40248 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Rules and Regulations 

Dayton areas which include Hamilton, 

Butler, Warren, Clermont, Clark, Greene, 

Miami, and Montgomery Counties. 

* * * * * 

[FR Doc. 2011–17049 Filed 7–7–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2008–0639; EPA–R01– 

OAR–2008–0641; EPA–R01–OAR–2008– 

00642; EPA–R01–OAR–2008–0643; A–1– 

FRL–9431–2] 

Approval and Promulgation of 

Implementation Plans; Connecticut, 

Maine, New Hampshire and Rhode 

Island; Infrastructure SIPs for the 1997 

8-Hour Ozone National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving submittals 

from the States of Connecticut, Maine, 

New Hampshire and Rhode Island. 

These submittals outline how each 

state’s State Implementation Plan (SIP) 

meets the requirements of the Clean Air 

Act (CAA) for the 1997 8-hour ozone 

national ambient air quality standards 

(NAAQS). Section 110(a) of the CAA 

requires that each state adopt and 

submit a SIP for the implementation, 

maintenance and enforcement of each 

NAAQS promulgated by the EPA. This 

SIP is commonly referred to as an 

infrastructure SIP. Specifically, EPA is 

taking final action to fully approve the 

submittals from Connecticut, Maine, 

New Hampshire and Rhode Island, with 

one exception. EPA is taking direct final 

action to conditionally approve one 

element of Connecticut’s submittal. 

These actions are being taken under the 

Clean Air Act. 

DATES: Effective Dates: This rule will be 

effective August 8, 2011, with one 

exception. The conditional approval of 

one element of Connecticut’s SIP is a 

direct final rule which will be effective 

September 6, 2011, unless EPA receives 

adverse comments on that action by 

August 8, 2011. 

If adverse comments are received, 

EPA will publish a timely withdrawal of 

the direct final rule in the Federal 

Register informing the public that the 

rule will not take effect. 

ADDRESSES: Submit your comments, if 

any, on EPA’s direct final conditional 

approval for Connecticut, identified by 

Docket ID Number EPA–R01–OAR–200– 

0639 by one of the following methods: 

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

the on-line instructions for submitting 

comments. 

2. E-mail: arnold.anne@epa.gov Fax: 

(617) 918–0047. Mail: ‘‘Docket 

Identification Number EPA–R01–OAR– 

2008–0639’’, Anne Arnold, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Quality 

Planning Unit, 5 Post Office Square— 

Suite 100, (Mail code OEP05–2), Boston, 

MA 02109–3912 

3. Hand Delivery or Courier. Deliver 

your comments to: Anne Arnold, 

Manager, Air Quality Planning Unit, 

Office of Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Quality 

Planning Unit, 5 Post Office Square— 

Suite 100, (Mail code OEP05–2), Boston, 

MA 02109–3912. Such deliveries are 

only accepted during the Regional 

Office’s normal hours of operation. The 

Regional Office’s official hours of 

business are Monday through Friday, 

8:30 to 4:30, excluding legal holidays. 

Instructions: Direct your comments 

for Connecticut to Docket ID No. EPA– 

R01–OAR–2008–0639. EPA’s policy is 

that all comments received 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 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

through http://www.regulations.gov, or 

e-mail, information that you consider to 

be CBI or otherwise protected. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. 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: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., 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 in http:// 

www.regulations.gov or in hard copy at 

Office of Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, 5 Post 

Office Square, Suite 100, Boston, MA. 

EPA requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Richard P. Burkhart, Air Quality 

Planning Unit, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, 5 Post Office Square, 

Suite 100, Boston, MA 02109–3912, 

telephone number (617) 918–1664, fax 

number (617) 918–0664, e-mail 

Burkhart.Richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Scope of Action on Infrastructure 

Submissions 

III. EPA’s Response to Comments 

IV. Final Actions 

V. Statutory and Executive Order Reviews 

I. Background 

Section 110(a) of the Clean Air Act 

imposes the obligation upon states to 

make a SIP submission to EPA for a new 

or revised NAAQS, but the contents of 

that submission may vary depending 

upon the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. In the 

case of the 1997 8-hour ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous ozone standards. 

On October 2, 2007, EPA issued a 

guidance document entitled, ‘‘Guidance 

on SIP Elements Required Under 

Sections 110(a)(1) and (2) for the 1997 


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1Two 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 due at the time the 

nonattainment area plan requirements are due 

pursuant to section 172. These requirements are: (1) 

Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as 

required in part D Title I of the CAA; and (2) 

submissions required by section 110(a)(2)(I) which 

pertain to the nonattainment planning requirements 

of part D, Title I of the CAA. Today’s final 

rulemaking does not address infrastructure 

elements related to section 110(a)(2)(I) but does 

provide detail, as explained in the notice of 

proposed rulemaking, on how the respective states’ 

SIP addresses the requirements of section 

110(a)(2)(C) not related to the part D permit 

program for nonattainment areas. 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas, 

if any. 

3See, 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. 

8-hour Ozone and fine particle (PM2.5) 

National Ambient Air Quality 

Standards.’’ This guidance noted that to 

the extent an existing SIP already meets 

the section 110(a)(2) requirements, 

states need only certify that fact via a 

letter to EPA. 

The States of Connecticut, Maine, 

New Hampshire, and Rhode Island each 

submitted such certification letters to 

EPA on December 28, 2007, January 3, 

2008, December 14, 2007 and December 

14, 2007, respectively. All four 

submittals were deemed complete, 

effective April 28, 2008. (See 73 FR 

16205; March 27, 2008.) 

On March 23, 2011, EPA proposed to 

approve the Connecticut, Maine, New 

Hampshire and Rhode Island 

infrastructure submissions for the 1997 

8-hour ozone NAAQS. See 76 FR 16358. 

A summary of the background for 

today’s final actions is provided below. 

