[Federal Register Volume 79, Number 98 (Wednesday, May 21, 2014)]
[Proposed Rules]
[Pages 29142-29148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11787]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0211, EPA-R03-OAR-2013-0510]; FRL-9911-26-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Section 110(a)(2) Prevention of Significant Deterioration 
Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National 
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Virginia State Implementation Plan (SIP) 
pursuant to the Clean Air Act (CAA). Whenever new or revised National 
Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires 
states to submit a plan for the implementation, maintenance, and 
enforcement of such NAAQS. The plan is required to address basic 
program elements, including, but not limited to regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the standards. These elements 
are referred to as infrastructure requirements. The Commonwealth of 
Virginia has made two separate submittals addressing the infrastructure 
requirements for the 2008 ozone and 2010 nitrogen dioxide 
(NO2) NAAQS. This action proposes approval of the prevention 
of significant deterioration (PSD) portions of the infrastructure 
requirements of the CAA for the Commonwealth's SIP submittals for the 
2008 ozone and 2010 NO2 NAAQS.

DATES: Written comments must be received on or before June 20, 2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0211 for the 2008 ozone docket and EPA-R03-OAR-2013-0510 
for the 2010 NO2 docket by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2013-0211 and EPA-R03-OAR-2013-0510, Cristina 
Fernandez, Associate Director, Office of Air Program Planning, Air 
Protection Division, Mailcode 3AP30, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

[[Page 29143]]

    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID Nos. EPA-R03-OAR-
2013-0211 and EPA-R03-OAR-2013-0510. EPA's policy is that all comments 
received will be included in the public docket without change, and may 
be made available online at www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Virginia Department of Environmental Quality, 629 
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On July 23, 2012, the Commonwealth of Virginia submitted a formal 
revision to its SIP addressing certain infrastructure requirements for 
the 2008 ozone NAAQS (2008 ozone submittal). EPA published a Notice of 
Proposed Rulemaking (NPR) on July 2, 2013 which proposed approval of 
the 2008 ozone submittal for the following infrastructure elements: 
Section 110(a)(2)(A), (B), (C) (for enforcement and regulation of minor 
sources and minor modifications), (D)(i)(II) (for visibility 
protection), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to 
consultation, public notification, and visibility protection 
requirements), (K), (L), and (M), or portions thereof. See 78 FR 39651. 
Subsequently, EPA published a Final Rulemaking Notice (FRN) on March 
27, 2014 which approved the Virginia 2008 ozone submittal for those 
specific elements. See 79 FR 17043.
    On May 30, 2013, Virginia submitted an infrastructure SIP 
submission for the 2010 NO2 NAAQS (2010 NO2 
submittal). On August 5, 2013, EPA published a NPR which proposed 
approval of the 2010 NO2 submittal for the following 
infrastructure elements: Section 110(a)(2)(A), (B), (C) (for 
enforcement and regulation of minor sources and minor modifications), 
(D)(i)(II) (for visibility protection), (D)(ii), (E)(i), (E)(iii), (F), 
(G), (H), (J) (relating to consultation, public notification, and 
visibility protection requirements), (K), (L), and (M), or portions 
thereof. See 78 FR 47264. Subsequently, on March 18, 2014, EPA 
published a FRN which approved the Virginia 2010 NO2 
submittal for those specific elements. See 79 FR 15012.
    In both EPA's March 27, 2014 FRN for the 2008 ozone submittal and 
the March 18, 2014 FRN for the 2010 NO2 submittal, EPA 
indicated that it was taking separate action on certain infrastructure 
elements as they relate to PSD and section 128 of the CAA. This 
rulemaking action proposes approval of the section 110(a)(2)(C), 
(D)(i)(II), and (J) infrastructure elements as they relate to 
Virginia's PSD program for the 2008 ozone NAAQS and 2010 NO2 
NAAQS. EPA will take later separate action on 110(a)(2)(E)(ii) as it 
relates to section 128.

