UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103

DATE: 

SUBJECT: Technical Support Document for the Virginia State Implementation Plan for 

Section 110(a)(2) of the Clean Air Act Infrastructure Requirements for the 2010

Nitrogen Dioxide National Ambient Air Quality Standards

FROM: Ellen Schmitt, Environmental Scientist /s/ 7/9/13

Office of Air Program Planning

TO: File

THRU: Cristina Fernandez, Associate Director /s/ 7/9/13

Office of Air Program Planning 

A. INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on a submittal made by the 

Commonwealth of Virginia to meet the Clean Air Act (CAA) section 110(a)(2) requirements of 

the 2010 nitrogen dioxide (NO2) national ambient air quality standards (NAAQS).

B. BACKGROUND

EPA first set standards for NO2 in 1971, setting both a primary standard (to protect 

health) and a secondary standard (to protect the public welfare) at 53 parts per billion (53 ppb), 

averaged annually. EPA has reviewed the standards twice since that time, but chose not to revise 

the annual standards at the conclusion of each review. On February 9, 2010, EPA established an 

additional primary standard at 100 ppb, averaged over one hour. Pursuant to section 110(a)(1) of 

the CAA, states are required to submit State Implementation Plans (SIPs) meeting the applicable 

requirements of section 110(a)(2) within three years after promulgation of a new or revised 

NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states 

to address basic SIP elements such as requirements for monitoring, basic program requirements 

and legal authority that are designed to assure attainment and maintenance of the NAAQS. 

States were required to submit such SIPs for the 2010 NO2 NAAQS to EPA no later than January 

2013. 

Section 110(a) of the CAA requires states to submit SIPs to provide for the 

implementation, maintenance, and enforcement of a new or revised NAAQS within three years 

following the promulgation of such NAAQS or within such shorter period as EPA may 

prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA
2

for a new or revised NAAQS, but the contents of that submission may vary depending upon the 

facts and circumstances. In particular, the data and analytical tools available at the time the state 

develops and submits the SIP for a new or revised NAAQS affects the content of the submission. 

The contents of such SIP submissions may also vary depending upon what provisions the state’s 

existing SIP already contains. More specifically, section 110(a)(1) provides the procedural and 

timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for 

‘‘infrastructure’’ SIP requirements related to a newly established or revised NAAQS. As 

mentioned above, these requirements include basic SIP elements such as requirements for 

monitoring, basic program requirements and legal authority that are designed to assure 

attainment and maintenance of the NAAQS.

C. EPA REQUIREMENTS

As discussed above, for the 2010 NO2 NAAQS, states must provide SIP submissions, or 

provide certification that the existing SIP contains provisions addressing relevant infrastructure 

SIP elements from sections 110(a)(2)(A) through (M) of the CAA. 

D. STATE’S SUBMITTAL

On May 30, 2013, Virginia provided a submittal to satisfy the requirements of section 

110(a)(2) of the CAA for the 2010 NO2 NAAQS. This submittal addressed the following 

infrastructure elements that EPA is proposing to approve: section 110(a)(2)(A), (B), (C) (for 

enforcement and regulation of minor sources), (D)(i)(II) (for visibility protection), (D)(ii), (E)(i), 

(E)(iii), (F), (G), (H), (J), (K), (L), and (M) of the CAA, or portions thereof. EPA is taking 

separate action on the portions of (C), (D)(i)(II), and (J) as they relate to Virginia’s prevention of 

significant deterioration (PSD) program, and (E)(ii) as it relates to state boards. This submittal

did not include element (I) which pertains to the nonattainment requirements of part D, Title I of 

the CAA, since this element is not required to be submitted by the 3-year submission deadline of 

CAA section 110(a)(1), and will be addressed in a separate process. This submittal also did not 

include element (D)(i)(I), because this element, or portions thereof, is not presently required to 

be submitted by a state to meet CAA section 110(a)(2)(D)(i)(I) until the EPA has quantified a 

state’s obligations under that section. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 

(D.C. Cir. 2012), cert. granted, 2013 U.S. LEXIS 4801 (2013). EPA is continuing to act in 

accordance with the decision of the Court of Appeals for the District of Columbia Circuit in 

EME Homer City unless or until the EME Homer City decision is reversed or otherwise modified

by the United States Supreme Court.