See EPA’s March 23, 2011, proposed 

rulemaking at 76 FR 16358 for more 

detail. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned above, these requirements 

include SIP infrastructure elements 

such as modeling, monitoring, and 

emissions inventories that are designed 

to assure attainment and maintenance of 

the NAAQS. The requirements that are 

the subject of this proposed rulemaking 

are listed below: 1

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures.2

• 110(a)(2)(D)(ii): Interstate transport. 

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

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

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/ 

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

II. Scope of Action on Infrastructure 

Submissions 

EPA is taking final action to approve 

the Connecticut, Maine, New 

Hampshire and Rhode Island SIPs as 

demonstrating that the respective States 

meet the requirements of sections 

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

1997 8-hour ozone NAAQS. Section 

110(a) of the CAA requires that each 

state adopt and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by the EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. Connecticut, 

Maine, New Hampshire and Rhode 

Island certified that the Connecticut, 

Maine, New Hampshire and Rhode 

Island SIPs contain provisions that 

ensure the 1997 8-hour ozone NAAQS 

is implemented, enforced, and 

maintained in Connecticut, Maine, New 

Hampshire and Rhode Island, 

respectively. The Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure submissions address all 

the required infrastructure elements for 

the 1997 8-hour ozone NAAQS. EPA has 

determined that the Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure submissions are 

consistent with section 110 of the CAA, 

with the exception of the Connecticut 

submission with respect to section 

110(a)(2)(D)(ii). Therefore, EPA is taking 

final action to fully approve the 

submittals from Connecticut, Maine, 

New Hampshire and Rhode Island, with 

one exception. EPA is taking direct final 

action to conditionally approve 

Connecticut’s submittal with respect to 

section 110(2)(D)(ii), as discussed 

further in Section III below. 

Additionally, EPA is responding to 

comments received on EPA’s March 23, 

2011 proposed approval of the 

Connecticut, Maine, New Hampshire 

and Rhode Island infrastructure 

submissions. 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

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

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.3 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

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

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

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

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source NSR’’); and (ii) 

existing provisions for Prevention of 

Significant Deterioration programs that 

may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80,186 

(December 31, 2002), as amended by 72 

FR 32,526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

now believes that its statements in 

various proposed actions on 

infrastructure SIPs with respect to these 

four individual issues should be 

explained in greater depth with respect 

to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 


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4For 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. 

5For 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 25,162 (May 12, 

2005)(defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

6See, e.g., Id., 70 FR 25,162, at 63–65 (May 12, 

2005)(explaining relationship between timing 

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

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

7EPA 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. 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing State provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issue in the context of the infrastructure 

SIPs. This was not EPA’s intention. To 

the contrary, EPA only meant to convey 

its awareness of the potential for certain 

types of deficiencies in existing SIPs, 

and to prevent any misunderstanding 

that it was reapproving any such 

existing provisions. EPA’s intention was 

to convey its position that the statute 

does not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements, however, we want to 

explain more fully the Agency’s reasons 

for concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof)’’ and 

that these SIPs are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

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

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

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.4 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.5

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).6 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

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

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

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

to address each of the four prongs of 

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

administrative actions proceeding on 

different tracks with different 

schedules.7 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 


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8For 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. 

9See, ‘‘Guidance on SIP Elements Required 

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

Ozone and PM2.5 National Ambient Air Quality 

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

Quality Policy Division, to Air Division Directors, 

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

Guidance’’). EPA issued comparable guidance for 

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

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

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

Ambient Air Quality Standards (NAAQS),’’ from 

William T, Harnett, Director Air Quality Policy 

Division, to Regional Air Division Directors, 

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

Guidance’’). 

10 Id., at page 2. 11 Id., at attachment A, page 1. 12 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. 

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.8

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

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

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

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

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

it is clear that nonattainment SIPs 

would not need to meet the portion of 

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

C, i.e., the PSD requirement applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

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

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

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

others. 

Given the potential for ambiguity of 

the statutory language of section 

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

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

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

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

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

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS. 9 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 10 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.’’ 11 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 12 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. 

Significantly, the 2007 Guidance did 

not explicitly refer to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

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

and the minor source NSR and NSR 

Reform issues implicate section 

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

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s proposals 

mentioned these issues not because the 

Agency considers them issues that must 

be addressed in the context of an 

infrastructure SIP as required by section 

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

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

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

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

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

for the 1997 PM2.5 NAAQS because of 


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13EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21,639 

(April 18, 2011). 

14EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

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

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

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

numerous other SIP provisions that the Agency 

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

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

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

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

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

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

to Arizona and Nevada SIPs). 

15EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

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

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

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

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

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

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

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.13 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.14

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

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

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

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

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.15

III. EPA’s Response to Comments 

EPA received one set of comments 

(from the Law Office of Robert Ukeiley, 

hereinafter referred to as ‘‘the 

Commenter’’) on the March 23, 2011, 

proposed rulemaking to approve 

revisions to the Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure submissions as meeting 

the requirements of sections 110(a)(1) 

and (2) of the CAA for the 1997 8-hour 

ozone NAAQS. Generally, the 

Commenter’s concerns relate to whether 

EPA’s approval of the Connecticut, 

Maine, New Hampshire and Rhode 

Island infrastructure submissions are in 

compliance with section 110(l) of the 

CAA, and whether EPA’s approval will 

interfere with the states’ compliance 

with the CAA’s prevention of significant 

deterioration (PSD) requirements. In 

addition, the commenter has concerns 

with how the Connecticut SIP addresses 

the element required by section 

110(a)(2)(D)(ii). The comments are 

provided in the docket for today’s final 

action. A summary of the comments and 

EPA’s responses are provided below. 

