Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Rules and Regulations 62635 

1See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0160; FRL–9477–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Commonwealth of Virginia; Section 

110(a)(2) Infrastructure Requirements 

for the 1997 8-Hour Ozone and the 

1997 and 2006 Fine Particulate Matter 

National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving submittals 

from the Commonwealth of Virginia 

pursuant to the Clean Air Act (CAA) 

sections 110(k)(2) and (3). These 

submittals address the infrastructure 

elements specified in CAA section 

110(a)(2), necessary to implement, 

maintain, and enforce the 1997 8-hour 

ozone and fine particulate matter (PM2.5) 

national ambient air quality standards 

(NAAQS) and the 2006 PM2.5 NAAQS. 

This final rule is limited to the 

following infrastructure elements which 

were subject to EPA’s completeness 

findings pursuant to CAA section 

110(k)(1) for the 1997 8-hour ozone 

NAAQS dated March 27, 2008 and the 

1997 PM2.5 NAAQS dated October 22, 

2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), 

(F), (G), (H), (J), (K), (L), and (M), or 

portions thereof; and the following 

infrastructure elements for the 2006 

PM2.5 NAAQS: 110(a)(2)(A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), (K), (L), and 

(M), or portions thereof. 

DATES: Effective Date: This final rule is 

effective on November 10, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2010–0160. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the electronic 

docket, some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy for public inspection during 

normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Marilyn Powers, (215) 814–2308, or by 

e-mail at powers.marilyn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

On July 14, 2011 (76 FR 41444), EPA 

published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Virginia. The NPR 

proposed approval of Virginia 

submittals that provide the basic 

program elements specified in CAA 

section 110(a)(2)(A), (B), (C), (D)(ii), (E), 

(F), (G), (H), (J), (K), (L), and (M), or 

portions thereof, necessary to 

implement, maintain, and enforce the 

1997 8-hour ozone and PM2.5 NAAQS 

and the 2006 PM2.5 NAAQS. The formal 

submittals by the Commonwealth of 

Virginia on December 10, 2007, 

December 13, 2007, June 8, 2010, and 

June 9, 2010 addressed the section 

110(a)(2) requirements for the 1997 8- 

hour ozone NAAQS; the submittals 

dated July 10, 2008, September 2, 2008, 

June 8, 2010, June 9, 2010, and August 

30, 2010 addressed the section 110(a)(2) 

requirements for the 1997 PM2.5

NAAQS; and the submittals dated 

August 30, 2010 and April 1, 2011 

addressed the section 110(a)(2) 

requirements for the 2006 PM2.5

NAAQS. 

II. Scope of Action on Infrastructure 

Submissions 

EPA is currently acting on State 

Implementation Plans (SIPs) that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for the 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on those infrastructure SIP 

submissions.1 Those commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements in other proposals that 

it would address two issues separately 

and not as part of actions on the 

infrastructure SIP submissions: (i) 

Existing provisions related to excess 

emissions during periods of start-up, 

shutdown, or malfunction (SSM) at 

sources, that may be contrary to the 

CAA and EPA’s policies addressing 

such excess emissions; and (ii) existing 

provisions related to ‘‘director’s 

variance’’ or ‘‘director’s discretion’’ that 

purport to permit revisions to SIP 

approved emissions limits with limited 

public process or without requiring 

further approval by EPA, that may be 

contrary to the CAA. EPA notes that 

there are two other substantive issues 

for which EPA likewise stated in other 

proposals that it would address the 

issues separately: (i) Existing provisions 

for minor source new source review 

(‘‘minor source NSR’’) programs that 

may be inconsistent with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs and (ii) existing provisions for 

Prevention of Significant Deterioration 

(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 the NSR Reform Rule (72 FR 32526, 

June 13, 2007) (NSR Reform). In light of 

the comments, EPA now believes that 

its statements in various proposed 

actions on infrastructure SIPs with 

respect to these four individual issues 

should be explained in greater depth. 

