[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Rules and Regulations]
[Pages 11557-11573]
[FR Doc No: 2015-04377]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0522; FRL-9923-79-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide
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 implementation, maintenance, and enforcement of the NAAQS.
These elements are referred to as infrastructure requirements. The
Commonwealth of Virginia made a submittal addressing the infrastructure
requirements for the 2010 sulfur dioxide (SO2) primary
NAAQS.

DATES: This final rule is effective on April 3, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2014-0522. 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,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Summary of SIP Revision

    On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary
SO2 NAAQS at a level of 75 parts per billion (ppb), based on
a 3-year average of the annual 99th percentile of 1-hour daily maximum
concentrations. The new NAAQS is codified at 40 CFR 50.17, while the
prior NAAQS are at 40 CFR 50.4. Pursuant to section 110(a)(1) of the
CAA, states are required to submit SIPs meeting the applicable
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS or within such shorter period as EPA may
prescribe.
    On June 18, 2014, the Commonwealth of Virginia, through the
Virginia Department of Environmental Quality (VADEQ), submitted a SIP
revision that addresses the infrastructure elements specified in
section 110(a)(2) of the CAA necessary to implement, maintain, and
enforce the 2010 SO2 NAAQS. On August 22, 2014 (79 FR
49731), EPA published a notice of proposed rulemaking (NPR) for
Virginia proposing approval of the submittal. In the NPR, EPA proposed
approval of the following infrastructure elements: Section
110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant
deterioration), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J)
(consultation, public notification, and prevention of significant
deterioration), (K), (L), and (M).
    Virginia did not submit section 110(a)(2)(I) which pertains to the
nonattainment requirements of part D, Title I of the CAA, because this
element is not required to be submitted by the 3-year submission
deadline of section 110(a)(1) and will be addressed in a separate
process. At this time, EPA is not taking action on section
110(a)(2)(D)(i)(II) or (J) for visibility protection for the 2010
SO2 NAAQS as explained in the NPR. Although Virginia's
infrastructure SIP submittal for the 2010 SO2 NAAQS referred
to Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) and (J)
for visibility protection, EPA intends to take later, separate action
on Virginia's submittal for these elements as explained in the NPR and
the Technical Support Document (TSD) which accompanied the NPR. This
rulemaking action also does not include action on section
110(a)(2)(D)(i)(I) of the CAA because Virginia's June 18, 2014
infrastructure SIP submittal did not include provisions for this
element; therefore EPA will take later, separate action on section
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for Virginia as
explained in the NPR. Finally, EPA will also take later, separate
action with respect to Section 110(a)(2)(E)(ii) regarding CAA section
128 requirements for State Boards for the 2010 SO2 NAAQS as
explained in the NPR.
    The rationale supporting EPA's proposed rulemaking action,
including the scope of infrastructure SIPs in general, is explained in
the published NPR and the TSD accompanying the NPR and will not be
restated here. The NPR and TSD are available in the docket for this
rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-
0522. The discussion below in responding to comments on the NPR
provides additional rationale to the extent necessary and appropriate
to provide such responses and support the final action.

II. Public Comments and EPA's Responses

    EPA received comments from the Sierra Club on the August 22, 2014
proposed rulemaking action on Virginia's 2010 SO2
infrastructure SIP. A full set of these comments is provided in the
docket for today's final rulemaking action.

A. Background Comments

1. The Plain Language of the CAA
    Comment 1: Sierra Club contends in background comments that the
plain language of section 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 exceedances
in areas not designated nonattainment. Sierra Club then contends that
the Virginia 2010 SO2 infrastructure SIP revision did not
revise the existing SO2 emission limits in response to the
2010 SO2 NAAQS and fails to comport with asserted CAA
requirements for SIPs to establish enforceable emission limits that are
adequate to prohibit NAAQS exceedances in areas not designated
nonattainment.
    The Commenter states that the main objective of the infrastructure
SIP process ``is to ensure that all areas of the country meet the
NAAQS,'' and that nonattainment areas are addressed through
nonattainment SIPs. The Commenter asserts the NAAQS are the foundation
for specific emission limitations for most large stationary sources,
such as coal-fired power plants.

The Commenter discusses the CAA's framework whereby states have primary
responsibility to assure air quality within the state pursuant to CAA
section 107(a) which the states carry out through SIPs such as
infrastructure SIPs required by section 110(a)(2). The Commenter also
states that on its face the CAA requires infrastructure SIPs ``to be
adequate to prevent exceedances 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 the commenter claims
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 1: EPA disagrees that section 110 is clear ``on its face''
and must be interpreted in the manner suggested by Sierra Club. As we
have previously explained in response to Sierra Club's similar comments
in taking action on Virginia's 2008 ozone NAAQS infrastructure SIP (see
79 FR 17043, 17047 (March 27, 2014)), 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.
    EPA interprets infrastructure SIPs as more general planning SIPs,
consistent with the CAA 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 a new 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 a 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. 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 of the CAA 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. More
detailed, later-enacted provisions govern the substantive planning
process, including planning for attainment of the NAAQS.
    Thus, EPA asserts that section 110 of the CAA 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 that structure and 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 reasonably interprets the requirement in
section 110(a)(2)(A) of the CAA that the plan provide for
``implementation, maintenance and enforcement'' to mean that the 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. EPA has interpreted the
requirement for emission limitations in section 110 to mean 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.
Finally, as EPA stated in the Infrastructure SIP Guidance which
specifically provides guidance to states in addressing the 2010
SO2 NAAQS, ``[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.''
Infrastructure SIP Guidance at p. 2.\1\
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    \1\ Thus, EPA disagrees with Sierra Club's general assertion
that the main objective of infrastructure SIPs is to ensure all
areas of the country meet the NAAQS, as we believe the
infrastructure SIP process is the opportunity to review the
structural requirements of a state's air program. EPA, however, does
agree with Sierra Club that the NAAQS are the foundation upon which
emission limitations are set, but we believe, as explained in
responses to subsequent comments, that these emission limitations
are generally set in the attainment planning process envisioned by
part D of title I of the CAA, including, but not limited to, CAA
sections 172 and 191-192.
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    The Commenter makes general allegations that Virginia does not have
sufficient protective measures to prevent SO2 NAAQS
exceedances. 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 August 22, 2014 NPR and explained why
the SIP includes enforceable emission limitations and other control
measures necessary for maintenance of the 2010 SO2 NAAQS
throughout the Commonwealth.\2\ These include applicable portions of
the following chapters of 9 VAC 5: 40 (Existing Stationary Sources),\3\
50 (New and Modified Stationary Sources), and 91 (Motor Vehicle
Inspection and Maintenance in Northern Virginia).\4\

