Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules 11711 

TABLE 1 OF § 165.801—SECTOR OHIO VALLEY ANNUAL AND RECURRING SAFETY ZONES—Continued 

Date Sponsor/name Location Safety zone 

53. 1 day—July 4th ................................ Cities of Cincinnati, OH and Newport, 

KY/July 4th Fireworks.

Newport, KY .......... Ohio River, Miles 469.6–470.2 (Kentucky and Ohio). 

54. 2 days—second weekend in July .... Marietta Riverfront Roar/Marietta 

Riverfront Roar.

Marietta, OH ......... Ohio River, Mile 171.6–172.6 (Ohio). 

55. 1 day—1st weekend in July ............. Gallia County Chamber of Commerce/

Gallipolis River Recreation Festival.

Gallipolis, OH ........ Ohio River, Mile 269.5–270.5 (Ohio). 

56. 1 day—July 4th ................................ Kindred Communications/Dawg Dazzle Huntington, WV ..... Ohio River, Mile 307.8–308.8 (West 

Virginia). 

57. 1 day—Last weekend in August ...... Swiss Wine Festival/Swiss Wine Festival Fireworks Show.Ghent, KY ............. Ohio River, Mile 537 (Kentucky). 

58. 1 day—Saturday of Labor Day 

weekend.

University of Pittsburgh Athletic Department/University of Pittsburgh 

Fireworks.

Pittsburgh, PA ....... Allegheny River, Mile 0.0–0.25 (Pennsylvania). 

59. Sunday, Monday, or Thursday from 

September through January.

Pittsburgh Steelers Fireworks .............. Pittsburgh, PA ....... Ohio River, Mile 0.3–Allegheny River, 

Mile 0.2 (Pennsylvania). 

60. 3 days—Third weekend in September.Wheeling Heritage Port Sternwheel 

Festival Foundation/Wheeling Heritage Port Sternwheel Festival.

Wheeling, WV ....... Ohio River, Mile 90.2–90.7 (West Virginia). 

61. 1 day—Second Saturday in September.Ohio River Sternwheel Festival Committee fireworks.Marietta, OH ......... Ohio River, Mile 171.5–172.5 (Ohio). 

62. 1 day—Second weekend of October Leukemia and Lymphoma Society/

Light the Night Walk Fireworks.

Nashville, TN ........ Cumberland River, Mile 190.0–192.0 

(Tennessee). 

63. 1 day—First Saturday in October .... West Virginia Motor Car Festival ......... Charleston, WV ..... Kanawha River, Mile 58–59 (West Virginia). 

64. 1 day—Friday before Thanksgiving Kittanning Light Up Night Firework Display.Kittanning, PA ....... Allegheny River, Mile 44.5–45.5 

(Pennsylvania). 

65. 1 day—First week in October .......... Leukemia & Lymphoma Society/Light 

the Night.

Pittsburgh, PA ....... Ohio River, Mile 0.0–0.4 (Pennsylvania). 

66. 1 day—Friday before Thanksgiving Duquesne Light/Santa Spectacular ..... Pittsburgh, PA ....... Monongahela River, Mile 0.00–0.22, 

Allegheny River, Mile 0.00–0.25, and 

Ohio River, Mile 0.0–0.3 (Pennsylvania). 

* * * * * 

Dated: January 5, 2016. 

R.V. Timme, 

Captain, U.S. Coast Guard, Captain of the 

Port Ohio Valley. 

[FR Doc. 2016–05032 Filed 3–4–16; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2015–0838; FRL–9943–26– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Infrastructure Requirements for the 

2012 Fine Particulate Matter National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

state implementation plan (SIP) revision 

submitted by the Commonwealth of 

Virginia pursuant to the Clean Air Act 

(CAA). Whenever new or revised 

national ambient air quality standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements including, but not limited to, 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The 

Commonwealth of Virginia has made a 

submittal addressing the infrastructure 

requirements for the 2012 fine 

particulate matter (PM2.5) NAAQS. This 

action is being taken under the CAA. 