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational and to 

provide general notice of the potential 

existence of provisions within the 

existing SIPs of some states that might 

require future corrective action. EPA did 

not want states, regulated entities, or 

members of the public to be under the 

misconception that EPA’s approval of 

the infrastructure SIP submission of a 

given state should be interpreted as a 

reapproval of certain types of provisions 

that might be contained in the larger 

existing SIP for such state. Thus, for 

example, EPA explicitly noted that we 

believe that some states may have 

existing SIP approved SSM provisions 

that are contrary to the CAA and EPA 

policy, but that ‘‘in this rulemaking, 

EPA is not proposing to approve or 

disapprove any existing State provisions 

with regard to excess emissions during 

SSM of operations at facilities.’’ EPA 

further explained, for informational 

purposes, that ‘‘EPA plans to address 

such State regulations in the future.’’ 

EPA made similar statements, for 

similar reasons, with respect to the 

director’s discretion, minor source NSR, 

and NSR Reform issues. EPA’s objective 


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62636 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Rules and Regulations 

2For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

3For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. 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 

nitrogen oxides (NOx) SIP Call; Final Rule,’’ (70 FR 

25162, May 12, 2005) (defining, among other things, 

the phrase ‘‘contribute significantly to 

nonattainment’’). 

4See, e.g., Id., (70 FR 25162, at 63–65, May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

5EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

6For 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. 

was to make clear that approval of an 

infrastructure SIP for these ozone and 

PM2.5 NAAQS should not be construed 

as explicit or implicit reapproval of any 

existing provisions that relate to these 

four substantive issues. 

The commenters and others evidently 

interpreted these statements to mean 

that EPA considered action upon the 

SSM provisions and the other three 

substantive issues to be integral parts of 

acting on an infrastructure SIP 

submission, and therefore that EPA was 

merely postponing taking final action on 

the issue in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 

potential for certain types of 

deficiencies in existing SIPs and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those proposals, 

however, we want to explain more fully 

EPA’s reasons for concluding that these 

four potential substantive issues in 

existing SIPs may be addressed 

separately. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPs are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

address the requirements of part D, and 

a host of other specific types of SIP 

submissions that address other specific 

matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, 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 provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.2 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.3

Notwithstanding that section 110(a)(2) 

states that ‘‘each’’ SIP submission must 

meet the list of requirements therein, 

EPA has long noted that this literal 

reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).4 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because EPA bifurcated 

the action on these latter ‘‘interstate 

transport’’ provisions within section 

110(a)(2) and worked with states to 

address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.5 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s SIP. Finally, 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 and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.6

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 


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7See, ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I—X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). 

8 Id., at page 2. 

9 Id., at attachment A, page 1. 

10 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

11See, ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T, 

Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I—X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.7 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what EPA characterized as the 

‘‘infrastructure’’ elements for SIPs, 

which it further described as the ‘‘basic 

SIP requirements, including emissions 

inventories, monitoring, and modeling 

to assure attainment and maintenance of 

the standards.’’ 8 As further 

identification of these basic structural 

SIP requirements, ‘‘attachment A’’ to the 

guidance document included a short 

description of the various elements of 

section 110(a)(2) and additional 

information about the types of issues 

that EPA considered germane in the 

context of such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements and 

was merely a ‘‘brief description of the 

required elements.’’ 9 EPA also stated its 

belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

states to meet these requirements with 

assistance from EPA Regions.’’ 10 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each state would work with its 

corresponding EPA regional office to 

refine the scope of a state’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the state’s SIP for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.11 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS, e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS. 

Significantly, neither the 2007 

Guidance nor the 2009 Guidance 

explicitly referred to the SSM, director’s 

discretion, minor source NSR, or NSR 

Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance, 

however, EPA did not indicate to states 

that it intended to interpret these 

provisions as requiring a substantive 

submission to address these specific 

issues in the context of the 

infrastructure SIPs for these NAAQS. 