E. EVALUATION OF STATE SUBMITTAL

1. Section 110(a)(2)(A)
3

Virginia’s May 30, 2013 SIP submittal for the 2010 NO2 NAAQS includes enforceable 

emission limitations and other control measures which are included in 9VAC5 Chapters: 40 

(Existing Stationary Sources), 50 (New and Modified Stationary Sources), 91 (Motor Vehicle 

Inspection and Maintenance in Northern Virginia), and 140 (Emissions Trading). EPA finds 

Virginia’s infrastructure SIP submittal for the 2010 NO2 NAAQS meets the requirements of

CAA section 110(a)(2)(A) through the measures in these regulations.

EPA does not consider SIP requirements triggered by the nonattainment area mandates in 

part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1). 

Nevertheless, the Commonwealth of Virginia may have included some previously EPAapproved SIP provisions originally submitted in response to part D in its submission 

documenting its compliance with the requirements of sections 110(a)(l) and (2) of the CAA. For 

the purposes of this action, EPA has reviewed Virginia’s 110(a)(2) SIP submittal, which may 

includes rules originally submitted in response to part D, or references thereto, solely for the 

purposes of determining whether such submittals support a finding that the state has met the 

basic infrastructure requirements under section 110(a)(2).

In this action, EPA is not proposing to approve or disapprove any existing Virginia

provisions with regard to excess emissions during startup, shutdown, and malfunction (SSM) of 

operations at a facility. EPA believes that a number of states have SSM provisions 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 plans to address such state 

regulations in a separate rulemaking action. In the meantime, EPA encourages any state having 

a deficient SSM provision to take steps to correct it as soon as possible.

Also in this action, EPA is not proposing to approve or disapprove any existing Virginia

rules with regard to director’s discretion or variance provisions. EPA believes that a number of 

states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 

45109, November 1987), and EPA plans to take separate rulemaking action to address such state 

regulations. In the meantime, EPA encourages any state having director’s discretion or variance 

provisions which are contrary to the CAA and EPA guidance to take steps to correct the 

deficiency as soon as possible.

2. Section 110(a)(2)(B)

Virginia has established and currently operates appropriate devices, methods, systems, 

and procedures necessary to monitor, compile, and analyze data on ambient air quality. Virginia 

maintains and operates a multi-station network of ambient monitors throughout the 

Commonwealth to measure ambient air quality levels for comparison to each NAAQS as 

required by 40 CFR part 58. The locations of these monitoring stations can be found in 

Virginia’s Annual Network Review for 2012, the most recent year available at the time of this 

notice, and has been provided for reference in the docket. EPA approved Virginia’s 2012 

Annual Air Quality Monitoring Network Design Plan on February 21, 2013.
4

Virginia provides such ambient air quality data to EPA and keeps EPA informed of 

changes to the sampling network by providing prior notification of any planned changes and 

seeking approvals of the changes. Virginia sends EPA an annual summary of all changes to the 

network, which includes a description, explanation, and other relevant information regarding 

each change.

All data is measured using EPA approved methods as either Reference or Equivalent 

monitors. All monitors are subjected to the quality assurance requirements of 40 CFR part 58, 

Appendix A, and all samplers are located at sites that have met the minimum siting requirements 

of 40 CFR part 58, Appendix E. The data is submitted to EPA’s Air Quality System (AQS) 

system, in a timely manner in accordance with the scheduled prescribed by EPA in 40 CFR part 

58. EPA finds Virginia’s infrastructure SIP submittal for the 2010 NO2 NAAQS meets the 

requirements of CAA section 110(a)(2)(B).

3. Section 110(a)(2)(C)

EPA finds Virginia has established and currently operates a program to provide for the 

enforcement of the emission limitations and other control measures, means, or techniques, as 

well as schedules and time tables for compliance, as may be necessary or appropriate, as 

discussed for CAA Section 110(a)(2)(A) in order to meet the applicable requirements of the 

CAA. Virginia also has an EPA SIP-approved minor new source review (NSR) program located 

in 9VAC5-80-10 (New and Modified Stationary Sources) and 9VAC5-80-11 (Stationary source 

permit exemption levels)to regulate certain modifications and construction of stationary sources 

within areas covered by its SIP as necessary to assure the NAAQS are achieved. EPA finds 

Virginia’s infrastructure SIP submittal for the 2010 NO2 NAAQS meets the requirements of 

CAA section 110(a)(2)(C) for enforcement and regulation of minor sources and minor 

modifications.

EPA will take separate action on this portion of section 110(a)(2)(C) for the 2010 NO2

NAAQS as it relates to Virginia’s major source PSD permitting program as required by Part C of 

Title I of the CAA.

