[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Rules and Regulations]
[Pages 11557-11573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-04377]



[[Page 11557]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0522; FRL-9923-79-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia 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 implementation, maintenance, and enforcement of the NAAQS. 
These elements are referred to as infrastructure requirements. The 
Commonwealth of Virginia made a submittal addressing the infrastructure 
requirements for the 2010 sulfur dioxide (SO2) primary 
NAAQS.

DATES: This final rule is effective on April 3, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0522. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (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 through www.regulations.gov or in hard 
copy for public inspection 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. Summary of SIP Revision

    On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary 
SO2 NAAQS at a level of 75 parts per billion (ppb), based on 
a 3-year average of the annual 99th percentile of 1-hour daily maximum 
concentrations. The new NAAQS is codified at 40 CFR 50.17, while the 
prior NAAQS are at 40 CFR 50.4. Pursuant to section 110(a)(1) of the 
CAA, states are required to submit SIPs meeting the applicable 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS or within such shorter period as EPA may 
prescribe.
    On June 18, 2014, the Commonwealth of Virginia, through the 
Virginia Department of Environmental Quality (VADEQ), submitted a SIP 
revision that addresses the infrastructure elements specified in 
section 110(a)(2) of the CAA necessary to implement, maintain, and 
enforce the 2010 SO2 NAAQS. On August 22, 2014 (79 FR 
49731), EPA published a notice of proposed rulemaking (NPR) for 
Virginia proposing approval of the submittal. In the NPR, EPA proposed 
approval of the following infrastructure elements: Section 
110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant 
deterioration), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) 
(consultation, public notification, and prevention of significant 
deterioration), (K), (L), and (M).
    Virginia did not submit section 110(a)(2)(I) which pertains to the 
nonattainment requirements of part D, Title I of the CAA, because this 
element is not required to be submitted by the 3-year submission 
deadline of section 110(a)(1) and will be addressed in a separate 
process. At this time, EPA is not taking action on section 
110(a)(2)(D)(i)(II) or (J) for visibility protection for the 2010 
SO2 NAAQS as explained in the NPR. Although Virginia's 
infrastructure SIP submittal for the 2010 SO2 NAAQS referred 
to Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) and (J) 
for visibility protection, EPA intends to take later, separate action 
on Virginia's submittal for these elements as explained in the NPR and 
the Technical Support Document (TSD) which accompanied the NPR. This 
rulemaking action also does not include action on section 
110(a)(2)(D)(i)(I) of the CAA because Virginia's June 18, 2014 
infrastructure SIP submittal did not include provisions for this 
element; therefore EPA will take later, separate action on section 
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for Virginia as 
explained in the NPR. Finally, EPA will also take later, separate 
action with respect to Section 110(a)(2)(E)(ii) regarding CAA section 
128 requirements for State Boards for the 2010 SO2 NAAQS as 
explained in the NPR.
    The rationale supporting EPA's proposed rulemaking action, 
including the scope of infrastructure SIPs in general, is explained in 
the published NPR and the TSD accompanying the NPR and will not be 
restated here. The NPR and TSD are available in the docket for this 
rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-
0522. The discussion below in responding to comments on the NPR 
provides additional rationale to the extent necessary and appropriate 
to provide such responses and support the final action.

II. Public Comments and EPA's Responses

    EPA received comments from the Sierra Club on the August 22, 2014 
proposed rulemaking action on Virginia's 2010 SO2 
infrastructure SIP. A full set of these comments is provided in the 
docket for today's final rulemaking action.

A. Background Comments

1. The Plain Language of the CAA
    Comment 1: Sierra Club contends in background comments that the 
plain language of section 110(a)(2)(A) of the CAA, legislative history 
of the CAA, case law, EPA regulations such as 40 CFR 51.112(a), and EPA 
interpretations in rulemakings require the inclusion of enforceable 
emission limits in an infrastructure SIP to prevent NAAQS exceedances 
in areas not designated nonattainment. Sierra Club then contends that 
the Virginia 2010 SO2 infrastructure SIP revision did not 
revise the existing SO2 emission limits in response to the 
2010 SO2 NAAQS and fails to comport with asserted CAA 
requirements for SIPs to establish enforceable emission limits that are 
adequate to prohibit NAAQS exceedances in areas not designated 
nonattainment.
    The Commenter states that the main objective of the infrastructure 
SIP process ``is to ensure that all areas of the country meet the 
NAAQS,'' and that nonattainment areas are addressed through 
nonattainment SIPs. The Commenter asserts the NAAQS are the foundation 
for specific emission limitations for most large stationary sources, 
such as coal-fired power plants.

[[Page 11558]]

The Commenter discusses the CAA's framework whereby states have primary 
responsibility to assure air quality within the state pursuant to CAA 
section 107(a) which the states carry out through SIPs such as 
infrastructure SIPs required by section 110(a)(2). The Commenter also 
states that on its face the CAA requires infrastructure SIPs ``to be 
adequate to prevent exceedances of the NAAQS.'' In support, the 
Commenter quotes the language in section 110(a)(1) which requires 
states to adopt a plan for implementation, maintenance, and enforcement 
of the NAAQS and the language in section 110(a)(2)(A) which requires 
SIPs to include enforceable emissions limitations as may be necessary 
to meet the requirements of the CAA and which the commenter claims 
include the maintenance plan requirement. Sierra Club notes the CAA 
definition of emission limit and reads these provisions together to 
require ``enforceable emission limits on source emissions sufficient to 
ensure maintenance of the NAAQS.''
    Response 1: EPA disagrees that section 110 is clear ``on its face'' 
and must be interpreted in the manner suggested by Sierra Club. As we 
have previously explained in response to Sierra Club's similar comments 
in taking action on Virginia's 2008 ozone NAAQS infrastructure SIP (see 
79 FR 17043, 17047 (March 27, 2014)), section 110 is only one provision 
that is part of the complicated structure governing implementation of 
the NAAQS program under the CAA, as amended in 1990, and it must be 
interpreted in the context of not only that structure, but also of the 
historical evolution of that structure.
    EPA interprets infrastructure SIPs as more general planning SIPs, 
consistent with the CAA as understood in light of its history and 
structure. When Congress enacted the CAA in 1970, it did not include 
provisions requiring states and the EPA to label areas as attainment or 
nonattainment. Rather, states were required to include all areas of the 
state in ``air quality control regions'' (AQCRs) and section 110 set 
forth the core substantive planning provisions for these AQCRs. At that 
time, Congress anticipated that states would be able to address air 
pollution quickly pursuant to the very general planning provisions in 
section 110 and could bring all areas into compliance with a new NAAQS 
within five years. Moreover, at that time, section 110(a)(2)(A)(i) 
specified that the section 110 plan provide for ``attainment'' of the 
NAAQS and section 110(a)(2)(B) specified that the plan must include 
``emission limitations, schedules, and timetables for compliance with 
such limitations, and such other measures as may be necessary to insure 
attainment and maintenance [of the NAAQS].''
    In 1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of a state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS. In 1990, many areas still had air quality not 
meeting the NAAQS and Congress again amended the CAA and added yet 
another layer of more prescriptive planning requirements for each of 
the NAAQS. At that same time, Congress modified section 110 to remove 
references to the section 110 SIP providing for attainment, including 
removing pre-existing section 110(a)(2)(A) in its entirety and 
renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, 
Congress replaced the clause ``as may be necessary to insure attainment 
and maintenance [of the NAAQS]'' with ``as may be necessary or 
appropriate to meet the applicable requirements of this chapter.'' 
Thus, the CAA has significantly evolved in the more than 40 years since 
it was originally enacted. While at one time section 110 of the CAA did 
provide the only detailed SIP planning provisions for states and 
specified that such plans must provide for attainment of the NAAQS, 
under the structure of the current CAA, section 110 is only the initial 
stepping-stone in the planning process for a specific NAAQS. More 
detailed, later-enacted provisions govern the substantive planning 
process, including planning for attainment of the NAAQS.
    Thus, EPA asserts that section 110 of the CAA is only one provision 
that is part of the complicated structure governing implementation of 
the NAAQS program under the CAA, as amended in 1990, and it must be 
interpreted in the context of that structure and the historical 
evolution of that structure. In light of the revisions to section 110 
since 1970 and the later-promulgated and more specific planning 
requirements of the CAA, EPA reasonably interprets the requirement in 
section 110(a)(2)(A) of the CAA that the plan provide for 
``implementation, maintenance and enforcement'' to mean that the SIP 
must contain enforceable emission limits that will aid in attaining 
and/or maintaining the NAAQS and that the state demonstrate that it has 
the necessary tools to implement and enforce a NAAQS, such as adequate 
state personnel and an enforcement program. EPA has interpreted the 
requirement for emission limitations in section 110 to mean that the 
state may rely on measures already in place to address the pollutant at 
issue or any new control measures that the state may choose to submit. 
Finally, as EPA stated in the Infrastructure SIP Guidance which 
specifically provides guidance to states in addressing the 2010 
SO2 NAAQS, ``[t]he conceptual purpose of an infrastructure 
SIP submission is to assure that the air agency's SIP contains the 
necessary structural requirements for the new or revised NAAQS, whether 
by establishing that the SIP already contains the necessary provisions, 
by making a substantive SIP revision to update the SIP, or both.'' 
Infrastructure SIP Guidance at p. 2.\1\
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    \1\ Thus, EPA disagrees with Sierra Club's general assertion 
that the main objective of infrastructure SIPs is to ensure all 
areas of the country meet the NAAQS, as we believe the 
infrastructure SIP process is the opportunity to review the 
structural requirements of a state's air program. EPA, however, does 
agree with Sierra Club that the NAAQS are the foundation upon which 
emission limitations are set, but we believe, as explained in 
responses to subsequent comments, that these emission limitations 
are generally set in the attainment planning process envisioned by 
part D of title I of the CAA, including, but not limited to, CAA 
sections 172 and 191-192.
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    The Commenter makes general allegations that Virginia does not have 
sufficient protective measures to prevent SO2 NAAQS 
exceedances. EPA addressed the adequacy of Virginia's infrastructure 
SIP for 110(a)(2)(A) purposes to meet applicable requirements of the 
CAA in the TSD accompanying the August 22, 2014 NPR and explained why 
the SIP includes enforceable emission limitations and other control 
measures necessary for maintenance of the 2010 SO2 NAAQS 
throughout the Commonwealth.\2\ These include applicable portions of 
the following chapters of 9 VAC 5: 40 (Existing Stationary Sources),\3\ 
50 (New and Modified Stationary Sources), and 91 (Motor Vehicle 
Inspection and Maintenance in Northern Virginia).\4\

[[Page 11559]]

