing Letters Submitting State Implementation Plans (SIPs) to EPA and for Preparing Public Notices for SIP s. "

### 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

r equirements. 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 s tate 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 amen ding 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 sectio n 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 i s 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 mem bers 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 w hich 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 . Accordin gly, 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 a pproving 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 S IP.

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 s everal infrastructure SIP submissions, the EPA has more recently proposed certain interpretations of section 12 8 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, consi stent with the statutory requirements.

52 The EPA expressed this interpretation in a proposed action on the infra structure 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 Nov ember 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 Mat ter 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 I nterest 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 a pply 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 alloca tions of authorities and responsibilities with respect to permits and enforcement orders. Thus, the EPA recommends that air agencies consult with their respective EPA Regional Office s 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.

Sube lement (iii) : T he infrastructure SIP submission should provide necessary

assurances 55 

### that the state retains responsibility for ensuring ad equate 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 th at 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, regulator y, 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 S ource M onitoring and R eporting

Each such plan shall

– (F) require, as may be prescribed by the Administrator

– (i) t he installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationar y sources to monitor emissions from such sources,

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

related data from such source s, and

(iii) correlation of such reports by the S tate agency with any emission limitations
or st andards established pursuant to this Chapter , which reports shall be available at reasonable times for public inspection

.
Sube lement (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 submiss ion 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.

Sube lement (ii) : To address periodic reporting requirements, t he 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 emissi ons reporting requirements: 40 CFR 51.211 (“Emissions reports and recordkeeping”) ; 40 CFR
sections 51.321 thro ugh 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 m ade 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, t he 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.

Sube lement (iii) : The infrastructu re 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) correlation 57 

### by the air agency o f 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 s ubpart 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 repo rts 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 li mitations 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 a nd the amounts of such emissions allowable under the applicable emission limitations or other measures."

### 47

Element G

– Section 110(a)(2)(G): Emergency P owers

Each such plan shall

– (G) p rovide for authority comparable to that in section 303 and adequate contingency plans to implement such authority

.
Sec tion 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 E PA has interpreted section 110(a)(2)(G) as impos ing two basic requirements for purposes of an
infrastructure SIP submission.

To meet Element G requirements, t he best practice for a n air agency submitting an
infrastructure SIP would be to submit, for incl usion 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 r equi rements 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 provision s , 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.

T he air agency is also required to submit, for approval into the SIP (if not already part of the SIP), a n adequate contingency plan to implement the air agency’s emergency episode authority. This ca n 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 PM 2.5 

### 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 impl icitly 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,
th e 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, i f 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; o therwise, the submission should include the substantive SIP revisions necessary to meet the emergency contingency plan requirements with respect to that pollutant.

Specifically, if an a rea is classified as a Priority I region for a specified pollutant, th e 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 implementatio n plan for a P riority 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 fol lowing: (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 D ivision Directors, Regions I through X, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 Fine Particle (PM 2.5 ) 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, publ ic 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 sectio n. Areas classified as Priorit y 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 lis ted, are classified as Priority III regions. These areas are subject to the requirements of CAA E l ement G. However, according to 40 CFR 51.152(c), areas c lassified 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 E lement G.

In a final rulema king signed on December 14, 2012, to revise the PM 2.5 

### NAAQS, t he

EPA retained the pre

- existing level of 500 μ g/m 3 

### , 24

- hour average, for the Air Quality Index (AQI) value of 500 and did not establish an SHL for PM 2.5 

### . 61 

### In addition, there is currently no

es tablished SHL for Pb. For those pollutants for which there is an SHL, t he 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 reduc e emissions from the source(s) at issue (if necessary by curtailing operations of Pb or PM 2.5 

### 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 Oc eanic and Atmospheric Administration ( NOAA )
, National Park Service ( NPS )
, and tribal, state, and local agencies
, developed the AIRNow w eb site ( see http://www.airnow.gov ) to provide easy public access to national air quality information. The w ebsite offers daily AQI forecasts as well as real

- t ime AQI conditions for over 300 cities across the U

. S

. and provides links to more detailed s tate and local air quality

w ebsites.

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/20 12

- 30946.pdf

.

### 50

PM 2.5 

### 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 it s SIP submission. Additionally, because smoke from fires has the potential to be the cause of extremely high levels of PM 2.5 

### , t he EPA recommends that air quality

- triggered

responses incorporated into an Emergency Episode Plan for PM 2.5 

### be developed through a collaborative process working with s tate and t ribal air quality, forestry
, and agricultural agencies,
f ederal land management agencies, private land managers
, and the public.

An episode in which concentrations of NO 2 

### or SO 2 

### 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 NO 2 

### NAAQS or
an SO 2 

### NAAQS may specify the facility

- specific or equip ment

- specific measures to be taken in
the event of an air pollution emergency.

