[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Proposed Rules]
[Pages 20002-20004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09653]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0601; FRL-9977-42--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide 
and 2012 Fine Particulate Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; supplemental.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing a 
supplement to its March 1, 2018 proposed approval of the Commonwealth 
of Virginia's (the Commonwealth or Virginia) request to change reliance 
on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State 
Air Pollution Rule (CSAPR) to address certain regional haze 
requirements and to convert the Agency's limited approval/limited 
disapproval of Virginia's regional haze SIP to a full approval. EPA's 
March 1, 2018 notice of proposed rulemaking (NPR) also proposed 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). This supplemental proposal clarifies the 
infrastructure elements the Agency is proposing to approve for the 2010 
SO2 National Ambient Air Quality Standards (NAAQS) and 
proposes to remove EPA's June 7, 2012 federal implementation plan (FIP) 
for Virginia which replaced reliance on CAIR with reliance on CSAPR to 
address certain deficient regional haze requirements identified in the 
Commonwealth's regional haze state implementation plan (SIP). EPA is 
seeking comment only on the issues raised in this supplemental proposal 
and is not reopening for comment other issues raised in its prior 
proposal. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before June 6, 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 by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On July 16, 2015, the Virginia Department of Environmental Quality 
(VA DEQ) submitted a revision to the Virginia SIP to update its 
regional haze plan to change reliance from CAIR to CSAPR and to meet 
visibility requirements in section 110(a)(2)(D) of the CAA. On March 1, 
2018 (83 FR 8814), EPA published a notice of proposed rulemaking (March 
1, 2018 NPR) 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 SIP 
submission for the 2010 SO2 NAAQS and of its July 16, 2015 
infrastructure SIP submission for the 2012 PM2.5 NAAQS. EPA 
is not reopening the public comment period to submit comment on the 
issues addressed in the March 1, 2018 NPR.

II. Specific Issues Addressed in This Supplemental NPR

Removal of Partial Regional Haze 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.\1\ The limited disapproval 
of these SIP revisions was based upon Virginia's reliance on CAIR as an 
alternative to best available retrofit technology (BART) and as a 
measure for reasonable progress. 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). 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.
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    \1\ 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.
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    In its March 1, 2018 NPR, EPA proposed to approve the July 16, 2015 
SIP revision which would change Virginia's reliance upon CAIR to 
reliance upon CSAPR for the BART and reasonable progress elements of 
Virginia's regional haze program. EPA also proposed to convert EPA's 
limited approval/limited disapproval of Virginia's regional haze 
program to a full approval based on Virginia's SIP revision changing 
reliance upon CAIR to reliance upon CSAPR. In this action, EPA proposes 
to remove the Agency's partial RH FIP for Virginia which replaced 
reliance on CAIR with reliance on CSAPR to address certain deficient 
regional haze requirements identified in the Commonwealth's regional 
haze SIP. EPA's proposed action to remove this FIP for Virginia is in 
accordance with section 110(l) of the CAA and will not impact any 
regional requirements as Virginia will have, when this action is final, 
a fully approved regional haze program and the ability to rely on CSAPR 
for certain regional haze requirements, incorporated in its SIP.

Section 110(a)(2)(J) Visibility 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

