Approval and Promulgation of Air Quality Implementation Plans; Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, 11557-11573 [2015-04377]
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Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
ENVIRONMENTAL PROTECTION
AGENCY
Ellen Schmitt, (215) 814–5787, or by
email at schmitt.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
40 CFR Part 52
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[EPA–R03–OAR–2014–0522; FRL–9923–79–
Region 3]
I. Summary of SIP Revision
On June 22, 2010 (75 FR 35520), EPA
promulgated a 1-hour primary SO2
Approval and Promulgation of Air
Quality Implementation Plans; Virginia; NAAQS at a level of 75 parts per billion
(ppb), based on a 3-year average of the
Infrastructure Requirements for the
annual 99th percentile of 1-hour daily
2010 Sulfur Dioxide National Ambient
maximum concentrations. The new
Air Quality Standards
NAAQS is codified at 40 CFR 50.17,
AGENCY: Environmental Protection
while the prior NAAQS are at 40 CFR
Agency (EPA).
50.4. Pursuant to section 110(a)(1) of the
ACTION: Final rule.
CAA, states are required to submit SIPs
meeting the applicable requirements of
SUMMARY: The Environmental Protection
section 110(a)(2) within three years after
Agency (EPA) is approving a State
promulgation of a new or revised
Implementation Plan (SIP) revision
NAAQS or within such shorter period
submitted by the Commonwealth of
as EPA may prescribe.
Virginia pursuant to the Clean Air Act
On June 18, 2014, the Commonwealth
(CAA). Whenever new or revised
of Virginia, through the Virginia
National Ambient Air Quality Standards
Department of Environmental Quality
(NAAQS) are promulgated, the CAA
(VADEQ), submitted a SIP revision that
requires states to submit a plan for the
addresses the infrastructure elements
implementation, maintenance, and
specified in section 110(a)(2) of the CAA
enforcement of such NAAQS. The plan
necessary to implement, maintain, and
is required to address basic program
enforce the 2010 SO2 NAAQS. On
elements, including but not limited to
August 22, 2014 (79 FR 49731), EPA
regulatory structure, monitoring,
published a notice of proposed
modeling, legal authority, and adequate
rulemaking (NPR) for Virginia proposing
resources necessary to assure
approval of the submittal. In the NPR,
implementation, maintenance, and
EPA proposed approval of the following
enforcement of the NAAQS. These
infrastructure elements: Section
elements are referred to as infrastructure
110(a)(2)(A), (B), (C), (D)(i)(II)
requirements. The Commonwealth of
(prevention of significant deterioration),
Virginia made a submittal addressing
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J)
the infrastructure requirements for the
(consultation, public notification, and
2010 sulfur dioxide (SO2) primary
prevention of significant deterioration),
NAAQS.
(K), (L), and (M).
DATES: This final rule is effective on
Virginia did not submit section
April 3, 2015.
110(a)(2)(I) which pertains to the
nonattainment requirements of part D,
ADDRESSES: EPA has established a
Title I of the CAA, because this element
docket for this action under Docket ID
Number EPA–R03–OAR–2014–0522. All is not required to be submitted by the
3-year submission deadline of section
documents in the docket are listed in
110(a)(1) and will be addressed in a
the www.regulations.gov Web site.
Although listed in the electronic docket, separate process. At this time, EPA is
not taking action on section
some information is not publicly
110(a)(2)(D)(i)(II) or (J) for visibility
available, i.e., confidential business
protection for the 2010 SO2 NAAQS as
information (CBI) or other information
whose disclosure is restricted by statute. explained in the NPR. Although
Certain other material, such as
Virginia’s infrastructure SIP submittal
copyrighted material, is not placed on
for the 2010 SO2 NAAQS referred to
the Internet and will be publicly
Virginia’s regional haze SIP for section
available only in hard copy form.
