[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21913-21919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8848]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0228; FRL-9657-5]


Approval and Promulgation of State Implementation Plans; Hawaii; 
Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and 
2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to partially approve and partially disapprove a 
State Implementation Plan (SIP) revision submitted by the State of 
Hawaii pursuant to the requirements of Section 110(a)(1) and (2) of the 
Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air 
quality standards (NAAQS) and the 1997 and 2006 NAAQS for fine 
particulate matter (PM<INF>2.5</INF>). 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. On 
December 14, 2011, the Hawaii Department of Health (HDOH) submitted a 
revision to Hawaii's SIP, which describes the State's provisions for 
implementing, maintaining, and enforcing standards listed above. We are 
taking comments on this proposal and plan to follow with a final 
action.

DATES: Written comments must be received on or before May 14, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2012-0228, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: <a href="/cdn-cgi/l/email-protection#e7958e848f8a888983c983869089a7829786c9808891"><span class="__cf_email__" data-cfemail="40322923282d2f2e246e2421372e002530216e272f36">[email protected]</span></a>.
    3. Fax: 415-947-3579.
    4. Mail or deliver: Dawn Richmond, Air Planning Office (AIR-2), 
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, 
San Francisco, CA 94105-3901. Deliveries are only accepted during the 
Regional Office's normal hours of operation.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an 
anonymous access system, and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send email directly to EPA, your email address will be automatically 
captured and included as part of the public comment. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be

[[Page 21914]]

publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed 
directly below.

FOR FURTHER INFORMATION CONTACT: Dawn Richmond, Air Planning Office 
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-
3207, <a href="/cdn-cgi/l/email-protection#cab8a3a9a2a7a5a4aee4aeabbda48aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="8ffde6ece7e2e0e1eba1ebeef8e1cfeaffeea1e8e0f9">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
    A. Statutory Framework
    B. Regulatory History
    C. Scope of the Infrastructure SIP Evaluation
    D. Proposed Interpretation of CAA Section 128
II. The State's Submittal and Related Actions by EPA
III. EPA's Evaluation and Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

A. Statutory Framework

    Section 110(a)(1) of the CAA requires states to make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' that 
provides 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. Many of the section 
110(a)(2) SIP elements relate to the general information and 
authorities that constitute the ``infrastructure'' of a state's air 
quality management program and SIP submittals that address these 
requirements are referred to as ``infrastructure SIPs.'' These 
infrastructure SIP elements include:
    <bullet> Section 110(a)(2)(A): Emission limits and other control 
measures.
    <bullet> Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
    <bullet> Section 110(a)(2)(C): Program for enforcement of control 
measures and regulation of new stationary sources.
    <bullet> Section 110(a)(2)(D)(i): Interstate pollution transport.
    <bullet> Section 110(a)(2)(D)(ii): Interstate and international 
pollution abatement.
    <bullet> Section 110(a)(2)(E): Adequate resources and authority, 
conflict of interest, and oversight of local governments and regional 
agencies.
    <bullet> Section 110(a)(2)(F): Stationary source monitoring and 
reporting.
    <bullet> Section 110(a)(2)(G): Emergency episodes.
    <bullet> Section 110(a)(2)(H): SIP revisions.
    <bullet> Section 110(a)(2)(J): Consultation with government 
officials, public notification, and prevention of significant 
deterioration (PSD) and visibility protection.
    <bullet> Section 110(a)(2)(K): Air quality modeling and submission 
of modeling data.
    <bullet> Section 110(a)(2)(L): Permitting fees.
    <bullet> Section 110(a)(2)(M): Consultation/participation by 
affected local entities.

Two elements identified in section 110(a)(2) are not governed by the 
three-year submission deadline of section 110(a)(1) and are therefore 
not addressed in this action. These elements relate to part D of title 
I of the CAA, and submissions to satisfy them are not due within three 
years after promulgation of a new or revised NAAQS, but rather are due 
at the same time nonattainment area plan requirements are due under 
section 172. The two elements are: (i) Section 110(a)(2)(C) to the 
extent it refers to permit programs required under part D 
(nonattainment New Source Review (NSR)), and (ii) section 110(a)(2)(I), 
pertaining to the nonattainment planning requirements of part D. As a 
result, this action does not address infrastructure elements related to 
the nonattainment NSR portion of section 110(a)(2)(C) or related to 
110(a)(2)(I).