II. EPA's Approach To Review Infrastructure SIPs

    The requirement for states to make a SIP submission of this type 
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``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),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of section 110(a)(1) and (2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the 
nonattainment planning requirements of part D of title I of the CAA, 
``regional haze SIP'' submissions required by EPA rule to address the 
visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions and section 110(a)(2) provides more 
details concerning the required contents of these submissions. 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 program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of

[[Page 29144]]

required elements for infrastructure SIP submissions provided in 
section 110(a)(2) contains ambiguities concerning what is required for 
inclusion in an infrastructure SIP submission.
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    \1\ For example, section 110(a)(2)(E)(i) 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 SIP-approved program to address 
certain sources as required by part C of title I of the CAA, and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
CAA, which specifically address nonattainment SIP requirements.\2\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years or in some cases three years, for such designations to be 
promulgated.\3\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \2\ 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 25162, at 25163-65, May 12, 2005, (explaining relationship 
between timing requirement of section 110(a)(2)(D) versus section 
110(a)(2)(I)).
    \3\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within section 110(a)(1) and (2) with 
respect to infrastructure SIPs pertains to whether states must meet all 
of the infrastructure SIP requirements in a single SIP submission, and 
whether EPA must act upon such SIP submission in a single action. 
Although section 110(a)(1) directs states to submit ``a plan'' to meet 
these requirements, EPA interprets the CAA to allow states to make 
multiple SIP submissions separately addressing infrastructure SIP 
elements for the same NAAQS. If states elect to make such multiple SIP 
submissions to meet the infrastructure SIP requirements, EPA can elect 
to act on such submissions either individually or in a larger combined 
action.\4\ Similarly, EPA interprets the CAA to allow it to take action 
on the individual parts of one larger, comprehensive infrastructure SIP 
submission for a given NAAQS without concurrent action on the entire 
submission. For example, EPA has sometimes elected to act at different 
times on various elements and sub-elements of the same infrastructure 
SIP submission.\5\
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    \4\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339, January 22, 2013 (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' 78 FR 4337, January 22, 2013 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within section 110(a)(1) and (2) may also arise with 
respect to infrastructure SIP submission requirements for different 
NAAQS. Thus, 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. The states' attendant infrastructure SIP 
submissions for each NAAQS therefore could be different. For example, 
the monitoring requirements that a state might need to meet in its 
infrastructure SIP submission for purposes of section 110(a)(2)(B) 
could be very different for different pollutants, for example because 
the content and scope of a state's infrastructure SIP submission to 
meet this element might be very different for an entirely new NAAQS 
than for a minor revision to an existing NAAQS.\6\
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    \6\ 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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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the Prevention of Significant Deterioration (PSD) program 
required in part C of title I of the CAA, because PSD does not apply to 
a pollutant for which an area is designated nonattainment and thus 
subject to part D planning requirements. As this example illustrates, 
each type of SIP submission may implicate some elements of section 
110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\7\ EPA 
most recently

[[Page 29145]]

issued guidance for infrastructure SIPs on September 13, 2013 (2013 
Guidance).\8\ EPA developed this document to provide states with up-to-
date guidance for infrastructure SIPs for any new or revised NAAQS. 
Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\9\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such 
that infrastructure SIP submissions need to address certain issues and 
need not address others. Accordingly, EPA reviews each infrastructure 
SIP submission for compliance with the applicable statutory provisions 
of section 110(a)(2), as appropriate.
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    \7\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \8\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
    \9\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the DC Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in section 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
Green House Gases (GHGs). By contrast, structural PSD program 
requirements do not include provisions that are not required under 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the 2013 PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions EPA considers irrelevant in the context of an infrastructure 
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor new source review program and whether 
the program addresses the pollutants relevant to that NAAQS. In the 
context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (SSM); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, 
December 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\10\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \10\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations 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. These provisions, 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 evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a