Further, in 2012, EPA granted limited approval of Virginia's regional 
haze SIP which also includes emission measures related to 
SO2. 77 FR 35287 (June 13, 2012). As discussed in the TSD 
for this rulemaking, EPA finds the provisions for SO2 
emission limitations and measures adequately address section 
110(a)(2)(A) to aid in attaining and/or maintaining the NAAQS and finds 
Virginia demonstrated that it has the necessary tools to implement and 
enforce the NAAQS.
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    \2\ The TSD for this action is available on line at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0522.
    \3\ 9VAC5 Chapter 40 includes emission standards for 
SO2 for many source categories including, but not limited 
to, portland cement, primary and secondary metal operations, 
sulfuric acid production, sulfur recovery operations, and 
lightweight aggregate process operations.
    \4\ When EPA proposed to approve Virginia's SO2 
infrastructure SIP in August 2014, we included in the TSD for 
section 110(a)(2)(A) a reference to 9VAC5 Chapter 140 which was 
Virginia's SIP approved regulations implementing EPA's Clean Air 
Interstate Rule (CAIR), a cap-and-trade program to reduce 
SO2 and nitrogen oxide (NOX) emissions at 
electric generating units (EGUs) aimed at reducing interstate 
impacts on ozone and particulate matter concentrations in downwind 
states. In August 2011, EPA issued the Cross-State Air Pollution 
Rule (CSAPR) to replace CAIR, which had been remanded by the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit). See North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 
2008). See also 76 FR 48208 (August 8, 2011) (promulgation of 
CSAPR). New litigation commenced in the D.C. Circuit concerning 
CSAPR during which the D.C. Circuit initially vacated CSAPR in EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 
cert. granted 133 U.S. 2857 (2013) and ordered continued 
implementation of CAIR. However, the United States Supreme Court 
vacated that decision and remanded CSAPR to the D.C. Circuit for 
further proceedings. EPA v. EME Homer City Generation, L.P., 134 S. 
Ct. 1584 (2014). After the Supreme Court's decision, EPA filed a 
motion to lift the stay of CSAPR and asked the D.C. Circuit to toll 
CSAPR's compliance deadlines by three years. On October 23, 2014, 
after EPA proposed to approve Virginia's SO2 
infrastructure SIP, the D.C. Circuit granted EPA's motion and lifted 
the stay on CSAPR. EME Homer City Generation, L.P. v. EPA, No. 11-
1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views the D.C. 
Circuit's October 23, 2014 Order as also granting EPA's request to 
toll CSAPR's compliance deadlines and will therefore commence 
implementation of CSAPR on January 1, 2015. 79 FR 71663 (December 3, 
2014) (interim final rule revising CSAPR compliance deadlines). 
Therefore, EPA began implementing CSAPR on January 1, 2015 and 
ceased implementing CAIR on December 31, 2014 because CSAPR replaced 
CAIR. Virginia EGU's will continue to be subject to a cap-and-trade 
program for reducing SO2 emissions which will preserve 
reductions at such EGUs achieved through CAIR; however, this program 
will be CSAPR, implemented as a FIP by EPA, until such time as 
Virginia adds the provisions of CSAPR to its SIP. CSAPR requires 
substantial reductions of SO2 and NOX 
emissions from EGUs in 28 states in the Eastern United States that 
significantly contribute to downwind nonattainment or interfere with 
maintenance of the 1997 fine particulate matter (PM2.5) 
and ozone NAAQS and 2006 PM2.5 NAAQS.
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2. The Legislative History of the CAA
    Comment 2: Sierra Club cites two excerpts from the legislative 
history of the 1970 CAA claiming they support an interpretation that 
SIP revisions under CAA section 110 must include emissions limitations 
sufficient to show maintenance of the NAAQS in all areas of Virginia. 
Sierra Club also contends that the legislative history of the CAA 
supports the interpretation that infrastructure SIPs under section 
110(a)(2) must include enforceable emission limitations, citing the 
Senate Committee Report and the subsequent Senate Conference Report 
accompanying the 1970 CAA.
    Response 2: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined that 
structure and deleted relevant language from section 110 concerning 
demonstrating attainment. See also 79 FR at 17046 (responding to 
comments on Virginia's ozone infrastructure SIP). In any event, the two 
excerpts of legislative history the Commenter cites merely provide that 
states should include enforceable emission limits in their SIPs and 
they do not mention or otherwise address whether states are required to 
include maintenance plans for all areas of the state as part of the 
infrastructure SIP. As provided in response to another comment in this 
rulemaking, the TSD for the proposed rule explains why the Virginia SIP 
includes enforceable emissions limitations for SO2 for the 
relevant area.
3. Case Law
    Comment 3: Sierra Club also discusses several cases applying the 
CAA which Sierra Club claims support their contention that courts have 
been clear that section 110(a)(2)(A) requires enforceable emissions 
limits in infrastructure SIPs to prevent exceedances of the NAAQS. 
Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 
(1975), addressing the requirement for ``emission limitations'' and 
stating that emission limitations ``are specific rules to which 
operators of pollution sources are subject, and which, if enforced, 
should result in ambient air which meet the national standards.'' 
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. 
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA 
directs EPA to withhold approval of a SIP where it does not ensure 
maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 
F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the 
CAA of 1970. The commenter contends that the 1990 Amendments do not 
alter how courts have interpreted the requirements of section 110, 
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also 
stated that ``SIPs must include certain measures Congress specified'' 
to ensure attainment of the NAAQS. The Commenter also quotes several 
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to 
develop implementation plans--SIPs--that `assure' attainment and 
maintenance of [NAAQS] through enforceable emissions limitations''); 
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must 
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be 
achieved and maintained within each air quality control region in the 
State''); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. 
Cir. 1982) (CAA requires SIPs to contain ``measures necessary to ensure 
attainment and maintenance of NAAQS''). Finally, Sierra Club cites 
Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) 
for the proposition that EPA may not approve a SIP revision that does 
not demonstrate how the rules would not interfere with attainment and 
maintenance of the NAAQS.
    Response 3: None of the cases Sierra Club cites support its 
contention that section 110(a)(2)(A) is clear that infrastructure SIPs 
must include detailed plans providing for attainment and maintenance of 
the NAAQS in all areas of the state, nor do they shed light on how 
section 110(a)(2)(A) may reasonably be interpreted. With the exception 
of Train, none of the cases the Commenter cites concerned the 
interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of 
the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) 
(or section 110(a)(2)(B) of the pre-1990 CAA) in the background 
sections of decisions in the context of a challenge to an EPA action on 
revisions to a SIP that was required and approved as meeting other 
provisions of the CAA or in the context of an enforcement action.
    In Train, 421 U.S. 60, the Court was addressing a state revision to 
an attainment plan submission made pursuant to section 110 of the CAA, 
the sole statutory provision at that time regulating such submissions. 
The issue in that case concerned whether changes to requirements that 
would occur before attainment was required were variances that should 
be addressed pursuant to the provision governing SIP revisions or were 
``postponements'' that must be addressed under section 110(f) of the 
CAA of 1970, which contained prescriptive criteria. The Court concluded 
that EPA reasonably interpreted section 110(f) not to restrict a 
state's choice of the mix of control measures needed to attain the 
NAAQS and that revisions to SIPs that would not impact attainment of 
the NAAQS by the attainment date were not subject to the limits of 
section 110(f). Thus the issue was not whether a section 110 SIP needs 
to provide for attainment or whether emissions limits are needed as

[[Page 11560]]

part of the SIP; rather the issue was which statutory provision 
governed when the state wanted to revise the emission limits in its SIP 
if such revision would not impact attainment or maintenance of the 
NAAQS. To the extent the holding in the case has any bearing on how 
section 110(a)(2)(A) might be interpreted, it is important to realize 
that in 1975, when the opinion was issued, section 110(a)(2)(B) (the 
predecessor to section 110(a)(2)(A)) expressly referenced the 
requirement to attain the NAAQS, a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the Court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'', not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the Commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). Sierra Club does not raise any concerns 
about whether the measures relied on by the Commonwealth in the 
infrastructure SIP are ``emissions limitations'' and the decision in 
this case has no bearing here.\5\ In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the Court was reviewing a federal implementation plan (FIP) 
that EPA promulgated after a long history of the state failing to 
submit an adequate SIP in response to EPA's finding under section 
110(k)(5) that the previously approved SIP was substantially inadequate 
to attain or maintain the NAAQS, which triggered the state's duty to 
submit a new SIP to show how it would remedy that deficiency and attain 
the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) 
of the CAA for the proposition that SIPs should assure attainment and 
maintenance of NAAQS through emission limitations, but this language 
was not part of the Court's holding in the case, which focused instead 
on whether EPA's finding of SIP inadequacy, disapproval of the state's 
responsive attainment demonstration, and adoption of a remedial FIP 
were lawful. The Commenter suggests that Alaska Dept. of Envtl. 
Conservation, 540 U.S. 461, stands for the proposition that the 1990 
CAA Amendments do not alter how courts interpret section 110. This 
claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), 
which, as noted previously, differs from the pre-1990 version of that 
provision and the court makes no mention of the changed language. 
Furthermore, Sierra Club also quotes the Court's statement that ``SIPs 
must include certain measures Congress specified,'' but that statement 
specifically referenced the requirement in section 110(a)(2)(C), which 
requires an enforcement program and a program for the regulation of the 
modification and construction of new sources. Notably, at issue in that 
case was the state's ``new source'' permitting program, not its 
infrastructure SIP.
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    \5\ While Sierra Club does contend that the Commonwealth 
shouldn't be allowed to rely on emission reductions that were 
developed for the prior SO2 standards (which we address 
herein), it does not claim that any of the measures are not 
``emissions limitations'' within the definition of the CAA.
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    Two of the cases Sierra Club cites, Mich. Dept. of Envtl. Quality, 
230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), 
the provision governing ``revisions'' to plans, and not the initial 
plan submission requirement under section 110(a)(2) for a new or 
revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited to section 110(a)(2)(A) 
solely for the purpose of providing a brief background of the CAA.
    Finally, in Conn. Fund for Env't, Inc. v. EPA, the D.C. Circuit was 
reviewing EPA action on a control measure SIP provision which adjusted 
the percent of sulfur permissible in fuel oil. 696 F.2d 169 (D.C. Cir. 
1982). The D.C. Circuit focused on whether EPA needed to evaluate 
effects of the SIP revision on one pollutant or effects of changes on 
all possible pollutants; therefore, the D.C. Circuit did not address 
required measures for infrastructure SIPs and nothing in the opinion 
addressed whether infrastructure SIPs needed to contain measures to 
ensure attainment and maintenance of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 4: Sierra Club cites to 40 CFR 51.112(a), providing that 
``[e]ach plan must demonstrate that the measures, rules and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' Sierra Club asserts that this regulation 
requires all SIPs to include emissions limits necessary to ensure 
attainment of the NAAQS. Sierra Club states that ``[a]lthough these 
regulations were developed before the Clean Air Act separated 
infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to I-SIPs.'' Sierra Club relies on a statement in the 
preamble to the 1986 action restructuring and consolidating provisions 
in part 51, in which EPA stated that ``[i]t is beyond the scope of 
th[is] rulemaking to address the provisions of Part D of the Act . . 
.'' 51 FR 40656, 40656 (November 7, 1986).
    Response 4: Sierra Club's reliance on 40 CFR 51.112 to support its 
argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS exceedances'' and adequate or sufficient 
to ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the Commenter recognizes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). And, 
it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 191-192. The Commenter suggests that 
these provisions must apply to section 110 SIPs because in the preamble 
to EPA's action ``restructuring and consolidating'' provisions in part 
51, EPA stated that the new attainment demonstration provisions in the 
1977 Amendments to the CAA were ``beyond the scope'' of the rulemaking. 
It is important to note, however, that EPA's action in 1986 was not to 
establish new substantive planning requirements, but rather was meant 
merely to consolidate and restructure provisions that had previously 
been promulgated. EPA noted that it had already issued guidance 
addressing the new ``Part D'' attainment planning obligations. Also, as 
to maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. 51 FR at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``Part

[[Page 11561]]

D'' of the CAA, it is clear that the regulations being restructured and 
consolidated were intended to address control strategy plans. In the 
preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 
51.13 (``Control strategy: SOX and PM (portion)''), 51.14 
(``Control strategy: CO, HC, OX and NO2 
(portion)''), 51.80 (``Demonstration of attainment: Pb (portion)''), 
and 51.82 (``Air quality data (portion)''). Id. at 40660. Thus, the 
present-day 40 CFR 51.112 contains consolidated provisions that are 
focused on control strategy SIPs, and the infrastructure SIP is not 
such a plan.
5. EPA Interpretations in Other Rulemakings
    Comment 5: Sierra Club also references two prior EPA rulemaking 
actions where EPA disapproved or proposed to disapprove SIPs and 
claimed they were actions in which EPA relied on section 110(a)(2)(A) 
and 40 CFR 51.112 to reject infrastructure SIPs. The Commenter first 
points to a 2006 partial approval and partial disapproval of revisions 
to Missouri's existing plan addressing the SO2 NAAQS. In 
that action, EPA cited section 110(a)(2)(A) for disapproving a revision 
to the state plan on the basis that the State failed to demonstrate the 
SIP was sufficient to ensure maintenance of the SO2 NAAQS 
after revision of an emission limit and cited to 40 CFR 51.112 as 
requiring that a plan demonstrates the rules in a SIP are adequate to 
attain the NAAQS. Second, Sierra Club cites a 2013 disapproval of a 
revision to the SO2 SIP for Indiana, where the revision 
removed an emission limit that applied to a specific emissions source 
at a facility in the State. See 78 FR 17157, 17158, (March 20, 2013) 
(proposed rule on Indiana SO2 SIP) and 78 FR 78720, 78721 
(December 27, 2013) (final rule on Indiana SO2 SIP). In its 
proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to 
reject the revision, stating that the State had not demonstrated that 
the emission limit was ``redundant, unnecessary, or that its removal 
would not result in or allow an increase in actual SO2 
emissions.'' EPA further stated in that proposed disapproval that the 
State had not demonstrated that removal of the limit would not ``affect 
the validity of the emission rates used in the existing attainment 
demonstration.''
    Response 5: EPA does not agree that the two prior actions 
referenced by Sierra Club establish how EPA reviews infrastructure 
SIPs. It is clear from both the final Missouri rule and the proposed 
and final Indiana rule that EPA was not reviewing initial 
infrastructure SIP submissions under section 110 of the CAA, but rather 
reviewing revisions that would make an already approved SIP designed to 
demonstrate attainment of the NAAQS less stringent. EPA's partial 
approval and partial disapproval of revisions to restrictions on 
emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 
addressed a control strategy SIP and not an infrastructure SIP. The 
Indiana action provides even less support for the Commenter's position. 
78 FR 78720. The review in that rule was of a completely different 
requirement than the section 110(a)(2)(A) SIP. Rather, in that case, 
the State had an approved SO2 attainment plan and was 
seeking to remove provisions from the SIP that it relied on as part of 
the modeled attainment demonstration. EPA proposed that the State had 
failed to demonstrate under section 110(l) of the CAA why the SIP 
revision would not result in increased SO2 emissions and 
thus interfere with attainment of the NAAQS. See 78 FR 17157. Nothing 
in that proposed or final rulemaking addresses the necessary content of 
the initial infrastructure SIP for a new or revised NAAQS. Rather, it 
is simply applying the clear statutory requirement that a state must 
demonstrate why a revision to an approved attainment plan will not 
interfere with attainment of the NAAQS.
    As discussed in detail in the TSD and NPR, EPA finds the Virginia 
SIP meets the appropriate and relevant structural requirements of 
section 110(a)(2) of the CAA that will aid in attaining and/or 
maintaining the NAAQS and that the Commonwealth demonstrated that it 
has the necessary tools to implement and enforce a NAAQS. Therefore, 
EPA approves the Virginia SO2 infrastructure SIP.\6\
---------------------------------------------------------------------------

