[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Proposed Rules]
[Pages 20002-20004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09653]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0601; FRL-9977-42--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide
and 2012 Fine Particulate Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; supplemental.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing a
supplement to its March 1, 2018 proposed approval of the Commonwealth
of Virginia's (the Commonwealth or Virginia) request to change reliance
on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State
Air Pollution Rule (CSAPR) to address certain regional haze
requirements and to convert the Agency's limited approval/limited
disapproval of Virginia's regional haze SIP to a full approval. EPA's
March 1, 2018 notice of proposed rulemaking (NPR) also proposed to
approve the ``visibility element'' of Virginia's infrastructure SIP
submittals for the 2010 sulfur dioxide (SO2) and 2012 fine
particulate matter (PM2.5) national ambient air quality
standards (NAAQS). This supplemental proposal clarifies the
infrastructure elements the Agency is proposing to approve for the 2010
SO2 National Ambient Air Quality Standards (NAAQS) and
proposes to remove EPA's June 7, 2012 federal implementation plan (FIP)
for Virginia which replaced reliance on CAIR with reliance on CSAPR to
address certain deficient regional haze requirements identified in the
Commonwealth's regional haze state implementation plan (SIP). EPA is
seeking comment only on the issues raised in this supplemental proposal
and is not reopening for comment other issues raised in its prior
proposal. This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before June 6, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0601 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 16, 2015, the Virginia Department of Environmental Quality
(VA DEQ) submitted a revision to the Virginia SIP to update its
regional haze plan to change reliance from CAIR to CSAPR and to meet
visibility requirements in section 110(a)(2)(D) of the CAA. On March 1,
2018 (83 FR 8814), EPA published a notice of proposed rulemaking (March
1, 2018 NPR) proposing to take the following actions: (1) Approve
Virginia's July 16, 2015 SIP submission that changes reliance on CAIR
to reliance on CSAPR for certain elements of Virginia's regional haze
program; (2) convert EPA's limited approval/limited disapproval of
Virginia's regional haze program to a full approval; and (3) approve
the prong 4 portions of Virginia's June 18, 2014 infrastructure SIP
submission for the 2010 SO2 NAAQS and of its July 16, 2015
infrastructure SIP submission for the 2012 PM2.5 NAAQS. EPA
is not reopening the public comment period to submit comment on the
issues addressed in the March 1, 2018 NPR.
II. Specific Issues Addressed in This Supplemental NPR
Removal of Partial Regional Haze FIP
On June 7, 2012, EPA finalized a limited approval and a limited
disapproval of several SIP revisions submitted by VA DEQ meant to
address regional haze program requirements.\1\ The limited disapproval
of these SIP revisions was based upon Virginia's reliance on CAIR as an
alternative to best available retrofit technology (BART) and as a
measure for reasonable progress. To address deficiencies in CAIR-
dependent regional haze SIPs for several states, including Virginia,
EPA promulgated FIPs that replace reliance on CAIR with reliance on
CSAPR to meet BART and reasonable progress requirements in Virginia and
other states in that same action. Consequently, for these states, this
particular aspect of their regional haze requirements was satisfied by
a FIP (hereafter referred to as partial RH FIP). On July 16, 2015, the
Commonwealth of Virginia submitted a SIP revision changing its reliance
from CAIR to CSAPR in its SIP to meet BART for visibility purposes and
for addressing reasonable progress requirements, thereby removing
Virginia's need for the partial RH FIP.
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\1\ 77 FR 33643. Virginia's SIP revisions are dated July 17,
2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19,
2010, and May 6, 2011.
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In its March 1, 2018 NPR, EPA proposed to approve the July 16, 2015
SIP revision which would change Virginia's reliance upon CAIR to
reliance upon CSAPR for the BART and reasonable progress elements of
Virginia's regional haze program. EPA also proposed to convert EPA's
limited approval/limited disapproval of Virginia's regional haze
program to a full approval based on Virginia's SIP revision changing
reliance upon CAIR to reliance upon CSAPR. In this action, EPA proposes
to remove the Agency's partial RH FIP for Virginia which replaced
reliance on CAIR with reliance on CSAPR to address certain deficient
regional haze requirements identified in the Commonwealth's regional
haze SIP. EPA's proposed action to remove this FIP for Virginia is in
accordance with section 110(l) of the CAA and will not impact any
regional requirements as Virginia will have, when this action is final,
a fully approved regional haze program and the ability to rely on CSAPR
for certain regional haze requirements, incorporated in its SIP.
Section 110(a)(2)(J) Visibility Requirement
The CAA requires states to submit, within three years after
promulgation of a new or revised NAAQS, SIP revisions meeting the
applicable elements of sections 110(a)(1) and (2). SIP revisions that
are intended to meet the requirements of section 110(a) of the CAA are
often referred to as
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infrastructure SIPs and the elements under 110(a) are referred to as
infrastructure requirements. EPA acted on the majority of the
infrastructure elements within Virginia's infrastructure SIP submittals
for the 2010 SO2 and 2012 PM2.5 NAAQS, but
concluded that it would take separate action on 110(a)(2)(J) for
visibility for 2010 SO2 as well as on 110(a)(2)(D)(i)(II)
for visibility (also known as prong 4) for both the 2010 SO2
and 2012 PM2.5.2 3
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\2\ On March 4, 2015 (80 FR 11557), EPA approved portions of
Virginia's June 18, 2014 submittal for the 2010 SO2 NAAQS
addressing the following: CAA section 110(a)(2)(A), (B), (C),
(D)(i)(II) for prevention of significant deterioration, (D)(ii),
(E), (F), (G), (H), (J) (consultation, public notification, and
prevention of significant deterioration), (K), (L), and (M).