Further, in 2012, EPA granted limited approval of Virginia's regional
haze SIP which also includes emission measures related to
SO2. 77 FR 35287 (June 13, 2012). As discussed in the TSD
for this rulemaking, EPA finds the provisions for SO2
emission limitations and measures adequately address section
110(a)(2)(A) to aid in attaining and/or maintaining the NAAQS and finds
Virginia demonstrated that it has the necessary tools to implement and
enforce the NAAQS.
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    \2\ The TSD for this action is available on line at
www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0522.
    \3\ 9VAC5 Chapter 40 includes emission standards for
SO2 for many source categories including, but not limited
to, portland cement, primary and secondary metal operations,
sulfuric acid production, sulfur recovery operations, and
lightweight aggregate process operations.
    \4\ When EPA proposed to approve Virginia's SO2
infrastructure SIP in August 2014, we included in the TSD for
section 110(a)(2)(A) a reference to 9VAC5 Chapter 140 which was
Virginia's SIP approved regulations implementing EPA's Clean Air
Interstate Rule (CAIR), a cap-and-trade program to reduce
SO2 and nitrogen oxide (NOX) emissions at
electric generating units (EGUs) aimed at reducing interstate
impacts on ozone and particulate matter concentrations in downwind
states. In August 2011, EPA issued the Cross-State Air Pollution
Rule (CSAPR) to replace CAIR, which had been remanded by the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit). See North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008). See also 76 FR 48208 (August 8, 2011) (promulgation of
CSAPR). New litigation commenced in the D.C. Circuit concerning
CSAPR during which the D.C. Circuit initially vacated CSAPR in EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012),
cert. granted 133 U.S. 2857 (2013) and ordered continued
implementation of CAIR. However, the United States Supreme Court
vacated that decision and remanded CSAPR to the D.C. Circuit for
further proceedings. EPA v. EME Homer City Generation, L.P., 134 S.
Ct. 1584 (2014). After the Supreme Court's decision, EPA filed a
motion to lift the stay of CSAPR and asked the D.C. Circuit to toll
CSAPR's compliance deadlines by three years. On October 23, 2014,
after EPA proposed to approve Virginia's SO2
infrastructure SIP, the D.C. Circuit granted EPA's motion and lifted
the stay on CSAPR. EME Homer City Generation, L.P. v. EPA, No. 11-
1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views the D.C.
Circuit's October 23, 2014 Order as also granting EPA's request to
toll CSAPR's compliance deadlines and will therefore commence
implementation of CSAPR on January 1, 2015. 79 FR 71663 (December 3,
2014) (interim final rule revising CSAPR compliance deadlines).
Therefore, EPA began implementing CSAPR on January 1, 2015 and
ceased implementing CAIR on December 31, 2014 because CSAPR replaced
CAIR. Virginia EGU's will continue to be subject to a cap-and-trade
program for reducing SO2 emissions which will preserve
reductions at such EGUs achieved through CAIR; however, this program
will be CSAPR, implemented as a FIP by EPA, until such time as
Virginia adds the provisions of CSAPR to its SIP. CSAPR requires
substantial reductions of SO2 and NOX
emissions from EGUs in 28 states in the Eastern United States that
significantly contribute to downwind nonattainment or interfere with
maintenance of the 1997 fine particulate matter (PM2.5)
and ozone NAAQS and 2006 PM2.5 NAAQS.
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2. The Legislative History of the CAA
    Comment 2: Sierra Club cites two excerpts from the legislative
history of the 1970 CAA 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 2: 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. See also 79 FR at 17046 (responding to
comments on Virginia's ozone infrastructure SIP). 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 in response to another comment in this
rulemaking, the TSD for the proposed rule explains why the Virginia SIP
includes enforceable emissions limitations for SO2 for the
relevant area.
3. Case Law
    Comment 3: 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 exceedances 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 to 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 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''); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C.
Cir. 1982) (CAA requires SIPs to contain ``measures necessary to ensure
attainment and maintenance of NAAQS''). Finally, Sierra Club 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 3: None of the cases Sierra Club cites support its
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, the courts reference section 110(a)(2)(A)
(or section 110(a)(2)(B) of the pre-1990 CAA) in the background
sections of decisions in the context of a challenge to an EPA action on
revisions to a SIP that was required and approved as meeting other
provisions of the CAA or in the context of an enforcement action.
    In Train, 421 U.S. 60, 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). Sierra Club does not raise any concerns
about whether the measures relied on by the Commonwealth in the
infrastructure SIP are ``emissions limitations'' and the decision in
this case has no bearing here.\5\ In Mont. Sulphur & Chem. Co., 666
F.3d 1174, the Court was reviewing a federal implementation plan (FIP)
that EPA promulgated after a long history of the state failing to
submit an adequate SIP in response to EPA's finding under section
110(k)(5) that the previously approved SIP was substantially inadequate
to attain or maintain the NAAQS, which triggered the state's duty to
submit a new SIP to show how it would remedy that deficiency and attain
the NAAQS. The Court cited generally to sections 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, which focused instead
on whether EPA's finding of SIP inadequacy, disapproval of the state's
responsive attainment demonstration, and adoption of a remedial FIP
were lawful. 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, Sierra Club 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.
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    \5\ While Sierra Club does contend that the Commonwealth
shouldn't be allowed to rely on emission reductions that were
developed for the prior SO2 standards (which we address
herein), it does not claim that any of the measures are not
``emissions limitations'' within the definition of the CAA.
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    Two of the cases Sierra Club 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.
    Finally, in Conn. Fund for Env't, Inc. v. EPA, the D.C. Circuit was
reviewing EPA action on a control measure SIP provision which adjusted
the percent of sulfur permissible in fuel oil. 696 F.2d 169 (D.C. Cir.
1982). The D.C. Circuit focused on whether EPA needed to evaluate
effects of the SIP revision on one pollutant or effects of changes on
all possible pollutants; therefore, the D.C. Circuit did not address
required measures for infrastructure SIPs and nothing in the opinion
addressed whether infrastructure SIPs needed to contain measures to
ensure attainment and maintenance of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 4: Sierra Club 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].'' Sierra Club asserts that this regulation
requires all SIPs to include emissions limits necessary to ensure
attainment of the NAAQS. Sierra Club 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.'' Sierra Club 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 4: Sierra Club's reliance on 40 CFR 51.112 to support its
argument that infrastructure SIPs must contain emission limits
``adequate to prohibit NAAQS exceedances'' 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 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 191-192. 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. 51 FR 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 40 CFR 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 5: Sierra Club 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 SO2 NAAQS. In
that action, EPA cited section 110(a)(2)(A) 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 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. See 78 FR 17157, 17158, (March 20, 2013)
(proposed rule on Indiana SO2 SIP) and 78 FR 78720, 78721
(December 27, 2013) (final rule on Indiana SO2 SIP). In its
proposed disapproval, 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 5: EPA does not agree that the two prior actions
referenced by Sierra Club establish how EPA reviews infrastructure
SIPs. It is clear from both the final Missouri rule and the proposed
and final 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.
78 FR 78720. The review in that rule was of a completely different
requirement than the section 110(a)(2)(A) SIP. Rather, in that case,
the State had an approved SO2 attainment plan and was
seeking to remove provisions from the SIP that it 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. See 78 FR 17157. Nothing
in that proposed or final 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.
    As discussed in detail in the TSD and NPR, EPA finds the Virginia
SIP meets the appropriate and relevant structural requirements of
section 110(a)(2) of the CAA that will aid in attaining and/or
maintaining the NAAQS and that the Commonwealth demonstrated that it
has the necessary tools to implement and enforce a NAAQS. Therefore,
EPA approves the Virginia SO2 infrastructure SIP.\6\
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    \6\ As stated previously, EPA will take later, separate action
on several portions of Virginia's SO2 infrastructure SIP
submittal including the portions of the SIP submittal addressing
section 110(a)(2)(D)(i)(II) and (J) (both for visibility protection)
and 110(a)(2)(E)(ii) for State Boards.
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B. Comments on Virginia SIP SO2 Emission Limits

    Comment 6: Citing section 110(a)(2)(A) of the CAA, Sierra Club
contends that EPA may not approve the proposed infrastructure SIP
because it does not include enforceable 1-hour SO2 emission
limits for sources currently allowed to cause ``NAAQS exceedances.''
Sierra Club asserts the proposed infrastructure SIP fails to include
enforceable 1-hour SO2 emissions limits or other required
measures to ensure attainment and maintenance of the SO2
NAAQS in areas not designated nonattainment as Sierra Club claims is
required by section 110(a)(2)(A). Sierra Club asserts an infrastructure
SIP must ensure, through state-wide regulations or source specific
requirements, proper mass limitations and short term averaging on
specific large sources of pollutants such as power plants. Sierra Club
asserts that emission limits are especially important for meeting the
1-hour SO2 NAAQS because SO2 impacts are strongly
source-oriented. Sierra Club states coal-fired electric generating
units (EGUs) are large contributors to SO2 emissions but
contends Virginia did not demonstrate that emissions allowed by the
proposed infrastructure SIP from such large sources of SO2
will ensure compliance with the 2010 1-hour SO2 NAAQS. The
Commenter claims the proposed infrastructure SIP would allow major
sources to continue operating with present emission limits.\7\ Sierra
Club then refers to air dispersion modeling it conducted for two coal-
fired EGUs in Virginia, Chesapeake Energy Center and Yorktown Power
Station. Sierra Club asserts the results of the air dispersion modeling
it conducted employing EPA's AERMOD program for modeling used the
plants' allowable and maximum emissions and showed the plants could
cause exceedances of the 2010 SO2 NAAQS with either
allowable or maximum emissions.\8\ Based on the modeling, Sierra Club
asserts the Virginia SO2 infrastructure SIP submittal
authorizes the two EGUs to cause exceedances of the NAAQS with
allowable and maximum emission rates and therefore the infrastructure
SIP fails to include adequate enforceable emission limitations or other
required measures for sources of SO2 sufficient to ensure
attainment and maintenance of the 2010 SO2 NAAQS. Sierra
Club cites to information from the owner of Chesapeake Energy Center
and Yorktown Power Station regarding the retirement of certain units at
those plants in 2015 and 2016 and asserts such planned retirements
should be incorporated into the Virginia infrastructure SIP as
necessary to ensure attainment and maintenance of the NAAQS. Sierra
Club therefore asserts EPA must disapprove Virginia's proposed SIP
revision. In addition, Sierra Club asserts ``EPA must impose additional
emission limits on the plants

that ensure attainment and maintenance of the NAAQS at all times.''
---------------------------------------------------------------------------

    \7\ Sierra Club provides a chart in its comments claiming 65
percent of SO2 emissions in Virginia are from coal-fired
power plants based on 2011 data.
    \8\ Sierra Club asserts its modeling followed protocols pursuant
to 40 CFR part 50, Appendix W and EPA's 2005 Guideline on Air
Quality Models.
---------------------------------------------------------------------------

    Response 6: EPA believes that section 110(a)(2)(A) of the CAA is
reasonably interpreted to require states to submit infrastructure SIPs
that reflect the first step in their planning for attainment and
maintenance of a new or revised NAAQS. These SIP revisions should
contain a demonstration that the state has the available tools and
authority to develop and implement plans to attain and maintain the
NAAQS and show that the SIP has enforceable control measures. 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. As mentioned
above, EPA has interpreted this to mean, with regard to the requirement
for emission limitations, that states 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 stated in response to a previous comment, EPA asserts that
section 110 of the CAA 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 reasonably interprets the requirement in
section 110(a)(2)(A) of the CAA that the plan provide for
``implementation, maintenance and enforcement'' to mean that the SIP
must contain enforceable emission limits that will aid in attaining
and/or maintaining the NAAQS and that the Commonwealth demonstrate that
it has the necessary tools to implement and enforce a NAAQS, such as
adequate state personnel and an enforcement program. As discussed
above, EPA has interpreted the requirement for emission limitations in
section 110 to mean 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. Finally, as EPA stated in the
Infrastructure SIP Guidance which specifically provides guidance to
states in addressing the 2010 SO2 NAAQS, ``[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.'' Infrastructure SIP Guidance at p. 2.
    On April 12, 2012, EPA explained its expectations regarding the
2010 SO2 NAAQS via letters to each of the states. EPA
communicated in the April 2012 letters that all states were expected to
submit SIPs meeting the ``infrastructure'' SIP requirements under
section 110(a)(2) of the CAA by June 2013. At the time, EPA was
undertaking a stakeholder outreach process to continue to develop
possible approaches for determining attainment status under the
SO2 NAAQS and implementing this NAAQS. EPA was abundantly
clear in the April 2012 letters that EPA did not expect states to
submit substantive attainment demonstrations or modeling demonstrations
showing attainment for areas not designated nonattainment in
infrastructure SIPs due in June 2013. Although EPA had previously
suggested in its 2010 SO2 NAAQS preamble and in prior draft
implementation guidance in 2011 that states should, in the unique
SO2 context, use the section 110(a) SIP process as the
vehicle for demonstrating attainment of the NAAQS, this approach was
never adopted as a binding requirement and was subsequently discarded
in the April 2012 letters to states. The April 2012 letters recommended
states focus infrastructure SIPs due in June 2013, such as Virginia's
SO2 infrastructure SIP, on traditional ``infrastructure
elements'' in section 110(a)(1) and (2) rather than on modeling
demonstrations for future attainment for areas not designated as
nonattainment.\9\
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    \9\ In EPA's final SO2 NAAQS preamble (75 FR 35520
(June 22, 2010)) and subsequent draft guidance in March and
September 2011, EPA had expressed its expectation that many areas
would be initially designated as unclassifiable due to limitations
in the scope of the ambient monitoring network and the short time
available before which states could conduct modeling to support
their designations recommendations due in June 2011. In order to
address concerns about potential violations in these unclassifiable
areas, EPA initially recommended that states submit substantive
attainment demonstration SIPs based on air quality modeling by June
2013 (under section 110(a)) that show how their unclassifiable areas
would attain and maintain the NAAQS in the future. Implementation of
the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion,
May 2012 (2012 Draft White Paper) (for discussion purposes with
Stakeholders at meetings in May and June 2012), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA
clearly stated in this 2012 Draft White Paper its clarified
implementation position that it was no longer recommending such
attainment demonstrations for unclassifiable areas for June 2013
infrastructure SIPs. Id. EPA had stated in the preamble to the NAAQS
and in the prior 2011 draft guidance that EPA intended to develop
and seek public comment on guidance for modeling and development of
SIPs for sections 110 and 191 of the CAA. Section 191 of the CAA
requires states to submit SIPs in accordance with section 172 for
areas designated nonattainment with the SO2 NAAQS. After
seeking such comment, EPA has now issued guidance for the
nonattainment area SIPs due pursuant to sections 191 and 172. See
Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions, Stephen
D. Page, Director, EPA's Office of Air Quality Planning and
Standards, to Regional Air Division Directors Regions 1-10, April
23, 2014. In September 2013, EPA had previously issued specific
guidance relevant to infrastructure SIP submissions due for the
NAAQS, including the 2010 SO2 NAAQS. See Infrastructure
SIP Guidance.
---------------------------------------------------------------------------

