47068 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 

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). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by October 3, 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 

pertaining to West Virginia’s section 

110(a)(2) infrastructure requirements for 

the 1997 8-hour ozone and PM2.5

NAAQS, and the 2006 PM2.5 NAAQS, 

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, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: July 22, 2011. 

W.C. Early, 

Acting, Regional Administrator, Region III. 

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 XX—West Virginia 

■ 2. In § 52.2520, the table in paragraph 

(e) is amended by adding entries at the 

end of the table for Section 110(a)(2) 

Infrastructure Requirements for the 1997 

8-Hour Ozone NAAQS, Section 

110(a)(2) Infrastructure Requirements 

for the 1997 PM2.5 NAAQS, and Section 

110(a)(2) Infrastructure Requirements 

for the 2006 PM2.5 NAAQS. The 

amendments read as follows: 

§ 52.2520 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory SIP 

revision 

Applicable 

geographic area State submittal date EPA approval date Additional explanation 

*******

Section 110(a)(2) Infrastructure 

Requirements for the 1997 8- 

Hour Ozone NAAQS.

Statewide .......... 12/3/07, 5/21/08 8/4/11 [Insert page number 

where the document begins].

This action addresses the following CAA elements or portions thereof: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). 

Section 110(a)(2) Infrastructure 

Requirements for the 1997 

PM2.5 NAAQS.

Statewide .......... 4/3/08, 5/21/08, 

7/9/08, 3/18/10 

8/4/11 [Insert page number 

where the document begins].

This action addresses the following CAA elements or portions thereof: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). 

Section 110(a)(2) Infrastructure 

Requirements for the 2006 

PM2.5 NAAQS.

Statewide .......... 10/1/09, 3/18/10 8/4/11 [Insert page number 

where the document begins].

This action addresses the following CAA elements or portions thereof: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). 

[FR Doc. 2011–19692 Filed 8–3–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0158; FRL–9447–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; Section 110(a)(2) 

Infrastructure Requirements for the 

1997 8-Hour Ozone and the 1997 and 

2006 Fine Particulate Matter National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving submittals 

from the State of Delaware pursuant to 

the Clean Air Act (CAA) sections 

110(k)(2) and (3). These submittals 

address the infrastructure elements 

specified in the CAA section 110(a)(2), 

necessary to implement, maintain, and 

enforce the 1997 8-hour ozone and fine 

particulate matter (PM2.5) national 

ambient air quality standards (NAAQS) 

and the 2006 PM2.5 NAAQS. This final 

rule is limited to the following 

infrastructure elements which were 

subject to EPA’s completeness findings 

pursuant to CAA section (k)(1) for the 

1997 8-hour ozone NAAQS dated March 

27, 2008 and the 1997 PM2.5 NAAQS 

dated October 22, 2008: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), 

(L), and (M), or portions thereof. 

DATES: Effective Date: This final rule is 

effective on September 6, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2010–0158. All 

documents in the docket are listed in 

the http://regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., 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://regulations.gov or in hard copy 

for public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Delaware Department of 

Natural Resources and Environmental 

Control, 89 Kings Highway, P.O. Box 

1401, Dover, Delaware 19903. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Wentworth, (215) 814–2034, or by 

e-mail at wentworth.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 


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1See, 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. EPA did 

receive specific adverse comments in this action 

that are discussed in more detail in section IV. 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

On June 3, 2010 (75 FR 31340), EPA 

published a notice of proposed 

rulemaking (NPR) for the State of 

Delaware. The NPR proposed approval 

of Delaware’s submittals that provide 

the basic program elements specified in 

the CAA sections 110(a)(2)(A), (B), (C), 

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

(M), or portions thereof, necessary to 

implement, maintain, and enforce the 

1997 8-hour ozone and PM2.5 NAAQS 

and the 2006 PM2.5 NAAQS. The formal 

submittals submitted by the State of 

Delaware on December 13, 2007, 

September 19, 2008, and September 16, 

2009 addressed the section 110(a)(2) 

requirements for the 1997 8-hour ozone 

NAAQS; the submittals dated December 

13, 2007, March 12, 2008, September 16, 

2009, and March 10, 2010 addressed the 

section 110(a)(2) requirements for the 

1997 PM2.5 NAAQS; and the submittals 

dated September 16, 2009 and March 

10, 2010 addressed the section 110(a)(2) 

requirements for the 2006 PM2.5

NAAQS. 