4. Section 110(a)(2)(D)(i)(I)

In accordance with the EME Homer City decision from the U.S. Court of Appeals for the 

D.C. Circuit, a state is not required to submit a SIP pursuant to section 110(a) which addresses 

section 110(a)(2)(D)(i)(I) until EPA has defined a state’s contribution to nonattainment or 

interference with maintenance in another state. See EME Homer City Generation, LP v. EPA,

696 F.3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. LEXIS 4801 (2013). Unless the EME 

Homer City decision is reversed or otherwise modified by the Supreme Court, states such as 

Virginia are not required to submit 110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their 

obligations under that section. Virginia’s May 30, 2013 infrastructure SIP submission for the 
5

2010 NO2 NAAQS did not include a component to address 110(a)(2)(D)(i)(I). Therefore, in this 

notice, EPA is not proposing to act on 110(a)(2)(D)(i)(I) for Virginia’s May 30, 2013

infrastructure SIP submission for the 2010 NO2 NAAQS. 

5. Section 110(a)(2)(D)(i)(II)

Section 110(a)(2)(D)(i)(II) consists of what the EPA refers to as prong 3 (interference 

with PSD) and prong 4 (interference with visibility protection). EPA will take separate action on 

prong 3 of section 110(a)(2)(D)(i)(II) for the 2010 NO2 NAAQS as it relates to Virginia’s major 

source PSD permitting.

With respect to prong 4, Section 110(a)(2)(D)(i)(II) requires that SIPs include provisions 

prohibiting any source or other type of emissions activity in one state from interfering with 

measures to protect visibility required to be included in another state’s SIP. In describing how 

its submission meets this requirement, the Commonwealth referred to its October 4, 2012 

Regional Haze SIP submittal which included reliance on the Clean Air Interstate Rule (CAIR) 

for electrical generating units (EGUs).1 EPA granted limited approval and limited disapproval of 

Virginia’s regional haze SIP. (77 FR 35287, June 13, 2012). Although Virginia’s regional haze 

SIP has not been fully approved, EPA believes that the infrastructure SIP submission together 

with previously approved SIP provisions, specifically those provisions that require EGUs to 

comply with CAIR and the additional measures in the regional haze SIP addressing best 

available retrofit technology (BART) and reasonable progress requirements for other sources or 

pollutants, are adequate to demonstrate compliance with section 110(a)(2)(D)(i)(II). Thus, EPA 

is proposing to fully approve this aspect of the submission. 

Virginia’s regional haze SIP relied on Virginia’s previous incorporation of the CAIR into 

the EPA-approved SIP for Virginia as an alternative to the requirement that the regional haze 

SIPs provide for source-specific BART emission limits for SO2 and NOx emissions from EGUs. 

At the time the Virginia regional haze SIP was being developed, the Commonwealth’s reliance 

on CAIR was fully consistent with EPA’s regulations. CAIR, as originally promulgated, 

requires significant reductions in emissions of SO2 and NOx to limit the interstate transport of 

these pollutants, and EPA’s determination that states could rely on CAIR as an alternative to 

requiring BART for CAIR-subject EGUs had specifically been upheld in Utility Air Regulatory 

Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006). Moreover, the states with Class I areas affected 

by emissions from sources in Virginia had adopted reasonable progress goals for visibility 

protection that were consistent with the EGU emission limits resulting from CAIR. 

In 2008, however, the D.C. Circuit remanded CAIR back to EPA. See North Carolina v. 

EPA, 550 F.3d 1176 (D.C. Cir. 2008). The court found CAIR to be inconsistent with the 

requirements of the CAA, see North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but 

 

1 On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of sulfur dioxide (SO2

) and nitrogen 

oxides (NOx) from EGUs to limit the interstate transport of these pollutants and the ozone and fine particulate matter they form 

in the atmosphere. 70 FR 25162.
6

ultimately remanded the rule to EPA without vacatur because it found that “allowing CAIR to 

remain in effect until it is replaced by a rule consistent with [the court’s] opinion would at least 

temporarily preserve the environmental values covered by CAIR.” North Carolina, 550 F.3d at 

1178. 

