MEMORANDUM

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

RESEARCH TRIANGLE PARK, NC 27711

AUG 15 2006

OFFICE OF

AIR QUALITY PlANNING

AND STANDARDS

SUBJECT:

FROM:

TO:

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.S National Ambient Air Quality Standards

William T. Harnett, Director f!I~'1

Air Quality Policy Division, OAQPS (C539-01)

Regional Air Division Director, Regions I-X

The purpose ofthis memorandum is to provide guidance concerning the State

implementation plan (SIP) submissions States should make to meet their currently outstanding

obligations under section 110(a)(2)(D)(i).

The Environmental Protection Agency (EPA) has previously indicated through

rulemaking what States affected by the Clean Air Interstate Rule (CAIR) must do concerning

emissions that significantly contribute to nonattainment or interfere with maintenance ofthe 8-

hour ozone or fine particulates (PM2.S) National Ambient Air Quality Standard (NAAQS) in

another State. This guidance, therefore, addresses what States that are not affected by the CAIR

should consider in meeting the "significant contribution" and "interfere with maintenance"

requirements ofsection 11O(a)(2)(D)(i), and what all States (inside or outside the CAIR region)

should consider with respect to making submissions to meet the "prevention ofsignificant

deterioration" and "protect visibility" requirements ofsection 11O(a)(2)(D)(i). Because the

CAIR region differs for purposes of 8-hour ozone and PM2.5, some States may be within the

CAIR region for purposes ofone NAAQS, but not the other, and should make section

110(a)(2)(D)(i) SIP submissions that account for this distinction.

On July 18, 1997, EPA promulgated NAAQS for ozone and for fine particulate matter.

Section 11O(a)(1) ofthe Clean Air Act requires States to submit new SIPs to provide for the

implementation, maintenance, and enforcement ofnew or revised NAAQS. Section 11O(a)(2)

lists the elements that the new SIP submissions must contain. Among other things, SIPs for new

or revised NAAQS must contain adequate provisions to address interstate transport of air

pollution, pursuant to section 11O(a)(2)(D)(i).

Inlemet Addres: (URL). http://www.epa.gov

RecycledIRecyclable • Printed w~h Vegetable 0 Based Inks on Recycled Paper (Minimum 25% Postconsumer)
2

Section 11O(a)(l) explicitly provides that States must adopt and submit to the EPA

Administrator new SIP submissions within 3 years after the promulgation of a new or revised

NAAQS, meeting the provisions of 11O(a)(2), as applicable. Therefore, States should have

submitted SIPs to EPA for the 8-hour ozone NAAQS and the PM2.5 NAAQS by no later than

July 2000. However, at this time.no State has submitted a new SIP. We recognize that litigation

over both the 8-hour ozone NAAQS and the PM2.5 NAAQS created substantial uncertainty as to

how to proceed. Moreover, in the case ofPM2.5, additional time was needed for creation of a

monitoring network, collection ofat least three years ofdata, and analysis ofthose data.

On April 25, 2005, EPA published an action in the Federal Register making a finding that

States had failed to make statutorily required SIP submissions for the 8-hour ozone and PM2.5

NAAQS. The EPA explicitly limited this finding offailure to submit to the requirements of

section 110(a)(2)(D)(i) pertaining to interstate transport. The finding offailure to submit action

started a 24-month clock for EPA to issue a final Federal hnplementation Plan (FIP) to meet the

requirements ofsection 11O(a)(2)(D)(i), for both the 8-hour ozone and PM2.5 standards, unless

EPA instead approves a State SIP submission to meet those requirements in advance ofthat date.

The finding offailure to submit SIPs addressing section 11O(a)(2)(D)(i) is the first action

required under a Consent Decree between EPA and plaintiffs who sued the Agency for failure to

take action to require the submission ofnew SIPs for the 8-hour ozone and PM2.5NAAQS, or to

issue FIPs in lieu thereof. The EPA has also committed in the Consent Decree to take later

actions to determine whether States have submitted the remaining SIP elements required by

section 110(a)(l) and (2) for the 8-hour ozone and PM2.5 NAAQS by no later than December 15,

2007, for ozone, and by no later than October 5, 2008, for PM2.5. The Agency intends to provide

States with additional information concerning the remaining section 110(a)(l) and (2) SIP

. elements, in separate regulations or guidance documents.

