DATE: 

SUBJECT: 

FROM: 

TO: 

THRU: 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION III 

1650 Arch Street 

Philadelphia, Pennsylvania 19103 

Technical Support Document for the Virginia State Implementation Plan for 

Section 110(a)(2) of the Clean Air Act Infrastructure Requirements for the 2012 

Fine Particulate Matter National Ambient Air Quality Standards 

Ellen Schmitt, Life Scientist 

Office of Air Program Planning 

File r n 

/ >-... ~ ~ f-.JA-IC.C, 

tfistina Fernandez Associate Director 

Office of Air Program Planning 

A. INTRODUCTION 

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

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

the 2012 fine particulate matter (PM2.s) national ambient air quality standards (NAAQS). 

B. BACKGROUND 

On January 15,2013, EPA promulgated a revised NAAQS for the annual primary and 

secondary PM2.s standard at a level of 12.0 micrograms per cubic meter (~-tg/m ), based on the 

annual arithmetic mean, averaged over three years. 78 FR 3086. 

Section llO(a) of the CAA requires states to submit state implementation plans (SIPs) to 

provide for the implementation, maintenance, and enforcement of a new or revised NAAQS 

within three years following the promulgation of such NAAQS or within such shorter period as 

EPA may prescribe. Section 110(a) of the CAA imposes the obligation upon states to make a 

SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may 

vary depending upon the facts and circumstances. In particular, the data and analytical tools 

available at the time the state develops and submits the SIP for a new or revised NAAQS affects 

the content of the submission. The contents of such SIP submissions may also vary depending 

upon provisions already contained in the state's existing SIP. More specifically, section 

110(a)(l) of the CAA provides the procedural and timing requirements for SIPs. Section 

110(a)(2) of the CAA lists specific elements that states must meet for "infrastructure" SIP 

requirements related to a newly established or revised NAAQS. For the 2012 PM2.s NAAQS, 
states typically have met many ofthe basic program elements required in section 110(a)(2) ofthe 

CAA through earlier SIP submissions in connection with previous particulate matter standards. 

C. EPA REQUIREMENTS 

As discussed above, for the 2012 PM2.s NAAQS, states must provide SIP submissions, or 

provide certification that the existing SIP contains provisions addressing relevant infrastructure 

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

D. STATE'S SUBMITTAL 

On July 16, 2015, Virginia provided a submittal to satisfy the requirements of section 

110(a)(2) of the CAA for the 2012 PM2.s NAAQS. This submittal addressed the following 

infrastructure elements: Section 11 O(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), 

(K), (L), and (M) ofthe CAA. EPA is proposing to approve Virginia's July 16, 2015 SIP 

submittal for the 2012 PM2.s NAAQS with the exception of the portion of the submittal 

addressing (D)(i)(II) (visibility protection). EPA will take separate action on the portion of the 

submittal addressing section 11 O(a)(2)(D)(i)(II) as it relates to visibility protection. The 

Commonwealth's infrastructure SIP submittal did not address element (I) which pertains to the 

nonattainment requirements of part D, title I of the CAA, since this element is not required to be 

submitted by the 3-year submission deadline of section 110(a)(l) ofthe CAA, and will be 

addressed in a separate process if applicable and necessary. Virginia's submittal did not address 

section 11 O(a)(2)(D)(i)(I) (interstate transport of emissions) ofthe CAA; therefore, EPA will 

take later, separate action on section 11 O(a)(2)(D)(i)(I) for the 2012 PM2.s NAAQS for Virginia. 

E. EVALUATION OF STATE SUBMITTAL 

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

Virginia's June 16, 2015 SIP submittal for the 2012 PM2.s NAAQS cites several state 

regulations relevant to PM2.s and its precursors that provide for enforceable emission limitations 

and other control measures, means or techniques, as well as schedules and timetables for 

compliance for these pollutants. These regulations include the following 9 V AC 5 chapters: 40 

(Existing Stationary Sources), 45 (Commercial and Consumer Products), 50 (New and Modified 

Stationary Sources), and 91 (Motor Vehicle Inspection and Maintenance in Northern Virginia), 

all of which have been approved into the Virginia SIP at 40 CFR 52.2420( c). 1 EPA finds that 

Virginia has established laws and regulations in its SIP applicable to the 2012 PM2.s NAAQS to 

meet the applicable requirements of section 110(a)(2)(A) ofthe CAA through the measures in 

these regulations. Therefore, EPA finds Virginia's infrastructure SIP submittal for the 2012 

1 9 V AC 5 chapter 40 includes emission standards for PM25 for many source categories including, but not limited 

to, coke ovens, asphalt concrete plants, chemical fertilizer manufacturing operations, petroleum refmery 

operations, primary and secondary metal operations, coal preparation plants, woodworking operations, and 

lightweight aggregate process operations. 

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PM2.s NAAQS meets the requirements of section 110(a)(2)(A) of the CAA. 

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

part D of title I of the CAA to be governed by the submission deadline of section 11 0( a)(1 ). 

Nevertheless, the Commonwealth of Virginia may have included some previously EPA approved 

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) ofthe CAA. For the purposes of 

this action, EPA has reviewed Virginia's 11 0( a )(2) SIP submittal, which may include rules 

originally submitted in response to part D, or references thereto, solely for the purposes of 

determining whether such submittals support a finding that the Commonwealth has met the basic 

infrastructure requirements under section 110(a)(2) ofthe CAA. 

