The EPA Acting Regional Administrator, Keith Takata, signed the following proposed rule on 03/27/2012, and EPA 

is submitting it for publication in the Federal Register (FR). While we have taken steps to ensure the accuracy of 

this Internet version of the rule, it is not the official version of the rule for purposes of public comment. Please refer 

to the official version in a forthcoming FR publication, which will appear on the Government Printing Office's 

FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov 

(http://www.regulations.gov) in Docket No. EPA-R09-OAR-2012-0228. Once the official version of this document 

is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

Billing Code: 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0228; FRL-_________]

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.

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 (PM2.5). 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, 
This document is a prepublication version, signed by the EPA Acting Regional Administrator, Keith Takata, on 

3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

2

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 [Insert 

date 30 days after publication in the Federal Register]. 

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. E-mail: richmond.dawn@epa.gov

3. Fax: 415-947-3579

4. Mail or deliver: Dawn Richmond, Air Planning Office (AIR2), 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 
This document is a prepublication version, signed by the EPA Acting Regional Administrator, Keith Takata, on 

3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

3

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 e-mail address will be automatically 

captured and included as part of the public comment. If EPA 

cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to 

consider your comment.

Docket: The index to the docket for this action is 

available electronically at http://www.regulations.gov and in 

hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, 

California. While all documents in the docket are listed in the 

index, some information may be publicly available only at the 

hard copy location (e.g., copyrighted material), and some may 

not be publicly available in either location (e.g., CBI). To 

inspect the hard copy materials, please schedule an appointment 

during normal business hours with the contact listed directly 

below.

FOR FURTHER INFORMATION CONTACT: Dawn Richmond, Air Planning 

Office (AIR–2), U.S. Environmental Protection Agency, Region IX, 

(415) 972–3207, richmond.dawn@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms

 ̳ ̳we,‘‘  ̳ ̳us,‘‘ and  ̳ ̳our‘‘ refer to EPA.
This document is a prepublication version, signed by the EPA Acting Regional Administrator, Keith Takata, on 

3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

4

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 
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3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

5

as ―infrastructure SIPs.‖ These infrastructure SIP elements 

include: 

Section 110(a)(2)(A): Emission limits and other control 

measures.

Section 110(a)(2)(B): Ambient air quality monitoring/data 

system.

Section 110(a)(2)(C): Program for enforcement of control 

measures and regulation of new stationary sources.

Section 110(a)(2)(D)(i): Interstate pollution transport.

Section 110(a)(2)(D)(ii): Interstate and international 

pollution abatement.

Section 110(a)(2)(E): Adequate resources and authority, 

conflict of interest, and oversight of local governments 

and regional agencies.

Section 110(a)(2)(F): Stationary source monitoring and 

reporting.

Section 110(a)(2)(G): Emergency episodes.

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

Section 110(a)(2)(J): Consultation with government 

officials, public notification, and prevention of 

significant deterioration (PSD) and visibility protection.

Section 110(a)(2)(K): Air quality modeling and submission 

of modeling data.
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3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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Section 110(a)(2)(L): Permitting fees.

Section 110(a)(2)(M): Consultation/participation by 

affected local entities.

Two elements identified in section 110(a)(2) are not governed by 

the 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 ozone1 and 

a new NAAQS for fine particulate matter (PM2.5).2 EPA subsequently 

 

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 PM2.5 standard was set at 15 micrograms per cubic meter (μg/m3), 
This document is a prepublication version, signed by the EPA Acting Regional Administrator, Keith Takata, on 

3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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revised the 24-hour PM2.5 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. 

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 PM2.5 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 PM2.5 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 PM2.5 NAAQS (76 FR 55577).4

 

based on the 3-year average of annual arithmetic mean PM2.5 concentrations from 

single or multiple community-oriented monitors and the 24-hour PM2.5 standard 

was set at 65 μg/m3, based on the 3-year average of the 98th percentile of 24-

hour PM2.5 concentrations at each population-oriented monitor within an area 

(62 FR 38652).

3 The final rule revising the 24-hour NAAQS for PM2.5 from 65 μg/m3 to 35 μg/m3

was published in the Federal Register on October 17, 2006 (71 FR 61144). 

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 
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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 PM2.5 NAAQS for various states across the country. 

Commenters on EPA‘s recent proposals for some states raised 

concerns about EPA statements that it was not addressing certain 

substantive issues in the context of acting on those 

infrastructure SIP submissions.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 

 

requirements of section 110(a)(2)(D)(i)(I) (75 FR 32673).

5 See, 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). 
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9

proposals that it would address the issues separately: (i) 

existing provisions for minor source new source review programs 

that may be inconsistent with the requirements of the CAA and 

EPA‘s regulations that pertain to such programs (―minor source 

NSR‖); and (ii) existing provisions for Prevention of 

Significant Deterioration programs that may be inconsistent with 

current requirements of EPA‘s ―Final NSR Improvement Rule,‖ 67 

FR 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.

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 
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3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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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 
This document is a prepublication version, signed by the EPA Acting Regional Administrator, Keith Takata, on 

3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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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 
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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

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 

 

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 NOx 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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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

 

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 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. 

