[Federal Register Volume 81, Number 44 (Monday, March 7, 2016)]
[Proposed Rules]
[Pages 11711-11716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04755]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2015-0838; FRL-9943-26-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Infrastructure Requirements for the 2012 Fine Particulate 
Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve 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 attainment and maintenance of 
the standards. These elements are referred to as infrastructure 
requirements. The Commonwealth of Virginia has made a submittal 
addressing the infrastructure requirements for the 2012 fine 
particulate matter (PM2.5) NAAQS. This action is being taken 
under the CAA.

DATES: Written comments must be received on or before April 6, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2015-0838 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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

SUPPLEMENTARY INFORMATION: On July 16, 2015, the Commonwealth of 
Virginia (Virginia) through the Virginia Department of Environmental 
Quality (VADEQ) submitted a revision to the Commonwealth's SIP to 
satisfy the requirements of section 110(a)(2) of the CAA for the 2012 
PM2.5 NAAQS.

[[Page 11712]]

I. Background

    On July 18, 1997, the EPA promulgated a new 24-hour and a new 
annual NAAQS for PM2.5 (62 FR 38652). On October 17, 2006, 
the EPA revised the standards for PM2.5, tightening the 24-
hour PM2.5 standard from 65 micrograms per cubic meter 
([mu]g/m\3\) to 35 [mu]g/m\3\, and retaining the annual 
PM2.5 standard at 15 [mu]g/m\3\ (71 FR 61144). Subsequently, 
on December 14, 2012, the EPA revised the level of the health based 
(primary) annual PM2.5 standard to 12 [mu]g/m\3\. See 78 FR 
3086 (January 15, 2013).\1\
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    \1\ In EPA's 2012 PM2.5 NAAQS revision, EPA left 
unchanged the existing welfare (secondary) standards for 
PM2.5 to address PM related effects such as visibility 
impairment, ecological effects, damage to materials and climate 
impacts. This includes an annual secondary standard of 15 [mu]g/m\3\ 
and a 24-hour standard of 35 [mu]g/m\3\.
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    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. Section 110(a)(2) 
requires states to address basic SIP elements such as requirements for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affect the content of the 
submission. The content of such SIP submission may also vary depending 
upon what provisions the state's existing SIP already contains.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for infrastructure SIP requirements related to a 
newly established or revised NAAQS. As mentioned earlier, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the NAAQS.

II. Summary of SIP Revision

    On July 16, 2015, the VADEQ provided a SIP revision to satisfy 
certain section 110(a)(2) requirements of the CAA for the 2012 
PM2.5 NAAQS.\2\ This revision addressed the following CAA 
infrastructure elements which EPA is proposing to approve: Section 
110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant 
deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). A 
detailed summary of EPA's review and rationale for finding Virginia's 
submittal addresses these requirements in section 110(a)(2) may be 
found in the technical support document (TSD) for this rulemaking 
action which is available on line at www.regulations.gov, Docket ID 
Number EPA-R03-OAR-2015-0838.
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    \2\ To clarify, the ``2013 PM2.5 NAAQS'' referred to 
in the Virginia SIP submittal is the same as the ``2012 
PM2.5 NAAQS'' EPA refers to in this rulemaking action. 
The final rule for this NAAQS was signed by the EPA Administrator on 
December 14, 2012, thereby it has been called the ``2012 
PM2.5 NAAQS.'' However, the final rule was published in 
the Federal Register on January 15, 2013, with an effective date of 
March 13, 2013, resulting in it also being referred to as the ``2013 
PM2.5 NAAQS.''
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    This rulemaking action does not include any proposed action on 
section 110(a)(2)(I) of the CAA 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) of the CAA and Virginia's July 16, 2015 SIP submittal did not 
address this element. Virginia's obligations under section 110(a)(2)(I) 
will be addressed in a separate process if applicable or necessary for 
the 2012 PM2.5 NAAQS. This rulemaking action also does not 
include proposed action on requirements under section 
110(a)(2)(D)(i)(I) of the CAA because Virginia's submittal did not 
include any provisions for this element; therefore, EPA will take 
later, separate action on section 110(a)(2)(D)(i)(I) for the 2012 
PM2.5 NAAQS for Virginia. Finally, at this time, EPA is not 
proposing action on the portion of Virginia's July 16, 2015 
infrastructure SIP submittal addressing section 110(a)(2)(D)(i)(II) for 
visibility protection for the 2012 PM2.5 NAAQS. Although 
Virginia's submittal referred to a July 16, 2015 regional haze SIP 
revision submittal to address requirements in section 
110(a)(2)(D)(i)(II) for visibility protection for the 2012 
PM2.5 NAAQS, EPA intends to take separate rulemaking action 
on the July 16, 2015 regional haze SIP revision and on the portion of 
the July 16, 2015 infrastructure SIP submission for section 
110(a)(2)(D)(i)(II) (visibility protection) as explained in the TSD. 
EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

