Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules 28659 

1 73 FR 16436 (March 27, 2008). EPA revised the 

previous 8-hour primary ozone standard of 0.08 

parts per million (ppm) to 0.075 ppm. EPA also 

revised the secondary 8-hour standard to the level 

of 0.075 ppm making it identical to the revised 

primary standard. In September 2009, EPA 

announced it would reconsider the 2008 8-hour 

ozone NAAQS. However, in September 2011, EPA 

announced its decision to merge the 

reconsideration of the 2008 NAAQS with the next 

scheduled 5-year review of the ozone NAAQS, and 

advised the states that the 2008 NAAQS would be 

implemented. 

2 75 FR 6474 (February 9, 2010). EPA established 

a 1-hour standard of 100 parts per billion (ppb), 

based on the 3-year average of the 98th percentile 

Continued 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2014–0317; FRL–9911–02– 

Region–9] 

Approval and Promulgation of State 

Implementation Plans; Hawaii; 

Infrastructure Requirements for the 

2008 8-Hour Ozone and the 2010 

Nitrogen Dioxide National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of a State Implementation Plan 

(SIP) revision submitted by the State of 

Hawaii on April 04, 2014, pursuant to 

the requirements of the Clean Air Act 

(CAA or the Act) for the 2008 8-Hour 

Ozone and the 2010 Nitrogen Dioxide 

national ambient air quality standards 

(NAAQS). The CAA requires that each 

state adopt and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA. We are taking 

comments on this proposal and plan to 

follow with a final action. 

DATES: Written comments must be 

received on or before June 18, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R09–OAR–2014–0317, by one of the 

following methods: 

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

the on-line instructions for submitting 

comments. 

2. Email: richmond.dawn@epa.gov. 

3. Fax: 415–947–3579. 

4. Mail or deliver: Dawn Richmond, 

Air Planning Office (AIR–2), U.S. 

Environmental Protection Agency, 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105–3901. Deliveries 

are only accepted during the Regional 

Office’s normal hours of operation. 

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 email. 

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 email 

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. 

Docket: The index to the docket for 

this action is 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 in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), 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 directly 

below. 

FOR FURTHER INFORMATION CONTACT: 

Dawn Richmond, Air Planning Office 

(AIR–2), U.S. Environmental Protection 

Agency, Region IX, (415) 972–3207, 

richmond.dawn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. Statutory Framework 

B. Regulatory History 

II. EPA’s Approach to the Review of 

Infrastructure SIP Submissions 

III. State Submittal and EPA Action 

IV. EPA’s Evaluation and Proposed Action 

V. Statutory and Executive Order Reviews 

I. Background 

A. Statutory Framework 

Section 110(a)(1) of the CAA requires 

states to make a SIP submission within 

3 years after the promulgation of a new 

or revised primary NAAQS. Section 

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

elements that ‘‘[e]ach such plan’’ 

submission must include. Many of the 

section 110(a)(2) SIP elements relate to 

the general information and authorities 

that constitute the ‘‘infrastructure’’ of a 

state’s air quality management program 

and SIP submittals that address these 

requirements are referred to as 

‘‘infrastructure SIPs.’’ These 

infrastructure SIP elements are as 

follows: 

• Section 110(a)(2)(A): Emission 

limits and other control measures. 

• Section 110(a)(2)(B): Ambient air 

quality monitoring/data system. 

• Section 110(a)(2)(C): Program for 

enforcement of control measures and 

regulation of new stationary sources. 

• Section 110(a)(2)(D)(i): Interstate 

pollution transport. 

• Section 110(a)(2)(D)(ii): Interstate 

and international pollution abatement. 

• Section 110(a)(2)(E): Adequate 

resources and authority, conflict of 

interest, and oversight of local 

governments and regional agencies. 

• Section 110(a)(2)(F): Stationary 

source monitoring and reporting. 

• Section 110(a)(2)(G): Emergency 

episodes. 

• Section 110(a)(2)(H): SIP revisions. 

• Section 110(a)(2)(J): Consultation 

with government officials, public 

notification, and prevention of 

significant deterioration (PSD) and 

visibility protection. 

• Section 110(a)(2)(K): Air quality 

modeling and submission of modeling 

data. 

• Section 110(a)(2)(L): Permitting 

fees. 

• Section 110(a)(2)(M): Consultation/

participation by affected local entities. 