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

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

operations at a facility. EPA also does not intend to reapprove any existing Virginia SIP 

provisions which may address excess emissions during SSM by this infrastructure SIP 

rulemaking. EPA believes that a number of states have SSM provisions which are contrary to 

the CAA and existing EPA guidance. On June 12, 2015, EPA issued a finding that certain SIP 

provisions in 36 states (applicable in 45 statewide and local jurisdictions) are substantially 

inadequate to meet CAA requirements and thus issued a "SIP call" for each of those 36 states. 

80 FR 33840. See also 78 FR 12460 (February 22, 2013) (proposed finding for SIP call). 

Virginia was among the 36 states for the SIP call based on one regulatory provision in its SIP. 

EPA established a due date for states subject to the SIP call action to submit corrective SIP 

revisions. The June 12,2015 final action also embodied EPA's updated SSM policy (2015 SSM 

Policy) as it applies to SIP provisions.2 The 2015 SSM Policy provides guidance to states for 

compliance with CAA requirements for SIP provisions applicable to excess emissions during 

SSM events. Thus the Agency is addressing such state regulations in a separate rulemaking and 

not during review of infrastructure SIP submittals. In the meantime, EPA encourages any state 

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

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

rules (nor reapprove any such rules already in the Virginia SIP) with regard to director's 

discretion or variance provisions. EPA believes that a number of states have such provisions 

which are contrary to the CAA and existing EPA guidance (see 80 FR 33840) and EPA is 

addressing such state regulations in a separate rulemaking via its June 12, 2015 SIP call. In the 

meantime, EPA encourages any state having a director's discretion or variance provision which 

is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as 

possible. 

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

Section 110(a)(2)(B) of the CAA requires each plan to provide for the establishment and 

2 Previous EPA guidance on SSM in SIPs was in the August 11, 1999 Steven Herman and Robert Perciasepe 

Guidance Memorandum, "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown." 

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operation of appropriate devices, methods, systems and procedures to monitor, compile and 

analyze data on ambient air quality and to make such data available to EPA upon request. 

EPA has determined that 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 multistation network of ambient monitors 

throughout the Commonwealth to measure ambient air quality levels for comparison to each 

NAAQS as required by 40 CFR 58. The locations ofthese monitoring stations can be found in 

Virginia's Annual Network Review for 2015, the most recent year available at the time of this 

evaluation. EPA approved Virginia's 2015 Annual Air Quality Monitoring Network Design 

Plan as meeting 40 CFR 58.10 on November 12, 2015. 

Virginia provides 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 58, 

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

of 40 CFR 58, appendix E. The data is submitted to the EPA's Air Quality System (AQS) 

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

58. Therefore, EPA finds Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS 

meets the requirements of section 11 O(a)(2)(B) the CAA. 

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

Section 110(a)(2)(C) of the CAA requires a state's plan to include a program to provide 

for enforcement of measures in 110(a)(2)(A) ofthe CAA and for regulation of modification and 

construction of stationary sources, including a permit program as required in parts C and D of 

title I of the CAA. 

EPA finds that Virginia has established and currently operates a program in order to meet 

the applicable requirements of section 110(a)(2)(C) of the CAA. This program provides for the 

enforcement, as may be necessary or appropriate, of the emission limitations and other control 

measures, means, or techniques, as well as schedules and time tables for compliance as 

previously discussed for section 11 O(a)(2)(A). Virginia states in its infrastructure SIP submittal 

that enforcement provisions and permit provisions are found in those portions of 9 V AC 5 

chapter 80 (Permits for Stationary Sources) and part V (Enforcement) of9 VAC 5 chapter 170 

(General Administration) which are both identified as part of the federally approved Virginia SIP 

at 40 CFR 52.2420. Other aspects for enforcement are found in the source monitoring, source 

testing and test methods, and record keeping and reporting provisions of 9 V AC 5 chapters 40 

(Existing Stationary Sources), and 50 (New and Modified Stationary Sources), which are also 

part of the federally approved Virginia SIP. 

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

in 9 V AC 5-80-10 (New and Modified Stationary Sources) and 9 V AC 5-80-11 (Stationary 

source permit exemption levels) which regulate certain modifications and construction of 

stationary sources within areas covered by its SIP as necessary to assure the NAAQS are 

achieved. EPA finds Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS meets 

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

sources and minor modifications. 

In addition, section 110(a)(2)(C) ofthe CAA requires each state's SIP to include a 

program to provide for the regulation of the modification and construction of any stationary 

source within the areas covered by the plan including a permit program as required in part C of 

title I of the CAA. In Virginia, construction and modification of stationary sources are covered 

under article 8, Permits for Major Stationary Sources and Major Modifications Locating in 

Prevention of Significant Deterioration Areas (9 VAC 5-80-1605 et seq.) which is included in 

the federally approved Virginia SIP. See 40 CFR 52.2420(c). Article 8 also provides that 

construction and modification of major stationary sources will not cause or contribute to a 

violation of any NAAQS (9 VAC 5-80-1635, Ambient Airlncrements and 9 VAC 5-80-1645, 

Ambient Air Ceilings) and requires application of best available control technology (BACT) to 

new or modified sources (9 V AC 5-80-1705, Control Technology Review). 

