[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Proposed Rules]
[Pages 21913-21919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8848]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0228; FRL-9657-5]
Approval and Promulgation of State Implementation Plans; Hawaii;
Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and
2006 Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to partially approve and partially disapprove a
State Implementation Plan (SIP) revision submitted by the State of
Hawaii pursuant to the requirements of Section 110(a)(1) and (2) of the
Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air
quality standards (NAAQS) and the 1997 and 2006 NAAQS for fine
particulate matter (PM2.5). Section 110(a) of the CAA
requires that each State adopt and submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by the EPA. On
December 14, 2011, the Hawaii Department of Health (HDOH) submitted a
revision to Hawaii's SIP, which describes the State's provisions for
implementing, maintaining, and enforcing standards listed above. We are
taking comments on this proposal and plan to follow with a final
action.
DATES: Written comments must be received on or before May 14, 2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2012-0228, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: 415-947-3579.
4. Mail or deliver: Dawn Richmond, Air Planning Office (AIR-2),
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street,
San Francisco, CA 94105-3901. Deliveries are only accepted during the
Regional Office's normal hours of operation.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an
anonymous access system, and EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send email directly to EPA, your email address will be automatically
captured and included as part of the public comment. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be
[[Page 21914]]
publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.
FOR FURTHER INFORMATION CONTACT: Dawn Richmond, Air Planning Office
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-
3207, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.
Table of Contents
I. Background
A. Statutory Framework
B. Regulatory History
C. Scope of the Infrastructure SIP Evaluation
D. Proposed Interpretation of CAA Section 128
II. The State's Submittal and Related Actions by EPA
III. EPA's Evaluation and Proposed Action
IV. Statutory and Executive Order Reviews
I. Background
A. Statutory Framework
Section 110(a)(1) of the CAA requires states to make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' that
provides for the ``implementation, maintenance, and enforcement'' of
such NAAQS. Section 110(a)(2) includes a list of specific elements that
``[e]ach such plan'' submission must meet. Many of the section
110(a)(2) SIP elements relate to the general information and
authorities that constitute the ``infrastructure'' of a state's air
quality management program and SIP submittals that address these
requirements are referred to as ``infrastructure SIPs.'' These
infrastructure SIP elements include:
Section 110(a)(2)(A): Emission limits and other control
measures.
Section 110(a)(2)(B): Ambient air quality monitoring/data
system.
Section 110(a)(2)(C): Program for enforcement of control
measures and regulation of new stationary sources.
Section 110(a)(2)(D)(i): Interstate pollution transport.
Section 110(a)(2)(D)(ii): Interstate and international
pollution abatement.
Section 110(a)(2)(E): Adequate resources and authority,
conflict of interest, and oversight of local governments and regional
agencies.
Section 110(a)(2)(F): Stationary source monitoring and
reporting.
Section 110(a)(2)(G): Emergency episodes.
Section 110(a)(2)(H): SIP revisions.
Section 110(a)(2)(J): Consultation with government
officials, public notification, and prevention of significant
deterioration (PSD) and visibility protection.
Section 110(a)(2)(K): Air quality modeling and submission
of modeling data.
Section 110(a)(2)(L): Permitting fees.
Section 110(a)(2)(M): Consultation/participation by
affected local entities.
Two elements identified in section 110(a)(2) are not governed by the
three-year submission deadline of section 110(a)(1) and are therefore
not addressed in this action. These elements relate to part D of title
I of the CAA, and submissions to satisfy them are not due within three
years after promulgation of a new or revised NAAQS, but rather are due
at the same time nonattainment area plan requirements are due under
section 172. The two elements are: (i) Section 110(a)(2)(C) to the
extent it refers to permit programs required under part D
(nonattainment New Source Review (NSR)), and (ii) section 110(a)(2)(I),
pertaining to the nonattainment planning requirements of part D. As a
result, this action does not address infrastructure elements related to
the nonattainment NSR portion of section 110(a)(2)(C) or related to
110(a)(2)(I).
