Approval and Promulgation of Air Quality Implementation Plans; Virginia; Section 110(a)(2) Prevention of Significant Deterioration Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 29142-29148 [2014-11787]
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13211, Actions Concerning Regulations
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13. Technical Standards
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
14. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321–4370f), and
have determined that this action is one
of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a safety
zone of limited size and duration. This
rule is categorically excluded from
further review under paragraph 34(g) of
Figure 2–1 of the Commandant
Instruction. An environmental analysis
checklist supporting this determination
and a Categorical Exclusion
Determination are available in the
docket where indicated under
ADDRESSES. We seek any comments or
information that may lead to the
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List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures, and
Waterways.
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR Part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapter 701; 50 U.S.C. 191, 195; 33 CFR
1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1.
around the fireworks launch site in
approximate position 36°57′50″ N,
122°00′48″ W (NAD 83) within a radius
of 420 feet.
(b) Enforcement period. The zone
described in paragraph (a) of this
section will be enforced from 9 p.m.
through 9:30 p.m. on October 4, 2014.
The Captain of the Port San Francisco
(COTP) will notify the maritime
community of periods during which this
zone will be enforced via Broadcast
Notice to Mariners in accordance with
33 CFR 165.7.
(c) Definitions. As used in this
section, ‘‘designated representative’’
means a Coast Guard Patrol
Commander, including a Coast Guard
coxswain, petty officer, or other officer
on a Coast Guard vessel or a Federal,
State, or local officer designated by or
assisting the COTP in the enforcement
of the safety zone.
(d) Regulations. (1) Under the general
regulations in 33 CFR Part 165, Subpart
C, entry into, transiting or anchoring
within this safety zone is prohibited
unless authorized by the COTP or a
designated representative.
(2) The safety zone is closed to all
vessel traffic, except as may be
permitted by the COTP or a designated
representative.
(3) Vessel operators desiring to enter
or operate within the safety zone must
contact the COTP or a designated
representative to obtain permission to
do so. Vessel operators given permission
to enter or operate in the safety zone
must comply with all directions given to
them by the COTP or a designated
representative. Persons and vessels may
request permission to enter the safety
zone on VHF–23A or through the 24hour Command Center at telephone
(415) 399–3547.
Dated: April 29, 2014.
Gregory G. Stump,
Captain, U.S. Coast Guard, Captain of the
Port San Francisco.
[FR Doc. 2014–11791 Filed 5–20–14; 8:45 am]
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2. Add a new temporary § 165–T11–
0054 to read as follows:
§ 165–T11–0054 Safety Zone; Santa Cruz
Wharf 100th Anniversary Fireworks Display
(a) Location. This safety zone is
established in the navigable waters near
Santa Cruz Wharf in Santa Cruz, CA, as
depicted in National Oceanic and
Atmospheric Administration (NOAA)
Chart 18685. The temporary safety zone
will encompass the navigable waters
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2013–0211, EPA–R03–
OAR–2013–0510]; FRL–9911–26–Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Section 110(a)(2) Prevention of
Significant Deterioration Requirements
for the 2008 Ozone and 2010 Nitrogen
Dioxide National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the Virginia State
Implementation Plan (SIP) pursuant to
the Clean Air Act (CAA). Whenever new
or revised National Ambient Air Quality
Standards (NAAQS) are promulgated,
the CAA requires states to submit a plan
for the implementation, maintenance,
and enforcement of such NAAQS. The
plan is required to address basic
program elements, including, but not
limited to regulatory structure,
monitoring, modeling, legal authority,
and adequate resources necessary to
assure attainment and maintenance of
the standards. These elements are
referred to as infrastructure
requirements. The Commonwealth of
Virginia has made two separate
submittals addressing the infrastructure
requirements for the 2008 ozone and
2010 nitrogen dioxide (NO2) NAAQS.
This action proposes approval of the
prevention of significant deterioration
(PSD) portions of the infrastructure
requirements of the CAA for the
Commonwealth’s SIP submittals for the
2008 ozone and 2010 NO2 NAAQS.
DATES: Written comments must be
received on or before June 20, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2013–0211 for the 2008
ozone docket and EPA–R03–OAR–
2013–0510 for the 2010 NO2 docket by
one of the following methods:
A. www.regulations.gov. Follow the
on-line instructions for submitting
comments.
B. Email: fernandez.cristina@epa.gov.
C. Mail: EPA–R03–OAR–2013–0211
and EPA–R03–OAR–2013–0510,
Cristina Fernandez, Associate Director,
Office of Air Program Planning, Air
Protection Division, Mailcode 3AP30,
U.S. Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
SUMMARY:
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D. Hand Delivery: At the previouslylisted EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID Nos. EPA–R03–OAR–2013–
0211 and EPA–R03–OAR–2013–0510.
