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[Federal Register Volume 79, Number 59 (Thursday, March 27, 2014)]
[Rules and Regulations]
[Pages 17043-17053]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06586]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0211; FRL-9908-46-Region-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Section 110(a)(2) Infrastructure Requirements for the 2008 
Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised 
National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA 
requires states to submit a plan for the implementation, maintenance, 
and enforcement of such NAAQS. The plan is required to address basic 
program elements, including, but not limited to regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the standards. These elements 
are referred to as infrastructure requirements. The Commonwealth of 
Virginia has made a submittal addressing the infrastructure 
requirements for the 2008 ozone NAAQS.

DATES: This final rule is effective on April 28, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0211. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Virginia Department of Environmental 
Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at schmitt.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision

    On July 2, 2013 (78 FR 39671), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia proposing approval of 
Virginia's July 23, 2012 submittal to satisfy several requirements of 
section 110(a)(2) of the CAA for the 2008 ozone NAAQS. In the NPR, EPA 
proposed approval of the following infrastructure elements: Sections 
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. EPA is taking 
separate action on the portions of section 110(a)(2)(C), (D)(i)(II), 
and (J) as they relate to Virginia's prevention of significant 
deterioration (PSD) program and on section 110(a)(2)(E)(ii) as it 
relates to section 128 (State Boards). Virginia did not submit section 
110(a)(2)(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 three year submission deadline of section 110(a)(1), 
and will be addressed in a separate process. Virginia also did not 
include a component to address section 110(a)(2)(D)(i)(I) as it is not 
required in accordance with the EME Homer City decision from the United 
States Court of Appeals for the District of Columbia Circuit, 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, 133 U.S. 2857 (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 
section 110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their 
obligations under that section. Therefore, EPA is not acting on 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

[[Page 17044]]

    The rationale supporting EPA's proposed rulemaking action, 
including the scope of infrastructure SIPs in general, is explained in 
the NPR and the technical support document (TSD) accompanying the NPR 
and will not be restated here. The TSD is available online at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2013-0211.

II. Public Comments and EPA's Responses

    EPA received three sets of comments on the July 2, 2013 proposed 
rulemaking action of Virginia's 2008 ozone ``infrastructure'' SIP. The 
commenters include the State of Connecticut, the State of Maryland, and 
the Sierra Club. A full set of these comments is provided in the docket 
for today's final rulemaking action. As both States and Sierra Club 
made a comment regarding the same subject matter of transport and the 
States did not make any additional comments, a summary of the three 
comments dealing with transport and EPA's response to all three will be 
addressed first followed by a summary and responses to the remainder of 
Sierra Club's comments.

A. ``Interstate Transport'' Comments

    Comment: The State of Connecticut and the State of Maryland as well 
as the Sierra Club each assert that the ability of downwind states to 
attain the 2008 ozone NAAQS is substantially compromised by interstate 
transport of pollution from upwind states. The States assert that they 
have done their share to reduce in-state emissions, and EPA should 
ensure each upwind state addresses contribution to another downwind 
state's nonattainment. They state that CAA section 110(a)(1) requires 
states like Virginia to submit, within three years of promulgation of a 
new NAAQS, a plan which provides for implementation, maintenance, and 
enforcement of such NAAQS within the state. They also argue that, under 
section 110(a)(2), Virginia was required to submit a complete SIP that 
demonstrated compliance with the good neighbor provision of section 
110(a)(2)(D)(i)(I). Connecticut argues that pursuant to section 110(k) 
EPA ``must make a finding that Virginia has failed to submit the 
required SIP elements'' and that such a finding creates a two-year 
deadline for EPA to promulgate a Federal Implementation Plan (FIP). 
Maryland argues that ``[p]ursuant to the CAA section 110(k), the EPA 
must disapprove the section 110(a)(2)(D)(i)(I) SIP portion that 
Virginia has failed to submit.''
    Both States further argue that the CAA does not give EPA discretion 
to approve a SIP without the good neighbor provision on the grounds 
that EPA would take separate action on Virginia's obligations under 
section 110(a)(2)(D)(i)(I). They assert that the only action available 
to EPA is promulgation of a FIP under section 110(c)(1) within two 
years. Connecticut asserts that the CAA ``gives EPA no discretion to 
approve a SIP without the good neighbor provision on the grounds that 
it intends to address Virginia's section 110(a)(2)(D)(i)(I) obligations 
in a separate action.'' Maryland further adds that if EPA believes that 
the EME Homer City decision prohibits EPA from disapproving the SIP 
before quantifying Virginia's significant contribution level, EPA 
should immediately promulgate Virginia's significant contribution 
level.
    Similarly, Sierra Club argues that EPA cannot approve Virginia's 
Infrastructure SIP because it does not include provisions to address 
section 110(a)(2)(D)(i)(I), and that EPA cannot use Homer City ``as an 
excuse to ignore its obligations under Clean Air Act 
110(a)(2)(D)(i)(I).'' Sierra Club argues the relevant portion of Homer 
City is dicta and that as this rulemaking would be appealed to the 
Fourth Circuit, not the D.C. Circuit; EPA is under no obligation to 
follow the D.C. Circuit EME Homer City decision in this rulemaking. 
Sierra Club concludes that EPA must find that Virginia has failed to 
submit a section 110(a)(2)(D)(i)(I) SIP and that EPA must issue a FIP 
``within two years of its disapproval.''
    Response: In this rulemaking EPA is not taking any final action 
with respect to the provisions in section 110(a)(2)(D)(i)(I)--the 
portion of the good neighbor provision which addresses emissions that 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in another state. The Commonwealth of Virginia did not 
make a SIP submission to address the requirements of section 
110(a)(2)(D)(i)(I) and thus there is no such submission upon which EPA 
could take action under section 110(k). EPA did not propose to take any 
action with respect to Virginia's obligations pursuant to section 
110(a)(2)(D)(i)(I) and is not, in this rulemaking action, taking any 
such action. Further, EPA could not, as Maryland urges, act under 
section 110(k) to disapprove a SIP that has not been submitted to EPA. 
EPA also is not taking any final action with respect to findings of 
failure to submit for the 2008 ozone NAAQS in this notice. On January 
15, 2013, EPA published findings of failure to submit with respect to 
the infrastructure SIP requirements for the 2008 ozone NAAQS. See 78 FR 
2882. In that action, EPA explained why it was not issuing any findings 
of failure to submit with respect to section 110(a)(2)(D)(i)(I). Id. at 
2884-85. In that action, EPA explained the opinion of the U.S. Court of 
Appeals for the D.C. Circuit in EME Homer City Generation v. EPA, 696 
F.3d 7, 31 (D.C. Cir. 2012), cert. granted 133 U.S. 2857 (2013), 
``concluded that SIP cannot be deemed to lack a required submission or 
deemed deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation 
until after EPA quantifies the obligation.'' See 78 FR at 2884-85; see 
also EME Homer City, 696 F.3d at 32. Therefore, under the D.C. Circuit 
decision EME Homer City, states like Virginia have no obligation to 
make a SIP submission to address section 110(a)(2)(D)(i)(I) for the 
2008 ozone NAAQS until EPA has first defined the state's obligations. 
EPA could not, at this time, find that Virginia has failed to submit a 
required SIP element and as such, EPA has no obligation to make a 
finding of failure to submit under section 110(c)(1)(A).
    EPA further disagrees with the commenters' suggestions that the 
Agency need not follow the D.C. Circuit opinion in EME Homer City. 
While the Supreme Court has agreed to review the EME Homer City 
decision during the Court's 2013-14 term, at this time, the D.C. 
Circuit's decision remains in place. EPA intends to act in accordance 
with the D.C. Circuit opinion in EME Homer City unless it is reversed 
or otherwise modified by the Supreme Court.
    Further, because the EPA rule known as the Cross State Air 
Pollution Rule (CSAPR) reviewed by the court in EME Homer City was 
designated by EPA as a ``nationally applicable'' rule within the 
meaning of CAA 307(b)(1), all petitions for review of CSAPR were 
required to be filed in the D.C. Circuit. EPA accordingly believes the 
D.C. Circuit's decision in EME Homer City is also nationally 
applicable. As such, EPA does not intend to take any actions, even if 
they are only reviewable in another federal Circuit Court of Appeals, 
that are inconsistent with the decision of the D.C. Circuit in EME 
Homer City. EPA also finds no basis for one commenter's suggestion that 
the relevant portion of the D.C. Circuit opinion in EME Homer City 
opinion is dicta.
    EPA also disagrees with the commenters' argument that EPA cannot 
approve a SIP without the good neighbor provision. Section 110(k)(3) of 
the CAA authorizes EPA to approve a plan in full, disapprove it in 
full, or approve it in part and disapprove it in part, depending on the 
extent to which such plan meets the requirements of the CAA. This 
authority to approve the