B. Regulatory History

    On July 18, 1997, EPA issued a revised NAAQS for ozone \1\ and a 
new NAAQS for fine particulate matter (PM<INF>2.5</INF>).\2\ EPA 
subsequently revised the 24-hour PM<INF>2.5</INF> NAAQS on September 
21, 2006.\3\ Each of these actions triggered a requirement for States 
to submit an infrastructure SIP to address the applicable requirements 
of section 110(a)(2) within three years of issuance of the new or 
revised NAAQS.
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    \1\ The 8-hour averaging period replaced the previous 1-hour 
averaging period, and the level of the NAAQS was changed from 0.12 
parts per million (ppm) to 0.08 ppm (62 FR 38856).
    \2\ The annual PM<INF>2.5</INF> standard was set at 15 
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average 
of annual arithmetic mean PM<INF>2.5</INF> concentrations from 
single or multiple community-oriented monitors and the 24-hour 
PM<INF>2.5</INF> standard was set at 65 [micro]g/m\3\, based on the 
3-year average of the 98th percentile of 24-hour PM<INF>2.5</INF> 
concentrations at each population-oriented monitor within an area 
(62 FR 38652).
    \3\ The final rule revising the 24-hour NAAQS for 
PM<INF>2.5</INF> from 65 [micro]g/m\3\ to 35 [micro]g/m\3\ was 
published in the Federal Register on October 17, 2006 (71 FR 61144).
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    On March 10, 2005, EPA entered into a Consent Decree with 
Earthjustice that obligated EPA to make official findings in accordance 
with section 110(k)(1) of the CAA as to whether States had made 
required complete SIP submissions, pursuant to sections 110(a)(1) and 
(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by 
October 5, 2008 for the 1997 PM<INF>2.5</INF> NAAQS. EPA made such 
findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 
16205) and on October 22, 2008 (73 FR 62902) for the 1997 
PM<INF>2.5</INF> NAAQS. In each case, EPA found that Hawaii had failed 
to make a complete submittal to satisfy the requirements of section 
110(a)(2) for the relevant pollutant. On September 8, 2011, EPA made a 
similar finding of failure to submit for Hawaii in relation to the 2006 
24-hour PM<INF>2.5</INF> NAAQS (76 FR 55577).\4\
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    \4\ In the September 2011 notice, EPA specifically found that 
Hawaii failed to submit for section 110(a)(2)(A)-(C), (D)(i)(II) 
(PSD prong only), (E)-(H) and (J)-(M). EPA had already determined on 
June 10, 2011 that Hawaii had failed to submit a complete SIP to 
address the attainment and maintenance requirements of section 
110(a)(2)(D)(i)(I) (75 FR 32673).
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C. Scope of the Infrastructure SIP Evaluation

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM<INF>2.5</INF> NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\5\ Those commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction 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 in other proposals that it would address 
the issues separately: (i) Existing provisions for minor source new 
source review programs that may be inconsistent with

[[Page 21915]]