II. Scope of Action on Infrastructure 

Submissions 

EPA is currently acting upon State 

Implementation Plans (SIPs) that 

address the infrastructure requirements 

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

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 those infrastructure SIP 

submissions.1 Those commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements in other proposals 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 (SSM) at 

sources, that may be contrary to the 

CAA and EPA’s policies addressing 

such excess emissions; 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. EPA notes that 

there are two other substantive issues 

for which EPA likewise stated in other 

proposals 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 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 80186, 

December 31, 2002), as amended by the 

NSR Reform Rule (72 FR 32526, 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. 

EPA intended the statements in the 

other 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 EPA’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 we 

believe 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 in those proposals, 

however, we want to explain more fully 

EPA’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, new source review permitting 

program submissions required to 


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47070 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 

2For 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. 

3For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s 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 25162, May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

4See, e.g., Id., (70 FR 25162, at 63–65, May 12, 

2005) (explaining relationship between timing 

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

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

5EPA 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. 

6For 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. 

7See, ‘‘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’’). 

8 Id., at page 2. 

9 Id., at attachment A, page 1. 

address the 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.2 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.3

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).4 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 EPA 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.5 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 state’s 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.6

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 requirements 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.7 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what EPA 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.’’ 8 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 

required elements.’’ 9 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 


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10 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. 

11See, ‘‘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’’). 

12EPA 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 21639, 

April 18, 2011). 

13EPA 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 82536, Dec. 30, 2010). EPA has previously 

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

numerous other SIP provisions that EPA 

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

FR 38664, July 25, 1996) and (62 FR 34641, June 

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

California, Hawaii, and Nevada SIPs); (69 FR 67062, 

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

and (74 FR 57051, November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

14EPA 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 42342–42344, 

July 21, 2010)(proposed disapproval of director’s 

discretion provisions); (76 FR 4540, Jan. 26, 2011) 

(final disapproval of such provisions). 

assistance from EPA Regions.’’ 10 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 state’s SIP for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.11 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS, e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS. 

Significantly, neither the 2007 

Guidance nor the 2009 Guidance 

explicitly referred 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 other 

proposals mentioned these issues not 

because EPA 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 EPA 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 EPA determines that a 

state’s SIP is substantially inadequate to 

attain or maintain the NAAQS, to 

mitigate interstate transport, or 

otherwise to comply with the CAA.12

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.13

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 EPA’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 EPA cites in the 

course of addressing the issue in a 

subsequent action.14

EPA’s proposed approval of the 

infrastructure SIP submissions from 

Delaware predated the actions on the 

submissions of other states and thus 

occurred before EPA decided to provide 

the informational statements concerning 

the SSM, director’s discretion, minor 

source NSR, and NSR Reform issues as 

specific substantive issues that EPA was 

not addressing in this context. However, 

EPA determined that these four issues 

should be addressed, as appropriate, 

separately from the action on the 

infrastructure SIPs for this state for the 

same reasons. Given this determination, 

EPA did not address these substantive 

issues in the prior proposals. 

Accordingly, EPA emphasizes that 


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today’s action should not be construed 

as a reapproval of any potential 

problematic provisions related to these 

substantive issues that may be buried 

within the existing SIP of this state. To 

the extent that there is any such existing 

problematic provision that EPA 

determines should be addressed, EPA 

plans to address such provisions in the 

future. In the meantime, EPA 

encourages any state that may have a 

deficient provision related to these 

issues to take steps to correct it as soon 

as possible. 

III. Summary of Relevant Submissions 

The submittals referenced in the 

Background section above address the 

infrastructure elements specified in the 

CAA section 110(a)(2). These submittals 

refer to the implementation, 

maintenance and enforcement of the 

1997 8-hour ozone, the 1997 PM2.5

NAAQS, and the 2006 PM2.5 NAAQS. 