[[Page 17045]]

states' SIP revisions in separable parts was included in the 1990 
Amendments to the CAA to overrule a decision in the Court of Appeals 
for the Ninth Circuit holding that EPA could not approve individual 
measures in a plan submission without either approving or disapproving 
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 
F.2d 1071 (9th Cir. 1987)).
    As such, the Agency interprets its authority under section 
110(k)(3), as affording EPA the discretion to approve or conditionally 
approve individual elements of Virginia's infrastructure submission for 
the 2008 8-hour ozone NAAQS, separate and apart from any action with 
respect to the requirements of section 110(a)(2)(D)(i)(I) with respect 
to that NAAQS. EPA views discrete infrastructure SIP requirements, such 
as the requirements of 110(a)(2)(D)(i)(I), as severable from the other 
infrastructure elements and interprets section 110(k)(3) as allowing it 
to act on individual severable measures in a plan submission. In short, 
EPA believes that even if the SIP submission for section 
110(a)(2)(D)(i)(I) were now relevant, which it is not, it would still 
have discretion under section 110(k) to act upon the various individual 
elements of the state's infrastructure SIP submission, separately or 
together, as appropriate. The commenters raise no compelling legal or 
environmental rationale for an alternate interpretation.
    There is also no basis for the contention that EPA must issue a FIP 
within two years, as EPA has neither disapproved, nor found that 
Virginia failed to submit a required 110(a)(2)(D)(i)(I) SIP submission. 
Moreover, the D.C. Circuit clearly held in EME Homer City that even 
where EPA had issued findings of failure to submit 110(a)(2)(D)(i)(I) 
SIPs and/or disapproved such SIPs, EPA lacked authority to promulgate 
FIPs under 110(c)(1) where it had not previously quantified states' 
good neighbor obligations. EME Homer City, 696 F.3d at 31-37. And, as 
explained in this response to comment, EPA intends to comply with that 
decision unless it is reversed or otherwise modified by the Supreme 
Court. See also 78 FR 14683 (concluding that, under the D.C. Circuit 
opinion in EME Homer City, disapproval of a 110(a)(2)(D)(i)(I) SIP 
submitted by Kentucky did not start a FIP clock).
    EPA notes, however, that it is working with state partners to 
assess next steps to address air pollution that crosses state 
boundaries and has begun work on a rulemaking to address transported 
air pollution affecting the eastern half of the United States. This 
rulemaking action is technically complex and must comply with the 
rulemaking requirements of CAA section 307(d).
    In addition, EPA notes that Connecticut appears to have misread 
EPA's proposal. EPA did not, in the NPR, state as Connecticut appears 
to assume that it was approving the SIP without the good neighbor 
provision ``on the grounds that it intends to address Virginia's 
section 110(a)(2)(D)(i)(I) obligations in a separate action.'' In the 
NPR which proposed approval of portions of Virginia's infrastructure 
SIP for the 2008 ozone NAAQS, EPA stated that its proposed action did 
not include any proposed action on section 110(a)(2)(D)(i)(I) for 
Virginia's July 23, 2012 infrastructure SIP submission for the 2008 
ozone NAAQS because this element was not required until EPA quantified 
the State's obligations pursuant to the EME Homer City opinion. See 78 
FR 39651, 39652, (July 2, 2013). As discussed in this response to 
comment, EPA therefore has no obligation to find Virginia failed to 
satisfy its good neighbor obligations and no action is required at this 
time. EPA's approval of the Virginia July 23, 2012 infrastructure SIP 
submission for the 2008 ozone NAAQS for the portions described in the 
NPR was therefore appropriate.

