[Federal Register Volume 83, Number 41 (Thursday, March 1, 2018)]
[Proposed Rules]
[Pages 8814-8817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04185]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0601; FRL-9974-99--Region 3]


Air Plan Approval; Virginia; Regional Haze Plan and Visibility 
for the 2010 SO2 and 2012 PM2.5 Standards

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) that changes 
reliance on the Clean Air Interstate Rule (CAIR) to reliance on the 
Cross-State Air Pollution Rule (CSAPR) to address certain regional haze 
requirements. EPA's approval of this SIP revision would convert the 
Agency's limited approval/limited disapproval of Virginia's regional 
haze SIP to a full approval. EPA is also proposing 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). 
These proposed actions are supported by EPA's recent final 
determination that a state's participation in CSAPR continues to meet 
the Regional Haze Rule's (RHR) criteria to qualify as an alternative to 
the application of best available retrofit technology (BART). This 
action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before April 2, 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 at 
[email protected].

SUPPLEMENTARY INFORMATION: On July 16, 2015, the Virginia Department of 
Environmental Quality (VA DEQ) submitted a revision to its SIP to 
update its regional haze plan and to meet visibility requirements in 
section 110(a)(2)(D) of the CAA.

I. Background

A. Regional Haze and the Relationship With CAIR and CSAPR

    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes ``as a national 
goal the prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I federal areas which 
impairment results from manmade air pollution.'' \1\ On December 2, 
1980, EPA promulgated regulations to address visibility impairment in 
Class I areas that are reasonably attributable to a single source or 
small group of sources.\2\ Then, in 1990 Congress added section 169B to 
the CAA to address regional haze issues. EPA subsequently promulgated 
regulations pursuant to section 169B to address regional haze.\3\ The 
RHR focuses on visibility impairment that is caused by the emission of 
air pollutants from numerous sources located over a wide geographic 
area, requiring states to establish goals and emission reduction 
strategies for improving visibility in Class I areas.
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    \1\ 42 U.S.C. 7491(a). Mandatory Class I federal areas are 
defined as national parks exceeding 6,000 acres, wilderness areas 
and national memorial parks exceeding 5,000 acres, and all 
international parks that were in existence on August 7, 1977. 42 
U.S.C. 7472(a). In accordance with section 169A of the CAA, EPA, in 
consultation with the Department of Interior, promulgated a list of 
156 mandatory Class I federal areas where visibility is identified 
as an important value. 44 FR 69122 (November 30, 1979). When we use 
the term Class I area in this action, we mean a mandatory Class I 
federal area.
    \2\ These regulations are the reasonably attributable visibility 
impairment (RAVI) provisions. 45 FR 80084 (December 2, 1980).
    \3\ These regulations are known as the Regional Haze Rule or 
RHR. 64 FR 35714, 35714 (July 1, 1999) (codified at 40 CFR part 51, 
subpart P).
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    The CAA requires each state to develop, and submit for approval by 
EPA, a SIP to meet various air quality requirements, including the 
protection of visibility in Class I areas.\4\ Section 169A(b)(2) of the 
CAA requires that applicable \5\ state SIPs must contain such emission 
limits, schedules of compliance and other measures as may be necessary 
to make reasonable progress toward meeting the national visibility 
goal. Such measures include the application of BART by any BART-
eligible sources \6\ that emit air pollutants such as SO2 
and nitrogen oxides (NOX) \7\ that may reasonably be 
anticipated to cause or contribute to visibility impairment in a Class 
I area. The BART provisions of the RHR generally direct states to 
follow these steps to address the BART requirements: (1) Identify all 
BART-eligible sources; (2) determine which of those sources may 
reasonably be anticipated to cause or contribute to visibility 
impairment in a Class I area, and are therefore subject to BART 
requirements; (3) determine source-specific BART for each source that 
is subject to BART requirements; and (4) include the emission 
limitations reflecting those BART determinations in their SIPs.\8\ 
However, the RHR also provides states with the flexibility to adopt an 
emissions trading program or other alternative program instead of 
requiring source-specific BART controls, as long as the alternative 
provides greater reasonable progress towards the national goal of 
achieving natural visibility conditions in Class I

