MEMORANDUM UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 2n11



# ucr I 

### 4 2011

OFFICE

- OF AIR QUALITY PlANNING

ANO STANDARDs SUBJECT: Guidance on Infrastructure State Implementation Plan (SIP) ElementS Required Under Sections IIO(a)(l) 

### and l IO(a)(2) forthe '2008 

### Lead (Ph) National Ambient Air Quality Standards (NAAQS) · ·

FROM: Stephen D. Page, Dire tor Office of Air Quality PJ

TO: Regional Air DiVision Directors; Regions 1**~** lO

This guidance

· addresses the**"infraS tru~e"** **~~~irients** for**SIJ!s/to.nu~enlie req~it:ements**  ·of sections llO(a)(l}and J.l.O(a)(2) ofihe Clean

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. sections llO(a)(l) and 110(a)(2) ofthe CA.A,'each**state is** **requir~** 

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, of**aliewlyoprom~l,gated** of revised NAAQS. · · · ·
The CAA.directs ' states to
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Determining Completeness ofState.Submittals .Pursuant to section 11 O(a)( 1**)~ state~**  will have

- to review an!f revise, as appropriate,

- their existing Ph NAAQS SIPs 

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. was signed by the Admin1striltor and**·publi~ly'dissem iriated** **on Octobcr**  Jt;; :200$;'Theref(lr-t:;.the;dea(JJinefor 5ubmitta1 of infrastructure SJPs for the 2008 Pb NAAQS is October. IS, 2011.

lnt.emel Add!lles J!JBL) •**·http:l/www,e~.9?V. flocv~•cyea.bJ•**  •Prloled wbh**v~** 011**aB~·Inb ~R~**  PJ!flfl-' (Uirwnum**25~** Postconsumer)should, in consultation with the EPA Regional Offices, refer to applicable EPA regulations governing SIP submittals per 40 CFR Part 51.

These regulations include, but are not limited to:

• Subpart I- Review ofNew 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 P- Protection of Visibility

• Subpart Q -Reports.

If a state determines that its existing SIP is adequate, then the state's SIP submittal may be a certification that the existing SIP contains provisions addressing all requirements of the section 110(a)(2) infrastructure elements as applicable for the 2008 Pb NAAQS. Such certification (e.g., in the form of a letter to the EPA from the Governor or her/his designee) should cite the applicable provisions in the existing SIP. As for all SIP submittals, section 11 0(1) directs the state to provide reasonable public notice and opportunity for public hearing on a certification letter prior to submission to the EPA.

• Section 110(a)(2) specifies the elements and sub-elements that are required in order for the EPA to determine that an infrastructure SIP submittal is complete. Specifically, each state should include documentation demonstrating a correlation between each · infrastructure element and an equivalent state statutory or regulatory authority in the existing or submitted SIP. At a minimum, a complete submittal is a letter from an appropriate state official (e.g., Governor or designee) certifying compliance with each element which has gone through state notice and hearing procedures. To meet the requirements of sections lt'o(a)(l) and 110(a)(2), a SIP submittal should include a detailed explanation of how the state's SIP meets each applicable requirement of section 110(a)(2). Where a SIP submittal does not meet the requirements ofthose CAA provisions, a letter should be sent to the state notifying it of the finding of incompleteness. EPA's criteria for determining the completeness of a SIP submittal are set out in EPA's regulations at 40 CFR Part 51, Appendix V. A state's obligation to make an infrastructure SIP submittal that addresses one or more infrastructure SIP elements cannot be fulfilled through a letter from the state that merely promises a future submittal.

EPA has determined that the elements and sub-elements of section 110(a)(2) with respect to the 2008 Pb NAAQS are, for the most part, severable. For example:

• SIP submittals that address some but not all elements or sub-elements of section 11 O(a)(2) should be found incomplete for the unaddressed elements or subelements.

• IfEPA makes a finding of failure to submit an infrastructure SIP, that finding will only apply to the elements or sub-elements that were not addressed by the state'sinfrastructure SIP revision. In order for EPA to make a determination as to whether a subsequent infrastructure SIP submittal is complete, the state only needs to submit those elements that were earlier found not to have been submitted.

A finding that an infrastructure SIP submittal is complete does not necessarily 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. Section 11 O(k) directs EPA to take final action on a SIP submittal within one year after the SIP is determined to be complete. If EPA makes an affirmative finding that a SIP submittal is complete, the date of the fmding establishes the "completeness date" for the submittal; if EPA makes no finding the submittal is deemed complete, by operation oflaw, on the date six months after the submittal date. Actions on a SIP submittal may include approval (full, partial, or conditional) and disapproval (full or partial).