EPA’s policy is that all comments
received will be included in the public
docket without change, and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov, your
email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy during normal business
hours at the Air Protection Division,
U.S. Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
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FOR FURTHER INFORMATION CONTACT:
Ellen Schmitt, (215) 814–5787, or by
email at schmitt.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On July 23, 2012, the Commonwealth
of Virginia submitted a formal revision
to its SIP addressing certain
infrastructure requirements for the 2008
ozone NAAQS (2008 ozone submittal).
EPA published a Notice of Proposed
Rulemaking (NPR) on July 2, 2013
which proposed approval of the 2008
ozone submittal for the following
infrastructure elements: Section
110(a)(2)(A), (B), (C) (for enforcement
and regulation of minor sources and
minor modifications), (D)(i)(II) (for
visibility protection), (D)(ii), (E)(i),
(E)(iii), (F), (G), (H), (J) (relating to
consultation, public notification, and
visibility protection requirements), (K),
(L), and (M), or portions thereof. See 78
FR 39651. Subsequently, EPA published
a Final Rulemaking Notice (FRN) on
March 27, 2014 which approved the
Virginia 2008 ozone submittal for those
specific elements. See 79 FR 17043.
On May 30, 2013, Virginia submitted
an infrastructure SIP submission for the
2010 NO2 NAAQS (2010 NO2
submittal). On August 5, 2013, EPA
published a NPR which proposed
approval of the 2010 NO2 submittal for
the following infrastructure elements:
Section 110(a)(2)(A), (B), (C) (for
enforcement and regulation of minor
sources and minor modifications),
(D)(i)(II) (for visibility protection),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J)
(relating to consultation, public
notification, and visibility protection
requirements), (K), (L), and (M), or
portions thereof. See 78 FR 47264.
Subsequently, on March 18, 2014, EPA
published a FRN which approved the
Virginia 2010 NO2 submittal for those
specific elements. See 79 FR 15012.
In both EPA’s March 27, 2014 FRN for
the 2008 ozone submittal and the March
18, 2014 FRN for the 2010 NO2
submittal, EPA indicated that it was
taking separate action on certain
infrastructure elements as they relate to
PSD and section 128 of the CAA. This
rulemaking action proposes approval of
the section 110(a)(2)(C), (D)(i)(II), and (J)
infrastructure elements as they relate to
Virginia’s PSD program for the 2008
ozone NAAQS and 2010 NO2 NAAQS.
EPA will take later separate action on
110(a)(2)(E)(ii) as it relates to section
128.
II. EPA’s Approach To Review
Infrastructure SIPs
The requirement for states to make a
SIP submission of this type arises out of
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29143
section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of section
110(a)(1) and (2) as ‘‘infrastructure SIP’’
submissions. Although the term
‘‘infrastructure SIP’’ does not appear in
the CAA, EPA uses the term to
distinguish this particular type of SIP
submission from submissions that are
intended to satisfy other SIP
requirements under the CAA, such as
‘‘nonattainment SIP’’ or ‘‘attainment
plan SIP’’ submissions to address the
nonattainment planning requirements of
part D of title I of the CAA, ‘‘regional
haze SIP’’ submissions required by EPA
rule to address the visibility protection
requirements of CAA section 169A, and
nonattainment new source review
permit program submissions to address
the permit requirements of CAA, title I,
part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.1 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
1 For example, section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP, section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA, and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the CAA, which specifically
address nonattainment SIP
requirements.2 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years or in some cases three years,
for such designations to be
promulgated.3 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertains to whether
states must meet all of the infrastructure
SIP requirements in a single SIP
submission, and whether EPA must act
upon such SIP submission in a single
action. Although section 110(a)(1)
directs states to submit ‘‘a plan’’ to meet
these requirements, EPA interprets the
CAA to allow states to make multiple
2 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOx SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65, May 12, 2005, (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
3 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
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SIP submissions separately addressing
infrastructure SIP elements for the same
NAAQS. If states elect to make such
multiple SIP submissions to meet the
infrastructure SIP requirements, EPA
can elect to act on such submissions
either individually or in a larger
combined action.4 Similarly, EPA
interprets the CAA to allow it to take
action on the individual parts of one
larger, comprehensive infrastructure SIP
submission for a given NAAQS without
concurrent action on the entire
submission. For example, EPA has
sometimes elected to act at different
times on various elements and subelements of the same infrastructure SIP
submission.5
Ambiguities within section 110(a)(1)
and (2) may also arise with respect to
infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, for example
because the content and scope of a
state’s infrastructure SIP submission to
meet this element might be very
different for an entirely new NAAQS
than for a minor revision to an existing
NAAQS.6
4 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339, January 22, 2013 (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
4337, January 22, 2013 (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
5 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
6 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the
Prevention of Significant Deterioration
(PSD) program required in part C of title
I of the CAA, because PSD does not
apply to a pollutant for which an area
is designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.7 EPA most recently
7 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
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issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).8 EPA developed this
document to provide states with up-todate guidance for infrastructure SIPs for
any new or revised NAAQS. Within this
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.9 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2).