We emphasize that this document is merely guidance and that States or EPA may elect to

follow or deviate from this guidance, as appropriate. The ultimate determination ofwhether a

given SIP submission by a State meets the statutory requirements ofsection 110(a)(2)(D)(i) will

be accomplished through case by case notice and comment rulemaking in which the facts and

.circumstances of each State submission will be evaluated by EPA. We ask that the EPA

Regional Offices work with their respective States in the development oftheir SIP submissions.

If you have questions concerning this guidance, please contact Mr. Larry D. Wallace

(919) 541-0906. Please ensure that the appropriate air agency officials for the States in your

Region are made aware ofthis guidance.
Attaclunent

cc: Margo Oge, OTAQ

Steve Page, OAQPS

Brian McLean, OAP

Scott Mathias, AQPD

Kevin McLean, OGe

Barbara Driscoll, AQPD

Larry Wallace, AQPD

Kimber Scavo, AQPD

Geoffrey Wilcox, QGe

Norm Possiel, AQAD

3
Guidance for State Implementation Plan Submissions to Meet Current Outstanding

Obligations Under Section llO(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards

1. Introduction:

This document provides guidance to States concerning State Implementation Plan (SIP)

submissions that States must make pursuant to section 110(a)(2)(D)(i). The Environmental

Protection Agency (EPA) emphasizes that this guidance document merely provides suggestions

and that States or EPA may elect to follow or deviate from this guidance,. as appropriate. The

ultimate determination ofwhether a given SIP sllbmission by a State meets the requirements of

section 110(a)(2)(D)(i) will be accomplished by area specific notice and comment rulemaking in

which-the facts and circumstances of each State submission will be evaluated by EPA. Sections

110(a)(l) and (2) ofthe Clean Air Act (CAA), require States to submit SIPs that implement,

maintain, and enforce a new or revised national ambient air quality standard (NAAQS) within 3

years following the promulgation ofthe standard.

In July 1997, EPA issued the 8-hour ozone and PM2.5 NAAQS. States were thus required

to submit SIPs that satisfy the applicable CAA requirements under section 110(a)(I) and (2) for

these NAAQS by July 2000. Among the SIP elements identified in section 11O(a)(2) is the

requirement to address interstate transport ofpollutants pursuant to section 110(a)(2)(D)(i). The_

EPA has determined that section 11O(a)(2)(D)(i) is among the SIP requirements with which

States must comply in accordance with the schedule ofsection 110(a)(I).1

On April 25, 2005, EPA notified States oftheir failure to make the required SIP .

submission addressing interstate transport ofpollutants related to ozone and PM2.5 in downwind

States.2

Pursuant to section l1O(c), EPA's April 25, 2005 finding offailure to submit started a

24-month clock for EPA to issue a final Federal Implementation Plan (pIP) to address the

requirements ofsection 11O(a)(2)(D)(i), unless a State makes the required submission and EPA

approves such submission within that 24-month period. The 24-month FIP clock began on

ISee,"Rule to Reduce Interstate Transport ofFine 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 at 25,263-69 (May 12,2005).

2See, "Finding ofFailure to Submit Section 110 State Implementation Plans for

Interstate Transport for the National Ambient Air Quality Standards for 8-Hour Ozone

and PM 2.5," 70 FR 21,147 (April 25, 2005). . . .

1
May 25,2005, the effective date ofthe finding offailure to submit, and will end on May 25,

2007.

The EPA's finding offaihire to submit SIPs that address section IIO(a)(2)(D)(i) is the

first action required under a Consent Decree.3 Under the Consent Decree, EPA is also obligated

to make later detenninations as to whether States have made the required SIP submissions to

meet the remaining applicable requirements ofsection 110(a)(I) and (2). The EPA is obligated

to make these later detenninations by December 15,2007, for SIP submissions for the 8-hour

ozone NAAQS, and by October 5, 2008, for SIP submissions pertaining to the PM2.