    Therefore, EPA asserts the elements of section 110(a)(2) which
address SIP revisions for SO2 nonattainment areas including
measures and modeling demonstrating attainment are due by the dates
statutorily prescribed under subpart 5 under part D. Those submissions
are due no later than 18 months after an area is designed nonattainment
for SO2, under CAA section 191(a). Thus, the CAA directs
states to submit these 110(a)(2) elements for nonattainment areas on a
separate schedule from the ``structural requirements'' of 110(a)(2)
which are due within three years of adoption or revision of a NAAQS.
The infrastructure SIP submission requirement does not move up the date
for any required submission of a part D plan for areas designated
nonattainment for the new NAAQS. Thus, elements relating to
demonstrating attainment for areas not attaining the NAAQS are not
necessary for infrastructure SIP submissions, and the CAA does not
provide explicit requirements for demonstrating attainment for areas
that have not yet been designated regarding attainment with a
particular NAAQS.
    As stated previously, EPA believes that the proper inquiry at this
juncture is whether Virginia has met the basic structural SIP
requirements appropriate at the point in time EPA is acting upon the
infrastructure submittal. Emissions limitations and other control
measures needed to attain the NAAQS in areas designated nonattainment
for that NAAQS are due on a different schedule from the section 110
infrastructure elements. A state, like Virginia, may reference pre-
existing SIP emission limits or other rules contained in part D plans
for previous NAAQS in an infrastructure SIP submission. For example,
Virginia submitted a list of existing emission reduction measures in
the SIP that control emissions of SO2 as discussed above in
response to a prior comment and discussed in detail in the

TSD. These provisions have the ability to reduce SO2
overall. Although the Virginia SIP relies on measures and programs used
to implement previous SO2 NAAQS, these provisions are not
limited to reducing SO2 levels to meet one specific NAAQS
and will continue to provide benefits for the 2010 SO2
NAAQS.
    Additionally, as discussed in EPA's TSD supporting the NPR,
Virginia has the ability to revise its SIP when necessary (e.g. in the
event the Administrator finds the plan to be substantially inadequate
to attain the NAAQS or otherwise meet all applicable CAA requirements)
as required under element H of section 110(a)(2). See Code of Virginia
10.1-1308 (authorizing Virginia's Air Pollution Control Board to
promulgate regulations to abate, control, and prohibit air pollution
throughout the Commonwealth).
    EPA believes the requirements for emission reduction measures for
an area designated nonattainment for the 2010 primary SO2
NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the
appropriate avenue for implementing requirements for necessary emission
limitations for demonstrating attainment with the 2010 SO2
NAAQS is through the attainment planning process contemplated by those
sections of the CAA. On August 5, 2013, EPA designated as nonattainment
most areas in locations where existing monitoring data from 2009-2011
indicated violations of the 1-hour SO2 standard. 78 FR
47191. At that time, no areas in Virginia had monitoring data from
2009-2011 indicating violations of the 1-hour SO2 standard,
and thus no areas were designated nonattainment in Virginia. In
separate future actions, EPA intends to address the designations for
all other areas for which EPA has yet to issue designations. See, e.g.,
79 FR 27446 (May 13, 2014) (proposing process and timetables by which
state air agencies would characterize air quality around SO2
sources through ambient monitoring and/or air quality modeling
techniques and submit such data to the EPA). Although no areas within
Virginia have yet been designated nonattainment, any future
nonattainment designations under the 2010 SO2 NAAQS within
the Commonwealth will set appropriate due dates for any applicable
attainment SIPs required pursuant to CAA sections 172, 191, and 192.
EPA believes it is not appropriate to bypass the attainment planning
process by imposing separate attainment planning process requirements
outside the attainment planning process and into the infrastructure SIP
process. Such actions would be disruptive and premature absent
exceptional circumstances and would interfere with a state's planning
process. See In the Matter of EME Homer City Generation LP and First
Energy Generation Corp., Order on Petitions Numbers III-2012-06, III-
2012-07, and III2013-01 (July 30, 2014) (hereafter, Homer City/
Mansfield Order) at 10-19 (finding Pennsylvania SIP did not require
imposition of SO2 emission limits on sources independent of
the part D attainment planning process contemplated by the CAA). EPA
believes that the history of the CAA, and intent of Congress for the
CAA as described above, demonstrate clearly that it is within the
section 172 and general part D attainment planning process that
Virginia must include additional SO2 emission limits on
sources in order to demonstrate future attainment, where needed, for
any areas in Virginia or other states that may be designated
nonattainment in the future, in order to reach attainment with the 2010
1-hour SO2 NAAQS.
    The Commenter's reliance on 40 CFR 51.112 to support its argument
that infrastructure SIPs must contain emission limits adequate to
provide for timely attainment and maintenance of the standard is also
not supported. As explained previously in response to the background
comments, EPA notes this regulatory provision clearly on its face
applies to plans specifically designed to attain the NAAQS and not to
infrastructure SIPs which show the states have in place structural
requirements necessary to implement the NAAQS. Therefore, EPA finds 40
CFR 51.112 inapplicable to its analysis of the Virginia SO2
infrastructure SIP.
    As noted in EPA's preamble for the 2010 SO2 NAAQS,
determining compliance with the SO2 NAAQS will likely be a
source-driven analysis, and EPA has explored options to ensure that the
SO2 designations and implementation processes realistically
account for anticipated SO2 reductions at sources that we
expect will be achieved by current and pending national and regional
rules. See 75 FR 35520. As mentioned previously above, EPA has proposed
a process to address additional areas in states which may be found to
not be attaining the 2010 SO2 NAAQS. 79 FR 27446 (proposing
process for further monitoring or modeling of areas with larger
SO2 sources). In addition, in response to lawsuits in
district courts seeking to compel EPA's remaining designations of
undesignated areas under the NAAQS, EPA has proposed to enter a
settlement under which this process would require an earlier round of
designations focusing on areas with larger sources of SO2
emissions, as well as enforceable deadlines for the later rounds of
designations.\10\ However, because the purpose of an infrastructure SIP
submission is for more general planning purposes, EPA does not believe
Virginia is obligated to account for controlled SO2 levels
at individual sources during this infrastructure SIP planning process.
See Homer City/Mansfield Order at 10-19.
---------------------------------------------------------------------------

    \10\ These lawsuits have not yet been fully resolved, as of the
date of this final action.
---------------------------------------------------------------------------

    Regarding the air dispersion modeling conducted by Sierra Club
pursuant to AERMOD for the coal-fired EGUs including Chesapeake Energy
Center and Yorktown Power Station, EPA is not at this stage prepared to
opine on whether the modeling demonstrates violations of the NAAQS, and
does not find the modeling information relevant for review of an
infrastructure SIP. EPA has issued non-binding guidance for states to
use in conducting, if they choose, additional analysis to support
designations for the 2010 SO2 NAAQS. SO2 NAAQS Designations
Modeling Technical Assistance Document, EPA Office of Air and Radiation
and Office of Air Quality Planning and Standards, December 2013,
available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. Sierra Club's AERMOD modeling for the Virginia EGUs was
conducted prior to the issuance of this guidance and may not address
all recommended elements EPA may consider important to modeling for the
2010 SO2 NAAQS for designations purposes. If any areas in
Virginia are designated nonattainment in the future, any potential
future modeling in attainment demonstrations by the Commonwealth would
need to account for any new emissions limitations Virginia develops to
support such demonstration, which at this point are unknown. Therefore,
it is premature at this point to evaluate whether current modeled
allowable SO2 levels would be sufficient to show future
attainment of the NAAQS. In addition, while EPA has extensively
discussed the use of modeling for attainment demonstration purposes and
for designations, EPA has recommended that such modeling was not needed
for the SO2 infrastructure SIPs needed for the 2010
SO2 NAAQS. See April 12, 2012 letters to states and 2012
Draft White Paper. In contrast, EPA recently discussed modeling for
designations in our May 14, 2014 proposal at 79 FR 27446 and for
nonattainment planning in the April 23,

2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions.\11\
---------------------------------------------------------------------------

    \11\ EPA does not disagree with Sierra Club's data indicating
coal-fired power plants represented a majority of the SO2
emissions in Virginia based on 2011 data. However, such data are not
relevant to EPA's approval of Virginia's SO2
infrastructure SIP, and EPA therefore provides no additional
response.
---------------------------------------------------------------------------