Comment 1: Under the header ‘‘No 

Clean Air Act Section 110(l) analysis,’’ 

the Commenter states ‘‘Before providing 

the technical analysis for why finalizing 

this proposed rule would be contrary to 

the Clean Air Act, I wish to point out 

that it is 2011 and EPA has yet to ensure 

that these areas have plans to meet the 

1997 National Ambient Air Quality 

Standard (NAAQS) for ozone.’’ The 

Commenter goes on to state that ‘‘EPA 

acknowledged that the science indicates 

that the 1997 NAAQS, which is 

effectively 85 parts per billion (ppb), 

does not protect people’s health or 

welfare when in 2008, EPA set a new 

ozone NAAQS at 75 ppb.’’ 

Response 1: As noted in EPA’s 

proposed rulemaking on the 

Connecticut, Maine, New Hampshire 

and Rhode Island infrastructure 

submissions and in today’s final 

rulemaking, the very action that EPA is 

undertaking is a determination that 

Connecticut, Maine, New Hampshire 

and Rhode Island have plans to ensure 

compliance with the 1997 8-hour ozone 

NAAQS. The level of the 1997 ozone 

NAAQS is 0.08 parts per million (ppm) 

on an 8-hour average basis. The 

Connecticut, Maine, New Hampshire 

and Rhode Island submissions predate 

the release of the recent revision to the 

8-hour ozone NAAQS on March 12, 

2008, and are distinct from any plans 

that the States of Connecticut, Maine, 

New Hampshire and Rhode Island may 

provide to ensure compliance of the 

2008 NAAQS. Our actions today are 

meant to address the 1997 ozone 

infrastructure requirements under 

Section 110 of the Act. EPA does not 

have before us the Section 110 

infrastructure requirements for the 2008 

ozone NAAQS. Nevertheless, EPA has 

considered the 2008 8-hour ozone 

NAAQS to the extent that section 110(l) 

applies to this action and will expound 

on this consideration in Response 2 

below. Further, EPA agrees that the 

Agency has made the determination that 

the 1997 8-hour ozone NAAQS is not as 

protective as needed for public health 

and welfare, and as the Commenter 

mentioned, the Agency established a 

new ozone NAAQS at a level of 0.075 

ppm on an 8-hour average basis. 

However, EPA notes that the Agency is 

currently reconsidering the 2008 8-hour 

ozone NAAQS, and has not yet 

designated areas for any subsequent 

NAAQS. 

Finally, while it is not clear which 

areas the Commenter refers to in stating 

‘‘EPA has yet to ensure these areas have 

plans to meet’’ the 1997 ozone NAAQS, 

the comment may refer to the 

requirements under section 172, Part D, 

Title I of the Act for states with 

nonattainment areas for the 1997 ozone 

NAAQS to submit nonattainment plans. 

As discussed in our notice proposing 

approval of the Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure SIP, submissions required 

by section 110(a)(2)(I) which pertain to 

the nonattainment planning 

requirements of part D, Title I of the 

CAA are outside the scope of this 

action, as such plans 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. 

In addition, all of Rhode Island (see 

75 FR 64949, Oct. 21, 2010), New 

Hampshire (see 76 FR 14865, March 18, 

2011), and Maine (see 71 FR 71489, Dec. 

11, 2006) meet the 1997 ozone NAAQS. 

The Greater Connecticut 8-hour ozone 

nonattainment area also meets the 1997 

ozone NAAQS (see 75 FR 53219, August 

31, 2011). The remainder of the State of 

Connecticut also meets the 1997 ozone 

NAAQS based on 2007–2009 ozone 

data, but EPA has not yet made the 

formal determination in the Federal 

Register. In summary, all four states 

have ozone air quality that meets the 

1997 ozone NAAQS. 

Comment 2: Also under the header 

‘‘No Clean Air Act Section 110(l) 

analysis,’’ the Commenter cites the 

section 110(l) CAA requirement, and 

states ‘‘Clean Air Act § 110(l) requires 

‘EPA to evaluate whether the plan as 

revised will achieve the pollution 

reductions required under the Act, and 


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the absence of exacerbation of the 

existing situation does not assure this 

result.’ Hall v. EPA, 273 F.3d 1146, 1152 

(9th Cir. 2001).’’ The Commenter goes 

on to state that ‘‘* * * the Federal 

Register notices are devoid of any 

analysis of how these rule makings will 

or will not interfere with attaining, 

making reasonable further progress on 

attaining and maintaining the 75 ppb 

ozone NAAQS as well as the 1-hour 100 

ppb nitrogen oxides NAAQS.’’ 

Response 2: EPA agrees with the 

Commenter’s assertion that 

consideration of section 110(l) of the 

CAA is necessary for EPA’s action with 

regard to approving the states’ 

submissions. However, EPA disagrees 

with the Commenter’s assertion that 

EPA did not consider 110(l) in terms of 

the March 23, 2011, proposed action. 

Further, EPA disagrees with the 

Commenter’s assertion that EPA’s 

proposed March 23, 2011 action does 

not comply with the requirements of 

section 110(l). Section 110(l) provides in 

part that: ‘‘[t]he Administrator shall not 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * *, or any other applicable 

requirement of this chapter.’’ EPA has 

consistently interpreted section 110(l) as 

not requiring a new attainment 

demonstration for every SIP submission. 

EPA has further concluded that 

preservation of the status quo air quality 

during the time new attainment 

demonstrations are being prepared will 

not interfere with a state meeting its 

obligations to develop timely attainment 

demonstrations. The following actions 

are examples of where EPA has 

addressed 110(l) in previous 

rulemakings: See 70 FR 53, 57 (January 

3, 2005); 70 FR 17029, 17033 (April 4, 

2005); 70 FR 28429, 28431 (May 18, 

2005); and 70 FR 58119, 58134 (October 

5, 2005). The Connecticut, Maine, New 

Hampshire and Rhode Island 

infrastructure submissions do not revise 

or remove any existing emissions limit 

for any NAAQS or any other existing 

substantive SIP provisions relevant to 

the 1997 8-hour ozone NAAQS or the 

2010 nitrogen dioxide (NO2) NAAQS. 