B. Sierra Club Comments

    Sierra Club made several additional comments which are provided in 
the docket for today's final rulemaking action and summarized below 
with EPA's response to each.
    Comment 1: Sierra Club contends that EPA cannot approve the section 
110(a)(2)(A) portion of Virginia's 2008 ozone infrastructure SIP 
revision because the plain language of 110(a)(2)(A) of the CAA, 
legislative history of the CAA, case law, EPA regulations such as 40 
CFR 51.112(a), and EPA interpretations in rulemakings, require the 
inclusion of enforceable emission limits in an infrastructure SIP to 
prevent NAAQS violations in areas not designated nonattainment. 
Specifically, Sierra Club cites air monitoring reports for Charles 
County indicating violations of the NAAQS based on 2009-2011 and 2010-
2012 design values and air quality monitoring reports for Chesterfield, 
Hanover, Henrico, and Stafford Counties and Hampton City indicating 
violations based on data from 2010-2012. The commenter alleges that 
these violations demonstrate that the infrastructure SIP fails to 
ensure that air pollution levels meet or are below the level of the 
NAAQS and thus the infrastructure SIP must be disapproved. Sierra Club 
notes that the violation of the NAAQS in Charles County based on data 
from 2009-2011 was known two months before Virginia submitted its ozone 
infrastructure SIP in July 2012 and that the data indicating violations 
based on data through 2012 was available in January 2013, but that 
Virginia failed to address the violations by enacting enforceable 
limits.
    Furthermore, Sierra Club contends that the SIP must be disapproved 
because it does not include additional enforceable emission limits to 
address the NAAQS exceedances. Sierra Club contends that emission 
reductions from measures taken to meet the one-hour and 1997 8-hour 
ozone NAAQS, do not ensure attainment and maintenance of the 2008 ozone 
NAAQS. Sierra Club states that Virginia's SIP provisions which 
addressed the 1-hour and 1997 8-hour ozone NAAQS do not ensure Virginia 
will meet the stricter 2008 8-hour ozone NAAQS, especially as counties 
not designated nonattainment are exceeding the 2008 8-hour ozone NAAQS. 
The commenter also suggests that Virginia adopt specific controls that 
they contend are cost effective for reducing nitrogen oxides 
(NOX), a precursor to ozone.
    Response 1: EPA disagrees with the commenter that the statute is 
clear on its face that infrastructure SIPs must include detailed 
attainment and maintenance plans for all areas of the state and must be 
disapproved if air quality data that became available late in the 
process or after the SIP was due and submitted changes the status of 
areas within the state. The commenter's specific arguments that the 
statutory language, legislative history, case law, EPA regulations, and 
prior rulemaking actions by EPA mandate the narrow interpretation they 
advocate are addressed in subsections (1) through (5) of this 
rulemaking action. EPA believes that section 110(a)(2)(A) is reasonably 
interpreted to require states to submit SIPs that reflect the first 
step in their planning for attaining and maintaining a new or revised 
NAAQS and that they contain enforceable control measures and a 
demonstration that the state has the available tools and authority to 
develop and implement plans to attain and maintain the NAAQS.
    As an initial matter, EPA disagrees that air quality monitoring 
that became available four years following promulgation of the 2008 
ozone NAAQS and only shortly before the SIP was submitted for one area 
(Charles County for 2009-2011) and after submission for

[[Page 17046]]

six counties (Chesterfield, Hanover, Henrico, Stafford, Hampton City, 
and Charles for 2010-2012) provides a basis for disapproving the 
Virginia ozone infrastructure SIP. States must develop SIPs based on 
the information they have during the SIP development process and data 
that becomes available near the end of that process or after that 
process is completed cannot undermine the reasonable assumptions that 
were made by the state based on the information it had available as it 
developed the plan. Thus, the data cited by the commenter should not be 
considered in determining whether the SIP should be approved. The 
suggestion that Virginia's ozone infrastructure SIP must include 
measures addressing violations of the standard that did not occur until 
shortly before or even after the SIP was due and submitted cannot be 
supported. The CAA provides states with three years to develop 
infrastructure SIPs and states cannot reasonably be expected to address 
the annual change in an area's design value for each year over that 
period, nor to predict the air quality data in periods after 
development and submission of the SIPs. Moreover, the CAA recognizes 
and has provisions to address changes in air quality over time, such as 
an area slipping from attainment to nonattainment or changing from 
nonattainment to attainment. These include provisions providing for 
redesignation in section 107(d) and provisions in section 110(k)(5) 
allowing EPA to call on the state to revise its SIP, as appropriate.
    The commenter suggests that EPA must disapprove the Virginia ozone 
infrastructure SIP because the fact that areas in Virginia now have air 
quality data slightly above the standard proves that the infrastructure 
SIP is inadequate to demonstrate maintenance for those six areas. EPA 
disagrees with the commenter because EPA does not believe that section 
110(a)(2)(A) requires detailed planning SIPs demonstrating either 
attainment or maintenance for specific geographic areas of the state. 
The infrastructure SIP is triggered by promulgation of the NAAQS, not 
designation. Moreover, infrastructure SIPs are due three years 
following promulgation of the NAAQS and designations are not due until 
two years (or in some cases three years) following promulgation of the 
NAAQS. Thus, during a significant portion of the period that a state 
has available for developing the infrastructure SIP, it does not know 
what the designation will be for individual areas of the state.\1\ In 
light of the structure of the CAA, EPA's long-standing position 
regarding infrastructure SIPs is that they are general planning SIPs to 
ensure that the state has adequate resources and authority to implement 
a NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.
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    \1\ While it is true that there may be some monitors within a 
state with values so high as to make a nonattainment designation of 
the county with that monitor almost a certainty, the geographic 
boundaries of the nonattainment area associated with that monitor 
would not be known until EPA issues final designations. Moreover, 
the six areas of concern to the commenter do not fit that 
description in any event.
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    EPA's interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].'' In 
1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of the state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS. In 1990, many areas still had air quality not 
meeting the NAAQS and Congress again amended the CAA and added yet 
another layer of more prescriptive planning requirements for each of 
the NAAQS, with the primary provisions for ozone in section 182. At 
that same time, Congress modified section 110 to remove references to 
the section 110 SIP providing for attainment, including removing pre-
existing section 110(a)(2)(A) in its entirety and renumbering 
subparagraph (B) as section 110(a)(2)(A). Additionally, Congress 
replaced the clause ``as may be necessary to insure attainment and 
maintenance [of the NAAQS]'' with ``as may be necessary or appropriate 
to meet the applicable requirements of this chapter.'' Thus, the CAA 
has significantly evolved in the more than 40 years since it was 
originally enacted. While at one time section 110 did provide the only 
detailed SIP planning provisions for states and specified that such 
plans must provide for attainment of the NAAQS, under the structure of 
the current CAA, section 110 is only the initial stepping-stone in the 
planning process for a specific NAAQS. And, more detailed, later-
enacted provisions govern the substantive planning process, including 
planning for attainment of the NAAQS.
    For all of these reasons, EPA disagrees with the commenter that EPA 
must disapprove an infrastructure SIP revision if there are monitored 
violations of the standard in the state and the section 110(a)(2)(A) 
revision does not have detailed plans for demonstrating how the state 
will bring that area into attainment. Rather, EPA believes that the 
proper inquiry at this juncture is whether the state has met the basic 
structural SIP requirements appropriate at the point in time EPA is 
acting upon the submittal.
    Moreover, as addressed in EPA's proposed approval for this rule, 
Virginia submitted a list of existing emission reduction measures in 
the SIP that control emissions of volatile organic compounds (VOCs) and 
NOX. Virginia's SIP revision reflects several provisions 
that have the ability to reduce ground level ozone and its precursors. 
The Virginia SIP relies on measures and programs used to implement 
previous ozone NAAQS. Because there is no substantive difference 
between the previous ozone NAAQS and the more recent ozone NAAQS, other 
than the level of the standard, the provisions relied on by Virginia 
will provide benefits for the new NAAQS; in other words, the measures 
reduce overall ground-level ozone and its precursors and are not 
limited to reducing ozone levels to meet one specific NAAQS.
    EPA shares the commenter's concern regarding areas that are 
monitoring exceedances of the 2008 8-hour ozone NAAQS and will work 
appropriately with state and local agencies to address such 
exceedances. Further, in approving Virginia's infrastructure SIP 
revision, EPA is affirming that Virginia has sufficient authority to 
take the types of