    Finally, EPA also disagrees with the Commenter that the Virginia
infrastructure SIP should incorporate the planned retirement dates of
certain emission units at Chesapeake Energy Center and Yorktown Power
Station to ensure attainment and maintenance of the NAAQS. Because EPA
does not believe Virginia's infrastructure SIP requires at this time 1-
hour SO2 emission limits on these sources or other large
stationary sources to prevent exceedances of the SO2 NAAQS
for all the reasons discussed above in this response, EPA likewise does
not believe incorporating planned retirement dates for SO2
emitters is necessary for our approval of an infrastructure SIP which
we have explained meets the structural requirements of section
110(a)(2). If any areas in Virginia are subsequently designated
nonattainment with the 2010 SO2 NAAQS, Virginia can address
needed emission reductions, including reductions through source
retirements, in any subsequent attainment planning process in
accordance with part D of title I of the CAA.
    In conclusion, EPA disagrees with Sierra Club's statements that EPA
must disapprove Virginia's infrastructure SIP submission because it
does not establish specific enforceable SO2 emission limits,
either on coal-fired EGUs or other large SO2 sources, in
order to demonstrate attainment and maintenance with the NAAQS at this
time.
    Comment 7: Sierra Club asserts that modeling is the appropriate
tool for evaluating adequacy of infrastructure SIPs and ensuring
attainment and maintenance of the 2010 SO2 NAAQS. The
Commenter refers to EPA's historic use of air dispersion modeling for
attainment designations as well as ``SIP revisions.'' The Commenter
cites to prior EPA statements that the Agency has used modeling for
designations and attainment demonstrations, including statements in the
2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for
Discussion on Implementing the 2010 SO2 NAAQS, and a 1994
SO2 Guideline Document, as modeling could better address the
source-specific impacts of SO2 emissions and historic
challenges from monitoring SO2 emissions.\12\
---------------------------------------------------------------------------

    \12\ The Commenter also cites to a 1983 EPA Memorandum on
section 107 designations policy regarding use of modeling for
designations and to the 2012 Mont. Sulphur & Chem. Co. case which
upheld EPA's finding that the previously approved SIP for an area in
Montana was substantially inadequate to attain the NAAQS due to
modeled violations of the NAAQS.
---------------------------------------------------------------------------

    Sierra Club also cited to several cases upholding EPA's use of
modeling in NAAQS implementation actions, including the Montana Sulphur
case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic
Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County
v. EPA, 571 F.3d 20 (D.C. Cir. 2009). The Commenter discusses
statements made by EPA staff regarding the use of modeling and
monitoring in setting emission limitations or determining ambient
concentrations as a result of a source's emissions, discussing
performance of AERMOD as a model, if AERMOD is capable of predicting
whether the NAAQS is attained, and whether individual sources
contribute to SO2 NAAQS violations. Sierra Club cites to
EPA's history of employing air dispersion modeling for increment
compliance verifications in the permitting process for the Prevention
of Significant Deterioration (PSD) program required in part C of title
I of the CAA. The Commenter claims the Chesapeake Energy Center and
Yorktown Power Station are examples of sources located in elevated
terrain where the AERMOD model functions appropriately in evaluating
ambient impacts.
    Sierra Club asserts EPA's use of air dispersion modeling was upheld
in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU
challenged EPA's use of CAA section 126 to impose SO2
emission limits on a source due to cross-state impacts. The Commenter
claims the Third Circuit in GenOn REMA upheld EPA's actions after
examining the record which included EPA's air dispersion modeling of
the one source as well as other data.
    The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254
(D.C. Cir. 2009) for the general proposition that it would be arbitrary
and capricious for an agency to ignore an aspect of an issue placed
before it and that an agency must consider information presented during
notice-and-comment rulemaking.
    Finally, Sierra Club claims that Virginia's proposed SO2
infrastructure SIP lacks emission limitations informed by air
dispersion modeling and therefore fails to ensure Virginia will achieve
and maintain the 2010 SO2 NAAQS. Sierra Club claims EPA must
require adequate, 1-hour SO2 emission limits in the
infrastructure SIP that show no exceedances of NAAQS when modeled.
    Response 7: EPA agrees with Sierra Club that air dispersion
modeling, such as AERMOD, can be an important tool in the CAA section
107 designations process for SO2 and in the sections 172 and
191-192 attainment SIP process, including supporting required
attainment demonstrations. EPA agrees that prior EPA statements, EPA
guidance, and case law support the use of air dispersion modeling in
the SO2 designations process and attainment demonstration
process, as well as in analyses of whether existing approved SIPs
remain adequate to show attainment and maintenance of the
SO2 NAAQS. However, EPA disagrees with the Commenter that
EPA must disapprove the Virginia SO2 infrastructure SIP for
its alleged failure to include source-specific SO2 emission
limits that show no exceedances of the NAAQS when modeled.
    As discussed above and in the Infrastructure SIP Guidance, EPA
believes the 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 and that 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 the new or revised NAAQS. See Infrastructure SIP
Guidance at p. 2. EPA believes the attainment planning process detailed
in part D of the CAA, including sections 172 and 191-192 attainment
SIPs, is the appropriate place for the state to evaluate measures
needed to bring nonattainment areas into attainment with a NAAQS and to
impose additional emission limitations such as SO2 emission
limits on specific sources.
    EPA had initially recommended that states submit substantive
attainment demonstration SIPs based on air quality modeling in the
final 2010 SO2 NAAQS preamble (75 FR 35520) and in
subsequent draft guidance issued in September 2011 for the section
110(a) SIPs due in June 2013 in order to show how areas expected to be
designated as unclassifiable would attain and maintain the NAAQS. These
initial statements in the preamble and 2011 draft guidance were based
on EPA's expectation at the time, that by June 2012, most areas would
initially be designated as unclassifiable due to limitations in the
scope of the ambient monitoring network and the short time available
before which states could conduct modeling to support designations
recommendations in 2011.

However, after conducting extensive stakeholder outreach and receiving
comments from the states regarding these initial statements and the
timeline for implementing the NAAQS, EPA subsequently stated in the
April 12, 2012 letters and in the 2012 Draft White Paper that EPA was
clarifying its implementation position and was no longer recommending
such attainment demonstrations supported by air dispersion modeling for
unclassifiable areas (which had not yet been designated) for the June
2013 infrastructure SIPs. EPA then reaffirmed this position in the
February 6, 2013 memorandum, ``Next Steps for Area Designations and
Implementation of the Sulfur Dioxide National Ambient Air Quality
Standard.'' \13\ As previously mentioned, EPA had stated in the
preamble to the NAAQS and in the prior 2011 draft guidance that EPA
intended to develop and seek public comment on guidance for modeling
and development of SIPs for sections 110, 172 and 191-192 of the CAA.
After receiving such further comment, EPA has now issued guidance for
the nonattainment area SIPs due pursuant to sections 172 and 191-192
and proposed a process for further characterization of areas with
larger SO2 sources, which could include use of air
dispersion modeling. See April 23, 2014 Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process
and timetables for gathering additional information on impacts from
larger SO2 sources informed through ambient monitoring and/
or air quality modeling). While the EPA guidance for attainment SIPs
and the proposed process for further characterizing SO2
emissions from larger sources both discuss the use air dispersion
modeling, EPA's 2013 Infrastructure SIP Guidance did not suggest that
states use air dispersion modeling to inform emission limitations for
section 110(a)(2)(A) to ensure no exceedances of the NAAQS when sources
are modeled. Therefore, as discussed previously, EPA believes the
Virginia SO2 infrastructure SIP submittal contains the
structural requirements to address elements in section 110(a)(2) as
discussed in detail in the TSD accompanying the proposed approval. EPA
believes infrastructure SIPs are general planning SIPs to ensure that a
state has adequate resources and authority to implement a NAAQS.
Infrastructure SIP submissions are not intended to act or fulfill the
obligations of a detailed attainment and/or maintenance plan for each
individual area of the state that is not attaining the NAAQS. While
infrastructure SIPs must address modeling authorities in general for
section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure
SIPs to provide the state's authority for air quality modeling and for
submission of modeling data to EPA, not specific air dispersion
modeling for large stationary sources of pollutants. In the TSD for
this rulemaking action, EPA provided a detailed explanation of
Virginia's ability and authority to conduct air quality modeling when
required and its authority to submit modeling data to the EPA.
---------------------------------------------------------------------------