On February 25,2014, EPA approved revisions to Virginia's prevention of significant 

deterioration (PSD) permit program pertaining to preconstruction permitting requirements for 

sources ofPM2.s. See 79 FR 10377. With these revisions fully approved, EPA finds Virginia's 

SIP approved PSD program now contains all of the emission limitations, control measures, and 

other program elements required by the CAA in part C of title I and by 40 CFR 51.165 and 

51.166 for all required pollutants (and "regulated NSR pollutants"), including PM2.s. !d. 

With respect to element C, EPA interprets the CAA to require each state to make an 

infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency 

has a complete PSD permitting program meeting the current requirements for all regulated NSR 

pollutants. Virginia has shown that it currently has a PSD program in place that covers all 

regulated NSR pollutants, including greenhouse gases (GHGs). 

On June 23, 2014, the United States Supreme Court issued a decision addressing the 

application ofPSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. 

Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may 

not treat GHGs as an air pollutant for purposes of determining whether a source is a major source 

required to obtain a PSD permit. The Court also said that the EPA could continue to require that 

PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain 

limitations on GHG emissions based on the application of BACT. In order to act consistently 

with its understanding of the Court's decision pending further judicial action to effectuate the 

decision, the EPA is not continuing to apply EPA regulations that would require that SIPs 

include permitting requirements that the Supreme Court found impermissible. Specifically, EPA 

is not applying the requirement that a state's SIP approved PSD program require that sources 

obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the 

potential to emit above the major source thresholds, or (ii) for which there is a significant 

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emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 

51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules in light ofthe Supreme 

Court opinion. In addition, EPA anticipates that many states will revise their existing SIP 

appruwd PSD programs in light ofthe Supreme Court's decision. The timing and content of 

subsequent EPA actions with respect to the EPA regulations and state PSD program approvals 

are expected to be informed by additional legal process before the United States Court of 

Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to 

have revised their PSD programs for purposes of infrastructure SIP submissions and is only 

evaluating such submissions to assure that the state's program correctly addresses GHGs 

consistent with the Supreme Court's decision. 

At present, EPA has determined the Virginia's SIP is sufficient to satisfy element C with 

respect to GHGs because the PSD permitting program previously approved by EPA into the SIP 

continues to require that PSD permits (otherwise required based on emissions of pollutants other 

than GHGs) contain limitations on GHG emissions based on the application of BACT. Although 

the approved Virginia PSD permitting program may currently contain provisions that are no 

longer necessary in light of the Supreme Court decision, this does not render the infrastructure 

SIP submission inadequate to satisfy element C. The SIP contains the necessary PSD 

requirements at this time, and the application of those requirements is not impeded by the 

presence of other previously approved provisions regarding the permitting of sources of GHGs 

that EPA does not consider necessary at this time in light of the Supreme Court decision. 

Accordingly, the Supreme Court decision does not affect EPA's proposed approval of Virginia's 

infrastructure SIP as required by 110(a)(2)(C) and part C oftitle I ofthe CAA. 

Based upon EPA's review of the infrastructure SIP submittal for the 2012 PM2.s NAAQS, 

EPA finds that the Virginia SIP meets the obligations in section 11 O(a)(2)(C) of the CAA because 

the Virginia SIP includes a fully approved minor NSR program and a PSD permitting program 

meeting requirements in the CAA and 40 CFR part 51, subpart I (including, inter alia, 40 CFR 

51.160, 51.1.61, 51.165 and 51.166) and because the SIP includes provisions for enforcement of 

measures identified for 11 O(a)(2)(A). 

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

Virginia's July 16, 2015 infrastructure SIP submission for the 2012 PMz.s NAAQS did 

not include a component to address section 110(a)(2)(D)(i)(I) of the CAA relating to interstate 

transport of emissions. Therefore, in this rulemaking action, as there is no SIP submission for 

EPA to review for this element, EPA is not proposing to act on element (D)(i)(I) for Virginia's 

July 16, 2015 submission for the 2012 PMz.s NAAQS. EPA will take later, separate action with 

respect to this element and any potential obligation Virginia may have. 

5. Section 110(a)(2}(D)(i)(Il) 

Section 110(a)(2)(D)(i)(II) ofthe CAA consists ofwhat EPA refers to as prong 3 

(interference with PSD) and prong 4 (interference with visibility protection). Prong 3 requires 

that each state's SIP must include provisions which will prevent emissions from sources within 

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the state from interfering with the measures required to be in SIP by another state for 

implementing PSD. 

