Technical Support Document

Evaluation of 2014 Hawaii Infrastructure SIP for 2008 Ozone and 2010 

Nitrogen Dioxide National Ambient Air Quality Standards (NAAQS)

U.S. Environmental Protection Agency (EPA), Region 9

April 2014
1

SUMMARY

This technical support document (TSD) summarizes EPA’s technical review of revisions 

to the Hawaii State Implementation Plan (SIP) submitted on April 04, 2014. These 

revisions address the infrastructure SIP requirements of Clean Air Act (CAA) section 

110(a)(2) for the 2008 ozone and 2010 nitrogen dioxide national ambient air quality 

standards (NAAQS). 

BACKGROUND

CAA section 110(a)(1) and (2) requires states to address basic SIP requirements to 

implement, maintain and enforce the national ambient air quality standards (NAAQS) no 

later than three years after the promulgation of a new or revised NAAQS. 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 SIP 

submittals that address these requirements are referred to as “infrastructure SIPs.”

On March 12, 2008, EPA issued a revised NAAQS for ozone.

1 On January 22, 2010, 

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

nitrogen dioxide NAAQS triggered requirements for states to submit infrastructure SIPs

to address the applicable requirements of section 110(a)(2) within three years of issuance 

of each of these revised NAAQS.

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

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

it refers to enforcement, to permitting programs for minor sources and to [Prevention of 

Significant Deterioration (PSD)] permitting programs required by part C of title I of the 

CAA, (D)(i)(II), (D)(ii), (E)–(H) and (J)–(M).

3 We explained that “sections 110(a)(2)(C), 

(D)(i)(II), (D)(ii) and (J) (in all four subsections for the PSD-related and notificationrelated requirements only) are already addressed for Hawaii through an existing PSD FIP 

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

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

subsections.”

4

 

1

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

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

making it identical to the revised primary standard. In September 2009, EPA announced it would 

reconsider the 2008 8-hour ozone NAAQS. However, in September 2011, EPA announced its decision to 

merge the reconsideration of the 2008 NAAQS with the next scheduled 5-year review of the ozone 

NAAQS, and advised the states that the 2008 NAAQS would be implemented. 

2

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

on the 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum 

concentrations, to supplement the existing annual standard.EPA set the annual NO2 standard to 0.053 ppm.

3

78 FR 2882.

4

Id. at 2889.
2

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

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

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

explained that:

EPA has historically interpreted section 110(a)(1) of the CAA as establishing the 

required submittal date for SIPs addressing all of the ‘‘interstate transport’’ 

requirements in section 110(a)(2)(D) including the provisions in section 

110(a)(2)(D)(i)(I) regarding significant contribution to nonattainment and 

interference with maintenance. The DC Circuit’s recent opinion in EME Homer 

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

a SIP cannot be deemed to lack a required submission or deemed deficient for 

failure to meet the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that 

obligation. 

This decision is not yet final as the mandate has not been issued and the EPA has 

petitioned for rehearing en banc, asking the full court to reconsider that 

conclusion. Nonetheless, during the pendency of the appeal, the EPA intends to 

act in accordance with the holdings in the EME Homer City opinion. Therefore, 

at this time the EPA is not making findings that states failed to submit SIPs to

comply with section 110(a)(2)(D)(i)(I).5

On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation 

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

“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 

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

in the future.” 6

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

Implementation Plan Revision for 2008 Ozone and 2010 Nitrogen Dioxide National 

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

and Nitrogen Dioxide Infrastructure SIP), which includes (1) a “Certification of 

Adequacy Table” (Attachment 1), (2) a “Proposed List of Revisions to Regulatory and 

Statutory Provisions in the Hawaii State Implementation Plan” (Attachment 2); (3) 

Summary of Public Participation Proceedings (Attachment 3); (4) Hawaii Revised 

Statutes Title 19, Health Chapter 342B, Air Pollution Control Sections 4 and 5 (Appendix 

 

5

Id. at 2884-85. The D.C. Circuit denied EPA’s petition for rehearing en banc and the Supreme Court later 

agreed to review the D.C. Circuit’s decision. 2013 U.S. Lexis 4801. However, at this time the D.C. Circuit 

decision remains in place.

6

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

110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.
3

A); (5) Hawaii Administrative Rules, Chapter 11-60.1, Section 31(Appendix B); and (6) 

other supporting materials.

7

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

following elements:

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

• 110(a)(2)(D) - all sub-elements

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

agency actions) and 3 (PSD)

Such a finding of incompleteness under CAA subsection 110(k)(1)(A) would typically 

trigger a requirement for EPA to promulgate a Federal Implementation Plan (FIP) within 

two years.

8 However, in this instance, the incomplete elements of the submission are 

either addressed by an existing FIP or are not required submissions. In particular, 

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

110(a)(2)(D)(i)(II) prong 3 (interference with PSD); 110(a)(2)(D)(ii) (interstate pollution 

abatement and international air pollution); 110(a)(2)(J) sub-element 1 (consultation with 

identified officials on certain air agency actions); and 110(a)(2)(J) sub-element 3 (PSD) 

are addressed by the existing PSD FIP for Hawaii.9In addition, 110(a)(2)(D)(i)(II) prong 

4 (interference with visibility protection) is already addressed by two visibility protection 

FIPs – one to address reasonably attributable visibility impairment (RAVI)10 and one to 

address regional haze.

11 Finally, as noted above, the U.S. Court of Appeals for the 

District of Columbia (D.C. Circuit) has held that states are not required to submit 

110(a)(2)(D)(i)(I) SIPs until EPA has quantified their obligations under that section. See 

EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012). Although the 

Supreme Court is currently reviewing this D.C. Circuit decision, the D.C. Circuit 

decision remains in place at this time and, in accordance with that decision, EPA is not 

treating 110(a)(2)(D)(i)(I) as a required SIP submission.

Thus, no new FIP obligations were triggered by our partial finding of incompleteness

with respect to the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP. 

 

7 A copy of the complete Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP submittal has been placed 

in the docket for this action and is available online at http://www.regulations.gov, docket number EPAR09-OAR-2014-0317.

8

See CAA section 110(c)(1)(A). 

9

40 CFR 52.632(b).

10 40 CFR 52.633(a)-(c). 

11 See 40 CFR 52.633(d).
4

OVERVIEW 

We have evaluated the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP in relation 

to the infrastructure SIP requirements (or “elements”) of CAA section 110(a)(2) and 40 

CFR Part 51.

12 In this Technical Support Document (TSD), we first provide an evaluation 

of one rule (Hawaii Administrative Rules (HAR) § 11-60.1-31) and two statutory 

provisions (Hawaii Revised Statutes (HRS) § 342B-4 and 342B-5) submitted as part of 

the SIP revision in relation to the general SIP requirements of the CAA. We also review 

HDOH’s request to remove obsolete statutory provisions HRS §§ 342-14, 342-18 and 

342-19, from the Hawaii SIP. Then, we provide an evaluation of each infrastructure SIP 

element. We describe the requirements of each element, summarize the State’s submittal, 

and present our evaluation of the submittal.

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

Infrastructure SIP incomplete with respect to 110(a)(2)(C) (sub-element 3), 110(a)(2)(D) 

(all sub-elements) and 110(a)(2)(J) (sub-elements 1 and 3). Under CAA section 

110(k)(1)(C), where EPA determines that a portion of a SIP submission is incomplete,

EPA may treat the State as not having made this part of the submission. Accordingly, we 

are not acting on the Hawaii Ozone and Nitrogen Dioxide Ozone and Nitrogen Dioxide 

Infrastructure SIP with respect to 110(a)(2)(C) (sub-element 3), 110(a)(2)(D) (all subelements) and 110(a)(2)(J) (sub-elements 1 and 3). 