The obligations ofEPA to promulgate a federal implementation plan (FIP) are set out in section 11 O(c) of the CAA. EPA's obligation to promulgate a FIP for a state is triggered if EPA takes any ofthe following actions associated with the required SIP: 1) EPA makes a finding that a state has failed to make a SIP submittal; 2) EPA makes a finding that a state has made an incomplete submittal; or 3) EPA disapproves a SIP submittal. IfEPA takes one ofthese actions, section 11 0( c) directs EPA to take further action within two years, under what is commonly referred to as the "FIP clock." In order to remove EPA from the FIP obligation, a state SIP submittal must meet the applicable requirements and be approved by EPA.

We acknowledge that there have been significant delays in issuing this guidance. This is due in part to legal and other issues raised by outside parties over the past two years regarding actions on
a range of infrastructure SIP issues for other pollutants. It was our desire to address as many of those issues as possible in this memorandum. We recognize that many states have been moving forward to develop these infrastructure plans, and this guidance is intended to help them complete this process. We will work to assist states in the development and completion of these plans so they may be submitted as soon as possible.

Please ensure that the appropriate air agency officials for states in your Region are made aware of this guidance.

For Further Information Ifyou have any questions concerning this guidance, please contact Mia South at (919) 541-5550

or by email at south.mia@epa.gov, or Lisa Sutton at (919) 541-3450 or by email at sutton.lisa@epa

. gov.

Attachment

cc: Anna Marie Wood Scott Mathias Rich Damberg Kevin McLean Sara Schneeberg Geoffrey Wilcox David OrlinAttachment

Guidance on Section 110 Infrastructure SIPs for the 2008 Pb NAAQS

Table of Contents
Required Section 110 Infrastructure Elements .......................................................................... 1 Section 110(a)(2)(A): Emission limits and other control measures .......................................... 2 Section 110(a)(2)(B): Ambi ent air quality monitori ng/data system ......................................... 4 Section 110(a)(2)(C): Pr ograms for enforcement, PSD, and NSR ............................................ 5 Section 110(a)(2)(D)(i): Intersta te transport provisions ............................................................ 7 Section 110(a)(2)(D)(ii): In terstate and International transport provisions ........................... 9 Section 110(a)(2)(E): Adequate personnel, funding, and authority ....................................... 10 Section 110(a)(2)(F): Stationary source monitoring and reporting ....................................... 13 Section 110(a)(2)(H): Fu ture SIP revisions............................................................................... 14 Section 110(a)(2)(I): No nattainment area plan or plan revision Under Part D .................... 15 Section 110(a)(2)(J): Consultation with gov ernment officials, public notification, PSD and visibility protection ......................................................................................... 15 Section 110(a)(2)(K): Air quality modeling/data ..................................................................... 16 Section 110(a)(2)(L): Permitting fees ........................................................................................ 17 Section 110(a)(2)(M): Consultati on/participation by affected local entities .......................... 17Attachment

1 Required Section 110 Infrastructure SIP Elements
The Clean Air Act (CAA) directs states to a ddress basic State Implementation Plan (SIP) requirements to implement, maintain and enforce the national ambient air quality standards (NAAQS). Under CAA sections 110(a)(1 ) and 110(a)(2), states are to submit these SIPs within three years after promulgation of a new or revised standard. Many of the section 110(a)(2) SIP elements relate to the general information and authorities that constitute the "infrastructure" of a state's air quality management program, and these have been in place since the initi al SIPs were submitted in response to the 1970 CAA. It is the responsibility of each st ate to review its air quality management program's infrastructure SIP provisions in light of each new or revised NAAQS. States should review and revise, as appropriate, their existing infrastructure SIPs to ensure that they are adequate to address the 2008 Pb NAAQS . States should, in consultation with U. E. Environmental Protection Agency (EPA) Regional Offi ces, follow applicable EPA regulations governing
infrastructure SIP submittals in 40 CFR Part 51 - e.g., Subpart I ("Review of New Sources and Modifications"), Subpart J (Ambient Air Quality Surveillance), Subpart K (Source Surveillance), Subpart L (Legal Authority), Subpart M (" Intergovernmental Consultation"), Subpart O (Miscellaneous Plan Content Requirements), Subpart P ("Protection of Visibility"), and S ubpart Q ("Reports"). For many infrastructure SIP elements, a SIP subm ittal should refer to and include citations to relevant state regulations. See guidance below regard ing elements (F), (H), (J), and (M). For EPA's general criteria for infrastructure SIP submittals, refer to 40 CFR Part 51, Appendix V , "Criteria for Determining the Completeness of Plan Submissions." For example, in accordance with Appendix V, pa ragraph 2.1(d), an infrastructure SIP submittal would include a copy of the actual regulation that the state is submitting for approval and incorporation by reference into its SIP, if a c opy of that regulation has not alrea dy been provided by the state. Pursuant to section 110(a), states must provi de reasonable notice and opportunity for public hearing for all infrastructure SIP submittals. Purs uant to EPA's regulations at 40 CFR Part 51, an
infrastructure SIP submittal will include a certificati on by the state that the pub lic hearing was held in accordance with EPA's procedural re quirements for public hearings. See 40 CFR Part 51 Appendix V 2.1(g) and 40 CFR 51.102 . If a state believes that its existing approved infrastructure SIP is adequate with regard to specific elements, then the state's SIP submission may be a certi fication that the existing SIP contains provisions addr essing the relevant section 110(a)(2) infrastructure elements as applicable forAttachment