Under 40 CFR 51.166(k)(1), each state's SIP must include requirements for a source 

impact analysis which requires the owner/operator of each proposed source or modification to 

demonstrate that the allowable emissions increase from the proposed project will not cause or 

contribute to air pollution in violation of any NAAQS in any air quality control region. The 

requirements set forth at 40 CFR 51.166(k)(1) are consistent with, and sufficient to meet, the 

requirements of prong 3. In Virginia, the equivalent requirement to 40 CFR 51.166(k)(1) is 

codified at 9 V AC 5-80-1715, which has been incorporated into the federally enforceable 

Virginia SIP. In addition, as discussed above in detail for section 110(a)(2)(C), Virginia has an 

approved PSD permitting program in its SIP which meets requirements of the CAA and 40 CFR 

51.165 and 51.166 for a permit program meeting part C of title I of the CAA. Thus, EPA finds 

Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS meets requirements in section 

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

With respect to prong 4, section 110(a)(2)(D)(i)(II) of the CAA 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 a previous 

SIP revision addressing regional haze requirements, submitted on October 4, 2010, Virginia 

relied upon the Clean Air Interstate Rule (CAIR) for best available retrofit technology (BART) 

and regional progress for electrical generating units (EGUs) in order to meet the regulatory 

requirements set forth in sections 169A and 169B ofthe CAA.3 Because the United States Court 

of Appeals for the D.C. Circuit (D.C. Circuit) had remanded CAIR to EPA in 2008 and EPA had 

promulgated the Cross State Air Pollution Rule (CSAPR) in response, EPA finalized a limited 

approval of the October 2010 Virginia regional haze SIP, indicating that, except for its reliance 

on CAIR for BART, the SIP met CAA requirements for the first planning period of the regional 

haze program.4 See 77 FR 35287 (June 13, 2012). 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 ofthe SIP was not appropriate in light ofthe D.C. 

Circuit's remand of CAIR and the uncertain remaining period of operation of CAIR. EPA also 

finalized a limited federal implementation plan (FIP) for Virginia, which merely substituted 

reliance on EPA's more recent CSAPR nitrogen oxide (NOx) and sulfur dioxide (S02) trading 

programs for EGUs for the SIP's reliance on CAIR. See 77 FR 33642 (June 7, 2012). 

In describing how its infrastructure SIP submission for the 2012 PM2.s NAAQS meets 

prong 4, the Commonwealth referred to a separate SIP submittal (also dated July 16, 2015) 

regarding regional haze in which Virginia states its intention to revise its regional haze SIP. In 

the July 16, 2015 regional haze SIP revision submittal, Virginia seeks to replace its regional haze 

3 On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of SOz and NOx from 

EGUs to limit the interstate transport of these pollutants and the ozone and fme particulate matter they form in the 

atmosphere. 70 FR 25162. 4 See North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (remanding CAIR). In 2011, CSAPR was 

issued by EPA to replace CAIR and to help states reduce air pollution and attain CAA standards. See 76 FR 

48208 (August 8, 2011) (fmal rule). CSAPR requires substantial reductions of SOz and NOx emissions from 

EGUs in 28 states in the eastern United States that significantly contribute to downwind nonattainment of the 

1997 PMz.s and ozone NAAQS and 2006 PMz.s NAAQS. 

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SIP reliance upon CAIR for certain CAA haze requirements with reliance upon CSAPR for the 

same requirements. EPA has not yet acted upon the July 16, 2015 Virginia regional haze SIP 

revision. Thus, the 2010 regional haze SIP from Virginia still has limited approval. At this time, 

therefore, EPA is not reviewing the Virginia infrastructure SIP submission for ihe prong 4 

element (110(a)(2)(D)(i)(II)(visibility protection)) for the 2012 PMz.s NAAQS. 

In conclusion, EPA is not proposing action at this time on Virginia's infrastructure SIP 

submission regarding section 110(a)(2)(D)(i)(II) of the CAA for visibility protection for the 2012 

PMz.s NAAQS. Although Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS 

contains provisions addressing this element, EPA will take separate action on Virginia's 

infrastructure submittal for this specific portion of element (D)(i)(II) at a later date. EPA 

however does find the Virginia infrastructure SIP submission meets requirements regarding 

section 110(a)(2)(D)(i)(II) of the CAA for PSD (prong 3) for the 2012 PMz.s NAAQS. 

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

Section 110(a)(2)(D)(ii) ofthe CAA requires the SIP to contain adequate provisions to 

ensure compliance with applicable requirements of sections .115 and 126 of the CAA relating to 

interstate and international pollution abatement. 

EPA finds that the Virginia infrastructure SIP submission meets obligations for section 

126 of the CAA, "Interstate Pollution Abatement," which directs each SIP to include provisions 

requiring a new or modified source to notify neighboring states of potential impacts from that 

source. Major stationary sources of PMz.s in Virginia are currently subject to PSD and NSR 

permitting programs which are included in the Virginia SIP and have been approved by EPA as 

meeting CAA requirements for parts C and D permit programs. The provisions to implement 

PSD for part C oftitle I of the CAA are in article 8 (Permits for Major Stationary Sources and 

Major Modifications Locating in Prevention of Significant Deterioration Areas) of part II of9 

VAC 5 chapter 80 (Permits for Stationary Sources) and in 9 VAC 5 chapter 85 (Permits for 

Stationary Sources Subject to Regulation), which have both been approved in Virginia's SIP in 

40 CFR 52.2420(c). Additionally, 9 VAC 5-80-1775 specifically requires notification to local 

air pollution control agencies and any state whose lands may be affected by emissions from the 

source or modification. 

EPA concurs with Virginia that the Commonwealth has no currently pending obligations 

pursuant to section 126(b) of the CAA related to the 2012 PM2.s NAAQS. Additionally, there 

are no findings under section 115 of the CAA, "International Air Pollution", against Virginia 

with respect to the 2012 PMz.s NAAQs. EPA finds the approved Virginia SIP has adequate 

provisions insuring future compliance with the requirements of sections 126 and 115 of the CAA 

as may be necessary. 