III. EPA's Approach To Reviewing Infrastructure SIPs

    EPA is acting upon the SIP submission from Virginia that addresses 
the infrastructure requirements of section 110(a)(1) and (2) of the CAA 
for the 2012 PM2.5 NAAQS. The requirement for states to make 
a SIP submission of this type arises out of section 110(a)(1) of the 
CAA. Pursuant to section 110(a)(1), states must make SIP submissions 
``within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon EPA's taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) of the CAA includes a list of 
specific elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of section 110(a)(1) and (2) as 
infrastructure SIP submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the 
nonattainment planning requirements of part D of title I of the CAA, 
``regional haze SIP'' submissions required by EPA rule to address the 
visibility protection requirements of section 169A of the CAA, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) of the CAA addresses the timing and general 
requirements for infrastructure SIP submissions and section 110(a)(2) 
provides more details concerning the required contents of these 
submissions. The list of required elements provided in section 
110(a)(2) contains a wide variety of disparate provisions, some of 
which pertain to required legal authority, some of which pertain to 
required substantive program provisions, and some of which pertain to 
requirements for both authority and substantive program provisions.\3\ 
EPA

[[Page 11713]]

therefore believes that while the timing requirement in section 
110(a)(1) is unambiguous, some of the other statutory provisions are 
ambiguous. In particular, EPA believes that the list of required 
elements for infrastructure SIP submissions provided in section 
110(a)(2) contains ambiguities concerning what is required for 
inclusion in an infrastructure SIP submission.
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    \3\ For example: Section 110(a)(2)(E)(i) of the CAA provides 
that states must provide assurances that they have adequate legal 
authority under state and local law to carry out the SIP; section 
110(a)(2)(C) of the CAA provides that states must have a SIP 
approved program to address certain sources as required by part C of 
title I of the CAA; and section 110(a)(2)(G) of the CAA provides 
that states must have legal authority to address emergencies as well 
as contingency plans that are triggered in the event of such 
emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
CAA, which specifically address nonattainment SIP requirements.\4\ 
Section 110(a)(2)(I) of the CAA pertains to nonattainment SIP 
requirements and part D addresses when attainment plan SIP submissions 
to address nonattainment area requirements are due. For example, 
section 172(b) of the CAA requires EPA to establish a schedule for 
submission of such plans for certain pollutants when the Administrator 
promulgates the designation of an area as nonattainment, and section 
107(d)(1)(B) of the CAA allows up to two years or in some cases three 
years, for such designations to be promulgated.\5\ This ambiguity 
illustrates that rather than apply all the stated requirements of 
section 110(a)(2) in a strict literal sense, EPA must determine which 
provisions of section 110(a)(2) are applicable for a particular 
infrastructure SIP submission.
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    \4\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163--65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \5\ EPA notes that this ambiguity within section 110(a)(2) of 
the CAA is heightened by the fact that various subparts of part D 
set specific dates for submission of certain types of SIP 
submissions in designated nonattainment areas for various 
pollutants. Note, e.g., that section 182(a)(1) of the CAA provides 
specific dates for submission of emissions inventories for the ozone 
NAAQS. Some of these specific dates are necessarily later than three 
years after promulgation of the new or revised NAAQS.
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    Another example of ambiguity within section 110(a)(1) and (2) with 
respect to infrastructure SIPs pertains to whether states must meet all 
of the infrastructure SIP requirements in a single SIP submission, and 
whether EPA must act upon such SIP submission in a single action. 
Although section 110(a)(1) directs states to submit ``a plan'' to meet 
these requirements, EPA interprets the CAA to allow states to make 
multiple SIP submissions separately addressing infrastructure SIP 
elements for the same NAAQS. If states elect to make such multiple SIP 
submissions to meet the infrastructure SIP requirements, EPA can elect 
to act on such submissions either individually or in a larger combined 
action.\6\ Similarly, EPA interprets the CAA to allow it to take action 
on the individual parts of one larger, comprehensive infrastructure SIP 
submission for a given NAAQS without concurrent action on the entire 
submission. For example, EPA has sometimes elected to act at different 
times on various elements and sub-elements of the same infrastructure 
SIP submission.\7\
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    \6\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the state separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \7\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within section 110(a)(1) and (2) may also arise with 
respect to infrastructure SIP submission requirements for different 
NAAQS. Thus, EPA notes that not every element of section 110(a)(2) 
would be relevant, or as relevant, or relevant in the same way, for 
each new or revised NAAQS. The states' attendant infrastructure SIP 
submissions for each NAAQS therefore could be different. For example, 
the monitoring requirements that a state might need to meet in its 
infrastructure SIP submission for purposes of section 110(a)(2)(B) 
could be very different for different pollutants, for example because 
the content and scope of a state's infrastructure SIP submission to 
meet this element might be very different for an entirely new NAAQS 
than for a minor revision to an existing NAAQS.\8\
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    \8\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) of the CAA requires that attainment plan 
SIP submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.