[[Page 29146]]

better approach is for states and EPA to focus attention on those 
elements of section 110(a)(2) of the CAA most likely to warrant a 
specific SIP revision due to the promulgation of a new or revised NAAQS 
or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
section 110(a)(1) and (2) because the CAA provides other avenues and 
mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
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 to otherwise comply with the CAA.\11\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\12\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies 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 an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\13\
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    \11\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639, April 18, 2011.
    \12\ EPA has used 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 82536, December 30, 2010. EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664, July 25, 1996 and 62 FR 
34641, June 27, 1997 (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 
(corrections to California SIP); and 74 FR 57051, November 3, 2009 
(corrections to Arizona and Nevada SIPs).
    \13\ See, e.g., EPA's disapproval of 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 42342 at 42344, July 21, 2010 
(proposed disapproval of director's discretion provisions); 76 FR 
4540, January 26, 2011 (final disapproval of such provisions).
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III. Summary of SIP Revision

    Section 110(a)(2)(C) of the CAA requires each state's SIP to 
``include a program to provide for the enforcement of the measures 
described in subparagraph (A) [CAA Section 110(a)(2)(A)], and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to ensure that 
national ambient air quality standards are achieved, including a permit 
program as required in parts C [PSD], and D [nonattainment NSR] of this 
subchapter.'' Similarly, section 110(a)(2)(J) requires that for each 
NAAQS the state's SIP must ``meet the applicable requirements of. . 
.part C of this subchapter (relating to prevention of significant 
deterioration of air quality).''
    As discussed in Section II, ``EPA's Approach to Review 
Infrastructure SIPs,'' when reviewing infrastructure SIP submittals EPA 
focuses on the structural PSD program requirements contained in part C 
as well as EPA's PSD regulations. These structural requirements call 
for the PSD program to address all NSR pollutants, including GHGs.
    On August 5, 2011, Virginia submitted a proposed SIP revision which 
incorporated preconstruction permitting requirements for sources of 
PM2.5 into Virginia's PSD and nonattainment NSR programs. 
Subsequent to Virginia's submittal, two decisions by the U.S Court of 
Appeals for the D.C Circuit related to the Federal PM2.5 
program impacted EPA's ability to fully approve the revisions as 
submitted by Virginia. Virginia consequently submitted revisions to 
their PSD program pertaining to preconstruction permitting requirements 
for sources of PM2.5 and on February 25, 2014 (79 FR 10377), 
EPA fully approved these revisions to Virginia's PSD program. With 
these revisions fully approved, Virginia's SIP approved PSD program now 
contains all of the emission limitations, control measures, and other 
program elements required by 40 CFR 51.165 and 40 CFR 51.166 for all 
required pollutants, including PM2.5. Therefore, EPA finds 
Virginia's SIP meets the statutory obligations relating to its PSD 
permit program set forth in section 110(a)(2)(C) and (J) of the CAA for 
the 2008 ozone NAAQS and 2010 NO2 NAAQS.\14\
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    \14\ On January 4, 2013, the United States Court of Appeals for 
the District of Columbia Circuit, in Natural Resources Defense 
Council v. EPA, issued a decision that remanded EPA's 2007 and 2008 
rules implementing the 1997 fine particulate matter 
(PM2.5) NAAQS. See 706 F.3d 428 (D.C. Cir. 2013). The 
court found that EPA erred in implementing the PM2.5 
NAAQS pursuant to the general implementation provisions of subpart 1 
of part D of title I of the CAA, rather than pursuant to the 
additional implementation provisions specific to particulate matter 
nonattainment areas in subpart 4. Id. at 437. As the requirements of 
subpart 4 only pertain to nonattainment areas, it is EPA's position 
that the portions of the PM2.5 implementation rules that 
address requirements for PM2.5 attainment and 
unclassifiable areas are not affected by the court's opinion in NRDC 
v. EPA. EPA does not anticipate the need to revise any PSD permit 
requirements promulgated in the PM2.5 implementation 
rules to comply with the court's decision. Therefore, it is EPA's 
position that approval of the PSD portions of Virginia's 
infrastructure SIP submittals for the 2008 ozone and 2010 
NO2 NAAQS as meeting PSD requirements in Section 
110(a)(2)(C), (D)(i)(II), and (J) does not conflict with the court's 
remand of the PM2.5 implementation rules. See also 79 FR 
10377 (February 25, 2014) (approving portions of Virginia's 
infrastructure SIP submittals as meeting PSD requirements for 
section 110(a)(2) for 1997 and 2006 PM2.5 NAAQS and 2008 
lead NAAQS).
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    Section 110(a)(2)(D)(i)(II) of the CAA requires each state's SIP to 
include provisions which will prevent emissions from interfering with 
the measures required by another state for implementing PSD. Each 
state's SIP must, under 40 CFR 51.166(k)(1), include a source impact 
analysis which requires the owner/operator of each proposed source or 
modification to demonstrate that the allowable emissions increase from 
the proposed project will not ``cause or contribute to air pollution in 
violation of: (i) Any national ambient air quality standard in any air 
quality control region.'' The requirements set forth at 40 CFR 
51.166(k)(l) are consistent with, and sufficient to meet, the 
requirements of section 110(D)(i)(II) of the CAA. In Virginia, the 
equivalent requirement to 40 CFR 51.166(k)(1) is codified at 9VAC5-80-
1715, and this requirement is incorporated into the Virginia SIP. 
Therefore, EPA finds Virginia's SIP meets the statutory obligation 
relating to its PSD permit program set forth in section 
110(a)(2)(D)(i)(II) of the CAA for