In accordance with 40 CFR 51.1 52(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 emiss ion 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 Office s

.
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 r egulations provided in appen dix 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 affec ted areas. States with Priority I, IA, or II areas are directed by sub part H to have emergency episode contingency plans that contain alert levels for
SO 2 

### , PM 10 

### , carbon monoxide, NO 2 

### , and ozone, but air agencies are not required to adopt the appendix L example regulations.

### 51

Element H

– Section 110(a)(2)(H): S IP R evisions

Each such plan shall

– (H) p rovide for revision of such plan

– (i) f rom 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 a n air agency submitting an infrastructure SI P 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 at taining suc h 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 regu lation in its SIP, then the air agency should provide a reference or citation to the authority provision s , 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 accomp any the SIP as required by 40 CFR 51.231. More information may be found u nder 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 woul d meet the intent of this best practice.

### 52

Element I

– Sectio n 110(a)(2)(I): Plan R evisions for N onattainment A reas

Each such plan shall

– (I) i n 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 sub section 110(a)(2)(I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I part D
, are s ubject to a different submission
schedule 63 

### than th ose 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 s ake, 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 G overnment O fficials, P ublic N otification, and PSD and V isibility P rotection

Each such plan shall

– (J) m ee t 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 designatio n for some elements.

### 53

Sec. 12 1. 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 measu re 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 S tate 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 app lies, 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 Admin istrator 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) t o 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 ju dicial 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 proce ss for consultation with general

- purpose local governments, designated orga nizations of elected officials of local governments, and any federal land manager having authority over federal land to which the plan applies, consiste nt 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 m emorandum of u nderstanding
, then the statute would need to be included in the SIP. If a regulation or other document meeting
the C AA 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 12 7. (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 inc lude 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 s ubsection (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 earl ier in th is 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 r egional h aze
p lanning

. 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, the se requirements
under part C do not change. The EPA believes that there are no new vis ibility protec tion 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 visibi lity 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 addre ssed , 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 Q uality M odelin g and S ubmission of M odeling D ata

Each such plan sha l l

– (K) provide f or

– (i) t he 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

.
T o meet Element K, t he best practice w ould 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 element 64 

### : (1) conduct air quality mode ling 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 o f 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 provision s , along with a narrative explanation of how th ey 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 F ees

Each such plan sha ll

– (L) r equire the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit re quired under this chapter , a fee sufficient to cove r

–

(i) t he 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 a nd 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 regu lations 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,

a ppendix 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 t itle 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

sources 65 

### (along with the reasonable costs of implementing a nd 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.

E lement M

– Section 110(a)(2)(M): Consultation and P articipation by A ffected L ocal E ntities

Each such plan sha l l

– (M) p rovide 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, befo re 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 submissio n 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 t o participate in that public process.

For Further Information
If you have any questions concerning this guidance, please contact Mr. H. L ynn 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 e lements of CAA 110(a)(2) a ffect i nfr astructure SIPs ?”UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 27711



### SEP 2 5 2009

OFF I CE OF MEMORANDUM AIR QUALITY PLANNING AND ST ANDARDS

SUBJECT:

FROM:

TO: Guidance on SIP E lem ents Required Under Sections 11 O(a)(1) and ( 2 ) for the 2 006 24-Ho ur F ine Particle (PM 2. 5 ) Nat ional Ambient Air Quality Standards (NAAQS)

William T. Harnett, Director

# {J)~ 

# T:**~** Air Quality Policy Division ( C539- 0l)

Regional Air Divi s ion Director s, R eg i ons 1-X

The purpose of thi s m e morandum i s to provide g uidance on addressing the

" infra s tructure " element s for State Implem e ntation P l ans (SIP s ) req uir e d under sections 110( a)(l) and 110(a)(2) ofthe C l ea n Air Act ( CAA ) for the 2006 24-hour 

### PM 2.s NAAQS (71 FR 61144). On December 18 ,2 006
, E PA re v i se d th e 2 4-hour average PM2.s primary and secondary NAAQS from 65 micrograms p er cubic meter ()l g/m 3 ) to 35**~t g/m** **.** Under sec tion s 11 O( a )(1) and 11 O( a )( 2 ) of the CAA, after promul ga tion of a new or revi se d NAAQS
, each s t a te i s requir ed to s ubmit a plan to pro v id e for th e impl e m e nt a tion
, m a int e n a nc e, a nd e nfor ce m e nt of th a t NAAQS

.

States a r e**r~quired** to address ba s i c S I P r e quir e m e

. nt s ( see Attachment A), to assure attainment and maint e n a nc e ofthe standards

. By l aw , SIPs to address sec tion s 110( a) ( 1) a nd 11 0( a )( 2) a re to b e s ubmitt e d b y s t a t es within 3 years after promulgation of a new or revised standard. 1 In many cases the section 11 0( a)(2) SIPs for the 199 7 

### PM 2.s NAAQS m ay a lr eady b e adequate to impl e m e nt the 2 006 2 4

- hour PM 2.s NAAQS. Many of the required sect ion 11 0( a )( 1) and 11 0( a )( 2 ) SIP e l e ment s relate to th e ge neral informa t ion a nd authorities that constitute th e

" infra s tructur e" of a state's a ir qualit y m a na ge m e nt pro g ram , and t h ese ha ve b ee n in p l ace s in ce th e initial S IP s were s ubmitt ed in r es pon se to the

· 1 970 C le a n Air Act. However, it i s s till the responsibi lit y of eac h sta te to make thi s determination for each new or r ev i se d NAAQS

. 