Simply put, the submissions do not 

make any substantive revision that 

could result in any change in emissions. 

As a result, the submissions do not relax 

any existing requirements or alter the 

status quo air quality. Therefore, 

approval of the Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure submissions will not 

interfere with attainment or 

maintenance of any NAAQS. 

Comment 3: Under the header ‘‘No 

Clean Air Act Section 110(l) analysis,’’ 

the Commenter states that ‘‘We are not 

required to guess what EPA’s Clean Air 

Act 110(l) analysis would be. Rather, 

EPA must approve in part and 

disapprove in part these action and repropose to approve the disapproved part 

with a Clean Air Act § 110(l) analysis.’’ 

Further, the Commenter states that 

‘‘EPA cannot include its analysis in its 

response to comments and approve the 

actions without providing the public 

with an opportunity to comment on 

EPA’s Clean Air Act § 110(l) analysis.’’ 

Response 3: Please see Response 2 for 

a fuller explanation regarding EPA’s 

response to the Commenter’s assertion 

that EPA’s action is not in compliance 

with section 110(l) of the CAA. EPA 

does not agree with the Commenter’s 

assertion that EPA’s analysis did not 

somehow consider section 110(l) and so, 

therefore, ‘‘EPA must approve in part 

and disapprove in part these action [sic] 

and re-propose to approve the 

disapproved part with a Clean Air Act 

§ 110(l) analysis.’’ Every action that EPA 

takes to approve a SIP revision is subject 

to 110(l) and thus EPA’s consideration 

of whether a state’s submission ‘‘* * * 

would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress * * *, or 

any other applicable requirement of this 

chapter’’ is inherent in EPA’s action to 

approve or disapprove a submission 

from a state. In the ‘‘Proposed Action’’ 

section of the March 23, 2010, 

rulemaking, EPA notes that EPA is 

proposing to approve the Connecticut, 

Maine, New Hampshire and Rhode 

Island infrastructure submissions for the 

1997 8-hour ozone NAAQS because 

these submissions are consistent with 

section 110 of the CAA. Section 110(l) 

is a component of section 110, so EPA 

believes that this provides sufficient 

notice that EPA considered section 

110(l) for the proposed action and 

concluded that section 110(l) was not 

violated. Further, EPA does not agree 

with the Commenter’s assertion that the 

Agency cannot provide additional 

clarification in response to a comment 

and take a final approval action without 

‘‘* * * providing the public with an 

opportunity to comment on EPA’s Clean 

Air Act § 110(l) analysis.’’ The 

Commenter does not cite any provision 

of the Act or other authority for the 

Commenter’s assertion. In fact, the 

proposition that providing an analysis 

for the first time in response to a 

comment on a rulemaking somehow 

violates the public’s opportunity to 

comment has been rejected by the DC 

Circuit Court of Appeals. See Int’l 

Harvester Co. v. Ruckelshaus, 478 F.2d 

615, 632 n.51 (D.C. Cir. 1973). 

Furthermore, as mentioned above, 

EPA’s approval of the Connecticut, 

Maine, New Hampshire and Rhode 

Island infrastructure submissions does 

not make any substantive revision that 

could result in any change in emissions, 

so there is no further ‘‘analysis’’ beyond 

whether the state has adequate 

provisions in their SIPs to address the 

infrastructure requirements for the 1997 

8-hour ozone NAAQS. EPA’s March 23, 

2011, proposed rulemaking goes 

through each of the relevant 

infrastructure requirements and 

provides detailed information on how 

the Connecticut, Maine, New 

Hampshire and Rhode Island SIPs 

address the relevant infrastructure 

requirements. Beyond making a general 

statement indicating that the 

Connecticut, Maine, New Hampshire 

and Rhode Island submissions are 

somehow not in compliance with 

section 110(l) of the CAA, the 

Commenter does not provide comments 

on EPA’s detailed analysis of each 

infrastructure requirement to indicate 

that the Connecticut, Maine, New 

Hampshire and Rhode Island 

infrastructure submissions for the 1997 

8-hour ozone NAAQS are deficient in 

meeting these individual requirements. 

Therefore, EPA has no basis to question 

the Agency’s determination that the 

Connecticut, Maine, New Hampshire 

and Rhode Island infrastructure 

submissions meet the requirements for 

the infrastructure submission for the 

1997 8-hour ozone NAAQS, including 

section 110(l) of the CAA. 

Comment 4: Under the header ‘‘No 

Clean Air Act Section 110(l) analysis,’’ 

the Commenter further asserts that 

‘‘EPA’s analysis must conclude that this 

proposed action would violation [sic] 

§ 110(l) if finalized.’’ An example given 

by the Commenter is as follows; ‘‘For 

example, a 42 U.S.C. § 7502(a)(2)(J) 

public notification program based on a 

85 [parts per billion (ppb)] ozone level 

interferes with a public notification 

program that should exist for a 75 ppb 

ozone level. At its worst, the public 

notification system would be notifying 

people that the air is safe when in 

reality, based on the latest science, the 

air is not safe. Thus, EPA would be 

condoning the states providing 

information that can physical[ly] hurt 

people.’’ 

Response 4: EPA disagrees with the 

Commenter’s statement that ‘‘EPA’s 

analysis must conclude that this 

proposed action would violation [sic] 

§ 110(l) if finalized.’’ As mentioned 

above, the Connecticut, Maine, New 

Hampshire and Rhode Island 


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16For portions of northern and downeast Maine 

EPA has granted a waiver for the ozone precursor 

oxides of nitrogen. (see 71 FR 5791, 2/3/06). This 

waiver was based on a finding that additional 

reductions in oxides of nitrogen in these areas 

would not produce net ozone air quality benefits in 

the ozone transport region. See 42 U.S.C. 