Two elements identified in section 

110(a)(2) are not governed by the threeyear submission deadline of section 

110(a)(1) and are therefore not 

addressed in this action. These elements 

relate to part D of title I of the CAA, and 

submissions to satisfy them are not due 

within three years after promulgation of 

a new or revised NAAQS, but rather are 

due at the same time nonattainment area 

plan requirements are due under section 

172. The two elements are: (1) Section 

110(a)(2)(C) to the extent it refers to 

permit programs required under part D 

(nonattainment New Source Review 

(NSR)), and (2) section 110(a)(2)(I), 

pertaining to the nonattainment 

planning requirements of part D. As a 

result, this action does not address 

infrastructure elements related to the 

nonattainment NSR portion of section 

110(a)(2)(C) or related to section 

110(a)(2)(I). 

B. Regulatory Background 

On March 12, 2008, EPA issued a 

revised NAAQS for ozone.1 On January 

22, 2010, EPA issued a revised NAAQS 

for nitrogen dioxide.2 These revisions to 

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of the yearly distribution of 1-hour daily maximum 

concentrations, to supplement the existing annual 

standard. EPA set the annual NO2 standard to 0.053 

ppm. 

3 78 FR 2882. 

4 Id. at 2889. 

5For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

6See, 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, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

7EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

8See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

the ozone and nitrogen dioxide NAAQS, 

triggered requirements for states to 

submit infrastructure SIPs to address the 

applicable requirements of section 

110(a)(2) within three years of issuance 

of each of these revised NAAQS. 

On January 15, 2013, EPA found that 

Hawaii had failed to make a submittal 

for the 2008 ozone NAAQS to satisfy the 

requirements of section 110(a)(2)(A), 

(B), (C) to the extent it refers to 

enforcement, to permitting programs for 

minor sources and to PSD permitting 

programs required by part C of title I of 

the CAA, 110(a)(2)(D)(i)(II), 

110(a)(2)(D)(ii), 110(a)(2)(E) through (H) 

and 110(a)(2)(J) through (M).3 We 

explained that ‘‘sections 110(a)(2)(C), 

(D)(i)(II), (D)(ii) and (J) (in all four 

subsections for the PSD-related and 

notification-related requirements only) 

are already addressed for Hawaii 

through an existing PSD FIP that 

remains in place. Therefore, this action 

will not trigger any additional FIP 

obligations with respect to the PSDrelated and notification-related 

requirements in these four 

subsections.’’ 4

We also explained that we were not 

issuing findings of failure to submit a 

SIP addressing section 110(a)(2)(D)(i)(I) 

of the CAA, due to the D.C. Circuit’s 

recent opinion in EME Homer City 

Generation v. EPA, 696 F.3d 7, 31 (D.C. 

Cir. 2012). 

II. EPA’s Approach to the Review of 

Infrastructure SIP Submissions 

EPA is acting upon the SIP 

submission from Hawaii that addresses 

the infrastructure requirements of CAA 

sections 110(a)(1) and 110(a)(2) for the 

2008 8-Hour Ozone and the 2010 

Nitrogen Dioxide NAAQS. The 

requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘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 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. 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 program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.6 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.8

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rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337, January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

9On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

10For 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. 

11EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

12 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

13EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

Similarly, EPA interprets the CAA to 

allow EPA to take action on the 

individual parts of one larger, 

comprehensive infrastructure SIP 

submission for a given NAAQS without 

concurrent action on the entire 

submission. For example, EPA has 

sometimes elected to act at different 

times on various elements and subelements of the same infrastructure SIP 

submission.9

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, 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. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, for example 

because the content and scope of a 

state’s infrastructure SIP submission to 

meet this element might be very 

different for an entirely new NAAQS 

than for a minor revision to an existing 

NAAQS.10

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of 

sections 110(a)(1) and 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

sections 110(a)(1) and 110(a)(2) in the 

context of acting on a particular SIP 

submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.11 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).12 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

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14By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

15For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 76 FR 21639 

(April 18, 2011). 

16EPA has used 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 Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

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

remove numerous other SIP provisions that the 

Agency 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). 

17See, e.g., EPA’s disapproval of 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 at 42344 

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

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

(final disapproval of such provisions). 

110(a)(2)(D)(i)(II), and 110(a)(2)(J) 

focuses upon the structural PSD 

program requirements contained in part 

C and EPA’s PSD regulations. Structural 

PSD program requirements include 

provisions necessary for the PSD 

program to address all regulated sources 

and NSR pollutants, including GHGs. 

By contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

new source review program and 

whether the program addresses the 

pollutants relevant to that NAAQS. In 

the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (1) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (2) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (3) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.14 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations 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. These provisions, 

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 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

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 state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.15 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

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

the basis for action to correct those 

deficiencies 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 an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.17

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Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules 28663 

18A copy of the complete Hawaii ozone and 

nitrogen dioxide Infrastructure SIP submittal has 

been placed in the docket for this action and is 

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

docket number EPA–R09–OAR–2014–0317. 19CAA section 110(k)(1)(C). 

