Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations 11557 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0522; FRL–9923–79– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Infrastructure Requirements for the 

2010 Sulfur Dioxide National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Virginia pursuant to the Clean Air Act 

(CAA). Whenever new or revised 

National Ambient Air Quality Standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements, including but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure 

implementation, maintenance, and 

enforcement of the NAAQS. These 

elements are referred to as infrastructure 

requirements. The Commonwealth of 

Virginia made a submittal addressing 

the infrastructure requirements for the 

2010 sulfur dioxide (SO2) primary 

NAAQS. 

DATES: This final rule is effective on 

April 3, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0522. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision 

On June 22, 2010 (75 FR 35520), EPA 

promulgated a 1-hour primary SO2

NAAQS at a level of 75 parts per billion 

(ppb), based on a 3-year average of the 

annual 99th percentile of 1-hour daily 

maximum concentrations. The new 

NAAQS is codified at 40 CFR 50.17, 

while the prior NAAQS are at 40 CFR 

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

CAA, states are required to submit SIPs 

meeting the applicable requirements of 

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

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. 

On June 18, 2014, the Commonwealth 

of Virginia, through the Virginia 

Department of Environmental Quality 

(VADEQ), submitted a SIP revision that 

addresses the infrastructure elements 

specified in section 110(a)(2) of the CAA 

necessary to implement, maintain, and 

enforce the 2010 SO2 NAAQS. On 

August 22, 2014 (79 FR 49731), EPA 

published a notice of proposed 

rulemaking (NPR) for Virginia proposing 

approval of the submittal. In the NPR, 

EPA proposed approval of the following 

infrastructure elements: Section 

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

(prevention of significant deterioration), 

(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) 

(consultation, public notification, and 

prevention of significant deterioration), 

(K), (L), and (M). 

Virginia did not submit section 

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

nonattainment requirements of part D, 

Title I of the CAA, because this element 

is not required to be submitted by the 

3-year submission deadline of section 

110(a)(1) and will be addressed in a 

separate process. At this time, EPA is 

not taking action on section 

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

protection for the 2010 SO2 NAAQS as 

explained in the NPR. Although 

Virginia’s infrastructure SIP submittal 

for the 2010 SO2 NAAQS referred to 

Virginia’s regional haze SIP for section 

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

protection, EPA intends to take later, 

separate action on Virginia’s submittal 

for these elements as explained in the 

NPR and the Technical Support 

Document (TSD) which accompanied 

the NPR. This rulemaking action also 

does not include action on section 

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

Virginia’s June 18, 2014 infrastructure 

SIP submittal did not include provisions 

for this element; therefore EPA will take 

later, separate action on section 

110(a)(2)(D)(i)(I) for the 2010 SO2

NAAQS for Virginia as explained in the 

NPR. Finally, EPA will also take later, 

separate action with respect to Section 

110(a)(2)(E)(ii) regarding CAA section 

128 requirements for State Boards for 

the 2010 SO2 NAAQS as explained in 

the NPR. 

The rationale supporting EPA’s 

proposed rulemaking action, including 

the scope of infrastructure SIPs in 

general, is explained in the published 

NPR and the TSD accompanying the 

NPR and will not be restated here. The 

NPR and TSD are available in the docket 

for this rulemaking at 

www.regulations.gov, Docket ID Number 

EPA–R03–OAR–2014–0522. The 

discussion below in responding to 

comments on the NPR provides 

additional rationale to the extent 

necessary and appropriate to provide 

such responses and support the final 

action. 

II. Public Comments and EPA’s 

Responses 

EPA received comments from the 

Sierra Club on the August 22, 2014 

proposed rulemaking action on 

Virginia’s 2010 SO2 infrastructure SIP. 

A full set of these comments is provided 

in the docket for today’s final 

rulemaking action. 

A. Background Comments 

1. The Plain Language of the CAA 

Comment 1: Sierra Club contends in 

background comments that the plain 

language of section 110(a)(2)(A) of the 

CAA, legislative history of the CAA, 

case law, EPA regulations such as 40 

CFR 51.112(a), and EPA interpretations 

in rulemakings require the inclusion of 

enforceable emission limits in an 

infrastructure SIP to prevent NAAQS 

exceedances in areas not designated 

nonattainment. Sierra Club then 

contends that the Virginia 2010 SO2

infrastructure SIP revision did not 

revise the existing SO2 emission limits 

in response to the 2010 SO2 NAAQS 

and fails to comport with asserted CAA 

requirements for SIPs to establish 

enforceable emission limits that are 

adequate to prohibit NAAQS 

exceedances in areas not designated 

nonattainment. 

The Commenter states that the main 

objective of the infrastructure SIP 

process ‘‘is to ensure that all areas of the 

country meet the NAAQS,’’ and that 

nonattainment areas are addressed 

through nonattainment SIPs. The 

Commenter asserts the NAAQS are the 

foundation for specific emission 

limitations for most large stationary 

sources, such as coal-fired power plants. 


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11558 Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations 

1Thus, EPA disagrees with Sierra Club’s general 

assertion that the main objective of infrastructure 

SIPs is to ensure all areas of the country meet the 

NAAQS, as we believe the infrastructure SIP 

process is the opportunity to review the structural 

requirements of a state’s air program. EPA, 

however, does agree with Sierra Club that the 

NAAQS are the foundation upon which emission 

limitations are set, but we believe, as explained in 

responses to subsequent comments, that these 

emission limitations are generally set in the 

attainment planning process envisioned by part D 

of title I of the CAA, including, but not limited to, 

CAA sections 172 and 191–192. 

2The TSD for this action is available on line at 

www.regulations.gov, Docket ID Number EPA–R03– 

OAR–2014–0522. 

3 9VAC5 Chapter 40 includes emission standards 

for SO2 for many source categories including, but 

not limited to, portland cement, primary and 

secondary metal operations, sulfuric acid 

production, sulfur recovery operations, and 

lightweight aggregate process operations. 

4When EPA proposed to approve Virginia’s SO2

infrastructure SIP in August 2014, we included in 

the TSD for section 110(a)(2)(A) a reference to 

9VAC5 Chapter 140 which was Virginia’s SIP 

approved regulations implementing EPA’s Clean 

Air Interstate Rule (CAIR), a cap-and-trade program 

to reduce SO2 and nitrogen oxide (NOX) emissions 

The Commenter discusses the CAA’s 

framework whereby states have primary 

responsibility to assure air quality 

within the state pursuant to CAA 

section 107(a) which the states carry out 

through SIPs such as infrastructure SIPs 

required by section 110(a)(2). The 

Commenter also states that on its face 

the CAA requires infrastructure SIPs ‘‘to 

be adequate to prevent exceedances of 

the NAAQS.’’ In support, the 

Commenter quotes the language in 

section 110(a)(1) which requires states 

to adopt a plan for implementation, 

maintenance, and enforcement of the 

NAAQS and the language in section 

110(a)(2)(A) which requires SIPs to 

include enforceable emissions 

limitations as may be necessary to meet 

the requirements of the CAA and which 

the commenter claims include the 

maintenance plan requirement. Sierra 

Club notes the CAA definition of 

emission limit and reads these 

provisions together to require 

‘‘enforceable emission limits on source 

emissions sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 1: EPA disagrees that 

section 110 is clear ‘‘on its face’’ and 

must be interpreted in the manner 

suggested by Sierra Club. As we have 

previously explained in response to 

Sierra Club’s similar comments in 

taking action on Virginia’s 2008 ozone 

NAAQS infrastructure SIP (see 79 FR 

17043, 17047 (March 27, 2014)), section 

110 is only one provision that is part of 

the complicated structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be interpreted in the context 

of not only that structure, but also of the 

historical evolution of that structure. 

EPA interprets infrastructure SIPs as 

more general planning SIPs, consistent 

with the CAA as understood in light of 

its history and structure. When Congress 

enacted the CAA in 1970, it did not 

include provisions requiring states and 

the EPA to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

in ‘‘air quality control regions’’ (AQCRs) 

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with a new NAAQS 

within five years. Moreover, at that 

time, section 110(a)(2)(A)(i) specified 

that the section 110 plan provide for 

‘‘attainment’’ of the NAAQS and section 

110(a)(2)(B) specified that the plan must 

include ‘‘emission limitations, 

schedules, and timetables for 

compliance with such limitations, and 

such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ 

In 1977, Congress recognized that the 

existing structure was not sufficient and 

many areas were still violating the 

NAAQS. At that time, Congress for the 

first time added provisions requiring 

states and EPA to identify whether areas 

of a state were violating the NAAQS 

(i.e., were nonattainment) or were 

meeting the NAAQS (i.e., were 

attainment) and established specific 

planning requirements in section 172 

for areas not meeting the NAAQS. In 

1990, many areas still had air quality 

not meeting the NAAQS and Congress 

again amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS. At that same time, Congress 

modified section 110 to remove 

references to the section 110 SIP 

providing for attainment, including 

removing pre-existing section 

110(a)(2)(A) in its entirety and 

renumbering subparagraph (B) as 

section 110(a)(2)(A). Additionally, 

Congress replaced the clause ‘‘as may be 

necessary to insure attainment and 

maintenance [of the NAAQS]’’ with ‘‘as 

may be necessary or appropriate to meet 

the applicable requirements of this 

chapter.’’ Thus, the CAA has 

significantly evolved in the more than 

40 years since it was originally enacted. 

While at one time section 110 of the 

CAA did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, under the 

structure of the current CAA, section 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. More detailed, later-enacted 

provisions govern the substantive 

planning process, including planning 

for attainment of the NAAQS. 

Thus, EPA asserts that section 110 of 

the CAA is only one provision that is 

part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of that 

structure and the historical evolution of 

that structure. In light of the revisions 

to section 110 since 1970 and the laterpromulgated and more specific planning 

requirements of the CAA, EPA 

reasonably interprets the requirement in 

section 110(a)(2)(A) of the CAA that the 

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS and that 

the state demonstrate that it has the 

necessary tools to implement and 

enforce a NAAQS, such as adequate 

state personnel and an enforcement 

program. EPA has interpreted the 

requirement for emission limitations in 

section 110 to mean that the state may 

rely on measures already in place to 

address the pollutant at issue or any 

new control measures that the state may 

choose to submit. Finally, as EPA stated 

in the Infrastructure SIP Guidance 

which specifically provides guidance to 

states in addressing the 2010 SO2

NAAQS, ‘‘[t]he conceptual purpose of 

an infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2.1

The Commenter makes general 

allegations that Virginia does not have 

sufficient protective measures to 

prevent SO2 NAAQS exceedances. EPA 

addressed the adequacy of Virginia’s 

infrastructure SIP for 110(a)(2)(A) 

purposes to meet applicable 

requirements of the CAA in the TSD 

accompanying the August 22, 2014 NPR 

and explained why the SIP includes 

enforceable emission limitations and 

other control measures necessary for 

maintenance of the 2010 SO2 NAAQS 

throughout the Commonwealth.2 These 

include applicable portions of the 

following chapters of 9 VAC 5: 40 

(Existing Stationary Sources),3 50 (New 

and Modified Stationary Sources), and 

91 (Motor Vehicle Inspection and 

Maintenance in Northern Virginia).4


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at electric generating units (EGUs) aimed at 

reducing interstate impacts on ozone and 

particulate matter concentrations in downwind 

states. In August 2011, EPA issued the Cross-State 

Air Pollution Rule (CSAPR) to replace CAIR, which 

had been remanded by the United States Court of 

Appeals for the District of Columbia Circuit (D.C. 

Circuit). See North Carolina v. EPA, 550 F.3d 1176, 

1178 (D.C. Cir. 2008). See also 76 FR 48208 (August 

8, 2011) (promulgation of CSAPR). New litigation 

commenced in the D.C. Circuit concerning CSAPR 

during which the D.C. Circuit initially vacated 

CSAPR in EME Homer City Generation, L.P. v. EPA, 

696 F.3d 7 (D.C. Cir. 2012), cert. granted 133 U.S. 

2857 (2013) and ordered continued implementation 

of CAIR. However, the United States Supreme Court 

vacated that decision and remanded CSAPR to the 

D.C. Circuit for further proceedings. EPA v. EME 

Homer City Generation, L.P., 134 S. Ct. 1584 (2014). 

After the Supreme Court’s decision, EPA filed a 

motion to lift the stay of CSAPR and asked the D.C. 

Circuit to toll CSAPR’s compliance deadlines by 

three years. On October 23, 2014, after EPA 

proposed to approve Virginia’s SO2 infrastructure 

SIP, the D.C. Circuit granted EPA’s motion and 

lifted the stay on CSAPR. EME Homer City 

Generation, L.P. v. EPA, No. 11–1302 (D.C. Cir. Oct. 

23, 2014), Order at 3. EPA views the D.C. Circuit’s 

October 23, 2014 Order as also granting EPA’s 

request to toll CSAPR’s compliance deadlines and 

will therefore commence implementation of CSAPR 

on January 1, 2015. 79 FR 71663 (December 3, 2014) 

(interim final rule revising CSAPR compliance 

deadlines). Therefore, EPA began implementing 

CSAPR on January 1, 2015 and ceased 

implementing CAIR on December 31, 2014 because 

CSAPR replaced CAIR. Virginia EGU’s will 

continue to be subject to a cap-and-trade program 

for reducing SO2 emissions which will preserve 

reductions at such EGUs achieved through CAIR; 

however, this program will be CSAPR, 

implemented as a FIP by EPA, until such time as 

Virginia adds the provisions of CSAPR to its SIP. 

CSAPR requires substantial reductions of SO2 and 

NOX emissions from EGUs in 28 states in the 

Eastern United States that significantly contribute 

to downwind nonattainment or interfere with 

maintenance of the 1997 fine particulate matter 

(PM2.5) and ozone NAAQS and 2006 PM2.5 NAAQS. 