Significantly, EPA interprets section
110(a)(1) and (2) such that infrastructure
SIP submissions need to address certain
issues and need not address others.
Accordingly, EPA reviews each
infrastructure SIP submission for
compliance with the applicable
statutory provisions of section 110(a)(2),
as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
SIP appropriately addresses the
requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance
explains EPA’s interpretation that there
may be a variety of ways by which states
can appropriately address these
substantive statutory requirements,
depending on the structure of an
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
8 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
9 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
DC Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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individual state’s permitting or
enforcement program (e.g., whether
permits and enforcement orders are
approved by a multi-member board or
by a head of an executive agency).
However they are addressed by the
state, the substantive requirements of
section 128 are necessarily included in
EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and NSR
pollutants, including Green House
Gases (GHGs). By contrast, structural
PSD program requirements do not
include provisions that are not required
under EPA’s regulations at 40 CFR
51.166 but are merely available as an
option for the state, such as the option
to provide grandfathering of complete
permit applications with respect to the
2013 PM2.5 NAAQS. Accordingly, the
latter optional provisions are types of
provisions EPA considers irrelevant in
the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
new source review program and
whether the program addresses the
pollutants relevant to that NAAQS. In
the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
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29145
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(SSM); (ii) existing provisions related to
‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186,
December 31, 2002, as amended by 72
FR 32526, June 13, 2007 (‘‘NSR
Reform’’). Thus, EPA believes it may
approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
aware of such existing provisions.10 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
10 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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emcdonald on DSK67QTVN1PROD with PROPOSALS
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of section 110(a)(1)
and (2) because the CAA provides other
avenues and mechanisms to address
specific substantive deficiencies in
existing SIPs. These other statutory tools
allow EPA to take appropriately tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.11 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.12
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
11 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639,
April 18, 2011.
12 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536, December 30, 2010. EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664, July 25, 1996 and 62 FR 34641,
June 27, 1997 (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062, November 16, 2004 (corrections to
California SIP); and 74 FR 57051, November 3, 2009
(corrections to Arizona and Nevada SIPs).
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although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.13
III. Summary of SIP Revision
Section 110(a)(2)(C) of the CAA
requires each state’s SIP to ‘‘include a
program to provide for the enforcement
of the measures described in
subparagraph (A) [CAA Section
110(a)(2)(A)], and regulation of the
modification and construction of any
stationary source within the areas
covered by the plan as necessary to
ensure that national ambient air quality
standards are achieved, including a
permit program as required in parts C
[PSD], and D [nonattainment NSR] of
this subchapter.’’ Similarly, section
110(a)(2)(J) requires that for each
NAAQS the state’s SIP must ‘‘meet the
applicable requirements of. . .part C of
this subchapter (relating to prevention
of significant deterioration of air
quality).’’
As discussed in Section II, ‘‘EPA’s
Approach to Review Infrastructure
SIPs,’’ when reviewing infrastructure
SIP submittals EPA focuses on the
structural PSD program requirements
contained in part C as well as EPA’s
PSD regulations. These structural
requirements call for the PSD program
to address all NSR pollutants, including
GHGs.
On August 5, 2011, Virginia
submitted a proposed SIP revision
which incorporated preconstruction
permitting requirements for sources of
PM2.5 into Virginia’s PSD and
nonattainment NSR programs.
Subsequent to Virginia’s submittal, two
decisions by the U.S Court of Appeals
for the D.C Circuit related to the Federal
PM2.5 program impacted EPA’s ability to
fully approve the revisions as submitted
by Virginia. Virginia consequently
submitted revisions to their PSD
program pertaining to preconstruction
permitting requirements for sources of
PM2.5 and on February 25, 2014 (79 FR
10377), EPA fully approved these
revisions to Virginia’s PSD program.
13 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at
42344, July 21, 2010 (proposed disapproval of
director’s discretion provisions); 76 FR 4540,
January 26, 2011 (final disapproval of such
provisions).
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With these revisions fully approved,
Virginia’s SIP approved PSD program
now contains all of the emission
limitations, control measures, and other
program elements required by 40 CFR
51.165 and 40 CFR 51.166 for all
required pollutants, including PM2.5.