DATES: Written comments must be 

received on or before April 6, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2015–0838 at http://

www.regulations.gov, or via email to 

fernandez.cristina@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, the EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

confidential business information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: On July 

16, 2015, the Commonwealth of Virginia 

(Virginia) through the Virginia 

Department of Environmental Quality 

(VADEQ) submitted a revision to the 

Commonwealth’s SIP to satisfy the 

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

CAA for the 2012 PM2.5 NAAQS. 

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11712 Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules 

1 In EPA’s 2012 PM2.5 NAAQS revision, EPA left 

unchanged the existing welfare (secondary) 

standards for PM2.5 to address PM related effects 

such as visibility impairment, ecological effects, 

damage to materials and climate impacts. This 

includes an annual secondary standard of 15 mg/m3

and a 24-hour standard of 35 mg/m3. 

2To clarify, the ‘‘2013 PM2.5 NAAQS’’ referred to 

in the Virginia SIP submittal is the same as the 

‘‘2012 PM2.5 NAAQS’’ EPA refers to in this 

rulemaking action. The final rule for this NAAQS 

was signed by the EPA Administrator on December 

14, 2012, thereby it has been called the ‘‘2012 PM2.5

NAAQS.’’ However, the final rule was published in 

the Federal Register on January 15, 2013, with an 

effective date of March 13, 2013, resulting in it also 

being referred to as the ‘‘2013 PM2.5 NAAQS.’’ 

3For example: Section 110(a)(2)(E)(i) of the CAA 

provides that states must provide assurances that 

they have adequate legal authority under state and 

I. Background 

On July 18, 1997, the EPA 

promulgated a new 24-hour and a new 

annual NAAQS for PM2.5 (62 FR 38652). 

On October 17, 2006, the EPA revised 

the standards for PM2.5, tightening the 

24-hour PM2.5 standard from 65 

micrograms per cubic meter (mg/m3) to 

35 mg/m3, and retaining the annual 

PM2.5 standard at 15 mg/m3 (71 FR 

61144). Subsequently, on December 14, 

2012, the EPA revised the level of the 

health based (primary) annual PM2.5

standard to 12 mg/m3. See 78 FR 3086 

(January 15, 2013).1

Pursuant to section 110(a)(1) of the 

CAA, states are required to submit SIPs 

meeting the applicable requirements of 

section 110(a)(2) within three years after 

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. Section 110(a)(2) 

requires states to address basic SIP 

elements such as requirements for 

monitoring, basic program 

requirements, and legal authority that 

are designed to assure attainment and 

maintenance of the NAAQS. Section 

110(a) imposes the obligation upon 

states to make a SIP submission to EPA 

for a new or revised NAAQS, but the 

contents of that submission may vary 

depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

the state develops and submits the SIP 

for a new or revised NAAQS affect the 

content of the submission. The content 

of such SIP submission may also vary 

depending upon what provisions the 

state’s existing SIP already contains. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for infrastructure SIP requirements 

related to a newly established or revised 

NAAQS. As mentioned earlier, these 

requirements include basic SIP elements 

such as requirements for monitoring, 

basic program requirements, and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. 

II. Summary of SIP Revision 

On July 16, 2015, the VADEQ 

provided a SIP revision to satisfy certain 

section 110(a)(2) requirements of the 

CAA for the 2012 PM2.5 NAAQS.2 This 

revision addressed the following CAA 

infrastructure elements which EPA is 

proposing to approve: Section 

110(a)(2)(A), (B), (C), (D)(i)(II) 

(prevention of significant deterioration), 

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

(M). A detailed summary of EPA’s 

review and rationale for finding 

Virginia’s submittal addresses these 

requirements in section 110(a)(2) may 

be found in the technical support 

document (TSD) for this rulemaking 

action which is available on line at 

www.regulations.gov, Docket ID Number 

EPA–R03–OAR–2015–0838. 