### Determining C ompl ete ness of State Submittals

As required by sect ion 110( a)(l), s tate s will hav e to review and revi se, as appropriate
, th e ir ex i s tin g particu l ate m a tt e r SIPs to e n s ur e that they a r e a d e qu a t e to a ddr ess th e 2 006 2 4

- hour PM 2.s NAAQS. S tat es s hould
, in consu lt ation with EPA R eg ion a l Offices, r e fer to app li cab l e EPA regu l ations g overnin g SIP su bmitt a l s in 40 CFR Part 51

- e.g

. , Subpart H ("Pr eve ntion of

1 A lth o u g h the rul e f or the revi se d PM 2

. 5 s t a nd ard ha s a n effec ti ve date of D ece mber 1 8
, 2 00 6, th e rul e was s i gne d b y th e A dmini s trator a nd publi ca lly di sse minat ed o n Sep t embe r 2 1
, 20 06. Th e r e f o r e, th e d ea dlin e for s ubmittal of 11 0(a ) S IP s for th e 2 006 24- h o ur PM 25 NAAQS i s Se pt e mb er 2 1
, 2 009 ba se d on t h e s ignatur e dat e

.

Int ernet Addre ss (URL) • http ://www.epa.gov
R ec yc l e d/R ec y c l a ble • P rint e d wHh V ege tabl e O il Base d I nk s o n Re cyc l ed Pape r (Minimum 25% Pos t co n s um e r )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 PM 2 ,; 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 PM 2

. 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 PM 2

. 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 PM 2 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 PM 2

. 5 SIPs for NSR/PSD is May 201 I. Thus, states are not required to adopt the May 2008 rules for the5

purposes of satisfying the section llO(a) SIP requirement by September 2009 and may rely instead on implementing a transitional program for PM 2

. 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 PM 2

. 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 PM 2

. 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 PM 2

. 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.pdf7

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 PM 2 .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 PM 2

. 5 NAAQS and the 2006 PM 2

. 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 PM 2 .; 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 Elements 5

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 S T ATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460



### APR

- 6 2011 OFFICE OF AIR AND RADIATION

SUBJECT: Regional Consiste ncy for the Admini s tr a tiv e Requir eme nts of

FROM:



### TO : State Im pl eme nt at i on Plan Su bmitta ls and the Use of"Lette r Notices"

Janet McCa b e, Deputy Assi s tant Admini st rator )E:(l

..... Office of Air & Radiation Regional Administrato r s, Regions I

- X

The Nat i ona l S tat e Implementation Plan (SIP) Reform Work g roup is a coope r ative initi ative betw ee n EPA, the Na tional Association of Clea n Air Agencies (NACAA), and th e Environmental Counci l ofthe States (ECO S), and i ncludes representatives from Sacramento, Ca l ifo rn ia; Linn County, I owa; Kentucky; Maryland ; Neva d a; New York; Ohio ; Sou t h Carolina, Uta h and Wisconsin, as we ll as EPA's Office of A ir and Radiation (OAR), EPA Reg i ons I
, III and VII and th e ECOS and NACAA He a dqu a rters offic es

. It i s facilitated by Jim Blizzard of ECOS
, Nancy Kruger ofNACAA, and Carey Fitzmaurice of OAR

. T h e ECOS an d N ACAA

me m berships hav e id entified a number of SIP-related issues for impr ov ing the en tir e "S IP Pro< :ess" fro m the tim e EPA promulgate s a n ew or re vised NAAQS through to the t i me of fo rmal submitta l s to Regiona l Offic es fo r complete n ess d e t erminations and rulemakin gs

. G i v en th ese**issUt ~s**  identified b y EC OS and NACAA, as well as our ow n recogniti o n that th e S IP p roce ss
ne e d s to b e improved and stream l i ned, there are a n umber o f ongoin g i nitiative s relat e d to SIP Ref o rm. Many of the ECO S/NACAA-identified SIP r eform issue s i nvolve EPA pro vi ding s tates and l oca liti es the opportunity to participate upfront in suc h thi n gs as designation proced ure s, imp l e m en tation rul es, and other forms of national SIP gu idance relat e d to modelin g, weigh t of evid e nce ( WOE)
, etc. Ta c klin g these SIP reform i ss u es requires act i o n on the part of O AR, and

r e pr e se ntatives from OAQPS are actively participa t ing on th e Workgrou p

. However, man y of the ECO S/NACAA -identified issues ce n ter a r o und Re g i o nal consi stency. Th e Reg i onal Air Division Dir ectors an d Air Program Manage r s agre e that address in g these i ss u es i s primarily the Reg i ons' r espon sib ilit y.

