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 20 10 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 Progra m 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 20 10 nitrogen dioxide (NO 2 ) national ambient air quality standards (NAAQS ).

B . BACKGROUND

EPA first set standards for NO 2 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 ov er 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 20 10 NO 2 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 prescrib e

. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA2

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 availab le 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 spec ifically, 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 ab ove, 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 20 10 NO 2 NAAQS

, s tates must provide SIP submissions

, or provide certification that the existing SIP contains provisions addressing relevant infrastructure

SIP elements from s ection s 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 20 10 NO 2 NAAQS

. Th is submittal addressed the following

infrastructure elements that EPA is proposing to approv e : 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), a nd (J) as they relate to Virginia’s prevention of significant deterioration (PSD) program , and (E)(ii) as it relates to state boards

. This submittal

d id n ot include element (I) which pertain s 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 deadlin e of

CAA se ction 110(a)( 1 ) , and will be addressed in a separate process

. This submittal also d id 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 u nless 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 20 10 NO 2 NAAQS include s enforceable

emission limitations and other control measures which are included in 9VAC5 Chapter s: 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 20 10 NO 2 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 deadli ne of section 110(a)(1). Nevertheless, the Commonwealth of Virginia may have included some previou sly EPA

approve d 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

includ es rules originally submitted in response to part D, or references thereto, solely for the purposes of determining whether suc h 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 s tar tup, s hu tdown, and m alfunction (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 s tate having a deficient SSM provision to take steps to correct it as soon as possible.

Also in t his 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 gui dance (52 FR 45109, November 1987), and EPA plans to take separate rulemaking action to address such state regulations

. In the meantime, EPA encourages any s tate having director’s discretion or variance provision s which are contrary to the CAA and EPA gui dance 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 stat ions can be found in Virginia’s A nnual Network R eview 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 p art 58, Appendix A, and all samplers are located at s ites that have met the minimum s it ing requirements

of 40 CFR p art 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 p art
58. EPA finds Virginia’s infrastructure SIP submittal for the 20 10 NO 2 NAAQS meets the requirements of CAA section 110(a)(2)(B).

3. Se ction 110(a)(2)(C)

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

e nforcement 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 requ irements 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 modification s and construction of stationary sources within areas covered by its SIP as necessary to assure the NAAQS are achieved. EPA finds Virginia’s infrastructure SI P submittal for the 2010 NO 2 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 20 10 NO 2 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 s ection 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 se ction. Virginia’s May 30, 2013 infrastructure SIP submission for the5

20 10 NO 2 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 1 10(a)(2)(D)(i)(I) for Virginia’s May 30, 2013

infrastructure SIP submission for the 20 10 NO 2 NAAQS

.

5

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

S ection 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 NO 2 NAAQS as it relates to Virginia’s major

source PSD permitting

.

With respect to prong 4, S ection 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, 2 012 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

Vir ginia’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 provision s 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 s ection 110(a)(2)(D)(i) (II)

. T hus

, 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 SO 2 and NOx emissions from EGUs.

At the time the Virginia regional haze SIP was being developed, the Commonwealth ’ s reli ance on CAIR was fully consistent with EPA’s regulations. CAIR, as originally promulgated, requires significant reductions in emissions of SO 2 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 (SO 2 ) and nitrogen oxides (NOx) from EGUs to limit the interstate transport of these pollutants and the ozone and fine particulate matt er 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 i s replaced by a rule consistent with [the court ’ s] opinion would at least temporarily preserve the environmental values covered by CAIR.” North Carolin a , 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 wa s 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 perio d of the regional haze program ( 77 FR 35287

, June 13 , 2012). 2 EPA also finalized a limited federal implementation plan ( FIP ) for Virginia, which merely substituted reliance on EPA’s more recent

CSAPR NOx and SO 2 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 is sued a decision to v acate CSAPR i n 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

app roved; 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, u nless and until the EME Homer City

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

administer ing CAIR until the promulgation of a valid replacement in accordance w ith 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

B ased 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 res olution 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 a ny 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 subm ission 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 obli gations 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 requ irements of sections 1 26 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 p lan

. The resources to carry out the implementation plan are provided through General Funds, Tit le V funds, and the section 103 and 105 grant process

. Title V fees are coll ected under the authority of Code of Virginia Title

10.1

- 1322 . Virginia’s submittal also provide s assurance s that that it has adequate personnel to

carry out the SIP with respect to the 20 10 NO 2 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 20 10 NO 2 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 infras tructure 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, includ ing 9VAC5 Chapters 20, 40, 50, and 8 0

. These regulations are included in Virginia ’s approved SIP and are listed in 40 CFR 52. 2 420 and also apply to the 20 10 NO 2 NAAQS

.

Requirements for periodic reports on the nature

, amounts of emissions

, and emissions

related data are included in 9VAC5

- 20

- 160 (Registration). This data is also required by Part I of

9VA C5 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 fin ds Virginia’s

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

1 1

. 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 proper ty

. 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 c eases 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 imp lement such authority

. Accordingly, EPA finds Virginia’s infrastructure SIP meets the requirements of CAA section 110(a)(2)( G ).

1 2

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

Virginia has demonstrated that it has adequate authority to revise the SIP under the Code9

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

. Al so, 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 ma y 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 standard s and, whenever the Administrator finds, on the basis of information

available to the Admin istrator, 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 CA A section 110(a)(2)(H).

1 3

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

Virginia’s May 30, 2013 SIP submittal for the 20 10 NO 2 NAAQS did n ot include or address section 110(a)(2)(I) of the CAA which pertain s to the nonattainment requirements of part D, Title I of the CAA

. EPA does not expect infrastructure SIP submissions to address this

element because n onattainment 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

ac ted upon through a separate process as required

.

1 4. S ection 110(a)(2)(J)

Section 121 (relating to c onsultation ). 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 Polluti on 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 Locatin g 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 n otification). Air quality data from Virginia’s monitoring network is published on the Department of Environmental Quality website

. As part of the10

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

manner

. Vi rginia 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 region al haze program requirements under part C do not change. Thus, EPA finds that there are no applicable visibility obligation s under part C “triggered” under section 110(a)(2)(J) when a new NAAQS becomes

effective. Virginia has submitted SIP revisions to s atisfy 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 an d 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

asp ect 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 con sider 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 NO 2 infrastructure SIP meets the requirements of CAA section 110(a)(2)( J ) r elating to consultation , public notification, and visibility protection requirements

. EPA is taking separate action on the portion of section 110(a)(J) for the 20 10 NO 2 NAAQS as it relates to Virginia’s PSD permit program.

1 5

. 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 al low

. 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 note d 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

1 6

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

Virginia’s submission adequately address es this requirement by explaining that these requirements are located in Article 2, Permit Prog ram 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 ).

1 7

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

All SIP revisions undergo public participation following 40 CFR 51.102 and provid e for comment by the public includ ing 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 RECOMMEND ED AGENCY ACTION

EPA’s analysis of Virginia’s infrastructure submittals for the 20 10 NO 2 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 20 10 NO 2 NAAQS

.