# Attachment 3 The United States Environmental Protection Agency’s

Memorandums and Notices used in Developing the

North Carolina Cert ification for

Clean Air Act Section 110(a)(1) and (2) 2008 Lead Requirements

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### Attachment 3 July 20, 2012 Page 1



## This document contains the United States E nvironmental Protection Agency’s (USEPA’s) memorandums and notices used in developing the North Carolina Certification for Clean Air Act Section 110(a)(1) and (2) requirements for the 2008 lead national ambient ai r quality standards. Below is a table of contents of the reference documents used.

USEPA October 14, 2011 memorandum, “Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Section 110(a )(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).” ...................................................................................2

USEPA November 7, 2011 memorandu m, “The Estimated Contributi on of Ambient L ead (Pb) to Class I Area Visibi lity Impairment” ........................................................................................... ...23
USEPA April 6, 2011, memorandum, “Regiona l Consistency for the Administrative Requirements of State Implementation Plan S ubmittals and the Use of Letter Notices.” .............26
USEPA Federal Register noti ce, May 19, 2010, California’s lega l authority (75 FR 27938) .......39

## should, in consultation with the EPA Regional Of fices, refer to applicable EPA regulations governing SIP submittals per 40 CFR Part 51

. These regulations include, but are not limited to:

 Subpart I – Review of New Sources and Modifications

 Subpart J – Ambient Air Quality Surveillance

 Subpart K – Source Surveillance

 Subpart L – Legal Authority

 Subpart M – Intergovernmental Consultation

 Subpart O – Miscellaneous Plan Content Requirements

 Subpart P – Protection of Visibility

 Subpart Q – Reports.

If a state determines that its existing SIP is adequate, then the state's SIP submittal may be a certification that the existing SIP contains provisions addr essing all requirements of the section 110(a)(2) infrastructure elements as applicable for the 2008 Pb NAAQS. Such certification ( e.g. , in the form of a letter to the EPA from the Governor or her/his designee) should cite the applicable provisions in the existing SIP. As for all SIP submittals, section 110(l) directs the state to provide reasonable public notice and opportunity for public hearing on a certification letter prior to submission to the EPA.

 Section 110(a)(2) specifies the elements and sub-elements that are required in order for the EPA to determine that an infrastruc ture SIP submittal is complete. Specifically, each state should include documentation demonstrating a correlation between each infrastructure element and an equivalent stat e statutory or regulatory authority in the existing or submitted SIP. At a minimum, a complete submittal is a letter from an appropriate state official ( e.g., Governor or designee) cert ifying compliance with each element which has gone through state notice and hearing procedures. To meet the requirements of sections 110(a)(1) and 110(a )(2), a SIP submittal should include a detailed explanation of how the state's SIP meets each applicable requirement of section 110(a)(2). Where a SIP submittal does not meet the requirements of those CAA provisions, a letter should be sent to the state notifying it of the finding of incompleteness. EPA's criteria for determining the completeness of a SIP submittal are set out in EPA's regulations at 40 CFR Part 51, Appendix V . A state's obligation to make an infrastructure SIP submittal that addresses one or more infrastructure SIP elements cannot be fulfilled through a letter from the state that merely promises a future submittal.

EPA has determined that the elements and sub-elem ents of section 110(a)(2) with respect to the 2008 Pb NAAQS are, for the most part, severable. For example:

 SIP submittals that address some but not all elements or sub-elements of section 110(a)(2) should be found incomplete for the unaddressed elements or subelements.

 If EPA makes a finding of failure to submit an infrastructure SIP, that finding will only apply to the elements or sub-elements that were not addressed by the state’s

## infrastructure SIP revision. In order for EP A to make a determination as to whether a subsequent infrastructure SIP submittal is complete, the state only needs to submit those elements that were earlier found not to have been submitted.

A finding that an infrastructure SIP submittal is complete does not necessarily mean that the submittal is approvable, because the completene ss review only addresses whether the state has provided information sufficient to warrant formal EPA review for approvability. Section 110(k) directs EPA to take final action on a SIP submittal w ithin one year after the SIP is determined to be complete. If EPA makes an affirmative finding that a SIP submittal is complete, the date of the finding establishes the "completeness date" for the submittal; if EPA makes no finding the submittal is deemed complete, by operation of law, on the date six months after the submittal date. Actions on a SIP submittal may include ap proval (full, partial, or conditional) and disapproval (full or partial).

The obligations of EPA to promulgate a fede ral implementation plan (FIP) are set out in section 110(c) of the CAA. EPA's obligation to pr omulgate a FIP for a state is triggered if EPA takes any of the following actions associated with the required SIP: 1) EPA makes a finding that a state has failed to make a SIP submittal; 2) EPA makes a finding that a state has made an incomplete submittal; or 3) EPA disapproves a SIP submittal. If EPA takes one of these actions, section 110(c) directs EPA to take further ac tion within two years, under what is commonly referred to as the "FIP clock." In order to remove EPA from the FI P obligation, a state SIP submittal must meet the applicable requirements and be approved by EPA.

We acknowledge that there have be en significant delays in issuing this guidance. This is due in part to legal and other issues ra ised by outside parties over the pa st two years regarding actions on a range of infrastructure SIP issu es for other pollutants. It was our desire to address as many of those issues as possible in this memorandum. We recognize that many states have been moving forward to develop these infrastruc ture plans, and this guidance is intended to help them complete this process. We will work to assist states in the development and completion of these plans so they may be submitted as soon as possible.

Please ensure that the appropriate air agency offi cials for states in your Region are made aware of this guidance.

For Further Information If you have any questions concerning this gui dance, please contact Mi a South at (919) 541-5550 or by email at south.mia@epa.gov , or Lisa Sutton at ( 919) 541-3450 or by email at sutton.lisa@epa.gov

.
Attachment

cc: Anna Marie Wood Scott Mathias Rich Damberg Kevin McLean Sara Schneeberg Geoffrey Wilcox David Orlin

## Attachment

Guidance on Section 110 Infrastructure SIPs for the 2008 Pb NAAQS

Table of Contents

Required Section 110 Infrastructure Elements .......................................................................... 1 Section 110(a)(2)(A): Emission limits and other control measures .......................................... 2 Section 110(a)(2)(B): Ambi ent air quality monitori ng/data system ......................................... 4 Section 110(a)(2)(C): Pr ograms for enforcement, PSD, and NSR ............................................ 5 Section 110(a)(2)(D)(i): Intersta te transport provisions ............................................................ 7 Section 110(a)(2)(D)(ii): In terstate and International transport provisions ........................... 9 Section 110(a)(2)(E): Adequate personnel, funding, and authority ....................................... 10 Section 110(a)(2)(F): Stationary source monitoring and reporting ....................................... 12 Section 110(a)(2)(H): Fu ture SIP revisions............................................................................... 14 Section 110(a)(2)(I): No nattainment area plan or plan revision Under Part D .................... 14 Section 110(a)(2)(J): Consultation with gov ernment officials, public notification, PSD and visibility protection ......................................................................................... 14 Section 110(a)(2)(K): Air quality modeling/data ..................................................................... 15 Section 110(a)(2)(L): Permitting fees ........................................................................................ 16 Section 110(a)(2)(M): Consultati on/participation by affected local entities .......................... 16

## Attachment

1 Required Section 110 Infrastructure SIP Elements

The Clean Air Act (CAA) directs states to a ddress basic State Implementation Plan (SIP) requirements to implement, maintain and enforce the national ambient air quality standards (NAAQS). Under CAA sections 110(a)(1 ) and 110(a)(2), states are to submit these SIPs within three years after promulgation of a new or revised standard. 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 these have been in place since the initi al SIPs were submitted in response to the 1970 CAA. It is the responsibility of each st ate to review its air quality management program's infrastructure SIP provisions in light of each new or revised NAAQS. States should review and revise, as appropriate, their existing infrastructure SIPs to ensure that they are adequate to address the 2008 Pb NAAQS . States should, in consultation with U. S. Environmental Protection Agency (EPA) Regional Offi ces, follow applicable EPA regulations governing
infrastructure SIP submittals in 40 CFR Part 51 - e.g., Subpart I ("Review of New Sources and Modifications"), Subpart J (Ambient Air Quality Surveillance), Subpart K (Source Surveillance), Subpart L (Legal Authority), Subpart M (" Intergovernmental Consultation"), Subpart O (Miscellaneous Plan Content Requirements), Subpart P ("Protection of Visibility"), and S ubpart Q ("Reports"). For many infrastructure SIP elements, a SIP subm ittal should refer to and include citations to relevant state regulations. See guidance below regard ing elements (F), (H), (J), and (M). For EPA's general criteria for infrastructure SIP submittals, refer to 40 CFR Part 51, Appendix V , "Criteria for Determining the Completeness of Plan Submissions." For example, in accordance with Appendix V, pa ragraph 2.1(d), an infrastructure SIP submittal would include a copy of the actual regulation that the state is submitting for approval and incorporation by reference into its SIP, if a c opy of that regulation has not alrea dy been provided by the state. Pursuant to section 110(a), states must provi de reasonable notice and opportunity for public hearing for all infrastructure SIP submittals. Purs uant to EPA's regulations at 40 CFR Part 51, an
infrastructure SIP submittal will include a certificati on by the state that the pub lic hearing was held in accordance with EPA's procedural re quirements for public hearings. See 40 CFR Part 51 Appendix V 2.1(g) and 40 CFR 51.102 . If a state believes that its existing approved infrastructure SIP is adequate with regard to specific elements, then the state's SIP submission may be a certi fication that the existing SIP contains provisions addr essing the relevant section 110(a)(2) infrastructure elements as applicable for

## Attachment

2 the 2008 Pb NAAQS. Such certification ( e.g. , in the form of a letter to EP A from the Governor or her/his designee) should cite the applicable provisions in the existing infrastr ucture SIP and provide a specific description of how compliance with each element is achieved. A state’ s certification made in connection with the 2008 Pb NAAQS should be included in a SIP submittal only after the state has provided public notice and opportunity for public hearing on its certification. Section 110(a)(2) of the CAA directs all states to develop and maintain an air quality management
infrastructure that includes enforceable emissi on limitations, an ambient monitoring program, an enforcement program, air quality modeling capabilitie s, and adequate personnel, resources, and legal authority. Section 110(a)(2)(D) also directs SIPs to prevent emissi ons from within the state that contribute significantly to nonattainment in any other state, or that in terfere with maintenance in any other state, or that interfere with programs under part C of the CAA to prevent significant deterioration of air quality or to protect visi bility in any other state.
Two elements identified in sec tion 110(a)(2) are not governed by the 3-year submission deadline of section 110(a)(1). The elements pertain to part D, in Title I of the CAA, which addresses plan requirements for nonattainment areas. Therefore, the fo llowing section 110(a)(2) elements are considered by EPA to be outside the scope of infrastructure SI P actions: (1) section 110( a)(2)(C) to the extent it refers to permit programs (known as "nonattai nment new source review") under part D; and (2) section 110(a)(2)(I) in its entirety. EPA does not expect infrastructure SIP submittals to include regulations or emission limits developed specifically for attaining the relevant standard. Those submittals are due at the time the nonattainment area planning el ements are due (18 months following designation). Except as described above, subs ections (A) through (M) of se ction 110(a)(2) set forth the infrastructure elements that a SIP should address, in order to be approved by EPA. The elements are presented below in context of the 2008 Pb NAAQS.