HAR SECTION 11-60.1-31

CAA requirement(s):

CAA section 110(a)(2) generally requires that SIP rules be enforceable. 13 CAA section 

110(l) prohibits EPA from approving any revision of a SIP “if the revision would 

interfere with any applicable requirement concerning attainment and reasonable further 

progress . . . or any other applicable requirement of [the Act].”

State of Hawaii response to this requirement: 

HDOH provided the full text of HAR 11-60.1-31 in Attachment 2 to the Hawaii Ozone 

and Nitrogen Dioxide Infrastructure SIP.

 

12 Two section 110(a)(2) requirements are considered by EPA to be outside the scope of infrastructure SIP 

actions because they pertain to plan requirements for nonattainment areas: (1) section 110(a)(2)(C) to the 

extent it refers to permit programs under part D; and (2) section 110(a)(2)(I) in its entirety. Therefore, this 

TSD does not address these requirements. Please see section II (“What is EPA’s approach to the review of 

infrastructure SIP submissions?”) of the notice of proposed rulemaking for this action for more information 

about the scope of our review. 

13 See CAA section 110(a)(2)(A) and (E). 
5

EPA Analysis:

HAR 11-60.1-31 provides that:

(a) All owners or operators of an air pollution source are subject to the 

requirements of this subchapter [i.e. Subchapter 2 (General Prohibitions) 

of HAR Chapter 11-60.1], whether or not the source is required to obtain a 

noncovered or covered source permit. 

(b) In the event any federal or state laws, rules, or regulations are in 

conflict with the provisions of this subchapter, the most stringent 

requirement shall apply.

SIP approval of HAR section 11-60.1-31 will enhance the enforceability of other SIPapproved rules. Nothing in section 11-60.1-31 interferes with Hawaii’s authority or 

capacity to carry out the implementation plan as required by CAA section 110(a)(2). 

HAR section 11-60.1-31 also does not relax any applicable requirements and thus will 

not interfere with any existing SIP requirement, consistent with CAA section 110(l).

Therefore, we propose to approve HAR section 11-60.1-31 into the Hawaii SIP.

HAWAII REVISED STATUTES SECTIONS 342B-4 (OTHER POWERS OF DEPARTMENT AND 

DIRECTOR NOT AFFECTED) AND 342B-5 (EFFECT OF LAWS, ORDINANCES, AND RULES)

CAA requirement(s):

CAA section 110(a)(2) generally requires SIP provisions to be enforceable. CAA section 

110(l) prohibits EPA from approving any revision of a SIP “if the revision would 

interfere with any applicable requirement concerning attainment and reasonable further 

progress . . . or any other applicable requirement of [the Act].” 

State of Hawaii response to this requirement: 

HDOH provided the full text of HRS § 342B-4 (Other powers of department and director 

not affected) and HRS § 342B-5 (Effect of laws, ordinances, and rules) in Attachment 2

to the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP.

EPA Analysis:

HRS § 342B-4. (Other powers of department and director not affected) provides that: 

The powers, duties, and functions vested in the department and director under this 

chapter shall not be construed to affect in any manner the powers, duties, and 

functions vested in the department and director under any other law. Rules shall 

be adopted pursuant to chapter 91.

This provision is identical to the SIP-approved statutory provision HRS 342-18, (Other 

powers of department and director not affected) except that it applies to both the director 
6

of HDOH and HDOH itself and provides that “[r]ules shall be adopted pursuant to 

chapter 91.

HRS § 342B-5. (Effect of laws, ordinances, and rules) provides that: 

(a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no 

effect.

(b) Any county may adopt ordinances and rules governing any matter relating to air 

pollutant and air pollution control which is not governed by a rule of the department 

adopted pursuant to this chapter; provided that any county ordinance or rule relating to 

air pollution control shall be void and of no effect as to any matter regulated by a rule 

of the department upon the adoption thereof.

This provision is very similar to the SIP-approved statutory provision HRS 342-19. The 

only substantive differences are that 342-19 applied to “any matter relating to an 

environmental quality control” and also included a provision concerning sewerage 

treatment plants. The applicability of 342B-5 to “governing any matter relating to air 

pollutant and air pollution control” is appropriate for purposes of the CAA.

We find that SIP approval of HRS §§ 342B-4 and 342B-5 will enhance the 

enforceability of the SIP and will not interfere with any other requirements of the CAA.

Therefore, we propose to approve HRS §§ 342B-4 and 342B-5 into the Hawaii SIP and 

to move HRS §§ 342-18 and 342-19 from the SIP. 

REMOVAL OF HRS § 342-14 (TECHNICAL DEFECT)

In Attachment 2 to the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP, HDOH 

requested that EPA remove HRS § 342-14 (Technical Defect) from the SIP. HDOH notes 

that, “this statutory provision was repealed in 1989 and is no longer effective State law. It 

is not necessary to fulfill any SIP requirements.” We agree that this repealed provision is 

not necessary to fulfill any SIP requirements. Therefore, propose to remove HRS § 342-

14 from the Hawaii SIP. 

SECTION 110(A)(2)(A): EMISSION LIMITS AND OTHER CONTROL MEASURES

CAA requirement(s):

Section 110(a)(2)(A) requires SIPs to “include enforceable emission limitations and other 

control measures, means, or techniques (including economic incentives such as fees, 

marketable permits, and auctions of emissions rights), as well as schedules and timetables 

for compliance, as may be necessary or appropriate to meet the applicable requirements 

of this Act.”
7

State of Hawaii response to this requirement: 

Statutory provisions relevant to this element:

HRS §342B-3 General functions, duties, and powers of the director14

HRS §342B-11 Prohibition

HRS §342B-12 Specific powers of the director

HRS §342B-21 Specific functions, duties, and powers of the director

Hawaii Revised Statutes 342B-3, 342B-11, 342B-12, and 342B-21 give the department15

the authority and duty to establish rules to prevent, control, and abate air pollution and 

the emission of air pollutants16 in the State. The director may:

1. Establish ambient air quality standards for the State;

2. Establish and administer any permit program;

3. Establish by rule the control of open burning, fugitive dust, and visible emissions;

4. Establish by rule the control of vehicular smoke emission and require the 

installation, use, and proper operation and maintenance of air pollution control 

equipment for motor vehicles;

5. Establish and administer a program of inspection and testing of all modes of 

transportation except aircraft, to enforce compliance with applicable emission 

limitations when necessary and practicable, and to control or limit the operation 

of motor vehicular and other modes of transportation when the director finds 

pursuant to standards established by rules such modes of transportation are 

producing or pose an immediate danger of producing unacceptable levels of air 

pollution or when such control is necessary to meet applicable ambient air quality 

standards;

6. Establish by rule other specific areas for control of air pollution, thereby allowing 

for varying conditions.

Regulatory provisions relevant to this element:

HAR §11-60.1-1 Definitions

HAR §11-60.1-2 Prohibition of air pollution

This rule specifies that no person shall engage in any activity which causes air 

pollution or causes or allows the emission of any regulated or hazardous air 

pollutant without first securing approval in writing from the director.

HAR §11-60.1-15 Reporting of equipment shutdown

This provision requires prior notification of the intent to shutdown air pollution 

control equipment but does not exempt sources from enforcement action if 

emissions occur as a result of a planned shutdown.

 

14 As defined in HRS §342B-1, the “director” means the director of health

15 As defined in HRS §342B-1, the “department” means the department of health

16 The statutory definition of “air pollutant’ has the same meaning as in the Clean Air Act, 42 U.S.C. 

§7602(g)
8

HAR §11-60.1-16 Prompt reporting of deviations

This requires sources to submit prompt notification if excess emissions occur as a 

result of the breakdown or malfunction of any emission unit, air pollution control 

equipment or related equipment but does not exempt sources from enforcement 

action if such excess emissions occur. 

HAR §11-60.1-31 Applicability (This is the initial submission of HAR §11-60.1-31 for

incorporation into Hawaii’s SIP.)