Based upon EPA's review ofthe submittal, EPA finds Virginia's infrastructure SIP 

submittal for the 2012 PM2.s NAAQS meets the requirements of section 110(a)(2)(D)(ii) of the 

CAA. 

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

Pursuant to section 110(a)(2)(E) of the CAA, a SIP should provide: (1) Necessary 

assurances the state has adequate personnel, funding and authority to carry out the SIP; (2) 

requirements that the state complies with section 128 of the CAA regarding state boards; and (3) 

necessary assurances the state has responsibility to ensure adequate implementation of the SIP 

where the state relies on a local or regional government or agency for implementing any SIP 

prOVISIOn. 

EPA finds Virginia has demonstrated it has adequate personnel to carry out its 

implementation plan with respect to the 2012 PMz.s NAAQS. The Code of Virginia title 10.1 

chapter 13, "Air Pollution Control Board" gives broad authority to develop, implement and 

enforce the SIP. The resources to carry out the SIP are provided through Virginia's General 

Funds, title V funds, and the section 103 and 105 grant process. Title V fees are collected under 

the authority of Code ofVirginia title 10.1-1322. Virginia's title V fee requirements are located 

in article 2 (Permit Program Emissions Fees for Stationary Sources) of 9 V AC 5-80 (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 submittal for the 2012 

PMz.s NAAQS meets the requirements of section 110(a)(2)(E)(i) ofthe CAA. 

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

EPA finds that the Commonwealth complies with the requirements respecting state 

boards under section 128 of the CAA. Section 128(a) requires SIPs to contain provisions that: 

(1) Any board or body which approves permits or enforcement orders under the CAA shall have 

at least a majority of its members represent the public interest and not derive any significant 

portion of their income from persons subject to permits or enforcement orders under the CAA; 

and (2) any potential conflict of interest by members of such board or body or the head of an 

executive agency with similar powers be adequately disclosed. 

For section 128( a)(1) of the CAA, Virginia previously submitted the provisions of section 

10.1-1302 ofthe Code of Virginia as a SIP revision on June 11, 2010; this SIP revision was 

subsequently approved by EPA on October 11, 2011. See 76 FR 62635. 

To address requirements in section 128(a)(2) of the CAA, Virginia submitted the 

provisions of9 VAC 5-170-210 in a SIP revision submitted on December 22,2014. This 

regulation requires members ofVirginia's State Air Pollution Control Board (or designated 

representatives) and the director ofVADEQ (or a designated representative) to disclose any 

potential conflicts of interest. The regulation also requires that such disclosures be made 

annually through the applicable forms set forth in section 2.2-3100 et seq. of the Code of 

Virginia. EPA approved 9 V AC 5-170-210 for the Virginia SIP as addressing requirements in 

sections 128(a)(2) and 110(a)(2)(E)(ii) of the CAA on April2, 2015. 80 FR 17692. 

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EPA finds that the Virginia infrastructure SIP submittal adequately addresses all 

requirements of section 128 and section 11 O(a)(2)(E)(ii) of the CAA. 

9. Section 110(a)(2)(E}(iji) 

Virginia states in its infrastructure SIP submittal that the Commonwealth does not rely on 

localities for specific SIP implementation. Therefore, EPA finds Virginia's infrastructure SIP 

submittal for the 2012 PM2.s NAAQS meets the requirements of section 11 O(a)(2)(E)(iii) of the 

CAA. 

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

According to section 110(a)(2)(F) ofthe CAA, a SIP shall require as prescribed by EPA 

the installation, maintenance and replacement of equipment to monitor emissions by owners or 

operators of stationary sources, periodic reports on emissions from such sources, and correlation 

of such emission reports by the state with emission limitations established by the CAA. 

According to Virginia's infrastructure SIP submission for the 2012 PM2.s NAAQS, the Virginia 

SIP includes provisions addressing requirements of section 11 0( a)(2)(F) of the CAA. 

Specific monitoring requirements governing the control of air pollution are found 

throughout the Virginia Administrative Code, including 9 VAC 5 chapters 20, 40, 50, and 80. 

These regulations are included in Virginia's approved SIP and are listed in 40 CPR 52.2420 and 

also apply to the 2012 PM2.s NAAQS. 

Requirements for periodic reports on the nature and amount of emissions, as well as other 

emissions related data are included in 9 V AC 5-20-160 (Registration). This data is also required 

by part I of 9 V AC 5 chapter 40 (Existing Stationary Sources) as well as parts I and II of 9 V AC 

5 chapter 50 (New and Modified Stationary Sources). The correlation of such reports is included 

in part I of 9 V AC 5 chapter 40 and part II of 9 V AC 5 chapter 50. In addition, 9 V AC 5-170-60 

(Availability of Information) of part II of 9 V AC 5 chapter 170 (Regulation for General 

Administration) requires that these reports be publicly available. These SIP provisions are 

approved under 40 CFR 52.2420 as part ofthe Virginia SIP. 

Therefore, EPA finds Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS 

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

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

Section 110(a)(2)(G) of the CAA requires states to provide its authority to address 

activities causing imminent and substantial endangerment to public health, including 

contingency plans to implement emergency episode provisions in their SIPs. According to 

Virginia's infrastructure SIP submission for the 2012 PM2.s NAAQS, the Commonwealth has 

provisions addressing requirements of section 110(a)(2)(G) of the CAA. 