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 
believes that its statements in various proposed actions on 
infrastructure SIPs with respect to these four individual issues should 
be explained in greater depth. It should be noted, however, that, 
unlike other States, Hawaii has submitted revisions to its minor NSR 
program as part of its Infrastructure SIP submittal. EPA is taking 
action on these revisions in a separate notice-and-comment rulemaking. 
Thus, the discussion below pertaining to ``existing provisions'' is not 
relevant to Hawaii's revised minor NSR rules.
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    \5\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket <greek-i> EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5).
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    EPA intended the statements in other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some States that might require future corrective action. EPA did not 
want States, regulated entities, or members of the public to be under 
the misconception that 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 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 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 issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, 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 from actions on infrastructure SIP submissions.
    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.\6\ 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.\7\
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    \6\ For 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.
    \7\ For 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 NO<INF>X</INF> SIP Call; Final Rule,'' 70 FR 25,162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides 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).\8\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Likewise, 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.\9\ Finally, EPA notes that not 
every element of section 110(a)(2) would be relevant, or as relevant, 
or relevant in the same way, for each new or revised NAAQS and the 
attendant infrastructure SIP submission for that NAAQS. For example, 
the monitoring requirements that might be necessary for purposes of 
section 110(a)(2)(B) for one NAAQS could be very different than what 
might be necessary for a different pollutant. Thus, the content of an 
infrastructure SIP submission to meet this element from a state might 
be very different for an entirely new NAAQS, versus a minor revision to 
an existing NAAQS.\10\
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    \8\ See, 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)).
    \9\ For example, EPA issued separate guidance to states with 
respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 
1997 8-hour ozone and 1997 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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. In addition, EPA bifurcated the action on these ``interstate 
transport'' provisions within section 110(a)(2) and in most 
instances, substantive administrative actions occurred on different 
tracks with different schedules.
    \10\ For example, implementation of the 1997 PM<INF>2.5</INF> 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.

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[[Page 21916]]

    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM<INF>2.5</INF> 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 PM<INF>2.5</INF> NAAQS.\11\ 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.'' \12\ 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.'' \13\ 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.'' \14\ 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 PM<INF>2.5</INF> 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM<INF>2.5</INF> 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.
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    \11\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM<INF>2.5</INF> 
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'').
    \12\ Id. at page 2.
    \13\ Id. at attachment A, page 1.
    \14\ Id. at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicate 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.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM<INF>2.5</INF> NAAQS.\15\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM<INF>2.5</INF> NAAQS, but 
were germane to these SIP submissions for the 2006 PM<INF>2.5</INF> 
NAAQS. Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred to the SSM, director's discretion, minor source 
NSR, or NSR Reform issues as among specific substantive issues EPA 
expected states to address in the context of the infrastructure SIPs, 
nor did EPA give any more specific recommendations with respect to how 
States might address such issues even if they elected to do so. The SSM 
and director's discretion issues implicate section 110(a)(2)(A), and 
the minor source NSR and NSR Reform issues implicate section 
110(a)(2)(C). In the 2007 Guidance and the 2009 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 existing SIP provisions 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.
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    \15\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM<INF>2.5</INF>) 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'').
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    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 comprehensive 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 PM<INF>2.5</INF> NAAQS because of the absence 
of underlying EPA regulations for emergency episodes for this NAAQS and 
an anticipated absence of relevant provisions in existing SIPs.

[[Page 21917]]

    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.\16\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\17\ 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.\18\
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    \16\ EPA 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,'' 76 FR 21,639 (April 18, 2011).
    \17\ EPA 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 Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82,536 (December 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).
    \18\ EPA 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 (January 26, 2011) (final disapproval of such provisions).
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D. Proposed Interpretation of CAA Section 128

    As noted above, EPA is currently acting upon infrastructure SIPs 
for various states across the country. Among the elements that EPA is 
evaluating as part of these actions is the requirement of CAA section 
110(a)(2)(E)(ii) that SIPs, ``provide * * * requirements that the State 
comply with the requirements respecting State boards under section 
128'' of the CAA. In contrast with, for example, the SSM issue 
discussed above, section 110(a)(2)(E)(ii) unambiguously mandates that 
each SIP must satisfy the requirements of section 128. Accordingly, as 
part of our infrastructure SIP actions, EPA is reviewing SIPs in 
relation to the requirements of CAA section 128. In this action, EPA 
finds it appropriate to propose certain interpretations of section 128 
and invite comment on these interpretations.\19\
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    \19\ If EPA finalizes this action, the proposed interpretations 
will supersede (to the extent that they are inconsistent with) 
interpretations suggested in the 1978 guidance, at least for 
Hawaii's SIP.
---------------------------------------------------------------------------

    Congress added section 128 of the CAA in the 1977 amendments as the 
result of a conference agreement. Titled ``State boards,'' section 128 
provides in relevant part:

    (a) Not later than the date one year after August 7, 1977, each 
applicable implementation plan shall contain requirements that--
    (1) Any board or body which approves permits or enforcement 
orders under [this Act] shall have at least a majority of members 
who represent the public interest and do not derive any significant 
portion of their income from persons subject to permits or 
enforcement orders under [this Act], and
    (2) Any potential conflicts of interest by members of such board 
or body or the head of an executive agency with similar powers be 
adequately disclosed.

