[Federal Register Volume 83, Number 90 (Wednesday, May 9, 2018)]
[Proposed Rules]
[Pages 21233-21235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09887]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0337; FRL-9977-88--Region 3]


Approval and Promulgation of Air Quality Implementation 
Plans;Virginia; Interstate Transport Requirements for the 2012 Fine 
Particulate Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
Commonwealth of Virginia (the Commonwealth or Virginia). This revision 
pertains to the infrastructure requirement for interstate transport of 
pollution with respect to the 2012 fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS). EPA 
is approving this revision in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before June 8, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0337 at https://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 https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, (215) 814-2021, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: On June 16, 2015, Virginia, through the 
Department of Environmental Quality (VADEQ), submitted a SIP revision 
to address the elements of CAA section 110(a)(2) with the exception of 
section 110(a)(2)(D)(i). EPA approved that SIP revision on June 16, 
2016. See 81 FR 39210. EPA's previous approval on that June 16, 2015 
submittal is not at issue in this rulemaking action and EPA will not be 
taking comment on the previous approval. On May 16, 2017, Virginia, 
through VADEQ, submitted a SIP revision addressing the infrastructure 
requirements under section 110(a)(2)(D)(i) of the CAA for the 2012 
PM2.5 NAAQS.

I. Background

A. General

    Particle pollution is a complex mixture of extremely small 
particles and liquid droplets in the air. When inhaled, these particles 
can reach the deepest regions of the lungs. Exposure to particle 
pollution is linked to a variety of significant health problems. 
Particle pollution also is the main cause of visibility impairment in 
the nation's cities and national parks. PM2.5 can be emitted 
directly into the atmosphere, or it can form from chemical reactions of 
precursor gases including sulfur dioxide (SO2), nitrogen 
dioxide (NO2), certain volatile organic compounds (VOC), and 
ammonia. On January 15, 2013, EPA revised the level of the health based 
(primary) annual PM2.5 standard to 12 micrograms per meter 
cubed ([micro]g/m\3\). See 78 FR 3086.

B. EPA's Infrastructure Requirements

    Pursuant to section 110(a)(1) of the CAA, states are required to 
submit a SIP revision to address 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 to assure 
attainment and maintenance of the NAAQS--such as requirements for 
monitoring, basic program requirements, and legal authority. 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 of each NAAQS and what 
is in each state's existing SIP. In particular, the data and analytical 
tools available at the time the state develops and submits the SIP 
revision 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.
    Specifically, section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions. Section 110(a)(2) lists specific 
elements that states must meet for infrastructure SIP requirements 
related to a newly established or revised NAAQS such as requirements 
for monitoring, basic program requirements, and legal authority that 
are designed to assure attainment and maintenance of the NAAQS.

C. Interstate Pollution Transport Requirements

    Section 110(a)(2)(D)(i)(I) of the CAA requires a state's SIP to 
address any emissions activity in one state that contributes 
significantly to nonattainment, or interferes with maintenance, of the 
NAAQS in any downwind state. The EPA sometimes refers to these 
requirements as prong 1 (significant contribution to nonattainment) and 
prong 2 (interference with maintenance), or jointly as the ``good 
neighbor'' provision of the CAA. On March 17, 2016, EPA issued a 
memorandum providing information on the development and review of SIPs 
that address CAA section 110(a)(2)(D)(i) for the 2012 PM2.5 
NAAQS (2016 PM2.5 Memorandum).\1\ Further information can be 
found in the Technical Support Document (TSD) for this rulemaking 
action, which is available online at www.regulations.gov, Docket number 
EPA-R03-OAR-2017-0337.
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    \1\ ``Information on the Interstate Transport ``Good Neighbor'' 
Provision for the 2012 Fine Particulate Matter National Ambient Air 
Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I),'' 
Memorandum from Stephen D. Page, Director, EPA Office of Air Quality 
Planning and Standards (March 17, 2016). A copy is included in the 
docket for this rulemaking action.
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II. Summary of SIP Revisions and EPA Analysis

    Virginia's May 16, 2017 SIP submittal includes a summary of annual 
emissions of oxides of nitrogen (NOX) and SO2, 
both of which are precursors of PM2.5. The emissions summary 
shows that emissions from Virginia sources have been steadily 
decreasing for sources that could potentially contribute with respect 
to the 2012 PM2.5 NAAQS to nonattainment in, or interfere 
with maintenance of, any other state. The submittal also included 
currently