After the remand of CAIR by the D.C. Circuit and the promulgation by EPA of a new 

rule – the Cross State Air Pollution Rule (CSAPR) – to replace CAIR, EPA issued a limited 

disapproval of Virginia’s regional haze SIP (and other states’ regional haze SIPs that similarly 

relied on CAIR) because EPA believed that full approval of the SIP was not appropriate in light 

of the court’s remand of CAIR and the uncertain but limited remaining period of operation of 

CAIR. EPA finalized a limited approval of the Virginia regional haze SIP, indicating that except 

for its reliance on CAIR, the SIP met CAA requirements for the first planning period of the 

regional haze program (77 FR 35287, June 13, 2012).2EPA also finalized a limited federal 

implementation plan (FIP) for Virginia, which merely substituted reliance on EPA’s more recent 

CSAPR NOx and SO2 trading programs for EGUs for the SIP’s reliance on CAIR (77 FR 33642, 

June 7, 2012).

Since the above-described developments with regard to Virginia’s regional haze SIP, the 

situation has changed. In August 2012, the D.C. Circuit issued a decision to vacate CSAPR in 

which the court ordered EPA to “continue administering CAIR pending the promulgation of a 

valid replacement.” See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 

cert. granted, 2013 U.S. LEXIS 4801 (2013). Thus, EPA has been ordered by the court to 

develop a new rule, and to continue implementing CAIR in the meantime, and the opinion makes 

clear that after promulgating that new rule EPA must provide states an opportunity to draft and 

submit SIPs to implement that rule. Implementation of CAIR thus cannot be replaced until EPA 

has promulgated a final rule through a notice-and-comment rulemaking process; states have had 

an opportunity to draft and submit SIPs; EPA has reviewed the SIPs to determine if they can be 

approved; and EPA has taken action on the SIPs, including promulgating a Federal 

Implementation Plan (FIP), if appropriate. 

However, on June 24, 2013 the United States Supreme Court granted the EPA’s petition 

for certiorari in the EME Homer City matter and has agreed to review the decision of the D.C. 

Circuit. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. 

granted, 2013 U.S. LEXIS 4801 (2013). However, unless and until the EME Homer City 

decision is reversed or otherwise modified by the Supreme Court, EPA will continue 

administering CAIR until the promulgation of a valid replacement in accordance with the D.C. 

Circuit’s opinion in EME Homer City. 

 

2 Under CAA sections 301(a) and 110(k)(6) and EPA’s long-standing guidance, a limited approval results in 

approval of the entire SIP submittal, even of those parts that are deficient and prevent EPA from granting a full 

approval of the SIP revision. Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum from 

John Calcagni, Director, Air Quality Management Division, OAQPS, to Air Division Directors, EPA Regional 

Offices I-X, September 7, 1992, (1992 Calcagni Memorandum) located at 

http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
7

Based on the current direction from the D.C. Circuit to continue administering CAIR, 

EPA believes that it is appropriate to rely on CAIR emission reductions as permanent and 

enforceable for purposes of assessing the adequacy of Virginia’s infrastructure SIP with respect 

to prong 4 while a valid replacement rule is developed and until implementation plans complying 

with any new rule are submitted by the states and acted upon by EPA or until any subsequent 

Supreme Court review provides different direction regarding CAIR and CSAPR. 

In addition, following resolution of the Supreme Court’s review of EME Homer City and 

its decision on CSAPR, EPA will reconsider the limited disapproval of Virginia’s regional haze 

SIP and proceed with further rulemaking action as necessary.

As neither Virginia nor EPA has taken any action to remove CAIR from the Virginia SIP, 

CAIR remains part of the EPA-approved SIP and can be considered in determining whether the 

SIP as a whole meets the requirement of 110(a)(2)(D)(i)(II). EPA is proposing to approve the 

infrastructure SIP submission with respect to 110(a)(2)(D)(i)(II) prong 4 because Virginia’s 

regional haze SIP which EPA has given a limited approval in combination with its SIP 

provisions to implement CAIR adequately prevent sources in Virginia from interfering with 

measures adopted by other states to protect visibility during the first planning period. While 

EPA is not at this time proposing to change the June 13, 2012, limited approval and limited 

disapproval of Virginia’s regional haze SIP, EPA will consider further appropriate action 

regarding Virginia’s regional haze SIP in a separate action after resolution of the Supreme 

Court’s review of EME Homer City.

6. Section 110(a)(2)(D)(ii)

Virginia has demonstrated that it has met its obligations pursuant to CAA section 126(a),

that it has no currently pending obligations pursuant to CAA Section 126(b), and has made the

necessary submittals to demonstrate that the Commonwealth has adequate provisions insuring

future compliance with the requirements of sections 126 and 115 of the CAA. Therefore, EPA 

finds Virginia’s infrastructure SIP meets the requirements of CAA section 110(a)(2)(D)(ii).