B. Regulatory History
On July 18, 1997, EPA issued a revised NAAQS for ozone \1\ and a
new NAAQS for fine particulate matter (PM2.5).\2\ EPA
subsequently revised the 24-hour PM2.5 NAAQS on September
21, 2006.\3\ Each of these actions triggered a requirement for States
to submit an infrastructure SIP to address the applicable requirements
of section 110(a)(2) within three years of issuance of the new or
revised NAAQS.
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\1\ The 8-hour averaging period replaced the previous 1-hour
averaging period, and the level of the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62 FR 38856).
\2\ The annual PM2.5 standard was set at 15
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average
of annual arithmetic mean PM2.5 concentrations from
single or multiple community-oriented monitors and the 24-hour
PM2.5 standard was set at 65 [micro]g/m\3\, based on the
3-year average of the 98th percentile of 24-hour PM2.5
concentrations at each population-oriented monitor within an area
(62 FR 38652).
\3\ The final rule revising the 24-hour NAAQS for
PM2.5 from 65 [micro]g/m\3\ to 35 [micro]g/m\3\ was
published in the Federal Register on October 17, 2006 (71 FR 61144).
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On March 10, 2005, EPA entered into a Consent Decree with
Earthjustice that obligated EPA to make official findings in accordance
with section 110(k)(1) of the CAA as to whether States had made
required complete SIP submissions, pursuant to sections 110(a)(1) and
(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by
October 5, 2008 for the 1997 PM2.5 NAAQS. EPA made such
findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR
16205) and on October 22, 2008 (73 FR 62902) for the 1997
PM2.5 NAAQS. In each case, EPA found that Hawaii had failed
to make a complete submittal to satisfy the requirements of section
110(a)(2) for the relevant pollutant. On September 8, 2011, EPA made a
similar finding of failure to submit for Hawaii in relation to the 2006
24-hour PM2.5 NAAQS (76 FR 55577).\4\
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\4\ In the September 2011 notice, EPA specifically found that
Hawaii failed to submit for section 110(a)(2)(A)-(C), (D)(i)(II)
(PSD prong only), (E)-(H) and (J)-(M). EPA had already determined on
June 10, 2011 that Hawaii had failed to submit a complete SIP to
address the attainment and maintenance requirements of section
110(a)(2)(D)(i)(I) (75 FR 32673).
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C. Scope of the Infrastructure SIP Evaluation
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\5\ Those commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated in other proposals that it would address
the issues separately: (i) Existing provisions for minor source new
source review programs that may be inconsistent with
[[Page 21915]]
the requirements of the CAA and EPA's regulations that pertain to such
programs (``minor source NSR''); and (ii) existing provisions for
Prevention of Significant Deterioration programs that may be
inconsistent with current requirements of EPA's ``Final NSR Improvement
Rule,'' 67 FR 80,186 (December 31, 2002), as amended by 72 FR 32,526
(June 13, 2007) (``NSR Reform''). In light of the comments, EPA
believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth. It should be noted, however, that,
unlike other States, Hawaii has submitted revisions to its minor NSR
program as part of its Infrastructure SIP submittal. EPA is taking
action on these revisions in a separate notice-and-comment rulemaking.
Thus, the discussion below pertaining to ``existing provisions'' is not
relevant to Hawaii's revised minor NSR rules.
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\5\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5).
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EPA intended the statements in other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some States that might require future corrective action. EPA did not
want States, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given State should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such State. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP-
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these NAAQS should not be
construed as explicit or implicit reapproval of any existing provisions
that relate to these four substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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\6\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25,162
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Likewise, EPA has
previously decided that it could take action on different parts of the
larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections.\9\ Finally, EPA notes that not
every element of section 110(a)(2) would be relevant, or as relevant,
or relevant in the same way, for each new or revised NAAQS and the
attendant infrastructure SIP submission for that NAAQS. For example,
the monitoring requirements that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS could be very different than what
might be necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\10\
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\8\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\9\ For example, EPA issued separate guidance to states with
respect to SIP submissions to meet section 110(a)(2)(D)(i) for the
1997 8-hour ozone and 1997 PM2.5 NAAQS. See, ``Guidance
for State Implementation Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour
Ozone and PM2.5 National Ambient Air Quality Standards,''
from William T. Harnett, Director Air Quality Policy Division OAQPS,
to Regional Air Division Director, Regions I-X, dated August 15,
2006. In addition, EPA bifurcated the action on these ``interstate
transport'' provisions within section 110(a)(2) and in most
instances, substantive administrative actions occurred on different
tracks with different schedules.