5NAAQS.

The EPA believes that Section 11O(a)(2)(D)(i) provides an important tool for attainment

and maintenance ofthe NAAQS by addressing the problem ofinterstate transport of air

pollutants. This provision applies to each pollutant covered by a NAAQS and to all areas of each

State regardless ofthe attainment or nonattainment designation ofsuch areas. Section

110(a)(2)(D)(i) specifically provides that each State's SIP must contain adequate provisions to

prohibit air pollutant emissions from within the State that significantly contribute to

nonattainment oftheNAAQS, or that interfere with maintenance ofthe NAAQS, in any other

State. In addition, this section requires that each State's SIP must contain adequate provisions to

prohibit emissions of air pollutants within the State that interfere with measures required to

prevent significant deterioration of air quality or to protect visibility in any other State.

The EPA intends to provide additional infonnation to States concerning the remaining

. section IIO(a)(I) and (2) SIP elements, either in regulations implementing the 8-hour ozone or

PM2.5 NAAQS, or in later gui~ance documents.

2. What is required under section 110(a)(2)(D)(i):

Section 110(a)(I) requires States to make a SIP submission for a new or revised NAAQS

within 3 years of promulgation ofsuch new or revised NAAQS.

Section 110(a)(2) lists the elements those SIPs must contain. For example, this section

lists certain SIP infrastructure elements related to the new or revised standards such as

requirements for provisions pertaining to modeling, monitoring, and emissions inventories that

are designed to assure attainment and maintenance ofthe standards. An important SIP element

3The Consent Decree is between Environmental Defense and American Lung

Association, as plaintiffs, and EPA, as defendant, signed March 10, 2005. The Consent

Decree resolved the case entitled "Environmental Defense, et aI. v. Johnson," No.

1:05CV00493(D.D.C.). EPA gave notice of, and took comment on, the proposed consent

decree in accordance with CAA section 113(g). See, 70 FR 15,623 (March 28, 2005).

2
listed in section 110(a)(2) is the requirement that States address emissions that impact other

States through interstate transport.

The"good neighbor" provisions in section 11O(a)(2)(D)(i) require each State to submit a

SIP that prohibits emissions that adversely affect another State in the ways contemplated in the

statute. Section 11O(a)(2)(D)(i) contains four distinct requirements related to the impacts of

interstate transport. Each St~te must submit a SIP which contains adequate provisions:

prohibiting ... any source or other type of emissions activity within the State from

emitting any air pollutant in amounts which will -

(1) contribute significantly to nonattainment in, or interfere with maintenance by,

any other State with respect to any ... national primary or secondary air quality

standard, or

(II) interfere with measures required to be included in the applicable

implementation plan for any other State .... to prevent significant deterioration of

air quality or to protect visibility.

The EPA's April 25, 2005 finding offailure to submit reflected EPA's determination that

States had not yet made SIP submissions for the 8-hour ozone and PM2.S NAAQS necessary to

meet the requirements ofsection 110(a)(2)(D)(i).

The precise nature and contents ofsuch a submission is not stipulated in the statute. EPA

believes that the contents ofthe SIP submission required by section 11O(a)(2)(D)(i) may vary

depending upon the facts and circumstances related to the specific NAAQS. In particular, the

data and analytical tools avwlable at the time the State develops and submits a SIP for a new or

revised NAAQS necessarily affects the content ofthe required submission. In some instances,

this submission may be more detailed and substantive, as when existing data and analyses

already provide the requisite information. In other instances, the submission may be more

preliminary and simplified, as when there is currently insufficient information to support a

determination that there are interstate transport impacts, or when other later regulatory actions

are prerequisites to making such a determination.

The sections below provide guidance concerning the types ofSIP submissions that EPA

believes would be appropriate in response to the April 25, 2005, finding offailure to submit.