[[Page 8815]]

areas than BART. See 40 CFR 51.308(e)(2).
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    \4\ 42 U.S.C. 7410(a), 7491, and 7492(a), CAA sections 110(a), 
169A, and 169B.
    \5\ States that have a federal Class I area, listed by the 
Administrator under subsection 169A(a)(2) of the CAA, and/or states 
from which the emissions may reasonably be anticipated to cause or 
contribute to any impairment of visibility in any federal Class I 
area.
    \6\ A BART-eligible source is any one of the 26 specified source 
categories listed in appendix Y to 40 CFR part 51, Guidelines for 
BART Determinations Under the Regional Haze Rule.
    \7\ SO2 and NOX are considered the most 
significant visibility impairing pollutants.
    \8\ 40 CFR 51.308(e)(1).
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    In a 2005 revision to the RHR,\9\ EPA demonstrated that CAIR \10\ 
would achieve greater reasonable progress than BART. See 70 FR 39104. 
This is often referred to as the CAIR-better-than-BART determination. 
Based on this determination, EPA amended its regulations so that states 
participating in the CAIR cap-and trade programs under 40 CFR part 96 
pursuant to an EPA approved CAIR SIP, or states that remain subject to 
a CAIR federal trading program under 40 CFR part 97, need not require 
affected BART-eligible electric generating units (EGUs) to install, 
operate, and maintain BART for emissions of SO2 and 
NOX. See 40 CFR 51.308(e)(4). Several states subject to 
CAIR, including Virginia, relied on the CAIR cap-and-trade programs as 
an alternative to BART to achieve greater reasonable progress towards 
national visibility goals for their first SIP revision submitted to 
address regional haze.\11\
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    \9\ 70 FR 39104 (July 6, 2005).
    \10\ CAIR involved the District of Columbia and 27 eastern 
states, including Virginia, in several regional cap and trade 
programs to reduce SO2 and NOX emissions that 
contribute to the nonattainment or interfere with the maintenance of 
the 1997 ozone and PM2.5 NAAQS. 70 FR 25162 (May 12, 
2005).
    \11\ Virginia submitted its comprehensive regional haze SIP 
revision on October 4, 2010. Virginia also submitted some additional 
SIP submittals addressing specific BART and reasonable progress 
requirements.
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    In July 2008, the United States Court of Appeals for the District 
of Columbia Circuit (D.C. Circuit) vacated CAIR.\12\ In December 2008, 
the D.C. Circuit remanded CAIR back to EPA without vacatur while a 
replacement rule consistent with the Court's opinion was developed.\13\ 
On August 8, 2011 (76 FR 48208) EPA promulgated CSAPR to replace CAIR 
and issued federal trading programs to implement the rule in the states 
subject to CSAPR.\14\ CSAPR was to become effective January 1, 2012; 
however, the timing of CSAPR's implementation was impacted by a number 
of court actions.
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    \12\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
    \13\ North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008).
    \14\ CSAPR is a regional cap-and-trade program meant to replace 
CAIR. Similar to CAIR, it is focused on eastern states (including 
Virginia) and requires participants to limit their statewide 
emissions of SO2 and/or NOX in order to 
mitigate transported air pollution unlawfully impacting another 
state's ability to attain or maintain the following NAAQS: 1997 
ozone and PM2.5 NAAQS, the 2006 PM2.5 NAAQS, 
and the 2008 ozone NAAQS.
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    After promulgating CSAPR, EPA conducted a technical analysis to 
determine whether compliance with CSAPR would satisfy the requirements 
of the RHR addressing alternatives to BART. In a June 7, 2012 action, 
EPA amended the RHR to provide that participation by a state's EGUs in 
a CSAPR trading program for a given pollutant--either a CSAPR federal 
trading program or an integrated CSAPR state trading program 
implemented through an approved CSAPR SIP revision--qualifies as a BART 
alternative for those EGUs for that pollutant.\15\ See 40 CFR 
51.308(e)(4). Since EPA promulgated this amendment, both states and EPA 
have relied on the CSAPR-better-than-BART determination to satisfy the 
BART requirements for states that participate in CSAPR.
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    \15\ Legal challenges to the CSAPR-better-than-BART 
determination are pending. Utility Air Regulatory Group v. EPA, No. 
12-1342 (D.C. Cir. filed August 6, 2012).
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    Numerous parties filed petitions for review of CSAPR in the D.C. 
Circuit, and on August 21, 2012, the court issued its ruling, vacating 
and remanding CSAPR to EPA and ordering continued implementation of 
CAIR.\16\ The D.C. Circuit's vacatur of CSAPR was reversed by the 
United States Supreme Court on April 29, 2014, and the case was 
remanded to the D.C. Circuit to resolve remaining issues in accordance 
with the high court's ruling.\17\ On remand, the D.C. Circuit affirmed 
CSAPR in most respects, but invalidated without vacating some of the 
CSAPR budgets to a number of states.\18\ The remanded budgets included 
the Phase 2 SO2 emissions budgets for four states and the 
Phase 2 ozone-season NOX budgets for 11 states, including 
those for Virginia. The D.C. Circuit litigation ultimately delayed 
implementation of CSAPR for three years, from January 1, 2012, when 
CSAPR's cap-and-trade programs were originally scheduled to replace the 
CAIR cap-and-trade programs, to January 1, 2015.\19\ Thus, the rule's 
Phase 2 budgets that were originally promulgated to begin on January 1, 
2014 began on January 1, 2017 instead. EPA has now taken all actions 
necessary to respond to the D.C. Circuit's remand of the various CSAPR 
budgets. On September 29, 2017, EPA finalized a determination that the 
changes to the scope of CSAPR coverage following the remand of certain 
of the budgets by the D.C. Circuit do not alter EPA's conclusion that 
CSAPR remains better-than-BART. In sum, EGU participation in a CSAPR 
trading program remains available as an alternative to BART for states 
participating in CSAPR.
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    \16\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 
(D.C. Cir. 2012).
    \17\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014).
    \18\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. 
Cir. 2015).
    \19\ Following the April 2014 Supreme Court decision, EPA filed 
a motion asking the D.C. Circuit to delay, by three years, all CSAPR 
compliance deadlines that had not passed as of the approval date of 
the stay on CSAPR. On October 23, 2014, the D.C. Circuit granted 
EPA's request, and on December 3, 2014 (79 FR 71663), in an interim 
final rule, EPA set the updated effective date of CSAPR as January 
1, 2015 and delayed the implementation of CSAPR Phase 1 to 2015 and 
CSAPR Phase 2 to 2017. In accordance with the interim final rule, 
the sunset date for CAIR was December 31, 2014, and EPA began 
implementing CSAPR on January 1, 2015.
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B. Partial Regional Haze Federal Implementation Plan (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.\20\ The limited disapproval 
of these SIP revisions was based upon Virginia's reliance on CAIR as an 
alternative to BART and as a measure for reasonable progress. In the 
June 7, 2012 action, EPA also finalized a determination that for states 
covered by CSAPR, including Virginia, CSAPR achieves greater reasonable 
progress towards the national visibility goals in Class I areas than 
source-specific BART. 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).
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    \20\ 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. The Commonwealth submitted Virginia's 
regional haze SIP revisions on July 17, 2008 for Georgia Pacific 
Corporation BART determination and permit; March 6, 2009 for 
MeadWestvaco Corporation BART determination and permit; January 14, 
2010 for O-N Minerals Facility BART determination and permit; 
October 4, 2010 for the comprehensive regional haze SIP; November 
19, 2010 for the revision to the O-N Minerals Facility BART 
determination and permit; and May 6, 2011 for the MeadWestvaco 
Corporation reasonable progress permit, to address the requirements 
of the RHR.
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    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.

