
[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Proposed Rules]
[Pages 47264-47267]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18705]


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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.

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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

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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: fernandez.cristina@epa.gov.
    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 schmitt.ellen@epa.gov.

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

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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);

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     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]
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