3
3. States subject to the Clean Air Interstate Rule:

In March of 2005, EPA promulgated the Clean Air Interstate Rule (CAIR).4 Based upon

the requirements ofsection 1l0(a)(2)(D)(i), EPA determined in the CAIR that NOx emissions

from sources in 25 States and the District ofColumbia contribute significantly to nonattainment

and interfere with maintenance ofthe 8-hour ozone standard in other downwind States. The

EPA also determined that S02 and NOx emissions from sources in 23 States and the District of

Columbia contribute significantly to nonattaimnent and interfere with maintenance ofthe PM 2.5

standards in other downwind States. Subsequently, EPA determined that two additional States

contribute to nonattaipment and interfere with maintenance ofthe PM2.s NAAQS.s(See

Attachment A listing the States subject to the CAIR).

In the CAIR, EPA concluded that the States will meet their section 110(a)(2)(D)(i)

obligations to address the "significant contribution" and "interference with maintenance"

requirements by complying with the CAIR requirements. Consequently, States within the CAIR

region need not submit a separate SIP revision to satisfY the section Il0(a)(2)(D)(i) requirements

provided that they submit a SIP revision to satisfy CAIR.

Pursuant to section 110(a)(I), those States not within the CAIR region must also make a

submission with respect to those two requirements. Also in accordance with the statute, all

States, both inside and outside the CAIR region must make a submission with respect to the

"prevention ofsignificant deterioration" and ''protect visibility" requirements ofsection

110(a)(2)(D)(i). It should be noted that because the CAIR region differs for purposes ofozone

and PM2.

s, some States may be inside the CAIR region for purposes ofone NAAQS, but outside

the CAIR region for the other, and should make section 1.l0(a)(2)(D)(i) SIP submissions that

account for this distinction.

Accordingly, EPA has structured this guidance to address the different types of

considerations that States may need to evaluate in making their respective submissions.

4. SIP Submissions from States pertaining to the "significant contribution" and

"interfere with maintenance" requirements ofsection llO(a)(2)(D)(i):

States not covered by the CAIR must make a section 110(a)(2)(D)(i) SIP submission

addressing significant contribution to nonattaimnent and interferen~e with maintenance ofthe

8-hour ozone and PM2.5 NAAQS in any other States.

4See, supra note 1.

SSee, Inclusion ofDelaware and New Jersey in Ckan Air Interstate Rule, 71 FR 25288

(April 28, 2006).

4
The EPA anticipates, based upon existing information developed in connection with the

CAIR, that emissions from sources in States not covered by the CAIR do not contribute

significantly to nonattainment or interfere with maintenance ofthe 8-hour ozone or PM2.S

NAAQS in any other State. Unless a State excluded from the CAIR has contrary information or

analysis, EPA believes that such State should be able to make a relatively simple SIP submission

verifying that the State does not significantly contribute to nonattainment or interfere with'

maintenance ofthe 8-hour ozone or PM2.S in another State. EPA believes that a negative

declaration from each ofthe non-CAIR States, which certifies that the State in question does not

significantly contribute to nonattainment or interfere with maintenance ofthe NAAQS in another

State, should be adequate to satisfy the requirements ofsection 110(a)(2)(D)(i).

States should submit a technical demonstration to support a negative declaration. EPA

believes that this demonstration should contain the information which the State deems

appropriate to support its claim that it does not significantly contribute to nonattainment or

interfere with maintenance ofthe standards in another State. Suitable information might include,

but is not be limited to, information concerning emissions in the State, meteorological conditions

in the State, the distance to the nearest nonattainment area in another State, reliance on modeling

conducted by EPA in determining that such State should not be included within the ambit ofthe

CAIR, or such other information as the State considers probative on the issue ofsignificant

contribution and interference with maintenance. The EPA believes that it would' be appropriate

for States to make this assessment using considerations comparable to those used by EPA in

evaluating significant contribution in the CAIR, ~, assessing the impacts ofemissiop.s on

nearby nonattainment areas as ofthe year 2010, and evaluating mitigation strategies based upon

emissions reductions achievable through highly cost effective controls.