Therefore, EPA finds Virginia’s SIP
meets the statutory obligations relating
to its PSD permit program set forth in
section 110(a)(2)(C) and (J) of the CAA
for the 2008 ozone NAAQS and 2010
NO2 NAAQS.14
Section 110(a)(2)(D)(i)(II) of the CAA
requires each state’s SIP to include
provisions which will prevent
emissions from interfering with the
measures required by another state for
implementing PSD. Each state’s SIP
must, under 40 CFR 51.166(k)(1),
include a source impact analysis which
requires the owner/operator of each
proposed source or modification to
demonstrate that the allowable
emissions increase from the proposed
project will not ‘‘cause or contribute to
air pollution in violation of: (i) Any
national ambient air quality standard in
any air quality control region.’’ The
requirements set forth at 40 CFR
51.166(k)(l) are consistent with, and
sufficient to meet, the requirements of
section 110(D)(i)(II) of the CAA. In
Virginia, the equivalent requirement to
40 CFR 51.166(k)(1) is codified at
9VAC5–80–1715, and this requirement
is incorporated into the Virginia SIP.
Therefore, EPA finds Virginia’s SIP
meets the statutory obligation relating to
its PSD permit program set forth in
section 110(a)(2)(D)(i)(II) of the CAA for
14 On January 4, 2013, the United States Court of
Appeals for the District of Columbia Circuit, in
Natural Resources Defense Council v. EPA, issued
a decision that remanded EPA’s 2007 and 2008
rules implementing the 1997 fine particulate matter
(PM2.5) NAAQS. See 706 F.3d 428 (D.C. Cir. 2013).
The court found that EPA erred in implementing
the PM2.5 NAAQS pursuant to the general
implementation provisions of subpart 1 of part D of
title I of the CAA, rather than pursuant to the
additional implementation provisions specific to
particulate matter nonattainment areas in subpart 4.
Id. at 437. As the requirements of subpart 4 only
pertain to nonattainment areas, it is EPA’s position
that the portions of the PM2.5 implementation rules
that address requirements for PM2.5 attainment and
unclassifiable areas are not affected by the court’s
opinion in NRDC v. EPA. EPA does not anticipate
the need to revise any PSD permit requirements
promulgated in the PM2.5 implementation rules to
comply with the court’s decision. Therefore, it is
EPA’s position that approval of the PSD portions of
Virginia’s infrastructure SIP submittals for the 2008
ozone and 2010 NO2 NAAQS as meeting PSD
requirements in Section 110(a)(2)(C), (D)(i)(II), and
(J) does not conflict with the court’s remand of the
PM2.5 implementation rules. See also 79 FR 10377
(February 25, 2014) (approving portions of
Virginia’s infrastructure SIP submittals as meeting
PSD requirements for section 110(a)(2) for 1997 and
2006 PM2.5 NAAQS and 2008 lead NAAQS).
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the 2008 ozone NAAQS and 2010 NO2
NAAQS.15
Therefore, EPA concludes that
Virginia’s approved SIP meets
obligations pursuant to CAA section
110(a)(2)(C), (D)(i)(II), and (J) with
respect to the part C permit program for
the 2008 ozone NAAQS and 2010 NO2
NAAQS. EPA is proposing approval of
a revision to the Virginia SIP for
Virginia’s 2008 ozone and 2010 NO2
submittals for the following
infrastructure elements with respect to
the Part C PSD permit program: Section
110(a)(2)(C), (D)(i)(II), and (J).
IV. General Information Pertaining to
SIP Submittals From the
Commonwealth of Virginia
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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.
15 In addition, Virginia’s existing SIP also
includes Article 8 (Permits for Major Stationary
Sources and Major Modifications Located in
Prevention of Significant Deterioration Areas) of
Part II of 9VAC5 Chapter 80, which provides that
construction and modification of major stationary
sources in PSD areas will not cause or contribute
to a violation of any NAAQS. Virginia’s SIP
approved PSD program also applies to greenhouse
gases through 9VAC5 Chapter 85, (Permits for
Stationary Sources of Pollutants Subject to
Regulation), which implements EPA’s greenhouse
gas tailoring requirements.
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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
one of these programs could not be
privileged because such documents and
information are essential to pursuing
enforcement in a manner required by
Federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code
Sec. 10.1–1199, provides that ‘‘[t]o the
extent consistent with requirements
imposed by Federal law,’’ any person
making a voluntary disclosure of
information to a state agency regarding
a violation of an environmental statute,
regulation, permit, or administrative
order is granted immunity from
administrative or civil penalty. The
Attorney General’s January 12, 1998
opinion states that the quoted language
renders this statute inapplicable to
enforcement of any Federally authorized
programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with Federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its PSD
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
V. Proposed Action
EPA is proposing to approve the
following infrastructure elements of
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29147
Virginia’s July 23, 2012 SIP submittal
for the 2008 ozone NAAQS and May 30,
2013 SIP submittal for the 2010 NO2
NAAQS with respect to PSD: Section
110(a)(2)(C), (D)(i)(II), and (J). EPA is
soliciting public comments on the
issues discussed in this document.