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

“Each such plan shall [. . .] include enfor ceable emission limitati ons and other control measures, means, or techniques (including econo mic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropria te to meet the applic able requirements of this chapter.”

## Attachment

3 EPA would not expect infrastr ucture SIP submission to iden tify nonattainment area emission
controls. Emissions limitations and other control measures to attain the 2008 NAAQS in areas designated nonattainment for the 2008 Pb NAAQS are due on a different schedule from the section 110
infrastructure elements and will be reviewed and acted upon through a separate process. However, the infrastructure SIP submission may include a list or table referencing any Pb emission reduction measures adopted and relied on by the state to meet other CAA requirements, such as maintenance of the 2008 NAAQS. There are two other issues that generally fall under this particular elemen t of section 110(a)(2)(A) for which we provide general guidan ce at this time. They are: (1) how states would need to address previously approved emissions limitations that may treat startup, shutdown and malfunction (SSM) events inconsistently with our longstanding guidance on excess emissions; and (2) how states would need to address previously approved va riance provisions and "director's di scretion" provisions that do not comport with EPA policy. We are discussing options for resolving next steps to be taken on these issues, taking into consideration several ac tions on state provisions relating to SSM and director's discretion in which EPA is currently engaged. 1


## Nevertheless, in the meantime EPA wishes to provi de infrastructure SIP guidance to the extent possible. Therefore, as general guidance, EPA can advise that states not make infrastructure SIP submissions that rely on previously approved but potentially flawed provi sions. Further, we wish to make
clear that for infrastructure SIP submissions such as for the 2008 Pb NAAQS, any "new" ( i.e., not already SIP-approved) provisions should be consistent with EPA's longstandi ng policies on SSM and director's discretion, which are briefl y summarized as follows. 2 

## Because excess emissions might aggravate air quality so as to preven t attainment and mainte nance of the NAAQS and co mpliance with other CAA requirements, EPA would view all periods of excess em issions as violations of the applicable emission limitation. Therefore, new provisions as part of an approvable SIP submittal could not exempt from enforcement excess emissions that may occur at a fac ility during a period of star tup or shutdown. Further,

1 

### See, e.g. , SIPs for Utah and North Da kota. EPA has also proposed to enter into a settlement agreement that would obligate EPA to respond by August 31, 2012, to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 39 states' SIPs. (See notice published in the Federal Register on September 1, 2011, at 76 FR 54465.)
2 

### For further description of EPA's policy on SSM and director's discretion, see, e.g. , a memorandum dated September 20, 1999, entitled, "State Implementation Plans: Policy Regard ing Excess Emissions During Malfunctions, Startup, and Shutdown," from Steven A. Herman, A ssistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation.

## Attachment

4 new provisions as part of an approvable SIP submitta l could not automatically exempt from enforcement excess emissions claimed to result from an equipment malfunction. In addition, ne w provisions as part of an approvable SIP submittal could not allow a state ai r director the discretion to determine whether an
instance of excess emissions is a violation of an em ission limitation, because such a determination could
bar EPA and citizens from enforc ing applicable requirements.

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

“Each such plan shall [. . .] provide fo r establishment and operation of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyz e data on ambient air quality, and
(ii) upon request, make such data available to the Administrator.”
To meet section 110(a)(2)(B) requirements for this NAAQS, the state’ s monitoring system should:

 Monitor air quality for Pb at appropriate locati ons throughout the state using EPA approved Federal Reference Method or equivalent monitors, in accordance with recent revisions to the Pb monitoring network requirements. See the Lead Ambient Air Monitoring Requirements, December 14, 2010

.

 Submit data to EPA’s Air Quality System (AQS) in a timely manner in accordance with EPA’s Air Quality data reporting regulations. See 40 CFR 51.320

.

 Submit approvable annual monitoring plans to EPA that describe how the state has complied with monitoring requirements and explai n any proposed changes to the network.

 Provide the EPA Regional Office prior notification of any pl anned changes to monitoring sites or to the network plan.

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5 Section 110(a)(2)(C): Programs for enforcement, PSD, and NSR

“Each such plan shall [. . .] include a progr am to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambi ent air quality standards are achieved, including a permit program as required in parts C and D of this subchapter.”

The Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NNSR) programs contained in parts C and D of Title I of the CAA, and collectively referred to as the major New Source Review (NSR) program, govern prec onstruction review and permitting of any new or modified major stationary sources of air pollutants regulat ed under the CAA as we ll as any precursors to the formation of that pollutant when iden tified for regulation by the Administrator. 3 

## The EPA rules addressing these programs can be found generally at 40 CFR 51.166 and 40 CFR 52.21 (for PSD) , and 40
CFR 51.165
, 40 CFR 52.24 , and Part 51, Appendix S (for NNSR)

. Essential to the approvability of infrastructure SI P elements (C) and (J) is the approvability of a state’s PSD program in its entirety. To meet sec tion 110(a)(2)(C) requirements for the Pb NAAQS, the
infrastructure SIP submittal should:

 Reference relevant state and fe deral regulations that provide for enforcement of Pb emission
limits and control measures.

 Identify the various state regul ations that govern permitting of new and modified stationary sources (minor and major) of Pb in the state.

 Incorporate its PSD program regul ations to address any applicable EPA amendments to Pb PSD rules within 3 years from the date of such amendments. For areas subject to a state’s SIP-approved PSD program, the stat e should demonstrate that it is authorized to implement its existing PSD permit program to ensure that the construction and modification of major stationary sources does not cause or contribute to a violati on of the Pb NAAQS. The state's PSD program should ensure that new or modified sources will apply the Be st Available Control Technology to reduce Pb emissions in accordance with CAA sections 165 (a)(3) and (4).

3 

### The terms “major” and “minor” categorize a stationary sour ce, for NSR applicability purposes, in terms of an annual emissions rate (tons per year, tpy) for a pollutant. Generally, a minor source is any source that is not “major.” “Major” is defined in the applicable NSR regulations—PSD or nonattainment NSR.

## Attachment

6 States need to have in place a PSD program that applies to all regulated NSR pollutants, including GHG. The state's PSD program should appl y to sources that emit greenhouse gases (GHG) in accordance with EPA's Tailoring Rule. 4 

## Among other things, the state' s PSD program must either: (i) limit PSD applicability to GHG-emitting sources by a dopting the applicability thresholds included in the Tailoring Rule; or (ii) adopt lower GHG thresholds and show that the stat e has adequate personnel and funding to administer and implement those lower thresholds. Otherwise, the state is directed to remove from EPA’s consideration for approval that portion of the SIP (or SIP submission) for which EPA rescinded our previous approval of the PSD progr am (in a rulemaking referred to as the "GHG PSD SIP Narrowing Rule"). 5 

## To request such removal, a state may choose to follow the example of the letter request submitted by South Carolina. 6


## Until a state has adopted a comprehensive prog ram, its infrastructure SIP would not be approvable with respect to CAA Section 110(a)(2)(C) or (J). If a state lacks a SIP-approved PSD program, it is subject to a federal implementation plan (FIP), and majo r stationary sources within its jurisdiction are subject to the fede ral PSD requirements in 40 CFR 52.21. So me states are subject to a FIP for PSD permitting of all regulated NSR pollutants, and fewer states are subject to a FIP for PSD permitting that is limited to GHG. For sources subj ect to a FIP for PSD permitting, either the EPA Regional Office or the state acting as EPA's delega te is the permitting authority. EPA recognizes that many states have been implementing a PSD FIP program for some time. When a state is already subject to a FIP for PSD permitting (whether or not the stat e has been delegated author ity to implement the PSD FIP), and EPA disapproves this element of the stat e's infrastructure SIP submittal, we expect the permitting authority would simply continue implem entation of the PSD FIP, and EPA would have no additional FIP obligations. In addi tion, the state would not be subj ect to any potential mandatory
sanctions in connection with such disapproval, as such sanctions do not apply to infrastructure SIP
deficiencies. Minor NSR programs are subject to the statutor y requirements in sec tion 110(a)(2)(C) of the CAA which requires “...regulation of the modification and construction of any stationary source ...as

4 

### Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 2010). 5 

### Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas-Emitting Sources in State Implementation Plan s; Final Rule, 75 FR 82536 (December 30, 2010).
6 

### South Carolina's letter request can be found at http://www.regulations.gov , at EPA-R04-OAR-2010-0721-0006.

## Attachment

7 necessary to assure that the [NAAQS] are achieved.” These programs should be es tablished in each state within three years of th e promulgation of a new or revised NAAQS, and may be particularly important because virtually all sources of lead are minor sources. To date, EPA has not proposed to amend the PSD regulations with regard to the Pb NAAQS. EPA does recognize that certain prov isions of these regulations still may need to be evaluated and potentially revised in light of the 200 8 Pb NAAQS. See for example, provisions 40 CFR Part 51.166(i)(5)(i)(g) (“the emissions increase of the pollutant from a new stationary source or the net emissions increase of the pollutant from a modification would cause, in any area, air quality impacts less than the following amounts: ... Lead—0.1 μg/m 3 

## , 3-month average);” 40 CFR 166 (b)(23)(i) ("Significant means, in reference to a net emissi ons increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: ... Lead: 0.6 tpy”). EPA also is planning to issu e Pb modeling guidance to supplement the guidance contained in EPA’s Guideline on Air Quality Models ( 40 CFR Part 51, Appendix S ), which will assist states and prospective sources in carrying out the analyses necessary to satisfy the PSD requirements for
Pb.