HAR §11-60.1-32 Visible Emissions

This sets visible emission limitations on stationary sources. 

HAR §11-60.1-34 Motor vehicle

Restricts the emission of visible smoke from gasoline or diesel-powered motor 

vehicles, the amount of time and location an engine may idle, and prohibits the 

dismantling or failure to maintain or operate any equipment or feature of a motor 

vehicle air pollution control system or mechanism that is required by the 

provisions of the Clean Air Act.

HAR §11-60.1-40 Volatile organic compound water separation

Requires vapor loss control device installation and operation on single or multiple 

compartment volatile organic compound water separators.

HAR §11-60.1-41 Pump and compressor requirements

Requires seal installation on pumps and compressors handling volatile organic 

compounds.

HAR §11-60.1-42 Waste gas disposal

Prohibits volatile organic gas stream emissions without use of an appropriate 

control device.

HAR §11-60.1-51 [Open Burning] Definitions (Amended January 13, 2012)

HAR §11-60.1-53 Agricultural burning: permit applicability (Amended January 13, 

2012)

Requires that any person engaged in any agricultural operation, forest 

management, or range improvement first obtain an agricultural burning permit 

prior to conducting an agricultural burn. Any person failing to comply with the 

terms and conditions of the permit or this chapter is subject to penalties and 

remedies provided for in sections §342B-42, §342B-44, §342B-47, and §342B-48.

HAR §11-60.1-54 Agricultural burning permit application (Amended January 13, 

2012)

HAR §11-60.1-56 Agricultural burning: recordkeeping and monitoring

Requires permittees to monitor and maintain records of each agricultural burn 

conducted in accordance with the permit.

HAR §11-60.1-90 Permit 

Requires that all covered source permits consider and incorporate emission 

limitations and standards, including operational requirements and limitations to 

assure compliance with all applicable requirements at the time of permit issuance;

• Requires the installation of devices for the measurement or analysis of 

source emissions;

• Requires source emissions tests to determine compliance with terms and 

conditions of the covered source permit and applicable requirements;
9

• Requires recordkeeping and reporting requirements to assure compliance 

with all terms and conditions of the permit.

EPA Analysis:

Hawaii had appropriately identified existing EPA-approved SIP provisions that limit 

emissions of NO2 and ozone precursors (nitrogen oxides and VOCs). In addition, EPA is 

now proposing to approve HAR section 11-60.1-31 into the Hawaii SIP.

Therefore, we propose to find that the Hawaii Ozone and Nitrogen Dioxide Infrastructure 

SIP meets the requirements of 110(a)(2)(A) for the 2008 ozone and 2010 nitrogen 

dioxide NAAQS. 

SECTION 110(A)(2)(B): AMBIENT AIR QUALITY MONITORING/DATA SYSTEM

CAA requirement(s):

Section 110(a)(2)(B) requires SIPs to “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.”

State of Hawaii response to this requirement:

Statutory provisions relevant to this element:

HRS §342B-7(1) Annual Reports

Pursuant to this statute, the department is required to compile an annual report 

summarizing air quality data from all air quality monitoring stations.

Discussion

On August 10, 1981, EPA approved an air quality surveillance plan as a revision to the 

Hawaii SIP, 46 FR 40512. On July 9, 2004, EPA approved an amendment to the state’s 

air quality surveillance network as a revision to the Hawaii SIP, 69 FR 41431.

The department operates and maintains an air quality monitoring network for the state of 

Hawaii in accordance with 40 CFR Part 58 Appendix A, C, D, and E using EPA approved 

Federal Reference or Federal Equivalent Methods. Information about the monitoring 

stations along with their associated data can be viewed by the public on the department’s 

website.

The annual air monitoring network plans have been submitted in accordance with 40 CFR 

58.10. The 2013 network plan was submitted July 1, 2013, included all the required plan 

elements, and was approved by EPA on December 11, 2013. The state’s ambient air 

quality network meets or exceeds the minimum monitoring requirements for O3 and NO2. 
10

NO2 near-road monitoring for CBSAs with a population of 500,000 or more is required to 

be operational by January 1, 2017. The only Metropolitan Statistical Area (MSA) in the 

state is the City and County of Honolulu which had a 2010 census population of 953,207. 

DOH, with EPA regional input, has selected a site for near-road monitoring and will 

include the details in the 2016 Network Plan for final EPA approval.

The annual data certification letter is submitted to the Administrator in accordance with 

40 CFR 58.15. 

All quality assured, validated data is submitted to EPA’s AQS in accordance with 40 CFR 

58.16

The annual data summary and annual network plan are provided for public viewing on 

the department’s website.

EPA Analysis:

On December 11, 2013, EPA approved Hawaii’s 2013 Annual Air Monitoring Network 

Plan.

17 This plan provides for an existing network of 13 monitors, which meet the 

technical requirements of 40 CFR 58, Subpart B. 

The State of Hawaii submits data to AQS in accordance with the deadlines in 40 CFR 

section 58.16. EPA's last Technical System Audit (TSA) of Hawaii was completed in 2011

and found that Hawaii's operations met the requirements for collecting regulatory data.

18

We propose to find that the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP meets

the requirements of CAA Section 110(a)(2)(B) for the 2008 ozone and 2010 nitrogen 

dioxide NAAQS.

SECTION 110(A)(2)(C): PROGRAMS FOR ENFORCEMENT, PSD, AND NSR

CAA requirement(s):

CAA section 110(a)(2)(C) requires SIPs to “include a program to provide for the 

enforcement of the measures described in [section 110(a)(2)(A)], and regulation of the 

modification and construction of any stationary source within the areas covered by the 

plan as necessary to assure that national ambient air quality standards are achieved, 

including a permit program as required in parts C and D [of Title I of the Clean Air 

Act].”

 

17 A copy of our approval letter is in the docket for this rulemaking.

18A copy of the TSA is in the docket for this rulemaking.
11

State of Hawaii response to this requirement:

Sub-element 1: enforcement of emissions limitations and other control measures

Statutory provisions that provide the authority to enforce emissions limitations and 

control measures

HRS §342B-15 Complaints; hearings; appointment of masters

Allows for the receipt or initiation, investigation, and legal proceedings of 

complaints on air pollution. 

HRS §342B-41 Inspection of premises

In accordance with the law, provides for the inspection or investigation of actual 

or suspected sources of air pollution to ascertain compliance or noncompliance 

with any rule, standard or permit.

HRS §342B-42 Enforcement

Specifies the enforcement procedures on any person in violation of this chapter, 

rule or any issued permit or variance.

HRS §342B-43 Emergency powers; procedures

Provides emergency powers to the governor or director in the event that there is 

an imminent peril to public health and safety due to the release of any air pollutant 

or combination of air pollutants that requires immediate action.

HRS §342B-44 Injunctive and other relief

Allows the director to impose and collect civil and administrative penalties or 

obtain other relief.

HRS §342B-45 Citation

Any person who violates the vehicular smoke emission and open burning control 

rules may be issued a summons or citation for the violation.

HRS §342B-46 Appeal

Provides for the appeal process for an enforcement decision.

HRS §342B-47 Civil penalties

Sets fines for violations of the vehicular smoke emission rule, open burning control 

rule, and any other rule or condition of an issued permit.

HRS §342B-48 Administrative penalties

HRS §342B-49 Criminal penalties

HRS §342B-50 Disposition of collected fines and penalties

Requires that all fines and penalties collected under this chapter be deposited into 

the environmental response revolving fund.