Further, in 2012, EPA granted limited 

approval of Virginia’s regional haze SIP 

which also includes emission measures 

related to SO2. 77 FR 35287 (June 13, 

2012). As discussed in the TSD for this 

rulemaking, EPA finds the provisions 

for SO2 emission limitations and 

measures adequately address section 

110(a)(2)(A) to aid in attaining and/or 

maintaining the NAAQS and finds 

Virginia demonstrated that it has the 

necessary tools to implement and 

enforce the NAAQS. 

2. The Legislative History of the CAA 

Comment 2: Sierra Club cites two 

excerpts from the legislative history of 

the 1970 CAA claiming they support an 

interpretation that SIP revisions under 

CAA section 110 must include 

emissions limitations sufficient to show 

maintenance of the NAAQS in all areas 

of Virginia. Sierra Club also contends 

that the legislative history of the CAA 

supports the interpretation that 

infrastructure SIPs under section 

110(a)(2) must include enforceable 

emission limitations, citing the Senate 

Committee Report and the subsequent 

Senate Conference Report 

accompanying the 1970 CAA. 

Response 2: As provided in the 

previous response, the CAA, as enacted 

in 1970, including its legislative history, 

cannot be interpreted in isolation from 

the later amendments that refined that 

structure and deleted relevant language 

from section 110 concerning 

demonstrating attainment. See also 79 

FR at 17046 (responding to comments 

on Virginia’s ozone infrastructure SIP). 

In any event, the two excerpts of 

legislative history the Commenter cites 

merely provide that states should 

include enforceable emission limits in 

their SIPs and they do not mention or 

otherwise address whether states are 

required to include maintenance plans 

for all areas of the state as part of the 

infrastructure SIP. As provided in 

response to another comment in this 

rulemaking, the TSD for the proposed 

rule explains why the Virginia SIP 

includes enforceable emissions 

limitations for SO2 for the relevant area. 

3. Case Law 

Comment 3: Sierra Club also 

discusses several cases applying the 

CAA which Sierra Club claims support 

their contention that courts have been 

clear that section 110(a)(2)(A) requires 

enforceable emissions limits in 

infrastructure SIPs to prevent 

exceedances of the NAAQS. Sierra Club 

first cites to language in Train v. NRDC, 

421 U.S. 60, 78 (1975), addressing the 

requirement for ‘‘emission limitations’’ 

and stating that emission limitations 

‘‘are specific rules to which operators of 

pollution sources are subject, and 

which, if enforced, should result in 

ambient air which meet the national 

standards.’’ Sierra Club also cites to 

Pennsylvania Dept. of Envtl. Resources 

v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) 

for the proposition that the CAA directs 

EPA to withhold approval of a SIP 

where it does not ensure maintenance of 

the NAAQS, and to Mision Industrial, 

Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 

1976), which quoted section 110(a)(2)(B) 

of the CAA of 1970. The commenter 

contends that the 1990 Amendments do 

not alter how courts have interpreted 

the requirements of section 110, quoting 

Alaska Dept. of Envtl. Conservation v. 

EPA, 540 U.S. 461, 470 (2004) which in 

turn quoted section 110(a)(2)(A) of the 

CAA and also stated that ‘‘SIPs must 

include certain measures Congress 

specified’’ to ensure attainment of the 

NAAQS. The Commenter also quotes 

several additional opinions in this vein. 

Mont. Sulphur & Chem. Co. v. EPA, 666 

F.3d 1174, 1180 (9th Cir. 2012) (‘‘The 

Clean Air Act directs states to develop 

implementation plans—SIPs—that 

‘assure’ attainment and maintenance of 

[NAAQS] through enforceable emissions 

limitations’’); Hall v. EPA 273 F.3d 

1146, 1153 (9th Cir. 2001) (‘‘Each State 

must submit a [SIP] that specif[ies] the 

manner in which [NAAQS] will be 

achieved and maintained within each 

air quality control region in the State’’); 

Conn. Fund for Env’t, Inc. v. EPA, 696 

F.2d 169, 172 (D.C. Cir. 1982) (CAA 

requires SIPs to contain ‘‘measures 

necessary to ensure attainment and 

maintenance of NAAQS’’). Finally, 

Sierra Club cites Mich. Dept. of Envtl. 

Quality v. Browner, 230 F.3d 181 (6th 

Cir. 2000) for the proposition that EPA 

may not approve a SIP revision that 

does not demonstrate how the rules 

would not interfere with attainment and 

maintenance of the NAAQS. 

Response 3: None of the cases Sierra 

Club cites support its contention that 

section 110(a)(2)(A) is clear that 

infrastructure SIPs must include 

detailed plans providing for attainment 

and maintenance of the NAAQS in all 

areas of the state, nor do they shed light 

on how section 110(a)(2)(A) may 

reasonably be interpreted. With the 

exception of Train, none of the cases the 

Commenter cites concerned the 

interpretation of CAA section 

110(a)(2)(A) (or section 110(a)(2)(B) of 

the pre-1990 Act). Rather, the courts 

reference section 110(a)(2)(A) (or section 

110(a)(2)(B) of the pre-1990 CAA) in the 

background sections of decisions in the 

context of a challenge to an EPA action 

on revisions to a SIP that was required 

and approved as meeting other 

provisions of the CAA or in the context 

of an enforcement action. 

In Train, 421 U.S. 60, the Court was 

addressing a state revision to an 

attainment plan submission made 

pursuant to section 110 of the CAA, the 

sole statutory provision at that time 

regulating such submissions. The issue 

in that case concerned whether changes 

to requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The Court 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). Thus the 

issue was not whether a section 110 SIP 

needs to provide for attainment or 

whether emissions limits are needed as 


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5While Sierra Club does contend that the 

Commonwealth shouldn’t be allowed to rely on 

emission reductions that were developed for the 

prior SO2 standards (which we address herein), it 

does not claim that any of the measures are not 

‘‘emissions limitations’’ within the definition of the 

CAA. 

part of the SIP; rather the issue was 

which statutory provision governed 

when the state wanted to revise the 

emission limits in its SIP if such 

revision would not impact attainment or 

maintenance of the NAAQS. To the 

extent the holding in the case has any 

bearing on how section 110(a)(2)(A) 

might be interpreted, it is important to 

realize that in 1975, when the opinion 

was issued, section 110(a)(2)(B) (the 

predecessor to section 110(a)(2)(A)) 

expressly referenced the requirement to 

attain the NAAQS, a reference that was 

removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The Court quoted section 

110(a)(2)(B) of the pre-1990 CAA in 

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the Court had 

interpreted that provision, EPA notes 

that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation’’, not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

Commenter quotes does not interpret 

but rather merely describes section 

110(a)(2)(A). Sierra Club does not raise 

any concerns about whether the 

measures relied on by the 

Commonwealth in the infrastructure SIP 

are ‘‘emissions limitations’’ and the 

decision in this case has no bearing 

here.5 In Mont. Sulphur & Chem. Co., 

666 F.3d 1174, the Court was reviewing 

a federal implementation plan (FIP) that 

EPA promulgated after a long history of 

the state failing to submit an adequate 

SIP in response to EPA’s finding under 

section 110(k)(5) that the previously 

approved SIP was substantially 

inadequate to attain or maintain the 

NAAQS, which triggered the state’s 

duty to submit a new SIP to show how 

it would remedy that deficiency and 

attain the NAAQS. The Court cited 

generally to sections 107 and 

110(a)(2)(A) of the CAA for the 

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations, but this 

language was not part of the Court’s 

holding in the case, which focused 

instead on whether EPA’s finding of SIP 

inadequacy, disapproval of the state’s 

responsive attainment demonstration, 

and adoption of a remedial FIP were 

lawful. The Commenter suggests that 

Alaska Dept. of Envtl. Conservation, 540 

U.S. 461, stands for the proposition that 

the 1990 CAA Amendments do not alter 

how courts interpret section 110. This 

claim is inaccurate. Rather, the Court 

quoted section 110(a)(2)(A), which, as 

noted previously, differs from the pre1990 version of that provision and the 

court makes no mention of the changed 

language. Furthermore, Sierra Club also 

quotes the Court’s statement that ‘‘SIPs 

must include certain measures Congress 

specified,’’ but that statement 

specifically referenced the requirement 

in section 110(a)(2)(C), which requires 

an enforcement program and a program 

for the regulation of the modification 

and construction of new sources. 

Notably, at issue in that case was the 

state’s ‘‘new source’’ permitting 

program, not its infrastructure SIP. 

Two of the cases Sierra Club cites, 

Mich. Dept. of Envtl. Quality, 230 F.3d 

181, and Hall, 273 F.3d 1146, interpret 

CAA section 110(l), the provision 

governing ‘‘revisions’’ to plans, and not 

the initial plan submission requirement 

under section 110(a)(2) for a new or 

revised NAAQS, such as the 

infrastructure SIP at issue in this 

instance. In those cases, the courts cited 

to section 110(a)(2)(A) solely for the 

purpose of providing a brief background 

of the CAA. 

Finally, in Conn. Fund for Env’t, Inc. 

v. EPA, the D.C. Circuit was reviewing 

EPA action on a control measure SIP 

provision which adjusted the percent of 

sulfur permissible in fuel oil. 696 F.2d 

169 (D.C. Cir. 1982). The D.C. Circuit 

focused on whether EPA needed to 

evaluate effects of the SIP revision on 

one pollutant or effects of changes on all 

possible pollutants; therefore, the D.C. 

Circuit did not address required 

measures for infrastructure SIPs and 

nothing in the opinion addressed 

whether infrastructure SIPs needed to 

contain measures to ensure attainment 

and maintenance of the NAAQS. 

4. EPA Regulations, Such as 40 CFR 

51.112(a) 

Comment 4: Sierra Club cites to 40 

CFR 51.112(a), providing that ‘‘[e]ach 

plan must demonstrate that the 

measures, rules and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ Sierra 

Club asserts that this regulation requires 

all SIPs to include emissions limits 

necessary to ensure attainment of the 

NAAQS. Sierra Club states that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act 

separated infrastructure SIPs from 

nonattainment SIPs—a process that 

began with the 1977 amendments and 

was completed by the 1990 

amendments—the regulations apply to 

I–SIPs.’’ Sierra Club relies on a 

statement in the preamble to the 1986 

action restructuring and consolidating 

provisions in part 51, in which EPA 

stated that ‘‘[i]t is beyond the scope of 

th[is] rulemaking to address the 

provisions of Part D of the Act . . .’’ 51 

FR 40656, 40656 (November 7, 1986). 

Response 4: Sierra Club’s reliance on 

40 CFR 51.112 to support its argument 

that infrastructure SIPs must contain 

emission limits ‘‘adequate to prohibit 

NAAQS exceedances’’ and adequate or 

sufficient to ensure the maintenance of 

the NAAQS is not supported. As an 

initial matter, EPA notes and the 

Commenter recognizes this regulatory 

provision was initially promulgated and 

‘‘restructured and consolidated’’ prior to 

the CAA Amendments of 1990, in 

which Congress removed all references 

to ‘‘attainment’’ in section 110(a)(2)(A). 

And, it is clear on its face that 40 CFR 

51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

1990, such as section 175A and 191– 

192. The Commenter suggests that these 

provisions must apply to section 110 

SIPs because in the preamble to EPA’s 

action ‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. It is important to note, 

however, that EPA’s action in 1986 was 

not to establish new substantive 

planning requirements, but rather was 

meant merely to consolidate and 

restructure provisions that had 

previously been promulgated. EPA 

noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. 51 FR at 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘Part 


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6As stated previously, EPA will take later, 

separate action on several portions of Virginia’s SO2

infrastructure SIP submittal including the portions 

of the SIP submittal addressing section 

110(a)(2)(D)(i)(II) and (J) (both for visibility 

protection) and 110(a)(2)(E)(ii) for State Boards. 

7Sierra Club provides a chart in its comments 

claiming 65 percent of SO2 emissions in Virginia 

are from coal-fired power plants based on 2011 

data. 

8Sierra Club asserts its modeling followed 

protocols pursuant to 40 CFR part 50, Appendix W 

and EPA’s 2005 Guideline on Air Quality Models. 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

strategy: SOX and PM (portion)’’), 51.14 

(‘‘Control strategy: CO, HC, OX and NO2

(portion)’’), 51.80 (‘‘Demonstration of 

attainment: Pb (portion)’’), and 51.82 

(‘‘Air quality data (portion)’’). Id. at 

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

5. EPA Interpretations in Other 

Rulemakings 

Comment 5: Sierra Club also 

references two prior EPA rulemaking 

actions where EPA disapproved or 

proposed to disapprove SIPs and 

claimed they were actions in which EPA 

relied on section 110(a)(2)(A) and 40 

CFR 51.112 to reject infrastructure SIPs. 

The Commenter first points to a 2006 

partial approval and partial disapproval 

of revisions to Missouri’s existing plan 

addressing the SO2 NAAQS. In that 

action, EPA cited section 110(a)(2)(A) 

for disapproving a revision to the state 

plan on the basis that the State failed to 

demonstrate the SIP was sufficient to 

ensure maintenance of the SO2 NAAQS 

after revision of an emission limit and 

cited to 40 CFR 51.112 as requiring that 

a plan demonstrates the rules in a SIP 

are adequate to attain the NAAQS. 

Second, Sierra Club cites a 2013 

disapproval of a revision to the SO2 SIP 

for Indiana, where the revision removed 

an emission limit that applied to a 

specific emissions source at a facility in 

the State. See 78 FR 17157, 17158, 

(March 20, 2013) (proposed rule on 

Indiana SO2 SIP) and 78 FR 78720, 

78721 (December 27, 2013) (final rule 

on Indiana SO2 SIP). In its proposed 

disapproval, EPA relied on 40 CFR 

51.112(a) in proposing to reject the 

revision, stating that the State had not 

demonstrated that the emission limit 

was ‘‘redundant, unnecessary, or that its 

removal would not result in or allow an 

increase in actual SO2 emissions.’’ EPA 

further stated in that proposed 

disapproval that the State had not 

demonstrated that removal of the limit 

would not ‘‘affect the validity of the 

emission rates used in the existing 

attainment demonstration.’’ 