\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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[[Page 21916]]
Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ For the one exception to that general assumption,
however, i.e., how States should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
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\11\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
\12\ Id. at page 2.
\13\ Id. at attachment A, page 1.
\14\ Id. at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicate that the statute is not so ``self explanatory,'' and indeed
is sufficiently ambiguous that EPA needs to interpret it in order to
explain why these substantive issues do not need to be addressed in
the context of infrastructure SIPs and may be addressed at other
times and by other means.
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On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS. Significantly, neither the 2007 Guidance nor the 2009 Guidance
explicitly referred to the SSM, director's discretion, minor source
NSR, or NSR Reform issues as among specific substantive issues EPA
expected states to address in the context of the infrastructure SIPs,
nor did EPA give any more specific recommendations with respect to how
States might address such issues even if they elected to do so. The SSM
and director's discretion issues implicate section 110(a)(2)(A), and
the minor source NSR and NSR Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA
did not indicate to States that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in existing SIP provisions in the context of the
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance
merely indicated its belief that the States should make submissions in
which they established that they have the basic SIP structure necessary
to implement, maintain, and enforce the NAAQS. EPA believes that States
can establish that they have the basic SIP structure, notwithstanding
that there may be potential deficiencies within the existing SIP.
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\15\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a comprehensive review of each and
every provision of an existing SIP merely for purposes of assuring that
the State in question has the basic structural elements for a
functioning SIP for a new or revised NAAQS. Because SIPs have grown by
accretion over the decades as statutory and regulatory requirements
under the CAA have evolved, they may include some outmoded provisions
and historical artifacts that, while not fully up to date, nevertheless
may not pose a significant problem for the purposes of
``implementation, maintenance, and enforcement'' of a new or revised
NAAQS when EPA considers the overall effectiveness of the SIP. To the
contrary, EPA believes that a better approach is for EPA to determine
which specific SIP elements from section 110(a)(2) are applicable to an
infrastructure SIP for a given NAAQS, and to focus attention on those
elements that are most likely to need a specific SIP revision in light
of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance
specifically directed States to focus on the requirements of section
110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence
of underlying EPA regulations for emergency episodes for this NAAQS and
an anticipated absence of relevant provisions in existing SIPs.
[[Page 21917]]
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
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\16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 76 FR 21,639 (April 18, 2011).
\17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (December 30,
2010). EPA has previously used its authority under CAA 110(k)(6) to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and
62 FR 34,641 (June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67,062
(November 16, 2004) (corrections to California SIP); and 74 FR
57,051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).
\18\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4,540 (January 26, 2011) (final disapproval of such provisions).
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D. Proposed Interpretation of CAA Section 128
As noted above, EPA is currently acting upon infrastructure SIPs
for various states across the country. Among the elements that EPA is
evaluating as part of these actions is the requirement of CAA section
110(a)(2)(E)(ii) that SIPs, ``provide * * * requirements that the State
comply with the requirements respecting State boards under section
128'' of the CAA. In contrast with, for example, the SSM issue
discussed above, section 110(a)(2)(E)(ii) unambiguously mandates that
each SIP must satisfy the requirements of section 128. Accordingly, as
part of our infrastructure SIP actions, EPA is reviewing SIPs in
relation to the requirements of CAA section 128. In this action, EPA
finds it appropriate to propose certain interpretations of section 128
and invite comment on these interpretations.\19\
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\19\ If EPA finalizes this action, the proposed interpretations
will supersede (to the extent that they are inconsistent with)
interpretations suggested in the 1978 guidance, at least for
Hawaii's SIP.