III. State Submittal and EPA Action 

On April 4, 2014, the Hawaii 

Department of Health (HDOH) 

submitted the ‘‘Hawaii State 

Implementation Plan Revision for 2008 

Ozone and 2010 Nitrogen Dioxide 

National Ambient Air Quality Standard 

Clean Air Act section 110(a)(1) & (2)’’ 

(Hawaii Ozone and Nitrogen Dioxide 

Infrastructure SIP), which includes (1) a 

‘‘Proposed Certification of Adequacy 

Table’’ (Attachment 1), (2) a ‘‘Proposed 

List of Revisions to Regulatory and 

Statutory Provisions in the Hawaii State 

Implementation Plan’’ (Attachment 2); 

(3) Summary of Public Participation 

Proceedings (Attachment 3); (4) Hawaii 

Revised Statutes Title 19, Health 

Chapter 342B, Air Pollution Control 

Sections 4 and 5 (Appendix A); (5) 

Hawaii Administrative Rules, Chapter 

11–60.1, Section 31(Appendix B); and 

(6) other supporting materials.18

On April 21, 2014, EPA determined 

that the SIP revision was complete, 

except for the following sub-elements: 

110(a)(2)(C) sub-element 3 

(preconstruction PSD permitting of 

major sources); 110(a)(2)(D); and 

110(a)(2)(J) sub-elements 1 (consultation 

with identified officials on certain air 

agency actions) and 3 (PSD). 

IV. EPA’s Evaluation and Proposed 

Action 

EPA has evaluated the Hawaii Ozone 

and Nitrogen Dioxide Infrastructure SIP 

in relation to the infrastructure SIP 

requirements of CAA section 110(a)(2) 

and the applicable implementing 

regulations in 40 CFR part 51. The 

Technical Support Document (TSD) for 

this action, which is available in the 

docket to this action, includes our 

evaluation for each element, as well as 

our evaluation of various statutory and 

regulatory provisions. In particular, we 

evaluated Hawaii Administrative Rules 

(HAR) section 11–60.1–31 Hawaii 

Revised Statutes (HRS) sections 342B–4 

342B–5 for approval into the Hawaii SIP 

and HRS sections 342–14, 342–18 and 

342–19 for removal from the SIP. 

Based upon this analysis, EPA 

proposes to approve HAR section 11– 

60.1–31 and HRS sections 342B–4 and 

342B–5 into the Hawaii SIP and to 

remove HRS sections 342–14, 342–18 

and 342–19 from the SIP. We also 

propose to approve the Hawaii Ozone 

and Nitrogen Dioxide Infrastructure SIP 

with respect to the following CAA 

requirements: 

• Section 110(a)(2)(A): Emission 

limits and other control measures. 

• Section 110(a)(2)(B): Ambient air 

quality monitoring/data system. 

• Section 110(a)(2)(C) (in part): 

Program for enforcement of control 

measures and regulation of new 

stationary sources (minor NSR 

program). 

• Section 110(a)(2)(E): Adequate 

resources and authority, conflict of 

interest, and oversight of local 

governments and regional agencies. 

• Section 110(a)(2)(F): Stationary 

source monitoring and reporting. 

• Section 110(a)(2)(G): Emergency 

episodes. 

• Section 110(a)(2)(H): SIP revisions. 

• Section 110(a)(2)(J) (in part): Public 

notification (sub-element 2). 

• Section 110(a)(2)(K): Air quality 

modeling and submission of modeling 

data. 

• Section 110(a)(2)(L): Permitting 

fees. 

• Section 110(a)(2)(M): Consultation/

participation by affected local entities. 

As explained above, we previously 

found the Hawaii Ozone and Nitrogen 

Dioxide Infrastructure SIP incomplete 

with respect to various sub-elements. 

Where EPA determines that a portion of 

a SIP submission is incomplete, ‘‘the 

State shall be treated as not having 

made the submission (or, in the 

Administrator’s discretion, part 

thereof.)’’19 Accordingly, we are not 

proposing to act on the Hawaii Ozone 

and Nitrogen Dioxide Infrastructure SIP 

with respect to 110(a)(2)(C) sub-element 

3 (preconstruction PSD permitting of 

major sources); 110(a)(2)(D) all subelements; and 110(a)(2)(J) sub-elements 

1 (consultation with identified officials 

on certain air agency actions) and 3 

(PSD). 

V. 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 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 proposed 

action merely approves some state law 

as meeting federal requirements; this 

proposed action does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Oxides of nitrogen, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: April 25, 2014. 

Jared Blumenfeld, 

Regional Administrator, EPA Region 9. 

[FR Doc. 2014–11432 Filed 5–16–14; 8:45 am] 

BILLING CODE 6560–50–P 

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