Response 5: EPA does not agree that 

the two prior actions referenced by 

Sierra Club establish how EPA reviews 

infrastructure SIPs. It is clear from both 

the final Missouri rule and the proposed 

and final Indiana rule that EPA was not 

reviewing initial infrastructure SIP 

submissions under section 110 of the 

CAA, but rather reviewing revisions that 

would make an already approved SIP 

designed to demonstrate attainment of 

the NAAQS less stringent. EPA’s partial 

approval and partial disapproval of 

revisions to restrictions on emissions of 

sulfur compounds for the Missouri SIP 

in 71 FR 12623 addressed a control 

strategy SIP and not an infrastructure 

SIP. The Indiana action provides even 

less support for the Commenter’s 

position. 78 FR 78720. The review in 

that rule was of a completely different 

requirement than the section 

110(a)(2)(A) SIP. Rather, in that case, the 

State had an approved SO2 attainment 

plan and was seeking to remove 

provisions from the SIP that it relied on 

as part of the modeled attainment 

demonstration. EPA proposed that the 

State had failed to demonstrate under 

section 110(l) of the CAA why the SIP 

revision would not result in increased 

SO2 emissions and thus interfere with 

attainment of the NAAQS. See 78 FR 

17157. Nothing in that proposed or final 

rulemaking addresses the necessary 

content of the initial infrastructure SIP 

for a new or revised NAAQS. Rather, it 

is simply applying the clear statutory 

requirement that a state must 

demonstrate why a revision to an 

approved attainment plan will not 

interfere with attainment of the NAAQS. 

As discussed in detail in the TSD and 

NPR, EPA finds the Virginia SIP meets 

the appropriate and relevant structural 

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

CAA that will aid in attaining and/or 

maintaining the NAAQS and that the 

Commonwealth demonstrated that it has 

the necessary tools to implement and 

enforce a NAAQS. Therefore, EPA 

approves the Virginia SO2 infrastructure 

SIP.6

B. Comments on Virginia SIP SO2

Emission Limits 

Comment 6: Citing section 

110(a)(2)(A) of the CAA, Sierra Club 

contends that EPA may not approve the 

proposed infrastructure SIP because it 

does not include enforceable 1-hour SO2

emission limits for sources currently 

allowed to cause ‘‘NAAQS 

exceedances.’’ Sierra Club asserts the 

proposed infrastructure SIP fails to 

include enforceable 1-hour SO2

emissions limits or other required 

measures to ensure attainment and 

maintenance of the SO2 NAAQS in areas 

not designated nonattainment as Sierra 

Club claims is required by section 

110(a)(2)(A). Sierra Club asserts an 

infrastructure SIP must ensure, through 

state-wide regulations or source specific 

requirements, proper mass limitations 

and short term averaging on specific 

large sources of pollutants such as 

power plants. Sierra Club asserts that 

emission limits are especially important 

for meeting the 1-hour SO2 NAAQS 

because SO2 impacts are strongly 

source-oriented. Sierra Club states coalfired electric generating units (EGUs) are 

large contributors to SO2 emissions but 

contends Virginia did not demonstrate 

that emissions allowed by the proposed 

infrastructure SIP from such large 

sources of SO2 will ensure compliance 

with the 2010 1-hour SO2 NAAQS. The 

Commenter claims the proposed 

infrastructure SIP would allow major 

sources to continue operating with 

present emission limits.7 Sierra Club 

then refers to air dispersion modeling it 

conducted for two coal-fired EGUs in 

Virginia, Chesapeake Energy Center and 

Yorktown Power Station. Sierra Club 

asserts the results of the air dispersion 

modeling it conducted employing EPA’s 

AERMOD program for modeling used 

the plants’ allowable and maximum 

emissions and showed the plants could 

cause exceedances of the 2010 SO2

NAAQS with either allowable or 

maximum emissions.8 Based on the 

modeling, Sierra Club asserts the 

Virginia SO2 infrastructure SIP 

submittal authorizes the two EGUs to 

cause exceedances of the NAAQS with 

allowable and maximum emission rates 

and therefore the infrastructure SIP fails 

to include adequate enforceable 

emission limitations or other required 

measures for sources of SO2 sufficient to 

ensure attainment and maintenance of 

the 2010 SO2 NAAQS. Sierra Club cites 

to information from the owner of 

Chesapeake Energy Center and 

Yorktown Power Station regarding the 

retirement of certain units at those 

plants in 2015 and 2016 and asserts 

such planned retirements should be 

incorporated into the Virginia 

infrastructure SIP as necessary to ensure 

attainment and maintenance of the 

NAAQS. Sierra Club therefore asserts 

EPA must disapprove Virginia’s 

proposed SIP revision. In addition, 

Sierra Club asserts ‘‘EPA must impose 

additional emission limits on the plants 


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9 In EPA’s final SO2 NAAQS preamble (75 FR 

35520 (June 22, 2010)) and subsequent draft 

guidance in March and September 2011, EPA had 

expressed its expectation that many areas would be 

initially designated as unclassifiable due to 

limitations in the scope of the ambient monitoring 

network and the short time available before which 

states could conduct modeling to support their 

designations recommendations due in June 2011. In 

order to address concerns about potential violations 

in these unclassifiable areas, EPA initially 

recommended that states submit substantive 

attainment demonstration SIPs based on air quality 

modeling by June 2013 (under section 110(a)) that 

show how their unclassifiable areas would attain 

and maintain the NAAQS in the future. 

Implementation of the 2010 Primary 1-Hour SO2

NAAQS, Draft White Paper for Discussion, May 

2012 (2012 Draft White Paper) (for discussion 

purposes with Stakeholders at meetings in May and 

June 2012), available at http://www.epa.gov/

airquality/sulfurdioxide/implement.html. However, 

EPA clearly stated in this 2012 Draft White Paper 

its clarified implementation position that it was no 

longer recommending such attainment 

demonstrations for unclassifiable areas for June 

2013 infrastructure SIPs. Id. EPA had stated in the 

preamble to the NAAQS and in the prior 2011 draft 

guidance that EPA intended to develop and seek 

public comment on guidance for modeling and 

development of SIPs for sections 110 and 191 of the 

CAA. Section 191 of the CAA requires states to 

submit SIPs in accordance with section 172 for 

areas designated nonattainment with the SO2

NAAQS. After seeking such comment, EPA has now 

issued guidance for the nonattainment area SIPs 

due pursuant to sections 191 and 172. See Guidance 

for 1-Hour SO2 Nonattainment Area SIP 

Submissions, Stephen D. Page, Director, EPA’s 

Office of Air Quality Planning and Standards, to 

Regional Air Division Directors Regions 1–10, April 

23, 2014. In September 2013, EPA had previously 

issued specific guidance relevant to infrastructure 

SIP submissions due for the NAAQS, including the 

2010 SO2 NAAQS. See Infrastructure SIP Guidance. 

that ensure attainment and maintenance 

of the NAAQS at all times.’’ 

Response 6: EPA believes that section 

110(a)(2)(A) of the CAA is reasonably 

interpreted to require states to submit 

infrastructure SIPs that reflect the first 

step in their planning for attainment 

and maintenance of a new or revised 

NAAQS. These SIP revisions should 

contain a demonstration that the state 

has the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS and show that 

the SIP has enforceable control 

measures. In light of the structure of the 

CAA, EPA’s long-standing position 

regarding infrastructure SIPs is that they 

are general planning SIPs to ensure that 

the state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. As mentioned above, EPA has 

interpreted this to mean, with regard to 

the requirement for emission 

limitations, that states may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. 

As stated in response to a previous 

comment, EPA asserts that section 110 

of the CAA is only one provision that 

is part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA reasonably interprets the 

requirement in section 110(a)(2)(A) of 

the CAA that the plan provide for 

‘‘implementation, maintenance and 

enforcement’’ to mean that the SIP must 

contain enforceable emission limits that 

will aid in attaining and/or maintaining 

the NAAQS and that the 

Commonwealth demonstrate that it has 

the necessary tools to implement and 

enforce a NAAQS, such as adequate 

state personnel and an enforcement 

program. As discussed above, EPA has 

interpreted the requirement for emission 

limitations in section 110 to mean that 

the state may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. Finally, as 

EPA stated in the Infrastructure SIP 

Guidance which specifically provides 

guidance to states in addressing the 

2010 SO2 NAAQS, ‘‘[t]he conceptual 

purpose of an infrastructure SIP 

submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS, whether by 

establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2. 

On April 12, 2012, EPA explained its 

expectations regarding the 2010 SO2

NAAQS via letters to each of the states. 

EPA communicated in the April 2012 

letters that all states were expected to 

submit SIPs meeting the 

‘‘infrastructure’’ SIP requirements under 

section 110(a)(2) of the CAA by June 

2013. At the time, EPA was undertaking 

a stakeholder outreach process to 

continue to develop possible 

approaches for determining attainment 

status under the SO2 NAAQS and 

implementing this NAAQS. EPA was 

abundantly clear in the April 2012 

letters that EPA did not expect states to 

submit substantive attainment 

demonstrations or modeling 

demonstrations showing attainment for 

areas not designated nonattainment in 

infrastructure SIPs due in June 2013. 

Although EPA had previously suggested 

in its 2010 SO2 NAAQS preamble and 

in prior draft implementation guidance 

in 2011 that states should, in the unique 

SO2 context, use the section 110(a) SIP 

process as the vehicle for demonstrating 

attainment of the NAAQS, this approach 

was never adopted as a binding 

requirement and was subsequently 

discarded in the April 2012 letters to 

states. The April 2012 letters 

recommended states focus infrastructure 

SIPs due in June 2013, such as 

Virginia’s SO2 infrastructure SIP, on 

traditional ‘‘infrastructure elements’’ in 

section 110(a)(1) and (2) rather than on 

modeling demonstrations for future 

attainment for areas not designated as 

nonattainment.9

Therefore, EPA asserts the elements of 

section 110(a)(2) which address SIP 

revisions for SO2 nonattainment areas 

including measures and modeling 

demonstrating attainment are due by the 

dates statutorily prescribed under 

subpart 5 under part D. Those 

submissions are due no later than 18 

months after an area is designed 

nonattainment for SO2, under CAA 

section 191(a). Thus, the CAA directs 

states to submit these 110(a)(2) elements 

for nonattainment areas on a separate 

schedule from the ‘‘structural 

requirements’’ of 110(a)(2) which are 

due within three years of adoption or 

revision of a NAAQS. The infrastructure 

SIP submission requirement does not 

move up the date for any required 

submission of a part D plan for areas 

designated nonattainment for the new 

NAAQS. Thus, elements relating to 

demonstrating attainment for areas not 

attaining the NAAQS are not necessary 

for infrastructure SIP submissions, and 

the CAA does not provide explicit 

requirements for demonstrating 

attainment for areas that have not yet 

been designated regarding attainment 

with a particular NAAQS. 

As stated previously, EPA believes 

that the proper inquiry at this juncture 

is whether Virginia has met the basic 

structural SIP requirements appropriate 

at the point in time EPA is acting upon 

the infrastructure submittal. Emissions 

limitations and other control measures 

needed to attain the NAAQS in areas 

designated nonattainment for that 

NAAQS are due on a different schedule 

from the section 110 infrastructure 

elements. A state, like Virginia, may 

reference pre-existing SIP emission 

limits or other rules contained in part D 

plans for previous NAAQS in an 

infrastructure SIP submission. For 

example, Virginia submitted a list of 

existing emission reduction measures in 

the SIP that control emissions of SO2 as 

discussed above in response to a prior 

comment and discussed in detail in the 


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10These lawsuits have not yet been fully 

resolved, as of the date of this final action. 

TSD. These provisions have the ability 

to reduce SO2 overall. Although the 

Virginia SIP relies on measures and 

programs used to implement previous 

SO2 NAAQS, these provisions are not 

limited to reducing SO2 levels to meet 

one specific NAAQS and will continue 

to provide benefits for the 2010 SO2

NAAQS. 

Additionally, as discussed in EPA’s 

TSD supporting the NPR, Virginia has 

the ability to revise its SIP when 

necessary (e.g. in the event the 

Administrator finds the plan to be 

substantially inadequate to attain the 

NAAQS or otherwise meet all 

applicable CAA requirements) as 

required under element H of section 

110(a)(2). See Code of Virginia 10.1– 

1308 (authorizing Virginia’s Air 

Pollution Control Board to promulgate 

regulations to abate, control, and 

prohibit air pollution throughout the 

Commonwealth). 

EPA believes the requirements for 

emission reduction measures for an area 

designated nonattainment for the 2010 

primary SO2 NAAQS are in sections 172 

and 191–192 of the CAA, and therefore, 

the appropriate avenue for 

implementing requirements for 

necessary emission limitations for 

demonstrating attainment with the 2010 

SO2 NAAQS is through the attainment 

planning process contemplated by those 

sections of the CAA. On August 5, 2013, 

EPA designated as nonattainment most 

areas in locations where existing 

monitoring data from 2009–2011 

indicated violations of the 1-hour SO2

standard. 78 FR 47191. At that time, no 

areas in Virginia had monitoring data 

from 2009–2011 indicating violations of 

the 1-hour SO2 standard, and thus no 

areas were designated nonattainment in 

Virginia. In separate future actions, EPA 

intends to address the designations for 

all other areas for which EPA has yet to 

issue designations. See, e.g., 79 FR 

27446 (May 13, 2014) (proposing 

process and timetables by which state 

air agencies would characterize air 

quality around SO2 sources through 

ambient monitoring and/or air quality 

modeling techniques and submit such 

data to the EPA). Although no areas 

within Virginia have yet been 

designated nonattainment, any future 

nonattainment designations under the 

2010 SO2 NAAQS within the 

Commonwealth will set appropriate due 

dates for any applicable attainment SIPs 

required pursuant to CAA sections 172, 

191, and 192. EPA believes it is not 

appropriate to bypass the attainment 

planning process by imposing separate 

attainment planning process 

requirements outside the attainment 

planning process and into the 

infrastructure SIP process. Such actions 

would be disruptive and premature 

absent exceptional circumstances and 

would interfere with a state’s planning 

process. See In the Matter of EME 

Homer City Generation LP and First 

Energy Generation Corp., Order on 

Petitions Numbers III–2012–06, III– 

2012–07, and III2013–01 (July 30, 2014) 

(hereafter, Homer City/Mansfield Order) 

at 10–19 (finding Pennsylvania SIP did 

not require imposition of SO2 emission 

limits on sources independent of the 

part D attainment planning process 

contemplated by the CAA). EPA 

believes that the history of the CAA, and 

intent of Congress for the CAA as 

described above, demonstrate clearly 

that it is within the section 172 and 

general part D attainment planning 

process that Virginia must include 

additional SO2 emission limits on 

sources in order to demonstrate future 

attainment, where needed, for any areas 

in Virginia or other states that may be 

designated nonattainment in the future, 

in order to reach attainment with the 

2010 1-hour SO2 NAAQS. 