[[Page 11714]]

    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\9\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\10\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) of the CAA that are relevant in the context of 
infrastructure SIP submissions.\11\ The guidance also discusses the 
substantively important issues that are germane to certain subsections 
of section 110(a)(2). Significantly, EPA interprets section 110(a)(1) 
and (2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \9\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \10\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \11\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) of the CAA is a required 
element of section 110(a)(2) for infrastructure SIP submissions. Under 
this element, a state must meet the substantive requirements of section 
128, which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focus upon the structural PSD program requirements 
contained in part C and EPA's PSD regulations. Structural PSD program 
requirements include provisions necessary for the PSD program to 
address all regulated sources and NSR pollutants, including greenhouse 
gases (GHGs). By contrast, structural PSD program requirements do not 
include provisions that are not required under EPA's regulations at 40 
CFR 51.166 but are merely available as an option for the state, such as 
the option to provide grandfathering of complete permit applications 
with respect to the 2012 PM2.5 NAAQS. Accordingly, the 
latter optional provisions are types of provisions EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) of the CAA includes, inter alia, the requirement that 
states have a program to regulate minor new sources. Thus, EPA 
evaluates whether the state has an EPA approved minor new source review 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review of each and every provision of a state's existing minor source 
program (i.e., already in the existing SIP) for compliance with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (SSM); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR 
Reform). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\12\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \12\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in section 110(a)(2) as requiring 
review of each and every provision of a state's existing SIP against 
all requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have

[[Page 11715]]

grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II) of the CAA, 
because carbon monoxide does not affect visibility. As a result, an 
infrastructure SIP submission for any future new or revised NAAQS for 
carbon monoxide need only state this fact in order to address the 
visibility prong of section 110(a)(2)(D)(i)(II) of the CAA.
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and (2) because the CAA provides other avenues and 
mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) of the CAA authorizes EPA to issue a 
``SIP call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\13\ Section 
110(k)(6) of the CAA authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\14\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\15\
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    \13\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \14\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). The EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \15\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. Proposed Action

    EPA is proposing to approve the following elements of Virginia's 
July 16, 2015 infrastructure SIP revision for the 2012 PM2.5 
NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of 
significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), 
and (M). Virginia's July 16, 2015 SIP revision provides the basic 
program elements specified in section 110(a)(2) of the CAA necessary to 
implement, maintain, and enforce the 2012 PM2.5 NAAQS. This 
proposed 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 where necessary 
and applicable. Additionally, this proposed rulemaking action does not 
include rulemaking action on section 110(a)(2)(D)(i)(I) (interstate 
transport of emissions) or (D)(i)(II) (visibility protection) for the 
2012 PM2.5 NAAQS. EPA will take later, separate action on 
Virginia's requirements for section 110(a)(2)(D)(i)(I) and (D)(i)(II) 
(visibility protection) for the 2012 PM2.5 NAAQS.

V. 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 counter- parts. . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by federal 
law,'' any person

[[Page 11716]]

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.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 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 proposed rule, which satisfies certain 
infrastructure requirements of section 110(a)(2) of the CAA for the 
2012 PM2.5 NAAQS for the Commonwealth of Virginia, is not 
being approved to apply on any Indian reservation land as defined in 18 
U.S.C. 1151 or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule will not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: February 19, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2016-04755 Filed 3-4-16; 8:45 am]
 BILLING CODE 6560-50-P