This rulemaking action does not 

include any proposed action on section 

110(a)(2)(I) of the CAA which pertains 

to the nonattainment requirements of 

part D, title I of the CAA, because this 

element is not required to be submitted 

by the 3-year submission deadline of 

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

Virginia’s July 16, 2015 SIP submittal 

did not address this element. Virginia’s 

obligations under section 110(a)(2)(I) 

will be addressed in a separate process 

if applicable or necessary for the 2012 

PM2.5 NAAQS. This rulemaking action 

also does not include proposed action 

on requirements under section 

110(a)(2)(D)(i)(I) of the CAA because 

Virginia’s submittal did not include any 

provisions for this element; therefore, 

EPA will take later, separate action on 

section 110(a)(2)(D)(i)(I) for the 2012 

PM2.5 NAAQS for Virginia. Finally, at 

this time, EPA is not proposing action 

on the portion of Virginia’s July 16, 

2015 infrastructure SIP submittal 

addressing section 110(a)(2)(D)(i)(II) for 

visibility protection for the 2012 PM2.5

NAAQS. Although Virginia’s submittal 

referred to a July 16, 2015 regional haze 

SIP revision submittal to address 

requirements in section 

110(a)(2)(D)(i)(II) for visibility 

protection for the 2012 PM2.5 NAAQS, 

EPA intends to take separate rulemaking 

action on the July 16, 2015 regional haze 

SIP revision and on the portion of the 

July 16, 2015 infrastructure SIP 

submission for section 110(a)(2)(D)(i)(II) 

(visibility protection) as explained in 

the TSD. EPA is soliciting public 

comments on the issues discussed in 

this document. These comments will be 

considered before taking final action. 

III. EPA’s Approach To Reviewing 

Infrastructure SIPs 

EPA is acting upon the SIP 

submission from Virginia that addresses 

the infrastructure requirements of 

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

the 2012 PM2.5 NAAQS. The 

requirement for states to make a SIP 

submission of this type arises out of 

section 110(a)(1) of the CAA. Pursuant 

to section 110(a)(1), states must make 

SIP submissions ‘‘within 3 years (or 

such shorter period as the Administrator 

may prescribe) after the promulgation of 

a national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) of the CAA includes a 

list of specific elements that ‘‘[e]ach 

such plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of section 

110(a)(1) and (2) as infrastructure SIP 

submissions. Although the term 

‘‘infrastructure SIP’’ does not appear in 

the CAA, EPA uses the term to 

distinguish this particular type of SIP 

submission from submissions that are 

intended to satisfy other SIP 

requirements under the CAA, such 

‘‘nonattainment SIP’’ or ‘‘attainment 

plan SIP’’ submissions to address the 

nonattainment planning requirements of 

part D of title I of the CAA, ‘‘regional 

haze SIP’’ submissions required by EPA 

rule to address the visibility protection 

requirements of section 169A of the 

CAA, and nonattainment new source 

review permit program submissions to 

address the permit requirements of 

CAA, title I, part D. 

Section 110(a)(1) of the CAA 

addresses the timing and general 

requirements for infrastructure SIP 

submissions and section 110(a)(2) 

provides more details concerning the 

required contents of these submissions. 

The list of required elements provided 

in section 110(a)(2) contains a wide 

variety of disparate provisions, some of 

which pertain to required legal 

authority, some of which pertain to 

required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.3 EPA 

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Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules 11713 

local law to carry out the SIP; section 110(a)(2)(C) 

of the CAA provides that states must have a SIP 

approved program to address certain sources as 

required by part C of title I of the CAA; and section 

110(a)(2)(G) of the CAA provides that states must 

have legal authority to address emergencies as well 

as contingency plans that are triggered in the event 

of such emergencies. 

4See, 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)). 

5EPA notes that this ambiguity within section 

110(a)(2) of the CAA is heightened by the fact that 

various subparts of part D set specific dates for 

submission of certain types of SIP submissions in 

designated nonattainment areas for various 

pollutants. Note, e.g., that section 182(a)(1) of the 

CAA provides specific dates for submission of 

emissions inventories for the ozone NAAQS. Some 

of these specific dates are necessarily later than 

three years after promulgation of the new or revised 

NAAQS. 

6See, 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). 

7On 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. 