2 the 2008 Pb NAAQS. Such certification ( e.g. , in the form of a letter to EP A from the Governor or her/his designee) should cite the applicable provisions in the existing infrastr ucture SIP and provide a specific description of how compliance with each element is achieved. A state’ s certification made in connection with the 2008 Pb NAAQS should be included in a SIP submittal only after the state has provided public notice and opportunity for public hearing on its certification. Section 110(a)(2) of the CAA directs all states to develop and maintain an air quality management
infrastructure that includes enforceable emissi on limitations, an ambient monitoring program, an enforcement program, air quality modeling capabilitie s, and adequate personnel, resources, and legal authority. Section 110(a)(2)(D) also directs SIPs to prevent emissi ons from within the state that contribute significantly to nonattainment in any other state, or that in terfere with maintenance in any other state, or that interfere with programs under part C of the CAA to prevent significant deterioration of air quality or to protect visi bility in any other state.
Two elements identified in sec tion 110(a)(2) are not governed by the 3-year submission deadline of section 110(a)(1). The elements pertain to part D, in Title I of the CAA, which addresses plan requirements for nonattainment areas. Therefore, the fo llowing section 110(a)(2) elements are considered by EPA to be outside the scope of infrastructure SI P actions: (1) section 110( a)(2)(C) to the extent it refers to permit programs (known as "nonattai nment new source review") under part D; and (2) section 110(a)(2)(I) in its entirety. EPA does not expect infrastructure SIP submittals to include regulations or emission limits developed specifically for attaining the relevant standard. Those submittals are due at the time the nonattainment area planning el ements are due (18 months following designation). Except as described above, subs ections (A) through (M) of se ction 110(a)(2) set forth the infrastructure elements that a SIP should address, in order to be approved by EPA. The elements are presented below in context of the 2008 Pb NAAQS.

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

“Each such plan shall [. . .] include enfor ceable emission limitati ons and other control measures, means, or techniques (including econo mic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropria te to meet the applic able requirements of this chapter.”Attachment

3 EPA would not expect infrastr ucture SIP submission to iden tify nonattainment area emission
controls. Emissions limitations and other control measures to attain the 2008 NAAQS in areas designated nonattainment for the 2008 Pb NAAQS are due on a different schedule from the section 110
infrastructure elements and will be reviewed and acted upon through a separate process. However, the infrastructure SIP submission may include a list or table referencing any Pb emission reduction measures adopted and relied on by the state to meet other CAA requirements, such as maintenance of the 2008 NAAQS. There are two other issues that generally fall under this particular elemen t of section 110(a)(2)(A) for which we provide general guidan ce at this time. They are: (1) how states would need to address previously approved emissions limitations that may treat startup, shutdown and malfunction (SSM) events inconsistently with our longstanding guidance on excess emissions; and (2) how states would need to address previously approved va riance provisions and "director's di scretion" provisions that do not comport with EPA policy. We are discussing options for resolving next steps to be taken on these issues, taking into consideration several ac tions on state provisions relating to SSM and director's discretion in which EPA is currently engaged. 1 Nevertheless, in the meantime EPA wishes to provi de infrastructure SIP guidance to the extent possible. Therefore, as general guidance, EPA can advise that states not make infrastructure SIP submissions that rely on previously approved but potentially flawed provi sions. Further, we wish to make
clear that for infrastructure SIP submissions such as for the 2008 Pb NAAQS, any "new" ( i.e., not already SIP-approved) provisions should be consistent with EPA's longstandi ng policies on SSM and director's discretion, which are briefl y summarized as follows. 2 Because excess emissions might aggravate air quality so as to preven t attainment and mainte nance of the NAAQS and co mpliance with other CAA requirements, EPA would view all periods of excess em issions as violations of the applicable emission limitation. Therefore, new provisions as part of an approvable SIP submittal could not exempt from enforcement excess emissions that may occur at a fac ility during a period of star tup or shutdown. Further,

1 See, e.g. , SIPs for Utah and North Da kota. EPA has also proposed to enter into a settlement agreement that would obligate EPA to respond by August 31, 2012, to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 39 states' SIPs. (See notice published in the Federal Register on September 1, 2011, at 76 FR 54465.) 2 For further description of EPA's policy on SSM and director's discretion, see, e.g. , a memorandum dated September 20, 1999, entitled, "State Implementation Plans: Policy Regard ing Excess Emissions During Malfunctions, Startup, and Shutdown," from Steven A. Herman, A ssistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation.Attachment

4 new provisions as part of an approvable SIP submitta l could not automatically exempt from enforcement excess emissions claimed to result from an equipment malfunction. In addition, ne w provisions as part of an approvable SIP submittal could not allow a state ai r director the discretion to determine whether an
instance of excess emissions is a violation of an em ission limitation, because such a determination could
bar EPA and citizens from enforc ing applicable requirements.