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. Section 10.1-1309 B under the 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 umeasonably affecting the public health, safety or welfare; the health 

of animal or plant life; or property. Section 10.1-1309.1 authorizes the board to issue special 

orders requiring plans to abate, control, prevent, remove, or contain any substantial and 

imminent threat to public health or the environment that is reasonably likely to occur if such 

source ceases operations. 

EPA's regulations at 40 CFR part 51, subpart H (40 CFR 51.150-.153) provide specific 

ambient levels for contingency plan purposes for most NAAQS. Virginia's emergency plans are 

found in 9 V AC 5 chapter 70 (Air Pollution Prevention) and are SIP approved in 40 CFR 

52.2420. These plans meet current requirements as promulgated in 40 CFR part 51, subpart H. 

For the 2006 PM2.s NAAQS, EPA had not promulgated regulations that provide the ambient 

levels to classify different priority levels, and thus EPA recommended these levels through 

guidance. 5 In promulgating the 2012 PM2.s NAAQS, EPA retained the pre-existing level of 500 

flg/m3

, 24-hour average, for the Air Quality Index (AQI) value of 500 and did not establish a 

significant harm level (SHL) for PM2.s. In the absence of a SHL, EPA continues to believe that 

the central components of a contingency plan would be to reduce emissions from the PM2.s 

source(s) at issue and public communication as needed. In addition, if an air agency believes, 

based on its inventory of PM2.s sources and historic ambient monitoring data, that it does not 

need a more specific contingency plan beyond having authority to restrain any source from 

causing or contributing to an imminent and substantial endangerment, then the· air agency could 

provide such a rationale as part of its infrastructure SIP submission. 

In the September 25, 2009 guidance for the 2006 PM2.s NAAQS, EPA suggested that 

states that had monitored and recorded 24-hour PM2.s levels greater than 140.4 flg/m3, using the 

most recent three years of data, should develop emergency episode plans for the areas with the 

monitored values. EPA also suggested that, if these levels had not been exceeded, states could 

certify that they had adequate general emergency authority to address PM2.s episodes. 

In its July 16, 2015 infrastructure SIP submission for the 2012 PM2.s NAAQS, the 

Commonwealth indicates that it has never monitored and recorded a 24-hour PM2.slevel greater 

than 140.4 f.t.g/m3 since 2006. Virginia asserts that because section 10.1-1309 under the Code of 

Virginia provides the Commonwealth with sufficient emergency power, Virginia does not need 

specific emergency episode plans for the 2012 PM2.s NAAQS. 

In this rulemaking action, in reviewing specifically Virginia's infrastructure SIP for the 

2012 PM2.s NAAQS for element G of section 110(a)(2) of the CAA, EPA reviewed ambient 

PM2.s monitor data for Virginia for years 2006-2015. EPA agrees that Virginia has not 

5 See Memorandum from William T. Harnett, Director, Air Quality Policy Division, Office of Air Quality and 

Planning Standards, to Regional Air Division Directors, Regions I through X, "Guidance on SIP Elements 

Required Under Sections IIO(a)(l) and (2) for the 2006 Fine Particle (PM2.s) National Ambient Air Quality 

Standards (NAAQS)." (September 25,2009 Guidance). This guidance can be found at: 

www.epa.gov/ttn/caaa/tl/memoranda/20090925 harnett pm25 sip 11 Oa 12.pdf. 

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. 

. . 

· .. 

monitored any values above the 140.4 ~-tg/m level for PM2.s for the past ten years. Because this 

level was not exceeded in any area of the Commonwealth and because Virginia has demonstrated 

that it has appropriate general emergency powers to address PM 2.s related episodes and PM2.s 

somces, EPA finds no specific emergency episode plans are necessary at this time for PM2.s. 

Based upon EPA's review of the above referenced infrastructure SIP submittal, and air 

quality data (put into record), EPA finds that the Commonwealth's infrastructure SIP meets the 

requirements in 110(a)(2)(G) of the CAA for the 2012 PM2.s NAAQS. 

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

Section 110(a)(2)(H) of the CAA requires that SIPs provide for the revision of the plan 

from time to time as may be necessary to take account of revisions of the NAAQS or the 

availability of improved or more expeditious methods of attaining the standards and to revise the 

plan whenever EPA finds that the SIP is substantially inadequate to attain the NAAQS or to 

otherwise comply with any additional requirements under the CAA. 

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

of Virginia, title 10.1, chapter 13, Air Pollution Control Board, specifically 10.1-1306. This 

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

quality that will protect human health, welfare, and safety. Also, section 1 0.1-13 07 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 ofVirginia's Administrative Process Act. 

The infrastructure SIP submission also provides EPA with adequate assurances that 

Virginia will review and revise its SIP from time to time as may be necessary to take account of 

revisions of such primary or secondary NAAQS or the availability of improved or more 

expeditious methods of attaining such standards and, whenever the Administrator finds, on the 

basis of information available to the Administrator, that the plan is substantially inadequate to 

attain the NAAQS which it implements, or to otherwise comply with any additional requirements 

established under the CAA. Therefore, EPA finds Virginia's infrastructure SIP submittal for the 

2012 PM2.s NAAQS meets the requirements of section 110(a)(2)(H) of the CAA. 

13. Section 110(a)(2)(1) 

Virginia's July 16, 2015 SIP submittal for the 2012 PM2.s NAAQS did not include or 

address section 11 0( a)(2)(I) of the CAA which pertains to the nonattainment requirements of part 

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

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

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

and acted upon through a separate process as required. 

