Appendix A

EPA’s Approach to the Review of Infrastructure SIP Submissions

EPA is acting upon this SIP submission that addr ess the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for NAAQS

. The requirement for states to make a SIP submissions of these types arises out of CAA s ection 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 year s (or such shorter period as the Administrator may prescribe) after the promulgation of a nationa l 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 im poses on states the duty to make these SIP submissions, and the requireme nt to make the submissions is not conditioned upon EPA’s taking any action othe r than promulgating a new or revised NAAQS. Section 110(a)(2) includes a lis t of specific elements that “[e]ach su ch plan” submission must address.

EPA has historically referred to these SIP subm issions 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 nonatt ainment 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 pe rtain 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. 1 EPA therefore believes that while the timing requirement in section 110(a)(1) is unam biguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in sec tion 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 re spect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambi guity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requir ements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would cr eate a conflict with the

1 For example: Section 110(a)(2)(E)(i) provi des that states must provide assuran ces 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 SIPapproved 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.nonattainment provisions in part D of title I of th e Act, which specifically address nonattainment SIP requirements. 2 Section 110(a)(2)(I) pertai ns 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 Administrato r 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. 3 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) ar e applicable for a particular infrastructure SIP submission.

Another example of ambiguity within secti ons 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) dir ects 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. Similarly, EPA interprets the

CAA to allow it to take action on the individual parts of one larger , comprehensive infrastructure SIP submission for a given NAAQ S without concurrent action on the entire submission. For example, EPA has sometimes elected to act atdifferent times on various elements and subelements of the same infrastructure SIP submission. 4

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 infrastruc ture 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 s ection 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state’s infrastructure SIP

2 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, at 25163 – 65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

3 EPA notes that this ambiguity within section 110(a)(2) is he ightened 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 da tes are necessarily later than three y ears after promulgation of the new or revised NAAQS.

4 On December 14, 2007, the State of Tennessee, thr ough the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirem ents 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.submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 5

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the C AA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpre t 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 re quired by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for ex ample, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) re garding 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 el ements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appr opriate to interpret the ambiguous portions of section 110(a)(1) and section 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 NA AQS in question or the history of SIP development for the relevant pollutant, would meet each of the requireme nts, or meet each of them in the same way. Therefore, EPA has adopted an approach under wh ich it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to th e extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance docu ments to make recommendations to states for infrastructure SIPs, in some cases conveying need ed interpretations on newly arising issues and in some cases conveying interpretations that have already been deve loped and applied to

individual SIP submissions for particular elements. 6 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 7 EPA developed this document to provide states with up-to-date guidance for infr astructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of st ates to make infrastructure SIP submissions to meet basic structural SIP requirements within th ree years of promulgation of a new or revised NAAQS. EPA also made recommen dations about many specific subs ections of section 110(a)(2)

5 For example, implementation of the 1997 PM 2.5 NAAQS required the deployment of a system of new monitors to
measure ambient levels of that new indicator species for the new NAAQS.

6 EPA 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 orde r to assist states, as appropriate.

7 “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.that are relevant in the context of infrastructure SIP submissions. 8 The guidance also discusses the substantively important issues that are german e to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such thatinfrastructure SIP

submissions need to address certain issues and need not address others. Accordingly, EPA

reviews each infrastructure SIP submission fo r 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 elem ent of section 110(a)(2) for

infrastructure SIP submissions. Under this el ement, a state must meet the substantive requirements of section 128, which pertain to stat e boards that approve permits or enforcement orders and heads of executive agencies with si milar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state’s SIP ap propriately 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 ap propriately address thes e 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 ne cessarily included in EPA’s ev aluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) ex plicitly 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), (D)(i) (II), and (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 ar e not required under EPA’s regul ations at 40 CFR 51.166 but are merely available as an option for the state, su ch as the option to provi de grandfathering of complete permit applications with respect to the 2012 PM 2.5 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, EP A’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 progra m addresses the pollutants relevant to that NAAQS. In the context of acting on an infras tructure SIP submission, however, EPA does not

8 EPA’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 cr eated by ongoing litigation, EPA elected not to provide additional guidance on the requirements of se ction 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.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 co mpliance with the requirements of the CAA and EPA’s regulations that pertain to such programs.

With respect to certain other issues, EPA doe s not believe that an action on a state’s infrastructure SIP submission is necessarily the appropriate type of actio n in which to address possible deficiencies in a state’s existing SIP. These issues include : (i) 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”); (ii) existing provisions related to “dir ector’s variance” or “director’s di scretion” that may be contrary to the CAA because they purport to allow revi sions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 3 1, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it ma y approve an infrastructure SIP submission without scrutinizing the to tality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 9 It is important to note that EPA’s approval of a st ate’s infrastructure SIP submi ssion should not be construed as explicit or implicit re-approval of a ny 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 th is approach to the review of a particular infrastructure SIP submission is appr opriate, 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 st ate’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 statut ory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historic al 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 be lieves 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 sp ecific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA’s 2013 Guidance gives simple r recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), be cause carbon monoxide does not affect visibility. As a result, an

9 By 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.infrastructure SIP submission for any future new or revised NAAQS fo r carbon monoxide need only state this fact in order to address the visibility prong of secti on 110(a)(2)(D)(i)(II).

Finally, EPA believes that its appr oach with respect to infrastruc ture SIP requirements is based on a reasonable reading of s ections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific subs tantive deficiencies in existing SIPs. These other statutory tools al low EPA to take appropriately tail ored 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 tran sport, or to otherwise comply with the CAA. 10
Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP

submissions. 11 Significantly, EPA’s determination that an action on a state’s infrastructure SIP submission is not the appropriate time and place to address all poten tial existing SIP deficiencies does not preclude EPA’s subseque nt reliance on provisions in sect ion 110(a)(2) as part of the

basis for action to correct those deficiencies at a later time. Fo r example, although it may not be appropriate to require a state to eliminate a ll existing inappropriate director’s discretion provisions in the course of acti ng on an infrastructure SIP subm ission, 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. 12

10 For example, EPA issued a SIP call to Utah to address sp ecific 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,” 74 FR 21639 (April 18, 2011).

11 EPA 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).

12 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsiste nt with CAA requirements, including s ection 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).