In addition, States that are not subject to the CAIR, but are subject to the NOx SIP Call,

may wish to indicate that SIPs submitted to meet the NOx SIP Call should be sufficient to satisfy'

the section 11O(a)(2)(D)(i) obligation for the 8-hour oZone NAAQS. EPA initially addressed

interstate transport for ozone in the NOx SIP Call rule published in 1998.6 The NOx SIP Call is

substantially reducing ozone transport, and is helping downwind areas meet the 8-hour ozone

standards. The EPA believes that states outside the CAIR region that are meeting the NOx SIP

Call should not significantly be contributing to nonattainment or interferring with maintenance in

any down wind state.

The EPA will assist each State to evaluate the available information and to develop a

sufficient SIP submission and demonstration to meet this element ofsection 11O(a)(2)(D)(i).

6 "Finding ofSignificant Contribution and Rulemaking for Certain States in the Ozone

Transport Assessment Group Region for the Purposes ofReducing Regional Transport of

Ozone Rule, (63 FR 57356, October 27, 1998).

5
EPA will take action on the SIP submissions made by States through notice and comment

rulemaking, thereby assuring that the requirements are met.

5. SIP Submissions from States pertaining to the "prevention ofsignificant

deterioration" requirement ofsection 110(a)(2)(D)(i):

Section 110(a)(2)(D)(i)(II) also contains a requirement for all States to submit SIPs that

contain adequate provisions prohibiting ".... any source or other type of emission activity within

the State from emitting any air pollutant in amounts which will - interfere with measures

required to be included in the applicable implementation plan for any other State .... to prevent

significant deterioration of air quality ..."

Under EPA regulations, each SIP must include a preconstruction review program for

major sources to satisfy the requirements ofsection 110(a)(2)(D)(i) ofthe Act. 40 C.F.R. §

51.165(b)(1). In nonattainment areas, the preconstruction review program is known as

Nonattainment New Source Review (NNSR) and in attainment areas, preconstruction review is

part ofthe Prevention ofSignificant Deterioration (PSD) program. These programs require

preconstruction permits to protect the air quality within each state and also serve to prohibit

construction ofnew major sources and major modifications at existing major sources from"

contributing to nonattainment in adjacent states. The PSD permitting program is also the

primary measure that each SIP must include to prevent significant deterioration of air quality in

accordance with Title T, Part C and section 1l0(a)(2)(D)(i)(II) ofthe Act. See. 40 CFR § 51.166.

Section 110(a)(2)(D)(i)(II) requires that SIPs contain adequate provisions prohibiting sources or

emissions activity within each state "from emitting any air pollutant in amounts which will -- '"

interfere with measures required to be included in the applicable implementation plan for any

other State under part C ofthis subchapter to prevent significant deterioration ofair quality ...."

42 U.S.C. § 7410(a)(2)(D)(i)(II).

Because all areas are currently subject to some form ofpreconstruction permitting

" program for ozone and PM2.5, it is not necessary, at this time, for States to make a SIP

submission containing rule changes or modeling demonstrations in order to address

section 110(a)(2)(D)(i)(II) for the 8-hour ozone and PM2.5 NAAQS. EPA has established or will

establish schedules for SIP submissions that incorporate revisions to EPA's preconstruction

permitting regulations that are specific to the 8-hour ozone and PM2.5 NAAQS. Areas will need

to revise their SIPs consistent with such schedules.

Each area ofthe country is currently subject to an equivalent PSD or NNSR permitting

program for the 8-hour ozone standard and an interim PSD or NNSR permitting program for

PM2.5• If a particular state SIP lacks an approved PSD program, the PSD permitting

requirements must be implemented in that state or local area through a federal PSD program that

can be administered by the state or local permitting authority under a delegation agreement with

EPA. Where a state lacks an approved NNSR program, the state may issue NNSR permits

6
pursuant to an EPA regulation at 40 CFR Part 51, Appendix S. Ifsuch a state lacks authority to

issue permits consistent with appendix S, EPA is the permitting authority.