110(a)(2)(D)(i)(II) and (J) for visibility
Publicly available docket materials are
protection, EPA intends to take later,
available either electronically through
separate action on Virginia’s submittal
www.regulations.gov or in hard copy for for these elements as explained in the
public inspection during normal
NPR and the Technical Support
business hours at the Air Protection
Document (TSD) which accompanied
Division, U.S. Environmental Protection the NPR. This rulemaking action also
Agency, Region III, 1650 Arch Street,
does not include action on section
Philadelphia, Pennsylvania 19103.
110(a)(2)(D)(i)(I) of the CAA because
Copies of the State submittal are
Virginia’s June 18, 2014 infrastructure
available at the Virginia Department of
SIP submittal did not include provisions
Environmental Quality, 629 East Main
for this element; therefore EPA will take
Street, Richmond, Virginia 23219.
later, separate action on section
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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.
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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
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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 laterpromulgated 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
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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
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
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.
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 SO
2
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
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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.
2. The Legislative History of the CAA
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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
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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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
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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
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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
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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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 pre1990 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.
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
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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
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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
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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
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
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.
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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 coalfired 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
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.
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that ensure attainment and maintenance
of the NAAQS at all times.’’
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
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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 SO NAAQS preamble (75 FR
2
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 https://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
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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
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.
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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
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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
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11563
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.
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 https://
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,
10 These lawsuits have not yet been fully
resolved, as of the date of this final action.
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2014 Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions.11
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
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.
12 The Commenter also cites to a 1983 EPA
Memorandum on section 107 designations policy
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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
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.
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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.
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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.
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 https://
www.epa.gov/airquality/sulfurdioxide/
implement.html.
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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.
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 1hour 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
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11565
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
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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 sourcespecific 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
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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 1hour 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
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 1hour 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
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).
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
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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
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 30days, 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.
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likewise not relevant to the analysis of
infrastructure SIP requirements.
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.
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
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.
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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
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11567
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
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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
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.
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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.
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
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
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
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 https://
www.epa.gov/airquality/sulfurdioxide/
implement.html.
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.
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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 crossstate 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
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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 crossstate 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)
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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.
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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,
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.
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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.
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
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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,
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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
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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)
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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
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11571
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 § 10.1–1198, therefore,
documents or other information needed
for civil or criminal enforcement under
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Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations
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.
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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:
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• 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
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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
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart VV—Virginia
2. Section 52.2420 is amended by:
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:
■
■
§ 52.2420
*
Identification of plan.
*
*
(e) * * *
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*
Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations
Name of non-regulatory SIP
revision
Applicable
geographic
area
*
*
Section 110(a)(2) Infrastructure Requirements for the 2010 Sulfur
Dioxide NAAQS.
*
Statewide .....
[FR Doc. 2015–04377 Filed 3–3–15; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2014–0700; FRL–9923–77–
Region–6]
Approval and Promulgation of
Implementation Plans; Arkansas;
Revisions for the Regulation and
Permitting of Fine Particulate Matter
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving portions of
three revisions to the Arkansas State
Implementation Plan (SIP) submitted by
the Arkansas Department of
Environmental Quality on July 26, 2010;
November 6, 2012; and December 1,
2014. Together, these three submittals
update the Arkansas SIP such that the
ADEQ has the authority to implement
the current National Ambient Air
Quality Standards (NAAQS) and
regulate and permit emissions of fine
particulate matter (particulate matter
with diameters less than or equal to 2.5
micrometers (PM2.5)), and its precursors,
through the Arkansas Prevention of
Significant Deterioration (PSD) program.
The EPA has determined that the
Arkansas PSD program meets all Clean
Air Act (CAA or the Act) requirements
for PM2.5 PSD and, as a result, our final
action will stop the two Federal
Implementation Plan (FIP) clocks that
are currently running on the Arkansas
PSD program pertaining to PM2.5 PSD
implementation. The EPA is also
approving a portion of the December 17,
2007, Arkansas SIP submittal for the
PM2.5 NAAQS pertaining to interstate
transport of air pollution and PSD. The
EPA is finalizing these actions under
section 110 and part C of the CAA.