T he purp ose of thi s memorand um i s to addre ss th e first group of issue s id e ntified b y the Workgroup. Th ese issues involve consistency between a ll ten R egiona l Office s and r e pr esen t the first increment of s uccess in this co ll ective effort to im p rove th e SIP process. At t ac hment A's fo c u s i s t o standardize what eve ry Regional Office requires from it s State, L oca l
, and Tribal agencies when tho se agenci es forma ll y submit a SIP r ev i s ion (her eafte r the term State will be used to mean all tho se agen cies formall y authorized to sub mit SIP s an d TIPs) and to si mpl ify

lntemet Address (UR L ) • http://www

. epa

. gov R ecycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Postconsumer
, Process Chlorine Free Recycled Paperthose requirements where possible. It addresses t h e issue raised b y ECOS and NACAA urging EPA to reduce the n umber of hard paper cop ie s required when submitting SIP revis ions.

The other atta c hm e nts to this memorandum cover issues relat e d to th e public no tic e and hearing requirem e nt s fo r SIP r evis ions
, the diff e r ences between Clean Data Determinat ion s and Red!signations, and the types of S IP revisions eligible for approval by "Lette r Not i ce" ver s u s f ull

· 'n otice and comment" rulemaking.
Nothing in the attachme n ts to thi s memorandum is intended to r equire changes to t he Clecn Air Act (CAA), the curre n t Code of Federal R egu l at ion s (CFR) at 40 CFR Part 51 or Appe ndi x V to Part 51. However, wi th regard to Attachment A there r e m a in s the ne e d to satisfy the requirements of 4 0 C FR Part 51. 1 03(a) as t o the number and types of copies of a S IP re v ision that mu s t be s ubmitt ed by the Sta t e to EPA

. 4 0 CFR Part 51.103(a) says the S t ate mu st pr o vid e

" fiv t ! har d copies or at l east two hard copie s with an e l ec tronic version of th e hard copy (unless otherw ise agreed to by the State and Regional Office) of the plan to the approp ri ate Regional Offi c e wit h a le tter g i ving not i ce of s uch action. I f the State submits a n e l ectron i c co p y, it must b e a n exac t duplicate of th e hard copy." Given the flexibi li ty afforded in Part 51. 1 03 (a ), comp li ance w ith its requi r eme nt s c an be achieved by each Regional Office having a reco rd of an agreemen t b etween th e Region and it s States th at the procedures o utl ine d in Attachme nt A be fo ll o wed w hen su bm itti n g a SIP rev i sio n. The Office of General Counse l (OGC) ha s a d vised that all t en Regions cou l d eas ily pursue such an agreeme nt with a presumptive l e tter fr om each Reg
, onal Ad mini s tr a tor (RA) to the States in his/her Region, i.e. "We ar e agree in g t o the fo ll owi ng procedure s f or S IP subm ittal s from you, and ass ume t h at you agree to th ese procedure s unless w e hear otherwise from you by (da te ] ." Suc h letters would enclose thi s memorandum and its attachments. A model letter has been d evelope d fo r use by all ten Regions.

T h e attachments to this memorandum h ave the concurre nc e of all te n Region a l Air Div i sio n Di r ectors, OAR and OGC. Th e r e i s consensus among a ll te n Reg i o n s to i mp l ement thes**~** stand ardi zed proce du res as quickly as possib l e via the RA letter described in the prec eding paragraph. The ECOS/NACAA memb ers of th e Na tional SIP Reform Workgroup were given the opportunity t o pr ov id e feedback on these proc ed u res and ha ve endorsed their implementation

as a significant step in our S IP reform efforts

. There will be a dditional efforts to address the remaining and any future i ssues concerning Reg ona l co n sistency and communica tion s with States. For exam pl e, the Regions will work toge t her to develop pr oce du res to:

1. Requir e t h e same level of detail and documenta tion in the technical portions of SIP submittals from a ll States

.
2. Provid e ea rl y, upfront and consist e nt guidance to all S tat es regard in g how to int e rpret and meet th e requiremen t s of impl eme ntation plans and other natio na l rul es.

3. Wor k with M ulti-jur is dictional Organizat i ons (MJOs) and Regional P l anning Organizations (RPOs) that are pe rf orming th e technical wo r k (em i ssion inventories
, modeling
, etc.)
, deve l o ping model rules
, and de signi ng SIP t e mpl ates for the ir member States such that when the States submit their SIPs th at include th ese

2MJO/RPO work products there are no EPA requests for additional submissions and/or revisions late in the SIP submittal process.