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

“Each such plan shall [. . .] provide fo r establishment and operation of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyz e data on ambient air quality, and
(ii) upon request, make such data available to the Administrator.”
To meet section 110(a)(2)(B) requirements for this NAAQS, the state’ s monitoring system should:

• Monitor air quality for Pb at appropriate locati ons throughout the state using EPA approved Federal Reference Method or equivalent monitors, in accordance with recent revisions to the Pb monitoring network requirements. See the Lead Ambient Air Monitoring Requirements, December 14, 2010

.

• Submit data to EPA’s Air Quality System (AQS) in a timely manner in accordance with EPA’s Air Quality data reporting regulations. See 40 CFR 51.320

.

• Submit approvable annual monitoring plans to EPA that describe how the state has complied with monitoring requirements and explai n any proposed changes to the network.

• Provide the EPA Regional Office prior notification of any pl anned changes to monitoring sites or to the network plan.Attachment

5 Section 110(a)(2)(C): Programs for enforcement, PSD, and NSR

“Each such plan shall [. . .] include a progr am 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 ambi ent air quality standards are achieved, including a permit program as required in parts C and D of this subchapter.”

The Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NNSR) programs contained in parts C and D of Title I of the CAA, and collectively referred to as the major New Source Review (NSR) program, govern prec onstruction review and permitting of any new or modified major stationary sources of air pollutants regulated under the CAA as well as any precursors to the formation of that pollutant when iden tified for regulation by the Administrator. 3 The EPA rules addressing these programs can be found generally at 40 CFR 51.166 and 40 CFR 52.21 (for PSD) , and 40
CFR 51.165
, 40 CFR 52.24 , and Part 51, Appendix S (for NNSR)

. Essential to the approvability of infrastructure SI P elements (C) and (J) is the approvability of a state’s PSD program in its entirety. To meet sec tion 110(a)(2)(C) requirements for the Pb NAAQS, the
infrastructure SIP submittal should:

• Reference relevant state and fe deral regulations that provide for enforcement of Pb emission
limits and control measures.

• Identify the various state regul ations that govern permitting of new and modified stationary sources (minor and major) of Pb in the state.

• Incorporate its PSD program regul ations to address any applicable EPA amendments to Pb PSD rules within 3 years from the date of such amendments. For areas subject to a state’s SIP-approved PSD program, the stat e should demonstrate that it is authorized to implement its existing PSD permit program to ensure that the construction and modification of major stationary sources does not cause or contribute to a violati on of the Pb NAAQS. The state's PSD program should ensure that new or modified sources will apply the Be st Available Control Technology to reduce Pb emissions in accordance with CAA sections 165 (a)(3) and (4).

3 The terms “major” and “minor” categorize a stationary sour ce, for NSR applicability purposes, in terms of an annual emissions rate (tons per year, tpy) for a pollutant. Generally, a minor source is any source that is not “major.” “Major” is defined in the applicable NSR regulations—PSD or nonattainment NSR.Attachment

6 States need to have in place a PSD program that applies to all regulated NSR pollutants, including GHG. The state's PSD program should appl y to sources that emit greenhouse gases (GHG) in accordance with EPA's Tailoring Rule. 4 Among other things, the state' s PSD program must either: (i) limit PSD applicability to GHG-emitting sources by a dopting the applicability thresholds included in the Tailoring Rule; or (ii) adopt lower GHG thresholds and show that the stat e has adequate personnel and funding to administer and implement those lower thresholds. Otherwise, the state is directed to remove from EPA’s consideration for approval that portion of the SIP (or SIP submission) for which EPA rescinded our previous approval of the PSD progr am (in a rulemaking referred to as the "GHG PSD SIP Narrowing Rule"). 5 To request such removal, a state may choose to follow the example of the letter request submitted by South Carolina. 6 Until a state has adopted a comprehensive prog ram, its infrastructure SIP would not be approvable with respect to CAA Section 110(a)(2)(C) or (J). If a state lacks a SIP-approved PSD program, it is subject to a federal implementation plan (FIP), and majo r stationary sources within its jurisdiction are subject to the fede ral PSD requirements in 40 CFR 52.21. So me states are subject to a FIP for PSD permitting of all regulated NSR pollutants, and fewer states are subject to a FIP for PSD permitting that is limited to GHG. For sources subj ect to a FIP for PSD permitting, either the EPA Regional Office or the state acting as EPA's delega te is the permitting authority. EPA recognizes that many states have been implementing a PSD FIP program for some time. When a state is already subject to a FIP for PSD permitting (whether or not the stat e has been delegated author ity to implement the PSD FIP), and EPA disapproves this element of the stat e's infrastructure SIP submittal, we expect the permitting authority would simply continue implem entation of the PSD FIP, and EPA would have no additional FIP obligations. In addi tion, the state would not be subj ect to any potential mandatory
sanctions in connection with such disapproval, as such sanctions do not apply to infrastructure SIP
deficiencies. Minor NSR programs are subject to the statutor y requirements in sec tion 110(a)(2)(C) of the CAA which requires “...regulation of the modification and construction of any stationary source ...as