    \13\ The February 6, 2013 ``Next Steps for Area Designations and
Implementation of the Sulfur Dioxide National Ambient Air Quality
Standard,'' one of the April 12, 2012 state letters, and the May
2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    EPA finds Sierra Club's discussion of case law, guidance, and EPA
staff statements regarding advantages of AERMOD as an air dispersion
model to be irrelevant to the analysis of Virginia's infrastructure SIP
as this is not an attainment SIP required to demonstrate attainment of
the NAAQS pursuant to sections 172 or 192. In addition, Sierra Club's
comments relating to EPA's use of AERMOD or modeling in general in
designations pursuant to section 107, including its citation to Catawba
County, are likewise irrelevant as EPA's present approval of Virginia's
infrastructure SIP is unrelated to the section 107 designations
process. Nor is EPA's action on this infrastructure SIP related to any
new source review (NSR) or PSD permit program issue. As outlined in the
August 23, 2010 clarification memo, ``Applicability of Appendix W
Modeling Guidance for the 1-hour SO2 National Ambient Air
Quality Standard'' (U.S. EPA, 2010a), AERMOD is the preferred model for
single source modeling to address the 1-hour SO2 NAAQS as
part of the NSR/PSD permit programs. Therefore, as attainment SIPs,
designations, and NSR/PSD actions are outside the scope of a required
infrastructure SIP for the 2010 SO2 NAAQS for section
110(a), EPA provides no further response to the Commenter's discussion
of air dispersion modeling for these applications. If Sierra Club
resubmits its air dispersion modeling for the Virginia EGUs, or updated
modeling information in the appropriate context, EPA will address the
resubmitted modeling or updated modeling in the appropriate future
context when an analysis of whether Virginia's emissions limits are
adequate to show attainment and maintenance of the NAAQS is warranted.
    The Commenter correctly noted that the Third Circuit upheld EPA's
Section 126 Order imposing SO2 emissions limitations on an
EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513.
Pursuant to section 126, any state or political subdivision may
petition EPA for a finding that any major source or group of stationary
sources emits, or would emit, any air pollutant in violation of the
prohibition of section 110(a)(2)(D)(i)(I) which relates to significant
contributions to nonattainment or maintenance in another state. The
Third Circuit upheld EPA's authority under section 126 and found EPA's
actions neither arbitrary nor capricious after reviewing EPA's
supporting docket which included air dispersion modeling as well as
ambient air monitoring data showing violations of the NAAQS. The
Commenter appears to have cited to this matter to demonstrate EPA's use
of modeling for certain aspects of the CAA. EPA agrees with the
Commenter regarding the appropriate role air dispersion modeling has
for SO2 NAAQS designations, attainment SIPs, and
demonstrating significant contributions to interstate transport.
However, EPA's approval of Virginia's infrastructure SIP is based on
our determination that Virginia has the required structural
requirements pursuant to section 110(a)(2) in accordance with our
explanation of the intent for infrastructure SIPs as discussed in the
2013 Infrastructure SIP Guidance. Therefore, while air dispersion
modeling may be appropriate for consideration in certain circumstances,
EPA does not find air dispersion modeling demonstrating no exceedances
of the NAAQS to be a required element before approval of infrastructure
SIPs for section 110(a) or specifically for 110(a)(2)(A). Thus, EPA
disagrees with the Commenter that EPA must require additional emission
limitations in the Virginia SO2 infrastructure SIP informed
by air dispersion modeling and demonstrating attainment and maintenance
of the 2010 NAAQS.
    In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n
and NRDC v. EPA to support its comments that EPA must consider the
Sierra Club's modeling data on the Chesapeake Energy Center and
Yorktown Power Station based on administrative law principles regarding
consideration of comments provided during a rulemaking process. EPA
asserts that it has considered the modeling submitted by the Commenter
as well as all the submitted comments of Sierra Club. As discussed in
detail in the Responses above, however, EPA does not believe the
infrastructure SIPs required by

section 110(a) are the appropriate place to require emission limits
demonstrating future attainment with a NAAQS. Part D of title I of the
CAA contains numerous requirements for the NAAQS attainment planning
process, including requirements for attainment demonstrations in
section 172 supported by appropriate modeling. As also discussed
previously, section 107 supports EPA's use of modeling in the
designations process. In Catawba, the D.C. Circuit upheld EPA's
consideration of data or factors for designations other than ambient
monitoring. EPA does not believe infrastructure SIPs must contain
emission limitations informed by air dispersion modeling in order to
meet the requirements of section 110(a)(2)(A). Thus, EPA has evaluated
the persuasiveness of the Commenter's submitted modeling in finding
that it is not relevant to the approvability of Virginia's proposed
infrastructure SIP for the 2010 SO2 NAAQS.
    While EPA does not believe that infrastructure SIP submissions are
required to contain emission limits, as suggested by the Commenter, EPA
does recognize that in the past, states have used infrastructure SIP
submittals as a `vehicle' for incorporating regulatory revisions or
source-specific emission limits into the state's plan. See 78 FR 73442
(December 6, 2013) (approving regulations Maryland submitted for
incorporation into the SIP along with the 2008 Ozone infrastructure SIP
to address ethics requirements for State Boards in sections 128 and
110(a)(2)(E)(ii)). While these SIP revisions are intended to help the
state meet the requirements of section 110(a)(2), these ``ride-along''
SIP revisions are not intended to signify that all infrastructure SIP
submittals should have similar regulatory revisions or source-specific
emission limits. Rather, the regulatory provisions and source-specific
emission limits the state relies on when showing compliance with
section 110(a)(2) have likely already been incorporated into the
state's SIP prior to each new infrastructure SIP submission; in some
cases this was done for entirely separate CAA requirements, such as
attainment plans required under section 172, or for previous NAAQS.
    Comment 8: Sierra Club asserts that EPA may not approve the
Virginia proposed SO2 infrastructure SIP because it fails to
include enforceable emission limitations with a 1-hour averaging time
that applies at all times. The Commenter cites to CAA section 302(k)
which requires emission limits to apply on a continuous basis. The
Commenter claims EPA has stated that 1-hour averaging times are
necessary for the 2010 SO2 NAAQS citing to a February 3,
2011, EPA Region 7 letter to the Kansas Department of Health and
Environment regarding the need for 1-hour SO2 emission
limits in a PSD permit, an EPA Environmental Hearing Board (EHB)
decision rejecting use of a 3-hour averaging time for a SO2
limit in a PSD permit, and EPA's disapproval of a Missouri SIP which
relied on annual averaging for SO2 emission rates.\14\
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    \14\ Sierra Club cited to In re: Mississippi Lime Co.,
PSDAPLPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and
71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control
strategy SO2 SIP).
---------------------------------------------------------------------------

    Sierra Club also contends that infrastructure SIPs approved by EPA
must include monitoring of SO2 emission limits on a
continuous basis using a continuous emission monitor system or systems
(CEMS) and cites to section 110(a)(2)(F) which requires a SIP to
establish a system to monitor emissions from stationary sources and to
require submission of periodic emission reports. Sierra Club contends
infrastructure SIPs must require such SO2 CEMS to monitor
SO2 sources regardless of whether sources have control
technology installed to ensure limits are protective of the NAAQS.
Sierra Club contends any monitoring performed for the New Source
Performance Standards (NSPS) in 40 CFR part 60 is inadequate for the
NAAQS because NSPS monitoring does not call for monitoring during every
hour of source operation which Sierra Club asserts is needed to protect
the 1-hour SO2 NAAQS. Thus, Sierra Club contends EPA must
require enforceable emission limits, applicable at all times, with 1-
hour averaging periods, monitored continuously by large sources of
SO2 emissions with CEMS, and therefore must disapprove
Virginia's infrastructure SIP which Sierra Club claims fails to require
emission limits with adequate averaging times.
    Response 8: EPA disagrees that EPA must disapprove the proposed
Virginia infrastructure SIP because the SIP does not contain
enforceable SO2 emission limitations with 1-hour averaging
periods that apply at all times, along with requiring CEMS, as these
issues are not appropriate for resolution at this stage in advance of
the state's submission of an attainment demonstration for areas which
may be designated nonattainment pursuant to section 107 of the CAA.\15\
As explained in detail in previous responses, the purpose of the
infrastructure SIP is to ensure that a state has the structural
capability to attain and maintain the NAAQS and thus, additional
SO2 emission limitations to ensure attainment and
maintenance of the NAAQS are not required for such infrastructure
SIPs.\16\ Likewise, EPA need not address, for the purpose of approving
Virginia's infrastructure SIP, whether CEMS or some other appropriate
monitoring of SO2 emissions is necessary to demonstrate
compliance with emission limits in order to show attainment of the 2010
SO2 NAAQS as EPA believes such SO2 emission
limits and an attainment demonstration are not a prerequisite to EPA's
approval of Virginia's infrastructure SIP.\17\ Therefore, because EPA
finds Virginia's SO2 infrastructure SIP approvable without
the additional SO2 emission limitations showing attainment
of the NAAQS, EPA finds the issues of appropriate averaging periods and
monitoring requirements for such future limitations not relevant at
this time. Sierra Club has cited to prior EPA discussion on emission
limitations required in PSD permits (from an EAB decision and EPA's
letter to Kansas' permitting authority) pursuant to part C of the CAA,
which is neither relevant nor applicable to section 110 infrastructure
SIPs. In addition, as previously discussed, the EPA disapproval of the
2006 Missouri SIP was a disapproval relating to a control strategy SIP
required pursuant to part D attainment planning and is

likewise not relevant to the analysis of infrastructure SIP
requirements.
---------------------------------------------------------------------------

    \15\ As EPA has stated, there are not presently any designated
nonattainment areas pursuant to CAA section 107 for the 2010
SO2 NAAQS in the Commonwealth. Thus, the Commonwealth, at
this time, has no obligation to submit any attainment plans for the
2010 SO2 NAAQS for sections 172, 191 and 192. EPA
believes the appropriate time for examining necessity of 1-hour
SO2 emission limits on specific sources is within the
attainment planning process.
    \16\ For a discussion on emission averaging times for emissions
limitations for SO2 attainment SIPs, see the April 23,
2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. EPA
explained that it is possible, in specific cases, for states to
develop control strategies that account for variability in 1-hour
emissions rates through emission limits with averaging times that
are longer than 1-hour, using averaging times as long as 30-days,
but still provide for attainment of the 2010 SO2 NAAQS as
long as the limits are of at least comparable stringency to a 1-hour
limit at the critical emission value. EPA has not yet evaluated any
specific submission of such a limit, and so is not at this time
prepared to take final action to implement this concept. If and when
a state submits an attainment demonstration that relies upon a limit
with such a longer averaging time, EPA will evaluate it then.
    \17\ EPA believes the appropriate time for application of
monitoring requirements to demonstrate continuous compliance by
specific sources is when such 1-hour emission limits are set for
specific sources whether in permits issued by Virginia pursuant to
the SIP or in attainment SIPs submitted in the part D planning
process.
---------------------------------------------------------------------------

    EPA has explained in the TSD supporting this rulemaking action how
the Virginia SIP meets requirements in section 110(a)(2)(F) related to
monitoring. 9 VAC 5-40-100 requires sources in Virginia to install,
maintain, and replace equipment such as CEMS to continuously monitor
SO2 emissions where necessary and required. Further, 9 VAC
5-40 requires sources in Virginia to report information, such as
periodic reports on the nature and amounts of emissions and emissions-
related data, from owners or operators of stationary sources of
SO2 emissions through permits and compliance orders.
Pursuant to 40 CFR part 51, subpart A, ``Air Emissions Reporting
Requirements,'' Virginia provides source-specific emissions data to
EPA. Thus, EPA finds Virginia has the authority and responsibility to
monitor air quality for the relevant NAAQS pollutants at appropriate
locations and to submit data to EPA in a timely manner in accordance
with 110(a)(2)(F) and the Infrastructure SIP Guidance.\18\ See
Infrastructure SIP Guidance at p. 45-46.
---------------------------------------------------------------------------

