43912 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

local permitting authorities must 

comply with the appropriate PSD 

Federal Implementation Plan (FIP) or 

SIP requirements with respect to ozone. 

EPA has had a standard approach in 

its PSD SIP and FIP rules of not 

mandating the use of a particular model 

for all circumstances, instead treating 

the choice of a particular method for 

analyzing ozone impacts as 

circumstance-dependent. EPA then 

determines whether the State’s 

implementation plan revision submittal 

meets the PSD SIP requirements. As 

explained above, in this case the 

Colorado SIP meets the requirements of 

40 CFR part 51.166(k) and (l). 

III. Final Action 

In this action, EPA is approving in 

full the following section 110(a)(2) 

infrastructure elements for Colorado for 

the 1997 ozone NAAQS: (A), (B), (C), 

(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), 

(L), and (M). EPA is taking no action 

today on section 110(a)(2)(E)(ii) for the 

1997 ozone NAAQS. EPA will address 

this sub-element in a later action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations 

(42 USC 7410(k), 40 CFR 52.02(a)). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves some state law as 

meeting Federal requirements and 

disapproves other state law because it 

does not meet Federal requirements; 

this action does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 USC 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and, 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 20, 

2011. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incoporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 30, 2011. 

James B. Martin, 

Regional Administrator, Region 8. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart G—Colorado 

■ 2. Section 52.353 is added to read as 

follows: 

§ 52.353 Section 110(a)(2) infrastructure 

requirements. 

On January 7, 2008 James B. Martin, 

Executive Director of the Colorado 

Department of Public Health and 

Environment for the State of Colorado, 

submitted a certification letter which 

provides the State of Colorado’s SIP 

provisions which meet the requirements 

of CAA Section 110(a)(1) and (2) 

relevant to the 1997 Ozone NAAQS. 

[FR Doc. 2011–18421 Filed 7–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0301; FRL–9441–6] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-hour Ozone National Ambient 

Air Quality Standards; South Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) submission 

from the State of South Dakota to 

demonstrate that the SIP meets the 

requirements of the Clean Air Act (CAA) 

for the National Ambient Air Quality 

Standards (NAAQS) promulgated for 

ozone on July 18, 1997. The CAA 

requires that each state, after a new or 

revised NAAQS is promulgated, review 

their SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’. The State of South Dakota 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43913 

1Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, ‘‘Guidance on 

SIP Elements Required Under Sections 110(a)(1) 

and (2) for the 1997 8-hour Ozone and PM2.5

National Ambient Air Quality Standards’’ (Oct. 2, 

2007). 

2See the NPR (76 FR 27622) for further 

explanation regarding the omission of elements 

110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal. 

submitted a certification, dated 

February 1, 2008, that its SIP met these 

requirements for the 1997 ozone 

NAAQS; the certification was 

determined to be complete on March 27, 

2008. In addition, EPA is partially 

approving a June 14, 2010 SIP submittal 

from the State that revises the State’s 

Prevention of Significant Deterioration 

(PSD) program. 

DATES: Effective Date: This final rule is 

effective August 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0301. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kathy Dolan, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6142, 

dolan.kathy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

Table of Contents 

I. Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm (62 

FR 38856). By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) are to be submitted by states within 

three years after promulgation of a new 

or revised standard. Section 110(a)(2) 

provides basic requirements for SIPs, 

including emissions inventories, 

monitoring, and modeling, to assure 

attainment and maintenance of the 

standards. These requirements are set 

out in several ‘‘infrastructure elements,’’ 

listed in section 110(a)(2). 

Section 110(a) imposes the obligation 

upon states to make a SIP submission to 

EPA for a new or revised NAAQS, and 

the contents of that submission may 

vary depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

the state develops and submits the SIP 

for a new or revised NAAQS affects the 

content of the submission. The contents 

of such SIP submissions may also vary 

depending upon what provisions the 

state’s existing SIP already contains. In 

the case of the 1997 ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. In a guidance issued 

on October 2, 2007, EPA noted that, to 

the extent an existing SIP already meets 

the section 110(a)(2) requirements, 

states need only to certify that fact via 

a letter to EPA.1

On March 27, 2008, EPA published a 

final rule entitled, ‘‘Completeness 

Findings for Section 110(a) State 

Implementation Plans for the 8-hour 

Ozone NAAQS’’ (73 FR 16205). In the 

rule, EPA made a finding for each state 

that it had submitted or had failed to 

submit a complete SIP that provided the 

basic program elements of section 

110(a)(2) necessary to implement the 

1997 8-hour ozone NAAQS. In 

particular, EPA found that South Dakota 

had submitted a complete SIP 

(‘‘Infrastructure SIP’’) to meet these 

requirements. 