4 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 2010). 5 Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas-Emitting Sources in State Implementation Plan s; Final Rule, 75 FR 82536 (December 30, 2010). 6 South Carolina's letter request can be found at http://www.regulations.gov , at EPA-R04-OAR-2010-0721-0006.Attachment

7 necessary to assure that the [NAAQS] are achieved.” These programs should be es tablished in each state within three years of th e promulgation of a new or revised NAAQS, and may be particularly important because virtually all sources of lead are minor sources. To date, EPA has not proposed to amend the PSD regulations with regard to the Pb NAAQS. EPA does recognize that certain prov isions of these regulations still may need to be evaluated and potentially revised in light of the 200 8 Pb NAAQS. See for example, provisions 40 CFR Part 51.166(i)(5)(i)(g) (“the emissions increase of the pollutant from a new stationary source or the net emissions increase of the pollutant from a modification would cause, in any area, air quality impacts less than the following amounts: ... Lead—0.1 μg/m 3 , 3-month average);” 40 CFR 166 (b)(23)(i) ("Significant means, in reference to a net emissi ons increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: ... Lead: 0.6 tpy”). EPA also is planning to issu e Pb modeling guidance to supplement the guidance contained in EPA’s Guideline on Air Quality Models ( 40 CFR Part 51, Appendix S ), which will assist states and prospective sources in carrying out the analyses necessary to satisfy the PSD requirements for
Pb.

Section 110(a)(2)(D)(i): Interstate transport provisions

“Each such plan shall [... ] contain adequate provisions:
(i) prohibiting, consistent with the provis ions of this subchapter, any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will-
(ii) contribute significantly to nonattainment in, or
(iii) interfere with maintenance by, any othe r state with respect to any such national primary or secondary ambien t air quality standard, or interfere with measures required to be includ ed in the applicable implementation plan for any other state under part C of this subchapter to prevent significant deteriorat ion of air quality to protect visibility.”

Section 110(a)(2)(D)(i) provides for infrastructu re SIPs to include provisions prohibiting any source or other type of emissions act ivity in one state from contributi ng significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state. (The preceding requirements, fromAttachment

8 subsection (2)(D)(i)(I), respectively refer to what may be called prongs 1 and 2.) Further, this section
directs infrastructure SIPs to incl ude provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent signifi cant deterioration of air quality, or from interfering with measures required to protect visibility ( i.e. , measures to address regional haze) in any state. (The preceding requireme nts, from subsection (2)(D)(i)(II), respectively refer to what may be called prongs 3 and 4.) The physical properties of Pb prevent Pb emi ssions from experiencing the same travel or formation phenomena as PM 2.5 or ozone. More specifically, th ere is a sharp decrease in Pb concentrations, at least in the coarse fracti on, as the distance from a Pb source increases. Accordingly, while it may be possible for a sour ce in a state to emit Pb in a lo cation and in quantities that may contribute significantly to nonattainment in, or inte rfere with maintenance by, any other state, EPA anticipates that this would be a ra re situation, e.g., where large sources are in cl ose proximity to state
boundaries. EPA believes that requirements of subsection (2 )(D)(i)(I) (prongs 1 and 2) could be satisfied through a state’s assessment as to whether or not emissi ons from Pb sources located in close proximity to
their state borders have emissions th at impact the neighboring state such that they contribu te significantly
to nonattainment or interfere with maintenance in that state. 7 The states’ conclusi ons could be supported by the technical information or data used to support th e initial area designations for Pb. Therefore, to address prongs 1 and 2 of section 110(a)(2)(D)(i)(I) the state’s submission should include an explanation in support of the state’s conclusion and, if applic able, should address the impact in their submittal. Under section 110(a)(2)(D )(i)(II), the PSD sub-element (prong 3) may be met by the state’s
confirmation in an infrastructure SIP submission th at new major sources and major modifications in the state are subject to PSD and (if th e state contains a nonattainment area for the relevant pollutant) NNSR programs that implement the 2008 Pb NAAQS. 8 With regard to the requirement of prong 4, i.e. , visibility under s ubsection (2)(D)(i)(II), significant impacts from Pb emission s from stationary sources are expected to be limited to short

7 For example, EPA’s experience with initial lead designations su ggests that sources that emit less than 0.5 tpy or that are located more than 2 miles from a state border generally appear unlikely to contribute significantly to nonattainment in another state. 8 Memorandum issued by William T. Harnett, Director , OAQPS/AQPD, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS),” dated September 25, 2009.Attachment

9 distances from the source and most, if not all Pb sta tionary sources are located at distances from Class I areas such that visibility impacts would be negligib le. Although Pb can be a component of coarse and fine particles, Pb generally comprises a small fracti on of coarse and fine particles. Furthermore, when evaluating the extent that Pb could impact visibilit y, Pb-related visibility impacts were found to be insignificant (e.g., less than 0.10%) . 9 Although we anticipate that Pb emissions will contribute only negligibly to visibility impairment at Class I areas, the state’s subm ission should include an explanation in support of the state’s conclusi on (and, if applicable, should addr ess the impact in their submittal). Where a state’s regional haze SIP has been approved as meeting all current obligations, a state may point to its approved plan to demonstrate that it meets the requirements of prong 4.