    \6\ As stated previously, EPA will take later, separate action 
on several portions of Virginia's SO2 infrastructure SIP 
submittal including the portions of the SIP submittal addressing 
section 110(a)(2)(D)(i)(II) and (J) (both for visibility protection) 
and 110(a)(2)(E)(ii) for State Boards.
---------------------------------------------------------------------------

B. Comments on Virginia SIP SO2 Emission Limits

    Comment 6: Citing section 110(a)(2)(A) of the CAA, Sierra Club 
contends that EPA may not approve the proposed infrastructure SIP 
because it does not include enforceable 1-hour SO2 emission 
limits for sources currently allowed to cause ``NAAQS exceedances.'' 
Sierra Club asserts the proposed infrastructure SIP fails to include 
enforceable 1-hour SO2 emissions limits or other required 
measures to ensure attainment and maintenance of the SO2 
NAAQS in areas not designated nonattainment as Sierra Club claims is 
required by section 110(a)(2)(A). Sierra Club asserts an infrastructure 
SIP must ensure, through state-wide regulations or source specific 
requirements, proper mass limitations and short term averaging on 
specific large sources of pollutants such as power plants. Sierra Club 
asserts that emission limits are especially important for meeting the 
1-hour SO2 NAAQS because SO2 impacts are strongly 
source-oriented. Sierra Club states coal-fired electric generating 
units (EGUs) are large contributors to SO2 emissions but 
contends Virginia did not demonstrate that emissions allowed by the 
proposed infrastructure SIP from such large sources of SO2 
will ensure compliance with the 2010 1-hour SO2 NAAQS. The 
Commenter claims the proposed infrastructure SIP would allow major 
sources to continue operating with present emission limits.\7\ Sierra 
Club then refers to air dispersion modeling it conducted for two coal-
fired EGUs in Virginia, Chesapeake Energy Center and Yorktown Power 
Station. Sierra Club asserts the results of the air dispersion modeling 
it conducted employing EPA's AERMOD program for modeling used the 
plants' allowable and maximum emissions and showed the plants could 
cause exceedances of the 2010 SO2 NAAQS with either 
allowable or maximum emissions.\8\ Based on the modeling, Sierra Club 
asserts the Virginia SO2 infrastructure SIP submittal 
authorizes the two EGUs to cause exceedances of the NAAQS with 
allowable and maximum emission rates and therefore the infrastructure 
SIP fails to include adequate enforceable emission limitations or other 
required measures for sources of SO2 sufficient to ensure 
attainment and maintenance of the 2010 SO2 NAAQS. Sierra 
Club cites to information from the owner of Chesapeake Energy Center 
and Yorktown Power Station regarding the retirement of certain units at 
those plants in 2015 and 2016 and asserts such planned retirements 
should be incorporated into the Virginia infrastructure SIP as 
necessary to ensure attainment and maintenance of the NAAQS. Sierra 
Club therefore asserts EPA must disapprove Virginia's proposed SIP 
revision. In addition, Sierra Club asserts ``EPA must impose additional 
emission limits on the plants

[[Page 11562]]

that ensure attainment and maintenance of the NAAQS at all times.''
---------------------------------------------------------------------------

    \7\ Sierra Club provides a chart in its comments claiming 65 
percent of SO2 emissions in Virginia are from coal-fired 
power plants based on 2011 data.
    \8\ Sierra Club asserts its modeling followed protocols pursuant 
to 40 CFR part 50, Appendix W and EPA's 2005 Guideline on Air 
Quality Models.
---------------------------------------------------------------------------

    Response 6: EPA believes that section 110(a)(2)(A) of the CAA is 
reasonably interpreted to require states to submit infrastructure SIPs 
that reflect the first step in their planning for attainment and 
maintenance of a new or revised NAAQS. These SIP revisions should 
contain a demonstration that the state has the available tools and 
authority to develop and implement plans to attain and maintain the 
NAAQS and show that the SIP has enforceable control measures. In light 
of the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state. As mentioned 
above, EPA has interpreted this to mean, with regard to the requirement 
for emission limitations, that states may rely on measures already in 
place to address the pollutant at issue or any new control measures 
that the state may choose to submit.
    As stated in response to a previous comment, EPA asserts that 
section 110 of the CAA is only one provision that is part of the 
complicated structure governing implementation of the NAAQS program 
under the CAA, as amended in 1990, and it must be interpreted in the 
context of not only that structure, but also of the historical 
evolution of that structure. In light of the revisions to section 110 
since 1970 and the later-promulgated and more specific planning 
requirements of the CAA, EPA reasonably interprets the requirement in 
section 110(a)(2)(A) of the CAA that the plan provide for 
``implementation, maintenance and enforcement'' to mean that the SIP 
must contain enforceable emission limits that will aid in attaining 
and/or maintaining the NAAQS and that the Commonwealth demonstrate that 
it has the necessary tools to implement and enforce a NAAQS, such as 
adequate state personnel and an enforcement program. As discussed 
above, EPA has interpreted the requirement for emission limitations in 
section 110 to mean that the state may rely on measures already in 
place to address the pollutant at issue or any new control measures 
that the state may choose to submit. Finally, as EPA stated in the 
Infrastructure SIP Guidance which specifically provides guidance to 
states in addressing the 2010 SO2 NAAQS, ``[t]he conceptual 
purpose of an infrastructure SIP submission is to assure that the air 
agency's SIP contains the necessary structural requirements for the new 
or revised NAAQS, whether by establishing that the SIP already contains 
the necessary provisions, by making a substantive SIP revision to 
update the SIP, or both.'' Infrastructure SIP Guidance at p. 2.
    On April 12, 2012, EPA explained its expectations regarding the 
2010 SO2 NAAQS via letters to each of the states. EPA 
communicated in the April 2012 letters that all states were expected to 
submit SIPs meeting the ``infrastructure'' SIP requirements under 
section 110(a)(2) of the CAA by June 2013. At the time, EPA was 
undertaking a stakeholder outreach process to continue to develop 
possible approaches for determining attainment status under the 
SO2 NAAQS and implementing this NAAQS. EPA was abundantly 
clear in the April 2012 letters that EPA did not expect states to 
submit substantive attainment demonstrations or modeling demonstrations 
showing attainment for areas not designated nonattainment in 
infrastructure SIPs due in June 2013. Although EPA had previously 
suggested in its 2010 SO2 NAAQS preamble and in prior draft 
implementation guidance in 2011 that states should, in the unique 
SO2 context, use the section 110(a) SIP process as the 
vehicle for demonstrating attainment of the NAAQS, this approach was 
never adopted as a binding requirement and was subsequently discarded 
in the April 2012 letters to states. The April 2012 letters recommended 
states focus infrastructure SIPs due in June 2013, such as Virginia's 
SO2 infrastructure SIP, on traditional ``infrastructure 
elements'' in section 110(a)(1) and (2) rather than on modeling 
demonstrations for future attainment for areas not designated as 
nonattainment.\9\
---------------------------------------------------------------------------

    \9\ In EPA's final SO2 NAAQS preamble (75 FR 35520 
(June 22, 2010)) and subsequent draft guidance in March and 
September 2011, EPA had expressed its expectation that many areas 
would be initially designated as unclassifiable due to limitations 
in the scope of the ambient monitoring network and the short time 
available before which states could conduct modeling to support 
their designations recommendations due in June 2011. In order to 
address concerns about potential violations in these unclassifiable 
areas, EPA initially recommended that states submit substantive 
attainment demonstration SIPs based on air quality modeling by June 
2013 (under section 110(a)) that show how their unclassifiable areas 
would attain and maintain the NAAQS in the future. Implementation of 
the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, 
May 2012 (2012 Draft White Paper) (for discussion purposes with 
Stakeholders at meetings in May and June 2012), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA 
clearly stated in this 2012 Draft White Paper its clarified 
implementation position that it was no longer recommending such 
attainment demonstrations for unclassifiable areas for June 2013 
infrastructure SIPs. Id. EPA had stated in the preamble to the NAAQS 
and in the prior 2011 draft guidance that EPA intended to develop 
and seek public comment on guidance for modeling and development of 
SIPs for sections 110 and 191 of the CAA. Section 191 of the CAA 
requires states to submit SIPs in accordance with section 172 for 
areas designated nonattainment with the SO2 NAAQS. After 
seeking such comment, EPA has now issued guidance for the 
nonattainment area SIPs due pursuant to sections 191 and 172. See 
Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions, Stephen 
D. Page, Director, EPA's Office of Air Quality Planning and 
Standards, to Regional Air Division Directors Regions 1-10, April 
23, 2014. In September 2013, EPA had previously issued specific 
guidance relevant to infrastructure SIP submissions due for the 
NAAQS, including the 2010 SO2 NAAQS. See Infrastructure 
SIP Guidance.
---------------------------------------------------------------------------

    Therefore, EPA asserts the elements of section 110(a)(2) which 
address SIP revisions for SO2 nonattainment areas including 
measures and modeling demonstrating attainment are due by the dates 
statutorily prescribed under subpart 5 under part D. Those submissions 
are due no later than 18 months after an area is designed nonattainment 
for SO2, under CAA section 191(a). Thus, the CAA directs 
states to submit these 110(a)(2) elements for nonattainment areas on a 
separate schedule from the ``structural requirements'' of 110(a)(2) 
which are due within three years of adoption or revision of a NAAQS. 
The infrastructure SIP submission requirement does not move up the date 
for any required submission of a part D plan for areas designated 
nonattainment for the new NAAQS. Thus, elements relating to 
demonstrating attainment for areas not attaining the NAAQS are not 
necessary for infrastructure SIP submissions, and the CAA does not 
provide explicit requirements for demonstrating attainment for areas 
that have not yet been designated regarding attainment with a 
particular NAAQS.
    As stated previously, EPA believes that the proper inquiry at this 
juncture is whether Virginia has met the basic structural SIP 
requirements appropriate at the point in time EPA is acting upon the 
infrastructure submittal. Emissions limitations and other control 
measures needed to attain the NAAQS in areas designated nonattainment 
for that NAAQS are due on a different schedule from the section 110 
infrastructure elements. A state, like Virginia, may reference pre-
existing SIP emission limits or other rules contained in part D plans 
for previous NAAQS in an infrastructure SIP submission. For example, 
Virginia submitted a list of existing emission reduction measures in 
the SIP that control emissions of SO2 as discussed above in 
response to a prior comment and discussed in detail in the

[[Page 11563]]