Instead, EPA’s 2007 Guidance merely 

indicated its belief that the states should 

make submissions in which they 

established that they have the basic SIP 

structure necessary to implement, 

maintain, and enforce the NAAQS. EPA 

believes that states can establish that 

they have the basic SIP structure, 

notwithstanding that there may be 

potential deficiencies within the 

existing SIP. Thus, EPA’s other 

proposals mentioned these issues not 

because EPA considers them issues that 

must be addressed in the context of an 

infrastructure SIP as required by section 

110(a)(1) and (2), but rather because 

EPA wanted to be clear that it considers 

these potential existing SIP problems as 

separate from the pending infrastructure 

SIP actions. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, 

comprehensive, review of each and 

every provision of an existing SIP 

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 that, 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 considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 


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12EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ (74 FR 21639, 

April 18, 2011). 

13EPA has recently utilized 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 EmittingSources in State Implementation Plans; Final Rule,’’ 

(75 FR 82536, Dec. 30, 2010). EPA has previously 

used its authority under CAA 110(k)(6) to remove 

numerous other SIP provisions that EPA 

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). 

14EPA has recently disapproved 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- 42344, 

July 21, 2010) (proposed disapproval of director’s 

discretion provisions); (76 FR 4540, Jan. 26, 2011) 

(final disapproval of such provisions). 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow EPA to 

take appropriate 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 EPA determines that a 

state’s SIP is substantially inadequate to 

attain or maintain the NAAQS, to 

mitigate interstate transport, or 

otherwise to comply with the CAA.12

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.13

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude EPA’s 

subsequent reliance on provisions in 

section 110(a)(2) as part of the basis for 

action 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 the 

infrastructure SIP, EPA believes that 

section 110(a)(2)(A) may be among the 

statutory bases that EPA cites in the 

course of addressing the issue in a 

subsequent action.14

III. Summary of SIP Revision 

The submittals referenced in the 

Background section above address the 

infrastructure elements specified in the 

CAA section 110(a)(2). These submittals 

refer to the implementation, 

maintenance, and enforcement of the 

1997 8-hour ozone NAAQS, the 1997 

PM2.5 NAAQS, and the 2006 PM2.5

NAAQS. The rationale supporting EPA’s 

proposed action is explained in the NPR 

and the technical support document 

(TSD) and will not be restated here. The 

TSD is available online at http:// 

www.regulations.gov, Docket ID number 

EPA–R03–OAR–2010–0160. No public 

comments were received on the NPR. 

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 (1) 

That are generated or developed before 

the commencement of a voluntary 

environmental assessment; (2) that are 

prepared independently of the 

assessment process; (3) that demonstrate 

a clear, imminent and substantial 

danger to the public health or 

environment; or (4) that are required by 

law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

Law, Va. Code Sec. 10.1–1198, 

precludes granting a privilege to 

documents and information ‘‘required 

by law,’’ including documents and 

information ‘‘required by Federal law to 

maintain program delegation, 

authorization or approval,’’ since 

Virginia must ‘‘enforce Federally 

authorized environmental programs in a 

manner that is no less stringent than 

their Federal counterparts. * * * ’’ The 

opinion concludes that ‘‘[r]egarding 

§ 10.1–1198, therefore, documents or 

other information needed for civil or 

criminal enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity Law, Va. Code 

Sec. 10.1–1199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by Federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any Federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

V. Final Action 

EPA is approving the Commonwealth 

of Virginia’s submittals that provide the 

basic program elements specified in 

CAA sections 110(a)(2)(A), (B), (C), 

(D)(ii), (E), (F), (G), (H), (J), (K), (L), and 

(M), or portions thereof, necessary to 

implement, maintain, and enforce the 

1997 8-hour ozone and PM2.5 NAAQS 

and the 2006 PM2.5 NAAQS. 

EPA made completeness findings for 

the 1997 8-hour ozone NAAQS on 

March 27, 2008 (73 FR 16205) and on 

October 22, 2008 (73 FR 62902) for the 

1997 PM2.5 NAAQS. These findings 

pertained only to whether the 

submissions were complete, pursuant to 

section 110(k)(1)(A), and did not 


jlentini on DSK4TPTVN1PROD with RULES
Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Rules and Regulations 62639 

constitute EPA approval or disapproval 

of such submissions. The Virginia 

submittals, described above and in the 

technical support document, addressed 

these findings, with the exception of the 

part C PSD permit program. 