7. Section 110(a)(2)(E)(i)

The Code of Virginia Title 10.1 Chapter 13, “Air Pollution Control Board” gives broad

authority to develop, implement and enforce the implementation plan. The resources to carry out 

the implementation plan are provided through General Funds, Title V funds, and the section 103 

and 105 grant process. Title V fees are collected under the authority of Code of Virginia Title

10.1-1322. Virginia’s submittal also provides assurances that that it has adequate personnel to 

carry out the SIP with respect to the 2010 NO2 NAAQS. Therefore, EPA finds Virginia’s 

infrastructure SIP meets the requirements of CAA section 110(a)(2)(E)(i).

8. Section 110(a)(2)(E)(ii)
8

EPA will take separate action on this portion of section 110(a)(2)(E) for the 2010 NO2

NAAQS as it relates to CAA section 128, “State Boards.”

9. Section 110(a)(2)(E)(iii)

Virginia does not rely on localities for specific SIP implementation. Therefore, EPA 

finds Virginia’s infrastructure SIP meets the requirements of CAA section 110(a)(2)(E)(iii). 

10. Section 110(a)(2)(F)

Specific monitoring requirements are found throughout the Virginia Administrative Code 

governing the Control of Air Pollution, including 9VAC5 Chapters 20, 40, 50, and 80. These 

regulations are included in Virginia’s approved SIP and are listed in 40 CFR 52.2420 and also 

apply to the 2010 NO2 NAAQS.

Requirements for periodic reports on the nature, amounts of emissions, and emissionsrelated data are included in 9VAC5-20-160 (Registration). This data is 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). In addition, 9VAC5-170-60 (Availability of 

Information) requires that these reports be publicly available. Therefore, EPA finds Virginia’s

infrastructure SIP meets the requirements of CAA section 110(a)(2)(F).

11. Section 110(a)(2)(G)

Section 10.1-1309 B under Code of Virginia, Title 10.1, Chapter 13, Air Pollution 

Control Board, authorizes the board to declare a state of emergency and issue without hearing an 

emergency special order directing the owner to cease such pollution immediately upon 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 authorizes 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’s emergency plans are found in 9VAC5 Chapter 70 (Air Pollution 

Prevention) and are approved in 40 CFR 52.2420. Therefore, Virginia has authority comparable 

to that in section 303 of the CAA and adequate contingency plans to implement such authority. 

Accordingly, EPA finds Virginia’s infrastructure SIP meets the requirements of CAA section 

110(a)(2)(G).

12. Section 110(a)(2)(H)

Virginia has demonstrated that it has adequate authority to revise the SIP under the Code 
9

of Virginia, Title 10.1, Chapter 13, Air Pollution Control Board, specifically 10.1-1306. This 

provision provides authority for the board to act reasonably to achieve and maintain levels of air 

quality that will protect human health, welfare, and safety. Also, section 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.

These submissions also provide EPA with adequate assurances that Virginia will review 

and revise its SIP from time to time as may be necessary to take account of revisions of such 

primary or secondary NAAQS or the availability of improved or more expeditious methods of 

attaining such standards and, whenever the Administrator finds, on the basis of information 

available to the Administrator, that the plan is substantially inadequate to attain the NAAQS 

which it implements, or to otherwise comply with any additional requirements established under 

the CAA. Therefore, EPA finds Virginia’s infrastructure SIP meets the requirements of CAA 

section 110(a)(2)(H).

13. Section 110(a)(2)(I)

Virginia’s May 30, 2013 SIP submittal for the 2010 NO2 NAAQS did not include or 

address section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part 

D, Title I of the CAA. EPA does not expect infrastructure SIP submissions to address this 

element because nonattainment area plans required under part D are required on a different 

schedule from the CAA section 110(a)(2) infrastructure elements and, thus, will be reviewed and 

acted upon through a separate process as required. 

14. Section 110(a)(2)(J)

Section 121 (relating to consultation). All Virginia SIP revisions undergo public notice 

and opportunity for public hearing, which provides for comment by the public and includes 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.

Virginia also provides opportunity for consultation with federal land managers through 

Article 8 (Permits for Major Stationary Sources and Major Modifications Locating in Prevention 

of Significant Deterioration Areas), Part II of 9VAC5 Chapter 80 (Permits for Stationary 

Sources) specifically through 9VAC5-80-1765 (Sources affecting federal class I areas –

additional requirements). 