In April 2004 and November 2005, EPA promulgated regulations in two phases that

addressed (among other topics) the implementation ofthe PSD and NNSR programs under the

8-hour ozone NAAQS. See 69 FR 23951 (Apr. 30,2004); 70 Fed. Reg. 71612 (Nov. 29, 2005).

The first phase ofthese rules requires implementation ofNNSR in accordance with an area's 8-

hour ozone classification after revocation ofthe I-hour ozone NAAQS. See 69 FR at 23985.

The EPA revoked the I-hour ozone NAAQS on June 15,2005. Thus, new and modified major

sources ofvolatile organic compound and NOx are currently subject to NNSR based on the

designation and classification ofthe area in which they are located under the 8-hour ozone

NAAQS. In an 8-hour ozone nonattainment area that currently has no approved nonattainment

plan or otherwise lacks authority to implement nonattainment NSR for the 8-hour ozone NAAQS

through a SIP-approved permitting program, pennits for new and modified major stationary

sources in such areas must be consistent with the requirements in appendix S of 40 CFR. Part 51.

IEPA determined that states did not need to submit any revisions oftheir existing PSD programs

to implement ofthe 8-hour ozone NAAQS, but the Agency simultaneously promulgated new

rules to establish NOx as a precursor for ozone under the PSD program. See 68 FR. 32802,

32843-44 (Jun. 2, 2003); 70 FR at 71679. The EPA established June 15,2007 as the deadline for

states to provide SIP submissions that incorporate the requirements ofthe phase II ozone

implementation rule into their PSDand NNSR programs. See 70 FR at 71683.

For PM2.5, EPA has recommended that states employ an interim PM2.5 program that

involves implementing existing PSD andNNSR programs for PMIO as a surrogate for the PM2.5

requirements until the necessary tools are in place for states to adopt PSD and NNSR programs

for PM2.5. See, Memorandum from John Seitz, EPA OAQPS, "Interim Implementation for the

New Source Review Requirements for PM2.5," (October 23, 1997); Memorandum from Steve

Page, EPA OAQPS, "Implementation ofNew Source Review Requirements in PM2.5

Nonattainment Areas." (AprilS, 2005). In November 2005, EPA has proposed regulations that

establish the minimum requirements for PSD and NNSR programs for PM2.

5, 70 FR 65984,

66033 (Nov. 1, 2005), but the Agency has not promulgated fmal regulations on this subject.

States are not required to submit PSD and NNSR program SIPs for PM2.S until EPA completes

these regulations and finalizes the submission schedule, which we have proposed to be AprilS,

2008. Until the submission date is established in EPA's final PM2.5 implementation rule for

NSR, states may continue to implement interim programs based on PMIO and need not provide

PSD or NNSR program submissions containing rule changes for PM2.5.

The air quality demonstrations required for issuance of a PSD and NNSR pennit must be

made for all areas that are potentially impacted by the emissions from a proposed source or

modification requiring a permit. As a result, the implementation of a PSD and NNSR permitting

program in each state serves to prevent significant deterioration in neighboring states and thus

largely satisfies the requirements ofsection 11O(a)(2)(D){i)(II) ofthe CAA. A PSD permit may

not be issued unless the new or modified source demonstrates that emissions from the

7
construction or operation ofthe facility will not cause or contribute to air pollution in any area

that exceeds of any NAAQS or any maximum allowable increaSe (known as the PSD increment).

42 U.S.C. § 7475(a)(3); 40 CFR § 51.166(k). A NNSR permit may not be issued unless the new

or modified source shows it has obtained sufficient emissions reductions to offset increases in

emissions ofthe pollutants for which an area is in nonattainment, consistent with reasonable

further program toward attainment. These offsetting reductions. could also help serve to prevent

significant deterioration in any instance where the emissions of a nonattainment pollutant from a

source in a nonattainment area would impact a nearby attainment area for that pollutant.