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

“Each such plan shall [... ] contain adequate provisions:

(i) prohibiting, consistent with the provis ions of this subchapter, any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will-

(ii) contribute significantly to nonattainment in, or

(iii) interfere with maintenance by, any othe r state with respect to any such national primary or secondary ambien t air quality standard, or interfere with measures required to be includ ed in the applicable implementation plan for any other state under part C of this subchapter to prevent significant deteriorat ion of air quality to protect visibility.”

Section 110(a)(2)(D)(i) provides for infrastructu re SIPs to include provisions prohibiting any source or other type of emissions act ivity in one state from contributi ng significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state. (The preceding requirements, from subsection (2)(D)(i)(I), respectively refer to what may be called prongs 1 and 2.) Further, this section

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8 directs infrastructure SIPs to incl ude provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent signifi cant deterioration of air quality, or from interfering with measures required to protect visibility ( i.e. , measures to address regional haze) in any state. (The preceding requireme nts, from subsection (2)(D)(i)(II), respectively refer to what may be called prongs 3 and 4.) The physical properties of Pb prevent Pb emi ssions from experiencing the same travel or formation phenomena as PM 2.5 

## or ozone. More specifically, th ere is a sharp decrease in Pb concentrations, at least in the coarse fracti on, as the distance from a Pb source increases. Accordingly, while it may be possible for a sour ce in a state to emit Pb in a lo cation and in quantities that may contribute significantly to nonattainment in, or inte rfere with maintenance by, any other state, EPA anticipates that this would be a rare situation, e.g., where large sources are in cl ose proximity to state
boundaries. EPA believes that requirements of subsection (2 )(D)(i)(I) (prongs 1 and 2) could be satisfied through a state’s assessment as to whether or not emissi ons from Pb sources located in close proximity to
their state borders have emissions th at impact the neighboring state such that they contribu te significantly
to nonattainment or interfere with maintenance in that state. 7 

## The states’ conclusi ons could be supported by the technical information or data used to support th e initial area designations for Pb. Therefore, to address prongs 1 and 2 of section 110(a)(2)(D)(i)(I) the state’s submission should include an explanation in support of the state’s conclusion and, if applic able, should address the impact in their submittal. Under section 110(a)(2)(D )(i)(II), the PSD sub-element (prong 3) may be met by the state’s
confirmation in an infrastructure SIP submission th at new major sources and major modifications in the state are subject to PSD and (if th e state contains a nonattainment area for the relevant pollutant) NNSR programs that implement the 2008 Pb NAAQS. 8


## With regard to the requirement of prong 4, i.e. , visibility under s ubsection (2)(D)(i)(II), significant impacts from Pb emission s from stationary sources are expected to be limited to short distances from the source and most, if not all Pb sta tionary sources are located at distances from Class I

7 

### For example, EPA’s experience with initial lead designations su ggests that sources that emit less than 0.5 tpy or that are located more than 2 miles from a state border generally appear unlikely to contribute significantly to nonattainment in another state. 8 

### Memorandum issued by William T. Harnett, Director, OAQPS/AQPD, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 

### ) National Ambient Air Quality Standards (NAAQS),” dated September 25, 2009.

## Attachment

9 areas such that visibility impacts would be negligib le. Although Pb can be a component of coarse and fine particles, Pb generally comprises a small fracti on of coarse and fine particles. Furthermore, when evaluating the extent that Pb could impact visibilit y, Pb-related visibility impacts were found to be insignificant (e.g., less than 0.10%) . 9 

## Although we anticipate that Pb emissions will contribute only negligibly to visibility impairment at Class I areas, the state’s subm ission should include an explanation in support of the state’s conclusi on (and, if applicable, should addr ess the impact in their submittal). Where a state’s regional haze SIP has been approved as meeting all current obligations, a state may point to its approved plan to demonstrate that it meets the requirements of prong 4.

Section 110(a)(2)(D)(ii): Interstate a nd International transport provisions

“Each such plan shall [. . .] contain adequate provisions insuring compliance with the applicable requirements of sec tions 115 or 126 (b) that invol ve Pb emissions (relating to interstate and internatio nal pollution abatement).”

Section 126(a) of the CAA directs each SIP to include provisions requiring a new or modified source to notify neighboring states of potential impacts from the source . States with SIP-approved PSD programs should have a regulatory provi sion in place, consistent with 40 CFR 51.166(q)(2)(iv) , that requires such notification of othe r state and local agencies. States relying on the federal program requirements of 40 CFR 52.21(q) , which provide for notification of a ffected state and local air agencies, to satisfy this requirement have programs that ar e technically deficient an d not approvable. Although these programs are deficient and these states have not “submitted” anything to EPA, EPA would not be required to take further action with respect to this element because the federal rules represent a FIP that fully addresses the notification i ssue. In addition, mandatory sanctions would not apply because the deficiencies are neither with regard to a required s ubmittal under part D nor in response to an SIP call
under CAA Section 110(k)(5) . As described in this infrastructure SIP guidance for element (C), such states remain obligated to adopt and submit a PSD pr ogram for EPA approval that applies to all regulated NSR pollutants, including GHG. Until a state provides such a program, its infrastructure SIP would not be approvable with respect to section 110( a)(2)(D)(ii).

9 

### Analysis by Mark Schmidt, OAQPS, “Ambient Pb’s Contri bution to Class 1 Area Visibility Impairment,” June 17, 2011.

## Attachment

10 Sections 126(b) and 126(c) of the CAA affect a st ate only if the Administra tor has been petitioned to make a finding of violation that is related to either interstate tran sport or international transport of emissions from sources in the state. Thus, unless a st ate has been the subject of such a petition, the state has no continuing obligation unde r sections 126(b) or 126(c).
Section 115 of the CAA authorizes the Administrator to require a state to revise its SIP under
certain conditions to alleviate inte rnational transport. Because there are no pending actions pursuant to Section 115 of the CAA, EPA has no e xpectation that the state would n eed to submit anything in regards
to Section 115 at this time.

Section 110(a)(2)(E): Adequate pers onnel, funding, and authority

“Each such plan shall [. . .] provide:
(i) necessary assurances that the state (or, except where the Administrator deems inappropriate, the general purpose local go vernment or governments, or a regional agency designated by the state or general pur pose local governments for such purpose) will have adequate personnel, funding, and authority under state (and, as appropriate, local) law to carry out such implementation plan (and is not prohibi ted by any provision of federal or state law from carrying out such implementation plan or portion thereof),
(ii) requirements that the state comply w ith the requirements respecting state boards under section 128,
(iii) necessary assurances that, where th e state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provision.”

The infrastructure SIP should assu re that the state has adequate personnel and funding to implement the Pb NAAQS. See EPA's regulations at 40 CFR Part 51, subpart M ("Intergovernmental Consultation") and subpart O ("Miscellaneous Plan Content Requirements"). For example:

 In accordance with EPA's regulations at subpart M, the infrastructure SIP should identify the organizations that will participate in devel oping, implementing, and enforcing the SIP as a whole. The infrastructure SIP should identify the responsibilities of such organizations and include related agreements among the organizations. See 40 CFR 51.240 , "General plan requirements." In accordance with EPA's regulat ions at subpart O, the infrastructure SIP should describe resources for carrying out Stat e programs and requirements. Resources to be

## Attachment

11 described include: (1) thos e available to the state (and local agencies, where appropriate) as of the date of infrastructure SIP submittal; (2) those considered necessary during the 5 years following infrastructure SIP submittal; and (3) projections regarding acquisition of the
described resources. See 40 CFR 51.280 , "Resources." Further, the infrastructure SIP should assure that the state has adequate authority under its rules and regul ations to carry out the state's SIP obligations with respect to the 2008 Pb NAAQS and to revise the SIP as necessary. See EPA's regulations at 40 CFR Part 51, s ubpart L (“Legal Author ity”) and subpart O (“Miscellaneous Plan Content Requirements ”). For example:

 In accordance with EPA's regulations at subpart L, the infrastructure SI P should show that the state has the legal authority to carry out the plan; the provisions of the state's laws or regulations that provide that auth ority are to be specifically identified in the infrastructure SIP, and copies of the laws or regulations should be included in the infrastructure SIP submittal

. See 40 CFR sections 51.230 through 51.231

.

 In accordance with EPA's regulations at subpart O, the infrastructure SIP submittal should include copies of rules and re gulations that show that the state has adopted the emission limitations and other measures necessary for attainment and maintenance of the 2008 Pb NAAQS. See 40 CFR 51.281, "Copies of rules and regulations." In accordance with sub-element (ii), the infrastr ucture SIP should include requirements that the state comply with CAA 128, "State Boards ." 10 

## Section 128 of the CAA states: Sec. 128. (a) Not later than the date one year a fter the date of the enactment of this section, each applicable im plementation plan shall cont ain requirements that –
(1) any board or body which approves permits or enforcement orders under this Act shall have at least a majority of memb ers who represent the public interest and do not derive any significant portion of their inco me 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 sim ilar powers be adequately disclosed.

10 

### EPA's operative guidance on these SIP requirements can be found in a memorandum dated March 2, 1978, from David Bickart, Deputy General Counsel, to Regional Air Directors, entitled “Guidance to State for Meeting Conflict of Interest Requirements of Section 128.”