[[Page 17047]]

actions required by the CAA in order to bring such areas back into 
attainment.
1. The Plain Language of the CAA
    Comment 2: The commenter states that on its face the CAA ``requires 
I-SIPs to be adequate to prevent violations of the NAAQS.'' In support, 
the commenter quotes the language in section 110(a)(1) which requires 
states to adopt a plan for implementation, maintenance, and enforcement 
of the NAAQS and the language in section 110(a)(2)(A) which requires 
SIPs to include enforceable emissions limitations as may be necessary 
to meet the requirements of the CAA and which commenters claimed 
include the maintenance plan requirement. Sierra Club notes the CAA 
definition of emission limit and reads these provisions together to 
require ``enforceable emission limits on source emissions sufficient to 
ensure maintenance of the NAAQS.''
    Response 2: EPA disagrees that section 110 is ``clear on its face'' 
and must be interpreted in the manner suggested by Sierra Club. As 
explained earlier in this rulemaking action, section 110 is only one 
provision that is part of the complicated structure governing 
implementation of the NAAQS program under the CAA, as amended in 1990, 
and it must be interpreted in the context of not only that structure, 
but also of the historical evolution of that structure. In light of the 
revisions to section 110 since 1970 and the later-promulgated and more 
specific planning requirements of the CAA, EPA interprets the 
requirement in section 110(a)(2)(A) that the plan provide for 
``implementation, maintenance and enforcement'' to mean that the 
infrastructure SIP must contain enforceable emission limits that will 
aid in attaining and/or maintaining the NAAQS and that the state 
demonstrate that it has the necessary tools to implement and enforce a 
NAAQS, such as adequate state personnel and an enforcement program. 
With regard to the requirement for emission limitations, EPA has 
interpreted this to mean for purposes of section 110, that the state 
may rely on measures already in place to address the pollutant at issue 
or any new control measures that the state may choose to submit. As EPA 
stated in ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated 
September 13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual 
purpose of an infrastructure SIP submission is to assure that the air 
agency's SIP contains the necessary structural requirements for the new 
or revised NAAQS, whether by establishing that the SIP already contains 
the necessary provisions, by making a substantive SIP revision to 
update the SIP, or both. Overall, the infrastructure SIP submission 
process provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    The commenter makes general allegations that the six counties of 
concern do not have any protective measures addressing ozone pollution. 
EPA addressed the adequacy of Virginia's infrastructure SIP for 
110(a)(2)(A) purposes to meet applicable requirements of the CAA in the 
TSD accompanying the July 2, 2013 NPR and explained why the SIP 
includes enforceable emission limitations and other control measures 
necessary for maintenance of the 2008 ozone NAAQS throughout the state. 
For the six counties at issue, these include Virginia's enforceable 
emission limitations and other control measures at 9 VAC 5 Chapter 40 
(Existing Stationary Sources), 9 VAC 5 Chapter 50 (New and Modified 
Stationary Sources), 9 VAC 5 Chapter 91 (Motor Vehicle Inspection and 
Maintenance in Northern Virginia), 9 VAC 5 Chapter 130 (Open Burning), 
and 9 VAC 5 Chapter 140 (Emissions Trading).
    As discussed in the TSD accompanying the July 2, 2013 NPR, Virginia 
has also submitted maintenance plans, reasonable further action plans, 
and attainment demonstrations for the 1991 1-hour and the 1997 8-hour 
ozone NAAQS. Included in these plans and demonstrations are enforceable 
emissions limits, control measures, fees, and compliance schedules. 
These plans and demonstrations were prepared for the following areas: 
Hampton Roads, Richmond-Petersburg, Fredericksburg, Shenandoah National 
Park, and the Washington DC-MD-VA area. Virginia also submitted early 
action compact plans for the Winchester and Roanoke 1997 ozone NAAQS 
early action compact areas. The approved plans are listed in 40 CFR 
52.2420(e).
2. The Legislative History of the CAA
    Comment 3: Sierra Club cites two excerpts from the legislative 
history of the CAA Amendments of 1970 claiming they support an 
interpretation that SIP revisions under CAA section 110 must include 
emissions limitations sufficient to show maintenance of the NAAQS in 
all areas of Virginia. Sierra Club also contends that the legislative 
history of the CAA supports the interpretation that infrastructure SIPs 
under section 110(a)(2) must include enforceable emission limitations, 
citing the Senate Committee Report and the subsequent Senate Conference 
Report accompanying the 1970 CAA.
    Response 3: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined that 
structure and deleted relevant language from section 110 concerning 
demonstrating attainment. In any event, the two excerpts of legislative 
history the commenter cites merely provide that states should include 
enforceable emission limits in their SIPs and they do not mention or 
otherwise address whether states are required to include maintenance 
plans for all areas of the state as part of the infrastructure SIP. As 
provided earlier in this rulemaking action, the TSD for the proposed 
rule explains why the SIP includes enforceable emissions limitations 
for the relevant areas.
3. Case Law
    Comment 4: Sierra Club also discusses several cases applying the 
CAA which Sierra Club claims support their contention that courts have 
been clear that section 110(a)(2)(A) requires enforceable emissions 
limits in infrastructure SIPs to prevent violations of the NAAQS. 
Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 
(1975), addressing the requirement for ``emission limitations'' and 
stating that emission limitations ``are specific rules to which 
operators of pollution sources are subject, and which if enforced 
should result in ambient air which meet the national standards.'' 
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. 
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA 
directs EPA to withhold approval of a SIP where it does not ensure 
maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 
123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA 
of 1970. The commenter contends that the 1990 Amendments do not alter 
how courts have interpreted the requirements of section 110, quoting 
Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) 
which in turn quoted section 110(a)(2)(A) of the CAA and also stated 
that ``SIPs must include certain measures Congress specified'' to 
ensure attainment of the NAAQS. The commenter also quotes several 
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 
F.3d 1174, 1180 (9th Cir. 2012) (``The

[[Page 17048]]