The Commenter’s reliance on 40 CFR 

51.112 to support its argument that 

infrastructure SIPs must contain 

emission limits adequate to provide for 

timely attainment and maintenance of 

the standard is also not supported. As 

explained previously in response to the 

background comments, EPA notes this 

regulatory provision clearly on its face 

applies to plans specifically designed to 

attain the NAAQS and not to 

infrastructure SIPs which show the 

states have in place structural 

requirements necessary to implement 

the NAAQS. Therefore, EPA finds 40 

CFR 51.112 inapplicable to its analysis 

of the Virginia SO2 infrastructure SIP. 

As noted in EPA’s preamble for the 

2010 SO2 NAAQS, determining 

compliance with the SO2 NAAQS will 

likely be a source-driven analysis, and 

EPA has explored options to ensure that 

the SO2 designations and 

implementation processes realistically 

account for anticipated SO2 reductions 

at sources that we expect will be 

achieved by current and pending 

national and regional rules. See 75 FR 

35520. As mentioned previously above, 

EPA has proposed a process to address 

additional areas in states which may be 

found to not be attaining the 2010 SO2

NAAQS. 79 FR 27446 (proposing 

process for further monitoring or 

modeling of areas with larger SO2

sources). In addition, in response to 

lawsuits in district courts seeking to 

compel EPA’s remaining designations of 

undesignated areas under the NAAQS, 

EPA has proposed to enter a settlement 

under which this process would require 

an earlier round of designations 

focusing on areas with larger sources of 

SO2 emissions, as well as enforceable 

deadlines for the later rounds of 

designations.10 However, because the 

purpose of an infrastructure SIP 

submission is for more general planning 

purposes, EPA does not believe Virginia 

is obligated to account for controlled 

SO2 levels at individual sources during 

this infrastructure SIP planning process. 

See Homer City/Mansfield Order at 10– 

19. 

Regarding the air dispersion modeling 

conducted by Sierra Club pursuant to 

AERMOD for the coal-fired EGUs 

including Chesapeake Energy Center 

and Yorktown Power Station, EPA is not 

at this stage prepared to opine on 

whether the modeling demonstrates 

violations of the NAAQS, and does not 

find the modeling information relevant 

for review of an infrastructure SIP. EPA 

has issued non-binding guidance for 

states to use in conducting, if they 

choose, additional analysis to support 

designations for the 2010 SO2 NAAQS. 

SO2 NAAQS Designations Modeling 

Technical Assistance Document, EPA 

Office of Air and Radiation and Office 

of Air Quality Planning and Standards, 

December 2013, available at http://

www.epa.gov/airquality/sulfurdioxide/

implement.html. Sierra Club’s AERMOD 

modeling for the Virginia EGUs was 

conducted prior to the issuance of this 

guidance and may not address all 

recommended elements EPA may 

consider important to modeling for the 

2010 SO2 NAAQS for designations 

purposes. If any areas in Virginia are 

designated nonattainment in the future, 

any potential future modeling in 

attainment demonstrations by the 

Commonwealth would need to account 

for any new emissions limitations 

Virginia develops to support such 

demonstration, which at this point are 

unknown. Therefore, it is premature at 

this point to evaluate whether current 

modeled allowable SO2 levels would be 

sufficient to show future attainment of 

the NAAQS. In addition, while EPA has 

extensively discussed the use of 

modeling for attainment demonstration 

purposes and for designations, EPA has 

recommended that such modeling was 

not needed for the SO2 infrastructure 

SIPs needed for the 2010 SO2 NAAQS. 

See April 12, 2012 letters to states and 

2012 Draft White Paper. In contrast, 

EPA recently discussed modeling for 

designations in our May 14, 2014 

proposal at 79 FR 27446 and for 

nonattainment planning in the April 23, 


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11EPA does not disagree with Sierra Club’s data 

indicating coal-fired power plants represented a 

majority of the SO2 emissions in Virginia based on 

2011 data. However, such data are not relevant to 

EPA’s approval of Virginia’s SO2 infrastructure SIP, 

and EPA therefore provides no additional response. 

12The Commenter also cites to a 1983 EPA 

Memorandum on section 107 designations policy 

regarding use of modeling for designations and to 

the 2012 Mont. Sulphur & Chem. Co. case which 

upheld EPA’s finding that the previously approved 

SIP for an area in Montana was substantially 

inadequate to attain the NAAQS due to modeled 

violations of the NAAQS. 

2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions.11

Finally, EPA also disagrees with the 

Commenter that the Virginia 

infrastructure SIP should incorporate 

the planned retirement dates of certain 

emission units at Chesapeake Energy 

Center and Yorktown Power Station to 

ensure attainment and maintenance of 

the NAAQS. Because EPA does not 

believe Virginia’s infrastructure SIP 

requires at this time 1-hour SO2

emission limits on these sources or 

other large stationary sources to prevent 

exceedances of the SO2 NAAQS for all 

the reasons discussed above in this 

response, EPA likewise does not believe 

incorporating planned retirement dates 

for SO2 emitters is necessary for our 

approval of an infrastructure SIP which 

we have explained meets the structural 

requirements of section 110(a)(2). If any 

areas in Virginia are subsequently 

designated nonattainment with the 2010 

SO2 NAAQS, Virginia can address 

needed emission reductions, including 

reductions through source retirements, 

in any subsequent attainment planning 

process in accordance with part D of 

title I of the CAA. 

In conclusion, EPA disagrees with 

Sierra Club’s statements that EPA must 

disapprove Virginia’s infrastructure SIP 

submission because it does not establish 

specific enforceable SO2 emission 

limits, either on coal-fired EGUs or 

other large SO2 sources, in order to 

demonstrate attainment and 

maintenance with the NAAQS at this 

time. 

Comment 7: Sierra Club asserts that 

modeling is the appropriate tool for 

evaluating adequacy of infrastructure 

SIPs and ensuring attainment and 

maintenance of the 2010 SO2 NAAQS. 

The Commenter refers to EPA’s historic 

use of air dispersion modeling for 

attainment designations as well as ‘‘SIP 

revisions.’’ The Commenter cites to 

prior EPA statements that the Agency 

has used modeling for designations and 

attainment demonstrations, including 

statements in the 2010 SO2 NAAQS 

preamble, EPA’s 2012 Draft White Paper 

for Discussion on Implementing the 

2010 SO2 NAAQS, and a 1994 SO2

Guideline Document, as modeling could 

better address the source-specific 

impacts of SO2 emissions and historic 

challenges from monitoring SO2

emissions.12

Sierra Club also cited to several cases 

upholding EPA’s use of modeling in 

NAAQS implementation actions, 

including the Montana Sulphur case, 

Sierra Club v. Costle, 657 F.2d 298 (D.C. 

Cir. 1981), Republic Steel Corp. v. 

Costle, 621 F.2d 797 (6th Cir. 1980), and 

Catawba County v. EPA, 571 F.3d 20 

(D.C. Cir. 2009). The Commenter 

discusses statements made by EPA staff 

regarding the use of modeling and 

monitoring in setting emission 

limitations or determining ambient 

concentrations as a result of a source’s 

emissions, discussing performance of 

AERMOD as a model, if AERMOD is 

capable of predicting whether the 

NAAQS is attained, and whether 

individual sources contribute to SO2

NAAQS violations. Sierra Club cites to 

EPA’s history of employing air 

dispersion modeling for increment 

compliance verifications in the 

permitting process for the Prevention of 

Significant Deterioration (PSD) program 

required in part C of title I of the CAA. 

The Commenter claims the Chesapeake 

Energy Center and Yorktown Power 

Station are examples of sources located 

in elevated terrain where the AERMOD 

model functions appropriately in 

evaluating ambient impacts. 

Sierra Club asserts EPA’s use of air 

dispersion modeling was upheld in 

GenOn REMA, LLC v. EPA, 722 F.3d 513 

(3rd Cir. 2013) where an EGU 

challenged EPA’s use of CAA section 

126 to impose SO2 emission limits on a 

source due to cross-state impacts. The 

Commenter claims the Third Circuit in 

GenOn REMA upheld EPA’s actions 

after examining the record which 

included EPA’s air dispersion modeling 

of the one source as well as other data. 

The Commenter cites to Vehicle Mfrs. 

Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29,43 (1983) and NRDC v. EPA, 

571 F.3d 1245, 1254 (D.C. Cir. 2009) for 

the general proposition that it would be 

arbitrary and capricious for an agency to 

ignore an aspect of an issue placed 

before it and that an agency must 

consider information presented during 

notice-and-comment rulemaking. 

Finally, Sierra Club claims that 

Virginia’s proposed SO2 infrastructure 

SIP lacks emission limitations informed 

by air dispersion modeling and 

therefore fails to ensure Virginia will 

achieve and maintain the 2010 SO2

NAAQS. Sierra Club claims EPA must 

require adequate, 1-hour SO2 emission 

limits in the infrastructure SIP that 

show no exceedances of NAAQS when 

modeled. 

Response 7: EPA agrees with Sierra 

Club that air dispersion modeling, such 

as AERMOD, can be an important tool 

in the CAA section 107 designations 

process for SO2 and in the sections 172 

and 191–192 attainment SIP process, 

including supporting required 

attainment demonstrations. EPA agrees 

that prior EPA statements, EPA 

guidance, and case law support the use 

of air dispersion modeling in the SO2

designations process and attainment 

demonstration process, as well as in 

analyses of whether existing approved 

SIPs remain adequate to show 

attainment and maintenance of the SO2

NAAQS. However, EPA disagrees with 

the Commenter that EPA must 

disapprove the Virginia SO2

infrastructure SIP for its alleged failure 

to include source-specific SO2 emission 

limits that show no exceedances of the 

NAAQS when modeled. 

As discussed above and in the 

Infrastructure SIP Guidance, EPA 

believes the conceptual purpose of an 

infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS and that 

the infrastructure SIP submission 

process provides an opportunity to 

review the basic structural requirements 

of the air agency’s air quality 

management program in light of the new 

or revised NAAQS. See Infrastructure 

SIP Guidance at p. 2. EPA believes the 

attainment planning process detailed in 

part D of the CAA, including sections 

172 and 191–192 attainment SIPs, is the 

appropriate place for the state to 

evaluate measures needed to bring 

nonattainment areas into attainment 

with a NAAQS and to impose additional 

emission limitations such as SO2

emission limits on specific sources. 

EPA had initially recommended that 

states submit substantive attainment 

demonstration SIPs based on air quality 

modeling in the final 2010 SO2 NAAQS 

preamble (75 FR 35520) and in 

subsequent draft guidance issued in 

September 2011 for the section 110(a) 

SIPs due in June 2013 in order to show 

how areas expected to be designated as 

unclassifiable would attain and 

maintain the NAAQS. These initial 

statements in the preamble and 2011 

draft guidance were based on EPA’s 

expectation at the time, that by June 

2012, most areas would initially be 

designated as unclassifiable due to 

limitations in the scope of the ambient 

monitoring network and the short time 

available before which states could 

conduct modeling to support 

designations recommendations in 2011. 


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13The February 6, 2013 ‘‘Next Steps for Area 

Designations and Implementation of the Sulfur 

Dioxide National Ambient Air Quality Standard,’’ 

one of the April 12, 2012 state letters, and the May 

2012 Draft White Paper are available at http://

www.epa.gov/airquality/sulfurdioxide/

implement.html. 

However, after conducting extensive 

stakeholder outreach and receiving 

comments from the states regarding 

these initial statements and the timeline 

for implementing the NAAQS, EPA 

subsequently stated in the April 12, 

2012 letters and in the 2012 Draft White 

Paper that EPA was clarifying its 

implementation position and was no 

longer recommending such attainment 

demonstrations supported by air 

dispersion modeling for unclassifiable 

areas (which had not yet been 

designated) for the June 2013 

infrastructure SIPs. EPA then reaffirmed 

this position in the February 6, 2013 

memorandum, ‘‘Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide National Ambient Air 

Quality Standard.’’ 13 As previously 

mentioned, EPA had stated in the 

preamble to the NAAQS and in the prior 

2011 draft guidance that EPA intended 

to develop and seek public comment on 

guidance for modeling and development 

of SIPs for sections 110, 172 and 191– 

192 of the CAA. After receiving such 

further comment, EPA has now issued 

guidance for the nonattainment area 

SIPs due pursuant to sections 172 and 

191–192 and proposed a process for 

further characterization of areas with 

larger SO2 sources, which could include 

use of air dispersion modeling. See 

April 23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions 

and 79 FR 27446 (proposing process and 

timetables for gathering additional 

information on impacts from larger SO2

sources informed through ambient 

monitoring and/or air quality modeling). 

While the EPA guidance for attainment 

SIPs and the proposed process for 

further characterizing SO2 emissions 

from larger sources both discuss the use 

air dispersion modeling, EPA’s 2013 

Infrastructure SIP Guidance did not 

suggest that states use air dispersion 

modeling to inform emission limitations 

for section 110(a)(2)(A) to ensure no 

exceedances of the NAAQS when 

sources are modeled. Therefore, as 

discussed previously, EPA believes the 

Virginia SO2 infrastructure SIP 

submittal contains the structural 

requirements to address elements in 

section 110(a)(2) as discussed in detail 

in the TSD accompanying the proposed 

approval. EPA believes infrastructure 

SIPs are general planning SIPs to ensure 

that a state has adequate resources and 

authority to implement a NAAQS. 