In 1978, we issued a guidance memorandum recommending ways States could 
meet the requirements of section 128, including suggested 
interpretations of certain terms in section 128.\20\
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    \20\ Memorandum from David O. Bickart, Deputy General Counsel, 
to Regional Air Directors, Guidance to States for Meeting Conflict 
of Interest Requirements of Section 128 (Mar. 2, 1978).
---------------------------------------------------------------------------

    We first note that, in the conference report, the committee stated: 
``It is the responsibility of each State to determine the specific 
requirements to meet the general requirements of [section 128].'' \21\ 
We think that this legislative history indicates that Congress intended 
states to have some latitude in the specifics of implementing section 
128, so long as the implementation is consistent with the plain text of 
the section. We also note that Congress explicitly provided in section 
128 that States could adopt more stringent requirements. As a result, 
we propose four important considerations for implementing section 128.
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    \21\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977 526-27 (1978).
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    First, section 128 must be implemented through SIP-approved, 
federally enforceable provisions. Section 128 explicitly mandates that 
each SIP ``shall contain requirements'' that satisfy subsections 
128(a)(1) and 128(a)(2). A mere narrative description of state statutes 
or rules, or of a state's current or past practice in constituting a 
board or body and in disclosing potential conflicts of interest, is not 
a requirement contained in the SIP and therefore does not satisfy the 
plain text of section 128.
    Second, subsection 128(a)(1) applies only to states that have a 
board or body that is composed of multiple individuals and that, among 
its duties, approves permits or enforcement orders under the CAA. It 
does not apply in states that have no such multi-member board or body, 
and where instead a single head of an agency approves permits or 
enforcement orders under the CAA. This flows from the text of section 
128 itself, for two reasons. First, as section 128(a)(1) refers to a 
majority of members in the plural, we think it reasonable to read 
section 128(a)(1) as not creating any requirements for an individual 
with sole authority for approving a permit or enforcement order under 
the CAA. Second, subsection 128(a)(2) explicitly applies to the head of 
an executive agency with ``similar powers'' to a board or body that 
approves permits or enforcement orders under the CAA, while subsection 
128(a)(1) omits any reference to heads of executive agencies.\22\ We 
infer that subsection 128(a)(1) should not apply to heads of executive 
agencies who approve permits or enforcement orders.
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    \22\ For the same two reasons, we distinguish the language of 
section 128(a)(1) from the language of the analogous provision in 
the Clean Water Act (CWA), governing composition of a state board or 
body that approves National Pollutant Discharge Elimination System 
(NPDES) permit applications. In relevant part, the CWA provision 
states, ``no board or body which approves permit applications or 
portions thereof shall include, as a member, any person who 
receives, or has during the previous two years received, a 
significant portion of his income directly or indirectly from permit 
holders or applicants for a permit.'' CWA section 304(i)(D), 33 
U.S.C. 1314(i)(D). The CWA provision does not refer to a majority of 
members in the plural, and the CWA provision does not have a 
separate section explicitly including heads of executive agencies. 
Thus, the bases for our interpretation of subsection 128(a)(1) do 
not exist in the CWA.
---------------------------------------------------------------------------

    Third, subsection 128(a)(2) applies to all states, regardless of 
whether the state has a multi-member board or body that