HRS §342B-51 Enforcement by state and county authorities

HRS §342B-52 Nonliability of department personnel

HRS §342B-53 Other action not barred

HRS §342B-54 Priority in courts

HRS §342B-55 Consent orders; settlement agreements

Regulatory provision for the implementation of these statutory authorities: 

HAR §11-60.1-19 Penalties and remedies

States that any person who violates any provision of this chapter or any term or 

condition of a permit shall be subject to the penalties and remedies provided in 

§342B sections 42, 44, 47, and 48.
12

Sub-element 2: regulation of the construction and modification of stationary sources

Statutory provisions that provide the authority for this element:

HRS §342B-21 Specific functions, duties, and powers of the director

HRS §342B-22 Permit and permit renewal; requirements

Requires that the owner or operator of a covered source obtain a permit from the 

department.

HRS §342B-23 Application for permit

HRS §342B-24 Action on a permit application

HRS §342B-25 Approval of permit

HRS §342B-26 General and temporary permits; single permit

HRS §342B-27 Other permit action

Provides the conditions under which the director may terminate, modify, suspend, 

or revoke and reissue any permit.

HRS §342B-28 Recordkeeping and monitoring requirements

HRS §342B-29 Fees

HRS §342B-30 Judicial review

HRS §342B-31 Government records; confidential information

HRS §342B-32 Clean air special fund

HRS §342B-33 Minimum permit conditions

HRS §342B-34 Exceptions

The construction and modification of stationary sources in Hawaii is primarily regulated 

through the Hawaii Administrative Rules §11-60.1 which encompasses the covered source 

permit program and have been approved into Hawaii’s SIP. See 77 FR 24148 and 77 FR 

25084.

Regulatory provisions for the implementation of the statutory authorities include:

HAR §11-60.1-1 Definitions

HAR §11-60.1-2 Prohibition of air pollution

HAR §11-60.1-3 General conditions for considering applications

HAR §11-60.1-5 Permit conditions

Allows the director to impose more restrictive conditions in a permit to further 

limit the air pollutants and operation of the source.

HAR §11-60.1-7 Transfer of permit

Except for temporary permits issued pursuant to this chapter, this rule prohibits 

the transfer of a permit from one person to another or from one location to another 

without approval from the director.

HAR §11-60.1-11 Sampling, testing, and reporting methods

HAR §11-60.1-12 Air quality models

HAR §11-60.1-14 Public access to information 

HAR §11-60.1-81 [Covered Sources] Definitions

Includes definitions used for the covered source program.

HAR §11-60.1-82 [Covered Sources] Applicability

HAR §11-60.1-83 Initial covered source permit application
13

HAR §11-60.1-84 [Covered Sources] Duty to supplement or correct permit

applications

HAR §11-60.1-90 Permit content

Lists elements to be considered and incorporated into all covered source 

permits as applicable, including (but not limited to):

• Emission limitations and standards, including operational requirements;

• Requirements for the installation of measurement devices for source 

emissions or ambient concentrations of air pollutants;

• Requirement for source emissions tests or alternative testing 

methodologies;

Monitoring and recordkeeping requirements 

HAR §11-60.1-91 Temporary covered source permits

Requires owners or operators of a temporary covered source to certify its intention 

to operate at various locations with the same equipment and similar operational 

methods.

HAR §11-60.1-92 Covered source general permits

Governs the issuance of general permits for similar nonmajor covered sources.

HAR §11-60.1-93 Federally-enforceable permit terms and conditions

States that terms and conditions in a covered source permit are federally 

enforceable.

HAR §11-60.1-99 Public participation

HAR §11-60.1-103 Applications for minor modifications

Every application for a minor modification to a covered source is required to 

submit sufficient information to enable the director to make a decision on the 

application. Some of the information required include:

• A clear description of all changes;

• A statement of why the modification is determined to be minor;

• Maximum emission rates;

• The identification of any new applicable requirements that will apply if 

the minor modification occurs.

HAR §11-60.1-104 Applications for significant modifications

This rule states that every application for a significant modification to a covered 

source is subject to the same requirements as for an initial covered source permit 

application pursuant to 11-60.1-83 as it pertains to the proposed significant 

modification.

 

Discussion

EPA determined that Hawaii’s SIP did not include approvable procedures for preventing 

significant deterioration of air quality. Therefore EPA incorporated 40 CFR 52.21 into 

the applicable Hawaii plan, see 40 CFR 52.632(b). DOH has been delegated the 

authority to implement the provisions of 40 CFR 52.21 since 1983.
14

EPA Analysis:

CAA section 110(a)(2)(C) consist of three sub-elements: enforcement, state-wide 

regulation of new and modified minor sources and minor modifications of major sources 

(i.e. minor source NSR), and pre-construction 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 PSD program).19 As explained 

above, we are not acting on the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP 

with respect to the major source PSD permitting program. Therefore, we are evaluating 

only the enforcement and minor source NSR sub-elements of 110(a)(2)(C).

Sub-element 1: Enforcement

Hawaii has appropriately identified the statutes and regulations in the existing SIP that 

provide for enforcement of the emission limits and control measures that HDOH has 

identified in its submission for Element A (Emissions limits and other control measures). 

Therefore, we propose to find that the Hawaii Ozone and Nitrogen Dioxide Infrastructure 

SIP meets the enforcement requirements of 110(a)(2)(C).

Sub-element 2: Regulation of minor sources and minor modifications

Hawaii has identified various EPA-approved SIP provisions that comprise the minor 

source pre-construction program that regulates emissions of nitrogen dioxide and ozone.

Therefore, we propose to find that the Hawaii Ozone and Nitrogen Dioxide Infrastructure 

SIP meets the minor NSR requirements of 110(a)(2)(C) with respect to the 2008 ozone 

and 2010 nitrogen dioxide NAAQS.

SECTION 110(A)(2)(D): INTERSTATE TRANSPORT PROVISIONS

CAA requirement(s):

CAA Section 110(a)(2)(D) requires SIPs to:

“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 

 

19 As explained above, EPA interprets the portion of section 110(a)(2)(C) that pertains to a permitting 

program that applies to nonattainment NSR 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 under part D, in title I of the CAA. 
15

(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.

(ii) Each such plan shall contain adequate provisions insuring compliance with the 

applicable requirements of sections 126 and 115 (relating to interstate and 

international pollution abatement).”

State of Hawaii response to this requirement:

Discussion

In a November 19, 2012 memo from Assistant Administrator Gina McCarthy, EPA 

informed the Regional Air Directors of the ongoing litigation of the Cross-State Air 

Pollution Rule (CSPAR). Although the DOH believes that the two subject pollutants 

would not show interstate impacts, due to the CSPAR litigation, we are not submitting a 

Technical Support Document addressing interstate and international pollutant transport 

in this infrastructure SIP.

Regarding 110(a)(2)(D)(i)(II):

As noted in Section 110(a)(2)(C), EPA determined that Hawaii’s SIP did not include 

approvable procedures for preventing significant deterioration of air quality. Therefore 

EPA incorporated 40 CFR 52.21 into the applicable Hawaii plan, see 40 CFR 52.632(b). 

DOH has been delegated the authority to implement the provisions of 40 CFR 52.21 

since 1983.

EPA Analysis:

As explained above, we are not taking action with respect to section 110(a)(2)(D)

because we determined that the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP is 

incomplete with respect to this section. 

SECTION 110(A)(2)(E): ADEQUATE PERSONNEL, FUNDING, AND AUTHORITY, STATE 

BOARDS AND ADEQUATE IMPLEMENTATION BY LOCAL GOVERMENTS

CAA requirement(s):

CAA Section 110(a)(2)(E) requires SIPs to “provide (i) necessary assurances that the 

State (or, except where the Administrator deems inappropriate, the general purpose local 

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

purpose local governments for such purpose) will have adequate personnel, funding, and 

authority under State (and, as appropriate, local) law to carry out such implementation 

plan (and is not prohibited by any provision of Federal or State law from carrying out 

such implementation plan or portion thereof), (ii) requirements that the State comply with 

the requirements respecting State boards under section 128, and (iii) necessary assurances 

that, where the State has relied on a local or regional government, agency, or 

instrumentality for the implementation of any plan provision, the State has responsibility 

for ensuring adequate implementation of such plan provision.”
16

State of Hawaii response to this requirement:

Sub-element (i): adequacy of personnel, funding, and authority to carry out an 

implementation plan

Statutory provisions that provide the legal authority for implementation:

HRS §342B-2: Administration

Specifies that the department shall administer this chapter through the 

director who may delegate to any person the power and authority vested 

in the director by this chapter as the director deems reasonable and 

proper for the effective administration of this chapter, except the power to 

make rules.