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Congress added section 128 of the CAA in the 1977 amendments as the
result of a conference agreement. Titled ``State boards,'' section 128
provides in relevant part:
(a) Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that--
(1) Any board or body which approves permits or enforcement
orders under [this Act] shall have at least a majority of members
who represent the public interest and do not derive any significant
portion of their income from persons subject to permits or
enforcement orders under [this Act], and
(2) Any potential conflicts of interest by members of such board
or body or the head of an executive agency with similar powers be
adequately disclosed.
In 1978, we issued a guidance memorandum recommending ways States could
meet the requirements of section 128, including suggested
interpretations of certain terms in section 128.\20\
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\20\ Memorandum from David O. Bickart, Deputy General Counsel,
to Regional Air Directors, Guidance to States for Meeting Conflict
of Interest Requirements of Section 128 (Mar. 2, 1978).
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We first note that, in the conference report, the committee stated:
``It is the responsibility of each State to determine the specific
requirements to meet the general requirements of [section 128].'' \21\
We think that this legislative history indicates that Congress intended
states to have some latitude in the specifics of implementing section
128, so long as the implementation is consistent with the plain text of
the section. We also note that Congress explicitly provided in section
128 that States could adopt more stringent requirements. As a result,
we propose four important considerations for implementing section 128.
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\21\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History
of the Clean Air Act Amendments of 1977 526-27 (1978).
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First, section 128 must be implemented through SIP-approved,
federally enforceable provisions. Section 128 explicitly mandates that
each SIP ``shall contain requirements'' that satisfy subsections
128(a)(1) and 128(a)(2). A mere narrative description of state statutes
or rules, or of a state's current or past practice in constituting a
board or body and in disclosing potential conflicts of interest, is not
a requirement contained in the SIP and therefore does not satisfy the
plain text of section 128.
Second, subsection 128(a)(1) applies only to states that have a
board or body that is composed of multiple individuals and that, among
its duties, approves permits or enforcement orders under the CAA. It
does not apply in states that have no such multi-member board or body,
and where instead a single head of an agency approves permits or
enforcement orders under the CAA. This flows from the text of section
128 itself, for two reasons. First, as section 128(a)(1) refers to a
majority of members in the plural, we think it reasonable to read
section 128(a)(1) as not creating any requirements for an individual
with sole authority for approving a permit or enforcement order under
the CAA. Second, subsection 128(a)(2) explicitly applies to the head of
an executive agency with ``similar powers'' to a board or body that
approves permits or enforcement orders under the CAA, while subsection
128(a)(1) omits any reference to heads of executive agencies.\22\ We
infer that subsection 128(a)(1) should not apply to heads of executive
agencies who approve permits or enforcement orders.
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\22\ For the same two reasons, we distinguish the language of
section 128(a)(1) from the language of the analogous provision in
the Clean Water Act (CWA), governing composition of a state board or
body that approves National Pollutant Discharge Elimination System
(NPDES) permit applications. In relevant part, the CWA provision
states, ``no board or body which approves permit applications or
portions thereof shall include, as a member, any person who
receives, or has during the previous two years received, a
significant portion of his income directly or indirectly from permit
holders or applicants for a permit.'' CWA section 304(i)(D), 33
U.S.C. 1314(i)(D). The CWA provision does not refer to a majority of
members in the plural, and the CWA provision does not have a
separate section explicitly including heads of executive agencies.
Thus, the bases for our interpretation of subsection 128(a)(1) do
not exist in the CWA.