Clean Air Act directs states to develop implementation plans--SIPs--
that `assure' attainment and maintenance of [NAAQS] through enforceable 
emissions limitations''); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 
2001) (``Each State must submit a [SIP] that specif[ies] the manner in 
which [NAAQS] will be achieved and maintained within each air quality 
control region in the State''). Finally, the commenter cites Mich. 
Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for 
the proposition that EPA may not approve a SIP revision that does not 
demonstrate how the rules would not interfere with attainment and 
maintenance of the NAAQS.
    Response 4: None of the cases the commenter cites support the 
commenter's contention that section 110(a)(2)(A) is clear that 
infrastructure SIPs must include detailed plans providing for 
attainment and maintenance of the NAAQS in all areas of the state nor 
do they shed light on how section 110(a)(2)(A) may reasonably be 
interpreted. With the exception of Train, none of the cases the 
commenter cites concerned the interpretation of CAA section 
110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in 
the context of a challenge to an EPA action, revisions to a SIP that 
was required and approved as meeting other provisions of the CAA or in 
the context of an enforcement action, the court references section 
110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the 
background section of its decision.
    In Train, 421 U.S. 60, a case that was decided almost 40 years ago, 
the Court was addressing a state revision to an attainment plan 
submission made pursuant to section 110 of the CAA, the sole statutory 
provision at that time regulating such submissions. The issue in that 
case concerned whether changes to requirements that would occur before 
attainment was required were variances that should be addressed 
pursuant to the provision governing SIP revisions or were 
``postponements'' that must be addressed under section 110(f) of the 
CAA of 1970, which contained prescriptive criteria. The court concluded 
that EPA reasonably interpreted section 110(f) not to restrict a 
state's choice of the mix of control measures needed to attain the 
NAAQS and that revisions to SIPs that would not impact attainment of 
the NAAQS by the attainment date were not subject to the limits of 
section 110(f). Thus the issue was not whether a section 110 SIP needs 
to provide for attainment or whether emissions limits are needed as 
part of the SIP; rather the issue was which statutory provision 
governed when the state wanted to revise the emission limits in its SIP 
if such revision would not impact attainment or maintenance of the 
NAAQS. To the extent the holding in the case has any bearing on how 
section 110(a)(2)(A) might be interpreted, it is important to realize 
that in 1975, when the opinion was issued, section 110(a)(2)(B) (the 
predecessor to section 110(a)(2)(A)) expressly referenced the 
requirement to attain the NAAQS, a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The commenters do not raise any 
concerns about whether the measures relied on by the state in the 
infrastructure SIP are ``emissions limitations'' and the decision in 
this case has no bearing here.\2\ In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the court was reviewing a federal implementation plan that 
EPA promulgated after a long history of the state failing to submit an 
adequate state implementation plan. The court cited generally to 
section 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs 
should assure attainment and maintenance of NAAQS through emission 
limitations but this language was not part of the court's holding in 
the case. The commenter suggests that Alaska Dept. of Envtl. 
Conservation, 540 U.S. 461, stands for the proposition that the 1990 
CAA Amendments do not alter how courts interpret section 110. This 
claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), 
which, as noted previously, differs from the pre-1990 version of that 
provision and the court makes no mention of the changed language. 
Furthermore, the commenter also quotes the court's statement that 
``SIPs must include certain measures Congress specified'' but that 
statement specifically referenced the requirement in section 
110(a)(2)(C), which requires an enforcement program and a program for 
the regulation of the modification and construction of new sources. 
Notably, at issue in that case was the state's ``new source'' 
permitting program, not its infrastructure SIP.
---------------------------------------------------------------------------

    \2\ While the commenters do contend that the State shouldn't be 
allowed to rely on emission reductions that were developed for the 
prior ozone standards (which we address above), they do not claim 
that any of the measures are not ``emissions limitations'' within 
the definition of the CAA.
---------------------------------------------------------------------------

    Two of the cases the commenter cites, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 
110(l), the provision governing ``revisions'' to plans, and not the 
initial plan submission requirement under section 110(a)(2) for a new 
or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited to section 110(a)(2)(A) 
solely for the purpose of providing a brief background of the CAA.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 5: The commenter cites to 40 CFR 51.112(a), providing that 
``[e]ach plan must demonstrate that the measures, rules and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The commenter asserts that this 
regulation requires all SIPs to include emissions limits necessary to 
ensure attainment of the NAAQS. The commenter states that ``[a]lthough 
these regulations were developed before the Clean Air Act separated 
infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to I-SIPs.'' The commenter relies on a statement in 
the preamble to the 1986 action restructuring and consolidating 
provisions in part 51, in which EPA stated that ``[i]t is beyond the 
scope of th[is] rulemaking to address the provisions of Part D of the 
Act. . . .'' 51 FR 40656, 40656 (November 7, 1986).
    Response 5: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS violations'' and adequate or sufficient to 
ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes this regulatory 
provision was initially

[[Page 17049]]