Infrastructure SIP submissions are not 

intended to act or fulfill the obligations 

of a detailed attainment and/or 

maintenance plan for each individual 

area of the state that is not attaining the 

NAAQS. While infrastructure SIPs must 

address modeling authorities in general 

for section 110(a)(2)(K), EPA believes 

110(a)(2)(K) requires infrastructure SIPs 

to provide the state’s authority for air 

quality modeling and for submission of 

modeling data to EPA, not specific air 

dispersion modeling for large stationary 

sources of pollutants. In the TSD for this 

rulemaking action, EPA provided a 

detailed explanation of Virginia’s ability 

and authority to conduct air quality 

modeling when required and its 

authority to submit modeling data to the 

EPA. 

EPA finds Sierra Club’s discussion of 

case law, guidance, and EPA staff 

statements regarding advantages of 

AERMOD as an air dispersion model to 

be irrelevant to the analysis of Virginia’s 

infrastructure SIP as this is not an 

attainment SIP required to demonstrate 

attainment of the NAAQS pursuant to 

sections 172 or 192. In addition, Sierra 

Club’s comments relating to EPA’s use 

of AERMOD or modeling in general in 

designations pursuant to section 107, 

including its citation to Catawba 

County, are likewise irrelevant as EPA’s 

present approval of Virginia’s 

infrastructure SIP is unrelated to the 

section 107 designations process. Nor is 

EPA’s action on this infrastructure SIP 

related to any new source review (NSR) 

or PSD permit program issue. As 

outlined in the August 23, 2010 

clarification memo, ‘‘Applicability of 

Appendix W Modeling Guidance for the 

1-hour SO2 National Ambient Air 

Quality Standard’’ (U.S. EPA, 2010a), 

AERMOD is the preferred model for 

single source modeling to address the 1- 

hour SO2 NAAQS as part of the NSR/ 

PSD permit programs. Therefore, as 

attainment SIPs, designations, and NSR/ 

PSD actions are outside the scope of a 

required infrastructure SIP for the 2010 

SO2 NAAQS for section 110(a), EPA 

provides no further response to the 

Commenter’s discussion of air 

dispersion modeling for these 

applications. If Sierra Club resubmits its 

air dispersion modeling for the Virginia 

EGUs, or updated modeling information 

in the appropriate context, EPA will 

address the resubmitted modeling or 

updated modeling in the appropriate 

future context when an analysis of 

whether Virginia’s emissions limits are 

adequate to show attainment and 

maintenance of the NAAQS is 

warranted. 

The Commenter correctly noted that 

the Third Circuit upheld EPA’s Section 

126 Order imposing SO2 emissions 

limitations on an EGU pursuant to CAA 

section 126. GenOn REMA, LLC v. EPA, 

722 F.3d 513. Pursuant to section 126, 

any state or political subdivision may 

petition EPA for a finding that any 

major source or group of stationary 

sources emits, or would emit, any air 

pollutant in violation of the prohibition 

of section 110(a)(2)(D)(i)(I) which relates 

to significant contributions to 

nonattainment or maintenance in 

another state. The Third Circuit upheld 

EPA’s authority under section 126 and 

found EPA’s actions neither arbitrary 

nor capricious after reviewing EPA’s 

supporting docket which included air 

dispersion modeling as well as ambient 

air monitoring data showing violations 

of the NAAQS. The Commenter appears 

to have cited to this matter to 

demonstrate EPA’s use of modeling for 

certain aspects of the CAA. EPA agrees 

with the Commenter regarding the 

appropriate role air dispersion modeling 

has for SO2 NAAQS designations, 

attainment SIPs, and demonstrating 

significant contributions to interstate 

transport. However, EPA’s approval of 

Virginia’s infrastructure SIP is based on 

our determination that Virginia has the 

required structural requirements 

pursuant to section 110(a)(2) in 

accordance with our explanation of the 

intent for infrastructure SIPs as 

discussed in the 2013 Infrastructure SIP 

Guidance. Therefore, while air 

dispersion modeling may be appropriate 

for consideration in certain 

circumstances, EPA does not find air 

dispersion modeling demonstrating no 

exceedances of the NAAQS to be a 

required element before approval of 

infrastructure SIPs for section 110(a) or 

specifically for 110(a)(2)(A). Thus, EPA 

disagrees with the Commenter that EPA 

must require additional emission 

limitations in the Virginia SO2

infrastructure SIP informed by air 

dispersion modeling and demonstrating 

attainment and maintenance of the 2010 

NAAQS. 

In its comments, Sierra Club relies on 

Motor Vehicle Mfrs. Ass’n and NRDC v. 

EPA to support its comments that EPA 

must consider the Sierra Club’s 

modeling data on the Chesapeake 

Energy Center and Yorktown Power 

Station based on administrative law 

principles regarding consideration of 

comments provided during a 

rulemaking process. EPA asserts that it 

has considered the modeling submitted 

by the Commenter as well as all the 

submitted comments of Sierra Club. As 

discussed in detail in the Responses 

above, however, EPA does not believe 

the infrastructure SIPs required by 


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14Sierra Club cited to In re: Mississippi Lime Co., 

PSDAPLPEAL 11–01, 2011 WL 3557194, at *26–27 

(EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 

13, 2006) (EPA disapproval of a control strategy SO2

SIP). 

15As EPA has stated, there are not presently any 

designated nonattainment areas pursuant to CAA 

section 107 for the 2010 SO2 NAAQS in the 

Commonwealth. Thus, the Commonwealth, at this 

time, has no obligation to submit any attainment 

plans for the 2010 SO2 NAAQS for sections 172, 

191 and 192. EPA believes the appropriate time for 

examining necessity of 1-hour SO2 emission limits 

on specific sources is within the attainment 

planning process. 

16For a discussion on emission averaging times 

for emissions limitations for SO2 attainment SIPs, 

see the April 23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions. EPA 

explained that it is possible, in specific cases, for 

states to develop control strategies that account for 

variability in 1-hour emissions rates through 

emission limits with averaging times that are longer 

than 1-hour, using averaging times as long as 30- 

days, but still provide for attainment of the 2010 

SO2 NAAQS as long as the limits are of at least 

comparable stringency to a 1-hour limit at the 

critical emission value. EPA has not yet evaluated 

any specific submission of such a limit, and so is 

not at this time prepared to take final action to 

implement this concept. If and when a state submits 

an attainment demonstration that relies upon a 

limit with such a longer averaging time, EPA will 

evaluate it then. 

17EPA believes the appropriate time for 

application of monitoring requirements to 

demonstrate continuous compliance by specific 

sources is when such 1-hour emission limits are set 

for specific sources whether in permits issued by 

Virginia pursuant to the SIP or in attainment SIPs 

submitted in the part D planning process. 

section 110(a) are the appropriate place 

to require emission limits demonstrating 

future attainment with a NAAQS. Part D 

of title I of the CAA contains numerous 

requirements for the NAAQS attainment 

planning process, including 

requirements for attainment 

demonstrations in section 172 

supported by appropriate modeling. As 

also discussed previously, section 107 

supports EPA’s use of modeling in the 

designations process. In Catawba, the 

D.C. Circuit upheld EPA’s consideration 

of data or factors for designations other 

than ambient monitoring. EPA does not 

believe infrastructure SIPs must contain 

emission limitations informed by air 

dispersion modeling in order to meet 

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

Thus, EPA has evaluated the 

persuasiveness of the Commenter’s 

submitted modeling in finding that it is 

not relevant to the approvability of 

Virginia’s proposed infrastructure SIP 

for the 2010 SO2 NAAQS. 

While EPA does not believe that 

infrastructure SIP submissions are 

required to contain emission limits, as 

suggested by the Commenter, EPA does 

recognize that in the past, states have 

used infrastructure SIP submittals as a 

‘vehicle’ for incorporating regulatory 

revisions or source-specific emission 

limits into the state’s plan. See 78 FR 

73442 (December 6, 2013) (approving 

regulations Maryland submitted for 

incorporation into the SIP along with 

the 2008 Ozone infrastructure SIP to 

address ethics requirements for State 

Boards in sections 128 and 

110(a)(2)(E)(ii)). While these SIP 

revisions are intended to help the state 

meet the requirements of section 

110(a)(2), these ‘‘ride-along’’ SIP 

revisions are not intended to signify that 

all infrastructure SIP submittals should 

have similar regulatory revisions or 

source-specific emission limits. Rather, 

the regulatory provisions and sourcespecific emission limits the state relies 

on when showing compliance with 

section 110(a)(2) have likely already 

been incorporated into the state’s SIP 

prior to each new infrastructure SIP 

submission; in some cases this was done 

for entirely separate CAA requirements, 

such as attainment plans required under 

section 172, or for previous NAAQS. 

Comment 8: Sierra Club asserts that 

EPA may not approve the Virginia 

proposed SO2 infrastructure SIP because 

it fails to include enforceable emission 

limitations with a 1-hour averaging time 

that applies at all times. The Commenter 

cites to CAA section 302(k) which 

requires emission limits to apply on a 

continuous basis. The Commenter 

claims EPA has stated that 1-hour 

averaging times are necessary for the 

2010 SO2 NAAQS citing to a February 

3, 2011, EPA Region 7 letter to the 

Kansas Department of Health and 

Environment regarding the need for 1- 

hour SO2 emission limits in a PSD 

permit, an EPA Environmental Hearing 

Board (EHB) decision rejecting use of a 

3-hour averaging time for a SO2 limit in 

a PSD permit, and EPA’s disapproval of 

a Missouri SIP which relied on annual 

averaging for SO2 emission rates.14

Sierra Club also contends that 

infrastructure SIPs approved by EPA 

must include monitoring of SO2

emission limits on a continuous basis 

using a continuous emission monitor 

system or systems (CEMS) and cites to 

section 110(a)(2)(F) which requires a SIP 

to establish a system to monitor 

emissions from stationary sources and 

to require submission of periodic 

emission reports. Sierra Club contends 

infrastructure SIPs must require such 

SO2 CEMS to monitor SO2 sources 

regardless of whether sources have 

control technology installed to ensure 

limits are protective of the NAAQS. 

Sierra Club contends any monitoring 

performed for the New Source 

Performance Standards (NSPS) in 40 

CFR part 60 is inadequate for the 

NAAQS because NSPS monitoring does 

not call for monitoring during every 

hour of source operation which Sierra 

Club asserts is needed to protect the 1- 

hour SO2 NAAQS. Thus, Sierra Club 

contends EPA must require enforceable 

emission limits, applicable at all times, 

with 1-hour averaging periods, 

monitored continuously by large 

sources of SO2 emissions with CEMS, 

and therefore must disapprove 

Virginia’s infrastructure SIP which 

Sierra Club claims fails to require 

emission limits with adequate averaging 

times. 

Response 8: EPA disagrees that EPA 

must disapprove the proposed Virginia 

infrastructure SIP because the SIP does 

not contain enforceable SO2 emission 

limitations with 1-hour averaging 

periods that apply at all times, along 

with requiring CEMS, as these issues are 

not appropriate for resolution at this 

stage in advance of the state’s 

submission of an attainment 

demonstration for areas which may be 

designated nonattainment pursuant to 

section 107 of the CAA.15 As explained 

in detail in previous responses, the 

purpose of the infrastructure SIP is to 

ensure that a state has the structural 

capability to attain and maintain the 

NAAQS and thus, additional SO2

emission limitations to ensure 

attainment and maintenance of the 

NAAQS are not required for such 

infrastructure SIPs.16 Likewise, EPA 

need not address, for the purpose of 

approving Virginia’s infrastructure SIP, 

whether CEMS or some other 

appropriate monitoring of SO2

emissions is necessary to demonstrate 

compliance with emission limits in 

order to show attainment of the 2010 

SO2 NAAQS as EPA believes such SO2

emission limits and an attainment 

demonstration are not a prerequisite to 

EPA’s approval of Virginia’s 

infrastructure SIP.17 Therefore, because 

EPA finds Virginia’s SO2 infrastructure 

SIP approvable without the additional 

SO2 emission limitations showing 

attainment of the NAAQS, EPA finds 

the issues of appropriate averaging 

periods and monitoring requirements 

for such future limitations not relevant 

at this time. Sierra Club has cited to 

prior EPA discussion on emission 

limitations required in PSD permits 

(from an EAB decision and EPA’s letter 

to Kansas’ permitting authority) 

pursuant to part C of the CAA, which 

is neither relevant nor applicable to 

section 110 infrastructure SIPs. In 

addition, as previously discussed, the 

EPA disapproval of the 2006 Missouri 

SIP was a disapproval relating to a 

control strategy SIP required pursuant to 

part D attainment planning and is 


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18While monitoring pursuant to NSPS 

requirements in 40 CFR part 60 may not be 

sufficient for 1-hour SO2 emission limits, EPA does 

not believe Sierra Club’s comment regarding NSPS 

monitoring provisions is relevant at this time 

because EPA finds 1-hour SO2 emission limits and 

associated monitoring and averaging periods are not 

required for our approval of Virginia’s SO2

infrastructure SIP. 

likewise not relevant to the analysis of 

infrastructure SIP requirements. 

EPA has explained in the TSD 

supporting this rulemaking action how 

the Virginia SIP meets requirements in 

section 110(a)(2)(F) related to 

monitoring. 9 VAC 5–40–100 requires 

sources in Virginia to install, maintain, 

and replace equipment such as CEMS to 

continuously monitor SO2 emissions 

where necessary and required. Further, 

9 VAC 5–40 requires sources in Virginia 

to report information, such as periodic 

reports on the nature and amounts of 

emissions and emissions-related data, 

from owners or operators of stationary 

sources of SO2 emissions through 

permits and compliance orders. 

Pursuant to 40 CFR part 51, subpart A, 

‘‘Air Emissions Reporting 

Requirements,’’ Virginia provides 

source-specific emissions data to EPA. 