In addition to PSD permitting program, a SIP may include additional measures as

necessary to prevent air pollution in excess ofthe PSD increment that defines significant

deterioration for each area. 40 CFR § 51.166(a). The EPA has not established PSD increments

for ozone or PMZ.5. Without these components of a PSD program, it is difficult for states to

determine if additional measures are needed to prevent significant deterioration within the state.

Likewise, a neighboring state cannot determine whether its SIP would interfere with such

additional measures in another state's SIP. However, notwithstanding the absence ofPSD

increments for ozone and PMZ.

5, states may continue to rely on their existing PSD and NNSR

permitting programs to prevent significant deterioration of air quality within their own

boundaries and in adjacent states.

Because the PSD and NNSR permitting programs currently applicable in each area

require a demonstration that new or modified sources will not cause or contribute to air pollution

in excess ofthe NAAQS in neighboring states or that sources in nonattainment areas procure

offsets, EPA believes that states need not make an additional SIP submission containing rule

changes or modeling demonstrations to address the "prevent significant deterioration"

requirement ofsection 11O(a)(2)(D)(i)(II) for the 8-hour ozone and PMZ.5 NAAQS. For 8-hour

ozone, each state only needs to make a SIP submission confirming that major sources in the state

are currently subject to PSD and NNSR permitting programs that implement the 8-hour ozone

standard and that SIP-approved states are on track to meet the June 15,2007 deadline for SIP

submissions adopting the requirements ofthe Phase II ozone implementation rule. For PMz.5,

states need only provide a SIP submission confirming that major sources in the state are subject

to PSD and NNSR permitting programs implemented in accordance with EPA's interim

guidance calling for use ofPMIO as a surrogate for PMz.5 in the PSD and NNSR programs.

Additional SIP submissions will be due after the final NSR implementation rules for PMz.5 are

promulgated.

The EPA will assist each State to evaluate the available information and to develop a

sufficient SIP submission and demonstration to meet this element ofsection 110(a)(2)(D){i).

The EPA will take action on the SIP submissions made by States through notice and comment

rulemaking, thereby assuring that the requirements are met.

8
6. SIP Submissions from States pertaining to the "protect visibility" requirement of

section llO(a)(2)(D)(i):

Section 110(a)(2)(D)(i)(II) also contains a requirement for all States to submit SIPs that

contain adequate provisions prohibitmg "... any source or other type of emission activity within

the State from emitting any air pollutant in amounts which will - interfere with measures

required to be included in the applicable implementation plan for any other State....to protect

visibility."

. The EPA adopted a phased approach to visibility protection, issuing regulations in 1980

to address reasonably attributable visibility impairment, i.e., visibility impairment that is caused

by the emissions of air pollutants from one, or a small number ofsources, and issuing regulations

in 1999 to address regional haze, i.e., ''visibility impairment that is caused by the emission of air

pollutants from numerous sources located over a wide geographic area.,,7 Under the 1980

regulations, 33 States and the Virgin Islands were required to submit SIPs to address reasonably

attributable visibility impairment. At this point in time, EPA has made no determination that

emissions from any State interfere with measures required to be included in a plan to address

reasonably attributable visibility impairment. Further, EPA is not aware of any certification of

existing reasonably attributable impairment ofvisibility by a Federal Land Manager that has not

already been resolved. The EPA accordingly believes that States should be able to make a

relatively simple SIP submission verifying that no source within the State emits pollutants that

interfere with measures included in the visibility SIPs under the 1980 regulations.

In 1999, EPA found that all States contain sources whose emissions are reasonably

anticipated to contribute to regional haze in one or more Class I areas.8 Pursuant to this finding,

States are currently under an obligation to submit SIPs that contain measures to address regional

haze, including a long-term strategy to address visibility impairment for each Class I area which

may be affected by emissions from a State.9 The States and Regional Planning Organizations are

currently engaged in the task ofidentifying those Class I areas impacted by each State's

emissions and developing strategies for addressing regional haze to be included in the States'

regional haze SIPs. These SIP submissions are due no later than December 17,2007.