These comments will be considered
before taking final action.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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In addition, this proposed rule,
approving Virginia’s July 23, 2012 SIP
submission for the 2008 ozone NAAQS
and May 30, 2013 SIP submission for
the 2010 NO2 NAAQS as meeting the
PSD elements in Section 110(a)(2) of the
CAA, does not have tribal implications
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000),
because the SIP is not approved to apply
in Indian country located in the state,
and EPA notes that it will not impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 8, 2014.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2014–11787 Filed 5–20–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[EPA–HQ–SFUND–1989–0008; FRL–9911–
20–Region 1]
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List: Deletion
of the Town Garage/Radio Beacon,
Superfund Site
Environmental Protection
Agency.
ACTION: Proposed rule; notice of intent.
AGENCY:
The Environmental Protection
Agency (EPA) Region 1 is issuing a
Notice of Intent to Delete the Town
Garage/Radio Beacon, Superfund Site
(Site) located in Londonderry, New
Hampshire from the National Priorities
List (NPL) and requests public
comments on this proposed action. The
NPL, promulgated pursuant to section
105 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended, is an
appendix of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). The EPA and
the State of New Hampshire, through
the New Hampshire Department of
Environmental Services (NHDES), have
determined that all appropriate
response actions under CERCLA, other
than five-year reviews, have been
completed. However, this deletion does
emcdonald on DSK67QTVN1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
16:27 May 20, 2014
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not preclude future actions under
Superfund.
Comments must be received by
June 20, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
SFUND–1989–0008, by one of the
following methods:
• https://www.regulations.gov. Follow
on-line instructions for submitting
comments.
• Email: lovely.william@epa.gov or
elliott.rodney@epa.gov.
• Fax: 617–918–0240 or 617–918–
0372
• Mail: William Lovely, EPA Region
1—New England, 5 Post Office Square,
Suite 100, Mail Code OSRR07–4,
Boston, MA 02109–3912 or Rodney
Elliott, EPA Region 1—New England, 5
Post Office Square, Suite 100, Mail Code
ORA01–1, Boston, MA 02109–3912
• Hand delivery: William Lovely,
EPA Region 1—New England, 5 Post
Office Square, Suite 100, Mail Code
OSRR07–4, Boston, MA 02109–3912 or
Rodney Elliott, EPA Region 1—New
England, 5 Post Office Square, Suite
100, Mail Code ORA01–1, Boston, MA
02109–3912. Such deliveries are only
accepted during the Docket’s normal
hours of operation (M–F, 9–5), and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID no. EPA–HQ–SFUND–1989–
0008. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
DATES:
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technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in the
hard copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at:
U.S. Environmental Protection Agency,
Records Center, 5 Post Office Square,
Suite 100, Boston, MA 02109, 617–
918–1440, Monday–Friday: 9:00 a.m.–
5:00 p.m., Saturday and Sunday–
Closed, and
Leach Library, 276 Mammoth Road,
Londonderry, NH 03055, 603–432–
1132, Monday–Thursday: 9:00 a.m.–
8:00 p.m., Thursday: 10:00 a.m.–5:00
p.m., Friday: 10:00 a.m.–2:00 p.m.,
Saturday: 9:00 a.m.–5:00 p.m.,
Sunday: Closed.
FOR FURTHER INFORMATION CONTACT:
William Lovely, Remedial Project
Manager, U.S. Environmental Protection
Agency, Region 1 New England, 5 Post
Office Square, Mail code OSRR07–4,
Boston, MA 02109–3912, (617) 918–
1240, email: lovely.william@epa.gov.