Thus, EPA finds Virginia has the 

authority and responsibility to monitor 

air quality for the relevant NAAQS 

pollutants at appropriate locations and 

to submit data to EPA in a timely 

manner in accordance with 110(a)(2)(F) 

and the Infrastructure SIP 

Guidance.18 See Infrastructure SIP 

Guidance at p. 45–46. 

Comment 9: Sierra Club states that 

enforceable emission limits in SIPs or 

permits are necessary to avoid 

nonattainment designations in areas 

where modeling or monitoring shows 

SO2 levels exceed the 1-hour SO2

NAAQS and cites to a February 6, 2013 

EPA document, Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide National Ambient Air 

Quality Standard, which Sierra Club 

contends discusses how states could 

avoid future nonattainment 

designations. The Commenter asserts 

EPA should add enforceable emission 

limits to the Virginia infrastructure SIP 

to prevent future nonattainment 

designations and to protect public 

health. The Commenter claims the 

modeling it conducted for Chesapeake 

Energy Center and Yorktown Power 

Station indicates fourteen counties/

independent cities in Virginia are at risk 

for being designated nonattainment with 

the 2010 SO2 NAAQS without such 

enforceable SO2 limits. The Commenter 

states EPA must ensure large sources 

cannot cause exceedances of the 2010 

SO2 NAAQS to comply with section 

110(a)(2)(A) and to avoid future 

nonattainment designations. The 

Commenter asserts nonattainment 

designations create rigorous CAA 

requirements which could be avoided if 

states adopt and EPA approves such SO2

emission limitations. In addition, the 

Commenter asserts adding SO2 emission 

limitations on certain sources now 

would bring regulatory certainty for 

coal-fired EGUs and ultimately save 

such entities money as the sources 

could plan now for compliance with 

emission limits as well as with other 

CAA requirements such as the Mercury 

Air Toxic Standards, transport rules, 

and regional haze requirements. In 

summary, the Commenter asserts EPA 

must disapprove the Virginia 

infrastructure SIP and establish 

enforceable emission limits to ensure 

large sources of SO2 do not cause 

exceedances of the 2010 SO2 NAAQS, 

which would avoid nonattainment 

designations and bring ‘‘regulatory 

certainty’’ to sources in Virginia. 

Response 9: EPA appreciates the 

Commenter’s concern with avoiding 

nonattainment designations in Virginia 

for the 2010 SO2 NAAQS and with 

providing coal-fired EGUs regulatory 

certainty to help them make informed 

decisions on how to comply with CAA 

requirements. However, Congress 

designed the CAA such that states have 

the primary responsibility for achieving 

and maintaining the NAAQS within 

their geographic area by submitting SIPs 

which will specify the details of how 

the state will meet the NAAQS. 

Pursuant to section 107(d), the states 

make initial recommendations of 

designations for areas within each state 

and EPA then promulgates the 

designations after considering the state’s 

submission and other information. EPA 

promulgated initial designations for the 

2010 SO2 NAAQS in August 2013. EPA 

proposed on May 14, 2014 an additional 

process for gathering further SO2

emissions source information for 

implementing the 2010 SO2 NAAQS. 79 

FR 27446. EPA has also proposed to 

enter a settlement to resolve deadline 

suits regarding the remaining 

designations that would, if entered by 

the court, impose deadlines for three 

more rounds of designations. Under 

these proposed schemes, Virginia would 

have the initial opportunity for 

proposing additional areas for 

designations for the 2010 SO2 NAAQS. 

While EPA appreciates Sierra Club’s 

comments, further designations will 

occur pursuant to the section 107(d) 

process, and in accordance with any 

applicable future court orders 

addressing the designations deadline 

suits and, if promulgated, future EPA 

rules addressing additional monitoring 

or modeling to be conducted by states. 

Virginia may, on its own accord, decide 

to impose additional SO2 emission 

limitations to avoid future designations 

to nonattainment. If Virginia areas are 

designated nonattainment, Virginia will 

have the initial opportunity to develop 

additional emissions limitations needed 

to attain the NAAQS in the future, and 

EPA would be charged with reviewing 

whether those are adequate. If EPA were 

to disapprove the limits, then it would 

fall to EPA to adopt limits in a FIP. 

However, such considerations are not 

required of Virginia to consider at the 

infrastructure SIP stage of NAAQS 

implementation, as this action relates to 

our approval of Virginia’s SO2

infrastructure SIP submittal pursuant to 

section 110(a) of the CAA, and Sierra 

Club’s comments regarding designations 

under section 107 are neither relevant 

nor germane to EPA’s approval of 

Virginia’s SO2 infrastructure SIP. 

Likewise, while EPA appreciates Sierra 

Club’s concern for providing ‘‘regulatory 

certainty’’ for coal-fired EGUs in 

Virginia, such concerns for regulatory 

certainty are not requirements for 

infrastructure SIPs as outlined by 

Congress in section 110(a)(2) nor as 

discussed in EPA’s Infrastructure SIP 

Guidance. See Commonwealth of 

Virginia, et al., v. EPA, 108 F.3d 1397, 

1410 (D.C. Cir. 1997) (citing Natural 

Resources Defense Council, Inc. v. 

Browner, 57 F.3d 1122, 1123 (D.C. Cir. 

1995)) (discussing that states have 

primary responsibility for determining 

an emission reductions program for its 

areas subject to EPA approval 

dependent upon whether the SIP as a 

whole meets applicable requirements of 

the CAA). Thus, EPA does not believe 

it is appropriate and necessary to 

condition approval of Virginia’s 

infrastructure SIP upon inclusion of a 

particular emission reduction program 

as long as the SIP otherwise meets the 

requirements of the CAA. Sierra Club’s 

comments regarding emission limits 

providing ‘‘regulatory certainty’’ for 

EGUs are irrelevant to EPA’s approval of 

Virginia’s infrastructure SIP for the 2010 

SO2 NAAQS, and EPA disagrees that the 

infrastructure SIP must be disapproved 

for not including enforceable emissions 

limitations to prevent future 

nonattainment designations or aid in 

providing ‘‘regulatory certainty.’’ 

Comment 10: The Commenter claims 

EPA must disapprove the proposed 

infrastructure SIP for the 2010 SO2

NAAQS for its failure to include 

measures to ensure compliance with 

section 110(a)(2)(A) for the 2010 SO2


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19Thus, EPA agrees with Virginia’s response to 

Sierra Club when the Commenter raised these same 

comments to the Commonwealth during the 

drafting of Virginia’s infrastructure SIP. Sierra 

Club’s modeling of the coal-fired power plants SO2

emissions is not relevant at this time. 

20The February 6, 2013 memorandum is more 

completely the February 6, 2013 memorandum, 

‘‘Next Steps for Area Designations and 

Implementation of the Sulfur Dioxide National 

Ambient Air Quality Standard’’ available at http:// 

www.epa.gov/airquality/sulfurdioxide/

implement.html. 

21EPA also notes that in EPA’s final rule 

regarding the 2010 SO2 NAAQS, EPA noted that it 

anticipates several forthcoming national and 

regional rules, such as the Industrial Boilers 

standard under CAA section 112, are likely to 

require significant reductions in SO2 emissions over 

the next several years. See 75 FR 35520. EPA 

continues to believe similar national and regional 

rules will lead to SO2 reductions that will help 

achieve compliance with the 2010 SO2 NAAQS. If 

it appears that states with areas designated 

nonattainment in 2013 will nevertheless fail to 

attain the NAAQS as expeditiously as practicable 

(but no later than August 2018) during EPA’s 

review of attainment SIPs required by section 172, 

the CAA provides authorities and tools for EPA to 

solve such failure, including, as appropriate, 

disapproving submitted SIPs and promulgating 

FIPs. Likewise, for any areas designated 

nonattainment after 2013, EPA has the same 

authorities and tools available to address any areas 

which do not timely attain the NAAQS. 

NAAQS. The Commenter claims the 

provisions listed by Virginia for section 

110(a)(2)(A) in its 2010 SO2 NAAQS 

infrastructure SIP are not appropriate 

for the NAAQS as evidenced by the 

Commenter’s modeling for plants which 

are not in areas presently designated 

nonattainment for the 2010 SO2

NAAQS. Sierra Club claims Virginia 

wrongly relies on CAA part D 

attainment planning requirements to 

address NAAQS exceedances. The 

Commenter asserts that the 

infrastructure SIP required by section 

110(a) must provide assurances that the 

NAAQS will be attained and maintained 

for areas not designated nonattainment. 

The Commenter claims the proposed 

infrastructure SIP relies on emission 

limits added to the SIP prior to the 2010 

SO2 NAAQS and does not include 

hourly SO2 emission limits. Sierra Club 

therefore contends the proposed 

infrastructure SIP cannot ensure 

Virginia will attain and maintain the 

2010 SO2 NAAQS and EPA must 

disapprove the SIP and require 1-hour 

emission limits to address exceedances 

shown by Sierra Club’s submitted 

modeling. 

Response 10: EPA disagrees with 

Sierra Club that it must disapprove the 

Virginia proposed infrastructure SIP for 

the 2010 SO2 NAAQS for the reasons 

already discussed in response to other 

comments from Sierra Club. Generally, 

it is not appropriate to bypass the 

attainment planning process by 

imposing separate requirements, such as 

additional SO2 emission limits on 

sources, outside the attainment 

planning process. Such actions would 

be disruptive and premature absent 

exceptional circumstances.19 See Homer 

City/Mansfield Order at 10–19 (finding 

Pennsylvania SIP did not require 

imposition of 1-hour SO2 emission 

limits on sources independent of the 

part D attainment planning process 

contemplated by the CAA). As 

discussed in the Homer City/Mansfield 

Order, imposing different emission 

limitation requirements outside of the 

attainment planning process 

contemplated by Congress in part D of 

the CAA to address requirements for 

attaining the NAAQS might ultimately 

prove inconsistent with any attainment 

SIP Virginia will submit (when 

required) for designated nonattainment 

areas, even where one source is likely 

responsible for nonattainment. Id. As 

discussed in great detail above, the 

conceptual purpose of an infrastructure 

SIP submission is to assure that an air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS. Infrastructure SIP 

Guidance at p. 2. 

As mentioned previously, while EPA 

had in 2010 initially suggested that 

states submit substantive attainment 

demonstration SIPs for unclassifiable 

areas based on air dispersion modeling 

in section 110(a) infrastructure SIPs, 

EPA subsequently gathered additional 

information and clarified its position. 

The April 12, 2012 letters to states, 2012 

Draft White Paper, and February 6, 2013 

memorandum on next steps, as 

previously discussed, clearly 

recommend states focus section 110(a) 

infrastructure SIPs due in June 2013 on 

‘‘traditional infrastructure elements’’ in 

section 110(a)(1) and (2) rather than on 

modeling demonstrations for future 

attainment for unclassifiable areas.20

Therefore, EPA disagrees with the 

Commenter that the infrastructure SIP 

must be disapproved for failure to 

include measures to ensure compliance 

with the 2010 SO2 NAAQS. As Congress 

provided for state primacy in 

implementing the NAAQS, Virginia 

should appropriately evaluate and 

impose necessary SO2 emission limits 

on sources, where or when needed in 

Virginia, for any areas in Virginia which 

may later be designated nonattainment 

with the 2010 SO2 NAAQS under 

section 107.21

Comment 11: The Commenter alleges 

that the proposed SO2 infrastructure SIP 

does not address sources significantly 

contributing to nonattainment or 

interfering with maintenance of the 

NAAQS in other states as required by 

section 110(a)(2)(D)(i)(I) of the CAA, and 

states EPA must therefore disapprove 

the infrastructure SIP and impose a FIP. 

Sierra Club claims its modeling shows 

that at least one plant, Chesapeake 

Energy Center, is contributing to 

exceedances in other states. Sierra Club 

states that the CAA requires 

infrastructure SIPs to address cross-state 

air pollution within three years of the 

NAAQS promulgation. The Commenter 

argues that Virginia has not done so and 

that the EPA must disapprove the 

proposed infrastructure SIP and issue a 

FIP to correct these shortcomings. The 

Commenter references the recent 

Supreme Court decision, EPA v. EME 

Homer City Generation,, L.P. et al, 134 

S. Ct. 1584 (2014), which supports the 

states’ mandatory duty to address crossstate pollution under section 

110(a)(2)(D)(i)(I) and affirmed EPA’s 

ability to impose a FIP upon states’ 

failure to address cross-state air 

pollution. 

Response 11: EPA disagrees with 

Sierra Club’s statement that EPA must 

disapprove the submitted 2010 SO2

infrastructure SIP due to Virginia’s 

failure to address section 

110(a)(2)(D)(i)(I). In EPA’s NPR 

proposing to approve Virginia’s 

infrastructure SIP for the 2010 SO2

NAAQS, EPA clearly stated that it was 

not taking any final action with respect 

to the good neighbor provision in 

section 110(a)(2)(D)(i)(I) which 

addresses emissions that significantly 

contribute to nonattainment or interfere 

with maintenance of the NAAQS in 

another state. Virginia did not make a 

submission to address the requirements 

of section 110(a)(2)(D)(i)(I) for the 2010 

SO2 NAAQS, and thus there is no such 

submission upon which EPA proposed 

to take disapproval action under section 

110(k) of the CAA. EPA cannot act 

under section 110(k) to disapprove a SIP 

submission that has not been submitted 

to EPA. EPA also disagrees with the 

Commenter that EPA cannot approve 

other elements of an infrastructure SIP 

submission without the good neighbor 

provision. EPA additionally believes 

there is no basis for the contention that 

EPA has triggered its obligation to issue 

a FIP addressing the good neighbor 

obligation under section 110(c), as EPA 

has neither found that Virginia failed to 

timely submit a required 

110(a)(2)(D)(i)(I) SIP submission for the 

2010 SO2 NAAQS or found that such a 

submission was incomplete, nor has 

EPA disapproved a SIP submission 

addressing 110(a)(2)(D)(i)(I) with respect 

to the 2010 SO2 NAAQS. 

