
[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 schmitt.ellen@epa.gov.

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]
 BILLING CODE 6560-50-P