SUPPLEMENTARY INFORMATION: In the
‘‘Rules and Regulations’’ Section of
today’s Federal Register, we are
publishing a direct final Notice of
Deletion of the Town Garage/Radio
Beacon Superfund Site from the
National Priorities List (NPL) without
prior Notice of Intent to Delete because
we view this as a noncontroversial
revision and anticipate no adverse
comment. We have explained our
reasons for this deletion in the preamble
to the direct final Notice of Deletion,
and those reasons are incorporated
herein. If we receive no adverse
comment(s) on this deletion action, we
will not take further action on this
Notice of Intent to Delete. If we receive
adverse comment(s), we will withdraw
the direct final Notice of Deletion, and
it will not take effect. We will, as
appropriate, address all public
comments in a subsequent final Notice
of Deletion based on this Notice of
Intent to Delete. We will not institute a
second comment period on this Notice
of Intent to Delete. Any parties
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]]>Agencies
[Federal Register Volume 79, Number 98 (Wednesday, May 21, 2014)]
[Proposed Rules]
[Pages 29142-29148]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11787]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2013-0211, EPA-R03-OAR-2013-0510]; FRL-9911-26-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Section 110(a)(2) Prevention of Significant Deterioration
Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National
Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Virginia State Implementation Plan (SIP)
pursuant to the Clean Air Act (CAA). Whenever new or revised National
Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires
states to submit a plan for the implementation, maintenance, and
enforcement of such NAAQS. The plan is required to address basic
program elements, including, but not limited to regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment and maintenance of the standards. These elements
are referred to as infrastructure requirements. The Commonwealth of
Virginia has made two separate submittals addressing the infrastructure
requirements for the 2008 ozone and 2010 nitrogen dioxide
(NO2) NAAQS. This action proposes approval of the prevention
of significant deterioration (PSD) portions of the infrastructure
requirements of the CAA for the Commonwealth's SIP submittals for the
2008 ozone and 2010 NO2 NAAQS.
DATES: Written comments must be received on or before June 20, 2014.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0211 for the 2008 ozone docket and EPA-R03-OAR-2013-0510
for the 2010 NO2 docket by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: fernandez.cristina@epa.gov.
C. Mail: EPA-R03-OAR-2013-0211 and EPA-R03-OAR-2013-0510, Cristina
Fernandez, Associate Director, Office of Air Program Planning, Air
Protection Division, Mailcode 3AP30, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
[[Page 29143]]
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID Nos. EPA-R03-OAR-
2013-0211 and EPA-R03-OAR-2013-0510. EPA's policy is that all comments
received will be included in the public docket without change, and may
be made available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by
email at schmitt.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On July 23, 2012, the Commonwealth of Virginia submitted a formal
revision to its SIP addressing certain infrastructure requirements for
the 2008 ozone NAAQS (2008 ozone submittal). EPA published a Notice of
Proposed Rulemaking (NPR) on July 2, 2013 which proposed approval of
the 2008 ozone submittal for the following infrastructure elements:
Section 110(a)(2)(A), (B), (C) (for enforcement and regulation of minor
sources and minor modifications), (D)(i)(II) (for visibility
protection), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to
consultation, public notification, and visibility protection
requirements), (K), (L), and (M), or portions thereof. See 78 FR 39651.
Subsequently, EPA published a Final Rulemaking Notice (FRN) on March
27, 2014 which approved the Virginia 2008 ozone submittal for those
specific elements. See 79 FR 17043.
On May 30, 2013, Virginia submitted an infrastructure SIP
submission for the 2010 NO2 NAAQS (2010 NO2
submittal). On August 5, 2013, EPA published a NPR which proposed
approval of the 2010 NO2 submittal for the following
infrastructure elements: Section 110(a)(2)(A), (B), (C) (for
enforcement and regulation of minor sources and minor modifications),
(D)(i)(II) (for visibility protection), (D)(ii), (E)(i), (E)(iii), (F),
(G), (H), (J) (relating to consultation, public notification, and
visibility protection requirements), (K), (L), and (M), or portions
thereof. See 78 FR 47264. Subsequently, on March 18, 2014, EPA
published a FRN which approved the Virginia 2010 NO2
submittal for those specific elements. See 79 FR 15012.
In both EPA's March 27, 2014 FRN for the 2008 ozone submittal and
the March 18, 2014 FRN for the 2010 NO2 submittal, EPA
indicated that it was taking separate action on certain infrastructure
elements as they relate to PSD and section 128 of the CAA. This
rulemaking action proposes approval of the section 110(a)(2)(C),
(D)(i)(II), and (J) infrastructure elements as they relate to
Virginia's PSD program for the 2008 ozone NAAQS and 2010 NO2
NAAQS. EPA will take later separate action on 110(a)(2)(E)(ii) as it
relates to section 128.
II. EPA's Approach To Review Infrastructure SIPs
The requirement for states to make a SIP submission of this type
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within 3 years (or such shorter period as
the Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of title I of the CAA,
``regional haze SIP'' submissions required by EPA rule to address the
visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of
[[Page 29144]]
required elements for infrastructure SIP submissions provided in
section 110(a)(2) contains ambiguities concerning what is required for
inclusion in an infrastructure SIP submission.
