
[Federal Register Volume 78, Number 112 (Tuesday, June 11, 2013)]
[Proposed Rules]
[Pages 34970-34972]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13726]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0451; FRL-9822-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Section 110(a)(2) Infrastructure Requirements for the 2008 
Lead National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the Commonwealth of Virginia addressing the basic 
program elements specified in 110(a)(2) of the Clean Air Act (CAA) 
necessary to implement, maintain, and enforce the 2008 lead national 
ambient air quality standards (NAAQS). This submission is commonly 
referred to as an infrastructure SIP. This action does not include the 
nonattainment requirements of part D, Title I (referred to as element 
I), 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 action. This action is being taken under the CAA.

DATES: Written comments must be received on or before July 11, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0451 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2012-0451, 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-
2012-0451. 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 schmitt.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: On March 9, 2012, 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 2008 
lead NAAQS.

I. Background

    On October 15, 2008, EPA substantially strengthened the primary and 
secondary lead NAAQS (hereafter the ``2008 lead NAAQS''), revising the 
level of the primary (health-based) standard from 1.5 micrograms per 
cubic meter ([mu]g/m\3\) to 0.15 [mu]g/m\3\, measured as total 
suspended particles (TSP) and not to be exceeded with an averaging time 
of a rolling 3-month period. EPA also revised the secondary (welfare-
based) standard to be identical to the primary standard, as well as the 
associated ambient air monitoring requirements. See 40 CFR 50.16.
    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 within three years following the promulgation of such 
NAAQS or within such shorter period as EPA may prescribe. The contents 
of that submission may vary depending upon the facts and circumstances. 
In particular, the data and analytical tools available at the time the 
state develops and submits the SIP for a new or revised NAAQS affects 
the content of the submission. The contents of such SIP submissions may 
also vary depending upon what provisions the state's existing SIP 
already contains.
    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)(1) 
provides the procedural and timing requirements for SIPs and 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. More specifically, section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS.
    For the 2008 lead NAAQS, states typically have met many of the 
basic program elements required in CAA section 110(a)(2) through 
earlier SIP submissions in connection with previous lead NAAQS. 
Nevertheless, pursuant to CAA section 110(a)(1), states will have to 
review and revise, as appropriate, their existing lead NAAQS SIPs to 
ensure that the SIPs are adequate to address the 2008 lead NAAQS. To 
assist states in meeting this statutory requirement, EPA issued a 
guidance on October 14, 2011, entitled, ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements Required Under sections 
110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air 
Quality Standards (NAAQS)'' (hereafter the ``2011 Lead Infrastructure 
Guidance''), which lists the basic

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elements that states should include in their SIPs for the 2008 lead 
NAAQS.

II. Summary of SIP Revision

    On March 9, 2012, VADEQ provided a submittal to satisfy the 
requirements of section 110(a)(2) of the CAA for the 2008 lead NAAQS. 
This submittal addressed the following infrastructure elements, which 
EPA is proposing to approve: CAA section 110(a)(2)(A), (B), (C) (for 
enforcement and regulation of minor sources), (D)(i)(I), (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 (C), (D)(i)(II), and (J) as they relate to 
Virginia's PSD program and (E)(ii) as it relates to CAA section 128 
(State Boards). Virginia did not submit element (I) which pertains to 
the nonattainment requirements of part D, Title I of the CAA, since 
this element is not required to be submitted by the 3-year submission 
deadline of CAA section 110(a)(1), and will be addressed in a separate 
process.
    In accordance with a decision from the U.S. Court of Appeals for 
the D.C. Circuit, the EPA at this time is not treating the 
110(a)(2)(D)(i)(I) SIP submission from the Commonwealth of Virginia as 
a required SIP submission. See EME Homer City Generation, LP v. EPA, 
696 F.3d 7 (D.C. Cir. 2012), reh'g denied 2013 U.S. App. LEXIS 1623 
(Jan. 24, 2013). However, even if the submission is not considered to 
be ``required,'' the EPA must act on the 110(a)(2)(D)(i)(I) SIP 
submission from Virginia because section 110(k)(2) of the CAA requires 
the EPA to act on all SIP submissions. Unless the EME Homer City 
decision is reversed or otherwise modified by the Supreme Court, states 
are not required to submit 110(a)(2)(D)(i)(I) SIPs until the EPA has 
quantified their obligations under that section. In this notice, EPA is 
proposing to act on the Commonwealth of Virginia's 110(a)(2)(D)(i)(I) 
submission.

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 CAA section 110(a)(2) 
elements of Virginia's SIP revision: (A), (B), (C) (for enforcement and 
regulation of minor sources), (D)(i)(I), (D)(i)(II) (for visibility 
protection), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), 
and (M), or portions thereof. Virginia's SIP revision provides the 
basic program elements specified in CAA section 110(a)(2) necessary to 
implement, maintain, and enforce the 2008 lead NAAQS. This SIP revision 
was submitted on March 9, 2012. This action does not include 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. 
Additionally, EPA is taking separate action on the portions of CAA 
section 110(a)(2) infrastructure elements for the 2008 lead NAAQS as 
they relate to Virginia's PSD program, as required by part C of Title I 
of the CAA. This includes portions of the following infrastructure 
elements of CAA section 110(a)(2): (C), (D)(i)(II), and (J). 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

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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);
     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 
2008 lead 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, Lead.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: May 28, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-13726 Filed 6-10-13; 8:45 am]
BILLING CODE 6560-50-P