[[Page 8816]]

C. Section 110(a)(2)(D)(i)(II) Prong 4 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 infrastructure SIPs and the elements under 110(a) 
are referred to as infrastructure requirements. Several of these 
applicable elements are delineated within section 110(a)(2)(D)(i) of 
the CAA. Section 110(a)(2)(D)(i) requires SIPs to contain adequate 
provisions to prohibit emissions in that state from having certain 
adverse air quality effects on neighboring states due to interstate 
transport of air pollution. There are four prongs within section 
110(a)(2)(D)(i) of the CAA; section 110(a)(2)(D)(i)(I) contains prongs 
1 and 2, while section 110(a)(2)(D)(i)(II) includes prongs 3 and 4. 
This rulemaking action addresses prong 4 which is related to 
interference with measures by another state to protect visibility. 
Prong 4 requires that a state's SIP include adequate provisions 
prohibiting any source or other type of emissions activity in one state 
from interfering with measures to protect visibility required to be 
included in another state's SIP. One way in which prong 4 can be 
satisfied is if a state has a fully approved regional haze program 
within its SIP.\21\ At the time Virginia submitted its infrastructure 
SIP revisions for the 2010 SO2 and 2012 PM2.5 
NAAQS, which included provisions addressing the prong 4 portions, 
Virginia did not have a fully approved regional haze program.\22\ 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 the prong 4 portions of the submittals at a later 
date.23 24
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    \21\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \22\ Virginia submitted its infrastructure SIPs for the 2010 
SO2 NAAQS on June 18, 2014 and for the 2012 
PM2.5 NAAQS on July 16, 2015.
    \23\ 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), (K), (L), and (M).
    \24\ 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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    Relying on its July 16, 2015 SIP submittal for demonstrating it 
should receive full approval of its regional haze program, Virginia 
requested that EPA take action to approve the prong 4 visibility 
requirements for the 2010 SO2 and 2012 PM2.5 
NAAQS.