On May 12, 2011, EPA published a 

notice of proposed rulemaking (NPR) for 

the State of South Dakota (76 FR 27622) 

to act on the State’s Infrastructure SIP 

for the 1997 ozone NAAQS. 

Specifically, in the NPR EPA proposed 

approval of South Dakota’s SIP as 

meeting the requirements of all section 

110(a)(2) elements with respect to the 

1997 ozone NAAQS, aside from 

elements 110(a)(2)(D)(i), 110(a)(2)(I), 

and the visibility protection 

requirement of element 110(a)(2)(J), on 

which EPA did not propose action.2

EPA proposed to approve element 

110(a)(2)(C) for the 1997 ozone NAAQS 

in the event that the State clarified (or 

modified) its February 1, 2008 

certification to ensure consistency with 

two rules related to regulation of 

greenhouse gas (GHG) emissions: 

‘‘Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule’’ (‘‘Tailoring Rule’’), 75 FR 31514 

(June 3, 2010), and ‘‘Limitation of 

Approval of Prevention of Significant 

Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in 

State Implementation Plans’’ (‘‘PSD SIP 

Narrowing Rule’’), 75 FR 82536 (Dec. 

30, 2010). In the PSD SIP Narrowing 

Rule, EPA withdrew its previous 

approval of South Dakota’s prevention 

of significant deterioration (PSD) 

program to the extent that it applied 

PSD permitting to greenhouse gas (GHG) 

emissions increases from GHG-emitting 

sources below thresholds set in the 

Tailoring Rule. EPA withdrew its 

approval on the basis that the State 

lacked sufficient resources to issue PSD 

permits to such sources at the statutory 

thresholds in effect in the previouslyapproved PSD program. After the PSD 

SIP Narrowing Rule, the portion of 

South Dakota’s PSD SIP from which 

EPA withdrew its approval had the 

status of having been submitted to EPA 

but not yet acted upon. In its February 

1, 2008 certification, South Dakota 

relied on its PSD program as approved 

at that date—which was before 

December 30, 2010, the effective date of 

the PSD SIP Narrowing Rule—to satisfy 

the requirements of infrastructure 

element 110(a)(2)(C). Given EPA’s basis 

for the PSD SIP Narrowing Rule, EPA 

proposed approval of the South Dakota 

Infrastructure SIP for infrastructure 

element (C) if either the State clarified 

(or modified) its certification to make 

clear that the State relies only on the 

portion of the PSD program that remains 

approved after the PSD SIP Narrowing 

Rule issued on December 30, 2010, and 

for which the State has sufficient 

resources to implement, or the State 

acted to withdraw from EPA 


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3South Dakota’s May 5, 2011 clarification letter 

is available in the docket for this action. 

4See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

consideration the remaining portion of 

its PSD program submission that would 

have applied PSD permitting to GHG 

sources below the Tailoring Rule 

thresholds. On May 9, 2011, EPA 

received a letter from South Dakota 

(dated May 5, 2011) clarifying that the 

State relies only on the portion of the 

PSD program that remains approved 

after the PSD SIP Narrowing Rule issued 

on December 30, 2010.3

In the May 12, 2011 NPR, EPA also 

proposed action on revisions to 

Administrative Rules of South Dakota 

(ARSD) Chapter 74:36:09 (PSD) from 

South Dakota’s June 14, 2010 SIP 

submission. The revisions to the State’s 

PSD program updated the date of 

incorporation by reference of the 

Federal rules at 40 CFR 52.21 to July 1, 

2009. EPA proposed to approve this 

revision with the following exception. 

Consistent with the Tailoring Rule and 

the SIP PSD Narrowing Rule, EPA 

proposed to disapprove the revision of 

ARSD 74:36:09 in the June 14, 2010 

submission to the extent that the 

revision applies PSD permitting to GHG 

emissions increases from GHG-emitting 

sources below Tailoring Rule 

thresholds. 

Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.4 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) Existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source new source 

review (NSR)’’); and (ii) existing 

provisions for Prevention of Significant 

Deterioration programs that may be 

inconsistent with current requirements 

of EPA’s ‘‘Final NSR Improvement 

Rule,’’ 67 FR 80,186 (December 31, 

2002), as amended by 72 FR 32,526 

(June 13, 2007) (‘‘NSR Reform’’). In light 

of the comments, EPA now believes that 

its statements in various proposed 

actions on infrastructure SIPs with 

respect to these four individual issues 

should be explained in greater depth 

with respect to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof)’’ and 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 


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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43915 

5For example, section 110(a)(2)(E) provides that 

states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

6For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each SIP contains adequate 

provisions to prevent significant contribution to 

nonattainment of the NAAQS in other states. This 

provision contains numerous terms that require 

substantial rulemaking by EPA in order to 

determine such basic points as what constitutes 

significant contribution. See, e.g., ‘‘Rule To Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone (Clean Air Interstate Rule); Revisions to Acid 

Rain Program; Revisions to the NOx SIP Call; Final 

Rule,’’ 70 FR 25,162 (May 12, 2005)(defining, 

among other things, the phrase ‘‘contribute 

significantly to nonattainment’’). 

7See, e.g., Id., 70 FR 25,162, at 63–65 (May 12, 

2005)(explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

8EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8–Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

9For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

10See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director, Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). EPA issued comparable guidance for 

the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP 

Elements Required Under Sections 110(a)(1) and (2) 

for the 2006 24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards (NAAQS),’’ from 

William T. Harnett, Director, Air Quality Policy 

Division, to Regional Air Division Directors, 

Regions I–X, dated September 25, 2009 (the ‘‘2009 

Guidance’’). 

11 Id., at page 2. 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.5 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.6

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).7 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.8 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the SIP. Finally, EPA notes 

that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.9

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirement applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.10 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 11 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 


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43916 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

12 Id., at attachment A, page 1. 

13 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

14EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

15EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82,536 (Dec. 30, 2010). EPA has previously 

used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that the Agency 

determined it had approved in error. See, e.g., 61 

FR 38,664 (July 25, 1996) and 62 FR 34,641 (June 

27, 1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67,062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57,051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

16EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42,342 at 

42,344 (July 21,2010)(proposed disapproval of 

director’s discretion provisions); 76 FR 4,540 (Jan. 

26, 2011)(final disapproval of such provisions). 

required elements.’’ 12 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 13 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave 

much more specific recommendations. 

But for other infrastructure SIP 

submittals, and for certain elements of 

the submittals for the 1997 PM2.5 

NAAQS, EPA assumed that each state 

would work with its corresponding EPA 

regional office to refine the scope of a 

state’s submittal based on an assessment 

of how the requirements of section 

110(a)(2) should reasonably apply to the 

basic structure of the SIP for the 

NAAQS in question. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a SIP is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or otherwise to comply with the CAA.14

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.15

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.16

II. Response to Comments 

EPA did not receive any comments on 

the May 12, 2011, NPR (76 FR 27622). 

III. Final Action 

In this action, EPA is approving the 

following section 110(a)(2) 

infrastructure elements for South Dakota 

for the 1997 ozone NAAQS: (A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). 

EPA is also approving the portion of 

South Dakota’s June 14, 2010 SIP 

submission that revises South Dakota’s 

PSD program to incorporate by reference 

the Federal program at 40 CFR 52.21 as 

of July 1, 2009, except to the extent that 

revision applies PSD permitting to GHG 

emissions increases from GHG-emitting 

sources below the thresholds set out in 

the Tailoring Rule, 75 FR 31514. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations 

(42 USC 7410(k), 40 CFR 52.02(a)). 

Thus, in reviewing SIP submissions, 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 43917 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves some state law as 

meeting Federal requirements and 

disapproves other state law because it 

does not meet Federal requirements; 

this action does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

USC 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

USC 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999);is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and, 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 20, 

2011. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 30, 2011. 

James B. Martin, 

Acting Regional Administrator. Region 8. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for Part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

■ 2. Section 52.2170 is amended by: 

■ a. In paragraph (c)(1) revise the entries 

under 74:36:09, Prevention of 

Significant Deterioration, for 

‘‘74:36:09:02’’ and ‘‘74:36:09:03’’. 

■ b. In paragraph (e), add entry for ‘‘XI’’, 

Section 110(a)(2) Infrastructure 

Requirements for the 1997 8-Hour 

Ozone NAAQS. The revisions and 

addition read as follows: 

Subpart QQ—South Dakota 

§ 52.2170 Identification of Plan. 

