January 4, 2013
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Email to Bryce Bird [BBIRD@utah.gov]
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From Carl Daly

Dear Bryce:

I am writing to make you aware that EPA Assistant Administrator Gina McCarthy today signed a Federal Register notice in which the EPA makes findings that certain states have not submitted complete state implementation plans (SIPs), known as "infrastructure" SIPs, to address the required elements of Clean Air Act (CAA) section 110(a)(2) for the 2008 ozone National Ambient Air Quality Standards (NAAQS). One of these states is Utah. 
	
The infrastructure SIPs were due to EPA on March 12, 2011, 3 years after the promulgation of the 2008 ozone NAAQS. The EPA is taking action at this time as the result of a court order filed on October 17, 2012, that directs the EPA to make findings of failure to submit complete infrastructure SIP elements.

As explained more fully in the Finding of Failure to Submit which was signed today, the Agency has determined that Utah's submission is not complete.  On December 12, 2012, the state by letter submitted documents that summarize the state's existing infrastructure SIP elements and explain that these elements satisfy the state's obligation for the 2008 ozone NAAQS. However, since the public notice and comment process has not been completed, the Agency has determined that the state's submission is, therefore, incomplete. The requirement in the CAA and EPA rules for public notice and opportunity for a hearing is to inform the public that the SIP is being revised and allow for comment as to whether the state regulations satisfy the relevant specific obligation under the CAA, in this case the obligation stemming from the promulgation of the revised 2008 ozone NAAQS.  As a result of determining that Utah's submissions is incomplete in its entirety, the Agency has found that the state failed to submit an infrastructure SIP for the 2008 ozone NAAQS.

This finding does not address interstate transport under §110(a)(2)(D)(i)(I). The D.C. Circuit's recent opinion in EME Homer City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012) concluded that a SIP cannot be deemed to lack a required submission or deemed deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that obligation. This decision is not yet final as the mandate has not been issued and the EPA has petitioned for rehearing en banc, asking the full court to reconsider that conclusion. Nonetheless, during the pendency of the appeal, the EPA intends to act in accordance with the holdings in the EME Homer City opinion. Therefore, at this time the EPA is not making a finding that Utah failed to submit a complete SIP to comply with section 110(a)(2)(D)(i)(I). 

Within 2 years after the effective date of this finding, EPA is obligated by CAA section 110(c)(1) to either fully approve Utah's infrastructure SIP for the 2008 ozone NAAQS or promulgate a federal implementation plan (FIP) to fill any remaining gaps in the SIP.

I look forward to working closely with you to ensure that the CAA requirements are met in a timely and efficient manner. If you have any questions please contact me at (303) 312-6416 or daly.carl@epa.gov, or contact Kathy Ayala at (303) 312-6142 or ayala.kathy@epa.gov.