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\1\ For example, section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP, section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA, and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
CAA, which specifically address nonattainment SIP requirements.\2\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years or in some cases three years, for such designations to be
promulgated.\3\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,''
70 FR 25162, at 25163-65, May 12, 2005, (explaining relationship
between timing requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
\3\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\4\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\5\
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\4\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339, January 22, 2013 (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337, January 22, 2013
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\5\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS. The states' attendant infrastructure SIP
submissions for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submission for purposes of section 110(a)(2)(B)
could be very different for different pollutants, for example because
the content and scope of a state's infrastructure SIP submission to
meet this element might be very different for an entirely new NAAQS
than for a minor revision to an existing NAAQS.\6\
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\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the Prevention of Significant Deterioration (PSD) program
required in part C of title I of the CAA, because PSD does not apply to
a pollutant for which an area is designated nonattainment and thus
subject to part D planning requirements. As this example illustrates,
each type of SIP submission may implicate some elements of section
110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\7\ EPA
most recently
[[Page 29145]]
issued guidance for infrastructure SIPs on September 13, 2013 (2013
Guidance).\8\ EPA developed this document to provide states with up-to-
date guidance for infrastructure SIPs for any new or revised NAAQS.
Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\9\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such
that infrastructure SIP submissions need to address certain issues and
need not address others. Accordingly, EPA reviews each infrastructure
SIP submission for compliance with the applicable statutory provisions
of section 110(a)(2), as appropriate.
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\7\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\8\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\9\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the DC Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------
As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance explains EPA's interpretation that
there may be a variety of ways by which states can appropriately
address these substantive statutory requirements, depending on the
structure of an individual state's permitting or enforcement program
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are
addressed by the state, the substantive requirements of section 128 are
necessarily included in EPA's evaluation of infrastructure SIP
submissions because section 110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section 128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
Green House Gases (GHGs). By contrast, structural PSD program
requirements do not include provisions that are not required under
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2013 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor new source review program and whether
the program addresses the pollutants relevant to that NAAQS. In the
context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (SSM); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186,
December 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\10\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\10\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a
[[Page 29146]]
better approach is for states and EPA to focus attention on those
elements of section 110(a)(2) of the CAA most likely to warrant a
specific SIP revision due to the promulgation of a new or revised NAAQS
or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\11\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\12\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\13\
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\11\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639, April 18, 2011.
\12\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536, December 30, 2010. EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664, July 25, 1996 and 62 FR
34641, June 27, 1997 (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051, November 3, 2009
(corrections to Arizona and Nevada SIPs).
\13\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344, July 21, 2010
(proposed disapproval of director's discretion provisions); 76 FR
4540, January 26, 2011 (final disapproval of such provisions).
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III. Summary of SIP Revision
Section 110(a)(2)(C) of the CAA requires each state's SIP to
``include a program to provide for the enforcement of the measures
described in subparagraph (A) [CAA Section 110(a)(2)(A)], and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to ensure that
national ambient air quality standards are achieved, including a permit
program as required in parts C [PSD], and D [nonattainment NSR] of this
subchapter.'' Similarly, section 110(a)(2)(J) requires that for each
NAAQS the state's SIP must ``meet the applicable requirements of. .
.part C of this subchapter (relating to prevention of significant
deterioration of air quality).''
As discussed in Section II, ``EPA's Approach to Review
Infrastructure SIPs,'' when reviewing infrastructure SIP submittals EPA
focuses on the structural PSD program requirements contained in part C
as well as EPA's PSD regulations. These structural requirements call
for the PSD program to address all NSR pollutants, including GHGs.
On August 5, 2011, Virginia submitted a proposed SIP revision which
incorporated preconstruction permitting requirements for sources of
PM2.5 into Virginia's PSD and nonattainment NSR programs.
Subsequent to Virginia's submittal, two decisions by the U.S Court of
Appeals for the D.C Circuit related to the Federal PM2.5
program impacted EPA's ability to fully approve the revisions as
submitted by Virginia. Virginia consequently submitted revisions to
their PSD program pertaining to preconstruction permitting requirements
for sources of PM2.5 and on February 25, 2014 (79 FR 10377),
EPA fully approved these revisions to Virginia's PSD program. With
these revisions fully approved, Virginia's SIP approved PSD program now
contains all of the emission limitations, control measures, and other
program elements required by 40 CFR 51.165 and 40 CFR 51.166 for all
required pollutants, including PM2.5. Therefore, EPA finds
Virginia's SIP meets the statutory obligations relating to its PSD
permit program set forth in section 110(a)(2)(C) and (J) of the CAA for
the 2008 ozone NAAQS and 2010 NO2 NAAQS.\14\
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\14\ On January 4, 2013, the United States Court of Appeals for
the District of Columbia Circuit, in Natural Resources Defense
Council v. EPA, issued a decision that remanded EPA's 2007 and 2008
rules implementing the 1997 fine particulate matter
(PM2.5) NAAQS. See 706 F.3d 428 (D.C. Cir. 2013). The
court found that EPA erred in implementing the PM2.5
NAAQS pursuant to the general implementation provisions of subpart 1
of part D of title I of the CAA, rather than pursuant to the
additional implementation provisions specific to particulate matter
nonattainment areas in subpart 4. Id. at 437. As the requirements of
subpart 4 only pertain to nonattainment areas, it is EPA's position
that the portions of the PM2.5 implementation rules that
address requirements for PM2.5 attainment and
unclassifiable areas are not affected by the court's opinion in NRDC
v. EPA. EPA does not anticipate the need to revise any PSD permit
requirements promulgated in the PM2.5 implementation
rules to comply with the court's decision. Therefore, it is EPA's
position that approval of the PSD portions of Virginia's
infrastructure SIP submittals for the 2008 ozone and 2010
NO2 NAAQS as meeting PSD requirements in Section
110(a)(2)(C), (D)(i)(II), and (J) does not conflict with the court's
remand of the PM2.5 implementation rules. See also 79 FR
10377 (February 25, 2014) (approving portions of Virginia's
infrastructure SIP submittals as meeting PSD requirements for
section 110(a)(2) for 1997 and 2006 PM2.5 NAAQS and 2008
lead NAAQS).