[[Page 21918]]

approves permits or enforcement orders under the CAA. Although the 
title of section 128 is ``State boards,'' the language of section 
128(a)(2) explicitly applies where the head of an executive agency, 
rather than a board or body, approves permits or enforcement orders. In 
instances where the head of an executive agency delegates his or her 
power to approve permits or enforcement orders, or where statutory 
authority to approve permits or enforcement orders is nominally vested 
in another state official, the requirement to disclose adequately 
potential conflicts of interest still applies. In other words, EPA 
thinks that SIPs for all states, regardless of whether a state board or 
body approves permits or enforcement orders under the CAA, must contain 
adequate provisions for disclosure of potential conflicts of interest. 
We note that many states have general disclosure provisions, applicable 
to all state employees, that may be adequate, if submitted for adoption 
into the SIP, to satisfy the requirements of subsection 128(a)(2).
    Finally, a state may satisfy the requirements of section 128 by 
submitting for adoption into the SIP a provision of state law that 
closely tracks or mirrors the language of the applicable provisions of 
section 128. A state may do so in two ways. First, the state may adopt 
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under 
this approach, the state will be able to meet the continuing 
requirements of section 128 without any additional, future SIP 
revisions, even if the state adds or removes authority, either at the 
state level or local level, to individuals or to boards or bodies to 
approve permits or enforcement orders under the CAA. Second, the state 
may modify the language of subsections 128(a)(1) (if applicable) and 
128(a)(2) to name the particular board, body, or individual official 
with approval authority. In this case, if the state subsequently 
modifies that authority, the state may have to submit a corresponding 
SIP revision to meet the continuing requirements of section 128. While 
either approach would meet the minimum requirements of section 128, we 
note that the statute explicitly permits states to adopt more stringent 
requirements, for example through providing more detailed definitions 
of the terms in subsections 128(a)(1) and 128(a)(2), such as those 
suggested in the 1978 guidance memorandum. This approach gives states 
flexibility in implementing section 128, while still ensuring 
consistency with the statute.

II. The State's Submittal and Related Actions by EPA

    On December 14, 2011, the Hawaii Department of Health (HDOH) 
submitted revisions to the Hawaii SIP to address the infrastructure 
requirements of CAA section 110(a)(2) (``2011 Hawaii Infrastructure 
SIP''). This submittal included (1) provisions of the Hawaii 
Administrative Rules (HAR) to be included in the Hawaii SIP as 
regulatory materials; (2) provisions of the Hawaii Revised Statutes 
(HRS) to be included in the SIP as non-regulatory materials; and (3) an 
``Infrastructure SIP Certification of Adequacy.'' The Certification 
sets forth HDOH's analysis of how the Hawaii SIP, with the submitted 
revisions, would satisfy the infrastructure SIP requirements of CAA 
section 110(a)(2) with respect to the 1997 ozone NAAQS and the 1997 and 
2006 PM<INF>2.5</INF> NAAQS (collectively ``the relevant NAAQS'').\23\ 
The 2011 Hawaii Infrastructure SIP also included supporting materials 
for each of the components of the SIP revision.
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    \23\ A copy of the complete 2011 Hawaii Infrastructure SIP 
submittal has been placed in the docket for this action and is 
available online at http://www.regulations.gov, docket number EPA-
R09-OAR-2012-0228.
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    On February 1, 2012, EPA's Region 9 Regional Administrator signed a 
proposed rule and a direct final rule to approve into the Hawaii SIP a 
number of the regulatory provisions that were included in the 2011 
Hawaii Infrastructure SIP. On March 20, 2012, the Regional 
Administrator signed a proposed rule and a direct final rule to approve 
into the SIP the remaining regulatory provisions submitted for 
inclusion in the SIP. These latter rules update and replace the minor 
NSR rules in the existing Hawaii SIP. Pre-publication versions of these 
rules and the accompanying TSDs have been placed in the docket for this 
action.