TSD. These provisions have the ability to reduce SO2 
overall. Although the Virginia SIP relies on measures and programs used 
to implement previous SO2 NAAQS, these provisions are not 
limited to reducing SO2 levels to meet one specific NAAQS 
and will continue to provide benefits for the 2010 SO2 
NAAQS.
    Additionally, as discussed in EPA's TSD supporting the NPR, 
Virginia has the ability to revise its SIP when necessary (e.g. in the 
event the Administrator finds the plan to be substantially inadequate 
to attain the NAAQS or otherwise meet all applicable CAA requirements) 
as required under element H of section 110(a)(2). See Code of Virginia 
10.1-1308 (authorizing Virginia's Air Pollution Control Board to 
promulgate regulations to abate, control, and prohibit air pollution 
throughout the Commonwealth).
    EPA believes the requirements for emission reduction measures for 
an area designated nonattainment for the 2010 primary SO2 
NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the 
appropriate avenue for implementing requirements for necessary emission 
limitations for demonstrating attainment with the 2010 SO2 
NAAQS is through the attainment planning process contemplated by those 
sections of the CAA. On August 5, 2013, EPA designated as nonattainment 
most areas in locations where existing monitoring data from 2009-2011 
indicated violations of the 1-hour SO2 standard. 78 FR 
47191. At that time, no areas in Virginia had monitoring data from 
2009-2011 indicating violations of the 1-hour SO2 standard, 
and thus no areas were designated nonattainment in Virginia. In 
separate future actions, EPA intends to address the designations for 
all other areas for which EPA has yet to issue designations. See, e.g., 
79 FR 27446 (May 13, 2014) (proposing process and timetables by which 
state air agencies would characterize air quality around SO2 
sources through ambient monitoring and/or air quality modeling 
techniques and submit such data to the EPA). Although no areas within 
Virginia have yet been designated nonattainment, any future 
nonattainment designations under the 2010 SO2 NAAQS within 
the Commonwealth will set appropriate due dates for any applicable 
attainment SIPs required pursuant to CAA sections 172, 191, and 192. 
EPA believes it is not appropriate to bypass the attainment planning 
process by imposing separate attainment planning process requirements 
outside the attainment planning process and into the infrastructure SIP 
process. Such actions would be disruptive and premature absent 
exceptional circumstances and would interfere with a state's planning 
process. See In the Matter of EME Homer City Generation LP and First 
Energy Generation Corp., Order on Petitions Numbers III-2012-06, III-
2012-07, and III2013-01 (July 30, 2014) (hereafter, Homer City/
Mansfield Order) at 10-19 (finding Pennsylvania SIP did not require 
imposition of SO2 emission limits on sources independent of 
the part D attainment planning process contemplated by the CAA). EPA 
believes that the history of the CAA, and intent of Congress for the 
CAA as described above, demonstrate clearly that it is within the 
section 172 and general part D attainment planning process that 
Virginia must include additional SO2 emission limits on 
sources in order to demonstrate future attainment, where needed, for 
any areas in Virginia or other states that may be designated 
nonattainment in the future, in order to reach attainment with the 2010 
1-hour SO2 NAAQS.
    The Commenter's reliance on 40 CFR 51.112 to support its argument 
that infrastructure SIPs must contain emission limits adequate to 
provide for timely attainment and maintenance of the standard is also 
not supported. As explained previously in response to the background 
comments, EPA notes this regulatory provision clearly on its face 
applies to plans specifically designed to attain the NAAQS and not to 
infrastructure SIPs which show the states have in place structural 
requirements necessary to implement the NAAQS. Therefore, EPA finds 40 
CFR 51.112 inapplicable to its analysis of the Virginia SO2 
infrastructure SIP.
    As noted in EPA's preamble for the 2010 SO2 NAAQS, 
determining compliance with the SO2 NAAQS will likely be a 
source-driven analysis, and EPA has explored options to ensure that the 
SO2 designations and implementation processes realistically 
account for anticipated SO2 reductions at sources that we 
expect will be achieved by current and pending national and regional 
rules. See 75 FR 35520. As mentioned previously above, EPA has proposed 
a process to address additional areas in states which may be found to 
not be attaining the 2010 SO2 NAAQS. 79 FR 27446 (proposing 
process for further monitoring or modeling of areas with larger 
SO2 sources). In addition, in response to lawsuits in 
district courts seeking to compel EPA's remaining designations of 
undesignated areas under the NAAQS, EPA has proposed to enter a 
settlement under which this process would require an earlier round of 
designations focusing on areas with larger sources of SO2 
emissions, as well as enforceable deadlines for the later rounds of 
designations.\10\ However, because the purpose of an infrastructure SIP 
submission is for more general planning purposes, EPA does not believe 
Virginia is obligated to account for controlled SO2 levels 
at individual sources during this infrastructure SIP planning process. 
See Homer City/Mansfield Order at 10-19.
---------------------------------------------------------------------------

    \10\ These lawsuits have not yet been fully resolved, as of the 
date of this final action.
---------------------------------------------------------------------------

    Regarding the air dispersion modeling conducted by Sierra Club 
pursuant to AERMOD for the coal-fired EGUs including Chesapeake Energy 
Center and Yorktown Power Station, EPA is not at this stage prepared to 
opine on whether the modeling demonstrates violations of the NAAQS, and 
does not find the modeling information relevant for review of an 
infrastructure SIP. EPA has issued non-binding guidance for states to 
use in conducting, if they choose, additional analysis to support 
designations for the 2010 SO2 NAAQS. SO2 NAAQS Designations 
Modeling Technical Assistance Document, EPA Office of Air and Radiation 
and Office of Air Quality Planning and Standards, December 2013, 
available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. Sierra Club's AERMOD modeling for the Virginia EGUs was 
conducted prior to the issuance of this guidance and may not address 
all recommended elements EPA may consider important to modeling for the 
2010 SO2 NAAQS for designations purposes. If any areas in 
Virginia are designated nonattainment in the future, any potential 
future modeling in attainment demonstrations by the Commonwealth would 
need to account for any new emissions limitations Virginia develops to 
support such demonstration, which at this point are unknown. Therefore, 
it is premature at this point to evaluate whether current modeled 
allowable SO2 levels would be sufficient to show future 
attainment of the NAAQS. In addition, while EPA has extensively 
discussed the use of modeling for attainment demonstration purposes and 
for designations, EPA has recommended that such modeling was not needed 
for the SO2 infrastructure SIPs needed for the 2010 
SO2 NAAQS. See April 12, 2012 letters to states and 2012 
Draft White Paper. In contrast, EPA recently discussed modeling for 
designations in our May 14, 2014 proposal at 79 FR 27446 and for 
nonattainment planning in the April 23,

[[Page 11564]]

2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions.\11\
---------------------------------------------------------------------------

    \11\ EPA does not disagree with Sierra Club's data indicating 
coal-fired power plants represented a majority of the SO2 
emissions in Virginia based on 2011 data. However, such data are not 
relevant to EPA's approval of Virginia's SO2 
infrastructure SIP, and EPA therefore provides no additional 
response.
---------------------------------------------------------------------------

    Finally, EPA also disagrees with the Commenter that the Virginia 
infrastructure SIP should incorporate the planned retirement dates of 
certain emission units at Chesapeake Energy Center and Yorktown Power 
Station to ensure attainment and maintenance of the NAAQS. Because EPA 
does not believe Virginia's infrastructure SIP requires at this time 1-
hour SO2 emission limits on these sources or other large 
stationary sources to prevent exceedances of the SO2 NAAQS 
for all the reasons discussed above in this response, EPA likewise does 
not believe incorporating planned retirement dates for SO2 
emitters is necessary for our approval of an infrastructure SIP which 
we have explained meets the structural requirements of section 
110(a)(2). If any areas in Virginia are subsequently designated 
nonattainment with the 2010 SO2 NAAQS, Virginia can address 
needed emission reductions, including reductions through source 
retirements, in any subsequent attainment planning process in 
accordance with part D of title I of the CAA.
    In conclusion, EPA disagrees with Sierra Club's statements that EPA 
must disapprove Virginia's infrastructure SIP submission because it 
does not establish specific enforceable SO2 emission limits, 
either on coal-fired EGUs or other large SO2 sources, in 
order to demonstrate attainment and maintenance with the NAAQS at this 
time.
    Comment 7: Sierra Club asserts that modeling is the appropriate 
tool for evaluating adequacy of infrastructure SIPs and ensuring 
attainment and maintenance of the 2010 SO2 NAAQS. The 
Commenter refers to EPA's historic use of air dispersion modeling for 
attainment designations as well as ``SIP revisions.'' The Commenter 
cites to prior EPA statements that the Agency has used modeling for 
designations and attainment demonstrations, including statements in the 
2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for 
Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 
SO2 Guideline Document, as modeling could better address the 
source-specific impacts of SO2 emissions and historic 
challenges from monitoring SO2 emissions.\12\
---------------------------------------------------------------------------

    \12\ The Commenter also cites to a 1983 EPA Memorandum on 
section 107 designations policy regarding use of modeling for 
designations and to the 2012 Mont. Sulphur & Chem. Co. case which 
upheld EPA's finding that the previously approved SIP for an area in 
Montana was substantially inadequate to attain the NAAQS due to 
modeled violations of the NAAQS.
---------------------------------------------------------------------------

    Sierra Club also cited to several cases upholding EPA's use of 
modeling in NAAQS implementation actions, including the Montana Sulphur 
case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic 
Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County 
v. EPA, 571 F.3d 20 (D.C. Cir. 2009). The Commenter discusses 
statements made by EPA staff regarding the use of modeling and 
monitoring in setting emission limitations or determining ambient 
concentrations as a result of a source's emissions, discussing 
performance of AERMOD as a model, if AERMOD is capable of predicting 
whether the NAAQS is attained, and whether individual sources 
contribute to SO2 NAAQS violations. Sierra Club cites to 
EPA's history of employing air dispersion modeling for increment 
compliance verifications in the permitting process for the Prevention 
of Significant Deterioration (PSD) program required in part C of title 
I of the CAA. The Commenter claims the Chesapeake Energy Center and 
Yorktown Power Station are examples of sources located in elevated 
terrain where the AERMOD model functions appropriately in evaluating 
ambient impacts.
    Sierra Club asserts EPA's use of air dispersion modeling was upheld 
in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU 
challenged EPA's use of CAA section 126 to impose SO2 
emission limits on a source due to cross-state impacts. The Commenter 
claims the Third Circuit in GenOn REMA upheld EPA's actions after 
examining the record which included EPA's air dispersion modeling of 
the one source as well as other data.
    The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto 
Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 
(D.C. Cir. 2009) for the general proposition that it would be arbitrary 
and capricious for an agency to ignore an aspect of an issue placed 
before it and that an agency must consider information presented during 
notice-and-comment rulemaking.
    Finally, Sierra Club claims that Virginia's proposed SO2 
infrastructure SIP lacks emission limitations informed by air 
dispersion modeling and therefore fails to ensure Virginia will achieve 
and maintain the 2010 SO2 NAAQS. Sierra Club claims EPA must 
require adequate, 1-hour SO2 emission limits in the 
infrastructure SIP that show no exceedances of NAAQS when modeled.
    Response 7: EPA agrees with Sierra Club that air dispersion 
modeling, such as AERMOD, can be an important tool in the CAA section 
107 designations process for SO2 and in the sections 172 and 
191-192 attainment SIP process, including supporting required 
attainment demonstrations. EPA agrees that prior EPA statements, EPA 
guidance, and case law support the use of air dispersion modeling in 
the SO2 designations process and attainment demonstration 
process, as well as in analyses of whether existing approved SIPs 
remain adequate to show attainment and maintenance of the 
SO2 NAAQS. However, EPA disagrees with the Commenter that 
EPA must disapprove the Virginia SO2 infrastructure SIP for 
its alleged failure to include source-specific SO2 emission 
limits that show no exceedances of the NAAQS when modeled.
    As discussed above and in the Infrastructure SIP Guidance, EPA 
believes the conceptual purpose of an infrastructure SIP submission is 
to assure that the air agency's SIP contains the necessary structural 
requirements for the new or revised NAAQS and that the infrastructure 
SIP submission process provides an opportunity to review the basic 
structural requirements of the air agency's air quality management 
program in light of the new or revised NAAQS. See Infrastructure SIP 
Guidance at p. 2. EPA believes the attainment planning process detailed 
in part D of the CAA, including sections 172 and 191-192 attainment 
SIPs, is the appropriate place for the state to evaluate measures 
needed to bring nonattainment areas into attainment with a NAAQS and to 
impose additional emission limitations such as SO2 emission 
limits on specific sources.
    EPA had initially recommended that states submit substantive 
attainment demonstration SIPs based on air quality modeling in the 
final 2010 SO2 NAAQS preamble (75 FR 35520) and in 
subsequent draft guidance issued in September 2011 for the section 
110(a) SIPs due in June 2013 in order to show how areas expected to be 
designated as unclassifiable would attain and maintain the NAAQS. These 
initial statements in the preamble and 2011 draft guidance were based 
on EPA's expectation at the time, that by June 2012, most areas would 
initially be designated as unclassifiable due to limitations in the 
scope of the ambient monitoring network and the short time available 
before which states could conduct modeling to support designations 
recommendations in 2011.

