[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Proposed Rules]
[Pages 47264-47267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18705]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2013-0510; FRL-9841-9]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Section 110(a)(2) Infrastructure Requirements for the 2010
Nitrogen Dioxide National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve 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
[[Page 47265]]
for the implementation, maintenance, and enforcement of such NAAQS. The
plan is required to address basic program elements, including, but not
limited to regulatory structure, monitoring, modeling, legal authority,
and adequate resources necessary to assure attainment and maintenance
of the standards. These elements are referred to as infrastructure
requirements. The Commonwealth of Virginia has made a submittal
addressing the infrastructure requirements for the 2010 nitrogen
dioxide (NO2) NAAQS.
DATES: Written comments must be received on or before September 4,
2013.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0510 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2013-0510, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Air Protection Division,
Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0510. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: On May 30, 2013, the Virginia Department of
Environmental Quality (VADEQ) submitted a revision to its SIP to
satisfy the requirements of section 110(a)(2) of the CAA for the 2010
NO2 NAAQS.
I. Background
EPA first set standards for NO2 in 1971, setting both a
primary standard (to protect health) and a secondary standard (to
protect the public welfare) at 53 parts per billion (53 ppb), averaged
annually. EPA has reviewed the standards twice since that time, but
chose not to revise the annual standards at the conclusion of each
review. On February 9, 2010, EPA established an additional primary
NO2 standard at 100 ppb, averaged over one hour.
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS. Specifically, 110(a)(1) requires states to submit SIPs
meeting the applicable requirements of section 110(a)(2) within three
years following the promulgation of such NAAQS, or within such shorter
period as EPA may prescribe, and section 110(a)(2) requires states to
address specific elements for monitoring, basic program requirements
and legal authority that are designed to assure attainment and
maintenance of the newly established or revised NAAQS.
The contents of a submission may vary depending upon the facts and
circumstances. In particular, the data and analytical tools available
at the time the state develops and submits the SIP for a new or revised
NAAQS affects the content of the submission. The contents of such SIP
submissions may also vary depending upon what provisions the state's
existing SIP already contains. States were required to submit such SIPs
for the 2010 NO2 NAAQS to EPA no later than January 2013.
II. Summary of SIP Revision
On May 30, 2013, VADEQ provided a SIP revision to satisfy the
requirements of section 110(a)(2) of the CAA for the 2010
NO2 NAAQS. This revision addresses the following
infrastructure elements, which EPA is proposing to approve: Sections
110(a)(2)(A), (B), (C) (for enforcement and regulation of minor sources
and minor modifications), (D)(i)(II) (for visibility protection),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and (M), or
portions thereof. EPA is taking separate action on the portions of
section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to Virginia's
prevention of significant deterioration (PSD) program and on section
110(a)(2)(E)(ii) as it relates to section 128 (State Boards). This
action does not include any proposed action on section 110(a)(2)(I) of
the CAA 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 CAA section 110(a)(1),
and will be addressed in a separate process.
Also, in accordance with the EME Homer City decision from the
United States Court of Appeals for the District of Columbia Circuit, a
state is not required to submit a SIP pursuant to section 110(a) which
addresses section 110(a)(2)(D)(i)(I) until EPA has defined a state's
contribution to nonattainment or interference with maintenance in
another state. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (DC
Cir. 2012), cert. granted, 2013 U.S. LEXIS 4801 (2013). Unless the EME
Homer City decision is reversed or otherwise modified by the Supreme
Court, states such as Virginia are not required to submit section
110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their obligations
under that section. Virginia's May 30, 2013 infrastructure SIP
submission for the
[[Page 47266]]
2010 NO2 NAAQS does not include a component to address
section 110(a)(2)(D)(i)(I). Therefore, in this action, EPA is not
proposing to act on the section 110(a)(2)(D)(i)(I) portion of
Virginia's May 30, 2013 SIP submission for the 2010 NO2
NAAQS. A detailed summary of EPA's review and rationale for approving
Virginia's submittal may be found in the Technical Support Document
(TSD) for this proposed rulemaking action, which is available online at
www.regulations.gov, Docket number EPA-R03-OAR-2013-0510.
III. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts. . . .'' The opinion
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by Federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
PSD, NSR, or Title V programs consistent with the Federal requirements.
In any event, because EPA has also determined that a state audit
privilege and immunity law can affect only state enforcement and cannot
have any impact on Federal enforcement authorities, EPA may at any time
invoke its authority under the CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions
of the state plan, independently of any state enforcement effort. In
addition, citizen enforcement under section 304 of the CAA is likewise
unaffected by this, or any, state audit privilege or immunity law.
IV. Proposed Action
EPA is proposing to approve the following infrastructure elements
or portions thereof of Virginia's May 30, 2013 SIP revision: Section
110(a)(2)(A), (B), (C) (for enforcement and regulation of minor sources
and minor modifications), (D)(i)(II) (for visibility protection),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to
consultation, public notification, and visibility protection
requirements), (K), (L), and (M). Virginia's SIP revision provides the
basic program elements specified in section 110(a)(2) necessary to
implement, maintain, and enforce the 2010 NO2 NAAQS. This
action does not include any proposed action on section 110(a)(2)(I) of
the CAA which pertains to the nonattainment requirements of part D,
Title I of the CAA, since this element is not required to be submitted
by the 3-year submission deadline of CAA section 110(a)(1), and will be
addressed in a separate process. EPA is not taking proposed action on
section 110(a)(2)(D)(i)(I) of the CAA, because this element, or
portions thereof, is not presently required to be submitted by a state
until the EPA has quantified a state's obligations under that section.
EPA is taking separate action on the portions of (C), (D)(i)(II), and
(J) as they relate to Virginia's PSD program, and on (E)(ii) as it
relates to section 128 (State Boards). EPA is soliciting public
comments on the issues discussed in this document. These comments will
be considered before taking final action.
V. Statutory and Executive Order Reviews
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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed 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);
[[Page 47267]]
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 proposed rule, which satisfies certain
infrastructure requirements of section 110(a)(2) of the CAA for the
2010 NO2 NAAQS for the Commonwealth of Virginia, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 19, 2013.
Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2013-18705 Filed 8-2-13; 8:45 am]
BILLING CODE 6560-50-P