## Attachment

12 A State may adopt any requirements respecting co nflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) and (2), and the Administrator shall approve any such more stringent requirements subm itted as part of an implementation plan.
Finally, the infrastructure SIP should assure that the state re tains responsibility for ensuring adequate implementation of the stat e's SIP obligations with respect to the 2008 Pb NAAQS. A state may assign responsibility for carrying out a portion of its SIP to a state government agency other than the state air pollution control agency, if th e SIP demonstrates that such other agency has the necessary legal authority. Similarly, the state may au thorize a local agency to carry out the SIP or portion of the SIP within the local agency's ju risdiction, if the SIP demonstrates that the local ag ency has the necessary legal authority; however, the authorizing state is not relieved of responsibil ity for carrying out the SIP. See 40
CFR 51.232 , "Assignment of legal author ity to local agencies."

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

“Each such plan shall [. . .] require, as may be prescribed by the Administrator:
(i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources,
(ii) periodic reports on the nature an d amounts of emissions and emissionsrelated data from such source
(iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this c hapter, which reports shall be available at reasonable times for public inspection.”

The infrastructure SIP should provide citations to the state's regulations for source monitoring, recordkeeping, and repor ting requirements applicable to Pb, such as the Air Emission Reporting Rule (AERR)

. In accordance with EPA regulations at 40 CFR Part 51, subpart K ("Source Surveillance") , the infrastructure SIP should identify St ate requirements that provide for monitoring the status of sources' compliance with the Pb NAAQS. For example, th e SIP should include provisions for owners or operators of stationary sources to maintain records of emissi ons and other information as may be necessary to enable the state to determine whether the sources are in complia nce, and the SIP should

## Attachment

13 further include provisions for the sources to periodi cally report that inform ation to the state. See 40
CFR 51.211 , "Emission reports and recordkeeping." In accordance with EPA regulations at 40 CFR Part 51, subpart A ("Air Emissions Reporting Requirements") and subpart Q ("Repor ts"), the responsible state agency should analyze the Pb emissions data and correlate such data with applicable emi ssion limitations or standards. The infrastructure SIP should identify state requirements providing for periodic reporting of emissions inventory data by the state to the Administrator (through th e appropriate Regional Office). See 40 CFR 51.321 . All reports should be made available to the public.

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

“Each such plan shall provide for authority com parable to that in section 303 of this Title and adequate contingency plans to implement such authority.”

Section 303 of the CAA provides au thority to the EPA Administrato r to restrain any source from causing or contributing to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” As dire cted under section 110(a)(2)(G), each SIP submittal should specify authority, rested in an appr opriate official, to restrain any s ource from causing or contributing to Pb emissions which present an imminent and substantia l endangerment to public heal th or welfare, or the environment. Based on EPA’s experience to date with the Pb NAAQS and de signating Pb nonattainment areas, EPA expects that such an even t would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situ ation at a relatively large source of lead. Accordingly, EPA believes that the central components of a cont ingency plan would be to reduce em issions from the source at issue (if necessary by curtailing operations) and public communication as needed. In addition, if a state believes, based on its inventory of lead sources and historic ambient monitoring data, that it does not need a more specific contingency plan beyond having authority to restrain any source from causing or contributing to an imminent and substantial endangerm ent, then the state could provide such a detailed rationale in place of a specific co ntingency plan. EPA notes that 40 CFR Part 51, subpart H (51.150- 51.152) and 40 CFR, Part 51, Appendix L do not apply to Pb, but States may wish to consult subpart H and Appendix L as illustrative guidance of what c onstitutes appropriate con tingency planning for other pollutants.

## Attachment

14 Section 110(a)(2)(H): Future SIP revisions

“Each such plan shall [. . .] pr ovide for revision of such plan—
(i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or th e availability of improved or more expeditious method s of attaining such standard, and
(ii) except as provided in paragraph (3)(C ), whenever the Administrator finds on the basis of information available to the Ad ministrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requi rements established under this chapter (CAA).”

The infrastructure SIP should provide citations to the state regulatory pr ovisions requiring the state to 1) revise its section 110 pl an from time to time as may be neces sary to take into account revisions of such primary or secondary NAAQS or the availabi lity of improved or more expeditious methods of attaining such standards; and 2) revi se its section 110 plan in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS. See 4 0 CFR 51.104 , “Revisions”.

Section 110(a)(2)(I): Nonattainment area plan or plan revision Under Part D

“Each such plan shall [. . .] in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D of this subchapter (relating to nonattainment areas).”

As noted above, EPA would not expect infrastr ucture SIP submissions to address subsection 110(a)(2)(I). Nonatta inment area plans required under part D ar e required on a different schedule from
the section 110 infrastructure elements and will be reviewed and acted upon through a separate process.

Section 110(a)(2)(J): Consultation with governme nt officials, public notification, PSD and visibility protection

“Each such plan shall [. . .] meet the applicab le requirements of section 121 of this Title (relating to consultation), sec tion 127 of this Title (relati ng to public notification), and part C of this subchapter (relating to prevention of significant deterioration of air quality and visibility protection).”

## Attachment

15 The infrastructure SIP should reference the state ru les that provide a proce ss of consultation with general purpose local governments, designated organi zations of elected offici als of local governments, and any federal land manager having authority over fe deral land to which the plan applies, consistent with the requirements of CAA § 121. The infrastructure SIP should provide citations to regulations requiring the state to regularly notify the public of: instances or areas in whic h any primary NAAQS was exceeded; the associated health hazards; and ways in which the public can partic ipate in regulatory and other efforts to improve air quality. See 40 CFR 51.285 , “Public notification”. Pursuant to the CAA, an infrastr ucture SIP should identify state re quirements that allow a state to implement any new PSD requirement s that are triggered upon the e ffective date of any new NAAQS. However, sources in a state may be subject to the federal PSD requirements pursuant to 40 CFR 52.21 , if a state does not have a SIP-approved PSD program. As described in this infrastructure SIP guidance for element (C), such states remain obligated to a dopt and submit a PSD program for EPA approval that applies to all regulated NSR pollutants, includi ng GHG. Until a state provides such a program, its infrastructure SIP would not be approvable with respect to CAA Section 110(a)(2)(J). With regard to the requirement of the plan to meet the applicable requirements for visibility protection, EPA would not expe ct to treat this provision as applicab le for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibi lity protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, in the event of the establishment of a new primary NAAQS, the visibility protection and regional haze program requirements under part C do not change. Thus, EPA concludes there are no new applicable visibility protection obligations under section 110(a)(2)(J) as a re sult of the 2008 Pb NAAQS.

Section 110(a)(2)(K): Air quality modeling/data

“Each such plan shall [. . .] provide for—
(i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of pr edicting the effect on ambient air quality of any emissions of any air pollutant for which the Administ rator has established a national ambient air quality standard, and
(ii) the submission, upon request, of data re lated to such air quality modeling to the Administrator.”

## Attachment

16 The infrastructure SIP should demonstrate that th e state has the authority and technical capability to conduct air quality modeling in order to assess the e ffect on ambient air quality of relevant pollutant emissions; and that the state can provide releva nt data as part of the permitting and NAAQS implementation processes. The infr astructure SIP should also identif y state regulations providing that, upon request, the state will submit current and future da ta relating to such air quality modeling to the Administrator. EPA anticipates that the predominan t type of air quality modeling to be conducted with respect to implementing the Pb NAAQS will be source-or iented dispersion modeling with models such as

AERMOD.

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

“Each such plan shall require the owner or operator of each majo r stationary source to pay to the permitting authority, as a conditi on of any permit required under this chapter, a fee sufficient to cover—
(i) the reasonable costs of reviewing and acting upon any application for such a permit, and
(ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enfo rcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with resp ect to such sources by the Administrator’s approval of a fee program under subchapt er Title) V of this chapter.”

The infrastructure SIP should provide citations to the regulations providing for collection of permitting fees under the state’s EPA- approved Title V permit program. See 40 CFR 70.9 (“Fee determination and certification”), and 40 CFR Part 70 , Appendix A, “Approval Status of State and Local Operating Permits Programs”.

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

“Each such plan shall [. . .] provide for consultation and participation by local political subdivisions affected by the plan.”

## Attachment

17 To satisfy this element (M), and in accordance with EPA's regulations at 40 CFR Part 51
, subpart M ("Intergovernmental Consu ltation"), the infrastructure SIP should identify the organizations that will participate in developing, implementing, and enforcing the state air quality program. Further, the infrastructure SIP should identify the responsibilities of such or ganizations and include related agreements among the organizations. See 40 CFR 51.240 , "General plan requirements." The infrastructure SIP should identify policies or procedures requiring cons ultation and participation by local political subdivisions affected by the infrastructure SIP. For example, the infrastructure SIP should provide a citation to the state re gulations that provide notice and opportunity for public hearing in accordance with EPA regulations at 40 CFR Part 51 , subpart F ("Procedural Requirements"). Prior to submitting an infrastructure SIP revision or a compliance schedule, a state must provide notice, provide the opportunity to submit written co mments, and allow the public the opportunity to request a public hearing. See 40 CFR 51.102 , "Public hearings."