The Region a l memb ers of the longs t andin g SIP Processing Work Group (which is sepa rate from the Nation al SIP Reform Workgro up) are contacts to whom qu est ion s regarding this memorandum may be addressed. They are as follows:
Reg i on 1

- Donald C ook e Reg i on 2

- Paul Tru c han Reg i on 3

- H arold F r ankford Reg i on 4

- Nacosta Ward/Sara Waterson Reg i on 5

- Christos P anos Reg i on 6

- Car l Young Reg i on 7- Jan Simpson Reg i on 8

- Kathy Do l an Reg i on 9

- Cynthia Allen/Li s a Tharp Reg i on 10

- Donna D e neen

cc: Regional Air Divi s ion Directors Regional Air Pro g ram Managers Regiona l Counsels for Air OAR Office Directors in OAQPS, OT AQ
, and OAP OGC Air Office ECOS/NACAA S IP Reform Wo r k G r oup Members (for d i stribution to full memberships)

3

### Attachment A- N umber and Types of Copies of SIP Submittals Required to be Submitted

lde 1 1

tified Constraints:

Cur r ently the Federal Courts only recognize the "paper" (hard copy) of the rulemaking docket as the o fficial 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 t i me , each EPA Regional Office must create and maintain a paper docket, including the State submitta l
, as well as theE-Docke t to upload in the Federal Document Management System (FDMS) f or each SIP-related rulemaking. It is also, therefore, neces s ary for the letter submitting the**~IP** revision to be a signed, dated paper original letter from the State official authorized to

s ubmit SIP revisions.

EP A also needs an electronic copy of the S t ate submittal in searchable. pdf format to l oad into the FDMS. The Regions are prepared to generate this form of elec t ronic copy in those in stances when a S t ate i s unabl e to do so.


### SIP Submitta l s :
l. One paper copy of the SIP revision submitted to EPA by an or i ginal, dated le tte r signed by the State official authorized to submit SIP revisions and a d dressed to either the R e gional Administrator (RA) or the Director of t he Air Di v i sion 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 r equirements for complete SIP revisions found at 40 CFR Part 51, Appendix V, 2.1, may be met by state ment s made in the submittal lette r s.



### 2. One electronic copy of the entire SIP rev ision 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 Sta t e website at the same time the paper copy is submitted. It makes it much easier for EPA i f the electronic c opy 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 t he Regional Office is an exact duplicate of the hard copy.

· 1. If the State is unable to provide an e le ctronic copy in searchable. pdf format, t h e 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 th e F DMS. Likewise, if a State only submits a paper copy and has no means of making an elec t ronic 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

.

45. Even for the s i ngle official paper copy identified under number 1. above; States do not have to submi t paper copies of large data files such as ambient air quality data, emissions i nven tories, 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. S uch disks s hould be s ubmitted with the official paper copy in order for the official SIP submittal to be comp l ete

. EPA cannot "comp lete" the official submitta l for the State by accessing such da t a files from an
e

- mai l
, FTP or website.



### 5

. "Model" SIP submittal letters are available from the Regional Offices.

CaYeats:

l

. E P A is able to "retrieve" the "unofficial" electronic copy v ia e -mail
, from an FTP or a state website only because the State s ubmitt e d the official paper copy. Whatever material EPA receives v ia e

- mail or accesses from an FT P or website is not the official submittal.

2. The State should identify any copyrighted material in its subm i tta l as EPA does not place such material on the web when creating the E-D ocket for loading into FDMS

.

3. States are urged not to include any material considered Confidential Business Information (CBI) in th eir SIP subm i tta l s. In rare ins tances where such information is

nece ssary to j ustify the control re qui remen ts and emission limita t ions established by the SIP revision (e.g., for a source

- spec ifi c SIP revision)
, Sta tes should confer wi t h their Regiona l Offices prior to s ubmittal and must clearly identify suc h material as CB I in the

s u bmittal itsel f

. EPA does not p l ace such mater ia l in either the paper docket or the web when creating theE

- Docket for loading into FDMS. However, where any s uch material is considered emissio n s d a ta within the meaning of Section 1 1 4 of the CAA, it cannot be withheld as CBI and must be made pub li ca ll y availab l e.

Notes: T he us e 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 app l ic at i o n

. Futlue Activities: EPA is committed to work w i th the Department of Justice to con t inu e to purwe options for reducing and eventually eliminating th e paper (hardcopy) s ubmi tta ls of SIP revi >ions in favor of e l ectron i c 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 noti c es and public hearings. However, States may implement these reform opportun it ies only to the t.! xten t 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 mus t have le gal 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 sat i sfy 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 o r der to satisfy the CAA and 40 CFR Part 51
, the notice must clearly s tate that the regulations and/or documents that are the subject of the public notice will be submitted to the Un i ted States Environmental Protection Agency to be included in or to revise the Sta t e 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, Sec t ion 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 t i me 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 schedu l e a public hearing throug h 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 t o schedule a public hearing in the original public notice. Under 40 CFR part 51.1 02(a), the

6State may cancel the public hearing if no reques t for a public hearing is received during the 30-day notification per i od, 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 c a ll 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 in t ends to rely upon to justify the approvability of the SIP revision.