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Section 110(a)(2)(D)(i)(II) of the CAA requires each state's SIP to
include provisions which will prevent emissions from interfering with
the measures required by another state for implementing PSD. Each
state's SIP must, under 40 CFR 51.166(k)(1), include a source impact
analysis which requires the owner/operator of each proposed source or
modification to demonstrate that the allowable emissions increase from
the proposed project will not ``cause or contribute to air pollution in
violation of: (i) Any national ambient air quality standard in any air
quality control region.'' The requirements set forth at 40 CFR
51.166(k)(l) are consistent with, and sufficient to meet, the
requirements of section 110(D)(i)(II) of the CAA. In Virginia, the
equivalent requirement to 40 CFR 51.166(k)(1) is codified at 9VAC5-80-
1715, and this requirement is incorporated into the Virginia SIP.
Therefore, EPA finds Virginia's SIP meets the statutory obligation
relating to its PSD permit program set forth in section
110(a)(2)(D)(i)(II) of the CAA for
[[Page 29147]]
the 2008 ozone NAAQS and 2010 NO2 NAAQS.\15\
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\15\ In addition, Virginia's existing SIP also includes Article
8 (Permits for Major Stationary Sources and Major Modifications
Located in Prevention of Significant Deterioration Areas) of Part II
of 9VAC5 Chapter 80, which provides that construction and
modification of major stationary sources in PSD areas will not cause
or contribute to a violation of any NAAQS. Virginia's SIP approved
PSD program also applies to greenhouse gases through 9VAC5 Chapter
85, (Permits for Stationary Sources of Pollutants Subject to
Regulation), which implements EPA's greenhouse gas tailoring
requirements.
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Therefore, EPA concludes that Virginia's approved SIP meets
obligations pursuant to CAA section 110(a)(2)(C), (D)(i)(II), and (J)
with respect to the part C permit program for the 2008 ozone NAAQS and
2010 NO2 NAAQS. EPA is proposing approval of a revision to
the Virginia SIP for Virginia's 2008 ozone and 2010 NO2
submittals for the following infrastructure elements with respect to
the Part C PSD permit program: Section 110(a)(2)(C), (D)(i)(II), and
(J).
IV. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts . . .'' The opinion concludes
that ``[r]egarding Sec. 10.1-1198, therefore, documents or other
information needed for civil or criminal enforcement under one of these
programs could not be privileged because such documents and information
are essential to pursuing enforcement in a manner required by Federal
law to maintain program delegation, authorization or approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
PSD program consistent with the Federal requirements. In any event,
because EPA has also determined that a state audit privilege and
immunity law can affect only state enforcement and cannot have any
impact on Federal enforcement authorities, EPA may at any time invoke
its authority under the CAA, including, for example, sections 113, 167,
205, 211 or 213, to enforce the requirements or prohibitions of the
state plan, independently of any state enforcement effort. In addition,
citizen enforcement under section 304 of the CAA is likewise unaffected
by this, or any, state audit privilege or immunity law.
V. Proposed Action
EPA is proposing to approve the following infrastructure elements
of Virginia's July 23, 2012 SIP submittal for the 2008 ozone NAAQS and
May 30, 2013 SIP submittal for the 2010 NO2 NAAQS with
respect to PSD: Section 110(a)(2)(C), (D)(i)(II), and (J). EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
[[Page 29148]]
In addition, this proposed rule, approving Virginia's July 23, 2012
SIP submission for the 2008 ozone NAAQS and May 30, 2013 SIP submission
for the 2010 NO2 NAAQS as meeting the PSD elements in
Section 110(a)(2) of the CAA, does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 8, 2014.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2014-11787 Filed 5-20-14; 8:45 am]
BILLING CODE 6560-50-P