HRS §342B-3 General functions, duties, and powers of the director

Provides the director the authority to:

(a) prevent, control, and abate air pollution and the emission of air 

pollutants in the state;

(b) adopt, amend, and repeal state rules controlling and 

prohibiting air pollution and the release of air pollutants or as 

otherwise necessary for the purposes of this chapter; and,

(c) appoint hearings officers to conduct contested case hearings 

and public participation activities, including public hearings and 

public informational meetings.

HRS §342B-12 Specific powers of the director

Identifies additional specific powers of the director to administer and 

manage the air program.

Discussion

The entire air program is administered and managed at the state level by the Department 

of Health, Environmental Health Administration, Environmental Management Division, 

Clean Air Branch with support services provided by the State laboratories Division, Air 

Surveillance and Analysis Section.

The majority of the program’s funding is obtained through the collection of fees from the 

regulated community and placed into a special fund with the sole purpose of developing 

and administering the air program. State matching and U.S. EPA grant monies provide 

the remainder of funding support. Funding is reviewed annually to ensure adequacy for 

program operations. The state does not rely on any local or regional government agency 

or entity for the implementation of any SIP provision. In fiscal year 2012, the available 

funds for the air program has been over $3 million dollars with 47 FTE dedicated to the 

the air program. At the present time, this funding is adequate.

Sub-element (ii): ensure compliance with State Board requirements

The department does not have a State Board within the meaning of CAA §128. The 

director is provided the authority to administer all aspects of the air program through 

HRS §342B-2 and HRS §342B-3. Provisions in HRS §84 (Standards of Conduct) 

prescribes a code of ethics for elected officers and public employees of the state and is 
17

administered by the State Ethics Commission. Standards of conduct and conflict of 

interest provisions included in this chapter are as follows:

HRS §84-1 Construction

This chapter shall be liberally construed to promote high standards of 

ethical conduct in state government.

HRS §84-2 Applicability

This chapter applies to every nominated, appointed, or elected officer, 

employee, and candidate to elected office of the State.

HRS §84-3 Definitions

HRS §84-11 Gifts

HRS §84-11.5 Reporting of gifts

HRS §84-12 Confidential information

HRS §84-14 Conflicts of interests

This rule prohibits an employee from taking any official action directly 

affecting: 1) a business or other undertaking in which there is a 

substantial financial interest or, 2) a private undertaking in which the 

employee serves as legal counsel, advisor, consultant, representative, or 

other capacity.

This rule also prohibits an employee from acting or assisting on behalf of 

any person or business for a fee or other compensation if the employee is 

involved in any official capacity.

HRS §84-17 Requirements of disclosure

HRS §84-18 Restrictions on post employment

Prohibits state employees within 12 months after separation of service 

from representing any person or business for a fee or other consideration, 

on matters in which the former employee participated in an official 

capacity.

Sub-element (iii): implementation of the plan by local or regional government, agency, 

or instrumentality

The state Department of Health is solely responsible for administering the air program. 

The state does not rely on any other local or regional government, agency, or 

instrumentality for the implementation of the plan.

EPA Analysis:

Sub-element (i) 

As part of our action on Hawaii’s 2011 Infrastructure SIP, EPA approved the applicable 

SIP all of the statutory provisions cited by DOH in relation to CAA section 

110(a)(2)(E)(i), section as well as various other statutory provisions.20 We also 

 

20 See 77 FR 47530 (August 9, 2012). A list of these statutory provisions and their complete text are found 

in Attachment 1 and Appendix A of the 2011 Hawaii Infrastructure SIP, respectively.
18

determined that these provisions provided necessary assurances that Hawaii had adequate 

authority under State law to carry out its SIP and is not prohibited by any provision of 

Federal or State law from carrying out such implementation plan or portion thereof.21 We 

are now proposing to approve HRS § 342B-4 (Other powers of department and director 

not affected and HRS § 342B-5 (Effect of laws, ordinances, and rules) into the SIP, 

which will further clarify the scope of DOH’s authorities. 

HDOH has informed EPA that in 2014, there is an overall budget of over $4 million22

and has certified that there is adequate funding to implement the 2008 ozone and 2010 

nitrogen dioxide NAAQS. 

Based on this information, we propose to find that the Hawaii Ozone and Nitrogen 

Dioxide Infrastructure SIP meets the requirements of CAA section 110(a)(2)(E)(i) for the 

2008 ozone and 2010 nitrogen dioxide NAAQS.

Sub-element (ii) 

CAA section 128(a) provides that: 

Not later than the date one year after August 7, 1977, each applicable implementation 

plan shall contain requirements that—

(1) any board or body which approves permits or enforcement orders 

under this Act shall have at least a majority of members who represent the 

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

from persons subject to permits or enforcement orders under this Act, and 

(2) any potential conflicts of interest by members of such board or body or 

the head of an executive agency with similar powers be adequately 

disclosed.

42 U.S.C. 7428. States are allowed to adopt “any requirements ... which are more 

stringent,” and the Administrator is required to “approve any such more stringent 

requirements.” 

With respect to 128(a)(1), Hawaii does not have a “board or body which approves 

permits or enforcement orders” under the CAA. Instead, the Director of HDOH is vested 

with the authority to approve permits and enforcement orders. See, e.g., HRS section 

section 342B-21 & 342B-42.

 

21 See “EPA Region IX, Technical Support Document: Evaluation of 2011 Hawaii Infrastructure SIP for 

1997 Ozone; 1997 Particulate Matter; and 2006 Particulate Matter NAAQS” (March 2012)( 2011 Hawaii 

Infrastructure SIP TSD). 

22 Email from Barry Ching to Dawn Richmond (April 17, 2014). 
19

As part of its 2011 Infrastructure SIP, Hawaii submitted for incorporation into the SIP

several provisions of state law that set forth standards of conduct for government 

employees (HRS Chapter 84). In particular, HRS section 84-17(c)(2) requires “[t]he 

directors and their deputies, the division chiefs, the executive directors and the executive 

secretaries and their deputies . . . regardless of the titles by which the foregoing persons 

are designated, of every state agency and department” to “file annually with the state 

ethics commission a disclosure of financial interests.”

23 Pursuant to HRS section 84-

17(d)(2), these financial disclosure statements are public records and available for 

inspection and duplication. In addition, under HRS section 84-11.5, all state employees 

are required to file an annual “gifts disclosure statement” with the state ethics 

commission, if they (or their spouse or dependent child) receive gifts meeting certain 

conditions. 

As part of our action on Hawaii’s 2011 Infrastructure SIP, EPA approved these

provisions into the applicable implementation plan for Hawaii and to determined that 

they met the requirements of CAA section 110(a)(2)(E)(ii) for the NAAQS addressed by 

that action.

We now propose to determine that these provisions also meet the requirements of CAA 

section 110(a)(2)(E)(ii) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.

Sub-element (iii) 

Hawaii’s SIP submittal indicates that DOH does not currently rely on any local or 

regional government, agency, or instrumentality for the implementation of any plan 

provision. We note that HRS section 342B-51 provides that “all state and county health 

authorities and police officers shall enforce this chapter and the rules, orders, and permits 

of the department.” This enforcement authority is concurrent with DOH’s enforcement 

authority, as set forth in HRS Chapter 342B, Part IV. Therefore, any shortcoming in 

implementation by local officials could be easily remedied through the exercise of 

DOH’s own enforcement authority. Accordingly, we propose to find that Hawaii has met 

the requirements of CAA section 110(a)(2)(E)(iii) for the 2008 ozone and 2010 nitrogen 

dioxide NAAQS.