[[Page 11565]]

However, after conducting extensive stakeholder outreach and receiving 
comments from the states regarding these initial statements and the 
timeline for implementing the NAAQS, EPA subsequently stated in the 
April 12, 2012 letters and in the 2012 Draft White Paper that EPA was 
clarifying its implementation position and was no longer recommending 
such attainment demonstrations supported by air dispersion modeling for 
unclassifiable areas (which had not yet been designated) for the June 
2013 infrastructure SIPs. EPA then reaffirmed this position in the 
February 6, 2013 memorandum, ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard.'' \13\ As previously mentioned, EPA had stated in the 
preamble to the NAAQS and in the prior 2011 draft guidance that EPA 
intended to develop and seek public comment on guidance for modeling 
and development of SIPs for sections 110, 172 and 191-192 of the CAA. 
After receiving such further comment, EPA has now issued guidance for 
the nonattainment area SIPs due pursuant to sections 172 and 191-192 
and proposed a process for further characterization of areas with 
larger SO2 sources, which could include use of air 
dispersion modeling. See April 23, 2014 Guidance for 1-Hour SO2 
Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process 
and timetables for gathering additional information on impacts from 
larger SO2 sources informed through ambient monitoring and/
or air quality modeling). While the EPA guidance for attainment SIPs 
and the proposed process for further characterizing SO2 
emissions from larger sources both discuss the use air dispersion 
modeling, EPA's 2013 Infrastructure SIP Guidance did not suggest that 
states use air dispersion modeling to inform emission limitations for 
section 110(a)(2)(A) to ensure no exceedances of the NAAQS when sources 
are modeled. Therefore, as discussed previously, EPA believes the 
Virginia SO2 infrastructure SIP submittal contains the 
structural requirements to address elements in section 110(a)(2) as 
discussed in detail in the TSD accompanying the proposed approval. EPA 
believes infrastructure SIPs are general planning SIPs to ensure that a 
state has adequate resources and authority to implement a NAAQS. 
Infrastructure SIP submissions are not intended to act or fulfill the 
obligations of a detailed attainment and/or maintenance plan for each 
individual area of the state that is not attaining the NAAQS. While 
infrastructure SIPs must address modeling authorities in general for 
section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure 
SIPs to provide the state's authority for air quality modeling and for 
submission of modeling data to EPA, not specific air dispersion 
modeling for large stationary sources of pollutants. In the TSD for 
this rulemaking action, EPA provided a detailed explanation of 
Virginia's ability and authority to conduct air quality modeling when 
required and its authority to submit modeling data to the EPA.
---------------------------------------------------------------------------

    \13\ The February 6, 2013 ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard,'' one of the April 12, 2012 state letters, and the May 
2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    EPA finds Sierra Club's discussion of case law, guidance, and EPA 
staff statements regarding advantages of AERMOD as an air dispersion 
model to be irrelevant to the analysis of Virginia's infrastructure SIP 
as this is not an attainment SIP required to demonstrate attainment of 
the NAAQS pursuant to sections 172 or 192. In addition, Sierra Club's 
comments relating to EPA's use of AERMOD or modeling in general in 
designations pursuant to section 107, including its citation to Catawba 
County, are likewise irrelevant as EPA's present approval of Virginia's 
infrastructure SIP is unrelated to the section 107 designations 
process. Nor is EPA's action on this infrastructure SIP related to any 
new source review (NSR) or PSD permit program issue. As outlined in the 
August 23, 2010 clarification memo, ``Applicability of Appendix W 
Modeling Guidance for the 1-hour SO2 National Ambient Air 
Quality Standard'' (U.S. EPA, 2010a), AERMOD is the preferred model for 
single source modeling to address the 1-hour SO2 NAAQS as 
part of the NSR/PSD permit programs. Therefore, as attainment SIPs, 
designations, and NSR/PSD actions are outside the scope of a required 
infrastructure SIP for the 2010 SO2 NAAQS for section 
110(a), EPA provides no further response to the Commenter's discussion 
of air dispersion modeling for these applications. If Sierra Club 
resubmits its air dispersion modeling for the Virginia EGUs, or updated 
modeling information in the appropriate context, EPA will address the 
resubmitted modeling or updated modeling in the appropriate future 
context when an analysis of whether Virginia's emissions limits are 
adequate to show attainment and maintenance of the NAAQS is warranted.
    The Commenter correctly noted that the Third Circuit upheld EPA's 
Section 126 Order imposing SO2 emissions limitations on an 
EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. 
Pursuant to section 126, any state or political subdivision may 
petition EPA for a finding that any major source or group of stationary 
sources emits, or would emit, any air pollutant in violation of the 
prohibition of section 110(a)(2)(D)(i)(I) which relates to significant 
contributions to nonattainment or maintenance in another state. The 
Third Circuit upheld EPA's authority under section 126 and found EPA's 
actions neither arbitrary nor capricious after reviewing EPA's 
supporting docket which included air dispersion modeling as well as 
ambient air monitoring data showing violations of the NAAQS. The 
Commenter appears to have cited to this matter to demonstrate EPA's use 
of modeling for certain aspects of the CAA. EPA agrees with the 
Commenter regarding the appropriate role air dispersion modeling has 
for SO2 NAAQS designations, attainment SIPs, and 
demonstrating significant contributions to interstate transport. 
However, EPA's approval of Virginia's infrastructure SIP is based on 
our determination that Virginia has the required structural 
requirements pursuant to section 110(a)(2) in accordance with our 
explanation of the intent for infrastructure SIPs as discussed in the 
2013 Infrastructure SIP Guidance. Therefore, while air dispersion 
modeling may be appropriate for consideration in certain circumstances, 
EPA does not find air dispersion modeling demonstrating no exceedances 
of the NAAQS to be a required element before approval of infrastructure 
SIPs for section 110(a) or specifically for 110(a)(2)(A). Thus, EPA 
disagrees with the Commenter that EPA must require additional emission 
limitations in the Virginia SO2 infrastructure SIP informed 
by air dispersion modeling and demonstrating attainment and maintenance 
of the 2010 NAAQS.
    In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n 
and NRDC v. EPA to support its comments that EPA must consider the 
Sierra Club's modeling data on the Chesapeake Energy Center and 
Yorktown Power Station based on administrative law principles regarding 
consideration of comments provided during a rulemaking process. EPA 
asserts that it has considered the modeling submitted by the Commenter 
as well as all the submitted comments of Sierra Club. As discussed in 
detail in the Responses above, however, EPA does not believe the 
infrastructure SIPs required by

[[Page 11566]]

section 110(a) are the appropriate place to require emission limits 
demonstrating future attainment with a NAAQS. Part D of title I of the 
CAA contains numerous requirements for the NAAQS attainment planning 
process, including requirements for attainment demonstrations in 
section 172 supported by appropriate modeling. As also discussed 
previously, section 107 supports EPA's use of modeling in the 
designations process. In Catawba, the D.C. Circuit upheld EPA's 
consideration of data or factors for designations other than ambient 
monitoring. EPA does not believe infrastructure SIPs must contain 
emission limitations informed by air dispersion modeling in order to 
meet the requirements of section 110(a)(2)(A). Thus, EPA has evaluated 
the persuasiveness of the Commenter's submitted modeling in finding 
that it is not relevant to the approvability of Virginia's proposed 
infrastructure SIP for the 2010 SO2 NAAQS.
    While EPA does not believe that infrastructure SIP submissions are 
required to contain emission limits, as suggested by the Commenter, EPA 
does recognize that in the past, states have used infrastructure SIP 
submittals as a `vehicle' for incorporating regulatory revisions or 
source-specific emission limits into the state's plan. See 78 FR 73442 
(December 6, 2013) (approving regulations Maryland submitted for 
incorporation into the SIP along with the 2008 Ozone infrastructure SIP 
to address ethics requirements for State Boards in sections 128 and 
110(a)(2)(E)(ii)). While these SIP revisions are intended to help the 
state meet the requirements of section 110(a)(2), these ``ride-along'' 
SIP revisions are not intended to signify that all infrastructure SIP 
submittals should have similar regulatory revisions or source-specific 
emission limits. Rather, the regulatory provisions and source-specific 
emission limits the state relies on when showing compliance with 
section 110(a)(2) have likely already been incorporated into the 
state's SIP prior to each new infrastructure SIP submission; in some 
cases this was done for entirely separate CAA requirements, such as 
attainment plans required under section 172, or for previous NAAQS.
    Comment 8: Sierra Club asserts that EPA may not approve the 
Virginia proposed SO2 infrastructure SIP because it fails to 
include enforceable emission limitations with a 1-hour averaging time 
that applies at all times. The Commenter cites to CAA section 302(k) 
which requires emission limits to apply on a continuous basis. The 
Commenter claims EPA has stated that 1-hour averaging times are 
necessary for the 2010 SO2 NAAQS citing to a February 3, 
2011, EPA Region 7 letter to the Kansas Department of Health and 
Environment regarding the need for 1-hour SO2 emission 
limits in a PSD permit, an EPA Environmental Hearing Board (EHB) 
decision rejecting use of a 3-hour averaging time for a SO2 
limit in a PSD permit, and EPA's disapproval of a Missouri SIP which 
relied on annual averaging for SO2 emission rates.\14\
---------------------------------------------------------------------------

    \14\ Sierra Club cited to In re: Mississippi Lime Co., 
PSDAPLPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 
71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control 
strategy SO2 SIP).
---------------------------------------------------------------------------

    Sierra Club also contends that infrastructure SIPs approved by EPA 
must include monitoring of SO2 emission limits on a 
continuous basis using a continuous emission monitor system or systems 
(CEMS) and cites to section 110(a)(2)(F) which requires a SIP to 
establish a system to monitor emissions from stationary sources and to 
require submission of periodic emission reports. Sierra Club contends 
infrastructure SIPs must require such SO2 CEMS to monitor 
SO2 sources regardless of whether sources have control 
technology installed to ensure limits are protective of the NAAQS. 
Sierra Club contends any monitoring performed for the New Source 
Performance Standards (NSPS) in 40 CFR part 60 is inadequate for the 
NAAQS because NSPS monitoring does not call for monitoring during every 
hour of source operation which Sierra Club asserts is needed to protect 
the 1-hour SO2 NAAQS. Thus, Sierra Club contends EPA must 
require enforceable emission limits, applicable at all times, with 1-
hour averaging periods, monitored continuously by large sources of 
SO2 emissions with CEMS, and therefore must disapprove 
Virginia's infrastructure SIP which Sierra Club claims fails to require 
emission limits with adequate averaging times.
    Response 8: EPA disagrees that EPA must disapprove the proposed 
Virginia infrastructure SIP because the SIP does not contain 
enforceable SO2 emission limitations with 1-hour averaging 
periods that apply at all times, along with requiring CEMS, as these 
issues are not appropriate for resolution at this stage in advance of 
the state's submission of an attainment demonstration for areas which 
may be designated nonattainment pursuant to section 107 of the CAA.\15\ 
As explained in detail in previous responses, the purpose of the 
infrastructure SIP is to ensure that a state has the structural 
capability to attain and maintain the NAAQS and thus, additional 
SO2 emission limitations to ensure attainment and 
maintenance of the NAAQS are not required for such infrastructure 
SIPs.\16\ Likewise, EPA need not address, for the purpose of approving 
Virginia's infrastructure SIP, whether CEMS or some other appropriate 
monitoring of SO2 emissions is necessary to demonstrate 
compliance with emission limits in order to show attainment of the 2010 
SO2 NAAQS as EPA believes such SO2 emission 
limits and an attainment demonstration are not a prerequisite to EPA's 
approval of Virginia's infrastructure SIP.\17\ Therefore, because EPA 
finds Virginia's SO2 infrastructure SIP approvable without 
the additional SO2 emission limitations showing attainment 
of the NAAQS, EPA finds the issues of appropriate averaging periods and 
monitoring requirements for such future limitations not relevant at 
this time. Sierra Club has cited to prior EPA discussion on emission 
limitations required in PSD permits (from an EAB decision and EPA's 
letter to Kansas' permitting authority) pursuant to part C of the CAA, 
which is neither relevant nor applicable to section 110 infrastructure 
SIPs. In addition, as previously discussed, the EPA disapproval of the 
2006 Missouri SIP was a disapproval relating to a control strategy SIP 
required pursuant to part D attainment planning and is