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Third, subsection 128(a)(2) applies to all states, regardless of
whether the state has a multi-member board or body that
[[Page 21918]]
approves permits or enforcement orders under the CAA. Although the
title of section 128 is ``State boards,'' the language of section
128(a)(2) explicitly applies where the head of an executive agency,
rather than a board or body, approves permits or enforcement orders. In
instances where the head of an executive agency delegates his or her
power to approve permits or enforcement orders, or where statutory
authority to approve permits or enforcement orders is nominally vested
in another state official, the requirement to disclose adequately
potential conflicts of interest still applies. In other words, EPA
thinks that SIPs for all states, regardless of whether a state board or
body approves permits or enforcement orders under the CAA, must contain
adequate provisions for disclosure of potential conflicts of interest.
We note that many states have general disclosure provisions, applicable
to all state employees, that may be adequate, if submitted for adoption
into the SIP, to satisfy the requirements of subsection 128(a)(2).
Finally, a state may satisfy the requirements of section 128 by
submitting for adoption into the SIP a provision of state law that
closely tracks or mirrors the language of the applicable provisions of
section 128. A state may do so in two ways. First, the state may adopt
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under
this approach, the state will be able to meet the continuing
requirements of section 128 without any additional, future SIP
revisions, even if the state adds or removes authority, either at the
state level or local level, to individuals or to boards or bodies to
approve permits or enforcement orders under the CAA. Second, the state
may modify the language of subsections 128(a)(1) (if applicable) and
128(a)(2) to name the particular board, body, or individual official
with approval authority. In this case, if the state subsequently
modifies that authority, the state may have to submit a corresponding
SIP revision to meet the continuing requirements of section 128. While
either approach would meet the minimum requirements of section 128, we
note that the statute explicitly permits states to adopt more stringent
requirements, for example through providing more detailed definitions
of the terms in subsections 128(a)(1) and 128(a)(2), such as those
suggested in the 1978 guidance memorandum. This approach gives states
flexibility in implementing section 128, while still ensuring
consistency with the statute.
II. The State's Submittal and Related Actions by EPA
On December 14, 2011, the Hawaii Department of Health (HDOH)
submitted revisions to the Hawaii SIP to address the infrastructure
requirements of CAA section 110(a)(2) (``2011 Hawaii Infrastructure
SIP''). This submittal included (1) provisions of the Hawaii
Administrative Rules (HAR) to be included in the Hawaii SIP as
regulatory materials; (2) provisions of the Hawaii Revised Statutes
(HRS) to be included in the SIP as non-regulatory materials; and (3) an
``Infrastructure SIP Certification of Adequacy.'' The Certification
sets forth HDOH's analysis of how the Hawaii SIP, with the submitted
revisions, would satisfy the infrastructure SIP requirements of CAA
section 110(a)(2) with respect to the 1997 ozone NAAQS and the 1997 and
2006 PM2.5 NAAQS (collectively ``the relevant NAAQS'').\23\
The 2011 Hawaii Infrastructure SIP also included supporting materials
for each of the components of the SIP revision.
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\23\ A copy of the complete 2011 Hawaii Infrastructure SIP
submittal has been placed in the docket for this action and is
available online at http://www.regulations.gov, docket number EPA-
R09-OAR-2012-0228.
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On February 1, 2012, EPA's Region 9 Regional Administrator signed a
proposed rule and a direct final rule to approve into the Hawaii SIP a
number of the regulatory provisions that were included in the 2011
Hawaii Infrastructure SIP. On March 20, 2012, the Regional
Administrator signed a proposed rule and a direct final rule to approve
into the SIP the remaining regulatory provisions submitted for
inclusion in the SIP. These latter rules update and replace the minor
NSR rules in the existing Hawaii SIP. Pre-publication versions of these
rules and the accompanying TSDs have been placed in the docket for this
action.
III. EPA's Evaluation and Proposed Action
EPA has evaluated the 2011 Hawaii Infrastructure SIP and the
existing provisions of the Hawaii SIP in relation to the infrastructure
SIP requirements for the relevant NAAQS. The Technical Support Document
(TSD) for this action, which is available online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0228, includes a
summary of our evaluation for each element.
Based upon this analysis, EPA proposes to approve the 2011 Hawaii
Infrastructure SIP with respect to the following requirements:
Section 110(a)(2)(A): Emission limits and other control
measures.
