ENCLOSURE 1

1 COMMONWEALTH OF VIRGINIA

§ 110(a)(2) REQUIREMENTS IN THE

VIRGINIA STATE IMPLEMENTATION PLAN

FOR THE 2008 OZONE NAAQS

A State Implementation Plan (SIP) is a plan for each state that identifies how that state will attain and maintain the primary and secondary National Ambient Air Quality Standards (NAAQS). The SIP contains regulations, source

- specific requirements, non

re gulatory items such as plans and inventories, and other types of submittals designed to satisfy requirements promulgated by the U.S. Environmental Protection Agency (EPA). The initial SIPs for states were approved on May 31, 1972. SIPs may be revised by the state with EPA approval. The federally enforceable SIP for the Commonwealth of Virginia is compiled in Subpart VV of 40 CFR Part 52.

Section 110(a) of the federal Clean Air Act (CAA) requires that each SIP provide for the implementation, maintenance, and enforcement of the NAAQS. This section also requires that within three years of the promulgation of a NAAQS, a state must adopt and

submit such a plan to EPA. These infrastructure SIPs provide assurances of state

resources and authorities . W here ne cessary , the infrastructure SIPs establish the basic state programs to implement, maintain, and enforce new or revised standards. Often, these SIPs simply reaffirm that the appropriate framework exists for any new NAAQS. The requirements of § 110(a)(2) o f the federal CAA relevant to the 200 8 ozone NAAQS are already cont ained in Virginia’s current SIP

, have been submitted to EPA , or are contained herein with the exception of § 110(a)(2)(D)(i)(I), which is pending EPA action

.

EPA revised the primary and secondary ozone NAAQS from 0.08 parts per million (ppm) to 0. 075 ppm on March 27, 2008 (73 FR 16436)

. On September 16, 2009, EPA announced a reconsideration of the 2008 ozone NAAQS, the purpose of which was to

ensure that the s tandards w ere clearly grounded in science, protective of public health with an adequate margin of safety, and sufficient to protect the environment. Draft rules based on this reconsideration were subsequently withdrawn due to a presidential request, as an nounced on September 2, 2011. The CAA requires EPA to complete the initial designation process within two years of promulgating a new or revised NAAQS. If the Administrator has insufficient information to make these designations, EPA has the authority to extend the designation process by up to one year. Virginia submitted a designation recommen d ation letter to EPA on March 11, 2009, with recommendations based on monitoring data from years 2006, 2007 and 2008. Due to the reconsideration, additional quali ty

- assured monitoring data became available for years 2009, 2010, and
2011, which enabled the Commonwealth to update its original recommendations on November 21, 2011

. EPA published f inal designations for the 2008 NAAQS on May 19, 2012 (77 FR 30088). All areas of Virginia, with the exception of Northern Virginia, were designated as attaining the standard. Northern Virginia, as part of the metropolitan Washington, DC area, was designated nonattainment, with a classification of marginal

.2 Virginia has made several previous submittals regarding infrastructure requirements for
the 1997 ozone NAAQS:

**•** § 110(a)(2)(D)(i) infrastructure requirements certification document for the 1997
ozone NAAQS and the 1997 PM 2.5 NAAQS; submitted November 13, 2007

.

**•** § 110(a)(2) infrastructure requirements SIP revision f or the 1997 ozone NAAQS; submitted December 10, 2007; approved on October 11, 2011 (7 6 FR 62635 ).

**•** § 110(a)(2) infrastructure requirements certification document for the 1997 ozone NAAQS; submitted Decem ber 13, 2007; approved on October 11, 2011 (7 6 FR

62635 ).

Virginia has based this submittal on direction received from EPA Region III

. The following describes each specific EPA requirement and how each requirement is being met by the Commonwealth.

