# Technical Support Document

Evaluation of 201 4 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 201 41

S UMMARY

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

to the Hawaii State Implementation Plan (SIP) submitted on April 04 , 201 4 . These

revisions address the infrastructure SIP requirements of Clean Air Act (CAA) se ction 110(a)(2) for the 2008 ozone and 2010 nitrogen dioxide national ambient air quality standards (NAAQS).

B ACKGROUND

CAA section 110(a)(1) and (2) requires states to address basic SIP requirements to implement, maintain and enforce the national ambie nt 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. 2 These revisions to the ozone and nitrogen d ioxide NAAQS triggered requi rement s for states to submit infrastructure SIP s to address the applicable requirements of section 110(a)(2) within three years of issuance

of each of these revised NAAQS

.

On January 15, 2 013, 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 notification

related requirements only) are already addressed for Hawaii through an existing PSD FIP that remains in place. Therefore, this action will not trigger any additional FIP obligations

with respect to the PSD

- related and notification

- related req uirements in these four

subsections. ” 4

1 73 FR 16436 ( Mar ch 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 ( Feb ruary 9, 2010 ). EPA established a 1

- hour standard of 100 parts per b illion (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 NO 2 standard to 0.053 ppm.

3 78 FR 2882.

4 Id. at 288 9.2

We also explained that we were not issuing finding s 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, c oncluded 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 thi s 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 (PM 2.5 ) NAA Q S, 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

Am bient 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 P rovisions 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 Ad ministrative 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 P SD 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 (c onsultation 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. 9 In addition, 110(a)(2)(D)(i)(II) prong 4 (interference with visibility protection) is already addr essed 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 s tates 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 review ing this D.C. Ci rcuit 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 inco mpleteness with respect to the Hawaii Ozone and Nitrogen Dioxide Infrastructure SIP

.

7 A copy of the complete Hawaii Ozon e and Nitrogen Dioxide Infrastructure SIP submittal has been placed in the docket for this action and is available online at http://www.regulations.gov, docket number EPA

R09

- OAR

- 201 4

- 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

O VERVIEW

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 ) su bmitted 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 provision s HRS § § 342

- 14, 342

- 18 and

342

- 19

, from the Hawaii SIP

. Then, we provide an evaluation of each infrastructure SIP

element

. W e 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 sub

elements) and 110(a) (2)(J) (sub

- elements 1 and 3)

.

HAR S ECTION 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 t o 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

r equirement shall apply

.

SIP approval of HAR section 11

- 60.1

- 31 will enhance the enforceability of other SIP

approved rules. Nothing in section 11

- 60.1

- 31 interferes with Hawaii’s authority or capacity to carry out the implementation plan as required by CA A 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.

H AWAII R EVISED S TATUTES S ECTIONS 342B

- 4 (O THER POWERS OF DEPAR TMENT AND

DIRECTOR NOT AFFECTE D ) AND 342B

- 5 (E FFECT 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 Nit rogen 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 affe ct 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 de partment and director not affected ) except that it applies to both the director6

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

a dopted 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 in to the Hawaii SIP and

to move HRS §§ 342

- 18 and 342

- 19 from the SIP

.

R EMOVAL OF HRS § 342

- 14 (T ECHNICAL D EFECT )

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 nec essary 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.

S ECTION 110( A )(2)(A): E MISSION L IMITS AND O THER C ONTROL M EASU RES

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), a s 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 director 14

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 department 15
the authority and duty to establish rules to prevent, control, and abate air pollution and the emission of air pollutants 16 in the State. The director may:

1. Establish ambient air quality standards for the State;

2. Establish and ad

minister 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 a ir 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, a nd 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 le vels 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 t his 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 enforcemen t 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 “de partment” 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 multipl e 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 appro priately identified existing EPA

- approved SIP provisions that limit

emissions of NO 2 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 , w e propose to find that the Hawaii Ozone and Nitrogen Dioxide Infrastructure

SIP meet s the requirements of 110( a)(2)(A) for the 2008 ozone and 2010 nitrogen dioxide NAAQS

.

S ECTION 110( A )(2)(B): A MBIENT A IR Q UALITY M ONITORING / DATA S YSTEM

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 survei llance 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 O 3 and NO 2

.10

NO 2 nea r

- 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 58.1 5.

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 201 3 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 meet s the requirements of CAA Section 110(a)(2)(B) for the 2008 ozone and 2010 nitrogen

dioxide NAAQS.

S ECTION 110( A )(2)(C): P ROGRAMS FOR E NFORCEMENT , PSD, AND NSR

CAA requirement(s) :

CAA s ection 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.

18 A copy of the TSA is in the docke t 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 l imitations and

control measures HRS §342B

- 15 Complaints; hearings; appointment of masters Allows for the receipt or init iation, 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 compli ance 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 ot her 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 conditio n 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 sub ject 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 Specifi c 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 conditio ns 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 appli cations 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 pursua nt 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 ap plication13

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 alt ernative 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 t o 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 appro vable 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 sinc e 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 maj or 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: E nforcement

Hawaii has appropriately identified the st atutes and regulations in the existing SIP that provide for enforcement of the emission limits and control measures that H DOH has identified in its submission for Element A (Emissions limits and other control measures). Therefore, we propose to find that t he 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 2 008 ozone and 2010 nitrogen dioxide NAAQS

.