12 
14. Section 110(a)(2)(J) 

Section 110(a)(2)(J) of the CAA states that each plan shall meet the applicable 

requirements of section 121 (relating to consultation), section 127 (relating to public notification) 

and part C (relating to PSD and visibility control). 

In regards to meeting section 121 of the CAA, relating to consultation, all Virginia SIP 

revisions undergo public notice and opportunity for public hearing, which provides for comment 

by the public and includes local political subdivisions. Further, all regulations promulgated in 

Virginia are subject to the Administrative Process Act (Code of Virginia, title 2.2, 

Administration of Government, chapter 40). Regulations promulgated by the State Air Pollution 

Control Board are also governed by 9 VAC 5 chapter 5, Public Participation Guidelines. 

Virginia also provides opportunity for consultation with federal land managers through 

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

of Significant Deterioration Areas), part II of 9 V AC 5 chapter 80 (Permits for Stationary 

Sources) specifically through 9 VAC 5-80-1765 (Sources Affecting Federal Class I AreasAdditional Requirements). 

Regarding section 127 of the CAA, relating to public notification, air quality data from 

Virginia's monitoring network is published on the VADEQ website. As part of the section 105 

grant process, Virginia is required to submit monitoring data to the AQS in a timely manner. 

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

monitoring locations, exceedances, and violations of standards. 

As discussed in more detail for section 110(a)(2)(C) requirements, in Virginia, 

construction and modification of stationary sources are covered under article 8, Permits for 

Major Stationary Sources and Major Modifications Locating in Prevention of Significant 

Deterioration Areas (9 VAC 5-80-1605 et seq.) which is included in the approved federally 

approved Virginia SIP. See 40 CFR 52.2420(c). Article 8 also provides that construction and 

modification of major stationary sources will not cause or contribute to a violation of any 

NAAQS (9 VAC 5-80-1635, Ambient Air Increments and 9 VAC 5-80-1645, Ambient Air 

Ceilings) and requires application of BACT to new or modified sources (9 VAC 5-80-1705, 

Control Technology Review). EPA finds Virginia's SIP approved PSD program contains all of 

the emission limitations, control measures, and other program elements required by the CAA in 

part C of title I and by 40 CFR 51.165 and 51.166 for all required pollutants (and "regulated 

NSR pollutants"), including PM2.s. See 79 FR 10377 (approving revisions to Virginia's PSD 

program related to requirements for PM2.s). 

With respect to element J, EPA interprets the CAA to require each state to make an 

infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency 

has a complete PSD permitting program meeting the current requirements for all regulated NSR 

pollutants. Virginia has shown that it currently has a PSD program in place that covers all 

regulated NSR pollutants, including GHGs. 

13 
.· 

On June 23, 2014, the United States Supreme Court issued a decision addressing the 

application ofPSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. 

Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may 

not treat GHGs as an air pollutant for purposes of determining whether a source is a major source 

required to obtain a PSD permit. The Court also said that the EPA could continue to require that 

PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain 

limitations on GHG emissions based on the application of BACT. In order to act consistently 

with its understanding of the Court's decision pending further judicial action to effectuate the 

decision, the EPA is not continuing to apply EPA regulations that would require that SIPs 

include permitting requirements that the Supreme Court found impermissible. Specifically, EPA 

is not applying the requirement that a state's SIP approved PSD program require that sources 

obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the 

potential to emit above the major source thresholds, or (ii) for which there is a significant 

emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 

51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules in light of the Supreme 

Court opinion. In addition, EPA anticipates that many states will revise their existing SIP 

approved PSD programs in light of the Supreme Court's decision. The timing and content of 

subsequent EPA actions with respect to the EPA regulations and state PSD program approvals 

are expected to be informed by· additional legal process before the United States Court of 

Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to 

have revised their PSD programs for purposes of infrastructure SIP submissions and is only 

evaluating such submissions to assure that the state's program correctly addresses GHGs 

consistent with the Supreme Court's decision. 

At present, EPA has determined the Virginia's SIP is sufficient to satisfy element J with 

respect to GHGs because the PSD permitting program previously approved by EPA into the SIP 

continues to require that PSD permits (otherwise required based on emissions of pollutants other 

than GHGs) contain limitations on GHG emissions based on the application of BACT. Although 

the approved Virginia PSD permitting program may currently contain provisions that are no 

longer necessary in light of the Supreme Court decision, this does not render the infrastructure 

SIP submission inadequate to satisfy element J. The SIP contains the necessary PSD 

requirements at this time, and the application of those requirements is not impeded by the 

presence of other previously approved provisions regarding the permitting of sources of GHGs 

that EPA does not consider necessary at this time in light of the Supreme Court decision. 

Accordingly, the Supreme Court decision does not affect EPA's proposed approval ofVirginia's 

infrastructure SIP as to the requirements of element J. 