Section 110(a)(2)(D)(ii): Interstate a nd International transport provisions

“Each such plan shall [. . .] contain adequate provisions insuring compliance with the applicable requirements of sec tions 115 or 126 (b) that invol ve Pb emissions (relating to interstate and internatio nal pollution abatement).”

Section 126(a) of the CAA directs each SIP to include provisions requiring a new or modified source to notify neighboring states of potential impacts from the source . States with SIP-approved PSD programs should have a regulatory provi sion in place, consistent with 40 CFR 51.166(q)(2)(iv) , that requires such notification of othe r state and local agencies. States relying on the federal program requirements of 40 CFR 52.21(q) , which provide for notification of a ffected state and local air agencies, to satisfy this requirement have programs that ar e technically deficient an d not approvable. Although these programs are deficient and these states have not “submitted” anything to EPA, EPA would not be required to take further action with respect to this element because the federal rules represent a FIP that fully addresses the notification i ssue. In addition, mandatory sanctions would not apply because the deficiencies are neither with regard to a required s ubmittal under part D nor in response to an SIP call
under CAA Section 110(k)(5) . As described in this infrastructure SIP guidance for element (C), such states remain obligated to adopt and submit a PSD pr ogram for EPA approval that applies to all regulated

9 Memorandum from Mark Schmidt, OAQPS, “Ambient Pb’s Co ntribution to Class 1 Area Visibility Impairment,” June 17, 2011.Attachment

10 NSR pollutants, including GHG. Until a state provides such a program, its infrastructure SIP would not be approvable with respect to section 110( a)(2)(D)(ii). Sections 126(b) and 126(c) of the CAA affect a st ate only if the Administra tor has been petitioned to make a finding of violation that is related to either interstate tran sport or international transport of emissions from sources in the state. Thus, unless a st ate has been the subject of such a petition, the state has no continuing obligation unde r sections 126(b) or 126(c).
Section 115 of the CAA authorizes the Administrator to require a state to revise its SIP under
certain conditions to alleviate inte rnational transport. Because there are no pending actions pursuant to Section 115 of the CAA, EPA has no e xpectation that the state would n eed to submit anything in regards
to Section 115 at this time.

Section 110(a)(2)(E): Adequate pers onnel, funding, and authority

“Each such plan shall [. . .] provide:
(i) necessary assurances that the state (or, except where the Administrator deems inappropriate, the general purpose local go vernment or governments, or a regional agency designated by the state or general pur pose 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 prohibi ted by any provision of federal or state law from carrying out such implementation plan or portion thereof),
(ii) requirements that the state comply w ith the requirements respecting state boards under section 128,
(iii) necessary assurances that, where th e state has relied on a local or regional government, agency, or instrumentality for th e implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provision.”

The infrastructure SIP should assu re that the state has adequate personnel and funding to implement the Pb NAAQS. See EPA's regulations at 40 CFR Part 51, subpart M ("Intergovernmental Consultation") and subpart O ("Miscellaneous Plan Content Requirements"). For example:

• In accordance with EPA's regulations at subpart M, the infrastructure SIP should identify the organizations that will participate in devel oping, implementing, and enforcing the SIP as a whole. The infrastructure SIP should identify the responsibilities of such organizations andAttachment

11 include related agreements among the organizations. See 40 CFR 51.240 , "General plan requirements." In accordance with EPA's regulat ions at subpart O, the infrastructure SIP should describe resources for carrying out Stat e programs and requirements. Resources to be described include: (1) thos e available to the state (and local agencies, where appropriate) as of the date of infrastructure SIP submittal; (2) those considered necessary during the 5 years following infrastructure SIP submittal; and (3) projections regarding acquisition of the
described resources. See 40 CFR 51.280 , "Resources." Further, the infrastructure SIP should assure that the state has adequate authority under its rules and regul ations to carry out the state's SIP obligations with respect to the 2008 Pb NAAQS and to revise the SIP as necessary. See EPA's regulations at 40 CFR Part 51, s ubpart L (“Legal Author ity”) and subpart O (“Miscellaneous Plan Content Requirements ”). For example:

• In accordance with EPA's regulations at subpart L, the infrastructure SI P should show that the state has the legal authority to carry out the plan; the provisions of the state's laws or regulations that provide that auth ority are to be specifically identified in the infrastructure SIP, and copies of the laws or regulations should be included in the infrastructure SIP submittal

. See 40 CFR sections 51.230 through 51.231

.