**Section 110(a)(2)(A):** “Each such plan shall include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules

and timetable s for compliance, as may be necessary or appropriate to meet the applicable requirements of this Act;”

Virginia’s enforceable emission limitations and other control measures are those provisions of the following chapters that have been approved in Virginia’s SIP in 40 CFR 52.2420(c) :

 9VAC5 Chapter 40 (Existing Stationary Sources),

 9VAC5 Chapter 50 (New and Modified Stationary Sources)

,

 9VAC5 Chapter 91 ( Motor Vehicle Inspection and Maintenance Program for Northern Virginia )

,

 9VAC5 Chapter 130 (Open Burning) , and

 9VAC5 Chapter 140 (Emissions Trading)

.

The maintenance plans, the reasonable further progress plans, and the

attainment demonstrations for the 1991 1

- hour ozone NAAQ S and the 1997 8

- hour ozone NAAQS are plans that include enforceable emissions limits, control measures, fees, and compliance schedules by describing regulations upon which the plans rely. Plans were prepared for the following areas: Hampton Roads,

Richmond

- Petersburg, Fredericksburg, Shenandoah Natio nal Park, and the Washington DC

- MD

- VA area. Virginia also submitted early action plans for the Winchester and Roanoke 1997 ozone NAAQS early action compact areas. The approved plans are listed in 40 CFR 52.2420(e).

**Section 110(a)(2)(B):** “Each such pla n shall provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to

– (i) monitor,3 compile, and analyze d a ta on ambient air quality, and (ii) upon request, make such data available to the Administrator;”

V irginia maintains and operates a multi

- station ozone network t o measure ambient concentrations within the Commonwealth for comparison to the NAAQS

. All data are measured using EPA approved methods as either r eference or

e quivalent monitors ; all monitors are subject to the quality assurance requirements of 40 CFR Part 58 ; and all samplers are located at sites that have met the minimum siting requirements of Part 58. The data are submitted to EPA’s Air Quality System (AQS) in accordance with the schedule prescribed by

40 CFR Part 58.

In order to keep EPA informed of changes to the sampling network, Virginia provides EPA Region III with prior notification of any planned changes to the network. As needed, details of these changes and anticipated approvals of the changes are communicated to EPA. On an annual basis, Virginia sends EPA a summary of all the chan ges to the network. This summary provides a description of each change, the reason for each change, and any other information relevant to the change.

Section 10.1

- 1306 of the Code of Virginia, Inspections, investigations, e t c

. , states:

The Board shall m ake, or cause to be made, such investigations and inspections and do such other things as are reasonably necessary to carry out the provisions of this chapter, within the limits of the appropriations, study grants, funds, or personnel which

are available f or the purposes of this chapter, including the achievement and maintenance of such levels of air quality as will protect human health, welfare and safety and to the greatest degree practicable prevent injury to plant and animal life and property ...

This se ction of the Code of Virginia supports the development and maintenance of an adequate monitoring network to ensure the achievement and maintenance of healthy levels of air quality.

**Section 110(a)(2)(C):** “ Each such plan shall include a program to provide for the enforcement of the measures described in paragraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achiev ed,

includ ing a permit program as required in parts C and D; ”4 Enforcement provisions and permit provisions are found in those portio ns of Part V (Enforcement) of 9VAC 5 Chapter 170 (General Administration) and 9VAC 5 Chapter 80 (Permits for Stationary Sourc es) that are listed in 40 CFR 52.2420.

The applicability section for Chapter 170 notes that the provisions of Chapter

170 , unless specified otherwise, shall apply in the administration of all regulations of the board to the extent not covered in a specifi c regulation of the board. In cases where the provisions of this chapter conflict with another regulation of the board, the provisions of the other regulation shall apply.