DATES: This final rule is effective on
April 3, 2015.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
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SUMMARY:
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State submittal
date
EPA approval
date
6/18/14
*
3/4/15 [Insert
Federal Register citation].
11573
Additional explanation
*
*
*
This action addresses the 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).
No. EPA–R06–OAR–2014–0700. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
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 https://
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733.
FOR FURTHER INFORMATION CONTACT:
Adina Wiley, Air Permits Section (6PD–
R), telephone (214) 665–2115, email
address wiley.adina@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
significantly or substantively changed,
the EPA will finalize the rulemaking on
the SIP revision as proposed after
responding to any submitted comments.
Final rulemaking action by the EPA will
occur only after the final SIP revision
has been fully adopted by the ADEQ
and submitted formally to the EPA for
approval as a revision to the Arkansas
SIP. See 40 CFR part 51, Appendix V.
The ADEQ completed their state
rulemaking process and submitted the
final revisions to the Arkansas SIP on
December 1, 2014. The EPA has
evaluated the State’s final SIP revision
for any changes made from the time of
proposal. See ‘‘Addendum to the TSD’’
for EPA–R06–OAR–2014–0700,
available in the rulemaking docket. Our
evaluation indicates that the ADEQ
made no changes to the proposed SIP
revision. As such, the EPA is proceeding
with our final approval of the revisions
to the Arkansas SIP. This action is being
taken under section 110 of the Act. We
did not receive any comments regarding
our proposal.
Table of Contents
II. Final Action
I. Background
II. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
We are approving portions of three
SIP submittals for the State of Arkansas
submitted on July 26, 2010; November
6, 2012; and December 1, 2014, because
we have determined that these SIP
packages were adopted and submitted
in accordance with the CAA and EPA
regulations regarding implementation of
the PM2.5 NAAQS. The EPA finds that
the Arkansas PSD SIP meets all the CAA
PSD requirements for implementing the
1997 and 2006 PM2.5 NAAQS, including
the PM2.5 PSD requirements contained
in the federal regulations as of
December 9, 2013, including regulation
of NOX and SO2 as PM2.5 precursors,
regulation of condensables, and PM2.5
increments. As a result of today’s final
action, the EPA will stop the two FIP
clocks that are currently running on the
Arkansas PSD program pertaining to
PM2.5 PSD implementation. The EPA is
approving the following revisions into
the Arkansas SIP:
• Revisions to Regulation 19, Chapter
1 submitted on July 26, 2010, and
November 6, 2012;
I. Background
The background for today’s action is
discussed in detail in our November 10,
2014 proposal (79 FR 66633). In that
notice, we proposed to approve portions
of three SIP submittals for the State of
Arkansas submitted on July 26, 2010;
November 6, 2012; and September 10,
2014, that collectively update the
Arkansas SIP to provide for regulation
and permitting of PM2.5 in the Arkansas
PSD program consistent with federal
PSD permit requirements.
The September 10, 2014, submittal
was a request for parallel processing of
revisions adopted by the ADEQ on
August 22, 2014, as revisions to the state
regulations. Under the EPA’s ‘‘parallel
processing’’ procedure, the EPA
proposes a rulemaking action on a
proposed SIP revision concurrently with
the State’s public review process. If the
State’s proposed SIP revision is not
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]]>Agencies
[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Rules and Regulations]
[Pages 11557-11573]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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 schmitt.ellen@epa.gov.
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\
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\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.
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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.''
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\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.
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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\
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\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 https://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.
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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 https://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\
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\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.
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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\
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\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 https://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\
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\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).
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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.
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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 https://www.epa.gov/airquality/sulfurdioxide/implement.html.
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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\
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\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.
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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.
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\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.
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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).
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[FR Doc. 2015-04377 Filed 3-3-15; 8:45 am]
BILLING CODE 6560-50-P