\3\ On June 16, 2016 (81 FR 39208), EPA approved portions of
Virginia's July 16, 2015 submittal for the 2012 PM2.5
NAAQS addressing the following: CAA section 110(a)(2)(A), (B), (C),
(D)(i)(II) for prevention of significant deterioration, (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M).
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In its March 1, 2018 NPR, EPA proposed to approve prong 4 for both
the 2010 SO2 and 2012 PM2.5 NAAQS,\4\ however the
Agency did not address section 110(a)(2)(J) of the CAA as it relates to
visibility protection. For this section, EPA recognizes that states are
subject to visibility and regional haze program requirements under part
C of the CAA. In the event of the establishment of a new NAAQS, the
visibility and regional haze program requirements under part C do not
change. Therefore, when EPA took action on Virginia's infrastructure
SIP submittal for the 2010 SO2 NAAQS,\5\ the Agency could
have approved 110(a)(2)(J) for visibility; however, it inadvertently
neglected to do so at that time. EPA is now taking action to remedy
this unintentional omission by proposing approval of Virginia's June
18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS
specifically for section 110(a)(2)(J) for visibility as well as for
prong 4 which we proposed for approval on March 1, 2018.
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\4\ In its analysis for the March 1, 2018 NPR, EPA proposed to
find that if revisions to the Commonwealth's regional haze SIP were
fully approved, then the prong 4 portions of Virginia's
infrastructure SIP submittal for the 2010 SO2 and 2012
PM2.5 NAAQS meet applicable requirements of the CAA.
\5\ See 80 FR 11557. (approving Virginia's June 18, 2014
submittal for the 2010 SO2 NAAQS for CAA section
110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant
deterioration, (D)(ii), (E), (F), (G), (H), (J) (consultation,
public notification, and prevention of significant deterioration),
(K), (L), and (M)).
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EPA is soliciting comments on the specific issues discussed in this
document referring to the proposed: (1). Removal of the partial
regional haze FIP which replaced reliance on CAIR with reliance on
CSPAR to address certain regional haze requirements as finalizing our
March 1, 2018 NPR will give Virginia's regional haze SIP full approval;
and (2). approval of Virginia's June 18, 2014 infrastructure SIP
submittal for the 2010 SO2 NAAQS section 110(a)(2)(J) for
visibility (in addition to approval for 110(a)(2)(D)(i)(II)). These
comments and those received during the comment period for the March 1,
2018 NPR will be considered before taking final action.
III. Proposed Action
EPA is proposing removal of the partial regional haze FIP which
replaced reliance on CAIR with reliance on CSPAR to address certain
regional haze requirements and approval of Virginia's June 18, 2014
infrastructure SIP submittal for the 2010 SO2 NAAQS for
section 110(a)(2)(J) for visibility.
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
regional haze 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
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and
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Regulatory Review. This action is not a significant regulatory action
and was therefore not submitted to the Office of Management and Budget
(OMB) for review.
Paperwork Reduction Act (PRA). This action does not impose
an information collection burden under the PRA. Therefore, its
recordkeeping and reporting provisions do not constitute a ``collection
of information'' as defined under 44 U.S.C. 3502(3) and 5 CFR
1320.3(c).
Regulatory Flexibility Act (RFA). This action will not
have a significant economic impact on a substantial number of small
entities under the RFA. This action will not impose any requirements on
small entities.
Unfunded Mandates Reform Act (UMRA). This action does not
contain an unfunded mandate of $100 million or more as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments.
Executive Order 13132: Federalism. This action does not
have federalism implications. It will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.
Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments. This action does not have tribal
implications, as specified in Executive Order 13175. It will not have
substantial direct effects on any Indian tribes, on the relationship
between the federal government and Indian tribes, or on the
distribution of power and responsibilities between the federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this action.
Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks. EPA interprets Executive
Order 13045 as applying only to those regulatory actions that concern
health or safety risks that EPA has reason to believe may
disproportionately affect children, per the definition of ``covered
regulatory action'' in section 2-202 of the Executive Order. This
action is not an economically significant regulatory action based on
health or safety risks subject to Executive Order 13045.
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).
In addition, pursuant to CAA section 307(d)(1)(B), EPA proposes to
determine that this action is subject to the provisions of section
307(d). Section 307(d) establishes procedural requirements specific to
certain rulemaking actions under the CAA. Pursuant to CAA section
307(d)(1)(B), the withdrawal of the provisions of the Virginia regional
haze regional FIP that apply to changing reliance on CAIR to reliance
on CSAPR to address certain deficient regional haze requirements is
subject to the requirements of CAA section 307(d), as it constitutes a
revision to a FIP under section 110(c) of the CAA. Furthermore, section
307(d)(1)(V) of the CAA provides that the provisions of section 307(d)
apply to ``such other actions as the Administrator may determine.'' EPA
proposes that the provisions of 307(d) apply to EPA's action on the
Virginia SIP revision.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 19, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-09653 Filed 5-4-18; 8:45 am]
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