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available air quality monitoring data for PM2.5, and its 
precursors SO2 and NO2, which Virginia alleged 
show that PM2.5 levels continue to be below the 2012 
PM2.5 NAAQS in Virginia.
    Virginia also discussed EPA's 2016 PM2.5 Memorandum and 
the fact that EPA's analysis showed that only one monitor in the 
eastern United States had projected PM2.5 data above the 
12.0 [micro]g/m\3\ NAAQS value (Allegheny County, PA). Virginia also 
discussed the direction of prevailing winds throughout Virginia and 
how, apart from short-term weather variations, Virginia's emissions 
would have a negligible influence on Allegheny County's attainment 
status. Virginia also points to EPA's response to comments on the 2012 
PM2.5 Designations, in which EPA discusses the factors 
contributing to the Allegheny County area's nonattainment 
designation.\2\
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    \2\ ``Response to Significant Comments on the State and Tribal 
Designation Recommendations for the 2012 Annual PM2.5 
National Ambient Air Quality Standard (NAAQS)'' December 17, 2014. 
See Docket Number: EPA-HQ-OAR-2012-0918-0337, page 10.
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    Additionally, Virginia described in its submittal several existing 
SIP-approved measures and other federally enforceable source-specific 
measures, pursuant to permitting requirements under the CAA, that apply 
to sources of PM2.5 and its precursors within Virginia. 
Virginia alleges with these measures, emissions reductions, ambient 
monitored PM2.5 data, and meteorological data, the 
Commonwealth does not significantly contribute to, nor interfere with 
the maintenance of, another state for the 2012 PM2.5 NAAQS. 
A detailed summary of Virginia's submittal and EPA's review and 
rationale for approval of this SIP revision as meeting CAA section 
110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS may be found in 
the TSD for this rulemaking action, which is available online at 
www.regulations.gov, Docket number EPA-R03-OAR-2017-0337.
    EPA used the information in the 2016 PM2.5 Memorandum 
and additional information for the evaluation and came to the same 
conclusion as Virginia. As discussed in greater detail in the TSD, EPA 
identified the potential downwind nonattainment and maintenance 
receptors identified in the 2016 PM2.5 Memorandum, and then 
evaluated them to determine if Virginia's emissions could potentially 
contribute to nonattainment and maintenance problems in 2021, the 
attainment year for moderate PM2.5 nonattainment areas. 
Specifically, the analysis identified the following areas as potential 
nonattainment and maintenance receptors: (i) 17 potential receptors in 
California; (ii) one potential receptor in Shoshone County, Idaho; 
(iii) one potential receptor in Allegheny County, Pennsylvania; (iv) 
data gaps exist for the monitors in four counties in Florida; and (v) 
data gaps exist for all monitors in Illinois. For the 17 receptors in 
California and one potential receptor in Idaho, based on EPA's 
evaluation of distance and wind direction, EPA proposes to conclude 
that Virginia's emissions do not significantly impact those receptors. 
For the potential receptor in Allegheny County, EPA expects the air 
quality affecting that monitor to improve to the point where the 
monitor will not be a nonattainment or maintenance receptor by 2021 and 
is therefore unlikely to be a receptor for purposes of interstate 
transport. For the four counties in Florida and the monitors in 
Illinois with data gaps, EPA initially treats those receptors as 
potential nonattainment or maintenance receptors. For the Florida 
receptors, it is unlikely that they will be nonattainment or 
maintenance receptors in 2021 and in any event, modeling from the 
Cross-State Air Pollution Rule (CSAPR) indicates that Virginia's 
emissions do not contribute to them. For the monitors in Illinois, the 
most recent air quality data (from 2015 and 2016) indicates that all 
monitors are likely attaining the PM2.5 NAAQs and are 
therefore unlikely to be nonattainment or maintenance concerns in 2021. 
Therefore, EPA proposes to conclude that Virginia emissions will not 
contribute to those monitors. For these reasons, EPA is proposing to 
find that Virginia's existing SIP provisions as identified in the May 
16, 2017 SIP submittal are adequate to prevent its emission sources 
from significantly contributing to nonattainment or interfering with 
maintenance in another state with respect to the 2012 PM2.5 
NAAQS.

III. Proposed Action

    EPA is proposing to approve the May 16, 2017 Virginia SIP revision 
addressing the interstate transport requirements for the 2012 
PM2.5 NAAQS because the submittal adequately addresses 
section 110(a)(2)(D)(i)(I) of the CAA. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

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

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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

    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 proposed 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);
     is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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).
    This action, proposing approval of Virginia's interstate transport 
submittal for the 2012 PM2.5 standard, 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter.

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

    Dated: May 1, 2018.
 Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-09887 Filed 5-8-18; 8:45 am]
 BILLING CODE 6560-50-P