EPA acknowledges the Commenter’s 

concern for the interstate transport of air 

pollutants and agrees in general with 


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22On June 13, 2012 (77 FR 35287), EPA finalized 

a limited approval of Virginia’s October 4, 2010 

regional haze SIP, and subsequent supplements, to 

address the first implementation period for regional 

haze. On June 7, 2012, EPA issued a limited 

disapproval of this SIP because of Virginia’s 

reliance on CAIR to meet certain regional haze 

requirements, which EPA replaced in August 2011 

with CSAPR (76 FR 48208 (August 8, 2011)). 77 FR 

33641. EPA had also issued on June 7, 2012 in the 

same action a FIP that replaced Virginia’s reliance 

on CAIR with reliance on CSAPR for certain 

regional haze requirements. Id. Later, as discussed 

previously, the D.C. Circuit in EME Homer City 

Generation, 696 F.3d 7, vacated CSAPR and kept 

CAIR in place. Subsequently, on April 30, 2014, the 

Supreme Court vacated the D.C. Circuit decision 

and remanded the matter to the D.C. Circuit for 

further proceedings. EME Homer City, 134 S. Ct. 

1584. On October 23, 2014, after we proposed to 

approve Virginia’s infrastructure SIP, the D.C. 

Circuit lifted the stay on CSAPR. EME Homer City 

Generation, L.P. v. EPA, No. 11–1302 (D.C. Cir. Oct. 

23, 2014), Order at 3. As mentioned in response to 

a prior comment, EPA began implementing CSAPR 

on January 1, 2015. 79 FR 71663 (December 3, 2014) 

(interim final rule revising CSAPR compliance 

deadlines). EPA will take appropriate action on 

Virginia’s obligations under 110(a)(2)(D)(i)(II) for 

visibility protection in a subsequent rulemaking 

action. 23One way in which section 110(a)(2)(D)(i)(II) for 

visibility protection may be satisfied for any 

relevant NAAQS is through an air agency’s 

confirmation in its infrastructure SIP submission 

that it has an approved regional haze SIP that fully 

meets the requirements of 40 CFR 51.308 or 51.309. 

Infrastructure SIP Guidance at p. 33. As previously 

indicated, Virginia has a regional haze SIP with 

limited approval and limited disapproval and a FIP 

which addresses replacement of CSAPR for CAIR 

for certain regional haze requirements. 

the Commenter that sections 110(a)(1) 

and (a)(2) of the CAA generally require 

states to submit, within three years of 

promulgation of a new or revised 

NAAQS, a plan which addresses crossstate air pollution under section 

110(a)(2)(D)(i)(I). However, EPA 

disagrees with the Commenter’s 

argument that EPA cannot approve an 

infrastructure SIP submission without 

the good neighbor provision. Section 

110(k)(3) of the CAA authorizes EPA to 

approve a plan in full, disapprove it in 

full, or approve it in part and 

disapprove it in part, depending on the 

extent to which such plan meets the 

requirements of the CAA. This authority 

to approve state SIP revisions in 

separable parts was included in the 

1990 Amendments to the CAA to 

overrule a decision in the Court of 

Appeals for the Ninth Circuit holding 

that EPA could not approve individual 

measures in a plan submission without 

either approving or disapproving the 

plan as a whole. See S. Rep. No. 101– 

228, at 22, 1990 U.S.C.C.A.N. 3385, 

3408 (discussing the express overruling 

of Abramowitz v. EPA, 832 F.2d 1071 

(9th Cir. 1987)). 

EPA interprets its authority under 

section 110(k)(3) of the CAA, as 

affording EPA the discretion to approve, 

or conditionally approve, individual 

elements of Virginia’s infrastructure SIP 

submission for the 2010 SO2 NAAQS, 

separate and apart from any action with 

respect to the requirements of section 

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

respect to that NAAQS. EPA views 

discrete infrastructure SIP requirements, 

such as the requirements of 

110(a)(2)(D)(i)(I), as severable from the 

other infrastructure elements and 

interprets section 110(k)(3) as allowing 

it to act on individual severable 

measures in a plan submission. In short, 

EPA believes that even if Virginia had 

made a SIP submission for section 

110(a)(2)(D)(i)(I) of the CAA for the 2010 

SO2 NAAQS, which to date it has not, 

EPA would still have discretion under 

section 110(k) of the CAA to act upon 

the various individual elements of the 

state’s infrastructure SIP submission, 

separately or together, as appropriate. 

The Commenter raises no compelling 

legal or environmental rationale for an 

alternate interpretation. Nothing in the 

Supreme Court’s April 2014 decision in 

EME Homer City alters EPA’s 

interpretation that EPA may act on 

individual severable measures, 

including the requirements of section 

110(a)(2)(D)(i)(I), in a SIP submission. 

See EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. 1584 (affirming a state’s 

obligation to submit a SIP revision 

addressing section 110(a)(2)(D)(i)(I) 

independent of EPA’s action finding 

significant contribution or interference 

with maintenance). In sum, the 

concerns raised by the Commenter do 

not establish that it is inappropriate or 

unreasonable for EPA to approve the 

portions of Virginia’s June 18, 2014 

infrastructure SIP submission for the 

2010 SO2 NAAQS. 

Furthermore, as discussed above, EPA 

has no obligation to issue a FIP pursuant 

to 110(c)(1) to address Virginia’s 

obligations under section 

110(a)(2)(D)(i)(I) until EPA first either 

finds Virginia failed to make the 

required submission addressing the 

element or the Commonwealth has 

made such a submission but it is 

incomplete, or EPA disapproves a SIP 

submittal addressing that element. Until 

either occurs, EPA does not have the 

authority to issue a FIP pursuant to 

section 110(c) with respect to the good 

neighbor provision. Therefore, EPA 

disagrees with the Commenter’s 

contention that it must issue a FIP for 

Virginia to address 110(a)(2)(D)(i)(I) for 

the 2010 SO2 NAAQS at this time. 

Regarding Sierra Club’s assertion that 

one stationary source is causing 

‘‘exceedances’’ in other states according 

to the modeling conducted by Sierra 

Club, EPA believes such assertion is 

irrelevant to our action approving 

Virginia’s infrastructure SIP for the 2010 

SO2 NAAQS because EPA has not 

proposed any action on section 

110(a)(2)(D)(i)(I) regarding Virginia’s 

obligations to address the transport of 

SO2 emissions. EPA may consider such 

information if Sierra Club resubmits 

when EPA does act upon a Virginia SIP 

submission to address 110(a)(2)(D)(i)(I) 

obligations for the 2010 SO2 NAAQS. 

Comment 12: Sierra Club contends 

that the EPA must disapprove the 

proposed infrastructure SIP because it 

does not contain adequate provisions to 

prohibit sources and emissions in 

Virginia from interfering with another 

state’s visibility as required by section 

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

Commenter cites to the Supreme Court’s 

decision in EME Homer City in support 

of its statement that Virginia’s duty to 

protect visibility is a mandatory duty. 

The Commenter asserts EPA ignores its 

deadline by not acting in today’s 

rulemaking on the visibility prong of 

section 110(a)(2)(D)(i)(II) and asserts 

EPA cites no legally defensible reason 

for not acting. Finally, the Commenter 

argues that the ‘‘deadline for state action 

has passed’’ and EPA must disapprove 

the SO2 infrastructure SIP and issue a 

FIP to address the failings of the 

infrastructure SIP to protect visibility in 

other states. 

Response 12: EPA disagrees with the 

Commenter that in today’s rulemaking 

action EPA must disapprove the 

Virginia SO2 infrastructure SIP for its 

failure to protect visibility and issue a 

FIP addressing visibility protection for 

Virginia. In EPA’s NPR proposing to 

approve Virginia’s infrastructure SIP for 

the 2010 SO2 NAAQS, EPA clearly 

stated that it was not proposing to take 

any action at that time with respect to 

the visibility protection provisions in 

section 110(a)(2)(D)(i)(II). While Virginia 

did make a SIP submission to address 

the requirements of section 

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

protection, and cited to its regional haze 

SIP and CAIR as meeting these 

requirements, EPA did not propose to 

take any action in the NPR with respect 

to Virginia’s visibility protection 

obligations pursuant to section 

110(a)(2)(D)(i)(II).22 As indicated in 

EPA’s NPR, EPA anticipates taking later 

action on the portion of Virginia’s June 

18, 2014 SIP submission addressing 

visibility protection.23 EPA disagrees 

with the Commenter that EPA cannot 

approve a portion of an infrastructure 

SIP submittal without taking action on 

the visibility protection provision. 

Further, there is no basis for the 

contention that EPA must issue a FIP 

under section 110(c) within two years, 


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as EPA has neither disapproved nor 

found that Virginia failed to submit a 

required 110(a)(2)(D)(i)(II) SIP 

submission addressing visibility 

protection for the 2010 SO2 NAAQS. 

As previously discussed regarding the 

good-neighbor SIP provisions for 

infrastructure SIPs, EPA disagrees with 

the Commenter’s argument that EPA 

cannot approve a SIP without certain 

elements such as the visibility 

protection element. Section 110(k)(3) of 

the CAA authorizes EPA to approve a 

plan in full, disapprove it in full, or 

approve it in part and disapprove it in 

part, depending on the extent to which 

such a plan meets the requirements of 

the CAA. As discussed above, this 

authority to approve SIP revisions in 

separable parts was included in the 

1990 Amendments to the CAA. See S. 

Rep. No. 101–228, at 22, 1990 

U.S.C.C.A.N. 3385, 3408 (discussing the 

express overruling of Abramowitz v. 

EPA). 

As discussed above, EPA interprets its 

authority under section 110(k)(3) of the 

CAA, as affording EPA the discretion to 

approve individual elements of 

Virginia’s infrastructure submission for 

the 2010 SO2 NAAQS, separate and 

apart from any action with respect to the 

requirements of section 

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

protection. EPA views discrete 

infrastructure SIP requirements as 

severable from the other infrastructure 

elements and interprets section 

110(k)(3) as allowing it to act on 

individual, severable measures. In short, 

EPA believes we have discretion under 

section 110(k) of the CAA to act upon 

the various individual elements of the 

state’s infrastructure SIP submission, 

separately or together, as appropriate. 

The concerns raised by the Commenter 

do not establish that it is inappropriate 

or unreasonable for EPA to approve 

portions of Virginia’s June 18, 2014 

infrastructure SIP submission for the 

2010 SO2 NAAQS. 

EPA also has no obligation to issue a 

FIP to address Virginia’s obligations 

under section 110(a)(2)(D)(i)(II) until 

EPA first finds Virginia failed to satisfy 

its visibility protection obligations with 

a complete SIP submittal addressing 

that element or disapproves any SIP 

submittal addressing that element. Until 

such occurs, EPA may not issue any 

further FIP for visibility protection 

pursuant to section 110(c). 

Comment 13: The Commenter alleges 

the infrastructure SIP must not allow for 

such things as ambient air incremental 

increases, variances, exceptions, or 

exclusions for limits on sources of 

pollutants; otherwise, the Commenter 

alleges Virginia cannot assure 

compliance with infrastructure SIP 

requirements for the SO2 NAAQS. The 

Commenter asserts the infrastructure 

SIP should not allow for certain sources 

to be exempt from permit requirements 

nor allow affirmative defenses or 

variances to ‘‘requirements’’ during 

startup, shutdown or malfunction (SSM) 

or due to hardship. The Commenter 

states EPA cannot delay acting on 

‘‘startup, shutdown, and malfunction’’ 

of operations or director’s variances 

because of the mandatory timeline for 

infrastructure SIPs under the CAA. The 

Commenter also asserts EPA should 

issue a finding of non-completeness and 

set forth a FIP because Virginia has 

failed to submit certain required 

components for its SO2 infrastructure 

SIP. The Commenter maintains the CAA 

is clear and that EPA’s ‘‘segmented and 

piecemeal approach’’ to approving 

Virginia’s infrastructure SIP is 

inappropriate because infrastructure 

SIPs must contain the entirety of a 

state’s comprehensive plan to 

implement and maintain the NAAQS 

and because the components of section 

110(a)(2) are interrelated. Thus, the 

Commenter asserts EPA must 

disapprove the SO2 infrastructure SIP 

submittal and issue a FIP. 

Response 13: EPA disagrees with the 

Commenter that EPA must disapprove 

Virginia’s infrastructure SIP and issue a 

FIP, instead of acting in a ‘‘piecemeal’’ 

approach (as Sierra Club calls it) in 

approving the majority of Virginia’s SO2

infrastructure SIP while acting at a later 

date on certain specific elements of the 

SIP, including the portions related to 

transport and regional haze in 

110(a)(2)(D)(i)(I) and (II) and the portion 

related to State Boards in 

110(a)(2)(E)(ii). As explained in the NPR 

for this rulemaking action and in the 

responses above, EPA interprets its 

authority under section 110(k)(3) of the 

CAA as affording EPA the discretion to 

approve individual elements of 

Virginia’s infrastructure submission for 

the 2010 SO2 NAAQS, while taking later 

separate action on the infrastructure 

submission for the requirements of 

section 110(a)(2)(D)(i) for transport and 

visibility protection or 110(a)(2)(E)(ii) 

for State Board requirements. As 

explained previously, EPA views 

discrete infrastructure SIP requirements 

like transport, State Boards, and 

visibility protection as severable from 

the other infrastructure elements and 

interprets section 110(k)(3) as allowing 

EPA to act on individual, severable 

measures. Section 110(k)(3) expressly 

authorizes EPA to approve a plan in 

full, disapprove it in full, or approve it 

in part and disapprove it in part, 

depending on the extent to which such 

plan meets the requirements of the 

CAA. As discussed above, this authority 

to approve SIP revisions in separable 

parts was included in the 1990 

Amendments to the CAA. See S. Rep. 

No. 101–228, at 22, 1990 U.S.C.C.A.N. 

3385, 3408 (discussing the express 

overruling of Abramowitz v. EPA). 