promulgated and ``restructured and consolidated'' prior to the CAA 
Amendments of 1990, in which Congress removed all references to 
``attainment'' in section 110(a)(2)(A). And, it is clear on its face 
that 40 CFR 51.112 applies to plans specifically designed to attain the 
NAAQS. EPA interprets these provisions to apply when states are 
developing ``control strategy'' SIPs such as the detailed attainment 
and maintenance plans required under other provisions of the CAA, as 
amended in 1977 and again in 1990, such as section 175A and 182. The 
commenter suggests that these provisions must apply to section 110 SIPs 
because in the preamble to EPA's action ``restructuring and 
consolidating'' provisions in part 51, EPA stated that the new 
attainment demonstration provisions in the 1977 Amendments to the CAA 
were ``beyond the scope'' of the rulemaking. It is important to note, 
however, that EPA's action in 1986 was not to establish new substantive 
planning requirements, but rather was meant merely to consolidate and 
restructure provisions that had previously been promulgated. EPA noted 
that it had already issued guidance addressing the new ``Part D'' 
attainment planning obligations. Also, as to maintenance regulations, 
EPA expressly stated that it was not making any revisions other than to 
re-number those provisions. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOx and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
OX and NO2 (portion)''), 51.80 (``Demonstration 
of attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 51.112 contains 
consolidated provisions that are focused on control strategy SIPs and 
the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
    Comment 6: The commenter also references two prior EPA rulemaking 
actions where EPA disapproved or proposed to disapprove SIPs and 
claimed they were actions in which EPA relied on section 110(a)(2)(A) 
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first 
points to a 2006 partial approval and partial disapproval of revisions 
to Missouri's existing plan addressing the sulfur dioxide 
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A) 
as a basis for disapproving a revision to the State plan on the basis 
that the State failed to demonstrate the SIP was sufficient to ensure 
maintenance of the SO2 NAAQS after revision of an emission 
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates 
the rules in a SIP are adequate to attain the NAAQS. Second, Sierra 
Club cites a 2013 proposed disapproval of a revision to the 
SO2 SIP for Indiana, where the revision removed an emission 
limit that applied to a specific emissions source at a facility in the 
State. EPA relied on 40 CFR 51.112(a) in proposing to reject the 
revision, stating that the State had not demonstrated that the emission 
limit was ``redundant, unnecessary, or that its removal would not 
result in or allow an increase in actual SO2 emissions.'' 
EPA further stated in that proposed disapproval that the State had not 
demonstrated that removal of the limit would not ``affect the validity 
of the emission rates used in the existing attainment demonstration.''
    Response 6: EPA does not agree that the two prior actions 
referenced by the commenter establish how EPA reviews infrastructure 
SIPs. It is clear from both the final Missouri rule and the proposed 
Indiana rule that EPA was not reviewing initial infrastructure SIP 
submissions under section 110 of the CAA, but rather reviewing 
revisions that would make an already approved SIP designed to 
demonstrate attainment of the NAAQS less stringent. EPA's partial 
approval and partial disapproval of revisions to restrictions on 
emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 
addressed a control strategy SIP and not an infrastructure SIP. The 
Indiana action provides even less support for the commenter's position. 
As an initial matter, the Indiana action is a proposal and thus cannot 
be presumed to reflect the Agency's final position. In any event, the 
review in that rule was of a completely different requirement than the 
110(a)(2)(A) SIP. Rather, in that case, the State had an approved 
SO2 attainment plan and was seeking to remove from the SIP 
provisions relied on as part of the modeled attainment demonstration. 
EPA proposed that the State had failed to demonstrate under section 
110(l) of the CAA why the SIP revision would not result in increased 
SO2 emissions and thus interfere with attainment of the 
NAAQS. Nothing in that rulemaking addresses the necessary content of 
the initial infrastructure SIP for a new or revised NAAQS. Rather, it 
is simply applying the clear statutory requirement that a state must 
demonstrate why a revision to an approved attainment plan will not 
interfere with attainment of the NAAQS.
    Comment 7: Sierra Club contends that EPA should disapprove 
Virginia's 2008 8-hour ozone infrastructure SIP revision with regard to 
the visibility component of 110(a)(2)(D)(i)(II) and (a)(2)(J) until 
such time that Virginia imposes best available retrofit technology 
(BART) for NOx and SO2 for EGUs. The commenter asserts that 
the substitution of the Clean Air Interstate Rule (CAIR) for BART for 
EGUs violates the CAA including section 169A. The commenter asserts 
that CAIR is not permanent and enforceable and references litigation in 
the D.C. Circuit related to CAIR. See North Carolina v. EPA, 531 F.3d 
896, on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The commenter refers 
to CAIR as ``vacated'' and therefore not able to be considered 
permanent and enforceable. The commenter includes comments challenging 
EPA's prior rulemakings that CAIR and CSAPR were ``better than BART'' 
and states that EPA could not rely on CAIR to support its proposed 
approval of the visibility components of Virginia's 2008 8-hour ozone 
infrastructure revision. The commenter also cites several rulemakings 
and proposed rulemakings on attainment plan SIPs, redesignation 
requests, and regional haze SIPs in which EPA had stated it could not 
fully approve SIP revisions that relied on CAIR reductions or had 
stated CAIR reductions could be permanent and enforceable only in 
tandem with CSAPR reductions.
    Response 7: EPA disagrees with the commenter regarding the 
approvability of Virginia's SIP for section 110(a)(2)(D)(i)(II) and 
(a)(2)(J). As explained in detail in EPA's NPR related to today's 
rulemaking action and in the TSD, EPA believes that in light of the 
D.C. Circuit's decision to vacate CSAPR, also known as the Transport 
Rule (see EME Homer City, 696 F.3d 7), and the court's order for EPA to 
``continue administering CAIR pending the promulgation of a valid 
replacement,'' it is appropriate for EPA to rely at this time on CAIR 
to support approval of Virginia's 2008 8-hour ozone infrastructure 
revision as it relates to visibility. EPA has been ordered by the D.C. 
Circuit to develop a new rule, and to continue implementing CAIR in the 
meantime. Unless the Supreme Court reverses or otherwise modifies the 
D.C. Circuit's decision on CSAPR in EME Homer City, EPA does not intend 
to act in a manner inconsistent with the decision of the D.C. Circuit. 
Based on the current direction from the court to continue administering 
CAIR, EPA

[[Page 17050]]

believes that it is appropriate to rely on CAIR emission reductions for 
purposes of assessing the adequacy of Virginia's infrastructure SIP 
revision with respect to prong 4 of section 110(a)(2)(D)(i)(II) while a 
valid replacement rule is developed and until submissions complying 
with any such new rule are submitted by the states and acted upon by 
EPA or until the EME Homer City case is resolved in a way that provides 
different direction regarding CAIR and CSAPR.
    Furthermore, as neither the Commonwealth nor EPA has taken any 
action to remove CAIR from the Virginia SIP, CAIR remains part of the 
federally-approved SIP and can be considered in determining whether the 
SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i)(II). 
EPA is taking final action to approve the infrastructure SIP submission 
with respect to prong 4 because Virginia's regional haze SIP, which EPA 
has approved, in combination with its SIP provisions to implement CAIR 
adequately prevents sources in Virginia from interfering with measures 
adopted by other states to protect visibility during the first planning 
period.\3\
---------------------------------------------------------------------------

    \3\ 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. Therefore, EPA 
believes it is appropriate to approve Virgina's 2008 ozone NAAQS 
infrastructure SIP for section 110(a)(2)(D)(i)(II) as it meets the 
requirements of that section despite the limited approval status of 
Virginia's regional haze SIP.
---------------------------------------------------------------------------