Construction and modification of stationary sources are covered under Article 8,

P ermits for Major Stationary So u rces and Major Modifications Locating in

P revention of Significant Deterioration Areas (9VAC5

- 80

- 1605 et seq.) and Article 9, Permits for Major Stationary Sources and Major Modifications Locating

in Nonattainment Areas or the Ozone Transport Region (9VAC5

- 80

- 2000 et seq.)

of Part II of 9VAC 5 Chapter 80 (Permits for Stationary Sources). Article 8 provides that construction and modification of major stationary sources will not cause or contribute to a violation of any NAAQS ( s e e 9VAC 5

- 80

- 1635

, Ambient

Air Increments and 9VAC5

- 80

- 1645

, Ambient Air Ceilings). This regulation also requires the application of Best Available Control Technology to new or modified

sources of ozone precursor emissions (s ee 9VAC 5

- 80

- 1705

, Control Techno logy Review). Virginia has a minor new source review permitting program under

Arti c le 6 of Part II of 9VAC 5 Chapter 80. Virginia’s PSD program applies to greenhouse gases (GHG ) through 9VAC5 Chapter 85

, Permits for Stationary Sources of Pollutants Subjec t to Regulation (Greenhouse Gas Tailoring)

, which implements EPA’s Tailoring Rule. Other aspects for enforcement are found in the source monitoring, source testing and test methods, and recordkeeping and reporting provisions of 9VAC5 Chapters 40, 50, and 140 that are listed in 40 CFR

52.2420.

**Section 110(a)(2)(D)(i)(II):** “ Each such plan shall contain adequate provision s prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollution in amounts which will interfere with measures required to be included in the applicable implementati on plan for any other State under Part C to prevent significant deterioration of air quality or to protect visibility ”

Major stationary sources for ozone precursors in Virginia are currently subject to

nonattainment NSR and PSD permitting programs. These provisions to implement Part C may be found in Article 8 of 9VAC 5 Chapter 80 and in 9VAC5 Chapter 85

. Virginia submitted its regional haze SIP to EPA Region III on October 4, 2010, and on June 13, 2012 (77 FR 35287), EPA finalized a limited approval/limit ed disapproval of the submittal5 **Section 110(a)(2)(D)(ii):** “ Each such plan shall contain adequate provisions insuring compliance with the applicable requirements of §§ 126 and 115 (relating to interstate and international pollution abatement) ”

Section 126(a) directs each SIP to include provisions requiring a new or modified source to notify neighboring state s of potential impacts from that source. Major stationary sources of ozone precursors in Virginia are currently subject to PSD NSR permitti ng programs. These provisions to implement Part C may be found in Article 8 of 9VAC5 Chapter 80 and in 9VAC5 Chapter 85 , which ha ve been approved in Virginia’s SIP in 40 CFR 52.2420(c). 9 VAC5

- 80

- 1775 specifically requires notification to local air pollut ion control agencies and any state whose lands may be affected by emissions from the source or modification. Virginia is not subject to any active finding or pe titions regarding ozone under §§ 115, 126(b), or 126(c).

**Section 110(a)(2)(E)(i):** “ Each such plan shall provide necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State Law from carrying out such implementation plan or portion thereof). ”

Code of Virginia

, Title 10.1

, Chapter 13, Air Pollution Control Board

, gives broad authority to develop, implement, and enforce the implementation plan. Section

10.1

- 1308 provides the board adequate legal authority to adopt emission standards and compliance schedules applicable to regulated entities. This section provides authority to adopt emission standards, limitations, and any other measures necessary for attainment and maintenance of n ational standards.

Sections 10.1

- 1307, 10.1

- 1307.3, 10.1

- 1309, 10.1

- 1316, 10.1

- 1320, and 10.1

- 1322 provide the board adequate legal authority to enforce applicable laws, regulations standards, and compliance schedules. The provisions also allow for injun ctive re lief. In addition, § 10.1

- 1186. 10 provides the department legal authority to enforce applicable laws, regulations, standards, and compliance

schedules.

The resources to carry out the implementation plan are provided through general funds, Title V funds, and the §§ 103 and 105 grant process. Title V fees are collected under the authority of § 10.1

- 1322.