In short, EPA believes that EPA has 

discretion under section 110(k) to act 

upon the various individual elements of 

the state’s infrastructure SIP 

submission, separately or together, as 

appropriate. The Commenter has not 

provided any case law or EPA 

interpretation of section 110 to support 

its contrary interpretation that it is 

inappropriate or unreasonable for EPA 

to approve portions of Virginia’s June 

18, 2014 infrastructure SIP submission 

for the 2010 SO2 NAAQS. 

In addition, EPA also has no 

obligation to issue a FIP to address 

Virginia’s obligations under section 

110(a)(2)(D)(i)(I) or (II) or 110(a)(2)(E)(ii) 

until EPA first finds Virginia failed to 

satisfy its obligations with a complete 

SIP submittal addressing those elements 

or disapproves any SIP submittal 

addressing that element. Until such 

occurs pursuant to section 110(c), EPA 

may not issue any FIP for transport, 

visibility protection, or State Board 

requirements or the infrastructure SIP as 

a whole. 

EPA also disagrees with the 

Commenter that EPA is required to 

address all potential deficiencies that 

may exist in the Virginia SIP in the 

context of evaluating an infrastructure 

SIP submission. In particular, EPA is 

not addressing any existing SIP 

provisions related to the treatment of 

emissions during SSM events, including 

automatic or director’s discretion 

exemptions, overbroad state 

enforcement discretion provisions, or 

affirmative defense provisions. As EPA 

stated in the TSD for this rulemaking 

action, EPA is not approving or 

disapproving any existing Virginia 

regulatory or statutory provisions with 

regard to excess emissions during SSM 

of operations at any facility. EPA 

believes that a number of states may 

have SIP provisions related to emissions 

during SSM events which are contrary 

to the CAA and existing EPA guidance 

(August 11, 1999 Steven Herman and 

Robert Perciasepe Guidance 

Memorandum, ‘‘State Implementation 

Plans: Policy Regarding Excess 

Emissions During Malfunctions, 

Startup, and Shutdown’’), and EPA is 

addressing such potentially deficient 

SIP provisions in a separate rulemaking. 

See 78 FR 12460 (February 22, 2013) 

(proposed rulemaking on SSM SIP 


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provisions). See also 79 FR 55920 

(September 17, 2014) (supplemental 

proposed rulemaking on affirmative 

defense provisions). In the TSD, EPA 

also stated that EPA is not approving or 

disapproving any existing Virginia 

regulatory or statutory provisions with 

regard to director’s discretion or 

variance provisions. EPA believes that a 

number of states may have such 

provisions which are contrary to the 

CAA and existing EPA guidance (see 52 

FR 45109, November 1987), and EPA is 

also addressing such state regulations in 

the separate rulemaking. See 78 FR 

12460. Similarly, EPA is not approving 

or disapproving any affirmative defense 

provisions applicable to excess 

emissions during SSM events in this 

action. EPA has separately proposed to 

address such existing affirmative 

defense provisions in the SIPs of many 

states, including Virginia. See also 79 

FR 55920. In the meantime, EPA 

encourages any state having deficient 

SIP provisions related to the treatment 

of excess emissions during SSM events 

to take steps to correct them as soon as 

possible. Upon conclusion of EPA’s 

SSM SIP call rulemaking, any states that 

EPA determines have impermissible SIP 

provisions related to SSM events will 

have time to adjust their SIPs where 

necessary and as required. As EPA is 

neither approving nor disapproving any 

new provisions related to automatic or 

director’s discretion exemptions, 

overbroad state enforcement discretion 

provisions, or affirmative defense 

provisions in this rulemaking, EPA 

disagrees with Sierra Club’s comment 

that the infrastructure SIP ‘‘must not 

allow for such things’’ and disagrees 

with any inference from the comment 

that EPA must disapprove the Virginia 

SO2 infrastructure SIP because of any 

such existing deficient provisions. 

Moreover, EPA emphasizes that by 

approving Virginia’s SO2 infrastructure 

SIP submission, EPA is not approving or 

reapproving any such deficient 

provisions that exist in the current SIP. 

Regarding the Commenter’s statement 

that the infrastructure SIP should not 

allow Virginia to exempt certain sources 

from permitting, the Sierra Club fails to 

identify any exemptions from 

permitting that preclude EPA from 

approving the infrastructure SIP. EPA 

explained in the TSD for this 

rulemaking that Virginia’s permitting 

program for major and minor stationary 

sources met requirements in the CAA 

for section 110(a)(2)(C). Specifically, 

EPA stated Virginia has a SIP-approved 

minor new source review (NSR) 

program located in 9 VAC 5–80–10 

(New and Modified Stationary Sources) 

and 9 VAC 5–80–11 (Stationary Source 

Permit Exemption Levels) which 

regulates certain modifications and 

construction of stationary sources 

within areas covered by its SIP as 

necessary to assure the NAAQS are 

achieved. EPA had previously approved 

such provisions into the Virginia SIP as 

they met requirements for a minor NSR 

program in accordance with the CAA 

and 40 CFR 51.160. See 65 FR 21315 

(April 21, 2000). 

EPA’s TSD for this rulemaking also 

explained Virginia’s SIP met 

requirements in section 110(a)(2)(C) for 

a PSD permit program as required in 

part C of title I of the CAA. In Virginia, 

construction and modification of 

stationary sources are covered under 

Article 8, Permits for Major Stationary 

Sources and Major Modifications 

Locating in Prevention of Significant 

Deterioration Areas (9 VAC 5–80–1605 

et seq.) which is included in the 

approved Virginia SIP. See 40 CFR 

52.2420(c). Article 8 also provides that 

construction and modification of major 

stationary sources will not cause or 

contribute to a violation of any NAAQS 

(9 VAC 5–80–1635, Ambient Air 

Increments and 9 VAC 5–80–1645, 

Ambient Air Ceilings) and requires 

application of Best Available Control 

Technology to new or modified sources 

(9 VAC 5–80–1705, Control Technology 

Review). EPA has previously approved 

Virginia’s PSD permit program as 

meeting the requirements in part C, title 

I of the CAA and 40 CFR 51.166. See 79 

FR 10377 (February 25, 2014). The 

Sierra Club has not identified any 

specific exemption that is allegedly 

problematic or any recent amendments 

to the Virginia rules that has added such 

an exemption. The Sierra Club has not 

demonstrated that Virginia’s permitting 

program for major and minor stationary 

sources does not meet requirements in 

the CAA for section 110(a)(2)(C). 

III. Final Action 

EPA is approving the following 

elements of Virginia’s June 18, 2014 SIP 

revision for the 2010 SO2 NAAQS: 

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

(PSD requirements), (D)(ii), (E)(i), 

(E)(iii), (F), (G), (H), (J) (consultation, 

public notification, and PSD), (K), (L), 

and (M). Virginia’s SIP revision 

provides the basic program elements 

specified in Section 110(a)(2) necessary 

to implement, maintain, and enforce the 

2010 SO2 NAAQS. This final 

rulemaking action does not include 

action on section 110(a)(2)(I) which 

pertains to the nonattainment planning 

requirements of part D, title I of the 

CAA, because this element is not 

required to be submitted by the 3-year 

submission deadline of section 110(a)(1) 

of the CAA, and will be addressed in a 

separate process. Additionally, EPA will 

take later, separate action on section 

110(a)(2)(D)(i)(I) (interstate transport of 

emissions), (D)(i)(II) (visibility 

protection), (J) (visibility protection) and 

(E)(ii) (Section 128, ‘‘State Boards’’) for 

the 2010 SO2 NAAQS as previously 

discussed. 

IV. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

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

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information 

that: (1) Are generated or developed 

before the commencement of a 

voluntary environmental assessment; (2) 

are prepared independently of the 

assessment process; (3) demonstrate a 

clear, imminent and substantial danger 

to the public health or environment; or 

(4) are required by law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

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

granting a privilege to documents and 

information ‘‘required by law,’’ 

including documents and information 

‘‘required by Federal law to maintain 

program delegation, authorization or 

approval,’’ since Virginia must ‘‘enforce 

Federally authorized environmental 

programs in a manner that is no less 

stringent than their Federal counterparts 

. . .’’ The opinion concludes that 

‘‘[r]egarding § 10.1–1198, therefore, 

documents or other information needed 

for civil or criminal enforcement under 


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11572 Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations 

one of these programs could not be 

privileged because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity law, Va. Code 

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

extent consistent with requirements 

imposed by Federal law,’’ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any Federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, Sections 

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

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under Section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

V. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule approving 

portions of Virginia’s infrastructure SIP 

for the 2010 SO2 NAAQS does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

C. Petitions for Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by May 4, 2015. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. 

This action, which satisfies certain 

infrastructure requirements of section 

110(a)(2) of the CAA for the 2010 SO2

NAAQS for the Commonwealth of 

Virginia, may not be challenged later in 

proceedings to enforce its requirements. 

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

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Reporting and recordkeeping 

requirements, Sulfur dioxide. 

Dated: February 5, 2015. 

William C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. Section 52.2420 is amended by: 

■ a. In paragraph (e), adding an entry for 

‘‘Section 110(a)(2) Infrastructure 

Requirements for the 2010 Sulfur 

Dioxide NAAQS’’ at the end of the table. 

The amendments read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(e) * * * 


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Federal Register / Vol. 80, No. 42 / Wednesday, March 4, 2015 / Rules and Regulations 11573 

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 2010 Sulfur 

Dioxide NAAQS.

Statewide ..... 6/18/14 3/4/15 [Insert 

Federal Register citation].

This action addresses the following CAA elements, 

or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(II) 

(PSD), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, notification, and PSD), (K), (L), and (M). 

[FR Doc. 2015–04377 Filed 3–3–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2014–0700; FRL–9923–77– 

Region–6] 

Approval and Promulgation of 

Implementation Plans; Arkansas; 

Revisions for the Regulation and 

Permitting of Fine Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving portions of 

three revisions to the Arkansas State 

Implementation Plan (SIP) submitted by 

the Arkansas Department of 

Environmental Quality on July 26, 2010; 

November 6, 2012; and December 1, 

2014. Together, these three submittals 

update the Arkansas SIP such that the 

ADEQ has the authority to implement 

the current National Ambient Air 

Quality Standards (NAAQS) and 

regulate and permit emissions of fine 

particulate matter (particulate matter 

with diameters less than or equal to 2.5 

micrometers (PM2.5)), and its precursors, 

through the Arkansas Prevention of 

Significant Deterioration (PSD) program. 

The EPA has determined that the 

Arkansas PSD program meets all Clean 

Air Act (CAA or the Act) requirements 

for PM2.5 PSD and, as a result, our final 

action will stop the two Federal 

Implementation Plan (FIP) clocks that 

are currently running on the Arkansas 

PSD program pertaining to PM2.5 PSD 

implementation. The EPA is also 

approving a portion of the December 17, 

2007, Arkansas SIP submittal for the 

PM2.5 NAAQS pertaining to interstate 

transport of air pollution and PSD. The 

EPA is finalizing these actions under 

section 110 and part C of the CAA. 

DATES: This final rule is effective on 

April 3, 2015. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2014–0700. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http://

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. 

FOR FURTHER INFORMATION CONTACT: 

Adina Wiley, Air Permits Section (6PD– 

R), telephone (214) 665–2115, email 

address wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

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

the EPA. 

Table of Contents 

I. Background 

II. Final Action 

III. Incorporation by Reference 

IV. Statutory and Executive Order Reviews 

I. Background 

The background for today’s action is 

discussed in detail in our November 10, 

2014 proposal (79 FR 66633). In that 

notice, we proposed to approve portions 

of three SIP submittals for the State of 

Arkansas submitted on July 26, 2010; 

November 6, 2012; and September 10, 

2014, that collectively update the 

Arkansas SIP to provide for regulation 

and permitting of PM2.5 in the Arkansas 

PSD program consistent with federal 

PSD permit requirements. 

The September 10, 2014, submittal 

was a request for parallel processing of 

revisions adopted by the ADEQ on 

August 22, 2014, as revisions to the state 

regulations. Under the EPA’s ‘‘parallel 

processing’’ procedure, the EPA 

proposes a rulemaking action on a 

proposed SIP revision concurrently with 

the State’s public review process. If the 

State’s proposed SIP revision is not 

significantly or substantively changed, 

the EPA will finalize the rulemaking on 

the SIP revision as proposed after 

responding to any submitted comments. 

Final rulemaking action by the EPA will 

occur only after the final SIP revision 

has been fully adopted by the ADEQ 

and submitted formally to the EPA for 

approval as a revision to the Arkansas 

SIP. See 40 CFR part 51, Appendix V. 

The ADEQ completed their state 

rulemaking process and submitted the 

final revisions to the Arkansas SIP on 

December 1, 2014. The EPA has 

evaluated the State’s final SIP revision 

for any changes made from the time of 

proposal. See ‘‘Addendum to the TSD’’ 

for EPA–R06–OAR–2014–0700, 

available in the rulemaking docket. Our 

evaluation indicates that the ADEQ 

made no changes to the proposed SIP 

revision. As such, the EPA is proceeding 

with our final approval of the revisions 

to the Arkansas SIP. This action is being 

taken under section 110 of the Act. We 

did not receive any comments regarding 

our proposal. 

II. Final Action 

We are approving portions of three 

SIP submittals for the State of Arkansas 

submitted on July 26, 2010; November 

6, 2012; and December 1, 2014, because 

we have determined that these SIP 

packages were adopted and submitted 

in accordance with the CAA and EPA 

regulations regarding implementation of 

the PM2.5 NAAQS. The EPA finds that 

the Arkansas PSD SIP meets all the CAA 

PSD requirements for implementing the 

1997 and 2006 PM2.5 NAAQS, including 

the PM2.5 PSD requirements contained 

in the federal regulations as of 

December 9, 2013, including regulation 

of NOX and SO2 as PM2.5 precursors, 

regulation of condensables, and PM2.5

increments. As a result of today’s final 

action, the EPA will stop the two FIP 

clocks that are currently running on the 

Arkansas PSD program pertaining to 

PM2.5 PSD implementation. The EPA is 

approving the following revisions into 

the Arkansas SIP: 

• Revisions to Regulation 19, Chapter 

1 submitted on July 26, 2010, and 

November 6, 2012; 


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