    \18\ While monitoring pursuant to NSPS requirements in 40 CFR
part 60 may not be sufficient for 1-hour SO2 emission
limits, EPA does not believe Sierra Club's comment regarding NSPS
monitoring provisions is relevant at this time because EPA finds 1-
hour SO2 emission limits and associated monitoring and
averaging periods are not required for our approval of Virginia's
SO2 infrastructure SIP.
---------------------------------------------------------------------------

    Comment 9: Sierra Club states that enforceable emission limits in
SIPs or permits are necessary to avoid nonattainment designations in
areas where modeling or monitoring shows SO2 levels exceed
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA
document, Next Steps for Area Designations and Implementation of the
Sulfur Dioxide National Ambient Air Quality Standard, which Sierra Club
contends discusses how states could avoid future nonattainment
designations. The Commenter asserts EPA should add enforceable emission
limits to the Virginia infrastructure SIP to prevent future
nonattainment designations and to protect public health. The Commenter
claims the modeling it conducted for Chesapeake Energy Center and
Yorktown Power Station indicates fourteen counties/independent cities
in Virginia are at risk for being designated nonattainment with the
2010 SO2 NAAQS without such enforceable SO2
limits. The Commenter states EPA must ensure large sources cannot cause
exceedances of the 2010 SO2 NAAQS to comply with section
110(a)(2)(A) and to avoid future nonattainment designations. The
Commenter asserts nonattainment designations create rigorous CAA
requirements which could be avoided if states adopt and EPA approves
such SO2 emission limitations. In addition, the Commenter
asserts adding SO2 emission limitations on certain sources
now would bring regulatory certainty for coal-fired EGUs and ultimately
save such entities money as the sources could plan now for compliance
with emission limits as well as with other CAA requirements such as the
Mercury Air Toxic Standards, transport rules, and regional haze
requirements. In summary, the Commenter asserts EPA must disapprove the
Virginia infrastructure SIP and establish enforceable emission limits
to ensure large sources of SO2 do not cause exceedances of
the 2010 SO2 NAAQS, which would avoid nonattainment
designations and bring ``regulatory certainty'' to sources in Virginia.
    Response 9: EPA appreciates the Commenter's concern with avoiding
nonattainment designations in Virginia for the 2010 SO2
NAAQS and with providing coal-fired EGUs regulatory certainty to help
them make informed decisions on how to comply with CAA requirements.
However, Congress designed the CAA such that states have the primary
responsibility for achieving and maintaining the NAAQS within their
geographic area by submitting SIPs which will specify the details of
how the state will meet the NAAQS. Pursuant to section 107(d), the
states make initial recommendations of designations for areas within
each state and EPA then promulgates the designations after considering
the state's submission and other information. EPA promulgated initial
designations for the 2010 SO2 NAAQS in August 2013. EPA
proposed on May 14, 2014 an additional process for gathering further
SO2 emissions source information for implementing the 2010
SO2 NAAQS. 79 FR 27446. EPA has also proposed to enter a
settlement to resolve deadline suits regarding the remaining
designations that would, if entered by the court, impose deadlines for
three more rounds of designations. Under these proposed schemes,
Virginia would have the initial opportunity for proposing additional
areas for designations for the 2010 SO2 NAAQS. While EPA
appreciates Sierra Club's comments, further designations will occur
pursuant to the section 107(d) process, and in accordance with any
applicable future court orders addressing the designations deadline
suits and, if promulgated, future EPA rules addressing additional
monitoring or modeling to be conducted by states. Virginia may, on its
own accord, decide to impose additional SO2 emission
limitations to avoid future designations to nonattainment. If Virginia
areas are designated nonattainment, Virginia will have the initial
opportunity to develop additional emissions limitations needed to
attain the NAAQS in the future, and EPA would be charged with reviewing
whether those are adequate. If EPA were to disapprove the limits, then
it would fall to EPA to adopt limits in a FIP. However, such
considerations are not required of Virginia to consider at the
infrastructure SIP stage of NAAQS implementation, as this action
relates to our approval of Virginia's SO2 infrastructure SIP
submittal pursuant to section 110(a) of the CAA, and Sierra Club's
comments regarding designations under section 107 are neither relevant
nor germane to EPA's approval of Virginia's SO2
infrastructure SIP. Likewise, while EPA appreciates Sierra Club's
concern for providing ``regulatory certainty'' for coal-fired EGUs in
Virginia, such concerns for regulatory certainty are not requirements
for infrastructure SIPs as outlined by Congress in section 110(a)(2)
nor as discussed in EPA's Infrastructure SIP Guidance. See Commonwealth
of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997)
(citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d
1122, 1123 (D.C. Cir. 1995)) (discussing that states have primary
responsibility for determining an emission reductions program for its
areas subject to EPA approval dependent upon whether the SIP as a whole
meets applicable requirements of the CAA). Thus, EPA does not believe
it is appropriate and necessary to condition approval of Virginia's
infrastructure SIP upon inclusion of a particular emission reduction
program as long as the SIP otherwise meets the requirements of the CAA.
Sierra Club's comments regarding emission limits providing ``regulatory
certainty'' for EGUs are irrelevant to EPA's approval of Virginia's
infrastructure SIP for the 2010 SO2 NAAQS, and EPA disagrees
that the infrastructure SIP must be disapproved for not including
enforceable emissions limitations to prevent future nonattainment
designations or aid in providing ``regulatory certainty.''
    Comment 10: The Commenter claims EPA must disapprove the proposed
infrastructure SIP for the 2010 SO2 NAAQS for its failure to
include measures to ensure compliance with section 110(a)(2)(A) for the
2010 SO2

NAAQS. The Commenter claims the provisions listed by Virginia for
section 110(a)(2)(A) in its 2010 SO2 NAAQS infrastructure
SIP are not appropriate for the NAAQS as evidenced by the Commenter's
modeling for plants which are not in areas presently designated
nonattainment for the 2010 SO2 NAAQS. Sierra Club claims
Virginia wrongly relies on CAA part D attainment planning requirements
to address NAAQS exceedances. The Commenter asserts that the
infrastructure SIP required by section 110(a) must provide assurances
that the NAAQS will be attained and maintained for areas not designated
nonattainment. The Commenter claims the proposed infrastructure SIP
relies on emission limits added to the SIP prior to the 2010
SO2 NAAQS and does not include hourly SO2
emission limits. Sierra Club therefore contends the proposed
infrastructure SIP cannot ensure Virginia will attain and maintain the
2010 SO2 NAAQS and EPA must disapprove the SIP and require
1-hour emission limits to address exceedances shown by Sierra Club's
submitted modeling.
    Response 10: EPA disagrees with Sierra Club that it must disapprove
the Virginia proposed infrastructure SIP for the 2010 SO2
NAAQS for the reasons already discussed in response to other comments
from Sierra Club. Generally, it is not appropriate to bypass the
attainment planning process by imposing separate requirements, such as
additional SO2 emission limits on sources, outside the
attainment planning process. Such actions would be disruptive and
premature absent exceptional circumstances.\19\ See Homer City/
Mansfield Order at 10-19 (finding Pennsylvania SIP did not require
imposition of 1-hour SO2 emission limits on sources
independent of the part D attainment planning process contemplated by
the CAA). As discussed in the Homer City/Mansfield Order, imposing
different emission limitation requirements outside of the attainment
planning process contemplated by Congress in part D of the CAA to
address requirements for attaining the NAAQS might ultimately prove
inconsistent with any attainment SIP Virginia will submit (when
required) for designated nonattainment areas, even where one source is
likely responsible for nonattainment. Id. As discussed in great detail
above, the conceptual purpose of an infrastructure SIP submission is to
assure that an air agency's SIP contains the necessary structural
requirements for the new or revised NAAQS. Infrastructure SIP Guidance
at p. 2.
---------------------------------------------------------------------------

    \19\ Thus, EPA agrees with Virginia's response to Sierra Club
when the Commenter raised these same comments to the Commonwealth
during the drafting of Virginia's infrastructure SIP. Sierra Club's
modeling of the coal-fired power plants SO2 emissions is
not relevant at this time.
---------------------------------------------------------------------------

    As mentioned previously, while EPA had in 2010 initially suggested
that states submit substantive attainment demonstration SIPs for
unclassifiable areas based on air dispersion modeling in section 110(a)
infrastructure SIPs, EPA subsequently gathered additional information
and clarified its position. The April 12, 2012 letters to states, 2012
Draft White Paper, and February 6, 2013 memorandum on next steps, as
previously discussed, clearly recommend states focus section 110(a)
infrastructure SIPs due in June 2013 on ``traditional infrastructure
elements'' in section 110(a)(1) and (2) rather than on modeling
demonstrations for future attainment for unclassifiable areas.\20\
---------------------------------------------------------------------------

    \20\ The February 6, 2013 memorandum is more completely the
February 6, 2013 memorandum, ``Next Steps for Area Designations and
Implementation of the Sulfur Dioxide National Ambient Air Quality
Standard'' available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    Therefore, EPA disagrees with the Commenter that the infrastructure
SIP must be disapproved for failure to include measures to ensure
compliance with the 2010 SO2 NAAQS. As Congress provided for
state primacy in implementing the NAAQS, Virginia should appropriately
evaluate and impose necessary SO2 emission limits on
sources, where or when needed in Virginia, for any areas in Virginia
which may later be designated nonattainment with the 2010
SO2 NAAQS under section 107.\21\
---------------------------------------------------------------------------

    \21\ EPA also notes that in EPA's final rule regarding the 2010
SO2 NAAQS, EPA noted that it anticipates several
forthcoming national and regional rules, such as the Industrial
Boilers standard under CAA section 112, are likely to require
significant reductions in SO2 emissions over the next
several years. See 75 FR 35520. EPA continues to believe similar
national and regional rules will lead to SO2 reductions
that will help achieve compliance with the 2010 SO2
NAAQS. If it appears that states with areas designated nonattainment
in 2013 will nevertheless fail to attain the NAAQS as expeditiously
as practicable (but no later than August 2018) during EPA's review
of attainment SIPs required by section 172, the CAA provides
authorities and tools for EPA to solve such failure, including, as
appropriate, disapproving submitted SIPs and promulgating FIPs.
Likewise, for any areas designated nonattainment after 2013, EPA has
the same authorities and tools available to address any areas which
do not timely attain the NAAQS.
---------------------------------------------------------------------------