Virginia has adequate personnel to carry out the SIP with respect to the 2008
ozone NAAQS requirements. Should EPA determine that Virginia lacks adequate personnel to carry out the SIP, EPA may issue a finding with respect to that deficiency. Virginia would then have a legal obligation to correct that deficiency.6 **Section 110(a)(2)(E)(ii):** “ Each such plan shall provide requirements such that th e State comply with the requirements respecting State boards under § 128. ”

The board has the authority to approve regulations, enforcement actions, and permits. Section 10.1

- 1302 is as stringent as § 128(a)(1) of the Clean Air Act

and ensures that at least a majority o f the members of the board represent the public interest and do not d erive any significant portion of their income from persons subject to permits or enforcement orders of the board as required by § 128(a)(1) of the Clean Air Act. In add ition, the State or Local Government Conflict of Interests Act (§ 2.2

- 3100 et seq.) provides the means f or disclosure of

p otential conflicts of interest as required by § 128(a)(2) of the Clean Air Act.

Section 110(a)(2)(E)(iii): “ Each such plan shall provide necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provisi on ;”

9VAC5 Chapter 130, Regulation for Open Burning

, allows localities, after receiving approval from the State Air Pollution Control Board, to adopt the open burning requirements of the regulation (s ee Part II of 9VAC5

- 130). For the monitoring program a nd for this regulatory requirement, Virginia continues to provide the oversight necessary to ensure that data is collected and reported in accordance with current guidance ; that open burning regulations are appropriately implemented by localities ; and that other assurances for adequate implementation exist . Other than monitoring requirements and open burning requirements, Virginia does not rely on localities to implement SIP provisions.

**Section 110(a)(2)(F)(i):** “ Each such plan shall require, as may be p rescribed by the Administrator, the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources

to monitor emissions from such sources ;”

These requirements are in cluded in those provisions of 9VAC5 Chapters 20, 40

and 50 that are approved in the SIP under 40 CFR 52.2420

.

**Section 110(a)(2)(F)(ii):** “ Each such plan shall require, as may be prescribed by the Administrator, periodic reports on the nature and amounts of emissions and emissions

related data from such sources ;”

Requirements for periodic reports on the nature and amounts of emissions and

emissions

- related data are included in 9VAC5

- 20

- 160 ( Registration ) of 9VAC57 Chapter 20 (General Provisions)

. Such data are also required by Part I of 9VAC5 Chapter 40 (Existing Stationary Sources) as well as Parts I and II of 9VAC5 Chapter 50 (New and Modified Stationary Sources)

. These SIP provisions are approved under 40 CFR 52.2420.

**Section 110(a)(2)(F)(iii) :**  “ Each such plan shall require, as may be prescribed by the Administrator, correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available

at reasonabl e times f or public inspection;”

The correlation of such reports is included in Part I of 9VAC5 Chapter 40 and

Part II of 9VAC 5 Chapter 50. 9VAC5

- 170

- 60 (Availability of information) in Part II of 9VAC5 Chapter 170 (Regulation for General Administration) requires that these reports be publicly available. These SIP provisions are approved under 40
CFR 52.2420.

**Section 110(a)(2)(G):** “ Each such plan shall provide for authority comparable to that in § 303 and adequate contingency plans to implement such authority ;”

Section 10.1

- 1309 B under Code of Virginia

, Title 10.1, Chapter 1 3, Air Pollution

Control Board

, authorize s the board to declare a state of emergency and issue without hearing an emergency special order directing the owner to cease such pollution immedi ately u pon finding that any owner is unreasonably affecting the public health, safety or welfare; the health of animal or plant life; or property

. Section 10.1

- 1309.1 authorize s the board to issue special orders requiring plans to abate, control, prevent, remove, or contain any substantial and imminent threat to public health or the environment that is reasonably likely to occur if such source ceases operations.

Virginia has appropriate general emergency powers to address ozone related episodes . Virgini a’s emergency plans are found in 9VAC5 Chapter 70 (Air Pollution Episode Prevention) and are approved in 40 CFR 52.2420.