As a result, EPA believes that it is currently premature to determine whether or not State

SIPs for 8-hour ozone or PM2.5 contain adequate provisions to prohibit emissions that interfere

with measures in other States' SIPs designed to address regional haze. Accordingly, EPA

believes that States may make a simple SIP submission confirming that it is not possible at this

time to assess whether there is any interference with measures in the applicable SIP for another

7 See, 40 CFR section 51.300-308.

8See, "Regional Haze Regulations," 64 FR 35,714,35,721 (July 1, 1999).

940 CFR 51.308(d)(3).

9
State designed to "protect visibility" for the 8-hour ozone and PM2.5 NAAQS until regional haze

SIPs are submitted and approved.

The EPA will assist each State to evaluate the available information and to develop a

sufficient SIP submission and demonstration to meet this element ofsection 110(a)(2)(D)(i).

EPA will take action on the SIP submissions made by States through notice and comment

rulemaking, thereby assuring that the requirements are met. .

7. When should States make section llO(a)(2)(D)(i) SIP submissions?

The EPA made the finding offailure to submit in April of 2005, with an effective date of

May 25, 2005. As a result ofthe rmding offailure to submit, the CAA imposes a 24-month

clock for EPA to issue a FIP, unless a State has made the required submis~ion to cure the failure

to submit and EPA has acted to approve such submission fully in advance ofthe end ofthe

24-month period.

In conjunction with the CAIR, EPA has promulgated a FIP for all jurisdictions in the

CAIR region to provide a federal backstop to insure timely and effective reductions of emissions

from those States in accordance with section 110(a)(2)(D)(i)(I). The EPA has not, however,

promulgated a FIP addressing section 110(a)(2)(D)(i) for any States outside ofthe.CAIR region.

States outside the CAIR region must therefore make submissions to meet the significant

contribution and interference with maintenance requirements ofsection 11O(a)(2)(D)(i)(I) to

avoid a FIP addressing those requirements. In addition, all States have an outstanding statutory

obligation to make a SIP submission to meet the requirements ofsection 110(a)(2)(D)(i)(II) in

avoid a FIP for those requirements. .

The EPA is currently under an obligation to issue a FIP by May 25, 2007, for any State

that does not make a submission that cures the outstanding elements ofsection 11 0(a)(2)(D)(i)

for that State. Unless the State makes the necessary SIP submission sufficiently in advance of

that date for EPA to evaluate the submission and to take the necessary rulemaking action to

approve or disapprove it, EPA may need to initiate the FIP rulemaking process in order to meet

the May 2007 FIP deadline. For this reason, EPA believes that it would be appropriate for each

State to make the SIP submission necessary to meet its outstanding obligations under

section 11O(a)(2)(D)(i) well in advance ofthe May 25,2007 FIP deadline. The EPA therefore

suggests that States should make their SIP submission by no later than November 25, 2006, in

order to allow adequate time for the necessary Agency action on the submission.

The EPA recognizes that this target SIP submission date is only 18 months after the

effective date ofthe finding offailure to submit,and that the Agency is issuing this guidance

concerning the necessary SIP submissions only shortly in advance ofthe target date. As a result,

EPA intends to be as flexible as possible with respect to the target SIP submission date and will

work with States to insure that they can make appropriate SIP submissions as close to

10
November 25,2006, as possible. However, in the event ofsubmissions significantly later than

this d~te, EPA may need to initiate the FIP process to meet its own statutory obligations to

implement FIPs where States fail to submit SIPs that the Agency can approve in advance ofthe

May 25, 2007 FIP deadline.

11
Attachment A: States subject to the CAiR

Alabama Mississippi

Arkansas (ozone only) Missouri

Connecticut (ozone only) New York

Florida New Jersey

Delaware North Carolina

Georgia (PM 2.5 only) Ohio

Illinois Pennsylvania

Indiana South Carolina

Iowa Tennessee

Kentucky Texas (pM 2.5 only)

Louisiana Virginia

Maryland West Virginia

Massachusetts (ozone only) Wisconsin

Michigan District ofColumbia

Minnesota (pM 2.5 only)

12