The rationale supporting EPA’s 

proposed action is explained in the NPR 

and the technical support document 

(TSD) and will not be restated here. On 

July 6, 2010, EPA received adverse 

comments on the June 3, 2010 NPR. A 

summary of the comments submitted 

and EPA’s responses are provided in 

Section IV of this document. EPA is also 

revising the portion of the TSD relating 

to section 110(a)(2)(D)(ii) in order to 

provide a more accurate and detailed 

explanation of the rationale supporting 

EPA’s approval. The TSD is available on 

line at http://regulations.gov, Docket 

number EPA–R03–OAR–2010–0158. 

IV. Summary of Public Comments and 

EPA Responses 

Comment: The commenter objected to 

EPA’s proposed approval of the 

infrastructure SIP submission on the 

grounds that the existing Delaware SIP 

contain provisions addressing excess 

emissions during periods of SSM, that 

do not meet the requirements of the 

CAA. The commenter argued that even 

though the SIP revisions that EPA 

proposed to approve in this action did 

not contain the provisions to which the 

commenter objects, the presence of 

existing SSM provisions in Delaware’s 

SIP that are contrary to the CAA 

compromise the State’s ability to ensure 

compliance with the PM2.5 and ozone 

NAAQS. The commenter provided 

details on specific regulatory provisions 

that the commenter characterized as 

inconsistent with Federal law. 

According to the commenter, these 

provisions ‘‘potentially create blanket 

exemptions’’ for emissions during SSM 

events and these exemptions enable 

sources to emit excessive amounts of 

pollutants that could ‘‘compromise the 

state’s ability to achieve and maintain 

the PM2.5 and ozone NAAQS.’’ 

Response: EPA disagrees with the 

commenter’s view that if a state’s 

existing SIP contains any arguably 

illegal existing SSM provision, then 

EPA cannot approve the infrastructure 

SIP submission of that state. As 

discussed in more detail in section II of 

this final rulemaking, EPA does not 

agree that an action upon the 

infrastructure SIP required by section 

110(a)(1) and (2) requires that EPA 

address any existing SSM provisions. 

EPA shares the commenter’s concerns 

that certain existing SSM provisions 

may be contrary to the CAA and existing 

EPA guidance, and that such provisions 

can have an adverse impact on air 

quality control efforts in a given state. 

EPA plans to address such provisions in 

the future, as appropriate, and in the 

meantime encourages any state having a 

deficient SSM provision to take steps to 

correct it as soon as possible. EPA is not 

evaluating the merits of the 

commenter’s claims with respect to the 

particular provisions identified in the 

comments in this action because EPA 

considers these to be beyond the scope 

of this action. 

Comment: The commenter also 

objected to EPA’s proposed approval of 

the infrastructure SIP submission 

because of existing provisions of the 

Delaware SIP that pertain to NOX

emission from certain stationary 

sources. According to the commenter, 

these provisions enable the state to 

allow sources to avoid otherwise 

applicable NOX emissions limits during 

SSM events. Moreover, the commenter 

objected to the provisions on the 

grounds that they allegedly allow the 

state to make such revisions to the NOX

limits ‘‘outside the SIP-revision 

process,’’ thereby precluding EPA from 

ensuring that such revisions would meet 

EPA’s applicable guidance on 

provisions related to SSM. Thus, 

according to the commenter, the 

existing provisions combine an 

impermissible director’s discretion 

provision with an impermissible SSM 

provision, and these director’s 

discretion and variance provisions are 

contrary to the CAA. 

Response: EPA also disagrees with the 

commenter’s conclusion that if a state’s 

existing SIP contains any arguably 

illegal director’s discretion or director’s 

variance provision in combination with 

an arguably illegal SSM provision, then 

EPA cannot approve the infrastructure 

SIP submission of that state. As 

discussed in more detail in section II of 

this final rulemaking, EPA does not 

agree that an action upon the 

infrastructure SIP required by section 

110(a)(1) and (2) requires that EPA 

address any existing director’s 

discretion provisions, or such 

provisions in combination with existing 

SSM provisions. 