**Section 110(a)(2)(H)(i):** “ Each such plan shall provide for revision of such plan from time to time as may be necessary to take accoun t of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious met hods of attaining such standard;”

Virginia’s SIP is a compilation of regulations, plans, and submittals that act to

im prove and maintain ai r qua lit y at the national standards. The authority to develop or revise the SIP is based on the authority to adopt new regulation s

, revise existing regulations, and conduct business in a m a nner to meet the
NAAQS. Co d e of Virginia

, Title 10.1

, Cha p ter 13, Air Pollution Control Board

,8 gives broad authority to perform these functions. Specifically § 10.1

- 1 306 provides authority for the board to act reasonably to achiev e and maintain levels of air quality that will protect human healt h, welfare, and safety. Also

, § 10.1

- 1307 provides for the development of a comprehensive program for the study, abatement, and control of all sources of air pollution in the Commonwealth.

Section 10.1

- 1308 provides authority to promulgate regulations to abate, control, and prohibit air pollution throughout the Commonwealth in accordance with the provisions of Virginia’s Administrative Process Act.

**Section 110(a)(2)(H)(ii):** “ Each such plan shall provide for revision of such plan except as provided in paragraph (3)(c), whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirement s established under this Act;”

As noted in the prior paragraph, § 10.1

- 1306 provides authority for the board to act reasonably to achieve and maintain levels of air quality that will protect human health, welfare, and safety. Virgi nia affirms that the state implementation plan may be revised should the Administrator find that the plan is substantially inadequate to attain a standard or to comply with any additional requirements

under the Act.

**Section 110(a)(2)(J):** “ Each such plan shall meet the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection) ;”

Section 121: All SIP revisions undergo public notice and hearing , if requested

, which provides for comment by the public and includ es local political subdivisions. Further, all regulations promulgated in Virginia are subject to the

Administrative Process Act ( Code of Virginia

, Title 2.2

, Administration of

Government , Chapter 40 )

. Regulations promulgated by the State Air Pollution Control Board are also governed by 9VAC5 Chapter 5, Public Participation

Guidelines.

During attainment and maintenance plan development, lo cal planning organizations (LPOs) are organized as the forum for consultation and cooperative air quality planning decision making. LPOs are the organizations certified by the state as being responsible for the preparation of control strategy implementati on plan revisions for nonattainment areas under § 174 of the Clean Air Act. The organizations include elected officials of local governments in the affected nonattainment area, and representatives of DEQ, Virginia Department of Transportation (VDOT), the metropolitan planning organizations (MPOs) for the affected area, and other agencies and organizations that have responsibilities for9 developing, submitting, or implementing any of the plan revisions. All LPO documentation is submitted with each plan for the pertinent jurisdiction. Virginia’s plan submittals specify the organizations responsible for implementing and enforcing the plans.

Consultation for transportation conformity purposes is governed by 9VAC5 Chapter 151 (Regulation for Transportation Conformity). This regulation was originally approved by EPA into the SIP on November 20, 2009 (74 FR 60194); subsequent amendments made to ensure consistency with EPA rule changes were later approved on October 19, 2011 (74 FR 60194) . Consultation for general conformity purposes is governed by 9VAC5 Chapter 160 ( Regulation for General Conformity). This regulation was originally approved into the SIP on October 21, 1997 (6 2 FR 54585); subsequent amendments made to ensure consistency with EPA rule changes were later approved on December 12, 2011 (76 FR 77150).

Therefore, the Commonwealth’s public participation requirements and procedures fulfill the requirements of the § 121 consultation process.

Section 127: Air quality data from Virginia’s monitoring n etwork is published on the Department of Environmental Quality website. As part of the § 105 grant process, Virginia is required to s ubmit monitoring data to the AQS in a timely manner. Virginia publishes a n annual summary of all monitoring data on the DEQ website, including monitoring locations, exceedances, and violations of

standards. The VDOT and the MPOs use electronic signs in the nonattainment

and maintenance are as to alert motorists to predicted air quality values so that mitigating episodic measures can be implemented.