* * * * * 

(c) * * * 

(1) * * * 

State citation Title/subject 

State 

effective 

date 

EPA approval date and citation Explanations 

*******

74:36:09 Prevention of Significant Deterioration 

*******

74:36:09:02 ............................... Prevention of significant deterioration.6/28/10 6/30/11, 7/22/11 [insert page 

number where the document 

begins].

74:36:09:03 ............................... Public participation ................... 6/28/10 6/30/11, 7/22/11 [insert page 

number where the document 

begins].

* * * * * (e) * * * 


emcdonald on DSK2BSOYB1PROD with RULES
43918 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 

1Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, ‘‘Guidance on 

SIP Elements Required Under Sections 110(a)(1) 

and (2) for the 1997 8-hour Ozone and PM2.5

National Ambient Air Quality Standards’’ (Oct. 2, 

2007). 

Name of nonregulatory 

SIP provision 

Applicable 

geographic or 

non-attainment 

area 

State submittal 

date/adopted date 

EPA approval data and 

citation5 Explanations 

*******

XI. Section 110(a)(2) Infrastructure Requirements for 

the 1997 8-hour Ozone 

NAAQS.

Statewide 2/1/08 ..................................... 6/30/11, 7/22/11 [insert page 

number where the document begins].

* * * * * 

[FR Doc. 2011–18425 Filed 7–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0298; FRL–9440–6] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standard; Montana 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is partially approving 

and partially disapproving the State 

Implementation Plan (SIP) submission 

from the State of Montana to 

demonstrate that the SIP meets the 

requirements of Sections 110(a)(1) and 

(2) of the Clean Air Act (CAA) for the 

National Ambient Air Quality Standards 

(NAAQS) promulgated for ozone on July 

18, 1997. Section 110(a)(1) of the CAA 

requires that each state, after a new or 

revised NAAQS is promulgated, review 

their SIPs to ensure that they meet the 

requirements of the ‘‘infrastructure 

elements’’ of section 110(a)(2). The State 

of Montana submitted two certifications, 

dated November 28, 2007 and December 

22, 2009, that its SIP met these 

requirements for the 1997 ozone 

NAAQS. The November 28, 2007 

certification was determined to be 

complete on March 27, 2008 (73 FR 

16205). 

DATES: Effective Date: This final rule is 

effective August 22, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0298. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kathy Dolan, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6142, 

dolan.kathy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials SIP mean or refer to 

State Implementation Plan. 

Table of Contents 

I. Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm (62 

FR 38856). By statute, SIPs meeting the 

requirements of sections 110(a)(1) and 

(2) are to be submitted by states within 

three years after promulgation of a new 

or revised standard. Section 110(a)(2) 

provides basic requirements for SIPs, 

including emissions inventories, 

monitoring, and modeling, to assure 

attainment and maintenance of the 

standards. These requirements are set 

out in several ‘‘infrastructure elements,’’ 

listed in section 110(a)(2). 

Section 110(a) imposes the obligation 

upon states to make a SIP submission to 

EPA for a new or revised NAAQS, and 

the contents of that submission may 

vary depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

a state develops and submits its SIP for 

a new or revised NAAQS affects the 

content of the submission. The contents 

of such SIP submissions may also vary 

depending upon what provisions a 

state’s existing SIP already contains. In 

the case of the 1997 ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. In a guidance issued 

on October 2, 2007, EPA noted that, to 

the extent an existing SIP already meets 

the section 110(a)(2) requirements, 

states need only to certify that fact via 

a letter to EPA.1

On March 27, 2008, EPA published a 

final rule entitled, ‘‘Completeness 

Findings for Section 110(a) State 

Implementation Plans for the 8-hour 

Ozone NAAQS’’ (73 FR 16205). In the 

rule, EPA made a finding for each state 

that it had submitted or had failed to 

submit a complete SIP that provided the 

basic program elements of section 

110(a)(2) necessary to implement the 

1997 8-hour ozone NAAQS. In 

particular, EPA found that Montana had 

submitted a complete SIP 

(‘‘Infrastructure SIP’’) to meet these 

requirements. 

On May 19, 2011, EPA published a 

notice of proposed rulemaking (NPR) for 

the State of Montana (76 FR 28934) to 


emcdonald on DSK2BSOYB1PROD with RULES