Caveats :

As n oted 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 1 1 0 of the CA A and 40 CFR Part 51 requirements. This usually means that the public notice and hearing

are held on a propose d 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 h a ve followed all ofthe procedural requirements of the State's law and constitutio n in

c o nducting and completing adoption/issuance of the SIP revision. So if State l aw 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 regulation s to sa t isfy 40 CFR Part 51.

EPA is aware that under State law certain types of SIP regulations are not req u ired 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 St a te regulations satisfy a specific o b ligation 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 regu l ations being submi tt ed as a SIP revision.

Not e s : EPA Regional Offices will provide "model" public notices for States to use s a tisfy Section 110, and 40 CFR Part 51.102 upon request.

7

### Attachment C- Determina tions of Attainment by 

### an Area's Attainment Date



### v. Clean Data Determina tions & 

### Redesignation Requests and Maintenance Plans

Intr oduction : The issue ofRe design ations v. C l ean Da ta Determin a tions and w h at a State must pro v i d e to an E P A Regional Office fo r eac h type of submittal has be e n raised b y the States to EP A for both clarification and Regional consistency. These are very different types o f actions and achieve different r esu lt s as explaine d in this Attachment.

The r e is a lso a distinc t i on between a Determin ation of Att ainment by an area's atta inment date

a nd a Clean Data Determination which is explained below.**The ~**  Distinction between a Det ermination of Attainment by an A r ea's Attainment Date and

a Clean Data Determination

It i s important to disti n gu i s h between two differen t types of a tt a inm ent determinations that EPA makes for areas that are designated non attainment. Both types r eq u ire notice-and-comment rule m aking.
( 1) De terminati ons of A ttainment b y a n area's a tt a inment date
, and ( 2) Determinations of Atta inment for purp oses of sus pending th e State's obligation to submit certain planning SIPs linked to attainmen t (so-called C l ean Data Determinations).

Wif1 respect to Type 1, the C l ean Air Act req u ires EPA to de termine whether a nonattainment

area has atta in ed the s t andard as of its applicable attainme n t date. These Determinations of Attainmen t pro vide a h istorical snaps h o t-- they evaluate attainment only as of an are a 's atta i nment de a dlin e, and are issued to comply with Sectio n 181 (b)(2) for ozone and Sections 1 72 and 179 fo r PM 2

. 5 • Determina tions of Attainment by an attainment d ead lin e are se p ara te and independent ofthe secon d typ e of attainment determina t ions, Clean Data Determinations, which

are not compe ll ed by the CAA.

Wit h respect to T ype 2
, Clean Data Determinations originated in EPA's Clean Data Policy, but

are now l i nked t o EP A regulations. Th ese determinations in voke e i ther 40 CFR Part 5 1.918 for

ozone or 51.1 004( c) for PM 2

. 5

. Un lik e determinations by an attainment deadline
, C l ean Data Det e rminations are su b ject to revisio n b ased on c h anges in ai r qua lit y , and must be sus t ained b y
co n tinui n g a ttainment. They function to suspend a State's ob li gation to submit ce rt a in

a t

ta inment-related planning SIP obligations for a designated nonattainment area. The suspension continues until EPA determines that a violation ha s occurred, or E PA r edes i g nates the area from nonattainment to attainment.

Tht: se two types of determinations are conceptually an d legally distinct. They arise f r om diff e rent a uthori t i es and r esult in different consequences. How ever, they both addres s a ir q u a li ty and c an be based on t he same or overlapping years of a i r quali t y data

.

8Clnn 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 Determinat i on requires a demonstration that what is needed is for the most recent 3 years of complete air quality data have been entered i n to AIRSAQ S, have been quality assured, and indicat e attainment. In addition
, the air quality data

ava i 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 in ccmp l e t e data as of the time of final rulemaking differs from criteria pollutant to criteria pollutant depending u pon the form of the standard, the Regional Offi ce will work closely with the S tate to ensure that the available data at the time of fina l rulemaking is considered consistent wit h continued attainment.

The EPA Regional Office will cond uct the notice and comment rulemaking to make t he Clean Data Determination. The key issues in the rulemaking action are the validity of the ambient air qua l ity data themselves and the location and operation of the monitor(s) from which t hose data have been collected in order to ensure that the data are comp le te, quality assured and repr es entati ve of the des i gnated nonattainment area.

Res u lts: Upon EPA's promulgation of a final Clean Data De t ermination for a nonattainment
area, the obligation fo r the State to submit for such an area the attainment demonstration, assccia ted reasonably availab l e control measures , reasonable further progress plan, contingency

measures , and other attainment-re lated planning requirements i s 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 ha s violated the NAAQS, at which time the obligations wou ld again app l y.

The suspension of the planning requirements saves the State and EPA the re so urces i n vo l ved in devdoping, adopting, submitting, evaluating
, and performing rulemaking for unneeded planning reqeirements as SIP r e visions.