Part C: Article 8

, Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas (9VAC 5

- 80

- 1605 et seq.) of 9VAC5

- 80 (Permits for Stationary Sources) and 9VAC5

- 85 (Permits for Stationary Sources of Pollutants Subject to Regulation (Greenhouse Gas Tailoring) include procedures for the permitting of major stationary sources.

**Section 110(a)(2)(K)(i) and (ii):**  “ Each such plan shall provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emission of any air pollutant for which the Administrator has established a national ambient air quality standard and (ii) the submission, upon request, of data related to such air quality modeling to the

Administrator ”

Article 8, Permits for Major Stationary Sources and Major Modifications Lo cating in Prevention of Significant Deterioration Areas (9VAC5

- 80

- 1605 et seq.) of

9VAC5

- 80 (Permits for Stationary Sources) contains requirements for pre

construction and post

- c onstruction monitoring and modeling. Such data is10 routinely provided to EPA u pon request. This regulation is included as part of the Virginia SIP as noted in 40 CFR 52.2420. Regional a ir quality modeling inputs and results have been provid ed in numerous SIP submittals.

**Section 110(a)(2)(L) (i) and (ii)**  **:** “ Each such plan shall re quire the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement actio n), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under title V;”

These requirements are located in Article 2, Permit Program Fees for Stationary Sources (9VAC5

- 80

- 310 et seq.) of 9V AC5

- 80 (Permits for Stationary Sources). These regulations are part of Virginia’s federally approved Title V program and are codified in Appendix A of 40 CFR Part 70, Approval Status of S t ate and Local Operating Permits Programs.

**Section 110(a)(2)(M):** “ Each such plan shall provide for consultation and participation by local political subdivisions affected by the plan;”

During attainment and maintenance plan development, LPOs are organized as the forum for consultation and cooperative air quality planning decision making. LPOs are the organizations certified by the state as being responsible for the preparation of contro l strategy implementation plan revisions for nonattainment

areas under § 174 of the Clean Air Act. The organizations include elected officials of local governments in the affected nonattainment area, and representatives of DEQ, VDOT, the MPOs for the affe cted area, and other agencies and organizations that have responsibilities for developing, submitting, or implementing any of the plan revisions. All LPO documentation is submitted with each plan for the pertinent jurisdiction. Virginia’s plan submittals specify the organizations responsible for implementing and enforcing the plans.

Consultation for transportation conformity purposes is governed by 9VAC5 Chapter 151 (Regulation for Transportation Conformity). This regulation was originally approved by E PA into the SIP on November 20, 2009 (74 FR 60194); subsequent amendments made to ensure consistency with EPA rule changes were later approved on October 19, 2011 (74 FR 60194) . Consultation for general conformity purposes is governed by 9VAC5 Chapter 160 (Regulation for General Conformity). This regulation was originally approved into the SIP on October 21, 1997 (62 FR 54585); subsequent amendments made to ensure11 consistency with EPA rule changes were later approved on December 12, 2011 (76 FR 77150).

A ll SIP revisions undergo public participation following the procedures stipulated by 40 CFR 51.102 , providing for comment by the public that includes local political subdivisions . Additionally, the Code of Virginia under § 10.1

- 1307A requires advising, co nsulting, and cooperating with all agencies of the Commonwealth, political subdivisions, private industries, and any other affected groups when developing programs to improve or maintain air quality.

Further, all regulations in Virginia are subject to t he Administrative Process Act ( Code of Virginia

, Title 2.2

, Administration of Government

, Chapter 40 )

. Regulations promulgated by the State Air Pollution Control Board are also governed by 9VAC5 Chapter 5, Public Participation Guidelines. T he

Commonwealt h’s public participation requirements and procedures fulfill the requirements for consultation with local political subdivisions affected by the SIP.

SIP \ ASSESSMENT \ HS

- SIP

- 1.DOC