 

23 Under HRS section 84-3, “financial interest” is defined as: 

an interest held by an individual, the individual's spouse, or dependent children which is:

(1) An ownership interest in a business.

(2) A creditor interest in an insolvent business.

(3) An employment, or prospective employment for which negotiations have begun.

(4) An ownership interest in real or personal property.

(5) A loan or other debtor interest.

(6) A directorship or officership in a business.
20

SECTION 110(A)(2)(F): STATIONARY SOURCE MONITORING AND REPORTING

CAA requirement(s):

CAA Section 110(a)(2)(F), provides that each SIP:

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.

State of Hawaii response to this requirement:

Sub-element (i): requirements to monitor emissions

Statutory provision relevant to this element:

HRS §342B-28 Recordkeeping and monitoring requirements 

Provides the director with the authority to require an owner or operator of any 

source on a continuous, periodic, or one-time basis to:

(1) Establish, maintain, and submit records;

(2) Draft reports;

(3) Install, use, and maintain monitoring equipment, and use audit 

procedures or methods;

(4) Sample emissions in accordance with such procedures or methods, at 

locations, intervals, during periods, and in the manner prescribed by the 

director;

(5) Keep records on the source and the control equipment parameters, 

production variables, or other indirect data when direct monitoring is

impractical;

(6) Sample and analyze the composition of the fuel, waste, or other 

products being burned or incinerated;

(7) Submit compliance certifications; and,

(8) Provide other information as the department may require.

Regulatory provisions applicable to this element include: 

HAR §11-60.1-11 Sampling, testing, and reporting methods

This rule specifies that:

(a) all sampling and testing be made and results calculated in accordance 

with EPA reference methods or as approved by the director;

(b )the department may conduct emission tests of air pollutants or require 

the source to conduct tests at the owner or operator’s expense;

(c) the director may require the source to maintain files on process 

information, nature, amount, and time periods or durations of emissions or 
21

any other information deemed necessary to determine compliance with 

applicable limits, national or state ambient air quality standards, or other 

provisions of this chapter;

(d) the information be summarized and reported to the director as specified 

in the permit;

(e ) the reports be retained for a specified time period; and

(f) the owners or operators correlate applicable emission limits and other 

requirements in the report.

HAR §11-60.1-90 Permit content 

The following conditions within this provision require covered source permits to 

include:

(5) a requirement for the installation of devices for the measurement or 

analysis of source emissions or ambient concentrations of air pollutants;

(6) a condition for source emissions tests or alternative methodology to 

determine compliance with permit conditions and applicable 

requirements;

(7)(B) monitoring and related recordkeeping and reporting requirements to

assure compliance with terms and conditions of the permit;

(7)(D) a requirement to install, use, and maintain monitoring equipment. 

Sub-element (ii): periodic reports on emissions and emissions-related data

Statutory provision relevant to this element:

HRS §342B-7 Annual reports

Pursuant to this statute, the department must compile, among other things, a 

report summarizing annual criteria pollutant emissions and all completed or issued 

enforcement actions.

HRS §342B-28 Recordkeeping and monitoring requirements

 

Regulatory provisions applicable to this element include:

HAR §11-60.1-11 Sampling, testing, and reporting methods

HAR §11-60.1-90 Permit content

The following conditions within this provision require covered source permits to 

include:

(7)(A) all reporting, emissions monitoring and analysis procedures or test 

methods;

(7)(B) monitoring and related recordkeeping and reporting requirements to 

assure compliance with terms and conditions of the permit;

(7)(F) specifics of sampling or measurements such as place, date, time, 

entity that performed the analyses, analytical techniques or methods 

used,results and operating conditions during testing or sampling;

(7)(G) other records including support information, such as calibration 

and maintenance records, original stripchart recordings or computer 

printouts for continuous monitoring instrumentation;

(7)(H) retention period for all required monitoring data and support 

information;
22

(7)(I) time period for submission of reports;

(7)(J) prompt reporting of permit deviations

Sub-element (iii): correlation of reports to emission limits or standards and availability 

for public inspection

Statutory provision relevant to this element:

HRS §342B-7 Annual reports

§342B-7(2) requires the department to compile an annual report 

summarizing criteria pollutant emissions and §342B-7(4) requires an annual 

report for all completed or issued enforcement actions.

HRS §342B-31 Government records; confidential information

This rule requires the department to make all records pursuant to this 

chapter open to public inspection unless access is restricted or closed by law.

The following permit program documents are deemed to be 

government records:

(1) Permit applications and all supporting information;

(2) Compliance plans (including schedules of compliance);

(3) Emissions or compliance monitoring reports;

(4) Certifications;

(5) Permits, and

(6) Any other information submitted to the department pursuant to the 

permit program.

Regarding confidentiality, the rule states: “upon a showing satisfactory to 

the director by any person that records, reports, or information, or particular part 

thereof (other than emission data), to which the director has access pursuant to 

this chapter, contain information of a confidential nature concerning secret 

processes or methods of manufacture, these records, reports, or information shall 

be kept confidential except that such record, report, or information may be 

disclosed to other officers or employees of the department and EPA concerned 

with carrying out this chapter or when relevant in any proceeding pursuant to this 

chapter.” Therefore, emissions data is not considered confidential information 

under this rule.

HRS §342B-41 Inspection of premises

Provides that the director, in accordance with the law, be allowed to enter 

and inspect any building or place to investigate an actual or suspected source of 

air pollution, ascertain compliance or noncompliance with this chapter or any 

rule, standard, permit or approval granted by the department, and make 

reasonable tests in connection therewith.

Regulatory provisions applicable to this element include:

HAR §11-60.1-11 Sampling, testing, and reporting methods

(f) Owners or operators of stationary sources shall correlate applicable emission 

limitations and other requirements within the report.

HAR §11-60.1-14 Public access to information

Requires that the following information be made available for public inspection:
23

(1) All permit applications;

(2) All supporting information for permit applications;

(3) Compliance plans and schedules;

(4) Reports and results associated with performance tests and continuous 

emission monitors;

(5) Ambient air monitoring data and emissions inventory data;

(6) Certifications;

(7) Any other information submitted to the department pursuant to the 

noncovered and covered source permit program;

(8) Permits; and

(9) Public comments or testimonies received during any public comment 

period or public hearing.

Exceptions are provided for materials to which “access is restricted or closed by law” 

or which contain information of a confidential nature. The procedures for 

determining confidential information are established by HAR §11-60.1-14(b)-(f).

EPA Analysis:

Sub-element (i): Hawaii has identified the statutory and regulatory provisions in its SIP 

that govern source monitoring. Therefore, we propose to find that Hawaii’s SIP meets the 

requirements of 110(a)(2)(F)(i) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.

Sub-element (ii): Hawaii has identified the SIP-approved statutory and regulatory 

provisions that require periodic reporting of emissions and emissions-related data by 

sources to DOH. Therefore, we propose to find that Hawaii’s SIP meets the requirements 

of 110(a)(2)(F)(ii) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.

Sub-element (iii): Hawaii has identified existing SIP-approved statutes and regulations 

that provide for correlation of emissions reports by sources with applicable emission 

limitations or standards and the public availability of emission reports by sources.

Therefore, we propose to find that Hawaii’s SIP meets the requirements of 

110(a)(2)(F)(iii) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.

SECTION 110(A)(2)(G): EMERGENCY EPISODES

CAA requirement(s):

CAA section 110(a)(2)(G) requires SIPs to “provide for authority comparable to that in 

[section 303 of the CAA] and adequate contingency plans to implement such authority.”