EPA shares the commenter’s concerns 

that certain existing director’s discretion 

provisions in combination with existing 

SSM provisions may be contrary to the 

CAA and existing EPA guidance and 

that such provisions can have an 

adverse impact on air quality control 

efforts in a given state. EPA plans to 

take action in the future to address such 

provisions, as appropriate, and in the 

meantime encourages any state having a 

deficient director’s discretion or 

director’s variance provision to take 

steps to correct it as soon as possible. 

EPA is not evaluating the merits of the 

commenter’s claims with respect to the 

particular provisions identified in the 

comments in this action because EPA 

considers these to be beyond the scope 

of this action. 

Comment: The commenter asserted 

that Delaware’s New Source 

Performance Standards (NSPS) 

regulations are not SIP approved but 

nevertheless contain ‘‘loopholes’’ for 

emissions during periods of startup, 

shutdown, and/or malfunction that are 

less stringent than, or inconsistent with, 

federal law. The commenter provided 

details on specific regulatory provisions 

that the commenter characterized as 

inconsistent with federal law. The 

commenter acknowledged that these 

specific provisions are not SIP 

approved, but argued that the provisions 

affect the ability to enforce emissions 

limits in state court or administrative 

proceedings and therefore potentially 

undermine the CAA and EPA’s ability to 

ensure implementation of the CAA. 

Response: EPA disagrees with these 

comments. First, as the commenter 

agrees, provisions of state law that are 

not SIP approved are by definition not 

something that is relevant to EPA’s 

action on the specific infrastructure SIP 

under consideration in this action. 

EPA’s review of the infrastructure SIP is 

to evaluate the basic structural 

components of the SIP to assure that it 

meets basic requirements for 

implementation, maintenance, and 

enforcement of the NAAQS. Provisions 

of state law that are not within the SIP 

are outside the scope of this action, even 

if they related to an issue that was 

otherwise germane to this action. 

Second, as explained in response to 

commenters other concerns with 

provisions that are within the SIP, EPA 

does not agree that an action upon an 

infrastructure SIP submission required 

by section 110(a)(1) and (2) requires that 

EPA address any existing SSM 


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provisions. The bases for EPA’s view 

that such provisions should be 

addressed separately is explained in 

more detail in section II of this final 

rulemaking, 

V. Final Action 

EPA is approving the State of 

Delaware’s submittals that provide the 

basic program elements specified in the 

CAA sections 110(a)(2)(A), (B), (C), 

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

(M), or portions thereof, necessary to 

implement, maintain, and enforce the 

1997 8-hour ozone and PM2.5 NAAQS 

and the 2006 PM2.5 NAAQS. EPA made 

completeness findings for the 1997 8- 

hour ozone NAAQS on March 27, 2008 

(73 FR 16205) and on October 22, 2008 

(73 FR 62902) for the 1997 PM2.5

NAAQS. These findings pertained only 

to whether the submissions were 

complete, pursuant to 110(k)(1)(A), and 

did not constitute EPA approval or 

disapproval of such submissions. The 

March 27, 2008 finding noted that 

Delaware failed to submit a complete 

SIP addressing the portions of (C) and 

(J) relating to the Part C permit program 

for the 1997 8-hour ozone NAAQS. 

Specifically, EPA found that Delaware 

failed to address sections 110(a)(2)(C) 

and (J) pertaining to changes to its Part 

C PSD permit program required by the 

November 29, 2005 (70 FR 71612, page 

71699) final rule that made nitrogen 

oxides (NOX) a precursor for ozone in 

the Part C regulations found at 40 CFR 

51.166 and in 40 CFR 52.21. EPA has 

taken separate action on the portions of 

section 110(a)(2)(C) and (J) for the 1997 

8-hour ozone NAAQS as they relate to 

Delaware’s PSD permit program (76 FR 

26679). 