[[Page 11567]]

likewise not relevant to the analysis of infrastructure SIP 
requirements.
---------------------------------------------------------------------------

    \15\ As EPA has stated, there are not presently any designated 
nonattainment areas pursuant to CAA section 107 for the 2010 
SO2 NAAQS in the Commonwealth. Thus, the Commonwealth, at 
this time, has no obligation to submit any attainment plans for the 
2010 SO2 NAAQS for sections 172, 191 and 192. EPA 
believes the appropriate time for examining necessity of 1-hour 
SO2 emission limits on specific sources is within the 
attainment planning process.
    \16\ For a discussion on emission averaging times for emissions 
limitations for SO2 attainment SIPs, see the April 23, 
2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. EPA 
explained that it is possible, in specific cases, for states to 
develop control strategies that account for variability in 1-hour 
emissions rates through emission limits with averaging times that 
are longer than 1-hour, using averaging times as long as 30-days, 
but still provide for attainment of the 2010 SO2 NAAQS as 
long as the limits are of at least comparable stringency to a 1-hour 
limit at the critical emission value. EPA has not yet evaluated any 
specific submission of such a limit, and so is not at this time 
prepared to take final action to implement this concept. If and when 
a state submits an attainment demonstration that relies upon a limit 
with such a longer averaging time, EPA will evaluate it then.
    \17\ EPA believes the appropriate time for application of 
monitoring requirements to demonstrate continuous compliance by 
specific sources is when such 1-hour emission limits are set for 
specific sources whether in permits issued by Virginia pursuant to 
the SIP or in attainment SIPs submitted in the part D planning 
process.
---------------------------------------------------------------------------

    EPA has explained in the TSD supporting this rulemaking action how 
the Virginia SIP meets requirements in section 110(a)(2)(F) related to 
monitoring. 9 VAC 5-40-100 requires sources in Virginia to install, 
maintain, and replace equipment such as CEMS to continuously monitor 
SO2 emissions where necessary and required. Further, 9 VAC 
5-40 requires sources in Virginia to report information, such as 
periodic reports on the nature and amounts of emissions and emissions-
related data, from owners or operators of stationary sources of 
SO2 emissions through permits and compliance orders. 
Pursuant to 40 CFR part 51, subpart A, ``Air Emissions Reporting 
Requirements,'' Virginia provides source-specific emissions data to 
EPA. Thus, EPA finds Virginia has the authority and responsibility to 
monitor air quality for the relevant NAAQS pollutants at appropriate 
locations and to submit data to EPA in a timely manner in accordance 
with 110(a)(2)(F) and the Infrastructure SIP Guidance.\18\ See 
Infrastructure SIP Guidance at p. 45-46.
---------------------------------------------------------------------------

    \18\ While monitoring pursuant to NSPS requirements in 40 CFR 
part 60 may not be sufficient for 1-hour SO2 emission 
limits, EPA does not believe Sierra Club's comment regarding NSPS 
monitoring provisions is relevant at this time because EPA finds 1-
hour SO2 emission limits and associated monitoring and 
averaging periods are not required for our approval of Virginia's 
SO2 infrastructure SIP.
---------------------------------------------------------------------------

    Comment 9: Sierra Club states that enforceable emission limits in 
SIPs or permits are necessary to avoid nonattainment designations in 
areas where modeling or monitoring shows SO2 levels exceed 
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA 
document, Next Steps for Area Designations and Implementation of the 
Sulfur Dioxide National Ambient Air Quality Standard, which Sierra Club 
contends discusses how states could avoid future nonattainment 
designations. The Commenter asserts EPA should add enforceable emission 
limits to the Virginia infrastructure SIP to prevent future 
nonattainment designations and to protect public health. The Commenter 
claims the modeling it conducted for Chesapeake Energy Center and 
Yorktown Power Station indicates fourteen counties/independent cities 
in Virginia are at risk for being designated nonattainment with the 
2010 SO2 NAAQS without such enforceable SO2 
limits. The Commenter states EPA must ensure large sources cannot cause 
exceedances of the 2010 SO2 NAAQS to comply with section 
110(a)(2)(A) and to avoid future nonattainment designations. The 
Commenter asserts nonattainment designations create rigorous CAA 
requirements which could be avoided if states adopt and EPA approves 
such SO2 emission limitations. In addition, the Commenter 
asserts adding SO2 emission limitations on certain sources 
now would bring regulatory certainty for coal-fired EGUs and ultimately 
save such entities money as the sources could plan now for compliance 
with emission limits as well as with other CAA requirements such as the 
Mercury Air Toxic Standards, transport rules, and regional haze 
requirements. In summary, the Commenter asserts EPA must disapprove the 
Virginia infrastructure SIP and establish enforceable emission limits 
to ensure large sources of SO2 do not cause exceedances of 
the 2010 SO2 NAAQS, which would avoid nonattainment 
designations and bring ``regulatory certainty'' to sources in Virginia.
    Response 9: EPA appreciates the Commenter's concern with avoiding 
nonattainment designations in Virginia for the 2010 SO2 
NAAQS and with providing coal-fired EGUs regulatory certainty to help 
them make informed decisions on how to comply with CAA requirements. 
However, Congress designed the CAA such that states have the primary 
responsibility for achieving and maintaining the NAAQS within their 
geographic area by submitting SIPs which will specify the details of 
how the state will meet the NAAQS. Pursuant to section 107(d), the 
states make initial recommendations of designations for areas within 
each state and EPA then promulgates the designations after considering 
the state's submission and other information. EPA promulgated initial 
designations for the 2010 SO2 NAAQS in August 2013. EPA 
proposed on May 14, 2014 an additional process for gathering further 
SO2 emissions source information for implementing the 2010 
SO2 NAAQS. 79 FR 27446. EPA has also proposed to enter a 
settlement to resolve deadline suits regarding the remaining 
designations that would, if entered by the court, impose deadlines for 
three more rounds of designations. Under these proposed schemes, 
Virginia would have the initial opportunity for proposing additional 
areas for designations for the 2010 SO2 NAAQS. While EPA 
appreciates Sierra Club's comments, further designations will occur 
pursuant to the section 107(d) process, and in accordance with any 
applicable future court orders addressing the designations deadline 
suits and, if promulgated, future EPA rules addressing additional 
monitoring or modeling to be conducted by states. Virginia may, on its 
own accord, decide to impose additional SO2 emission 
limitations to avoid future designations to nonattainment. If Virginia 
areas are designated nonattainment, Virginia will have the initial 
opportunity to develop additional emissions limitations needed to 
attain the NAAQS in the future, and EPA would be charged with reviewing 
whether those are adequate. If EPA were to disapprove the limits, then 
it would fall to EPA to adopt limits in a FIP. However, such 
considerations are not required of Virginia to consider at the 
infrastructure SIP stage of NAAQS implementation, as this action 
relates to our approval of Virginia's SO2 infrastructure SIP 
submittal pursuant to section 110(a) of the CAA, and Sierra Club's 
comments regarding designations under section 107 are neither relevant 
nor germane to EPA's approval of Virginia's SO2 
infrastructure SIP. Likewise, while EPA appreciates Sierra Club's 
concern for providing ``regulatory certainty'' for coal-fired EGUs in 
Virginia, such concerns for regulatory certainty are not requirements 
for infrastructure SIPs as outlined by Congress in section 110(a)(2) 
nor as discussed in EPA's Infrastructure SIP Guidance. See Commonwealth 
of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) 
(citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 
1122, 1123 (D.C. Cir. 1995)) (discussing that states have primary 
responsibility for determining an emission reductions program for its 
areas subject to EPA approval dependent upon whether the SIP as a whole 
meets applicable requirements of the CAA). Thus, EPA does not believe 
it is appropriate and necessary to condition approval of Virginia's 
infrastructure SIP upon inclusion of a particular emission reduction 
program as long as the SIP otherwise meets the requirements of the CAA. 
Sierra Club's comments regarding emission limits providing ``regulatory 
certainty'' for EGUs are irrelevant to EPA's approval of Virginia's 
infrastructure SIP for the 2010 SO2 NAAQS, and EPA disagrees 
that the infrastructure SIP must be disapproved for not including 
enforceable emissions limitations to prevent future nonattainment 
designations or aid in providing ``regulatory certainty.''
    Comment 10: The Commenter claims EPA must disapprove the proposed 
infrastructure SIP for the 2010 SO2 NAAQS for its failure to 
include measures to ensure compliance with section 110(a)(2)(A) for the 
2010 SO2

[[Page 11568]]

NAAQS. The Commenter claims the provisions listed by Virginia for 
section 110(a)(2)(A) in its 2010 SO2 NAAQS infrastructure 
SIP are not appropriate for the NAAQS as evidenced by the Commenter's 
modeling for plants which are not in areas presently designated 
nonattainment for the 2010 SO2 NAAQS. Sierra Club claims 
Virginia wrongly relies on CAA part D attainment planning requirements 
to address NAAQS exceedances. The Commenter asserts that the 
infrastructure SIP required by section 110(a) must provide assurances 
that the NAAQS will be attained and maintained for areas not designated 
nonattainment. The Commenter claims the proposed infrastructure SIP 
relies on emission limits added to the SIP prior to the 2010 
SO2 NAAQS and does not include hourly SO2 
emission limits. Sierra Club therefore contends the proposed 
infrastructure SIP cannot ensure Virginia will attain and maintain the 
2010 SO2 NAAQS and EPA must disapprove the SIP and require 
1-hour emission limits to address exceedances shown by Sierra Club's 
submitted modeling.
    Response 10: EPA disagrees with Sierra Club that it must disapprove 
the Virginia proposed infrastructure SIP for the 2010 SO2 
NAAQS for the reasons already discussed in response to other comments 
from Sierra Club. Generally, it is not appropriate to bypass the 
attainment planning process by imposing separate requirements, such as 
additional SO2 emission limits on sources, outside the 
attainment planning process. Such actions would be disruptive and 
premature absent exceptional circumstances.\19\ See Homer City/
Mansfield Order at 10-19 (finding Pennsylvania SIP did not require 
imposition of 1-hour SO2 emission limits on sources 
independent of the part D attainment planning process contemplated by 
the CAA). As discussed in the Homer City/Mansfield Order, imposing 
different emission limitation requirements outside of the attainment 
planning process contemplated by Congress in part D of the CAA to 
address requirements for attaining the NAAQS might ultimately prove 
inconsistent with any attainment SIP Virginia will submit (when 
required) for designated nonattainment areas, even where one source is 
likely responsible for nonattainment. Id. As discussed in great detail 
above, the conceptual purpose of an infrastructure SIP submission is to 
assure that an air agency's SIP contains the necessary structural 
requirements for the new or revised NAAQS. Infrastructure SIP Guidance 
at p. 2.
---------------------------------------------------------------------------

    \19\ Thus, EPA agrees with Virginia's response to Sierra Club 
when the Commenter raised these same comments to the Commonwealth 
during the drafting of Virginia's infrastructure SIP. Sierra Club's 
modeling of the coal-fired power plants SO2 emissions is 
not relevant at this time.
---------------------------------------------------------------------------

    As mentioned previously, while EPA had in 2010 initially suggested 
that states submit substantive attainment demonstration SIPs for 
unclassifiable areas based on air dispersion modeling in section 110(a) 
infrastructure SIPs, EPA subsequently gathered additional information 
and clarified its position. The April 12, 2012 letters to states, 2012 
Draft White Paper, and February 6, 2013 memorandum on next steps, as 
previously discussed, clearly recommend states focus section 110(a) 
infrastructure SIPs due in June 2013 on ``traditional infrastructure 
elements'' in section 110(a)(1) and (2) rather than on modeling 
demonstrations for future attainment for unclassifiable areas.\20\
---------------------------------------------------------------------------