S ECTION 110( A )(2)(D): I NTERSTATE T RANSPORT P ROVISIONS

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 s tatutory 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 requirement s 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 Dire ctors 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 add ressing 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 deterio ration 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.

S ECTION 110( A )(2)(E): A DEQUATE P ERSONNEL , F UN DING , AND A UTHORITY , S TATE
B OAR DS AND A DEQUATE I MPLEMENTATION BY L OCAL G OVERMENTS

CAA requirement(s) :

CAA Se ction 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 sectio n 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 pla n 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 admi nistration 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

a nd 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 e ntire 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

Su rveillance 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 mat ching 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 S IP 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 is17

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 chapte r 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 §8 4

- 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 undertaki ng 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 beha lf 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, a gency, 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 I nfrastructure SIP, EPA approve d 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 prov isions. 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 Appen dix A of the 2011 Hawaii Infrastructure SIP, respectively

.18

determine d that these provisions provide d necessary assurances that Hawaii ha d 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 implement ation 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 201 4

, there is an overall budget of over $ 4 million 22

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) provide s that:

Not later than the date one year after Au gust 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 enfor cement 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 ... whi ch 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 Direc tor of H DOH 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

A s part of its 2011 Infrastructure SI P, Ha waii submitted for incorporation into the SIP several provisions of state law t hat 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 financ ial 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 a n annual “ gifts disclosure statement ” w ith 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 H awaii and to determined that

the y 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.” T his enforcement authority is concurrent with DOH ’s enforce ment authority, as set forth in HRS Chapter 342B, Part IV. Therefore, any shortcoming in implementation by local officials c ould 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, “f inancial 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

S ECTION 110( A )(2)(F): S TATIONARY S OURCE M ONITORING AND R EPORTING

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 a mounts 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 tim es 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 procedu res 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 v ariables, 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 informati on 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

w ith 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 or21 any other information deemed necessary to determine compliance with applicable limits, national or state ambient air quality standards, or other provisions of this chapt er; (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 conce ntrations 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 elemen t: 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 monitorin g 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 calibrati on 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) requir es 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 empl oyees 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 prem ises

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 so urces 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 nitro gen 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 meet s the requirements of 110(a)(2)(F)(i i ) 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.

S ECT ION 110( A )(2)(G): E MERGENCY E PISODES

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 respo nse to this requirement:

Statutory provision comparable to that found in section 7603 of the CAA: HRS §342B

- 43 Emergency powers; procedures24 (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 o r 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 o f 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 provide s 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 concent rations of ambient air pollutants, specifically sulfur oxides, particulates (PM), carbon monoxide (CO), nitrogen dioxide (N02), and ozone ( O 3 ). Areas are classified as Priority I, lA, II or III with Priority I areas being those with the highest

measured ai r 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. T herefore , Hawaii

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

.

W e propose to find that Hawaii’s SIP meet s the requirements of CAA Section 110(a)(2)(G) for the 2008 ozone and 2010 nitrogen dioxide NAAQS

.

S ECTION 110( A )(2)(H): F UTURE SIP R EVISIONS

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 exped itious 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 ambien t 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 eleme nts 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 activ ity 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

Pr ovides 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 d epartment 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 C AA.

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 atta ining 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 meet s the requirements of CAA Section 110(a)(2)(H) for the 2008 ozone and 2010 nitrogen dioxide NAAQS

.2 7

S ECTION 110( A )(2)(I): N ONATTAINMENT A REA P LAN OR P LAN R EVISION U NDER P ART 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.

S ECTION 110( A )(2)(J): C ONSULTATION WITH G OVERNMENT O FFICIALS , P UBLIC
N OTIFICATION , PSD, AND V ISIBILITY P ROTECTI ON

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 depar tment “must consult with the28

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 q uality 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 co unty 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 preve ntion 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 Haw aii 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 C lass 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 s ub

- 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 hig hway access points to metropolitan areas or television, radio, or press notices

or information.29

Hawaii’s SIP submission ex plains 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 thr ough its website: http://hawaii.gov/health/environmental/air/cab/cab_notification/ex ceedances_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 t hat, whil e 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

.

S ECTION 110( A )(2)(K): A IR Q UALITY M ODELING / 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 qualit y 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 inclu de: 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.30 HAR §11

- 60.1

- 83(a)(11), (12), (13), and (14) Initial covered source permit application

For initial covered source permi t 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 requeste d 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 r ecords 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 201 4 i nfrastructure 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 N AAQS 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 fin d that the Hawaii SIP meets the requirements of section 110(a)(2)(K) for the 2008 ozone and 2010 nitrogen dioxide NAAQS

.

S ECTION 110( A )(2)(L): P ERMITTING F EES

CAA requirement(s) :

CAA section 110(a)(2)(L) provides that:31

Each such plan shall require th e 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 no t required to include fee provisions under this

section.

EPA Analysis:

HAR sections 11

- 60.1

- 1 1 1 through 11

- 60.1

- 115 set out Hawaii’s requirements for permit

fees under H DOH’s Covered Source Program, which also constitutes the State’s EPA

approved 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

.

S ECTION 110( A )(2)(M): C ONSULTATION / PARTICIPATION BY A FFECTED L OCAL E NTITIES

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 inter

governmental 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.32

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, ord ers, 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. S ome 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 trans

portation 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.