State of Hawaii response to this requirement:

Statutory provision comparable to that found in section 7603 of the CAA:

HRS §342B-43 Emergency powers; procedures
24

(a) Provides that if the governor or the director determines that an 

imminent peril to the public health and safety is or will be caused by 

the release of any air pollutant or combination of air pollutants that 

requires immediate action, they can, without a public hearing, order 

any person causing or contributing to the release of the air pollutant 

to immediately reduce or stop the release and may take any and all 

other actions as necessary.

(b) States that: “Nothing in this section shall be construed to limit any 

power which the governor or any other officer may have to declare an 

emergency and act on the basis of such a declaration, if such power is 

conferred by statute or constitutional provision, or inheres in the 

office.”

Regulatory provision relevant to this element:

HAR §11-60.1-17 Prevention of air pollution emergency episodes

Designed to prevent excessive buildup of air contaminants during air 

pollution episodes and set conditions for the proclamation of an air 

pollution alert, warning or emergency.

Discussion

Section VIII of Hawaii’s initial SIP, approved by EPA on May 31, 1972, 

addresses the Prevention of Emergency Episodes.

Hawaii is classified as Priority III for O3 and NO2 therefore, no contingency 

plans are required under 40 CFR §51.152(c). Current local conditions for O3 

are posted on EPA’s AIRNow Hawaii page and all monitored pollutants, 

including O3 and NO2 are posted “real-time” on the department’s website.

EPA Analysis:

Section 303 of the Act provides in relevant part that:

. . . the Administrator, upon receipt of evidence that a pollution source or 

combination of sources (including moving sources) is presenting an 

imminent and substantial endangerment to public health or welfare, or the 

environment, may bring suit on behalf of the United States in the 

appropriate United States district court to immediately restrain any person 

causing or contributing to the alleged pollution to stop the emission of air 

pollutants causing or contributing to such pollution or to take such other 

action as may be necessary. If it is not practicable to assure prompt 

protection of public health or welfare or the environment by 

commencement of such a civil action, the Administrator may issue such 

orders as may be necessary to protect public health or welfare or the 

environment. . . . 
25

In its SIP submission, Hawaii certifies that HRS section 342B-43 provides statutory 

authority comparable to that in section 303 of the CAA. We find that it provides the 

requisite authority.

EPA's implementing regulations for "contingency plans" (also known as emergency 

episode plans) are set forth at 40 CFR §§51.150-153. Section 51.150 provides criteria for

the classification of areas for emergency episode planning purposes, based on previously

measured concentrations of ambient air pollutants, specifically sulfur oxides, particulates

(PM), carbon monoxide (CO), nitrogen dioxide (N02), and ozone (O3). Areas are

classified as Priority I, lA, II or III with Priority I areas being those with the highest

measured air pollutants and Priority III as the lowest. Priority III areas are not required to

develop episode plans.

Hawaii is classified as Priority III for both ozone and nitrogen dioxide. Therefore, Hawaii 

is not required to submit an emergency episode plan for ozone or nitrogen dioxide.

We propose to find that Hawaii’s SIP meets the requirements of CAA Section 

110(a)(2)(G) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.

SECTION 110(A)(2)(H): FUTURE SIP REVISIONS

CAA requirement(s):

CAA Section 110(a)(2)(H) requires SIPs to:

. . . provide for revision of such plan—

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

of such national primary or secondary ambient air quality standard or 

the availability of improved or more expeditious methods of attaining 

such standard, and 

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

Administrator finds on the basis of information available to the 

Administrator that the plan is substantially inadequate to attain the 

national ambient air quality standard which it implements or to 

otherwise comply with any additional requirements established under 

this chapter (Act).

State of Hawaii response to this requirement:

Sub-elements (i) and (ii):

Statutory provisions relevant to these elements include:

HRS §342B-3 General functions, duties, and powers of the director

Grants the director the function, duty and power to:

(a) prevent, control, and abate air pollution and the emission of air pollutants in 

the state;
26

(b) adopt, amend, and repeal state rules controlling and prohibiting air pollution 

and the release of air pollutants or as otherwise necessary for 

the purposes of this chapter.

HRS §342B-11 Prohibition

This states that no person shall engage in any activity which causes air 

pollution or causes or allows the emission of any regulated air pollutant without 

first securing approval in writing from the director.

Regulatory provision relevant to these elements:

HAR §11-60.1-2 Prohibition of air pollution

Provides the regulatory basis for the prohibition of air pollution without 

first securing approval, in writing, from the director.

Discussion

The department has the authority to revise the Hawaii SIP as necessary to account for 

NAAQS revisions or the availability of improved or more expeditious methods of attaining 

such standard or whenever the Administrator finds that the state’s plan is substantially 

inadequate to attain the NAAQS or does not comply with requirements established under 

the CAA.

The department will continue to update and revise the SIPs as necessary and will submit 

all SIP revisions whenever the Administrator finds that the plan is substantially 

inadequate to attain the NAAQS or does not comply with requirements established under 

the CAA.

EPA Analysis:

Hawaii has the legal authority to revise the Hawaii SIP (1) as 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 (2) 

whenever the Administrator finds that Hawaii’s plan is substantially inadequate to attain 

the NAAQS or does not comply with requirements established under the Act.

In addition, Hawaii has certified that DOH will also work to submit SIP revisions 

whenever the Administrator finds that Hawaii’s plan is substantially inadequate to attain 

the NAAQS or does not comply with requirements established under the Act.

We therefore propose to find that Hawaii’s SIP meets the requirements of CAA Section 

110(a)(2)(H) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.
27

SECTION 110(A)(2)(I): NONATTAINMENT AREA PLAN OR PLAN REVISION UNDER PART D

CAA requirement(s):

Section 110(a)(2)(I) provides that each SIP, “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).”

State of Hawaii response to this requirement:

This subsection is not applicable for the infrastructure SIP approval process.

EPA Analysis:

Section 110(a)(2)(I) is not applicable for the infrastructure SIP approval process. 

SECTION 110(A)(2)(J): CONSULTATION WITH GOVERNMENT OFFICIALS, PUBLIC 

NOTIFICATION, PSD, AND VISIBILITY PROTECTION

CAA requirement(s):

Pursuant to CAA Section 110(a)(2)(J), SIPs are required to “meet the applicable 

requirements of section 121 of this title (relating to consultation), section 127 of this title 

(relating to public notification), and part C of this subchapter (relating to prevention of 

significant deterioration of air quality and visibility protection).”

State of Hawaii response to this requirement:

Consultation with government officials and public notification

Statutory provisions relevant to these elements:

HRS §342B-13 Public participation

This statute requires that the director provide public notice and 

opportunity for comment.

HRS §342B-16(3) Research, educational, and training programs

Provides the director with the authority to conduct and supervise 

statewide educational and training programs on air pollution prevention, 

control, and abatement, including preparing and distributing information 

relating to air pollution.

Discussion

Hawaii implements the PSD program according to 40 CFR 52.21, including the relevant 

consultation requirements. Hawaii’s PSD delegation agreement with EPA (January 5, 

1989) includes joint oversight and approval of the pre-construction review for major 

stationary sources. In that delegation agreement, the department “must consult with the 
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appropriate Federal, State, and local land use agencies prior to issuance of preliminary 

determinations on PSD permits.”

Regarding public access to information, the department provides near real-time data and 

the current air quality index for public viewing on its website in addition to EPA’s 

AirNow Hawaii page. Administrative rules as well as proposed rule revisions are also 

posted on the department’s webpage. Public notices are placed in the newspapers of 

each applicable county as well as on its webpage for all new or renewed covered source 

permits, exceptional events documentation, annual air monitoring network plan, annual 

air monitoring book, and any other event or report requiring public notice.