### 11/7/2011

1

MEMORANDUM

SUBJECT: The Estimated Contribution of Ambient Lead (Pb) to Class I Area Visibility Impairment

FROM: Mark Schmidt, OAR/OAQPS/AQAD

TO: File

Overview:

This memorandum provides rough estimates of Pb-associated visibility impairment levels in mandatory Class I Federal areas, and the corresponding proportions of those estimated levels to associated total visibility impairment. Pertinent background information, underlying analysis assumptions, and descriptions of the implemented analysis tasks are summarized in bullet form below:

The Clean Air Act establishes a Regional Haze Program which is intended to improve and protect visibility in mandatory Class I Federal area s. Mandatory Class I Federal areas include certai n national parks (larger than 6000 acres), wilderness areas (larger than 5000 acres)
, national memorial parks (over 500 acres ) , and other areas of special national and cultural significance. The National Park Service operates an ambient air monitoring program called “ IMPROVE ” (Interagency Monitoring of Protected Visual Environments) with a primary objective of characterizing visibility impairment in Class 1 and other similar areas. The IMPROVE program has developed assorted equations for estimating visibility impairment in mostly non-urban environments . T he original, and still widely accepted IMPROVE formula for estimating visibility impairment
, calculates “ 24-hour average total light extinction ” ( in units of inverse megameters ) from inputs of 1) 24-hour average concentrations of select speciated PM 2.5 

### components (some of which are used in reported form in the equation and others which are transformed to the explicit formula variables via additional simple equations; 2) 24-hour average concentration estimates of PM 10 -2.5 

### ( a.k.a., “ PM -coarse ” ), and 3) estimates of the hygroscopic impacts of relative humidity on associated ambient inputs, specifically sulfate and nitrate. The calculated light extinction formula is:

Wh ere:

PM b ext: i = PM -related light extinction in Mm -1 for day i ; and Sulfate i = ammonium sulfate (reported concentration of sulfate ion * 1.375) for day i ; and Nitrate i = ammonium nitrate (reported concentration of nitrate ion * 1.29) for day i ; and OM i = organic mass (blank-adjusted reported concentration of organic carbon * 1.4) for day i ; and EC i = the reported concentration of elemental carbon for day i ; and FS i = fine soil (reported concentration of Al * 2.20 + reported concentration of Si * 2.49 +

reported concentration of Ca * 1.63 + reported concentration of Fe * 2.42 + reported concentration of Ti * 1.94) for day i ; and PMc i = PM _coarse (reported PM 10 concentration

– reported PM 2.5 concentration) for day i ; and 10 = the “Rayleigh” factor which is assumed light reflection from gasses ; and f (RH ) i = the RH hygroscopic growth factor as determined from the EPA climatological f(RH) database corresponding to the month of day i for the grid point closest in distance to the monitoring site.

### 11/7/2011

2

In this analysis, the above formula was used to estimate 24-hour average total light extinction at all IMPROVE sites for days (containing all formula components) in years 2007-2009. The formula was also used to estimate 24-hour average total light extinction at all Chemical Speciation Network (CSN) sites for the same time-frame (for days containing all formula components). As opposed to the IMPROVE network which encompasses monitors in predominately non-urban areas, the CSN network is mostly urban-based. CSN sites were used in addition to IMPROVE sites in order to obtain more light extinction estimates (and make the anticipated conclusion more robust), but because sulfate, nitrate, and carbon concentrations are typically much higher in urban areas than in non-urban areas and because those light extinction formula components generallyconstitute the majority share of light extinction estimates (as opposed to the fine soil and PMcoarse concentrations), the light extinction estimates calculated at CSN sites are thought to be upper bound estimates of the absolute levels expected in Class 1 areas. To estimate the portion of light extinction associated with Pb, only two of the IMPROVE formula components were used as shown below. 24-hour average concentrations of PM 2.5 

### _Pb were used as the fine soil factor, and 24-hour average concentrations of PM 10 -2.5 

### _Pb were used as the PM_coarse factor. Because PM 10 

### _Pb is not monitored at many sites, but the larger size-cut TSP_Pb is (since the Pb NAAQS is based on that indicator), TSP_Pb 24-hour average concentrations were used as a conservative surrogate for 24-hour average PM 10 

### _Pb in the computation of site-day 24-hour average PM 10 -2.5 

### _Pb. Only site-day s (2007-2009) with both PM 2.5 

### _Pb and PM 10 -2.5 

### _Pb estimates were used in the analysis.

Where:

PM _Pb b ext: i = PM _Pb-related light extinction in Mm -1 for day i ; and FS i = fine soil (reported concentration of PM2.5_Pb) for day i ; and PMc i = PM _Pb_coarse (reported PM 10 _Pb concentration

– reported PM 2.5 _Pb concentration) for day i . If


### As with the processing of calculated total light extinction, the above equation for calculated Pb

associated light extinction was applied to data for both IMPROVE and CSN sites. As with the total extinction estimates, the CSN Pb -associated extinction estimates are thought to be an upper bound as to what would be expected in Class I areas. The site-day estimates of total light extinction and Pb-associated light extinction were then matched by site-day and only site-days with both estimates present (total and Pb-associated) wereused in the subsequent summarizations. For each site-day in the matched file, the ratio of Pbassociated light extinction to total light extinction was computed. Consistent with the Regional Haze Program, the implemented summarizations focus ed on the 20 percent best and worst visibility days (as determined with regard to site-level total calculated PM light extinction). For each site in the matched file, the 20 th 

### and 80 th 

### percentiles for total calculated PM - light extinction were determined. No data completeness cutoff was imposed. The daily extinction estimates and corresponding ratio were then averaged by site-category (i.e., those where the total extinction was >= the 80 th 

### percentile, those where the total extinction was <= the 20 th 

### percentile, and those where the total extinction was in between the 20 th 

### and 80 th 

### percentiles). The site-category averages for total extinction and for Pb-associated extinction were then averaged nationally by network-category.

### 11/7/2011

3

Results and Conclusion :
The results of the described analysis are shown below. Although the CSN estimates for total light extinction and Pb-associated light extinction are significantly higher tha n the corresponding estimates at IMPROVE sites, the ratios of the two extinction estimates were quite comparable for both networks. For the high extinction days (best 20% based on site-level total extinction), ambient Pb contributed 0.01 percent, on average, to total light extinction in both networks. For the low extinction days (worst 20% based on site-level total extinction), ambient Pb contributed 0.03 percent, on average, to total light extinction in both networks. For the “other” days (where total extinction was between the 20 th 

### and 80 th 

### percentiles), ambient Pb contributed around 0.02 percent, on average, to total light extinction in both networks. In conclusion, it appears that the Pb -related visibility effects (in Class I and other areas) are insignificant in

comparison to those associated with sulfate, nitrate, and carbon PM.

### 27938 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations

that is a qualified nonpersonal use vehicle as defined in section 274(i) and § 1.274–5(k). * * * * *
Steven T. Miller, Deputy Commissioner for Services and Enforcement.

Approved: May 5, 2010. Michael Mundaca, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. 2010–11767 Filed 5–18–10; 8:45 am]

**BILLING CODE 4830–01–P**

**ENVIRONMENTAL PROTECTION AGENCY** 

**40 CFR Part 52 [EPA–R09–OAR–2009–0269; FRL–9152–6]**  **Approval and Promulgation of Implementation Plans; State of**  **California; Legal Authority**

**AGENCY :**  Environmental Protection Agency (EPA).
**ACTION :**  Final rule.

**SUMMARY :**  EPA is taking final action to clarify the contents of the applicable implementation plan for the State of California under the Clean Air Act. Specifically, EPA is taking final action to clarify that the statutory provisions submitted by California and approved by EPA in 1972 supporting the State’s legal authority chapter of the original implementation plan were superseded by a subsequent approval by EPA in 1980 of California’s revision to the legal authority chapter of the plan. EPA is taking this action to clarify the status in the California plan of the statutory provisions submitted and approved in 1972.
**DATES :**  Effective Date: This rule is effective on June 18, 2010.
**ADDRESSES :**  EPA has established docket number EPA–R09–OAR–2009–0269 for this action. The index to the docket is available electronically at http:// www.regulations.gov or 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 in the **FOR FURTHER INFORMATION CONTACT**  section.
**FOR FURTHER INFORMATION CONTACT :**  Gerardo Rios, Chief, Permits Office (AIR–3), U.S. Environmental Protection Agency, Region IX, (415) 972–3974: rios.gerardo@epa.gov.

**SUPPLEMENTARY INFORMATION :**  Throughout this document, ‘‘ we, ’’ ‘‘ us ’’ and ‘‘ our ’’ refer to EPA.
Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. Final Action IV. Statutory and Executive Order Reviews I. Proposed Action

On January 29, 2010 (75 FR 4742), under the Clean Air Act (CAA or ‘‘ Act ’’ ), we proposed to clarify that the statutory provisions submitted by California in 1972 supporting the State’s legal authority chapter of the original implementation plan were superseded by a subsequent approval by EPA in 1980 of a revision to California’s legal authority chapter of the plan.

In support of our proposed action, we provided a detailed account of the regulatory context in which the original California State implementation plan (SIP) was submitted and approved by EPA. We also described in detail the contents of the original California SIP, which consisted of 13 parts, the first part ( ‘‘ State General Plan ’’ ) of which included a chapter 7 ( ‘‘ Legal Considerations ’’ ), referred to herein as the ‘‘ legal authority ’’ chapter. The original SIP also included an appendix (entitled ‘‘ Appendix II: State Statutes and other Legal Documents Pertinent to Air Pollution Control in California ’’ ) to the legal authority chapter. The legal authority chapter included many citations to individual sections within the California Health & Safety Code (CH&SC) and other California codes, as well as citations to (then) recently approved legislation, and attorney general opinions as support for the assurance that adequate legal authority exists in the State to meet CAA and EPA SIP requirements.

As described in the proposal, the appendix to the legal authority chapter in the plan (herein, ‘‘ appendix II ’’ ) included the specific sections of California code and other legal documents cited in chapter 7, but also included many sections of California code that were not cited specifically in chapter 7. Our proposed rule describes in detail the contents of appendix II and its 14 categories of statutory and other legal documents.

In May 1972, we approved in part and disapproved in part the original California SIP. See 37 FR 10842 (May 31, 1972) and 40 CFR 52.220(b). EPA’s approval included both chapter 7 and the statutory and other documents contained in appendix II as described above.