    EPA disagrees with the commenter that the CAA does not allow states 
to rely on an alternative program such as CAIR in lieu of source-
specific BART. EPA's regulations allowing states to adopt alternatives 
to BART that provide for greater reasonable progress, and EPA's 
determination that states may rely on CAIR to meet the BART 
requirements, have been upheld by the D.C. Circuit as meeting the 
requirements of the CAA. In the first case challenging the provisions 
in the regional haze rule allowing for states to adopt alternative 
programs in lieu of BART, the court affirmed EPA's interpretation of 
CAA section 169A(b)(2) as allowing for alternatives to BART where those 
alternatives will result in greater reasonable progress than BART. 
Center for Energy and Economic Development v. EPA, 398 F.3d 653, 660 
(D.C. Cir. 2005) (finding reasonable EPA's interpretation of CAA 
section 169(a)(2) as requiring BART only as necessary to make 
reasonable progress). In the second case, Utility Air Regulatory Group 
v. EPA, 471 F.3d 1333 (D.C. Cir. 2006), the court specifically upheld 
EPA's determination that states could rely on CAIR as an alternative 
program to BART for EGUs in the CAIR-affected states. The court 
concluded that EPA's two-pronged test for determining whether an 
alternative program achieves greater reasonable progress was a 
reasonable one and also agreed with EPA that nothing in the CAA 
required EPA to ``impose a separate technology mandate for sources 
whose emissions affect Class I areas, rather than piggy-backing on 
solutions devised under other statutory categories, where such 
solutions meet the statutory requirements.'' Id. at 1340.
    EPA also notes that CAIR has not been ``vacated'' as stated in 
Sierra Club's comment. As mentioned in EPA's TSD, CAIR was ultimately 
remanded by the D.C. Circuit to EPA without vacatur, and EPA continues 
to implement CAIR. EPA further notes that all of the rulemaking actions 
and proposed rulemaking actions cited by the commenter which discussed 
limited approvability of SIPs or redesignations due to the status of 
CAIR were issued by EPA prior to the vacatur of CSAPR when EPA was 
implementing CSAPR. Since the vacatur of CSAPR in August 2012 and with 
continued implementation of CAIR per the direction of the D.C. Circuit 
in EME Homer City, EPA has approved redesignations of areas to 
attainment of the 1997 fine particulate matter (PM2.5) NAAQS 
in which states have relied on CAIR as an enforceable measure. See 77 
FR 76415, December 28, 2012 (redesignation of Huntington-Ashland, West 
Virginia for 1997 PM2.5 NAAQS, which was proposed 77 FR 
68076, November 15, 2012); 78 FR 59841, September 30, 2013 
(redesignation of Wheeling, West Virginia for 1997 PM2.5 
NAAQS, which was proposed 77 FR 73575, December 11, 2012); and 78 FR 
56168, September 12, 2013 (redesignation of Parkersburg, West Virginia 
for 1997 PM2.5 NAAQS, which was proposed 77 FR 73560, 
December 11, 2012).
    More fundamentally, EPA disagrees with the commenter that the 
adequacy of the BART measures in the Virginia regional haze SIP is 
relevant to the question of whether the Commonwealth's SIP meets the 
requirements of section 110(a)(2)(D)(i) of the CAA with respect to 
visibility. EPA interprets the visibility provisions in this section of 
the CAA as requiring states to include in their SIPs measures to 
prohibit emissions that would interfere with the reasonable progress 
goals set to protect Class I areas in other states. The regional haze 
rule includes a similar requirement. See 40 CFR 51.308(d)(3). EPA notes 
that on June 13, 2012, EPA determined that Virginia's regional haze SIP 
adequately prevents sources in Virginia from interfering with the 
reasonable progress goals adopted by other states to protect visibility 
during the first planning period. See 77 FR 35287. See also 77 FR 3691, 
3709 (January 25, 2012) (proposing approval of Virginia's regional haze 
SIP). As EPA's review of the Virginia regional haze SIP explains, the 
Commonwealth relied on enforceable emissions reductions already in 
place to address the impacts of Virginia on out-of-state Class I areas. 
The question of whether or not CAIR satisfies the BART requirements has 
no bearing on whether these measures meet the requirements of section 
110(a)(2)(D)(i)(II) with respect to visibility.
    In addition, with regard to the visibility protection aspect of 
section 110(a)(2)(J), as discussed in the TSD accompanying the NPR for 
this rulemaking action, EPA stated that it recognizes that states are 
subject to visibility and regional haze program requirements under part 
C of the Act. In the establishment of a new NAAQS such as the 2008 
ozone NAAQS, however, the visibility and regional haze program 
requirements under part C of Title I of the CAA do not change and there 
are no applicable visibility obligations under part C ``triggered'' 
under section 110(a)(2)(J) when a new NAAQS becomes effective. 
Therefore, EPA appropriately proposed approval of Virginia's 2008 8-
hour ozone infrastructure SIP revision for section 110(a)(2)(J). As 
discussed for section 110(a)(2)(D)(i)(II) earlier in this rulemaking 
action, and in the TSD for this rulemaking action, Virginia has 
submitted SIP revisions to satisfy the requirements of part C of Title 
I of the CAA.\4\ In summary, EPA believes that it appropriately 
proposed approval of Virginia's infrastructure SIP revision for the 
2008 ozone NAAQS for the structural visibility protection requirements 
in 110(a)(2)(D)(i)(II).
---------------------------------------------------------------------------

    \4\ The TSD is available online at www.regulations.gov, Docket 
ID Number EPA-R03-OAR-2013-0211.
---------------------------------------------------------------------------

    Comment 8: Sierra Club states that EPA should disapprove Virginia's 
2008 8-hour ozone infrastructure SIP revision under CAA sections 
110(a)(2)(D)(i)(II) (visibility prong) and 110(a)(2)(J) because, as the 
commenter asserts, Virginia failed to submit its ``5-year

[[Page 17051]]

Regional Haze Progress Report'' pursuant to 40 CFR 51.308(g) by the 
required date. Sierra Club references a July 17, 2008 SIP submittal 
from Virginia as the basis for determining when the five year progress 
report for regional haze was due.
    Response 8: EPA disagrees with the commenter that Virginia's five 
year progress report was overdue at the time EPA proposed to approve 
Virginia's infrastructure SIP for the 2008 ozone NAAQS. On July 2, 
2013, the date of the proposed approval of Virginia's SIP, Virginia was 
under no obligation to submit a five year progress report to meet the 
requirements in 40 CFR 51.308(g). On October 4, 2010, the Commonwealth 
of Virginia submitted as a SIP revision a comprehensive regional haze 
plan consisting of the following: Reasonable progress goals, 
calculations of baseline and natural visibility conditions, a long-term 
strategy for regional haze, BART determinations, and a monitoring 
strategy as required by 40 CFR 51.308(d) and (e). Previously, on July 
17, 2008, Virginia had submitted to EPA the first of five SIP revisions 
containing a permit and a BART determination addressing 40 CFR 
51.308(e) for the control of visibility-impairing emissions from a 
BART-eligible source in Virginia. Virginia submitted three additional 
SIP revisions containing permits and BART determinations addressing 40 
CFR 51.308(e) on March 6, 2009, January 14, 2010, and November 19, 
2010. A May 6, 2011 SIP revision also included a permit for a source 
for Virginia's reasonable progress goals required by 40 CFR 51.308(d). 
Although the July 2008, March 2009, January 2010, November 2010, and 
May 2011 SIP revision submittals from Virginia included BART 
determinations or a permit for reasonable progress goals for specific 
sources in Virginia as required by 40 CFR 51.308(e) (and 40 CFR 
51.308(d) for one source in the May 2011 SIP revision), EPA does not 
believe these five submittals were comprehensive regional haze SIP 
submittals intended to meet the requirements of 40 CFR 51.308(d) as 
well as (e). However, the October 4, 2010 SIP submittal from Virginia 
did contain such a comprehensive regional haze plan addressing 
reasonable progress goals, visibility conditions, a long-term strategy 
for regional haze, and a monitoring strategy as required by 40 CFR 
51.308(d).
    EPA believes the appropriate regional haze SIP submission which 
Virginia should be evaluating for its reasonable progress as required 
by 40 CFR 51.308(g) is the October 4, 2010 submission. Consequently, 
Virginia's five year progress report for 40 CFR 51.308(g) is not due 
until October 4, 2015, five years from the first regional haze SIP 
submittal which comprehensively addressed 40 CFR 51.308(d) and (e).
    Finally, EPA notes that on November 8, 2013 Virginia submitted its 
five year progress report for 40 CFR 51.308(g) significantly in advance 
of its October 4, 2015 due date. On February 11, 2014, EPA signed a 
separate rulemaking action proposing approval of that report. EPA's 
review of emissions data from Virginia's five year progress report 
shows that emissions of the key visibility-impairing pollutant for the 
southeast, SO2, continued to drop from 428,070 tons per year 
(tpy) in 2002 to 268,877 tpy in 2007 to 115,436 tpy in 2011. The 
emissions inventories also show similar substantial declines in other 
pollutants, particularly NOX, between 2007 and 2011.
    In summary, EPA believes that it appropriately proposed approval of 
Virginia's infrastructure SIP revision for the 2008 ozone NAAQS for the 
structural requirements in 110(a)(2)(D)(i)(II) because the progress 
report was not yet due on the date of EPA's publication of the 
proposal. Therefore, EPA finds Virginia has met the basic structural 
visibility protection requirements in 110(a)(2)(D)(i)(II). 
Additionally, as stated previously, the visibility and regional haze 
program requirements under part C of Title I of the CAA do not change 
with the establishment of a new NAAQS such as the 2008 ozone NAAQS, and 
there are no applicable visibility obligations under part C 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. Therefore, Virginia's obligation to submit a progress report 
in accordance with 40 CFR 51.308(g) is unrelated to 110(a)(2)(J), and 
EPA finds Virginia's 2008 ozone infrastructure SIP meets the 
obligations for 110(a)(2)(J).
    While considering this comment, EPA became aware of an inadvertent 
error in the table contained in 40 CFR 51.2420(e) which incorrectly 
referred to Virginia's SIP submission on January 14, 2010 as January 
14, 2012. EPA is correcting that error through this rulemaking action. 
EPA is also clarifying in the table in 40 CFR 51.2420(e) that 
Virginia's regional haze SIP submission was the October 4, 2010 
submission as amended by the May 6, 2011 SIP submission. EPA is 
correcting the table to indicate that the other four SIP submissions 
pertained to BART determinations as required by 40 CFR 51.308(e). For 
further clarification, EPA is adding to the table in 40 CFR 51.2420(d) 
the BART permits submitted on July 17, 2008, March 6, 2009, January 14, 
2010, and November 19, 2010 and the May 6, 2011 permit implementing 
requirements for reasonable progress as these permits are source-
specific requirements which were previously approved and incorporated 
into the Virginia SIP but were inadvertently not added to the table in 
40 CFR 51.2420(d) when approved with the regional haze SIP. See 77 FR 
35287.