    Comment 11: The Commenter alleges that the proposed SO2
infrastructure SIP does not address sources significantly contributing
to nonattainment or interfering with maintenance of the NAAQS in other
states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states
EPA must therefore disapprove the infrastructure SIP and impose a FIP.
Sierra Club claims its modeling shows that at least one plant,
Chesapeake Energy Center, is contributing to exceedances in other
states. Sierra Club states that the CAA requires infrastructure SIPs to
address cross-state air pollution within three years of the NAAQS
promulgation. The Commenter argues that Virginia has not done so and
that the EPA must disapprove the proposed infrastructure SIP and issue
a FIP to correct these shortcomings. The Commenter references the
recent Supreme Court decision, EPA v. EME Homer City Generation,, L.P.
et al, 134 S. Ct. 1584 (2014), which supports the states' mandatory
duty to address cross-state pollution under section 110(a)(2)(D)(i)(I)
and affirmed EPA's ability to impose a FIP upon states' failure to
address cross-state air pollution.
    Response 11: EPA disagrees with Sierra Club's statement that EPA
must disapprove the submitted 2010 SO2 infrastructure SIP
due to Virginia's failure to address section 110(a)(2)(D)(i)(I). In
EPA's NPR proposing to approve Virginia's infrastructure SIP for the
2010 SO2 NAAQS, EPA clearly stated that it was not taking
any final action with respect to the good neighbor provision in section
110(a)(2)(D)(i)(I) which addresses emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
in another state. Virginia did not make a submission to address the
requirements of section 110(a)(2)(D)(i)(I) for the 2010 SO2
NAAQS, and thus there is no such submission upon which EPA proposed to
take disapproval action under section 110(k) of the CAA. EPA cannot act
under section 110(k) to disapprove a SIP submission that has not been
submitted to EPA. EPA also disagrees with the Commenter that EPA cannot
approve other elements of an infrastructure SIP submission without the
good neighbor provision. EPA additionally believes there is no basis
for the contention that EPA has triggered its obligation to issue a FIP
addressing the good neighbor obligation under section 110(c), as EPA
has neither found that Virginia failed to timely submit a required
110(a)(2)(D)(i)(I) SIP submission for the 2010 SO2 NAAQS or
found that such a submission was incomplete, nor has EPA disapproved a
SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010
SO2 NAAQS.
    EPA acknowledges the Commenter's concern for the interstate
transport of air pollutants and agrees in general with

the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally
require states to submit, within three years of promulgation of a new
or revised NAAQS, a plan which addresses cross-state air pollution
under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the
Commenter's argument that EPA cannot approve an infrastructure SIP
submission 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 state 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)).
    EPA interprets its authority under section 110(k)(3) of the CAA, as
affording EPA the discretion to approve, or conditionally approve,
individual elements of Virginia's infrastructure SIP submission for the
2010 SO2 NAAQS, separate and apart from any action with
respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA
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 Virginia had made
a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010
SO2 NAAQS, which to date it has not, EPA would still have
discretion under section 110(k) of the CAA to act upon the various
individual elements of the state's infrastructure SIP submission,
separately or together, as appropriate.
    The Commenter raises no compelling legal or environmental rationale
for an alternate interpretation. Nothing in the Supreme Court's April
2014 decision in EME Homer City alters EPA's interpretation that EPA
may act on individual severable measures, including the requirements of
section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer
City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation
to submit a SIP revision addressing section 110(a)(2)(D)(i)(I)
independent of EPA's action finding significant contribution or
interference with maintenance). In sum, the concerns raised by the
Commenter do not establish that it is inappropriate or unreasonable for
EPA to approve the portions of Virginia's June 18, 2014 infrastructure
SIP submission for the 2010 SO2 NAAQS.
    Furthermore, as discussed above, EPA has no obligation to issue a
FIP pursuant to 110(c)(1) to address Virginia's obligations under
section 110(a)(2)(D)(i)(I) until EPA first either finds Virginia failed
to make the required submission addressing the element or the
Commonwealth has made such a submission but it is incomplete, or EPA
disapproves a SIP submittal addressing that element. Until either
occurs, EPA does not have the authority to issue a FIP pursuant to
section 110(c) with respect to the good neighbor provision. Therefore,
EPA disagrees with the Commenter's contention that it must issue a FIP
for Virginia to address 110(a)(2)(D)(i)(I) for the 2010 SO2
NAAQS at this time.
    Regarding Sierra Club's assertion that one stationary source is
causing ``exceedances'' in other states according to the modeling
conducted by Sierra Club, EPA believes such assertion is irrelevant to
our action approving Virginia's infrastructure SIP for the 2010
SO2 NAAQS because EPA has not proposed any action on section
110(a)(2)(D)(i)(I) regarding Virginia's obligations to address the
transport of SO2 emissions. EPA may consider such
information if Sierra Club resubmits when EPA does act upon a Virginia
SIP submission to address 110(a)(2)(D)(i)(I) obligations for the 2010
SO2 NAAQS.
    Comment 12: Sierra Club contends that the EPA must disapprove the
proposed infrastructure SIP because it does not contain adequate
provisions to prohibit sources and emissions in Virginia from
interfering with another state's visibility as required by section
110(a)(2)(D)(i)(II) of the CAA. The Commenter cites to the Supreme
Court's decision in EME Homer City in support of its statement that
Virginia's duty to protect visibility is a mandatory duty. The
Commenter asserts EPA ignores its deadline by not acting in today's
rulemaking on the visibility prong of section 110(a)(2)(D)(i)(II) and
asserts EPA cites no legally defensible reason for not acting. Finally,
the Commenter argues that the ``deadline for state action has passed''
and EPA must disapprove the SO2 infrastructure SIP and issue
a FIP to address the failings of the infrastructure SIP to protect
visibility in other states.
    Response 12: EPA disagrees with the Commenter that in today's
rulemaking action EPA must disapprove the Virginia SO2
infrastructure SIP for its failure to protect visibility and issue a
FIP addressing visibility protection for Virginia. In EPA's NPR
proposing to approve Virginia's infrastructure SIP for the 2010
SO2 NAAQS, EPA clearly stated that it was not proposing to
take any action at that time with respect to the visibility protection
provisions in section 110(a)(2)(D)(i)(II). While Virginia did make a
SIP submission to address the requirements of section
110(a)(2)(D)(i)(II) for visibility protection, and cited to its
regional haze SIP and CAIR as meeting these requirements, EPA did not
propose to take any action in the NPR with respect to Virginia's
visibility protection obligations pursuant to section
110(a)(2)(D)(i)(II).\22\ As indicated in EPA's NPR, EPA anticipates
taking later action on the portion of Virginia's June 18, 2014 SIP
submission addressing visibility protection.\23\ EPA disagrees with the
Commenter that EPA cannot approve a portion of an infrastructure SIP
submittal without taking action on the visibility protection provision.
Further, there is no basis for the contention that EPA must issue a FIP
under section 110(c) within two years,

as EPA has neither disapproved nor found that Virginia failed to submit
a required 110(a)(2)(D)(i)(II) SIP submission addressing visibility
protection for the 2010 SO2 NAAQS.
---------------------------------------------------------------------------

    \22\ On June 13, 2012 (77 FR 35287), EPA finalized a limited
approval of Virginia's October 4, 2010 regional haze SIP, and
subsequent supplements, to address the first implementation period
for regional haze. On June 7, 2012, EPA issued a limited disapproval
of this SIP because of Virginia's reliance on CAIR to meet certain
regional haze requirements, which EPA replaced in August 2011 with
CSAPR (76 FR 48208 (August 8, 2011)). 77 FR 33641. EPA had also
issued on June 7, 2012 in the same action a FIP that replaced
Virginia's reliance on CAIR with reliance on CSAPR for certain
regional haze requirements. Id. Later, as discussed previously, the
D.C. Circuit in EME Homer City Generation, 696 F.3d 7, vacated CSAPR
and kept CAIR in place. Subsequently, on April 30, 2014, the Supreme
Court vacated the D.C. Circuit decision and remanded the matter to
the D.C. Circuit for further proceedings. EME Homer City, 134 S. Ct.
1584. On October 23, 2014, after we proposed to approve Virginia's
infrastructure SIP, the D.C. Circuit lifted the stay on CSAPR. EME
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23,
2014), Order at 3. As mentioned in response to a prior comment, EPA
began implementing CSAPR on January 1, 2015. 79 FR 71663 (December
3, 2014) (interim final rule revising CSAPR compliance deadlines).
EPA will take appropriate action on Virginia's obligations under
110(a)(2)(D)(i)(II) for visibility protection in a subsequent
rulemaking action.
    \23\ One way in which section 110(a)(2)(D)(i)(II) for visibility
protection may be satisfied for any relevant NAAQS is through an air
agency's confirmation in its infrastructure SIP submission that it
has an approved regional haze SIP that fully meets the requirements
of 40 CFR 51.308 or 51.309. Infrastructure SIP Guidance at p. 33. As
previously indicated, Virginia has a regional haze SIP with limited
approval and limited disapproval and a FIP which addresses
replacement of CSAPR for CAIR for certain regional haze
requirements.
---------------------------------------------------------------------------