As explained in our proposed rule, in response to EPA’s request and in response to the Clean Air Act Amendments of 1977, California undertook a comprehensive update to the California SIP. On March 16, 1979, the California Air Resources Board (ARB) submitted a revision to the legal authority chapter of the SIP, entitled

‘‘ Chapter 3—Legal Authority, Revision to State of California Implementation Plan for the Attainment and Maintenance of Ambient Air Quality Standards (December 1978), ’’ (also referred to herein as ‘‘ Chapter 3—Legal Authority ’’ or the ‘‘ revised legal authority ’’ chapter). Much like the original legal authority chapter, the revised legal authority chapter provides an overview of air pollution control in California. While the general topics covered in the revised legal authority chapter were similar to those covered in the original legal authority chapter, the discussion is completely re-organized and updated to reflect, among other things, recodifications of statutory provisions. Also, like the legal authority chapter in the original SIP, the revised legal authority chapter includes numerous citations to individual sections of the CH&SC (which had been re-numbered and re-codified since the time of the original SIP), certain citations to other California codes and other legal documents. However, unlike the legal authority chapter in the original SIP, the revised legal authority chapter, as submitted in 1979, did not include physical copies of the actual statutory provisions nor the other documents cited in the chapter. Instead, the 1979 SIP revision simply incorporates by reference the 1978 edition of California Air Pollution Control Laws as ‘‘ appendix 3–A ’’ to the chapter. Later in 1979, we proposed approval of the revised SIP ‘‘ Chapter 3— Legal Authority ’’ as an update and clarification of the 1972 SIP. See 44 FR 38912 (July 3, 1979). The following year, we took final action, effective September 10, 1980, to approve the revised legal authority chapter. See 45 FR 53136 (August 11, 1980) and 40 CFR 52.220(c)(48). Since that time, EPA has not approved any other revision to the chapter that addresses legal authority in the California SIP.

Based upon our review of the relevant provisions of the original California SIP and the related 1979 SIP revision, and the corresponding EPA approval actions, we proposed to clarify the contents of the SIP to reflect our determination that the statutory provisions and other legal documents


### 27939 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Rules and Regulations

1 ARB described the nature and purpose of that agency’s comprehensive update of the California SIP during the late 1970’s as follows: ‘‘ The [EPA] has formally requested that the [ARB] update the State of California Implementation Plan for Achieving and Maintaining the National Ambient Air Quality Standards, usually referred to simply as the ‘SIP.’ The original SIP document, submitted to EPA in 1972, has become obsolete largely because of the many modifications to Federal, state, and local air pollution rules and regulations and substantial advancements in technical aspects of air pollution prediction and control. A new SIP 1978 Working Document has been prepared as an initial response to the EPA request and contains an updated summary and description of the California SIP. * * * The SIP 1978 Working Document is a step towards replacing the obsolete 1972 SIP. ’’ See page 1 of Chapter 1 ( ‘‘ Introduction ’’ ) (April 1978) of the SIP—78 Working Document. Therefore, the revised legal authority chapter was intended by ARB, and approved by EPA, as a wholesale replacement of the original legal authority chapter, including the related statutory provisions and other materials submitted in support of the original chapter.

2 We view the revised legal authority chapter’s incorporation (as appendix 3–A) of the 1978 edition of California Air Pollution Control Laws as simply providing a general reference to where the statutory citations in the chapter could be located rather than as having the effect of a literal reading of the provisions into the chapter.

3 CAA section 301(a)(1) states: ‘‘ The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter. * * *. ’’ We believe that our rule proposed herein today is necessary to clarify the contents of the California SIP and thereby carry out the functions of EPA in connection with the state’s plan.

4 As noted in the proposed rule, the status of the statutory provisions from the original SIP has recently come into question in the context of third party litigation, an EPA rulemaking action on a revision to new source review rules in the San Joaquin Valley, and a lawsuit filed against EPA challenging certain EPA actions on the premise that such actions were arbitrary and capricious if a certain statutory provision submitted and approved by EPA in connection with the original SIP remains in effect as part of the current applicable California SIP. Thus, we believe that clarification of the status of the statutory provisions (and other legal documents) submitted in connection with the original SIP is necessary and appropriate at this time. submitted in support of the legal authority chapter in the original SIP were superseded by our 1980 approval of the revised legal authority chapter of the California SIP (codified at 40 CFR 52.220(c)(48)) and are no longer part of the California SIP. Our determination that the 1979 submittal of the revised legal authority chapter represented a wholesale replacement of the original chapter was based on the nature and scope of the revised chapter and the mismatch between the statutory citations in the revised chapter and those contained in the original chapter. 1 We also noted that the actual statutory provisions and other legal documents relied upon to support a State’s assurance of adequate legal authority need not be approved into the SIP under CAA section 110 or EPA’s SIP regulations in 40 CFR part 51 (although such provisions are required to be submitted with the plan). Thus, EPA could approve, consistent with CAA and EPA requirements, and did so in this instance, a wholesale revision to the original legal authority chapter without also approving the actual statutory provisions and other legal documents cited therein. 2

To memorialize our interpretation of the effect of our 1980 approval of the revised legal authority chapter of the California SIP, we proposed under CAA section 301(a)(1) 3 to revise 40 CFR 52.220(b)(12)(i) to clarify that none of the statutory provisions (and other legal documents) submitted in connection with chapter 7 ( ‘‘ Legal Considerations ’’ ) of the original California SIP remain in the SIP, not just the few provisions currently listed as being deleted. 4

Additional background information for today’s action can be found in our January 29, 2010 proposed rule (75 FR 4742).
II. Public Comments and EPA Responses

Our January 29, 2010 proposed rule (75 FR 4742) provided for a 30-day comment period. During that period, we received comments from four groups: Earthjustice, on behalf of the Sierra Club, by letter dated March 1, 2010; Center on Race, Poverty & the Environment (referred to herein as

‘‘ AIR ’’ ), on behalf of the Association of Irritated Residents and many other community and environmental groups, by letter dated March 1, 2010; San Joaquin Valley Air Pollution Control District ( ‘‘ District ’’ ), by letter datedFebruary 24, 2010; and GreenbergGlusker law firm (referred to herein as

‘‘ Dairy Cares ’’ ), on behalf of Dairy Cares, a coalition of California’s dairy producer and processor associations, by letter dated March 1, 2010.

Earthjustice expresses support for EPA’s proposed rule. The three other commenters object to our proposed action. Dairy Cares joins in the District’s comments and adds comments of its own. In the following paragraphs, we provide a summary of all significant adverse comments and we provide our corresponding responses. For the purposes of this section of the document, ‘‘ District ’’ refers herein to both the District and Dairy Cares, whereas ‘‘ Dairy Cares ’’ is used in reference to the additional comments submitted by this commenter.

Comment #1: AIR contends that there has never been an exemption for agricultural sources in the SIP as it relates to San Joaquin Valley. Under the Safe Air case, AIR contends that there can be no exemptions in the SIP by virtue of the original 1972 SIP and 1978 SIP Revision because the SIP’s plain language as adopted and submitted contains no exemption and the vague references to California statutory authority are not in the SIP as incorporated by reference in the Code of Federal Regulations (CFR). AIR also asserts that EPA could not have lawfully approved the original 1972 SIP and 1978 SIP Revision with exemptions for agricultural sources without violating the Clean Air Act.

Response #1: We recognize that our approval of the original California SIP in 40 CFR 52.220(a) ( ‘‘ Title of plan: ‘The State of California Implementation Plan for Achieving and Maintaining the National Ambient Air Quality Standards’ ’’ ) and (b) ( ‘‘ The plan was officially submitted on February 21, 1972 ’’ ) on May 31, 1972 (37 FR 10842, at 10851) says nothing about the contents of the original SIP. To uncover its contents, we reviewed a copy of the original SIP maintained in the collection of materials at the National Archives and Record Center in San Bruno, California. From that copy, we determined that the original SIP contained an appendix to the legal authority chapter that contained various statutory provisions, and other legal documents.

Among the statutes in the appendix was CH&SC section 24265, which excludes certain categories of emission sources, including equipment used in agricultural operations in the growing of crops or raising of fowls or animals, from the general grant of authority to local air districts to require permits for new and existing emissions sources (herein, ‘‘ agricultural permitting exemption ’’ ). We found no evidence in the original SIP itself that the materials in the appendix to the legal authority chapter were not intended by the State to be included in the plan itself. Nor did we find any evidence in our approval action that we did not intend to approve the entire contents of the appendix to the legal authority chapter of the original California SIP. In our May 31, 1972 final approval of the original California SIP, we added 40 CFR 52.233, which states: ‘‘ With the exceptions set forth in this subpart, the Administrator approves California’s plan for the attainment and maintenance of the national standards. ’’ See 37 FR 10842, at 10852. In the case of our May 1972 action on the original SIP, none of the

‘‘ exceptions set forth in this subpart, ’’ such as our findings in 40 CFR 52.225 ( ‘‘ Legal Authority ’’ ) that the California SIP failed to provide sufficient legal


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authority to meet the requirements related to air pollution emergencies and to make emissions data publicly available, provide evidence that we disapproved any of contents of the appendix to the legal authority chapter of the original SIP. Therefore, we concluded that the statutory provisions and other legal documents contained in the appendix to the legal authority chapter of the original California SIP were approved along with the rest of the plan in May 1972, and the agricultural permitting exemption found in CH&SC section 24265 was swept into the SIP by virtue of being included among the appendix materials so approved.

AIR points to the Safe Air case in support for its contention that no exemptions are in the SIP by virtue of the original 1972 SIP (submitted and approved in 1972) and the ‘‘ 1978 SIP Revision ’’ ( i.e., the revision to the legal authority chapter, which was adopted in December 1978, submitted in March 1979, and approved in September 1980). In so doing, AIR states that the SIP’s plain language contains no exemption and asserts that the vague references to California statutory authority are not in the SIP as incorporated by reference in the CFR. In the Safe Air case, the court held that ‘‘ SIPs are interpreted based on their plain meaning when such a meaning is apparent, not absurd, and not contradicted by the manifest intent of EPA, as expressed in the promulgating documents available to the public. ’’ See Safe Air for Everyone v. EPA, 488 F.3d 1088, 1100 (9th Cir. 2007). Under the circumstances of the Safe Air case, the court found that the plain language of the Idaho SIP did not include the State’s statutory restrictions on regulation of field burning, nor were the statutory restrictions on regulation of field burning made manifest in EPA’s approval of the State’s open burning rule, and thus, were not relevant in interpreting the existing SIP.