Part C relating to prevention of significant deterioration of air quality and visibility 

protection

EPA has determined that the Hawaii SIP does not meet the requirements of sections 160 

through 165 of the CAA, therefore 40 CFR 52.21 has been incorporated into the 

applicable Hawaii plan (see 40 CFR 52.632(b)). DOH has been delegated authority to 

implement the provisions of 40 CFR 52.21 since 1983.

EPA also determined the Hawaii SIP does not meet the requirements of section 169A of 

the CAA pertaining to visibility in mandatory Class I federal areas (40 CFR §52.633(a)), 

and has incorporated the provisions of 40 CFR 52.26, 52.27, 52.28, and 52.29 into the 

applicable plan. See 52.633(b)-(c).

EPA Analysis:

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. As explained above, we are not acting on the Hawaii Ozone and 

Nitrogen Dioxide Infrastructure SIP with respect to sub-elements (1) and (3) of 

110(a)(2)(J). 

Sub-Element 2: Public Notification

CAA section 127 (42 U.S.C. 7427) requires SIPs to:

. . . contain measures which will be effective to notify the public during any 

calendar [year] on a regular basis of instances or areas in which any national 

primary ambient air quality standard is exceeded or was exceeded during any 

portion of the preceding calendar year to advise the public of the health hazards 

associated with such pollution, and to enhance public awareness of the measures 

which can be taken to prevent such standards from being exceeded and the ways 

in which the public can participate in regulatory and other efforts to improve air 

quality. Such measures may include the posting of warning signs on interstate 

highway access points to metropolitan areas or television, radio, or press notices 

or information.
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Hawaii’s SIP submission explains that HDOH meets this requirement by posting air 

quality data, including notices of NAAQS exceedances, on the web. Specifically,

HDOH notifies the public of exceedances of the NAAQS through its website:

http://hawaii.gov/health/environmental/air/cab/cab_notification/exceedances_index.html

Additional air quality monitoring data from HDOH is also available at: 

http://emdweb.doh.hawaii.gov/air-quality/ and 

http://www.airnow.gov/index.cfm?action=airnow.main .

We propose to find that Hawaii’s Ozone and Nitrogen Dioxide Infrastructure SIP meets 

the public notification requirements of 110(a)(2)(J) for the 2008 ozone and 2010 nitrogen 

dioxide NAAQS.

Sub-Element 4: Visibility Protection

EPA notes that, while the SIP must independently meet the visibility protection 

requirements of part C by virtue of the specific SIP requirements in sections 169A and 

169B of the Act, these requirements are not altered by the promulgation of a new or 

revised NAAQS. Therefore, we find that there is no new visibility obligation “triggered” 

under section 110(a)(2)(J) in relation to the 2008 ozone and 2010 nitrogen dioxide

NAAQS.

SECTION 110(A)(2)(K): AIR QUALITY MODELING/DATA

CAA requirement(s):

CAA section 110(a)(2)(K) requires SIPs to

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.

State of Hawaii response to this requirement:

Sub-element (i): air quality modeling

Statutory provisions relevant to this element include:

HRS §342B-17 Air quality modelers

Provides the authority to establish air modeler positions for the purpose of 

assessing the impact of air releases.

Regulatory provisions pertaining to modeling include:

HAR §11-60.1-12 Air quality models

Requires that appropriate air modeling assessments be conducted for new 

and modified covered sources as specified in 40 CFR Part 51 Appendix W.
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HAR §11-60.1-83(a)(11), (12), (13), and (14) Initial covered source permit 

application

For initial covered source permit applications, sources are required to conduct 

an assessment of the ambient air quality impact and perform a comparison with the 

NAAQS as well as conduct a risk assessment if requested by the director.

HAR §11-60.1-104(a)(12), (13), and (14) Applications for significant 

modification

For significant modifications to covered source permits, sources are required to 

conduct an assessment of the ambient air quality impact and perform a comparison with 

the NAAQS as well as conduct a risk assessment if requested by the director.

Sub-element (ii): submission of data related to air quality modeling

HRS §342B-31 Government records; confidential information

Information, including modeling, that is submitted as part of the 

permit program is considered government records available for public 

inspection. Upon request, the department will submit current and future 

data relating to such air quality modeling to EPA.

Discussion

DOH is also required to submit all proposed and final covered source applications to 

EPA and can require the owner or operator to simultaneously submit a copy of the 

covered source application, including applications for renewal and amendments for 

modification. The submittals include the applicable modeling assessment (per HAR §11-

60.1-94).

EPA Analysis:

Hawaii’s 2014 infrastructure SIP submittal demonstrates that the state (1) has the 

authority and technical capability to conduct air quality modeling in order to assess the 

effect on ambient air quality of relevant pollutant emissions; and (2) can provide relevant 

data as part of the permitting and NAAQS implementation processes. Hawaii has also 

committed to submit current and future data relating to such air quality modeling to the 

Administrator, upon request.

Therefore, we propose to find that the Hawaii SIP meets the requirements of section 

110(a)(2)(K) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.

SECTION 110(A)(2)(L): PERMITTING FEES

CAA requirement(s):

CAA section 110(a)(2)(L) provides that: 
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Each such plan shall require the owner or operator of each major stationary source to 

pay to the permitting authority, as a condition of any permit required under this 

chapter, a fee sufficient to cover—

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

permit, and 

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

of implementing and enforcing the terms and conditions of any such permit (not 

including any court costs or other costs associated with any enforcement action), 

until such fee requirement is superseded with respect to such sources by the 

Administrator’s approval of a fee program under subchapter (title) V of this 

chapter.

State of Hawaii response to this requirement:

Discussion

Hawaii’s title V program, including the fee program, has been fully approved. See 40 

CFR part 70, Appendix A; 66 FR 62945 (December 4, 2001); and 72 FR 19804 (April 20, 

2007). Therefore, Hawaii’s SIP is not required to include fee provisions under this 

section.

EPA Analysis:

HAR sections 11-60.1-111 through 11-60.1-115 set out Hawaii’s requirements for permit 

fees under HDOH’s Covered Source Program, which also constitutes the State’s EPAapproved Title V program. We propose to find that the Hawaii SIP meets the 

requirements of CAA section 110(a)(2)(L) for the 2008 ozone and 2010 nitrogen dioxide

NAAQS.

SECTION 110(A)(2)(M): CONSULTATION/PARTICIPATION BY AFFECTED LOCAL ENTITIES

CAA requirement(s):

CAA section 110(a)(2)(M) requires SIPs to “provide for consultation and participation by 

local political subdivisions affected by the plan.”

State of Hawaii response to this requirement:

Section XIII of Hawaii’s initial SIP, approved by EPA on May 31, 1972, contains intergovernmental cooperation provisions.

Statutory provisions relevant to this element include:

HRS §342B-13 Public Participation

This describes the department’s general procedures for public 

participation including the requirement to hold a public hearing when revising the 

state implementation plan as required by the amendments and regulations of the 

CAA. 
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HRS §342B-45 Citations

This statute provides the authority for police officers to issue citations for 

violations of the vehicular smoke emission (HAR §11-60.1-34) and open burning 

control rules.

HRS §342B-51 Enforcement by state and county authorities

Provides for all state and county health authorities and the police to 

enforce the provisions of this chapter as well as the rules, orders, and permits of 

the department.

Discussion

In developing rules or engaging in other actions that may affect other local agencies, the 

department, as a matter of practice, solicits input, consultation, review and guidance from 

the affected agencies. Some of the agencies include, but are not limited to: county law 

enforcement and fire departments; state and county civil defense agencies; county Mayor 

offices; county water boards; state Department of Land and Natural Resources; and state 

and county transportation departments.

EPA Analysis:

Hawaii has identified various SIP-approved provisions that facilitate consultation and 

participation by local political subdivisions affected by the SIP, including requirements for 

public participation, and has described its consultation practices. 

We propose to find that the Hawaii SIP meet the requirements of CAA Section 

110(a)(2)(M) for the 2008 ozone and 2010 nitrogen dioxide NAAQS.