With regard to the visibility protection aspect of section 110(a)(2)(J) ofthe CAA, EPA 

recognizes that states are subject to visibility and regional haze program requirements under part 

C ofthe CAA (which includes sections 169A and 169B). In the event ofthe establishment of a 

new NAAQS, however, the visibility and regional haze program requirements under part C do 

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

"triggered" under section 110(a)(2)(J) of the CAA when a new NAAQS becomes effective. On 

September 13, 2013, EPA issued the Guidance on Irifrastructure State Implementation Plan 

(SIP) Elements under Clean Air Act Sections IIO(a)(J) and JIO(a)(2) (Infrastructure Guidance). 

According to the Infrastructure Guidance, EPA explained state air agencies do not need to 

14 
address the visibility subelement of element J in an infrastructure SIP submission. Infrastructure 

Guidance at p. 55. Virginia's infrastructure SIP submittal for the 2012 PMz.s NAAQS 

appropriately did not address requirements under section 110(a)(2)(J) of the CAA relating to 

visibility in accordance with EPA's Infrastructure Guidance. 

EPA finds Virginia's infrastructure SIP submittal for the 2012 PMz.s NAAQS meets the 

requirements of section 110(a)(2)(J) ofthe CAA relating to consultation, public notification, and 

part C of title I of the CAA. 

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

Section 110(a)(2)(K) of the CAA requires that each SIP provide for: (i) The performance 

of such air quality modeling as EPA may prescribe for the purpose of predicting the effect on 

ambient air quality of any emissions of any air pollutant for which EPA has established a 

NAAQS; and (ii) the submission, upon request, of data related to such air quality modeling to 

EPA. 

EPA finds 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 such modeling. Article 8, Permits for Major Stationary Sources and Major 

Modifications Locating in Prevention of Significant Deterioration Areas (9 V AC 5-80-1605 et 

seq.) of9 VAC 5-80 (Permits for Stationary Sources) contains requirements for pre-construction 

and post-construction monitoring and modeling. 9 VAC 5-80-1715 (Source Impact Analysis), 9 

VAC 5-80-1725 (Air Quality Models), ·and 9 VAC 5-80-1735 (Air Quality Analysis) provide 

detail on modeling requirements. Article 8 is included as part of the Virginia SIP as noted in 40 

CFR 52.2420. Virginia will continue to submit to EPA the air quality modeling data as part of 

Virginia's relevant SIP submissions, permit actions, and through federal grant commitments or in 

other ways that EPA may request. Therefore, EPA finds Virginia's infrastructure SIP submittal 

for the 2012 PMz.s NAAQS meets the requirements of section 11 O(a)(2)(K) of the CAA. 

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

Section 110(a)(2)(L) of the CAA requires SIPs to require the owner or operator of each 

major stationary source to pay to the permitting authority, as a condition of any permit by the 

CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any 

application for such a permit; and (ii) if the owner or operator receives a permit for such source, 

the reasonable costs of implementing and enforcing the terms and conditions of any such permit, 

until such fee requirement is superseded with respect to such sources by EPA's approval of a fee 

program under title V of the CAA. 

EPA finds Virginia's submission adequately addresses this requirement by explaining 

that these requirements are located in article 2, Permit Program Fees for Stationary Sources (9 

VAC 5-80-310 et seq.) of9 VAC 5-80 (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 

15 
part 70, Approval Status of State and Local Operating Permits Programs. Virginia's title V 

program fees are used to fund programs such as the permitting of new and existing sources of air 

pollution, compliance and enforcement of sources of air pollution including program 

development and PM2.s plan implementation as discussed above in section 110(a)(2)(E). These 

fees cover the reasonable costs of reviewing and acting upon permits and implementing and 

enforcing the permit conditions. 

Therefore, EPA finds Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS 

meets the requirements of section 11 O(a)(2)(L) of the CAA. 

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

Section 110(a)(2)(M) of the CAA requires states to provide for consultation and 

participation in SIP development by local political subdivisions affected by the SIP. 

According to Virginia's infrastructure SIP submission, all of Virginia's SIP revisions 

undergo public participation following 40 CFR 51.1 02 and provide for comment by the public 

including local political subdivisions. Additionally, the Code ofVirginia under section 10.1-

1307A requires advising, consulting, and cooperating with all agencies ofthe 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 ofVirginia, title 2.2, Administration of Government, 

chapter 40). Regulations promulgated by the State Air Pollution Control Board are also 

governed by 9 V AC 5 chapter 5, Public Participation Guidelines. Therefore, EPA finds 

Virginia's infrastructure SIP submittal for the 2012 PM2.s NAAQS meets the requirements of 

section 110(a)(2)(M) ofthe CAA. 

F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION 

EPA's analysis of Virginia's infrastructure submittal for the 2012 PM2.s NAAQS 

concludes that Virginia's submittal meets the requirements of sections 11 0( a)(2)(A), (B), (C), 

(D)(i)(II) (for PSD), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) ofthe CAA. It is 

recommended that a notice of proposed rulemaking be prepared approving Virginia's 

infrastructure submittal for the 2012 PM2.s NAAQS for the elements listed above and discussed 

herein. As discussed above in detail, EPA will take later, separate action on the following 

infrastructure SIP submission elements for the 2012 PM2.s NAAQS for Virginia: Sections 

110(a)(2)(D)(i)(I) (interstate transport), and (D)(i)(II) (visibility protection) of the CAA. 

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