With respect to the agricultural permitting exemption and the California SIP, the existence of the exemption as part of the original California SIP as approved by EPA is apparent from a review of the submitted plan itself. We also do not believe our approval of the exemption in 1972 to be absurd or contradicted by the manifest intent of the State of California or EPA. As such, our interpretation is consistent with the holding of the Safe Air case. As clarified in today’s action, our approval of California’s 1979 update to the legal authority chapter of the California SIP superseded the original legal authority chapter and the related supporting appendix materials in the California SIP, including the agricultural permitting exemption.

Lastly, AIR asserts that EPA should interpret the Agency’s California SIP approvals under the presumption that, absent a demonstration to the contrary, we acted consistent with the CAA and related Agency policies, and because in AIR’s view, we could not have lawfully approved the original 1972 SIP and the

‘‘ 1978 SIP Revision ’’ with exemptions for agricultural sources without violating the Clean Air Act, then the presumption should be that the exemptions were not approved into the SIP. First, we did not approve the agricultural permitting exemption when we took action in 1980 to approve California’s 1979 update to the legal authority chapter of the SIP. As discussed in our January 29, 2010 proposed rule, we have concluded, however, that we did approve the agricultural permitting exemption in 1972 when we approved the original California SIP.

We disagree that our 1972 approval did not comport with the requirements for SIPs under the Clean Air Act and EPA’s regulations in effect at that time. Given the state of air pollution knowledge at the time, a SIP exemption from permitting for agricultural sources is not surprising. In 1972, stationary sources had yet to be divided under the Clean Air Act into ‘‘ major ’’ and ‘‘ minor ’’ categories (the requirement for permitting of ‘‘ major ’’ sources came later), and given the state of knowledge concerning air pollution sources and control methods at the time, it is certainly plausible that neither the State of California nor EPA foresaw that regulation of new and modified agricultural sources, as opposed to new and modified factories and smelters, and the regulation of motor vehicles, would be necessary to attain and maintain the national ambient air quality standards (NAAQS).

As noted above, we have concluded that the agricultural permitting exemption, along with the other statutes and legal documents, submitted in the appendix to the legal authority chapter in the original 1972 SIP were approved by EPA and made part of the applicable SIP. To the extent, however, that uncertainty remains on this point, it does not matter from the standpoint of the California SIP over the past 30 years, because, as we are clarifying in this final rule, our 1980 approval of the legal authority chapter superseded the 1972 approval of the corresponding chapter (and its related appendix) such that the agricultural exemption was no longer in the SIP beginning with the effective date of our final rule approving the revised chapter ( i.e., September 10, 1980).

Comment #2: The District contends that California’s agricultural permitting exemption was approved into the SIP in 1972.

Response #2: We agree. As explained in detail in the January 29, 2010 proposed rule (75 FR at 4743), we have concluded that the statutory provisions contained in appendix II to chapter 7 of the original California SIP, including the agricultural permitting exemption in CH&SC section 24265, were indeed approved into the California SIP. Our interpretation of SIP requirements is that, while the SIP must provide

‘‘ necessary assurances ’’ of ‘‘ adequate authority ’’ and must identify the provisions of law that provide for

‘‘ adequate authority, ’’ the statutes themselves need not be approved as part of the SIP. That does not mean that the statutes supporting the legal authority portion of a SIP cannot be approved into the SIP, only that they need not be. In 1972, California submitted the statutes supporting the legal authority chapter of the original California SIP to EPA, and EPA approved the original SIP, with exceptions not relevant here. Thus, while the statutory provisions need not have been approved into the California SIP, we agree that they in fact were so approved in 1972.

Comment #3: The District disagrees with EPA’s finding that the statutes supporting California’s revised legal authority chapter, as submitted in 1979, were not physically submitted as part of the SIP revision containing the revised chapter. In support of its position, the District cites ‘‘ appendix 3–A ’’ to ‘‘ chapter 3—Legal Authority, ’’ which was submitted in 1979 and approved by EPA in 1980, and which, in the District’s view, contains the 1978 edition of the California Air Pollution Control Laws, including the agricultural permitting exemption [by then re-codified to CH&SC section 42310(e)].

Response #3: The legal authority chapter and appendix, as revised in 1979 by California and submitted to EPA, includes several references to the 1978 edition of California Air Pollution Control Laws. On page 1, the revised legal authority chapter states:

‘‘ All section references hereafter in this chapter are to the Health and Safety Code unless otherwise indicated. The 1978 edition of California Air Pollution Control Laws include all applicable sections of the Health and Safety Code, the Business and Professional Code, and the Vehicle Code. This edition is incorporated as appendix 3– A to this chapter available separately from the ARB Public Information Office, P.O. Box 2815, Sacramento, CA 95812. ’’


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As noted in footnote 3 of our January 29, 2010 proposed rule (at 75 at 4744), we view the phrase ‘‘ this edition is incorporated as appendix 3–A ’’ as simply providing a general reference to where the statutory citations in the chapter could be located, rather than as having the effect of a literal reading of the provisions into the chapter. Our view is supported by the fact that the revised legal authority chapter does not

‘‘ incorporate by reference ’’ the 1978 edition of California Air Pollution Control Laws nor does the chapter identify any State law or rule that provides for a literal reading of large volumes of text into another State document, similar in purpose to the Office of the Federal Register’s rules concerning ‘‘ incorporation by reference ’’ in connection with Federal rules ( See 1 CFR part 51). In contrast, the statutory provisions and other legal documents supporting the legal authority chapter were physically submitted in ‘‘ appendix II ’’ to the original California SIP, as discussed above. ‘‘ Appendix 3–A ’’ itself is only found in the table of contents to the 1979 revised legal authority chapter. Next to the listing of ‘‘ Appendix 3–A ’’ in the table of contents is the following statement: ‘‘ California Air Pollution Control Laws, 1978 Edition, California Air Resources Board, Sacramento, CA 95812 (available from ARB’s Public Information Office). ’’

Given the facts discussed above, we believe that the District is incorrect in claiming that appendix 3–A to the 1979 revised legal authority chapter

‘‘ contains ’’ the 1978 edition of California Air Pollution Control Laws. At most, it refers to the 1978 edition of California Air Pollution Control Laws. Not only did the revised legal authority chapter not contain the statutes, we believe that ARB’s approach to keeping the statutes themselves physically separate from the revised legal authority chapter evinces an intent on the part of ARB not to include the statutes themselves in the SIP.

Comment #4: Regardless of whether the statutes were resubmitted, the District claims that EPA provides no support for its finding that the statutory provisions and other legal documents contained in the 1972 SIP were superseded by its approval of California’s 1979 revised legal authority chapter.

Response #4: In our proposed rule (75 FR at 4744), we provide the following support for our conclusion that our approval of the 1979 legal authority chapter superseded our earlier approval of the legal authority chapter as well as the statutes and other legal documents submitted in support of the legal authority chapter from the original California SIP:

• Contemporaneous statements by ARB as to the wholesale nature of the SIP update undertaken in 1978 and 1979;

• The mismatch between the statutory citations in the revised legal authority chapter and the statutes submitted in support of the legal authority chapter of the original SIP; and

• Our conclusion that statutes providing support for a State’s

‘‘ necessary assurances ’’ of adequate legal authority for the purposes of CAA section 110(a)(2)(E) need not be approved in the SIP.

As to the third bulleted item, above, the District objects to EPA’s conclusion that the statutes providing support for a State’s ‘‘ necessary assurances ’’ of adequate legal authority need not be approved in the SIP to meet CAA and EPA SIP requirements. The District contends that EPA’s reading of the SIP requirements in this regard is illogical and unsupported because there is no reason to conclude that statutes that must be submitted with the plan need not be approved into the plan. However, as explained below, the language of both the statute itself and our SIP regulations support our finding that the statutes supporting a State’s ‘‘ necessary
assurances ’’ of adequate legal authority need not be approved into the SIP. In other words, the statutes may be approved into the SIP, but are not required to be approved into the SIP.

First, under CAA section 110(a)(2), each SIP shall ‘‘ (E) provide (i) necessary assurances that the State * * * will have adequate * * * authority under State * * * law to carry out such implementation plan * * *. ’’ The statute thus requires that SIPs provide

‘‘ necessary assurances, ’’ of adequate legal authority, not that SIPs must include statutes that establish legal authority. A State’s demonstration of

‘‘ necessary assurances ’’ must be contained in the SIP, but the form in which the demonstration is made can take various forms, including but not limited to a narrative discussion ( e.g., legal authority chapter), an Attorney General’s letter, the statutes themselves, or some combination of the above. In contrast, for other SIP elements, the CAA requires the underlying regulations to be included in the SIP, not just

‘‘ necessary assurances ’’ of such regulations. For instance, under section 110(a)(2)(A), each SIP must ‘‘ include enforceable emission limitations and other control measures * * *. ’’ A State’s

‘‘ necessary assurances ’’ of such enforceable emission limitations is not enough to satisfy this CAA requirement. The State must submit the enforceable emission limitations themselves, which generally take the form of air pollution control rules and regulations, to comply with the relevant CAA requirement.

Second, the relevant EPA SIP regulations require that ‘‘ Each plan must show that the State has legal authority to carry out the plan, * * * ’’ (emphasis added) ( See 40 CFR 51.230), but, as to the statutes themselves, EPA’s regulations state: ‘‘ The provisions of law or regulation which the State determines provide the authorities required * * * must be specifically identified, and copies of such laws or regulations be submitted with the plan. ’’ (emphasis added). See 40 CFR 51.231(a). The phrase, ‘‘ each plan must show, ’’ refers to elements that must be included as part of the plan, whereas the latter phrase, ‘‘ submitted with the plan, ’’ is, at most, ambiguous as to whether the items that must be submitted must also be included in the plan itself. But, when considered with the statutory language in CAA section 110(a)(2)(E) that requires the SIP to include ‘‘ necessary
assurances ’’ of adequate legal authority, not the statutes themselves, it is reasonable to interpret 40 CFR 51.231(a) as requiring the submittal of the statutory provisions (providing support for the necessary showing of adequate legal authority) for the purpose of allowing EPA to conduct an informed review of a State’s demonstration of

‘‘ necessary assurances ’’ of adequate legal authority, and as not requiring approval of the statutory provisions themselves as part of the SIP.