    \20\ The February 6, 2013 memorandum is more completely the 
February 6, 2013 memorandum, ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard'' available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    Therefore, EPA disagrees with the Commenter that the infrastructure 
SIP must be disapproved for failure to include measures to ensure 
compliance with the 2010 SO2 NAAQS. As Congress provided for 
state primacy in implementing the NAAQS, Virginia should appropriately 
evaluate and impose necessary SO2 emission limits on 
sources, where or when needed in Virginia, for any areas in Virginia 
which may later be designated nonattainment with the 2010 
SO2 NAAQS under section 107.\21\
---------------------------------------------------------------------------

    \21\ EPA also notes that in EPA's final rule regarding the 2010 
SO2 NAAQS, EPA noted that it anticipates several 
forthcoming national and regional rules, such as the Industrial 
Boilers standard under CAA section 112, are likely to require 
significant reductions in SO2 emissions over the next 
several years. See 75 FR 35520. EPA continues to believe similar 
national and regional rules will lead to SO2 reductions 
that will help achieve compliance with the 2010 SO2 
NAAQS. If it appears that states with areas designated nonattainment 
in 2013 will nevertheless fail to attain the NAAQS as expeditiously 
as practicable (but no later than August 2018) during EPA's review 
of attainment SIPs required by section 172, the CAA provides 
authorities and tools for EPA to solve such failure, including, as 
appropriate, disapproving submitted SIPs and promulgating FIPs. 
Likewise, for any areas designated nonattainment after 2013, EPA has 
the same authorities and tools available to address any areas which 
do not timely attain the NAAQS.
---------------------------------------------------------------------------

    Comment 11: The Commenter alleges that the proposed SO2 
infrastructure SIP does not address sources significantly contributing 
to nonattainment or interfering with maintenance of the NAAQS in other 
states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states 
EPA must therefore disapprove the infrastructure SIP and impose a FIP. 
Sierra Club claims its modeling shows that at least one plant, 
Chesapeake Energy Center, is contributing to exceedances in other 
states. Sierra Club states that the CAA requires infrastructure SIPs to 
address cross-state air pollution within three years of the NAAQS 
promulgation. The Commenter argues that Virginia has not done so and 
that the EPA must disapprove the proposed infrastructure SIP and issue 
a FIP to correct these shortcomings. The Commenter references the 
recent Supreme Court decision, EPA v. EME Homer City Generation,, L.P. 
et al, 134 S. Ct. 1584 (2014), which supports the states' mandatory 
duty to address cross-state pollution under section 110(a)(2)(D)(i)(I) 
and affirmed EPA's ability to impose a FIP upon states' failure to 
address cross-state air pollution.
    Response 11: EPA disagrees with Sierra Club's statement that EPA 
must disapprove the submitted 2010 SO2 infrastructure SIP 
due to Virginia's failure to address section 110(a)(2)(D)(i)(I). In 
EPA's NPR proposing to approve Virginia's infrastructure SIP for the 
2010 SO2 NAAQS, EPA clearly stated that it was not taking 
any final action with respect to the good neighbor provision in section 
110(a)(2)(D)(i)(I) which addresses emissions that significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in another state. Virginia did not make a submission to address the 
requirements of section 110(a)(2)(D)(i)(I) for the 2010 SO2 
NAAQS, and thus there is no such submission upon which EPA proposed to 
take disapproval action under section 110(k) of the CAA. EPA cannot act 
under section 110(k) to disapprove a SIP submission that has not been 
submitted to EPA. EPA also disagrees with the Commenter that EPA cannot 
approve other elements of an infrastructure SIP submission without the 
good neighbor provision. EPA additionally believes there is no basis 
for the contention that EPA has triggered its obligation to issue a FIP 
addressing the good neighbor obligation under section 110(c), as EPA 
has neither found that Virginia failed to timely submit a required 
110(a)(2)(D)(i)(I) SIP submission for the 2010 SO2 NAAQS or 
found that such a submission was incomplete, nor has EPA disapproved a 
SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 
SO2 NAAQS.
    EPA acknowledges the Commenter's concern for the interstate 
transport of air pollutants and agrees in general with

[[Page 11569]]

the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally 
require states to submit, within three years of promulgation of a new 
or revised NAAQS, a plan which addresses cross-state air pollution 
under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the 
Commenter's argument that EPA cannot approve an infrastructure SIP 
submission without the good neighbor provision. Section 110(k)(3) of 
the CAA authorizes EPA to approve a plan in full, disapprove it in 
full, or approve it in part and disapprove it in part, depending on the 
extent to which such plan meets the requirements of the CAA. This 
authority to approve state SIP revisions in separable parts was 
included in the 1990 Amendments to the CAA to overrule a decision in 
the Court of Appeals for the Ninth Circuit holding that EPA could not 
approve individual measures in a plan submission without either 
approving or disapproving the plan as a whole. See S. Rep. No. 101-228, 
at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling 
of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    EPA interprets its authority under section 110(k)(3) of the CAA, as 
affording EPA the discretion to approve, or conditionally approve, 
individual elements of Virginia's infrastructure SIP submission for the 
2010 SO2 NAAQS, separate and apart from any action with 
respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA 
with respect to that NAAQS. EPA views discrete infrastructure SIP 
requirements, such as the requirements of 110(a)(2)(D)(i)(I), as 
severable from the other infrastructure elements and interprets section 
110(k)(3) as allowing it to act on individual severable measures in a 
plan submission. In short, EPA believes that even if Virginia had made 
a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 
SO2 NAAQS, which to date it has not, EPA would still have 
discretion under section 110(k) of the CAA to act upon the various 
individual elements of the state's infrastructure SIP submission, 
separately or together, as appropriate.
    The Commenter raises no compelling legal or environmental rationale 
for an alternate interpretation. Nothing in the Supreme Court's April 
2014 decision in EME Homer City alters EPA's interpretation that EPA 
may act on individual severable measures, including the requirements of 
section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer 
City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation 
to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) 
independent of EPA's action finding significant contribution or 
interference with maintenance). In sum, the concerns raised by the 
Commenter do not establish that it is inappropriate or unreasonable for 
EPA to approve the portions of Virginia's June 18, 2014 infrastructure 
SIP submission for the 2010 SO2 NAAQS.
    Furthermore, as discussed above, EPA has no obligation to issue a 
FIP pursuant to 110(c)(1) to address Virginia's obligations under 
section 110(a)(2)(D)(i)(I) until EPA first either finds Virginia failed 
to make the required submission addressing the element or the 
Commonwealth has made such a submission but it is incomplete, or EPA 
disapproves a SIP submittal addressing that element. Until either 
occurs, EPA does not have the authority to issue a FIP pursuant to 
section 110(c) with respect to the good neighbor provision. Therefore, 
EPA disagrees with the Commenter's contention that it must issue a FIP 
for Virginia to address 110(a)(2)(D)(i)(I) for the 2010 SO2 
NAAQS at this time.
    Regarding Sierra Club's assertion that one stationary source is 
causing ``exceedances'' in other states according to the modeling 
conducted by Sierra Club, EPA believes such assertion is irrelevant to 
our action approving Virginia's infrastructure SIP for the 2010 
SO2 NAAQS because EPA has not proposed any action on section 
110(a)(2)(D)(i)(I) regarding Virginia's obligations to address the 
transport of SO2 emissions. EPA may consider such 
information if Sierra Club resubmits when EPA does act upon a Virginia 
SIP submission to address 110(a)(2)(D)(i)(I) obligations for the 2010 
SO2 NAAQS.
    Comment 12: Sierra Club contends that the EPA must disapprove the 
proposed infrastructure SIP because it does not contain adequate 
provisions to prohibit sources and emissions in Virginia from 
interfering with another state's visibility as required by section 
110(a)(2)(D)(i)(II) of the CAA. The Commenter cites to the Supreme 
Court's decision in EME Homer City in support of its statement that 
Virginia's duty to protect visibility is a mandatory duty. The 
Commenter asserts EPA ignores its deadline by not acting in today's 
rulemaking on the visibility prong of section 110(a)(2)(D)(i)(II) and 
asserts EPA cites no legally defensible reason for not acting. Finally, 
the Commenter argues that the ``deadline for state action has passed'' 
and EPA must disapprove the SO2 infrastructure SIP and issue 
a FIP to address the failings of the infrastructure SIP to protect 
visibility in other states.
    Response 12: EPA disagrees with the Commenter that in today's 
rulemaking action EPA must disapprove the Virginia SO2 
infrastructure SIP for its failure to protect visibility and issue a 
FIP addressing visibility protection for Virginia. In EPA's NPR 
proposing to approve Virginia's infrastructure SIP for the 2010 
SO2 NAAQS, EPA clearly stated that it was not proposing to 
take any action at that time with respect to the visibility protection 
provisions in section 110(a)(2)(D)(i)(II). While Virginia did make a 
SIP submission to address the requirements of section 
110(a)(2)(D)(i)(II) for visibility protection, and cited to its 
regional haze SIP and CAIR as meeting these requirements, EPA did not 
propose to take any action in the NPR with respect to Virginia's 
visibility protection obligations pursuant to section 
110(a)(2)(D)(i)(II).\22\ As indicated in EPA's NPR, EPA anticipates 
taking later action on the portion of Virginia's June 18, 2014 SIP 
submission addressing visibility protection.\23\ EPA disagrees with the 
Commenter that EPA cannot approve a portion of an infrastructure SIP 
submittal without taking action on the visibility protection provision. 
Further, there is no basis for the contention that EPA must issue a FIP 
under section 110(c) within two years,

[[Page 11570]]

as EPA has neither disapproved nor found that Virginia failed to submit 
a required 110(a)(2)(D)(i)(II) SIP submission addressing visibility 
protection for the 2010 SO2 NAAQS.
---------------------------------------------------------------------------

    \22\ On June 13, 2012 (77 FR 35287), EPA finalized a limited 
approval of Virginia's October 4, 2010 regional haze SIP, and 
subsequent supplements, to address the first implementation period 
for regional haze. On June 7, 2012, EPA issued a limited disapproval 
of this SIP because of Virginia's reliance on CAIR to meet certain 
regional haze requirements, which EPA replaced in August 2011 with 
CSAPR (76 FR 48208 (August 8, 2011)). 77 FR 33641. EPA had also 
issued on June 7, 2012 in the same action a FIP that replaced 
Virginia's reliance on CAIR with reliance on CSAPR for certain 
regional haze requirements. Id. Later, as discussed previously, the 
D.C. Circuit in EME Homer City Generation, 696 F.3d 7, vacated CSAPR 
and kept CAIR in place. Subsequently, on April 30, 2014, the Supreme 
Court vacated the D.C. Circuit decision and remanded the matter to 
the D.C. Circuit for further proceedings. EME Homer City, 134 S. Ct. 
1584. On October 23, 2014, after we proposed to approve Virginia's 
infrastructure SIP, the D.C. Circuit lifted the stay on CSAPR. EME 
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 
2014), Order at 3. As mentioned in response to a prior comment, EPA 
began implementing CSAPR on January 1, 2015. 79 FR 71663 (December 
3, 2014) (interim final rule revising CSAPR compliance deadlines). 
EPA will take appropriate action on Virginia's obligations under 
110(a)(2)(D)(i)(II) for visibility protection in a subsequent 
rulemaking action.
    \23\ One way in which section 110(a)(2)(D)(i)(II) for visibility 
protection may be satisfied for any relevant NAAQS is through an air 
agency's confirmation in its infrastructure SIP submission that it 
has an approved regional haze SIP that fully meets the requirements 
of 40 CFR 51.308 or 51.309. Infrastructure SIP Guidance at p. 33. As 
previously indicated, Virginia has a regional haze SIP with limited 
approval and limited disapproval and a FIP which addresses 
replacement of CSAPR for CAIR for certain regional haze 
requirements.
---------------------------------------------------------------------------