7511a(f)(1)(B). 

infrastructure submissions do not revise 

or remove any existing emissions limit 

for any NAAQS, nor do they make any 

substantive revision that could result in 

any change in emissions. EPA has 

concluded that the Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure submissions do not relax 

any existing requirements or alter the 

status quo air quality. Therefore, 

approval of the Connecticut, Maine, 

New Hampshire and Rhode Island 

infrastructure submissions will not 

interfere with attainment or 

maintenance of any NAAQS. See 

Response 2 and Response 3 above for a 

fuller discussion. Further, EPA 

disagrees with the Commenter’s 

assertion that the section 110(a)(2)(J) 

requirement for public notification for 

the 1997 8-hour ozone NAAQS based on 

85 ppb interferes with a public 

notification program that should exist 

for a 75 ppb ozone level, and * * * 

‘‘EPA would be condoning the states 

providing information that can 

physical[ly] hurt people.’’ First, the 

1997 8-hour ozone NAAQS is 0.08 ppm, 

which is effectively 0.084 ppm or 84 

ppb due to the rounding convention, 

and not ‘‘85 ppb’’ as the Commenter 

mentioned. Second, EPA establishes the 

health-based NAAQS and provides 

extensive resources, technical analyses 

and support to the states to ensure 

compliance with the NAAQS to protect 

human health and the environment. As 

noted in Response 1, the Connecticut, 

Maine, New Hampshire and Rhode 

Island infrastructure submissions were 

provided to address the 1997 8-hour 

ozone NAAQS and were submitted prior 

to EPA’s promulgation of the 2008 8- 

hour ozone in March 2008. Thus, the 

States of Connecticut, Maine, New 

Hampshire and Rhode Island provided 

sufficient information at that time to 

meet the requirement for the 1997 8- 

hour ozone NAAQS which is the subject 

of this action. 

As mentioned, in 2008, EPA issued 

revised 8-hour ozone NAAQS, which 

are currently under reconsideration. 

Infrastructure requirements for the 2008 

(or a subsequent) NAAQS are distinct 

from these requirements for the 1997 8- 

hour ozone NAAQS. EPA continues to 

implement the 2008 ozone NAAQS for 

the purposes of health based air quality 

notification. When EPA promulgated 

the 2008 NAAQS (73 FR 16436, March 

27, 2008), we revised the Air Quality 

Index (AQI) for ozone to show that at 

the level of the 2008 ozone NAAQS 

(0.075 ppm) the AQI is set to 100, which 

indicates ozone levels that are 

unhealthful for sensitive groups. It is 

this revised AQI that EPA uses to both 

forecast ozone levels and to provide 

notice to the public of current air 

quality. The EPA AIRNOW system uses 

the revised AQI as its basis for ozone. 

(See http://www.airnow.gov.) In 

addition when the States of 

Connecticut, Maine, New Hampshire 

and Rhode Island forecast ozone air 

quality and provide real-time ozone air 

quality information to the public, either 

through the AIRNOW system, or 

through their own (state-based) Internet 

system, the four states use the revised 

ozone AQI keyed to the 2008 revised 

ozone NAAQS. 

Comment 5: Lastly, under the header 

‘‘No Clean Air Act Section 110(l) 

analysis,’’ the Commenter asserts that 

‘‘if a SIP provides an ozone NAAQS of 

85 ppb for PSD purposes, this interferes 

with the requirement that PSD programs 

require sources to demonstrate that they 

will not cause or contribute to a 

violation of a NAAQS because this 

requirement includes the current 75 ppb 

ozone NAAQS.’’ 

Response 5: EPA believes that this 

comment gives no basis for concluding 

that EPA approval of the Connecticut, 

Maine, New Hampshire and Rhode 

Island infrastructure SIPs violate the 

requirements of section 110(l). EPA 

assumes that the comment refers to the 

requirement that owners and operators 

of sources subject to PSD demonstrate 

that the allowable emissions increases 

from the proposed source or 

modification, in conjunction with all 

other applicable emissions increases or 

reductions (including secondary 

emissions), will not cause or contribute 

to a violation of the NAAQS. 40 CFR 

51.166(k)(1). 

EPA further assumes that the 

Commenter’s language ‘‘if a SIP 

provides an ozone NAAQS of 85 ppb for 

PSD purposes’’ refers to a hypothetical 

SIP-approved PSD program that only 

requires owners and operators of 

sources subject to PSD to make the 

demonstration discussed above for the 

1997 ozone NAAQS, and not for the 

2008 ozone NAAQS. However, the 

Commenter gives no indication that 

Connecticut, Maine, New Hampshire 

and Rhode Island’s SIP-approved PSD 

program suffers from this alleged defect. 

Furthermore, as discussed in detail 

above, the infrastructure SIP makes no 

substantive change to any provision of 

the Connecticut, Maine, New 

Hampshire and Rhode Island SIPapproved PSD programs, and therefore 

does not violate the requirements of 

section 110(l). Had these states 

submitted SIP revisions that 

substantively modified their PSD 

program to limit the required 

demonstration to just the 1997 ozone 

NAAQS, then the comment might have 

been relevant to a 110(l) analysis of that 

hypothetical SIP revision. However, in 

this case, the comment gives no basis for 

EPA to conclude that the four states’ 

infrastructure SIPs would interfere with 

any applicable requirement of the Act. 

In addition, all of Connecticut, Rhode 

Island, New Hampshire and Maine are 

in the Ozone Transport Region (OTR) 

(see CAA Section 184). For ozone and 

ozone precursors, all new or modified 

major sources in the OTR are covered by 

nonattainment new source review (NSR) 

regulations and must obtain offsets (at a 

greater than 1 to 1 ratio) for ozone 

precursors.16 In summary, for OTR 

states, the PSD regulations for ozone do 

not apply and nonattainment NSR 

regulations require offsets consistent 

with the CAA’s requirements to address 

the ambient impact of new source 

construction in these areas. 