Lastly, the District points to EPA’s own description of the Agency’s approval of the revised legal authority chapter as ‘‘ nonsignificant ’’ and

‘‘ administrative in nature ’’ as inconsistent with EPA’s contention that the approval of the revised legal authority chapter superseded the earlier chapter and related statutory provisions given the significance that the District attaches to the supersession of those provisions. However, EPA’s description of its action approving the revised legal authority chapter as ‘‘ administrative ’’ mirrors ARB’s foreword to the revised legal authority chapter: ‘‘ Chapter 3 is an Air Resources Board (ARB) revision to the State of California Implementation Plan for the Attainment and Maintenance of Ambient Air Quality Standards (SIP). It is an administrative chapter which outlines the State’s legal authority to implement the measures contained in the State Implementation Plan required by the Clean Air Act * * *. ’’ Our approval action was thus


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5 The District refers to 40 CFR 52.220(b)(12)(i) as an instance where California removed certain sections of the CH&SC approved in 1972 from the California SIP. California did not remove these CH&SC sections; EPA did so under the error correction authority of CAA section 110(k)(6). See 69 FR 67062 (November 16, 2004). We now recognize that we did not need to do so, since all of the statutory provisions submitted in support of the original legal authority chapter of the SIP had been superseded by our approval of the revised legal authority chapter in 1980. See response to comment #7. consistent with ARB’s description of the revised legal authority action.

Retention of the statutory provisions that had been submitted as part of the original SIP would imply that they have significance outside of their purpose in providing support for the State’s

‘‘ necessary assurances ’’ of adequate legal authority, which ARB submitted in the form of a narrative chapter. But, ARB’s description of the chapter itself as

‘‘ administrative ’’ shows that the underlying statutory provisions have no place in the applicable SIP other than with the demonstration of ‘‘ necessary
assurances. ’’ Our conclusion that the statutes submitted in support of the original chapter were superseded upon our approval of the revised chapter is consistent with this understanding of the inherent connection between the

‘‘ necessary assurances ’’ demonstration in the SIP and the supporting statutory provisions.

As described above, the statutes submitted by a State in support of the

‘‘ necessary assurances ’’ demonstration of adequate legal authority may be approved as part of the SIP ( e.g., original California SIP) but are not required to be part of the SIP. Where EPA has approved the supporting statutes into the SIP, EPA views the statutes as

‘‘ nonregulatory ’’ provisions of the SIP. See, e.g., 62 FR 27968, at 27971 (May 22, 1997) ( ‘‘ Examples of nonregulatory SIP provisions include, but are not limited to, the following subject matter: SIP narratives * * * State Statutes * * *. ’’ ); and again in 72 FR 64158, at 64160 (November 15, 2007) ( ‘‘ EPAapproved non-regulatory control measures include * * * State statutes * * * which have been submitted for inclusion in the SIP by the State. * * * Examples of EPA-approved documents and materials associated with the SIP include, * * * State Statutes submitted for the purposes of demonstrating legal authority; * * *. ’’ ). ARB’s and EPA’s description of the revised legal authority chapter of the California SIP as

‘‘ administrative ’’ is consistent with the idea that even if the supporting statutes had been approved into the SIP in 1980 (which they were not), EPA would have categorized the statutes as

‘‘ nonregulatory. ’’

The statutes are considered

‘‘ nonregulatory ’’ because statutes that provide State or local administrative agencies with the authority to establish regulatory requirements do not in themselves establish the requirements. Rather, the rules promulgated under the relevant authorities establish the requirements. In this instance, such rules have included permitting rules that were adopted by the individual county-based air districts in San Joaquin Valley (and later by the San Joaquin Valley Unified Air Pollution Control District) exempting agricultural sources, that were approved by EPA as part of the San Joaquin Valley portion of the California SIP, and that continued in effect in the SIP until 2004, notwithstanding the supersession of the underlying statutory provision back in 1980. Hence, EPA’s description of the Agency’s approval of the revised legal authority chapter as being

‘‘ nonsignificant, ’’ because no new requirements would be imposed nor would any requirements be withdrawn, is correct. Such requirements are not established in the statutes providing the legal authorities, but are found in the approved State and local district rules. 5

Comment #5: The District states that the agricultural permitting exemption was removed from State law in 2003 as it relates to major sources, but states that the change in State law was never submitted to EPA as a SIP revision and thus the agricultural permitting exemption remains in the SIP.

Response #5: We agree that the State law replacing the full agricultural permitting exemption with a limited permitting exemption for certain minor agricultural sources (Senate Bill 700) has never been submitted to EPA as a SIP revision. However, as we clarify through this final rule, California did not need to submit SB 700 to EPA as a SIP revision to remove the agricultural permitting exemption from the SIP because it was removed from the California SIP upon the effective date of our 1980 final rule approving the State’s revision to the legal authority chapter of the California SIP.

Comment #6: The District contends that Clean Air Act section 301(a)(1) does not authorize EPA to unilaterally amend the agricultural exemption out of the California SIP.

Response #6: We agree that CAA section 301(a)(1) does not authorize EPA to unilaterally amend the SIP. To amend the SIP, EPA is authorized to take action under CAA section 110. For instance, our action in 1980 to approve California’s revised legal authority chapter of the California SIP was an action taken by EPA under section 110. We do not view our action today as amending the California SIP. Our view as expressed in the proposed rule and in responses to comments above is that we are simply clarifying the effect of a previous rulemaking. We are taking this action to avoid further confusion as to the current status of the statutory provisions (such as the agricultural permitting exemption) submitted as part of the original 1972 California SIP.

CAA section 301(a) authorizes EPA to prescribe such regulations as are necessary to carry out the Agency’s functions under the CAA. One of the basic functions of the Agency under the CAA is to take actions on SIPs and SIP revisions ( See section 110(k)), and in doing so, we are responsible for ensuring that the regulatory effect of our action is clearly set forth through rules published in the Federal Register and that our codification of SIP approvals in 40 CFR part 52 reasonably identifies the approved provisions.

In this instance, we have discovered that our 1979 proposed rule and 1980 final rule approving a revision to the California SIP did not clearly identify the materials being superseded, and we appropriately rely upon our rulemaking authority under CAA section 301(a) to clarify the superseding effect of our 1980 action. In so doing, we are not amending the California SIP, but merely clarifying what the current SIP includes, or to be more specific, what the current SIP does not include.

Comment #7: Dairy Cares notes that, in 2004, EPA undertook a rulemaking to remove from the SIP several specific statutes that were included in the 1972 original California SIP, and claims that such action would have been unnecessary if the statutory provision submitted with the original California SIP had been superseded by EPA’s approval action on the revised legal authority chapter of the California SIP in 1980. Dairy Cares asserts that EPA’s action in 2004 reveals the Agency’s understanding then that the statutory provisions from the original California SIP remain in the SIP, and concludes that there is simply no way to reconcile EPA’s actions in 2004 with the action it now proposes as they are entirely inconsistent.

Response #7: In our January 29, 2010 proposed rule, we recognize that our 2004 rulemaking (69 FR 67062, November 16, 2004) removed certain variance-related statutory provisions from the California SIP. See 75 FR at 4742, at 4744. We agree that our conclusion in the current rulemaking that all of the statutory provisions submitted in connection with the legal


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authority chapter of the original California SIP were superseded in 1980 is not consistent with our 2004 rulemaking. We also agree that, if all of the statutory provisions in question had been superseded in 1980, then removal of the specific variance-related provisions in 2004 would not have been necessary.

Upon review of the 2004 rulemaking, however, we find no evidence of the type of detailed research into the contents of the California SIP that was conducted for this rulemaking. Furthermore, we believe that the Agency’s own mistaken understandingin 2004 of the status of the variancerelated statutory provisions simply highlights the need for the Agency to take some action, such as the one taken today, to clarify the status of the statutory provisions and other legal documents submitted in support of the legal authority chapter of the original California SIP. As described above, we have the authority under CAA section 301(a) to identify the superseding effect of a prior rulemaking (in this case, a rulemaking in 1980) and to thereby clarify the contents of the current California SIP.
III. Final Action

None of the comments have caused us to modify our proposed rule, and thus, under CAA section 301(a)(1) and for the reasons discussed in the proposed rule and in this final rule, EPA is taking final action to clarify that the statutory provisions and other legal documents approved in connection with the legal authority chapter of the original 1972 California SIP were superseded in the California SIP by EPA’s approval of a revised legal authority chapter in 1980 (and codified at 40 CFR 52.220(c)(48)). We are memorializing our interpretation of the effect of the 1980 final rule by revising the relevant provision in 40 CFR 52.220 accordingly. IV. Statutory and Executive Order Reviews

Under the Clean Air Act, 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 Clean Air Act. Accordingly, this action merely clarifies the effect of a previous approval by EPA of a State submittal as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action: • Is not a ‘‘ significant regulatory action ’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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.

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘ major rule ’’ as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 19, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).) List of Subjects in 40 CFR Part 52

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

Dated: May 5, 2010. Jared Blumenfeld, Regional Administrator, Region IX.

■ Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
**PART 52—[AMENDED]**

■ 1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq. **Subpart F—California**

■ 2. Section 52.220 is amended by revising paragraph (b)(12)(i) to read as follows:
**§ 52.220 Identification of plan.** * * * * *

(b) * * * (12) * * * (i) Previously approved on May 31, 1972 in paragraph (b) and deleted without replacement, effective September 10, 1980, chapter 7 ( ‘‘ Legal Considerations ’’ ) of part I ( ‘‘ State General Plan ’’ ) of the plan submitted on February 21, 1972, and all of the statutory provisions and other legal documents contained in appendix II ( ‘‘ State Statutes and other Legal Documents Pertinent to Air Pollution Control in California ’’ ) to chapter 7. * * * * * [FR Doc. 2010–11867 Filed 5–18–10; 8:45 am]

**BILLING CODE 6560–50–P**