8For 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. 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the CAA, which specifically 

address nonattainment SIP 

requirements.4 Section 110(a)(2)(I) of 

the CAA pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) of the CAA requires EPA 

to establish a schedule for submission of 

such plans for certain pollutants when 

the Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) of the CAA 

allows up to two years or in some cases 

three years, for such designations to be 

promulgated.5 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

section 110(a)(1) and (2) with respect to 

infrastructure SIPs pertains to whether 

states must meet all of the infrastructure 

SIP requirements in a single SIP 

submission, and whether EPA must act 

upon such SIP submission in a single 

action. Although section 110(a)(1) 

directs states to submit ‘‘a plan’’ to meet 

these requirements, EPA interprets the 

CAA to allow states to make multiple 

SIP submissions separately addressing 

infrastructure SIP elements for the same 

NAAQS. If states elect to make such 

multiple SIP submissions to meet the 

infrastructure SIP requirements, EPA 

can elect to act on such submissions 

either individually or in a larger 

combined action.6 Similarly, EPA 

interprets the CAA to allow it to take 

action on the individual parts of one 

larger, comprehensive infrastructure SIP 

submission for a given NAAQS without 

concurrent action on the entire 

submission. For example, EPA has 

sometimes elected to act at different 

times on various elements and subelements of the same infrastructure SIP 

submission.7

Ambiguities within section 110(a)(1) 

and (2) may also arise with respect to 

infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, for example 

because the content and scope of a 

state’s infrastructure SIP submission to 

meet this element might be very 

different for an entirely new NAAQS 

than for a minor revision to an existing 

NAAQS.8

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) of the 

CAA requires that attainment plan SIP 

submissions required by part D have to 

meet the ‘‘applicable requirements’’ of 

section 110(a)(2). Thus, for example, 

attainment plan SIP submissions must 

meet the requirements of section 

110(a)(2)(A) regarding enforceable 

emission limits and control measures 

and section 110(a)(2)(E)(i) regarding air 

agency resources and authority. By 

contrast, it is clear that attainment plan 

SIP submissions required by part D 

would not need to meet the portion of 

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

PSD program required in part C of title 

I of the CAA, because PSD does not 

apply to a pollutant for which an area 

is designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

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9EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

10 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

11EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d 

7 (D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

12By 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. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.9 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).10 EPA developed this 

document to provide states with up-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) of the 

CAA that are relevant in the context of 

infrastructure SIP submissions.11 The 

guidance also discusses the 

substantively important issues that are 

germane to certain subsections of 

section 110(a)(2). Significantly, EPA 

interprets section 110(a)(1) and (2) such 

that infrastructure SIP submissions need 

to address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

of the CAA is a required element of 

section 110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focus upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including greenhouse gases 

(GHGs). By contrast, structural PSD 

program requirements do not include 

provisions that are not required under 

EPA’s regulations at 40 CFR 51.166 but 

are merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) of the 

CAA includes, inter alia, the 

requirement that states have a program 

to regulate minor new sources. Thus, 

EPA evaluates whether the state has an 

EPA approved minor new source review 

program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(SSM); (ii) existing provisions related to 

‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (NSR Reform). 

Thus, EPA believes it may approve an 

infrastructure SIP submission without 

scrutinizing the totality of the existing 

SIP for such potentially deficient 

provisions and may approve the 

submission even if it is aware of such 

existing provisions.12 It is important to 

note that EPA’s approval of a state’s 

infrastructure SIP submission should 

not be construed as explicit or implicit 

re-approval of any existing potentially 

deficient provisions that relate to the 

three specific issues just described. 

EPA’s approach to review 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

section 110(a)(2) as requiring review of 

each and every provision of a state’s 

existing SIP against all requirements in 

the CAA and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

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13For 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). 

14EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). The EPA has 

previously used its authority under CAA section 

110(k)(6) to remove numerous other SIP provisions 

that the Agency determined it had approved in 

error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 

FR 34641 (June 27, 1997) (corrections to American 

Samoa, Arizona, California, Hawaii, and Nevada 

SIPs); 69 FR 67062 (November 16, 2004) 

(corrections to California SIP); and 74 FR 57051 

(November 3, 2009) (corrections to Arizona and 

Nevada SIPs). 