EPA concludes that approval of the 

Connecticut, Maine, New Hampshire 

and Rhode Island infrastructure 

submissions will not make the status 

quo air quality worse and is in fact 

consistent with the development of an 

overall plan capable of meeting the 

Act’s requirements. Accordingly, when 

applying section 110(l) to this 

submission, EPA finds that approval of 

Connecticut, Maine, New Hampshire 

and Rhode Island’s infrastructure 

submissions is consistent with section 

110 (including section 110(l)) of the 

CAA. 

Comment 6: The Commenter provided 

comments on the lack of a designated 

air quality model to demonstrate that a 

PSD source will not cause or contribute 

to a violation of the ozone NAAQS. 

Specifically, the commenter stated: 

The SIP submittals do not comply with 

Clean Air Act 110(a)(2)(J), (K), and (D)(i)(II) 

because the SIP submittals do not identify a 

specific model to use in PSD permitting to 

demonstrate that a proposed source [or] 

modification will not cause or contribute to 

a violation of the ozone NAAQS. Many states 

abuse this lack of an explicitly named model 

by claiming that because no model is 

explicitly named, no modeling is required or 

use of completely irrelevant modeling (e.g. 

Kentucky using modeling from Georgia for 

the J.K. Smith proposed facility) is allowed. 

To support the position as to the 

necessity of ‘‘[w]hy and which model 

should be designated,’’ the Commenter 


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17The Commenter attached the July 28, 2010, 

‘‘Petition for Rulemaking to Designate Air Quality 

Models to use for PSD Permit Applications with 

Regard to Ozone and PM2.5,’’ from Robert Ukeiley 

on behalf of the Sierra Club. That petition and the 

attached exhibits are available in the docket 

supporting this action. 

18Note that EPA has granted a waiver from the 

requirements of 182(f) for the northern-most 

counties in Maine. EPA granted this waiver based 

on the finding required under 182(f)(1)(B) that 

‘‘additional reductions of oxides of nitrogen would 

not produce net ozone air quality benefits in [the 

OTR].’’ EPA has determined for northern Maine that 

NOx emissions reductions are not necessary to 

attain or maintain the ozone NAAQS in the OTR. 

Therefore, EPA does not believe that the absence of 

a specified model in the PSD program for predicting 

ozone impacts from a NOx source in this particular 

area of the OTR is problematic. 

attached a petition 17 and incorporated 

this petition, and the exhibits to this 

petition, by reference in the submitted 

comments. 

Response 6: The Commenter referred 

to the petition for rulemaking from 

Robert Ukeiley on behalf of the Sierra 

Club to designate air quality models to 

use for PSD permit applications with 

regard to ozone and PM2.5. EPA is 

separately reviewing the July 28, 2010, 

‘‘Petition for Rulemaking to Designate 

Air Quality Models to Use for PSD 

Permit Applications with Regard to 

Ozone and PM2.5,’’ which requests that 

the EPA Administrator designate 

computer models to determine whether 

major sources of air pollution cause or 

contribute to violations of the ozone 

NAAQS and the PM2.5 NAAQS and 

increments. Although the Commenter 

purports to incorporate the July 28, 2010 

petition by reference, that petition arises 

in a different context, requests different 

relief, and raises distinct issues from 

those raised by the comment. EPA 

believes that the appropriate place to 

respond to the issues raised in the 

petition is in a direct response to the 

petition. Accordingly, this Response to 

the Comment is not a response to the 

July 28, 2010 petition, and the issues 

raised in that petition are being 

addressed under separate consideration. 

Furthermore, the states included in 

this action are Connecticut, Maine, New 

Hampshire and Rhode Island. Since 

these states are in the Ozone Transport 

Region (OTR), they are required to, 

under Sections 182(f)(1) and 184(b) of 

the Clean Air Act, and in fact do, 

conduct nonattainment NSR for new 

major and modified major sources of 

ozone precursors.18 Section 184(b)(2) 

requires major stationary sources of 

volatile organic compounds at the 50 

ton per year level in the OTR to meet 

all ‘‘the requirements which would be 

applicable to major stationary sources if 

the area were classified as a Moderate 

nonattainment area.’’ Section 182(f)(1) 

has the effect of extending that 

requirement to major sources of nitrogen 

oxides at the 100 ton per year level in 

the OTR. Under the nonattainment NSR 

program, sources are not required to 

predict their ambient impacts using 

modeling. Rather, the program assumes 

the new or modified sources will 

contribute to nonattainment in the area. 

Accordingly, the program requires that 

these sources secure offsets for their 

new emissions at a ratio of at least 1.15 

to 1 in the OTR. Thus, the offset 

requirement addresses the ambient 

impact element of NSR in these states 

for ozone precursors without reliance on 

any predictive modeling. Therefore, this 

comment regarding which model to use 

in the PSD modeling of single source’s 

ozone precursors is not relevant to this 

action. 

Comment 7: Under the heading ‘‘CT’s 

SIP must require notice to affected 

states,’’ the Commenter states, ‘‘CT’s SIP 

is defective because its PSD regulations 

fail to require CT to give notice of PSD 

sources to affected states. 76 FR 16358, 

16362 (Mar. 23, 2011). EPA must 

disapprove this defective provision. The 

fact that neighboring states have 

consistently obtained draft permits in 

the past does not justify approving an 

illegal SIP. It does not even make sense. 

To begin with, it is unlikely that EPA 

actually reviewed all PSD permits 

issued in the past to actually determine 

that proper notice was actually given by 

CT. In any event, CT could change its 

informal policy in the future, especially 

if there is a change in management in 

the agency or state.’’ 

Response 7: Section 110(a)(2)(D)(ii) of 

the CAA requires SIPs to include 

provisions insuring compliance with the 

applicable requirements of sections 126 

and 115 (relating to interstate and 

international pollution abatement). 