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infrastructure SIPs and the elements under 110(a) are referred to as 
infrastructure requirements. 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 110(a)(2)(J) for 
visibility for 2010 SO2 as well as on 110(a)(2)(D)(i)(II) 
for visibility (also known as prong 4) for both the 2010 SO2 
and 2012 PM2.5.2 3
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    \2\ 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) (consultation, public notification, and 
prevention of significant deterioration), (K), (L), and (M).
    \3\ 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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    In its March 1, 2018 NPR, EPA proposed to approve prong 4 for both 
the 2010 SO2 and 2012 PM2.5 NAAQS,\4\ however the 
Agency did not address section 110(a)(2)(J) of the CAA as it relates to 
visibility protection. For this section, EPA recognizes that states are 
subject to visibility and regional haze program requirements under part 
C of the CAA. In the event of the establishment of a new NAAQS, the 
visibility and regional haze program requirements under part C do not 
change. Therefore, when EPA took action on Virginia's infrastructure 
SIP submittal for the 2010 SO2 NAAQS,\5\ the Agency could 
have approved 110(a)(2)(J) for visibility; however, it inadvertently 
neglected to do so at that time. EPA is now taking action to remedy 
this unintentional omission by proposing approval of Virginia's June 
18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS 
specifically for section 110(a)(2)(J) for visibility as well as for 
prong 4 which we proposed for approval on March 1, 2018.
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    \4\ In its analysis for the March 1, 2018 NPR, EPA proposed to 
find that if revisions to the Commonwealth's regional haze SIP were 
fully approved, then the prong 4 portions of Virginia's 
infrastructure SIP submittal for the 2010 SO2 and 2012 
PM2.5 NAAQS meet applicable requirements of the CAA.
    \5\ See 80 FR 11557. (approving Virginia's June 18, 2014 
submittal for the 2010 SO2 NAAQS for CAA section 
110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant 
deterioration, (D)(ii), (E), (F), (G), (H), (J) (consultation, 
public notification, and prevention of significant deterioration), 
(K), (L), and (M)).
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    EPA is soliciting comments on the specific issues discussed in this 
document referring to the proposed: (1). Removal of the partial 
regional haze FIP which replaced reliance on CAIR with reliance on 
CSPAR to address certain regional haze requirements as finalizing our 
March 1, 2018 NPR will give Virginia's regional haze SIP full approval; 
and (2). approval of Virginia's June 18, 2014 infrastructure SIP 
submittal for the 2010 SO2 NAAQS section 110(a)(2)(J) for 
visibility (in addition to approval for 110(a)(2)(D)(i)(II)). These 
comments and those received during the comment period for the March 1, 
2018 NPR will be considered before taking final action.

III. Proposed Action

    EPA is proposing removal of the partial regional haze FIP which 
replaced reliance on CAIR with reliance on CSPAR to address certain 
regional haze requirements and approval of Virginia's June 18, 2014 
infrastructure SIP submittal for the 2010 SO2 NAAQS for 
section 110(a)(2)(J) for visibility.

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

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
     Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and

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Regulatory Review. This action is not a significant regulatory action 
and was therefore not submitted to the Office of Management and Budget 
(OMB) for review.
     Paperwork Reduction Act (PRA). This action does not impose 
an information collection burden under the PRA. Therefore, its 
recordkeeping and reporting provisions do not constitute a ``collection 
of information'' as defined under 44 U.S.C. 3502(3) and 5 CFR 
1320.3(c).
     Regulatory Flexibility Act (RFA). This action will not 
have a significant economic impact on a substantial number of small 
entities under the RFA. This action will not impose any requirements on 
small entities.
     Unfunded Mandates Reform Act (UMRA). This action does not 
contain an unfunded mandate of $100 million or more as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments.
     Executive Order 13132: Federalism. This action does not 
have federalism implications. It will not have substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.
     Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments. This action does not have tribal 
implications, as specified in Executive Order 13175. It will not have 
substantial direct effects on any Indian tribes, on the relationship 
between the federal government and Indian tribes, or on the 
distribution of power and responsibilities between the federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this action.
     Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks. EPA interprets Executive 
Order 13045 as applying only to those regulatory actions that concern 
health or safety risks that EPA has reason to believe may 
disproportionately affect children, per the definition of ``covered 
regulatory action'' in section 2-202 of the Executive Order. This 
action is not an economically significant regulatory action based on 
health or safety risks subject to Executive Order 13045.
    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).
    In addition, pursuant to CAA section 307(d)(1)(B), EPA proposes to 
determine that this action is subject to the provisions of section 
307(d). Section 307(d) establishes procedural requirements specific to 
certain rulemaking actions under the CAA. Pursuant to CAA section 
307(d)(1)(B), the withdrawal of the provisions of the Virginia regional 
haze regional FIP that apply to changing reliance on CAIR to reliance 
on CSAPR to address certain deficient regional haze requirements is 
subject to the requirements of CAA section 307(d), as it constitutes a 
revision to a FIP under section 110(c) of the CAA. Furthermore, section 
307(d)(1)(V) of the CAA provides that the provisions of section 307(d) 
apply to ``such other actions as the Administrator may determine.'' EPA 
proposes that the provisions of 307(d) apply to EPA's action on the 
Virginia SIP revision.

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: April 19, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-09653 Filed 5-4-18; 8:45 am]
 BILLING CODE 6560-50-P