15See, 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). 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II) of the CAA, because 

carbon monoxide does not affect 

visibility. As a result, an infrastructure 

SIP submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II) of the CAA. 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and (2) because the CAA provides other 

avenues and mechanisms to address 

specific substantive deficiencies in 

existing SIPs. These other statutory tools 

allow EPA to take appropriately tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) of the CAA authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.13 Section 

110(k)(6) of the CAA authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.14

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.15

IV. Proposed Action 

EPA is proposing to approve the 

following elements of Virginia’s July 16, 

2015 infrastructure SIP revision for the 

2012 PM2.5 NAAQS: Section 

110(a)(2)(A), (B), (C), (D)(i)(II) 

(prevention of significant deterioration), 

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

(M). Virginia’s July 16, 2015 SIP 

revision provides the basic program 

elements specified in section 110(a)(2) 

of the CAA necessary to implement, 

maintain, and enforce the 2012 PM2.5

NAAQS. This proposed rulemaking 

action does not include action on 

section 110(a)(2)(I) which pertains to the 

nonattainment planning requirements of 

part D, title I of the CAA, because this 

element is not required to be submitted 

by the 3-year submission deadline of 

section 110(a)(1) of the CAA, and will 

be addressed in a separate process 

where necessary and applicable. 

Additionally, this proposed rulemaking 

action does not include rulemaking 

action on section 110(a)(2)(D)(i)(I) 

(interstate transport of emissions) or 

(D)(i)(II) (visibility protection) for the 

2012 PM2.5 NAAQS. EPA will take later, 

separate action on Virginia’s 

requirements for section 

110(a)(2)(D)(i)(I) and (D)(i)(II) (visibility 

protection) for the 2012 PM2.5 NAAQS. 

V. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code Sec. 10.1–1198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information 

that: (1) Are generated or developed 

before the commencement of a 

voluntary environmental assessment; (2) 

are prepared independently of the 

assessment process; (3) demonstrate a 

clear, imminent and substantial danger 

to the public health or environment; or 

(4) are required by law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

law, Va. Code Sec. 10.1–1198, precludes 

granting a privilege to documents and 

information ‘‘required by law,’’ 

including documents and information 

‘‘required by federal law to maintain 

program delegation, authorization or 

approval,’’ since Virginia must ‘‘enforce 

federally authorized environmental 

programs in a manner that is no less 

stringent than their federal 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 

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11716 Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on federal enforcement 

authorities, EPA may at any time invoke 

its authority under the CAA, including, 

for example, sections 113, 167, 205, 211 

or 213, to enforce the requirements or 

prohibitions of the state plan, 

independently of any state enforcement 

effort. In addition, citizen enforcement 

under section 304 of the CAA is 

likewise unaffected by this, or any, state 

audit privilege or immunity law. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule, which 

satisfies certain infrastructure 

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

CAA for the 2012 PM2.5 NAAQS for the 

Commonwealth of Virginia, is not being 

approved to apply on any Indian 

reservation land as defined in 18 U.S.C. 

1151 or in any other area where EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule will not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

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

Dated: February 19, 2016. 

Shawn M. Garvin, 

Regional Administrator, Region III. 

[FR Doc. 2016–04755 Filed 3–4–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2014–0860; FRL 9943–30– 

Region 5] 

Air Plan Approval; Wisconsin; Base 

Year Emission Inventories for the 2008 

8-Hour Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the Wisconsin 

Department of Natural Resources 

(WDNR) on November 14, 2014, to 

address emission inventory 

requirements for the Sheboygan, 

Wisconsin nonattainment area and the 

Wisconsin portion of the ChicagoNaperville, Illinois-Indiana-Wisconsin 

(IL–IN–WI) nonattainment area under 

the 2008 ozone National Ambient Air 

Quality Standard (NAAQS). EPA is 

proposing to approve the 2011 Volatile 

Organic Compounds (VOC) and Oxides 

of Nitrogen (NOX) emission inventories 

in the November 14, 2014, submittal as 

part of the Wisconsin SIP. 

DATES: Comments must be received on 

or before April 6, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2014–0860 at http://

www.regulations.gov or via email to 

Aburano.Douglas@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

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