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other

[[Page 17052]]

information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD, NSR, or Title V program consistent with the Federal requirements. 
In any event, because EPA has also determined that a state audit 
privilege and immunity law can affect only state enforcement and cannot 
have any impact on Federal enforcement authorities, EPA may at any time 
invoke its authority under the CAA, including, for example, sections 
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions 
of the state plan, independently of any state enforcement effort. In 
addition, citizen enforcement under section 304 of the CAA is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

    EPA is approving the following infrastructure elements or portions 
thereof of Virginia's SIP revision: 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 as a revision to the Virginia SIP. EPA is taking separate 
rulemaking action on the portions of section 110(a)(2)(C), (D)(i)(II), 
and (J) as they relate to Virginia's PSD program and section 
110(a)(2)(E)(ii) as it relates to section 128 (State Boards). This 
rulemaking action does not include section 110(a)(2)(I) of the CAA 
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 
three year submission deadline of section 110(a)(1), and will be 
addressed in a separate process. This rulemaking action also does not 
include proposed action on section 110(a)(2)(D)(i)(I), because this 
element, or portions thereof, is not required to be submitted by a 
state until the EPA has quantified a state's obligations. See EME Homer 
City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 
133 U.S. 2857 (2013). In addition, EPA is clarifying the table at 40 
CFR 52.2420(e) to indicate the date of the regional haze SIP submission 
and dates of supplemental SIP submissions for BART provisions.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 27, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action, which satisfies certain infrastructure 
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS 
for the Commonwealth of Virginia, may not be challenged later in 
proceedings to

[[Page 17053]]

enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Reporting and recordkeeping requirements, Ozone.

    Dated: March 7, 2014.
 W. C. Early,
 Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

0
2. Section 52.2420 is amended by:
0
a. In paragraph (d), adding the entries for Georgia Pacific 
Corporation, MeadWestvaco Corporation, and O-N Minerals Facility at the 
end of the table.
0
b. In paragraph (e):
0
i. Revising the table entry for Regional Haze Plan,
0
ii. Adding an entry for Regional Haze Plan Supplements and BART 
determinations after the existing entry for Regional Haze Plan,
0
iii. Adding an entry for Section 110(a)(2) Infrastructure Requirements 
for the 2008 Ozone NAAQS at the end of the table.
    The amendments read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (d) * * *

                                                        EPA-Approved Source Specific Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Permit/Order or
             Source name                  registration No.       State effective date        EPA Approval date            40 CFR Part 52 citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Georgia Pacific Corporation.........  Registration No. 30389.  6/12/08                   6/13/12                   Sec.   52.2420(d); BART determination
                                                                                         77 FR 35287                and permit.
MeadWestvaco Corporation............  Registration No. 20328.  2/23/09                   6/13/12                   Sec.   52.2420(d); BART and
                                                               5/6/11                    77 FR 35287                Reasonable Progress determinations
                                                                                                                    and permit.
O-N Minerals Facility...............  Registration No. 80252.  12/28/09                  6/13/12                   Sec.   52.2420(d); BART determination
                                                               11/19/10                  77 FR 35287                and permit.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                  Applicable
  Name of non-regulatory SIP     geographic or    State submittal   EPA approval date    Additional explanation
           revision                  area               date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan...........  Statewide.......  10/4/10            6/13/12..........  Sec.   52.2452(d);
                                                                    77 FR 35287......   Limited Approval
Regional Haze Plan             Statewide.......  .................  6/13/12..........  Sec.   52.2452(d);
 Supplements and BART                                               77 FR 35287......   Limited Approval
 determinations:
1. Georgia Pacific             ................  7/17/08
 Corporation;.
2a. MeadWestvaco Corporation;  ................  5/6/11
b. MeadWestvaco Corporation;.  ................  3/6/09
3. O-N Minerals Facility;....  ................  1/14/10
4. Revision to the O-N         ................  11/19/10
 Minerals Facility permit.
 
                                                  * * * * * * *
Section 110(a)(2)              Statewide.......  6/23/12            3/27/14 [Insert    This action addresses the
 Infrastructure Requirements                                         Federal Register   following CAA elements,
 for the 2008 Ozone NAAQS.                                           page number        or portions thereof:
                                                                     where the          110(a)(2) (A), (B), (C),
                                                                     document begins    (D)(i)(II), (D)(ii),
                                                                     and date].         (E)(i), (E)(iii), (F),
                                                                                        (G), (H), (J), (K), (L),
                                                                                        and (M) with the
                                                                                        exception of PSD
                                                                                        elements.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-06586 Filed 3-26-14; 8:45 am]
BILLING CODE 6560-50-P
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