    As previously discussed regarding the good-neighbor SIP provisions
for infrastructure SIPs, EPA disagrees with the Commenter's argument
that EPA cannot approve a SIP without certain elements such as the
visibility protection element. 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 a
plan meets the requirements of the CAA. As discussed above, this
authority to approve SIP revisions in separable parts was included in
the 1990 Amendments to the CAA. 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).
    As discussed above, EPA interprets its authority under section
110(k)(3) of the CAA, as affording EPA the discretion to approve
individual elements of Virginia's infrastructure submission for the
2010 SO2 NAAQS, separate and apart from any action with
respect to the requirements of section 110(a)(2)(D)(i)(II) for
visibility protection. EPA views discrete infrastructure SIP
requirements as severable from the other infrastructure elements and
interprets section 110(k)(3) as allowing it to act on individual,
severable measures. In short, EPA believes we have discretion under
section 110(k) of the CAA to act upon the various individual elements
of the state's infrastructure SIP submission, separately or together,
as appropriate. The concerns raised by the Commenter do not establish
that it is inappropriate or unreasonable for EPA to approve portions of
Virginia's June 18, 2014 infrastructure SIP submission for the 2010
SO2 NAAQS.
    EPA also has no obligation to issue a FIP to address Virginia's
obligations under section 110(a)(2)(D)(i)(II) until EPA first finds
Virginia failed to satisfy its visibility protection obligations with a
complete SIP submittal addressing that element or disapproves any SIP
submittal addressing that element. Until such occurs, EPA may not issue
any further FIP for visibility protection pursuant to section 110(c).
    Comment 13: The Commenter alleges the infrastructure SIP must not
allow for such things as ambient air incremental increases, variances,
exceptions, or exclusions for limits on sources of pollutants;
otherwise, the Commenter alleges Virginia cannot assure compliance with
infrastructure SIP requirements for the SO2 NAAQS. The
Commenter asserts the infrastructure SIP should not allow for certain
sources to be exempt from permit requirements nor allow affirmative
defenses or variances to ``requirements'' during startup, shutdown or
malfunction (SSM) or due to hardship. The Commenter states EPA cannot
delay acting on ``startup, shutdown, and malfunction'' of operations or
director's variances because of the mandatory timeline for
infrastructure SIPs under the CAA. The Commenter also asserts EPA
should issue a finding of non-completeness and set forth a FIP because
Virginia has failed to submit certain required components for its
SO2 infrastructure SIP. The Commenter maintains the CAA is
clear and that EPA's ``segmented and piecemeal approach'' to approving
Virginia's infrastructure SIP is inappropriate because infrastructure
SIPs must contain the entirety of a state's comprehensive plan to
implement and maintain the NAAQS and because the components of section
110(a)(2) are interrelated. Thus, the Commenter asserts EPA must
disapprove the SO2 infrastructure SIP submittal and issue a
FIP.
    Response 13: EPA disagrees with the Commenter that EPA must
disapprove Virginia's infrastructure SIP and issue a FIP, instead of
acting in a ``piecemeal'' approach (as Sierra Club calls it) in
approving the majority of Virginia's SO2 infrastructure SIP
while acting at a later date on certain specific elements of the SIP,
including the portions related to transport and regional haze in
110(a)(2)(D)(i)(I) and (II) and the portion related to State Boards in
110(a)(2)(E)(ii). As explained in the NPR for this rulemaking action
and in the responses above, EPA interprets its authority under section
110(k)(3) of the CAA as affording EPA the discretion to approve
individual elements of Virginia's infrastructure submission for the
2010 SO2 NAAQS, while taking later separate action on the
infrastructure submission for the requirements of section
110(a)(2)(D)(i) for transport and visibility protection or
110(a)(2)(E)(ii) for State Board requirements. As explained previously,
EPA views discrete infrastructure SIP requirements like transport,
State Boards, and visibility protection as severable from the other
infrastructure elements and interprets section 110(k)(3) as allowing
EPA to act on individual, severable measures. Section 110(k)(3)
expressly 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. As
discussed above, this authority to approve SIP revisions in separable
parts was included in the 1990 Amendments to the CAA. 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).
    In short, EPA believes that EPA has 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 Commenter has not provided any case law or EPA interpretation of
section 110 to support its contrary interpretation that it is
inappropriate or unreasonable for EPA to approve portions of Virginia's
June 18, 2014 infrastructure SIP submission for the 2010 SO2
NAAQS.
    In addition, EPA also has no obligation to issue a FIP to address
Virginia's obligations under section 110(a)(2)(D)(i)(I) or (II) or
110(a)(2)(E)(ii) until EPA first finds Virginia failed to satisfy its
obligations with a complete SIP submittal addressing those elements or
disapproves any SIP submittal addressing that element. Until such
occurs pursuant to section 110(c), EPA may not issue any FIP for
transport, visibility protection, or State Board requirements or the
infrastructure SIP as a whole.
    EPA also disagrees with the Commenter that EPA is required to
address all potential deficiencies that may exist in the Virginia SIP
in the context of evaluating an infrastructure SIP submission. In
particular, EPA is not addressing any existing SIP provisions related
to the treatment of emissions during SSM events, including automatic or
director's discretion exemptions, overbroad state enforcement
discretion provisions, or affirmative defense provisions. As EPA stated
in the TSD for this rulemaking action, EPA is not approving or
disapproving any existing Virginia regulatory or statutory provisions
with regard to excess emissions during SSM of operations at any
facility. EPA believes that a number of states may have SIP provisions
related to emissions during SSM events which are contrary to the CAA
and existing EPA guidance (August 11, 1999 Steven Herman and Robert
Perciasepe Guidance Memorandum, ``State Implementation Plans: Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown''), and EPA is addressing such potentially deficient SIP
provisions in a separate rulemaking. See 78 FR 12460 (February 22,
2013) (proposed rulemaking on SSM SIP

provisions). See also 79 FR 55920 (September 17, 2014) (supplemental
proposed rulemaking on affirmative defense provisions). In the TSD, EPA
also stated that EPA is not approving or disapproving any existing
Virginia regulatory or statutory provisions with regard to director's
discretion or variance provisions. EPA believes that a number of states
may have such provisions which are contrary to the CAA and existing EPA
guidance (see 52 FR 45109, November 1987), and EPA is also addressing
such state regulations in the separate rulemaking. See 78 FR 12460.
Similarly, EPA is not approving or disapproving any affirmative defense
provisions applicable to excess emissions during SSM events in this
action. EPA has separately proposed to address such existing
affirmative defense provisions in the SIPs of many states, including
Virginia. See also 79 FR 55920. In the meantime, EPA encourages any
state having deficient SIP provisions related to the treatment of
excess emissions during SSM events to take steps to correct them as
soon as possible. Upon conclusion of EPA's SSM SIP call rulemaking, any
states that EPA determines have impermissible SIP provisions related to
SSM events will have time to adjust their SIPs where necessary and as
required. As EPA is neither approving nor disapproving any new
provisions related to automatic or director's discretion exemptions,
overbroad state enforcement discretion provisions, or affirmative
defense provisions in this rulemaking, EPA disagrees with Sierra Club's
comment that the infrastructure SIP ``must not allow for such things''
and disagrees with any inference from the comment that EPA must
disapprove the Virginia SO2 infrastructure SIP because of
any such existing deficient provisions. Moreover, EPA emphasizes that
by approving Virginia's SO2 infrastructure SIP submission,
EPA is not approving or reapproving any such deficient provisions that
exist in the current SIP.
    Regarding the Commenter's statement that the infrastructure SIP
should not allow Virginia to exempt certain sources from permitting,
the Sierra Club fails to identify any exemptions from permitting that
preclude EPA from approving the infrastructure SIP. EPA explained in
the TSD for this rulemaking that Virginia's permitting program for
major and minor stationary sources met requirements in the CAA for
section 110(a)(2)(C). Specifically, EPA stated Virginia has a SIP-
approved minor new source review (NSR) program located in 9 VAC 5-80-10
(New and Modified Stationary Sources) and 9 VAC 5-80-11 (Stationary
Source Permit Exemption Levels) which regulates certain modifications
and construction of stationary sources within areas covered by its SIP
as necessary to assure the NAAQS are achieved. EPA had previously
approved such provisions into the Virginia SIP as they met requirements
for a minor NSR program in accordance with the CAA and 40 CFR 51.160.
See 65 FR 21315 (April 21, 2000).
    EPA's TSD for this rulemaking also explained Virginia's SIP met
requirements in section 110(a)(2)(C) for a PSD 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 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 Best Available
Control Technology to new or modified sources (9 VAC 5-80-1705, Control
Technology Review). EPA has previously approved Virginia's PSD permit
program as meeting the requirements in part C, title I of the CAA and
40 CFR 51.166. See 79 FR 10377 (February 25, 2014). The Sierra Club has
not identified any specific exemption that is allegedly problematic or
any recent amendments to the Virginia rules that has added such an
exemption. The Sierra Club has not demonstrated that Virginia's
permitting program for major and minor stationary sources does not meet
requirements in the CAA for section 110(a)(2)(C).

III. Final Action

    EPA is approving the following elements of Virginia's June 18, 2014
SIP revision for the 2010 SO2 NAAQS: Section 110(a)(2)(A),
(B), (C), (D)(i)(II) (PSD requirements), (D)(ii), (E)(i), (E)(iii),
(F), (G), (H), (J) (consultation, public notification, and PSD), (K),
(L), and (M). Virginia's SIP revision provides the basic program
elements specified in Section 110(a)(2) necessary to implement,
maintain, and enforce the 2010 SO2 NAAQS. This final
rulemaking action does not include action on section 110(a)(2)(I) which
pertains to the nonattainment planning requirements of part D, title I
of the CAA, because this element is not required to be submitted by the
3-year submission deadline of section 110(a)(1) of the CAA, and will be
addressed in a separate process. Additionally, EPA will take later,
separate action on section 110(a)(2)(D)(i)(I) (interstate transport of
emissions), (D)(i)(II) (visibility protection), (J) (visibility
protection) and (E)(ii) (Section 128, ``State Boards'') for the 2010
SO2 NAAQS as previously discussed.

IV. 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
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
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.

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 approving portions of Virginia's
infrastructure SIP for the 2010 SO2 NAAQS 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 4, 2015. 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 2010 SO2 NAAQS for the
Commonwealth of Virginia, may not be challenged later in proceedings to
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, Sulfur dioxide.

    Dated: February 5, 2015.
William 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 (e), adding an entry for ``Section 110(a)(2)
Infrastructure Requirements for the 2010 Sulfur Dioxide NAAQS'' at the
end of the table.
    The amendments read as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

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   Name of non-regulatory SIP          Applicable            State                                Additional