Specifically, section 126(a) requires new 

or modified major sources to notify 

neighboring states of potential impacts 

from the source. As noted in EPA’s 

proposed approval (see 76 FR 16362), 

Connecticut’s PSD regulations provide 

for notice to most of the parties 

consistent with the requirements in the 

EPA PSD program, although there is no 

specific mandate that affected states 

receive notice. As also noted in the 

proposed approval, Connecticut in fact 

issues extensive notice of its draft 

permits, and neighboring states 

consistently get copies on those drafts. 

However, EPA agrees with the 

commenter that the current Connecticut 

SIP does not explicitly require notice to 

affected states for some sources of air 

pollution. Subsequent to EPA’s 

proposal, on May 2, 2011, EPA received 

a written commitment from the State of 

Connecticut to pursue regulatory 

revisions to Connecticut’s PSD program 

to adopt a formal requirement to notify 

nearby states. Connecticut’s letter also 

committed to continue to provide notice 

to nearby states while shepherding these 

regulatory revisions through the state 

process. Therefore, taking all of this 

information into consideration, EPA has 

decided to take direct final action to 

conditionally approve this element of 

the Connecticut SIP. Conditional 

approval is appropriate in this 

circumstance because the State has 

explicitly committed to continuing its 

practice of notifying affected states 

while it conforms its regulations to 

mandate that practice. 

IV. Final Action 

As described above, the Connecticut, 

Maine, New Hampshire and Rhode 

Island ozone infrastructure SIP 

submissions have addressed the 

elements of the CAA 110(a)(1) and (2) 

SIP requirements pursuant to EPA’s 

October 2, 2007 guidance to ensure that 

the 1997 8-hour ozone NAAQS are 

implemented, enforced, and maintained 

in the respective state, except for one 

element in Connecticut. EPA is taking 

final action to approve the Connecticut, 

Maine, New Hampshire and Rhode 

Island infrastructure submissions for the 

1997 8-hour ozone NAAQS because 

these submissions are consistent with 

section 110 of the CAA, except for the 

element required by section 

110(a)(2)(D)(ii) in Connecticut. 

EPA is conditionally approving the 

Connecticut submittal with respect to 

the requirement of CAA section 

110(a)(2)(D)(ii). The State must submit 

to EPA by July 9, 2012 the revised PSD 

regulations requiring notification of 

nearby states. If the State fails to do so, 

this approval will become a disapproval 

on that date. EPA will notify the State 

by letter that this action has occurred. 

At that time, this commitment will no 

longer be a part of the approved 

Connecticut SIP. EPA subsequently will 

publish a notice in the notice section of 

the Federal Register notifying the 

public that the conditional approval 

automatically converted to a 

disapproval. If the State meets its 

commitment, within the applicable time 

frame, the conditionally approved 

submission will remain a part of the SIP 

until EPA takes final action approving 

or disapproving the new submittal. If 

EPA disapproves the new submittal, the 

conditionally approved submittal will 

also be disapproved at that time. If EPA 

approves the new submittal, 

Connecticut’s infrastructure SIP will be 

fully approved in its entirety and 


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40256 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Rules and Regulations 

replace the conditionally approved 

element in the SIP. 

If the conditional approval is 

converted to a disapproval, the final 

disapproval triggers the Federal 

Implementation Plan (FIP) requirement 

under section 110(c). 

The EPA is publishing this 

conditional approval without prior 

proposal because the Agency views this 

as a noncontroversial amendment and 

anticipates no adverse comments. 

However, in the proposed rules section 

of this Federal Register publication, 

EPA is publishing a separate document 

that will serve as the proposal to 

conditionally approve the Connecticut 

submittal with respect to CAA section 

110(a)(2)(D)(ii) should relevant adverse 

comments be filed. This rule will be 

effective September 6, 2011 without 

further notice unless the Agency 

receives relevant adverse comments by 

August 8, 2011. 

If the EPA receives such comments, 

then EPA will publish a notice 

withdrawing the final conditional 

approval and informing the public that 

the conditional approval will not take 

effect. All public comments received 

will then be addressed in a subsequent 

final rule based on the proposed rule. 

The EPA will not institute a second 

comment period on the proposed rule. 

All parties interested in commenting on 

the proposed rule should do so at this 

time. If no such comments are received, 

the public is advised that the 

conditional approval will be effective on 

September 6, 2011 and no further action 

will be taken on the proposed rule. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

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 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 

either is not approved to apply in Indian 

country located in the state or does not 

alter the requirements of any state law 

that may already apply in Indian 

country. EPA notes that this approval 

will not impose substantial direct costs 

on Tribal governments or preempt 

Tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 6, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: June 28, 2011. 

Ira W. Leighton, 

Acting, Regional Administrator, EPA New 

England. 

Part 52 of chapter I, title 40 of the 

Code of Federal Regulations, 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 H—Connecticut 

■ 2. Section 52.377 is amended by 

adding paragraphs (g) and (h) to read as 

follows: 

§ 52.377 Control strategy: Ozone. 

* * * * * 

(g) Approval—Submittal from the 

Connecticut Department of 

Environmental Protection, dated 

December 28, 2007, to address the Clean 

Air Act (CAA) infrastructure 

requirements for the 1997 ozone 

National Ambient Air Quality Standard 

(NAAQS). This submittal satisfies the 

requirements of CAA sections 

110(a)(2)(A), (B), (C), (E), (F), (G), (H), 

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

(h) Conditional Approval—Submittal 

from the Connecticut Department of 

Environmental Protection, dated 

December 28, 2007, to address the Clean 

Air Act (CAA) infrastructure 


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Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Rules and Regulations 40257 

requirements for the 1997 ozone 

National Ambient Air Quality Standard 

(NAAQS). On May 2, 2011, the State of 

Connecticut supplemented this 

submittal with a commitment to address 

the requirements of section 

110(a)(2)(D)(ii) of the CAA that requires 

notification of affected states for 

Prevention of Significant Deterioration 

purposes. EPA is conditionally 

approving Connecticut’s submittal with 

respect to CAA section 110(a)(2)(D)(ii). 