Section 110(a)(2)(B): Ambient air quality monitoring/data
system.
Section 110(a)(2)(C) (in part): Program for enforcement of
control measures and regulation of new stationary sources (minor NSR
program only).
Section 110(a)(2)(D)(i)(I): Interstate transport
(significant contribution and interference with maintenance).
Section 110(a)(2)(E): Adequate resources and authority,
conflict of interest, and oversight of local governments and regional
agencies.
Section 110(a)(2)(F): Stationary source monitoring and
reporting.
Section 110(a)(2)(G): Emergency episodes.
Section 110(a)(2)(H): SIP revisions.
Section 110(a)(2)(J) (in part): Public notification.
Section 110(a)(2)(K): Air quality modeling and submission
of modeling data.
Section 110(a)(2)(L): Permitting fees.
Section 110(a)(2)(M): Consultation/participation by
affected local entities.
In addition, we are proposing to approve into the SIP as non-regulatory
materials the statutory provisions that HDOH included as part of the
2011 Hawaii Infrastructure SIP.\24\
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\24\ A list of these statutory provisions and their complete
text are found in Attachment 1 and Appendix A of the 2011 Hawaii
Infrastructure SIP, respectively. These documents have been placed
in the docket for this action and are available online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0228.
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We are proposing to disapprove the 2011 Hawaii Infrastructure SIP
with respect to the following infrastructure SIP requirements:
Section 110(a)(2)(C) (in part): Program for enforcement of
control measures and regulation of new stationary sources (permit
program as required in part C of title I of the Act).
Section 110(a)(2)(D)(i)(II): Interstate transport--
prevention of significant deterioration and visibility protection.
Section 110(a)(2)(D)(ii): Interstate pollution abatement
and international air pollution.
Section 110(a)(2)(J) (in part): Consultation with
government officials and PSD.
As explained in the TSD, our proposed disapproval of these elements and
sub-elements is compelled by the absence of an approvable SIP revision
from Hawaii that meets the PSD requirements of sections 160 through 165
of the CAA.\25\ In addition, our proposed disapproval of Section
110(a)(2)(D)(i)(II) is compelled
[[Page 21919]]
by the lack of approvable SIP revisions to address reasonably
attributable visibility impairment (RAVI) and regional haze affecting
mandatory Class I areas.\26\ Under section 179(a) of the CAA, final
disapproval of a submittal that addresses a requirement of part D,
title I of the CAA (CAA sections 171-193) or is required in response to
a finding of substantial inadequacy as described in CAA section
110(k)(5) (SIP Call) starts a sanctions clock. The 2011 Hawaii
Infrastructure SIP was not submitted to meet either of these
requirements. Therefore, any action we take to finalize the described
disapproval will not trigger sanctions.
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\25\ See 40 CFR 52.632.
\26\ See 40 CFR 52.633 (reasonably attributable visibility
impairment) and 74 FR 2392 (Jan. 15, 2009) (regional haze).
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In addition, these deficiencies have previously been addressed
through promulgation of a PSD FIP (43 FR 26410, June 19, 1978, as
amended at 45 FR 52741, Aug. 7, 1980; 68 FR 11322, Mar. 10, 2003; 68 FR
74488, Dec. 24, 2003) and a FIP addressing RAVI (50 FR 28553, July 12,
1985, as amended at 52 FR 45137, Nov. 24, 1987). The requirement to
address regional haze will be addressed through final action on a
regional haze SIP and/or FIP for Hawaii, which must be signed by
September 15, 2012, under the terms of a proposed consent decree.\27\
Therefore, this disapproval, if finalized, would not trigger any new
FIP obligations.
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\27\ We have placed a copy of the proposed consent decree in the
docket for this action.
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IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting Federal
requirements and disapproves other state law because it does not meet
Federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Oxides of nitrogen, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: March 27, 2012.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 2012-8848 Filed 4-11-12; 8:45 am]
BILLING CODE 6560-50-P