[[Page 29147]]

the 2008 ozone NAAQS and 2010 NO2 NAAQS.\15\
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    \15\ In addition, Virginia's existing SIP also includes Article 
8 (Permits for Major Stationary Sources and Major Modifications 
Located in Prevention of Significant Deterioration Areas) of Part II 
of 9VAC5 Chapter 80, which provides that construction and 
modification of major stationary sources in PSD areas will not cause 
or contribute to a violation of any NAAQS. Virginia's SIP approved 
PSD program also applies to greenhouse gases through 9VAC5 Chapter 
85, (Permits for Stationary Sources of Pollutants Subject to 
Regulation), which implements EPA's greenhouse gas tailoring 
requirements.
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    Therefore, EPA concludes that Virginia's approved SIP meets 
obligations pursuant to CAA section 110(a)(2)(C), (D)(i)(II), and (J) 
with respect to the part C permit program for the 2008 ozone NAAQS and 
2010 NO2 NAAQS. EPA is proposing approval of a revision to 
the Virginia SIP for Virginia's 2008 ozone and 2010 NO2 
submittals for the following infrastructure elements with respect to 
the Part C PSD permit program: Section 110(a)(2)(C), (D)(i)(II), and 
(J).

IV. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts . . .'' The opinion concludes 
that ``[r]egarding Sec.  10.1-1198, therefore, documents or other 
information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD program consistent with the Federal requirements. In any event, 
because EPA has also determined that a state audit privilege and 
immunity law can affect only state enforcement and cannot have any 
impact on Federal enforcement authorities, EPA may at any time invoke 
its authority under the CAA, including, for example, sections 113, 167, 
205, 211 or 213, to enforce the requirements or prohibitions of the 
state plan, independently of any state enforcement effort. In addition, 
citizen enforcement under section 304 of the CAA is likewise unaffected 
by this, or any, state audit privilege or immunity law.

V. Proposed Action

    EPA is proposing to approve the following infrastructure elements 
of Virginia's July 23, 2012 SIP submittal for the 2008 ozone NAAQS and 
May 30, 2013 SIP submittal for the 2010 NO2 NAAQS with 
respect to PSD: Section 110(a)(2)(C), (D)(i)(II), and (J). EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 
action merely approves state law as meeting Federal requirements and 
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).

[[Page 29148]]

    In addition, this proposed rule, approving Virginia's July 23, 2012 
SIP submission for the 2008 ozone NAAQS and May 30, 2013 SIP submission 
for the 2010 NO2 NAAQS as meeting the PSD elements in 
Section 110(a)(2) of the CAA, 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 8, 2014.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2014-11787 Filed 5-20-14; 8:45 am]
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