Two elements identified in section 

110(a)(2) are not governed by the three 

year submission deadline of section 

110(a)(1) because SIPs incorporating 

necessary local nonattainment area 

controls are not due within three years 

after promulgation of a new or revised 

NAAQS, but rather are due at the time 

the nonattainment area plan 

requirements are due pursuant to 

section 172. These elements are: (i) 

Submissions required by section 

110(a)(2)(C) to the extent that subsection 

pertains to a permit program in Part D 

Title I of the CAA; and (ii) any 

submissions required by section 

110(a)(2)(I), which pertain to the 

nonattainment planning requirements of 

Part D Title I of the CAA. This action 

does not cover these specific elements. 

This action also does not address the 

requirements of 110(a)(2)(D)(i) for the 

1997 8-hour ozone and PM2.5 NAAQS or 

for the 2006 PM2.5 NAAQS. A portion of 

these requirements have been addressed 

by separate findings issued by EPA (See 

(70 FR 21147, April 25, 2005); (75 FR 

32673, June 9, 2010), and (76 FR 2853, 

January 18, 2011)). A portion of these 

requirements are addressed through 

110(a)(2) SIP submittals, which EPA 

will be addressing through separate 

action. 

VI. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 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 state law as meeting 

Federal requirements and 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 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. 

B. Submission to Congress and the 

Comptroller General 

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). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by October 3, 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 

pertaining to Delaware’s section 

110(a)(2) infrastructure requirements for 

the 1997 8-hour ozone and PM2.5

NAAQS, and the 2006 PM2.5 NAAQS, 

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, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: July 22, 2011. 

W.C. Early, 

Acting, Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 


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47074 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart I—Delaware 

■ 2. In § 52.420, the table in paragraph 

(e) is amended by adding entries at the 

end of the table for Delaware’s section 

110(a)(2) Infrastructure Requirements 

for the 1997 8-Hour Ozone NAAQS, 

Section 110(a)(2) Infrastructure 

Requirements for the 1997 PM2.5

NAAQS, and Section 110(a)(2) 

Infrastructure Requirements for the 2006 

PM2.5 NAAQS. The amendments read as 

follows: 

§ 52.420 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory SIP 

revision 

Applicable geographic 

or nonattainment area 

State submittal 

date EPA approval date Additional explanation 

*******

Section 110(a)(2) Infrastructure 

Requirements for the 1997 8- 

Hour Ozone NAAQS.

Statewide .................. 12/13/07 

9/19/08 

9/16/09 

8/4/11 [Insert Federal Register 

page number where the document begins] 

This action address the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), 

and (M) or portions thereof. 

Section 110(a)(2) Infrastructure 

Requirements for the 1997 

PM2.5 NAAQS.

Statewide .................. 12/13/07 

3/12/08 

9/16/09 

3/10/10 

8/4/11 [Insert Federal Register 

page number where the document begins] 

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(ii) 

(E), (F), (G), (H), (J), (K), (L), 

and (M) or portions thereof. 

Infrastructure Requirements for 

the 2006 PM2.5 NAAQS.

Statewide .................. 9/16/09 

3/10/10 

8/4/11 [Insert Federal Register 

page number where the document begins] 

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), 

and (M), or portions thereof. 

[FR Doc. 2011–19694 Filed 8–3–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0462; FRL–9437–6] 

Revision to the California State 

Implementation Plan; South Coast Air 

Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve a revision to the South 

Coast Air Quality Management District 

portion of the California State 

Implementation Plan (SIP). This 

revision concerns volatile organic 

compound (VOC) emissions from 

polymeric foam manufacturing 

operations. We are approving a local 

rule that regulates these emission 

sources under the Clean Air Act as 

amended in 1990 (CAA). 

DATES: This rule is effective on October 

3, 2011 without further notice, unless 

EPA receives adverse comments by 

September 6, 2011. If we receive such 

comments, we will publish a timely 

withdrawal in the Federal Register to 

notify the public that this direct final 

rule will not take effect. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2011–0462, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Mae 

Wang, EPA Region IX, (415) 947–4124, 

wang.mae@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What is the purpose of the submitted 

rule? 

II. EPA’s Evaluation and Action 

A. How is EPA evaluating the rule? 

B. Does the rule meet the evaluation 

criteria? 

C. Public Comment and Final Action 

III. Statutory and Executive Order Reviews 


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