II. Summary of SIP Revision and EPA Analysis

    Virginia submitted a SIP revision on July 16, 2015, seeking to 
correct the deficiencies identified in EPA's June 7, 2012 limited 
disapproval action, by replacing reliance on CAIR with reliance on 
CSAPR in its regional haze SIP.\25\ Specifically, the July 16, 2015 
submittal changes the Virginia regional haze program to state that 
Virginia is relying on CSAPR in its regional haze SIP to meet the BART 
and reasonable progress requirements to support visibility improvement 
progress goals for the Commonwealth's Class I areas, the Shenandoah 
National Park and the James River Wilderness Area.
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    \25\ Virginia was included in the CSAPR federal trading programs 
on August 8, 2011. 76 FR 48208.
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    Additionally, the July 16, 2015 submittal addressed prong 4 for the 
previously submitted infrastructure SIP revision regarding the 2010 
SO2 NAAQS. Virginia's June 18, 2014 2010 SO2 
NAAQS infrastructure SIP submission relied on the Commonwealth having a 
fully approved regional haze program to satisfy its prong 4 
requirements. However, at the time of the June 18, 2014 submittal, 
Virginia did not have a fully approved regional haze program as the 
Agency had issued a limited disapproval of the Commonwealth's regional 
haze plan on June 7, 2012, due to its reliance on CAIR. To correct the 
deficiencies and obtain approval of the aforementioned infrastructure 
SIP that relied on a fully approved regional haze program, the 
Commonwealth submitted the July 16, 2015 SIP revision to replace 
reliance on CAIR with reliance on CSAPR.
    As did EPA's partial RH FIP for Virginia, the Commonwealth's July 
16, 2015 regional haze SIP revision relies on CSAPR to address the 
deficiencies identified in EPA's limited disapproval of Virginia's 
regional haze SIP. EPA is proposing to find that this revision would 
satisfy the NOX and SO2 BART and reasonable 
progress requirements for EGUs in Virginia and therefore make 
Virginia's regional haze program fully approvable. Upon EPA's final 
approval of this SIP, Virginia will have a SIP in place to address all 
of its regional haze requirements. EPA is proposing to find that 
Virginia's reliance in its SIP upon CSAPR for certain BART and 
reasonable progress requirements is in accordance with the CAA and RHR 
requirements (including 40 CFR 51.308(e)(2)) as EPA has recently 
affirmed that CSAPR remains better-than-BART for regional haze 
requirements.\26\ Because the BART and reasonable progress requirements 
associated with EPA's prior limited disapproval would be addressed 
through the Commonwealth's revised SIP, if EPA takes final action to 
approve the July 16, 2015 SIP submission, the Agency's prior limited 
disapproval/limited approval of Virginia's regional haze SIP would 
convert to a full approval. Additionally, EPA is proposing to find that 
if revisions to the Commonwealth's regional haze SIP are fully 
approved, then the prong 4 portions of Virginia's infrastructure SIP 
submittal for the 2010 SO2 NAAQS meet applicable 
requirements of the CAA.
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    \26\ See 82 FR 45481 (reaffirming CSAPR better-than-BART).
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    In addition to the regional haze SIP submittal which Virginia 
submitted to EPA on July 16, 2015, the Commonwealth also submitted to 
EPA on the same date a SIP revision regarding the infrastructure 
requirements for the 2012 PM2.5 NAAQS. In order to meet 
prong 4 requirements for the 2012 PM2.5 NAAQS, this 
submittal referred to Virginia's regional haze July 16, 2015 SIP 
submission. Therefore, to approve the prong 4 requirements of the July 
16, 2015 infrastructure SIP for the 2012 PM2.5 NAAQS, EPA 
must first fully approve Virginia's regional haze program request 
within the Commonwealth's July 16, 2015 regional haze SIP submittal.
    EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action. 
All other applicable infrastructure requirements for the Commonwealth's 
infrastructure SIP submissions for the 2010 SO2 NAAQS and 
the 2012 PM2.5 NAAQS have been or will be addressed in 
separate rulemakings.

III. Proposed Action

    EPA is 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

[[Page 8817]]

SIP submission for the 2010 SO2 NAAQS and its July 16, 2015 
infrastructure SIP submission for the 2012 PM2.5 NAAQS.

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

    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 expected to be an Executive Order 13771 regulatory 
action because this action is not significant 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).
    In addition, this proposed rule addressing regional haze 
requirements and prong 4 requirements for the 2010 SO2 and 
2012 PM2.5 NAAQS is not proposed 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, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

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

    Dated: February 15, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-04185 Filed 2-28-18; 8:45 am]
 BILLING CODE 6560-50-P