The Clea n 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 effec t of a rede signa tion to attainment. The area remains desi gna ted nonattainment and nonattainment area requirements such as New Sou

· ·ce Review (NSR) and conformity continue to apply until the Sta t e submits a request for redesignation including the CAA -r equired maintenance plan and EPA approves them.

If a S tate has an area for which a Clean Data Determina t ion has been made and the State has submitted or submits SIP revisions for the s u spended planning requirements
, it may i nform 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 req u irements. Prior to requesting withdrawal, the State should consider the fact that i t may want the mobile budgets in an attainment demonstration or RFP plan appr oved. Where the State does
not w ithdraw any such SIP submissions, EPA remains obligated to act on them.

9Requests for Redesignations and Maintenance Plans

- See Section 107(d)(3)(E)

Intl'oduction: To redesignate an area from nonattainment to attainme nt is an important action that demon strates success in the a ir qu a li ty planning process. Redesignation acknowledges n ot**nl '**  that an area h as met the relevan t a ir quality standard, but a l s o t ha t the State has sa tis fied rele vant requi r em ents and s h own that the area can continue to meet the standard for the decad e foll o win g redes ignation. EPA recognizes that the nonattainm e nt d es i gnation of an area can affect it s abili ty to attract econo mic developm ent. Once an area i s r edes ignated from non'ilttainment to attainment, it is likely better positio ned t o attract new and expan din g bu s in esses and in du s try. Whe n an urban area is redes i gnated from nonattainment to attainment
, t h e c i ty

ma y move up in the r anking of "Most Livable Cities" which may h elp it attract n ew residents and retain its existing population. Given these co nsider a tion s , EPA i s committ ed to w ork closely

w i t h States in the prep arat ion and submittal of r e de s ignation requests and m a int e nanc e plan s and
to make this work a p r i or it y so that submittals can b e eva luat ed quickly and effectively

. That

sa

id
, individual Regions and States are e n couraged to co n fe r and determine which SIP r evisions

are ;:he hi g hest pri or i t i es a s certain SIP revisions may be needed to avoid findings
, halt

sanc : tions / F IP c l oc k s , r espond to SIP calls
, and/or be necessary to be approved in o r der for an
area to b e e li g ib le for red esigna tion from nonattainment to a tt ainment.

Cri t eria: Reques ts t o redesignate an area from nonatta i nment to attainment and th e s ubmittal of the C AA-requi r e d ma i ntenance plans as S I P rev i sions are State

- initiated actions. EP A app r oves the r edes i gnat i ons in 4 0 C F R Part 81 and the ma in te n ance plan s as SIP revisions in 40 CFR Part 52. There are five statutory requi rem ents that must be met for EPA t o approve the redesignation of 

### a: 1 are a from nonattainment to atta inm ent:

l

. EPA d e termin es th at area h as attain e d the NAAQS (three years of com plete quali ty assured da ta in AIRS-AQS that s h ow atta inment );**~.** EPA h as fully app r oved the area's applicab le implementation plan (i.e., the plan d e ve l ope d for the particular nonattainrnent pollutant) under sect ion llO(k) of the CAA ; :3. EPA dete rmin es th e improvement in t h e area's air quality is due to enforcea bl e reductions in emissions resultin g from implementation of the applicable implementation plan, app lic able Fe d eral air poll u tion co ntrol r eg ula t i ons , an d other permanent enforceable reductions ; 

### •L T h e area has a fully approved maintenance plan meeting section 1 75A of the CAA; and )

. The State h as met a ll of th e requ irements ap plic a ble (for purposes ofredesign a t ion ) to the

area under Section 110 (the app licable infrastru ctu r e SIP requirements) and Part D (the app li ca ble non attainme nt a rea SIP elements)

. SIP Submittals : A Section 175A maint enance plan is a SIP revision and must meet a ll of t h e administr a t i ve r equiremen t s of Part 5 1 and Part 51 Appendix V fo r a complete submittal.

Under the CAA, a Section 175A maintenance p l an must provide for the maintenance ofthe NAAQS in the area for at l east 10 years after the redesi gnation; this means for at le ast 10 years fro m EPA ' s final rule approving the rede s i g n at ion. As the CAA provides up t o 18 m o nths for E P A to complete rulemakin g on a redesignation reque st , the maintenance plan at the t i me of

s ubni tta l shou ld provide for atta inment fo r at least 11 years and six months. EPA recommend s to S l ates th at i t provi d e for attai nmen t for 1 2 years from th e time of f orm a l subm i tta l t o a ll ow for

co m p leting the rede s i gnation rulemaking processes.

10Wh e n 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 r edesignation requ est 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 cita t ions of the EPA approvals.