• In accordance with EPA's regulations at subpart O, the infrastructure SIP submittal should include copies of rules and re gulations that show that the state has adopted the emission limitations and other measures necessary for attainment and maintenance of the 2008 Pb NAAQS. See 40 CFR 51.281, "Copies of rules and regulations." In accordance with sub-element (ii), the infrastr ucture SIP should include requirements that the state comply with CAA 128, "State Boards ." 10 Section 128 of the CAA states: Sec. 128. (a) Not later than the date one year a fter the date of the enactment of this section, each applicable im plementation plan shall cont ain requirements that –
(1) any board or body which approves permits or enforcement orders under this Act shall have at least a majority of memb ers who represent the public interest and do not derive any significant portion of their inco me from persons subject to permits or enforcement orders under this Act, and

10 EPA's operative guidance on these SIP requirements can be found in a memorandum dated March 2, 1978, from David Bickart, Deputy General Counsel, to Regional Air Directors, entitled “Guidance to State for Meeting Conflict of Interest Requirements of Section 128.”Attachment

12 (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with sim ilar powers be adequately disclosed.
A State may adopt any requirements respecting co nflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) and (2), and the Administrator shall approve any such more stringent requirements subm itted as part of an implementation plan.

Finally, the infrastructure SIP should assure that the state re tains responsibility for ensuring adequate implementation of the stat e's SIP obligations with respect to the 2008 Pb NAAQS. A state may assign responsibility for carrying out a portion of its SIP to a state government agency other than the state air pollution control agency, if th e SIP demonstrates that such other agency has the necessary legal authority. Similarly, the state may au thorize a local agency to carry out the SIP or portion of the SIP within the local agency's ju risdiction, if the SIP demonstrates that the local ag ency has the necessary legal authority; however, the authorizing state is not relieved of responsibil ity for carrying out the SIP. See 40
CFR 51.232 , "Assignment of legal author ity to local agencies."Attachment

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

“Each such plan 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 an d amounts of emissions and emissionsrelated data from such source
(iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this c hapter, which reports shall be available at reasonable times for public inspection.”

The infrastructure SIP should provide citations to the state's regulations for source monitoring, recordkeeping, and repor ting requirements applicable to Pb, such as the Air Emission Reporting Rule (AERR)

. In accordance with EPA regulations at 40 CFR Part 51, subpart K ("Source Surveillance") , the infrastructure SIP should identify St ate requirements that provide for monitoring the status of sources' compliance with the Pb NAAQS. For example, th e SIP should include provisions for owners or operators of stationary sources to maintain records of emissi ons and other information as may be necessary to enable the state to determine whether the sources are in complia nce, and the SIP should further include provisions for the sources to periodi cally report that inform ation to the state. See 40
CFR 51.211 , "Emission reports and recordkeeping." In accordance with EPA regulations at 40 CFR Part 51, subpart A ("Air Emissions Reporting Requirements") and subpart Q ("Repor ts"), the responsible state agency should analyze the Pb emissions data and correlate such data with applicable emi ssion limitations or standards. The infrastructure SIP should identify state requirements providing for periodic reporting of emissions inventory data by the state to the Administrator (through th e appropriate Regional Office). See 40 CFR 51.321 . All reports should be made available to the public.Attachment

14 Section 110(a)(2)(G): Emergency episodes
“Each such plan shall provide for authority com parable to that in section 303 of this Title and adequate contingency plans to implement such authority.”

Section 303 of the CAA provides au thority to the EPA Administrato r to restrain any source from causing or contributing to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” As dire cted under section 110(a)(2)(G), each SIP submittal should specify authority, rested in an appr opriate official, to restrain any s ource from causing or contributing to Pb emissions which present an imminent and substantia l endangerment to public heal th or welfare, or the environment. Based on EPA’s experience to date with the Pb NAAQS and de signating Pb nonattainment areas, EPA expects that such an even t would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situ ation at a relatively large source of lead. Accordingly, EPA believes that the central components of a cont ingency plan would be to reduce em issions from the source at issue (if necessary by curtailing operations) and public communication as needed. In addition, if a state believes, based on its inventory of lead 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 endangerm ent, then the state could provide such a detailed rationale in place of a specific co ntingency plan. EPA notes that 40 CFR Part 51, subpart H (51.150- 51.152) and 40 CFR, Part 51, Appendix L do not apply to Pb, but States may wish to consult subpart H and Appendix L as illustrative guidance of what c onstitutes appropriate con tingency planning for other pollutants.

Section 110(a)(2)(H): Future SIP revisions

“Each such plan shall [. . .] pr ovide 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 th e availability of improved or more expeditious method s 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 Ad ministrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or toAttachment

15 otherwise comply with any additional requi rements established under this chapter (CAA).”

The infrastructure SIP should provide citations to the state regulatory pr ovisions requiring the state to 1) revise its section 110 pl an from time to time as may be neces sary to take into account revisions of such primary or secondary NAAQS or the availabi lity of improved or more expeditious methods of attaining such standards; and 2) revi se its section 110 plan in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS. See 4 0 CFR 51.104 , “Revisions”.