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 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.
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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 
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3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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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 PM2.5 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.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 

 

11 See, ―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‖).

12 Id. at page 2.
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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 PM2.5 NAAQS, EPA gave much more specific 

recommendations. But for other infrastructure SIP submittals, 

and for certain elements of the submittals for the 1997 PM2.5

NAAQS, EPA assumed that each State would work with its 

corresponding EPA regional office to refine the scope of a 

State‘s submittal based on an assessment of how the requirements 

of section 110(a)(2) should reasonably apply to the basic 

structure of the State‘s SIP for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make 

recommendations to states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.15 In the 2009 Guidance, EPA 

 

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. 

15 See, ―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 
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3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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addressed a number of additional issues that were not germane to 

the infrastructure SIPs for the 1997 8-hour ozone and 1997 PM2.5

NAAQS, but were germane to these SIP submissions for the 2006 

PM2.5 NAAQS. 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 

 

Division, to Regional Air Division Directors, Regions I - X, dated September 

25, 2009 (the ―2009 Guidance‖).
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they have the basic SIP structure, notwithstanding that there 

may be potential deficiencies within the existing SIP. 

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 PM2.5 NAAQS because of the 

absence of underlying EPA regulations for emergency episodes for 
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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.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 

 

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).
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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

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, 

 

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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EPA finds it appropriate to propose certain interpretations of 

section 128 and invite comment on these interpretations.19

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

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 

 

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.

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).

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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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.

First, section 128 must be implemented through SIPapproved, 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 
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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.

Third, subsection 128(a)(2) applies to all states, 

regardless of whether the state has a multi-member board or body 

that 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 

 

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.
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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 
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3/27/2012. We have taken steps to ensure the accuracy of this version, but it is not the official version.

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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 
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SIP requirements of CAA section 110(a)(2) with respect to the 

1997 ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS (collectively 

―the relevant NAAQS‖).

23 The 2011 Hawaii Infrastructure SIP also 

included supporting materials for each of the components of the 

SIP revision.

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 

 

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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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:

Section 110(a)(2)(A): Emission limits and other control 

measures.

Section 110(a)(2)(B): Ambient air quality monitoring/data 

system.

Section 110(a)(2)(C) (in part): Program for enforcement of 

control measures and regulation of new stationary sources 

(minor NSR program only).

Section 110(a)(2)(D)(i)(I): Interstate transport

(significant contribution and interference with 

maintenance).

Section 110(a)(2)(E): Adequate resources and authority, 

conflict of interest, and oversight of local governments 

and regional agencies.

Section 110(a)(2)(F): Stationary source monitoring and 

reporting.

Section 110(a)(2)(G): Emergency episodes.

Section 110(a)(2)(H): SIP revisions.
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Section 110(a)(2)(J) (in part): Public notification.

Section 110(a)(2)(K): Air quality modeling and submission 

of modeling data.

Section 110(a)(2)(L): Permitting fees.

Section 110(a)(2)(M): Consultation/participation by 

affected local entities.

In addition, we are proposing to approve into the SIP as nonregulatory materials the statutory provisions that HDOH included 

as part of the 2011 Hawaii Infrastructure SIP.

24

We are proposing to disapprove the 2011 Hawaii 

Infrastructure SIP with respect to the following infrastructure 

SIP requirements:

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).

Section 110(a)(2)(D)(i)(II): Interstate transport -

prevention of significant deterioration and visibility 

protection.

 

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 EPAR09-OAR-2012-0228.
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Section 110(a)(2)(D)(ii): Interstate pollution abatement 

and international air pollution.

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 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).
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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. 

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 

 

27 We have placed a copy of the proposed consent decree in the docket for this 

action. 
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those imposed by state law. For that reason, this proposed 

action:

Is not a  ̳ ̳significant regulatory action‘‘ subject to 

review by the Office of Management and Budget under 

Executive Order 12866 (58 FR 51735, October 4, 1993);

Does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 

et seq.);

Is certified as not having a significant economic impact on 

a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.);

Does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);

Does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999); is 

not an economically significant regulatory action based on 

health or safety risks subject to Executive Order 13045 (62 

FR 19885, April 23, 1997);

Is not a significant regulatory action subject to Executive 

Order 13211 (66 FR 28355, May 22, 2001);

Is not subject to requirements of section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 
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(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the CAA; and,

Does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or 

environmental effects, using practicable and legally 

permissible methods, under Executive Order 12898 (59 FR 

7629, February 16, 1994).

In addition, this rule does not have Tribal implications as 

specified by Executive Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved to apply in Indian 

country located in the State, and EPA notes that it will not

impose substantial direct costs on Tribal governments or preempt

Tribal law.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, 

Intergovernmental relations, Oxides of nitrogen, Ozone, 

Particulate matter, Reporting and recordkeeping requirements, 

Volatile organic compounds.

__________________ ________________________

Dated: Jared Blumenfeld,

Regional Administrator,

Region IX.

Billing Code: 6560-50-P