    As previously discussed regarding the good-neighbor SIP provisions 
for infrastructure SIPs, EPA disagrees with the Commenter's argument 
that EPA cannot approve a SIP without certain elements such as the 
visibility protection element. Section 110(k)(3) of the CAA authorizes 
EPA to approve a plan in full, disapprove it in full, or approve it in 
part and disapprove it in part, depending on the extent to which such a 
plan meets the requirements of the CAA. As discussed above, this 
authority to approve SIP revisions in separable parts was included in 
the 1990 Amendments to the CAA. See S. Rep. No. 101-228, at 22, 1990 
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of 
Abramowitz v. EPA).
    As discussed above, EPA interprets its authority under section 
110(k)(3) of the CAA, as affording EPA the discretion to approve 
individual elements of Virginia's infrastructure submission for the 
2010 SO2 NAAQS, separate and apart from any action with 
respect to the requirements of section 110(a)(2)(D)(i)(II) for 
visibility protection. EPA views discrete infrastructure SIP 
requirements as severable from the other infrastructure elements and 
interprets section 110(k)(3) as allowing it to act on individual, 
severable measures. In short, EPA believes we have discretion under 
section 110(k) of the CAA to act upon the various individual elements 
of the state's infrastructure SIP submission, separately or together, 
as appropriate. The concerns raised by the Commenter do not establish 
that it is inappropriate or unreasonable for EPA to approve portions of 
Virginia's June 18, 2014 infrastructure SIP submission for the 2010 
SO2 NAAQS.
    EPA also has no obligation to issue a FIP to address Virginia's 
obligations under section 110(a)(2)(D)(i)(II) until EPA first finds 
Virginia failed to satisfy its visibility protection obligations with a 
complete SIP submittal addressing that element or disapproves any SIP 
submittal addressing that element. Until such occurs, EPA may not issue 
any further FIP for visibility protection pursuant to section 110(c).
    Comment 13: The Commenter alleges the infrastructure SIP must not 
allow for such things as ambient air incremental increases, variances, 
exceptions, or exclusions for limits on sources of pollutants; 
otherwise, the Commenter alleges Virginia cannot assure compliance with 
infrastructure SIP requirements for the SO2 NAAQS. The 
Commenter asserts the infrastructure SIP should not allow for certain 
sources to be exempt from permit requirements nor allow affirmative 
defenses or variances to ``requirements'' during startup, shutdown or 
malfunction (SSM) or due to hardship. The Commenter states EPA cannot 
delay acting on ``startup, shutdown, and malfunction'' of operations or 
director's variances because of the mandatory timeline for 
infrastructure SIPs under the CAA. The Commenter also asserts EPA 
should issue a finding of non-completeness and set forth a FIP because 
Virginia has failed to submit certain required components for its 
SO2 infrastructure SIP. The Commenter maintains the CAA is 
clear and that EPA's ``segmented and piecemeal approach'' to approving 
Virginia's infrastructure SIP is inappropriate because infrastructure 
SIPs must contain the entirety of a state's comprehensive plan to 
implement and maintain the NAAQS and because the components of section 
110(a)(2) are interrelated. Thus, the Commenter asserts EPA must 
disapprove the SO2 infrastructure SIP submittal and issue a 
FIP.
    Response 13: EPA disagrees with the Commenter that EPA must 
disapprove Virginia's infrastructure SIP and issue a FIP, instead of 
acting in a ``piecemeal'' approach (as Sierra Club calls it) in 
approving the majority of Virginia's SO2 infrastructure SIP 
while acting at a later date on certain specific elements of the SIP, 
including the portions related to transport and regional haze in 
110(a)(2)(D)(i)(I) and (II) and the portion related to State Boards in 
110(a)(2)(E)(ii). As explained in the NPR for this rulemaking action 
and in the responses above, EPA interprets its authority under section 
110(k)(3) of the CAA as affording EPA the discretion to approve 
individual elements of Virginia's infrastructure submission for the 
2010 SO2 NAAQS, while taking later separate action on the 
infrastructure submission for the requirements of section 
110(a)(2)(D)(i) for transport and visibility protection or 
110(a)(2)(E)(ii) for State Board requirements. As explained previously, 
EPA views discrete infrastructure SIP requirements like transport, 
State Boards, and visibility protection as severable from the other 
infrastructure elements and interprets section 110(k)(3) as allowing 
EPA to act on individual, severable measures. Section 110(k)(3) 
expressly authorizes EPA to approve a plan in full, disapprove it in 
full, or approve it in part and disapprove it in part, depending on the 
extent to which such plan meets the requirements of the CAA. As 
discussed above, this authority to approve SIP revisions in separable 
parts was included in the 1990 Amendments to the CAA. See S. Rep. No. 
101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express 
overruling of Abramowitz v. EPA).
    In short, EPA believes that EPA has discretion under section 110(k) 
to act upon the various individual elements of the state's 
infrastructure SIP submission, separately or together, as appropriate. 
The Commenter has not provided any case law or EPA interpretation of 
section 110 to support its contrary interpretation that it is 
inappropriate or unreasonable for EPA to approve portions of Virginia's 
June 18, 2014 infrastructure SIP submission for the 2010 SO2 
NAAQS.
    In addition, EPA also has no obligation to issue a FIP to address 
Virginia's obligations under section 110(a)(2)(D)(i)(I) or (II) or 
110(a)(2)(E)(ii) until EPA first finds Virginia failed to satisfy its 
obligations with a complete SIP submittal addressing those elements or 
disapproves any SIP submittal addressing that element. Until such 
occurs pursuant to section 110(c), EPA may not issue any FIP for 
transport, visibility protection, or State Board requirements or the 
infrastructure SIP as a whole.
    EPA also disagrees with the Commenter that EPA is required to 
address all potential deficiencies that may exist in the Virginia SIP 
in the context of evaluating an infrastructure SIP submission. In 
particular, EPA is not addressing any existing SIP provisions related 
to the treatment of emissions during SSM events, including automatic or 
director's discretion exemptions, overbroad state enforcement 
discretion provisions, or affirmative defense provisions. As EPA stated 
in the TSD for this rulemaking action, EPA is not approving or 
disapproving any existing Virginia regulatory or statutory provisions 
with regard to excess emissions during SSM of operations at any 
facility. EPA believes that a number of states may have SIP provisions 
related to emissions during SSM events which are contrary to the CAA 
and existing EPA guidance (August 11, 1999 Steven Herman and Robert 
Perciasepe Guidance Memorandum, ``State Implementation Plans: Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown''), and EPA is addressing such potentially deficient SIP 
provisions in a separate rulemaking. See 78 FR 12460 (February 22, 
2013) (proposed rulemaking on SSM SIP

[[Page 11571]]

provisions). See also 79 FR 55920 (September 17, 2014) (supplemental 
proposed rulemaking on affirmative defense provisions). In the TSD, EPA 
also stated that EPA is not approving or disapproving any existing 
Virginia regulatory or statutory provisions with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
may have such provisions which are contrary to the CAA and existing EPA 
guidance (see 52 FR 45109, November 1987), and EPA is also addressing 
such state regulations in the separate rulemaking. See 78 FR 12460. 
Similarly, EPA is not approving or disapproving any affirmative defense 
provisions applicable to excess emissions during SSM events in this 
action. EPA has separately proposed to address such existing 
affirmative defense provisions in the SIPs of many states, including 
Virginia. See also 79 FR 55920. In the meantime, EPA encourages any 
state having deficient SIP provisions related to the treatment of 
excess emissions during SSM events to take steps to correct them as 
soon as possible. Upon conclusion of EPA's SSM SIP call rulemaking, any 
states that EPA determines have impermissible SIP provisions related to 
SSM events will have time to adjust their SIPs where necessary and as 
required. As EPA is neither approving nor disapproving any new 
provisions related to automatic or director's discretion exemptions, 
overbroad state enforcement discretion provisions, or affirmative 
defense provisions in this rulemaking, EPA disagrees with Sierra Club's 
comment that the infrastructure SIP ``must not allow for such things'' 
and disagrees with any inference from the comment that EPA must 
disapprove the Virginia SO2 infrastructure SIP because of 
any such existing deficient provisions. Moreover, EPA emphasizes that 
by approving Virginia's SO2 infrastructure SIP submission, 
EPA is not approving or reapproving any such deficient provisions that 
exist in the current SIP.
    Regarding the Commenter's statement that the infrastructure SIP 
should not allow Virginia to exempt certain sources from permitting, 
the Sierra Club fails to identify any exemptions from permitting that 
preclude EPA from approving the infrastructure SIP. EPA explained in 
the TSD for this rulemaking that Virginia's permitting program for 
major and minor stationary sources met requirements in the CAA for 
section 110(a)(2)(C). Specifically, EPA stated Virginia has a SIP-
approved minor new source review (NSR) program located in 9 VAC 5-80-10 
(New and Modified Stationary Sources) and 9 VAC 5-80-11 (Stationary 
Source Permit Exemption Levels) which regulates certain modifications 
and construction of stationary sources within areas covered by its SIP 
as necessary to assure the NAAQS are achieved. EPA had previously 
approved such provisions into the Virginia SIP as they met requirements 
for a minor NSR program in accordance with the CAA and 40 CFR 51.160. 
See 65 FR 21315 (April 21, 2000).
    EPA's TSD for this rulemaking also explained Virginia's SIP met 
requirements in section 110(a)(2)(C) for a PSD permit program as 
required in part C of title I of the CAA. In Virginia, construction and 
modification of stationary sources are covered under Article 8, Permits 
for Major Stationary Sources and Major Modifications Locating in 
Prevention of Significant Deterioration Areas (9 VAC 5-80-1605 et seq.) 
which is included in the approved Virginia SIP. See 40 CFR 52.2420(c). 
Article 8 also provides that construction and modification of major 
stationary sources will not cause or contribute to a violation of any 
NAAQS (9 VAC 5-80-1635, Ambient Air Increments and 9 VAC 5-80-1645, 
Ambient Air Ceilings) and requires application of Best Available 
Control Technology to new or modified sources (9 VAC 5-80-1705, Control 
Technology Review). EPA has previously approved Virginia's PSD permit 
program as meeting the requirements in part C, title I of the CAA and 
40 CFR 51.166. See 79 FR 10377 (February 25, 2014). The Sierra Club has 
not identified any specific exemption that is allegedly problematic or 
any recent amendments to the Virginia rules that has added such an 
exemption. The Sierra Club has not demonstrated that Virginia's 
permitting program for major and minor stationary sources does not meet 
requirements in the CAA for section 110(a)(2)(C).

III. Final Action

    EPA is approving the following elements of Virginia's June 18, 2014 
SIP revision for the 2010 SO2 NAAQS: Section 110(a)(2)(A), 
(B), (C), (D)(i)(II) (PSD requirements), (D)(ii), (E)(i), (E)(iii), 
(F), (G), (H), (J) (consultation, public notification, and PSD), (K), 
(L), and (M). Virginia's SIP revision provides the basic program 
elements specified in Section 110(a)(2) necessary to implement, 
maintain, and enforce the 2010 SO2 NAAQS. This final 
rulemaking action does not include action on section 110(a)(2)(I) which 
pertains to the nonattainment planning requirements of part D, title I 
of the CAA, because this element is not required to be submitted by the 
3-year submission deadline of section 110(a)(1) of the CAA, and will be 
addressed in a separate process. Additionally, EPA will take later, 
separate action on section 110(a)(2)(D)(i)(I) (interstate transport of 
emissions), (D)(i)(II) (visibility protection), (J) (visibility 
protection) and (E)(ii) (Section 128, ``State Boards'') for the 2010 
SO2 NAAQS as previously discussed.

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

[[Page 11572]]

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 
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. Statutory and Executive Order Reviews

A. General Requirements

    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 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 approving portions of Virginia's 
infrastructure SIP for the 2010 SO2 NAAQS 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.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 4, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action, which satisfies certain infrastructure requirements of 
section 110(a)(2) of the CAA for the 2010 SO2 NAAQS for the 
Commonwealth of Virginia, may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Reporting and recordkeeping requirements, Sulfur dioxide.

    Dated: February 5, 2015.
William C. Early,
 Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. Section 52.2420 is amended by:
0
a. In paragraph (e), adding an entry for ``Section 110(a)(2) 
Infrastructure Requirements for the 2010 Sulfur Dioxide NAAQS'' at the 
end of the table.
    The amendments read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

[[Page 11573]]



----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP          Applicable            State                                Additional
            revision                 geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure  Statewide...........         6/18/14  3/4/15 [Insert       This action
 Requirements for the 2010                                               Federal Register     addresses the
 Sulfur Dioxide NAAQS.                                                   citation].           following CAA
                                                                                              elements, or
                                                                                              portions thereof:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(i)(II)
                                                                                              (PSD), (D)(ii),
                                                                                              (E)(i), (E)(iii),
                                                                                              (F), (G), (H), (J)
                                                                                              (consultation,
                                                                                              notification, and
                                                                                              PSD), (K), (L),
                                                                                              and (M).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-04377 Filed 3-3-15; 8:45 am]
BILLING CODE 6560-50-P