Section 110(a)(2)(I): Nonattainment area plan or plan revision Under Part D

“Each such plan 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).”

As noted above, EPA would not expect infrastr ucture SIP submissions to address subsection 110(a)(2)(I). Nonatta inment area plans required under part D ar e required on a different schedule from
the section 110 infrastructure elements and will be reviewed and acted upon through a separate process.

Section 110(a)(2)(J): Consultation with governme nt officials, public notification, PSD and visibility protection

“Each such plan shall [. . .] meet the applicab le requirements of section 121 of this Title (relating to consultation), sec tion 127 of this Title (relati ng to public notification), and part C of this subchapter (relating to prevention of significant deterioration of air quality and visibility protection).”

The infrastructure SIP should reference the state ru les that provide a proce ss of consultation with general purpose local governments, designated organi zations of elected offici als of local governments, and any federal land manager having authority over fe deral land to which the plan applies, consistent with the requirements of CAA § 121. The infrastructure SIP should provide citations to regulations requiring the state to regularly notify the public of: instances or areas in whic h any primary NAAQS was exceeded; the associatedAttachment

16 health hazards; and ways in which the public can partic ipate in regulatory and other efforts to improve air quality. See 40 CFR 51.285 , “Public notification”. Pursuant to the CAA, an infrastr ucture SIP should identify state re quirements that allow a state to implement any new PSD requirement s that are triggered upon the e ffective date of any new NAAQS. However, sources in a state may be subject to the federal PSD requirements pursuant to 40 CFR 52.21 , if a state does not have a SIP-approved PSD program. As described in this infrastructure SIP guidance for element (C), such states remain obligated to a dopt and submit a PSD program for EPA approval that applies to all regulated NSR pollutants, includi ng GHG. Until a state provides such a program, its infrastructure SIP would not be approvable with respect to CAA Section 110(a)(2)(J). With regard to the requirement of the plan to meet the applicable requirements for visibility protection, EPA would not expe ct to treat this provision as applicab le for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibi lity protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, in the event of the establishment of a new primary NAAQS, the visibility protection and regional haze program requirements under part C do not change. Thus, EPA concludes there are no new applicable visibility protection obligations under section 110(a)(2)(J) as a re sult of the 2008 Pb NAAQS.

Section 110(a)(2)(K): Air quality modeling/data

“Each such plan shall [. . .] provide for—
(i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of pr edicting the effect on ambient air quality of any emissions of any air pollutant for which the Administ rator has established a national ambient air quality standard, and
(ii) the submission, upon request, of data re lated to such air quality modeling to the Administrator.”

The infrastructure SIP should demonstrate that th e state has the authority and technical capability to conduct air quality modeling in order to assess the e ffect on ambient air quality of relevant pollutant emissions; and that the state can provide releva nt data as part of the permitting and NAAQS implementation processes. The infr astructure SIP should also identif y state regulations providing that,Attachment

17 upon request, the state will submit current and future da ta relating to such air quality modeling to the Administrator. EPA anticipates that the predominan t type of air quality modeling to be conducted with respect to implementing the Pb NAAQS will be source-or iented dispersion modeling with models such as
AERMOD.

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

“Each such plan shall require the owner or operator of each majo r stationary source to pay to the permitting authority, as a conditi on of any permit required under this chapter, a fee sufficient to cover—
(i) the reasonable costs of reviewing and acting upon any application for such a permit, and
(ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enfo rcing 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 resp ect to such sources by the Administrator’s approval of a fee program under subchapt er Title) V of this chapter.”

The infrastructure SIP should provide citations to the regulations providing for collection of permitting fees under the state’s EPA- approved Title V permit program. See 40 CFR 70.9 (“Fee determination and certification”), and 40 CFR Part 70 , Appendix A, “Approval Status of State and Local Operating Permits Programs”.

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

“Each such plan shall [. . .] provide for consultation and participat ion by local political subdivisions affected by the plan.”

To satisfy this element (M), and in accordance with EPA's regulations at 40 CFR Part 51
, subpart M ("Intergovernmental Consu ltation"), the infrastructure SIP should identify the organizations that will participate in developing, implementing, and enforcing the state air quality program. Further, the infrastructure SIP should identify the responsibilities of such or ganizations and include related agreements among the organizations. See 40 CFR 51.240 , "General plan requirements." The infrastructure SIP should identify policies or procedures requiring cons ultation and participation by localAttachment

18 political subdivisions affected by the infrastructure SIP. For example, the infrastructure SIP should provide a citation to the state re gulations that provide notice and opportunity for public hearing in accordance with EPA regulations at 40 CFR Part 51 , subpart F ("Procedural Requirements"). Prior to submitting an infrastructure SIP revision or a compliance schedule, a state must provide notice, provide the opportunity to submit written co mments, and allow the public the opportunity to request a public hearing. See 40 CFR 51.102 , "Public hearings."