Section 127 (relating to public notification). Air quality data from Virginia’s monitoring 

network is published on the Department of Environmental Quality website. As part of the 
10

section 105 grant process, Virginia is required to submit monitoring data to the AQS in a timely 

manner. Virginia publishes an annual summary of all monitoring data on the DEQ website, 

including monitoring locations, exceedances, and violations of standards. 

Part C (relating to visibility protection). With regard to the visibility protection aspect of 

110(a)(2)(J), EPA recognizes that states are subject to visibility and regional haze program 

requirements under part C of the Act (which includes sections 169A and 169B). In the event of 

the establishment of a new NAAQS, however, the visibility and regional haze program 

requirements under part C do not change. Thus, EPA finds that there are no applicable visibility 

obligations under part C “triggered” under section 110(a)(2)(J) when a new NAAQS becomes 

effective. Virginia has submitted SIP revisions to satisfy the requirements of the CAA Section 

169A and 169B, and the regional haze and BART rules contained in 40 CFR 51.308. 

On June 13, 2012, EPA published a final rulemaking regarding Virginia’s regional haze 

program, consisting of a limited approval and a limited disapproval. See 77 FR 35287. In EPA’s 

view, the current status of Virginia’s regional haze SIP as having not been fully approved is not a 

bar to full approval of the infrastructure SIP submission with respect to the visibility protection 

aspect of 110(a)(2)(J), and EPA is proposing to fully approve the infrastructure SIP for this 

aspect. 

While EPA is not at this time proposing to change the June 13, 2012 limited approval and 

limited disapproval of Virginia’s regional haze SIP, EPA will consider further appropriate action 

regarding Virginia’s regional haze SIP in a separate action after resolution of the Supreme 

Court’s review of EME Homer City.

EPA finds Virginia’s NO2 infrastructure SIP meets the requirements of CAA section 

110(a)(2)(J) relating to consultation, public notification, and visibility protection requirements. 

EPA is taking separate action on the portion of section 110(a)(J) for the 2010 NO2 NAAQS as it 

relates to Virginia’s PSD permit program.

15. Section 110(a)(2)(K)

Virginia has the authority and technical capability to conduct air quality modeling in 

order to assess the effect on ambient air quality relevant pollutant emissions and will continue to 

perform modeling so long as the Commonwealth’s goals and resources allow. Article 8, Permits 

for Major Stationary Sources and Major Modifications Locating 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-construction monitoring and modeling. 

9VAC5-80-1715 (Source impact analysis), 9VAC5-80-1725 (Air quality models), and 9VAC5-

80-1735 (Air quality analysis) provide detail on modeling requirements. Article 8 is included as 

part of the Virginia SIP as noted in 40 CFR 52.2420. Virginia will continue to submit to EPA 

the air quality modeling data as part of Virginia’s relevant SIP submissions, permit actions, and 

through Federal grant commitments or in other ways that EPA may request. Therefore, EPA 

finds Virginia’s infrastructure SIP meets the requirements of CAA section 110(a)(2)(K).
11

16. Section 110(a)(2)(L)

Virginia’s submission adequately addresses this requirement by explaining that these 

requirements are located in Article 2, Permit Program Fees for Stationary Sources (9VAC5-80-

310 et seq.) of 9VAC5-80 (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 State and Local Operating Permits Programs. Therefore, EPA finds 

Virginia’s infrastructure SIP meets the requirements of CAA section 110(a)(2)(L).

17. Section 110(a)(2)(M)

All SIP revisions undergo public participation following 40 CFR 51.102 and provide for 

comment by the public including local political subdivisions. Additionally, the Code of Virginia 

under § 10.1-1307A requires advising, consulting, 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 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. Therefore, EPA finds 

Virginia’s infrastructure SIP meets the requirements of CAA section 110(a)(2)(M).

F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of Virginia’s infrastructure submittals for the 2010 NO2 NAAQS 

concludes that Virginia’s submittal meet the requirements of section 110(a)(2)(A), (B), (C) (for 

enforcement and regulation of minor sources and minor modifications), (D)(i)(II) (for visibility 

protection), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to consultation, public notification, 

and visibility protection requirements), (K), (L), and (M), or portions thereof. It is recommended 

that a notice of proposed rulemaking be prepared approving Virginia’s infrastructure submittals 

for the 2010 NO2 NAAQS.