III. EPA's Evaluation and Proposed Action

    EPA has evaluated the 2011 Hawaii Infrastructure SIP and the 
existing provisions of the Hawaii SIP in relation to the infrastructure 
SIP requirements for the relevant NAAQS. The Technical Support Document 
(TSD) for this action, which is available online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0228, includes a 
summary of our evaluation for each element.
    Based upon this analysis, EPA proposes to approve the 2011 Hawaii 
Infrastructure SIP with respect to the following requirements:
    <bullet> Section 110(a)(2)(A): Emission limits and other control 
measures.
    <bullet> Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
    <bullet> Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new stationary sources (minor NSR 
program only).
    <bullet> Section 110(a)(2)(D)(i)(I): Interstate transport 
(significant contribution and interference with maintenance).
    <bullet> Section 110(a)(2)(E): Adequate resources and authority, 
conflict of interest, and oversight of local governments and regional 
agencies.
    <bullet> Section 110(a)(2)(F): Stationary source monitoring and 
reporting.
    <bullet> Section 110(a)(2)(G): Emergency episodes.
    <bullet> Section 110(a)(2)(H): SIP revisions.
    <bullet> Section 110(a)(2)(J) (in part): Public notification.
    <bullet> Section 110(a)(2)(K): Air quality modeling and submission 
of modeling data.
    <bullet> Section 110(a)(2)(L): Permitting fees.
    <bullet> Section 110(a)(2)(M): Consultation/participation by 
affected local entities.

In addition, we are proposing to approve into the SIP as non-regulatory 
materials the statutory provisions that HDOH included as part of the 
2011 Hawaii Infrastructure SIP.\24\
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    \24\ A list of these statutory provisions and their complete 
text are found in Attachment 1 and Appendix A of the 2011 Hawaii 
Infrastructure SIP, respectively. These documents have been placed 
in the docket for this action and are available online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0228.
---------------------------------------------------------------------------

    We are proposing to disapprove the 2011 Hawaii Infrastructure SIP 
with respect to the following infrastructure SIP requirements:
    <bullet> Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new stationary sources (permit 
program as required in part C of title I of the Act).
    <bullet> Section 110(a)(2)(D)(i)(II): Interstate transport--
prevention of significant deterioration and visibility protection.
    <bullet> Section 110(a)(2)(D)(ii): Interstate pollution abatement 
and international air pollution.
    <bullet> Section 110(a)(2)(J) (in part): Consultation with 
government officials and PSD.

As explained in the TSD, our proposed disapproval of these elements and 
sub-elements is compelled by the absence of an approvable SIP revision 
from Hawaii that meets the PSD requirements of sections 160 through 165 
of the CAA.\25\ In addition, our proposed disapproval of Section 
110(a)(2)(D)(i)(II) is compelled

[[Page 21919]]

by the lack of approvable SIP revisions to address reasonably 
attributable visibility impairment (RAVI) and regional haze affecting 
mandatory Class I areas.\26\ Under section 179(a) of the CAA, final 
disapproval of a submittal that addresses a requirement of part D, 
title I of the CAA (CAA sections 171-193) or is required in response to 
a finding of substantial inadequacy as described in CAA section 
110(k)(5) (SIP Call) starts a sanctions clock. The 2011 Hawaii 
Infrastructure SIP was not submitted to meet either of these 
requirements. Therefore, any action we take to finalize the described 
disapproval will not trigger sanctions.
---------------------------------------------------------------------------

    \25\ See 40 CFR 52.632.
    \26\ See 40 CFR 52.633 (reasonably attributable visibility 
impairment) and 74 FR 2392 (Jan. 15, 2009) (regional haze).
---------------------------------------------------------------------------

    In addition, these deficiencies have previously been addressed 
through promulgation of a PSD FIP (43 FR 26410, June 19, 1978, as 
amended at 45 FR 52741, Aug. 7, 1980; 68 FR 11322, Mar. 10, 2003; 68 FR 
74488, Dec. 24, 2003) and a FIP addressing RAVI (50 FR 28553, July 12, 
1985, as amended at 52 FR 45137, Nov. 24, 1987). The requirement to 
address regional haze will be addressed through final action on a 
regional haze SIP and/or FIP for Hawaii, which must be signed by 
September 15, 2012, under the terms of a proposed consent decree.\27\ 
Therefore, this disapproval, if finalized, would not trigger any new 
FIP obligations.
---------------------------------------------------------------------------

    \27\ We have placed a copy of the proposed consent decree in the 
docket for this action.
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting Federal 
requirements and disapproves other state law because it does not meet 
Federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> 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);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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,
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Oxides of nitrogen, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: March 27, 2012.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 2012-8848 Filed 4-11-12; 8:45 am]
BILLING CODE 6560-50-P


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