[Federal Register Volume 81, Number 116 (Thursday, June 16, 2016)]
[Rules and Regulations]
[Pages 39208-39211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14181]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2015-0838; FRL-9947-76-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia Infrastructure Requirements for the 2012 Fine Particulate
Matter 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 (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 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 2012 fine particulate matter (PM2.5)
NAAQS.
DATES: This final rule is effective on July 18, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2015-0838. 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 through www.regulations.gov or may be viewed 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
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219.
[[Page 39209]]
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 18, 1997, the EPA promulgated a new 24-hour and a new
annual NAAQS for PM2.5 (62 FR 38652). Subsequently, on
December 14, 2012, the EPA revised the level of the health based
(primary) annual PM2.5 standard to 12 micrograms per cubic
meter ([micro]g/m\3\). See 78 FR 3086 (January 15, 2013).\1\
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\1\ In EPA's 2012 PM2.5 NAAQS revision, EPA left
unchanged the existing welfare (secondary) standards for
PM2.5 to address PM related effects such as visibility
impairment, ecological effects, damage to materials and climate
impacts. This includes an annual secondary standard of 15 [mu]g/m\3\
and a 24-hour standard of 35 [mu]g/m\3\.
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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. Section 110(a)(2)
requires states to address basic SIP elements such as requirements for
monitoring, basic program requirements, and legal authority that are
designed to assure attainment and maintenance of the NAAQS. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affect the content of the
submission. The content of such SIP submission may also vary depending
upon what provisions the state's existing SIP already contains.
II. Summary of SIP Revision
On July 16, 2015, 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 2012 PM2.5 NAAQS.\2\ On March 7, 2016 (81 FR
11711), EPA published a notice of proposed rulemaking (NPR) proposing
approval of the Virginia July 16, 2015 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), (F), (G), (H), (J), (K), (L), and (M).
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\2\ To clarify, the ``2013 PM2.5 NAAQS'' referred to
in the Virginia SIP submittal is the same as the ``2012
PM2.5 NAAQS'' EPA refers to in this rulemaking action.
The final rule for this NAAQS was signed by the EPA Administrator on
December 14, 2012, thereby it has been called the ``2012
PM2.5 NAAQS.'' However, the final rule was published in
the Federal Register on January 15, 2013, with an effective date of
March 13, 2013, resulting in it also being referred to as the ``2013
PM2.5 NAAQS.''
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At this time, EPA is not taking action on section
110(a)(2)(D)(i)(I) of the CAA relating to interstate transport of
emissions because Virginia's July 16, 2016 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 2012
PM2.5 NAAQS for Virginia as explained in the NPR.
Additionally, EPA is not at this time taking action on section
110(a)(2)(D)(i)(II) for visibility protection for the 2012
PM2.5 NAAQS as explained in the NPR. Although Virginia's
infrastructure SIP submittal for the 2012 PM2.5 NAAQS
referred to Virginia's regional haze SIP for section
110(a)(2)(D)(i)(II) 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. Finally, 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 if necessary.
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-2015-
0838. No public comments were received on the NPR.
III. Final Action
EPA is approving, as a revision to the Virginia SIP, the following
elements of Virginia's July 16, 2015 SIP revision for the 2012
PM2.5 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II)
(prevention of significant deterioration), (D)(ii), (E), (F), (G), (H),
(J), (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 2012 PM2.5 NAAQS. This final
rulemaking action does not include action on sections
110(a)(2)(D)(i)(I) (interstate transport of emissions), and (D)(i)(II)
(visibility protection) for the 2012 PM2.5 NAAQS as
previously discussed. Additionally, EPA is not taking 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 if necessary.
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
[[Page 39210]]
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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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).
The SIP is not approved to apply on any Indian reservation land as
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
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 August 15, 2016. 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 2012
PM2.5 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, Particulate matter, Reporting and recordkeeping
requirements.
Dated: May 27, 2016.
Shawn M. Garvin,
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. In Sec. 52.2420, the table in paragraph (e) is amended by adding,
to the end of the table, an entry for ``Section 110(a)(2)
Infrastructure Requirements for the 2012 Particulate Matter NAAQS.''
The added text reads as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
[[Page 39211]]
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Name of non-regulatory SIP Applicable State
revision geographic area submittal date EPA approval date Additional explanation
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* * * * * * *
Section 110(a)(2) Statewide........... 7/16/15 6/16/16, [Insert Docket #2015-0838.
Infrastructure Requirements Federal Register This action addresses
for the 2012 Particulate citation]. the following CAA
Matter NAAQS. elements, or portions
thereof:
110(a)(2)(A), (B),
(C), (D)(i)(II)(PSD),
(D)(ii), (E), (F),
(G), (H), (J), (K),
(L), and (M).
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[FR Doc. 2016-14181 Filed 6-15-16; 8:45 am]
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