EPA has taken separate action on the 

portions of section 110(a)(2)(C) and (J) 

for the 1997 8-hour ozone NAAQS as 

they relate to Virginia’s part C PSD 

permit program. With respect to this 

permit program, on November 29, 2005 

(70 FR 71612), EPA promulgated a 

change that made NOX a precursor for 

ozone in the part C regulations at 40 

CFR 51.166 and 40 CFR 52.21. In the 

March 27, 2008 completeness findings, 

EPA determined that Virginia failed to 

submit a SIP revision to its part C PSD 

permit program to fully incorporate 

NOX as a precursor for ozone. On June 

7, 2010, Virginia submitted revisions to 

it PSD regulation, 9VAC5 Chapter 80, to 

include NOX as a precursor for ozone. 

EPA has approved this PSD SIP revision 

and element 110(a)(2)(C) and (J) as it 

pertains to the PSD permit program for 

the 1997 8-hour ozone NAAQS was 

addressed in this separate action (76 FR 

54706, September 2, 2011). 

Two elements identified in section 

110(a)(2) are not governed by the three 

year submission deadline of section 

110(a)(1) because SIPs incorporating 

necessary local nonattainment area 

controls are not due within three years 

after promulgation of a new or revised 

NAAQS, but rather are due at the time 

the nonattainment area plan 

requirements are due pursuant to 

section 172. This action does not cover 

these specific elements. This action also 

does not address the requirements of 

section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone and PM2.5 NAAQS and the 

2006 PM2.5 NAAQS. The 

110(a)(2)(D)(i)(I) requirements have been 

addressed by separate findings issued 

by EPA (70 FR 21147, April 25, 2005 

and 75 FR 32673, June 9, 2010), and a 

federal implementation plan (FIP) (75 

FR 45210, August 2, 2010). The 

110(a)(2)(D)(i)(II) portion of these 

requirements are addressed through 

110(a)(2) SIP submittals that EPA will 

take separate action on. 

VI. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to the requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 12, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. 

This action pertaining to Virginia’s 

section 110(a)(2) infrastructure SIP 

submittals for the 1997 8-hour ozone 

and PM2.5 NAAQS, and the 2006 PM2.5

NAAQS, may not be challenged later in 

proceedings to enforce its requirements. 

(See section 307(b)(2).) 

List of Subjects in 40 CFR part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: September 27, 2011. 

W. C. Early, 

Acting Regional Administrator, Region III. 

40 CFR Part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for 40 CFR 

part 52 continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(e) is amended by adding entries at the 

end of the table for Section 110(a)(2) 

Infrastructure Requirements for the 1997 

8–Hour Ozone NAAQS, Section 

110(a)(2) Infrastructure Requirements 

for the 1997 PM2.5 NAAQS, and Section 

110(a)(2) Infrastructure Requirements 

for the 2006 PM2.5 NAAQS. The 

amendments read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(e) * * * 


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62640 Federal Register / Vol. 76, No. 196 / Tuesday, October 11, 2011 / Rules and Regulations 

Name of non-regulatory SIP 

revision 

Applicable geographic area State submittal date EPA approval date Additional explanation 

*******

Section 110(a)(2) Infrastructure Requirements for the 

1997 8–Hour Ozone 

NAAQS.

Statewide ............ 12/10/07 

12/13/07 

6/8/10 

6/9/10 

10/11/11 .................................

[Insert page number where 

the document begins].

This action addresses the following CAA elements or portions thereof: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), 

(L), and (M). 

Section 110(a)(2) Infrastructure Requirements for the.

1997 PM2.5 NAAQS ...............

Statewide ............ 7/10/08 

9/2/08 

6/8/10 

6/9/10 

4/1/08 

10/11/11 .................................

[Insert page number where 

the document begins].

This action addresses the following CAA elements or portions thereof: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), 

(L), and (M). 

Section 110(a)(2) Infrastructure Requirements for the 

2006 PM2.5 NAAQS.

Statewide ............ 8/30/10 

4/1/11 

10/11/11 .................................

[Insert page number where 

the document begins].