Wh : m evaluating a r e designation request and maintenance plan to de t ermine whether or not all Sec : ion 110 and Part D SIP requirement s have been met, EPA doe s not require that t h e area have

a fully approved nonattainment pre-construction NSR permitting program for new major sources and major modifications, if the State demon s tr ates that t he area can continue to maintain the stan dard 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 Deteriorat i on apply for the pre-construction permitting of new major sources and

mo d ifications.

The contingency measures of a Section 

### 175A maintenance plan
, unli ke the contingency

me a sures of an attainment demonstration plan or reasonable further progress (RF P) plan, may not b e implemented "ea rly" by the State. These are the contingency measures that the State will imp l ement if the maintenance plan's triggers for such measures occur (e.g., em i ssions projections exceed the levels projected in the plan or the area violates the NAAQS). These

com ingency measur es and their schedule for implem e ntation need to be clearly ident i fied in the mabtenance plan.

How much documentation i s necessary for the mainten a nce plan's " maint e nance demonstration " of maintenance for 1 0 years after the EPA's final approva l of the rede signation is dependent upo

. 1 the form of the " maintenance demonstration." For example, if g rowth projections are used to "g row" a recently already approved SIP emission inventory (or in ventories where mu ltiple precursors are involv ed) for the area, it may not b e necessary to resubmit all of the documentation for that emission inventory as part of the maintenance plan. In suc h cases the Stat! may be able to cite to the submittal and/or approval of that emissions inventory t o 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

a pproved will also have to identify mobile budgets. For other areas , the maintenance plan will

s till need to include provisions for how conformity will be done after th e area i s 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 Preven tion of Significant Deterioration (PSD) program apply for the pre-construction permitting of new major sources and major modifications. The conformity requirements app l icable in the attainment area will then apply as outlined in th e 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 ' f ide for public comment, the use of such letters is limited to thos e types of SIP revisions where "common sense" would indicate that the public and regulated sector would have no inte r est in commenting on EPA's approval.

EPA's rulemaking procedures for SIP revision s are governed by the Federal Administrative Pro e edures Act (AP A). While that statute does not include provisions for Letter Not i ces to do SIP approvals, EPA has been using Letter Notices to approve a very narrow range of SIP revi s ions 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 Lette r Not.ce procedure
, EPA sends a le t ter to the affected states and partie s rather than undertaking a noti :e -and-comm ent rulemaking. Use of Letter Notice is limit ed to truly insignificant SIP actions. No notice will be published in the Federa l Reg i ster prior to se nding final letter notice approvals to the State and affected parties. The l etter 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 Federa l Reg i ster to keep the general pub li c 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 su bsequent summary Federal Register notice. Letter Notice approvals do, however, remain subject to judi : ial review until sixty days after th e date of the summary Federal Register notice is pub l ished.

Catego ries of SIP actions appropriate for letter notice include:

1.**~e- codification**  in v olving no s ubstantive changes; 2. Mi nor t echnical amendments or error corrections; 3. Typographica l corrections; 4. Address changes; and 5. :) imilar non-substantive matte rs

Caveats: The SIP revisions submitted by states that are eligible for app roval by EPA by Letter Not i ce must still meet the administrative requirements for SIP submittal of 40 CFR Part 5 1 .102 and Appendix V

12Future Activities: T he member s of the SIP Reform Workgroup will cont inue to pursue whether add i tiona l types of non-sub stantive SIP re visions may be added to the list of actions appropriate for L etter No tic e. The Workgroup will also ex plore whether to modify 40 CFR Part 51.102 to pro v ide l ess to provide less rigorous notice and comment requirements for such non-substantive SIP revis i ons

.

13

### (This page intentionally left blank)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


1 ARB 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.

2 We 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.

3 CAA 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.

4 As 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 datedFebruary 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


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. ’’


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


5 The 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


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 understandingin 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**


## 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 ATLAN T A FEDERAL CENTER 61 FORSYTH STREET ATLANTA
, GEORGIA 30303-8960

November 30
, 2015

North Carolina Department of Environmen tal Quality 1641 Mail Service Center Raleigh
, No rth Carolina 27699 -1 641

Dear Ms. Holman:

Thank you for your le tter dated October 27, 2015
, transmitt in g a prehearing package regarding th e section 1 IO(a)(l) and (2) Infrastructure State Implementation Plan requirements for the 20 1 2 Annual Fine Particulate Matter National Ambient Air Quality Standards. These revisions were the subject of a public comment period beginnin g October 27
, 2015
, with written comments due b y the close of busine ss
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 w ith you and yo ur staff. If you have any questions
, please contact Ms. Lynorae B enjam in
, Chief
, Air Regulatory Management Section at (404) 562-9040
, or h ave your staff contact Nacosta C. Ward at ( 404) 562-9140

. Sincerely
,

R

. Scott Davis C hie f Air Planning and Implementation Branch

Internet Address (URL) • http://www.epa.gov Recycled/Recyclable • Printed with Vegetable Oil Based I nk s on Recyc l ed Paper (Minimum 30 % Poslconsumer)