Subpart U—Maine 

■ 3. In § 52.1020, Table (e) is amended 

by adding a new entry at the end of the 

table to read as follows: 

§ 52.1020 Identification of plan. 

* * * * * 

(e) * * * 

MAINE NON REGULATORY

Name of non regulatory SIP 

provision 

Applicable geographic 

or nonattainment area 

State submittal date/ 

effective date EPA approved date 3 Explanations 

*******

Submittal to meet Clean Air 

Act Section 110(a)(2) Infrastructure Requirements for 

the 1997 8-Hour Ozone 

National Ambient Air Quality Standard.

State of Maine ........... January 3, 2008 ........ July 8, 2011 ...........................

[Insert Federal Register 

page number where the 

document begins].

This action addresses the following Clean Air Act requirements: 110(a)(2)(A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), 

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

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision. 

Subpart EE—New Hampshire 

■ 4. In § 52.1520, Table (e) is amended 

by adding a new entry at the end of the 

table to read as follows: 

§ 52.1520 Identification of plan. 

* * * * * 

(e) * * * 

NEW HAMPSHIRE NON REGULATORY

Name of non regulatory SIP 

provision 

Applicable geographic 

or nonattainment area 

State submittal date/ 

effective date EPA approved date 3 Explanations 

*******

Submittal to meet Clean Air 

Act Section 110(a)(2) Infrastructure Requirements for 

the 1997 8-Hour Ozone 

National Ambient Air Quality Standard.

State of New Hampshire.December 14, 2007 .. July 8, 2011 ...........................

[Insert Federal Register 

page number where the 

document begins].

This action addresses the following Clean Air Act requirements: 110(a)(2)(A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), 

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

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision. 

Subpart OO—Rhode Island 

■ 5. In § 52.2070, Table (e) is amended 

by adding a new entry at the end of the 

table to read as follows: 

§ 52.2070 Identification of plan. 

* * * * * 

(e) * * * 

RHODE ISLAND NON REGULATORY

Name of non regulatory SIP 

provision 

Applicable geographic 

or nonattainment area 

State submittal date/ 

effective date EPA approved date Explanations 

*******

Submittal to meet Clean Air 

Act Section 110(a)(2) Infrastructure Requirements for 

the 1997 8-Hour Ozone 

National Ambient Air Quality Standard.

State of Rhode Island December 14, 2007 .. July 8, 2011 ...........................

[Insert Federal Register 

page number where the 

document begins].

This action addresses the following Clean Air Act requirements: 110(a)(2)(A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), 

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


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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. 

[FR Doc. 2011–17021 Filed 7–7–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2011–0310; FRL–9434–4] 

Approval and Promulgation of 

Implementation Plans; State of NE 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) submittal 

from the State of Nebraska addressing 

the requirements of Clean Air Act (CAA 

or Act) sections 110(a)(1) and (2) to 

implement, maintain, and enforce the 

1997 revisions to the National Ambient 

Air Quality Standards (NAAQS) for 

ozone. The rationale for this action is 

explained in this notice and in more 

detail in the notice of proposed 

rulemaking for this action. EPA received 

no comments on the proposal. 

DATES: Effective Date: This rule is 

effective August 8, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R07–OAR–2011–0310. All 

documents in the docket are listed on 

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

Although listed in the index, 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://www.regulations.gov or in hard 

copy at the U.S. Environmental 

Protection Agency, Region 7, in the Air 

Planning and Development Branch of 

the Air and Waste Management 

Division, 901 North 5th Street, Kansas 

City, Kansas 66101. EPA requests that, 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The interested persons 

wanting to examine these documents 

should make an appointment with the 

office at least 24 hours in advance. The 

Regional Office official hours of 

business are Monday through Friday, 

8:00 to 4:30, excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Elizabeth Kramer, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101; telephone number: 

(913) 551–7186; fax number: (913) 551– 

7844; e-mail address: 

kramer.elizabeth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. These sections provide additional 

information on this final action: 

Table of Contents 

I. Background 

II. Summary of Relevant Submissions 

III. Scope of Infrastructure SIPs 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On March 30, 2011 (76 FR 17592), 

EPA published a proposed rulemaking 

for the State of Nebraska. This 

rulemaking proposed approval of 

Nebraska’s submittal dated December 7, 

2007 as meeting the relevant and 

applicable requirements of CAA 

sections 110(a)(1) and (2) necessary to 

implement, maintain, and enforce the 

1997 8-hour ozone NAAQS. 

II. Summary of Relevant Submissions 

The above referenced submittal 

addresses the infrastructure elements 

specified in CAA sections 110(a)(1) and 

(2). This submittal refers to the 

implementation, maintenance and 

enforcement of the 1997 8-hour ozone 

NAAQS. The rationale supporting EPA’s 

proposed action is explained in the 

proposal and EPA incorporates by 

reference the rationale in the proposal, 

as supplemented by this notice, as its 

rationale for the final rule. No public 

comments were received on the 

proposed rulemaking. 

III. Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

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

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on the infrastructure SIP 

submissions.1 The commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

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

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

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

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated that it would address the 

issues separately: (i) existing provisions 

for minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source NSR’’); and (ii) 

existing provisions for Prevention of 

Significant Deterioration (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’’). In light of the comments, EPA 

now believes that its statements in 

various proposed actions on 

infrastructure SIPs with respect to these 

four individual issues should be 

explained in greater depth with respect 

to these issues. 

EPA intended the statements in the 

proposals concerning these four issues 

merely to be informational, and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that the Agency’s 

approval of the infrastructure SIP 

submission of a given state should be 

interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing State provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 


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