This action addresses the following CAA elements or portions thereof: 110(a)(2)(A), 

(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), 

(L), and (M). 

[FR Doc. 2011–26095 Filed 10–7–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0454; FRL9477–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Determination of Attainment 

and Determination of Clean Data for 

the Annual 1997 Fine Particle Standard 

for the Charleston Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is making two 

determinations regarding the 

Charleston, West Virginia fine 

particulate matter (PM2.5) nonattainment 

area (hereafter referred to as ‘‘Charleston 

Area’’ or ‘‘Area’’). First, EPA is 

determining that the Area has attained 

the 1997 annual average PM2.5 National 

Ambient Air Quality Standard 

(NAAQS). This determination of 

attainment is based upon complete, 

quality-assured, and certified ambient 

air monitoring data for the 2007–2009 

period showing that the Charleston Area 

has attained the 1997 annual PM2.5

NAAQS and data available to date for 

2010 in EPA’s Air Quality System (AQS) 

database that show the area continues to 

attain. EPA’s determination releases the 

Charleston Area from the requirements 

to submit attainment demonstrations 

and associated reasonably available 

control measures (RACM), a reasonable 

further progress (RFP) plan, contingency 

measures, and other planning State 

Implementation Plan (SIP) revisions 

related to attainment of the standard for 

so long as the Area continues to attain 

the annual PM2.5 NAAQS. Second, EPA 

is determining based on quality-assured 

and certified monitoring data for the 

2007–2009 monitoring period that the 

area has attained the 1997 annual PM2.5

NAAQS, by its applicable attainment 

date of April 5, 2010. 

DATES: Effective Date: This final rule is 

effective on November 10, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2011–0454. All 

documents in the docket are listed in 

the http://www.regulations.gov website. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy for public inspection during 

normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

FOR FURTHER INFORMATION CONTACT: 

Asrah Khadr, (215) 814–2071, or by email at khadr.asrah@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. What actions is EPA taking? 

II. What are the effects of these actions? 

III. Statutory and Executive Order Reviews. 

I. What actions is EPA taking? 

In accordance with section 179(c)(1) 

of the Clean Air Act (CAA), 42 U.S.C. 

section 7509(c)(1), and 40 Code of 

Federal Regulations (CFR) section 

51.1004(c), EPA is determining that the 

Charleston Area (composed of Kanawha 

and Putnam Counties) has attained the 

1997 annual PM2.5 NAAQS. This action 

is based upon complete, qualityassured, and certified ambient air 

monitoring data for the 2007–2009 

monitoring period that show that the 

Area has monitored attainment of the 

1997 annual PM2.5 NAAQS and data 

available to date for 2010 that show the 

Area continues to attain. EPA is also 

determining, in accordance with EPA’s 

PM2.5 Implementation Rule of April 25, 

2007 (72 FR 20664), that the Charleston 

Area has attained the 1997 annual PM2.5

NAAQS by its applicable attainment 

date of April 5, 2010. 

EPA published in the Federal 

Register its proposed determination for 

the Charleston Area on July 15, 2011 (76 

FR 41739). A discussion of the rationale 

behind this determination and the effect 

of the determination was included in 

the notice of proposed rulemaking. EPA 

received no comments on this notice of 

proposed rulemaking. 

II. What are the effects of these actions? 

In determining the Charleston Area 

attained the 1997 annual PM2.5 standard 

by its applicable attainment date (April 

5, 2010), EPA has met its requirement 

pursuant to 179(c)(1) of the CAA to 

make a determination based on the 

Area’s air quality data as of the 

attainment date whether the Area 

attained the standard by that date. This 

action does not constitute a 

redesignation of the Area to attainment 

of the 1997 annual PM2.5 NAAQS under 

section 107(d)(3) of the CAA. Further, 

this action does not involve approving 

maintenance plans for the Area as 

required under section 175A of the 

CAA, nor does it find that the Area has 

met all other requirements for 

redesignation. Even after a 

determination of attainment by EPA, the 

designation status of the Charleston 

Area is nonattainment for the 1997 

annual PM2.5 NAAQS until such time as 

EPA determines that the Area meets the 

CAA requirements for redesignation to 


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