[Federal Register Volume 84, Number 233 (Wednesday, December 4, 2019)]
[Proposed Rules]
[Pages 66361-66363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26145]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0162; FRL-10002-85-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Infrastructure Requirements for the 2015 Ozone National 
Ambient Air Quality 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 formally submitted 
by the Commonwealth of Virginia. Whenever EPA promulgates a new or 
revised national ambient air quality standard (NAAQS or standard), the 
Clean Air Act (CAA) requires states to make SIP submissions to provide 
for the implementation, maintenance, and enforcement of the NAAQS. The 
infrastructure requirements are designed to ensure that the structural 
components of each state's air quality management program are adequate 
to meet the state's responsibilities under the CAA. Virginia has 
formally submitted a SIP revision addressing the following 
infrastructure elements, or portions thereof, of section 110(a) of the 
CAA for the 2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), 
(D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is 
proposing to approve Virginia's submittal addressing the infrastructure 
requirements for the 2015 ozone NAAQS in accordance with the 
requirements of section 110(a) of the CAA.

DATES: Written comments must be received on or before January 3, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2019-0162 at https://www.regulations.gov, or via email to 
spielberger.susan@epa.gov. 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://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sara Calcinore, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2043. Ms. Calcinore can also be reached via electronic mail at 
calcinore.sara@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants to 
protect human health and the environment. In response to scientific 
evidence linking ozone exposure to adverse health effects, EPA 
promulgated the first ozone NAAQS, the 0.12 parts per million (ppm) 1-
hour ozone NAAQS, in 1979. 44 FR 8202 (February 8, 1979). The CAA 
requires EPA to review and reevaluate the NAAQS every five years in 
order to consider updated information regarding the effects of the 
criteria pollutants on human health and the environment. On July 18, 
1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 
ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 
8-hour ozone NAAQS was determined to be more protective of public 
health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA 
strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm, referred to 
as the 2008 ozone NAAQS. See 73 FR 16436 (March 27, 2008). On October 
26, 2015, EPA issued a final rule strengthening both the primary and 
secondary ozone NAAQS for ground-level ozone to 0.070 ppm, based on the 
fourth-highest maximum daily 8-hour ozone concentration per year, 
averaged over three years. 80 FR 65291.

[[Page 66362]]

    Whenever EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), EPA believes that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. EPA has previously provided 
comprehensive guidance on the application of these provisions through a 
guidance document for infrastructure SIP submissions and through 
regional actions on infrastructure submissions.\1\ Unless otherwise 
noted below, EPA is following that existing approach in acting on 
Virginia's submission. In addition, in the context of acting on such 
infrastructure submissions, EPA evaluates the submitting state's SIP 
for facial compliance with statutory and regulatory requirements, not 
for the state's implementation of its SIP.\2\ EPA has other authority 
to address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \1\ EPA explains and elaborates on these ambiguities and its 
approach to address them in ``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 (also referred to as ``2013 Infrastructure 
Guidance''), included in the docket for this rulemaking action 
available at www.regulations.gov, Docket ID Number EPA-R03-OAR-2019-
0162, as well as in numerous agency actions, including EPA's prior 
action on Virginia's infrastructure SIP to address the interstate 
transport requirements for the 2012 fine particulate matter NAAQS 
(83 FR 21233, May 9, 2018).
    \2\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug. 
30, 2018).
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II. Summary of SIP Revision and EPA Analysis

    On January 28, 2019, the Commonwealth of Virginia formally 
submitted, through the Virginia Department of Environmental Quality 
(VADEQ), a SIP revision to satisfy the infrastructure requirements of 
CAA section 110(a) for the 2015 ozone NAAQS (referred to as 
``Virginia's submittal''). Virginia's submittal addresses the following 
infrastructure elements, or portions thereof, for the 2015 ozone NAAQS: 
CAA section 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), (G), 
(H), (J), (K), (L), and (M).
    Virginia's January 28, 2019 submittal does not address the 
following elements of CAA section 110(a)(2): The portion of element (C) 
referring to permit programs known as nonattainment new source review 
(NNSR); sub-element (D)(i)(I) related to interstate transport; and 
element (I), which pertains to the nonattainment requirements of part 
D, title I of the CAA. According to EPA's 2013 Infrastructure Guidance, 
both element (I) and the portion of element (C) related to NNSR pertain 
to part D of title I of the CAA, which addresses SIP requirements and 
submission deadlines for areas designated nonattainment for a NAAQS. 
Both elements pertain to SIP revisions that are collectively referred 
to as nonattainment SIPs or attainment plans. Such SIP revisions are 
required if an area is designated nonattainment and, if required, would 
be due to EPA by the dates statutorily prescribed in CAA part D, 
subparts 2 through 5. Because the CAA directs states to submit these 
plan elements on a separate schedule, EPA does not believe it is 
necessary for states to include these elements in the infrastructure 
SIP submission due three years after adoption or revision of a NAAQS. 
Virginia's submittal also did not address CAA section 
110(a)(2)(D)(i)(I) related to interstate transport for the 2015 ozone 
NAAQS. Therefore, EPA is not proposing any action related to Virginia's 
obligations under section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. 
EPA will take separate action on CAA section 110(a)(2)(D)(i)(I) for the 
2015 ozone NAAQS once Virginia submits a SIP revision addressing this 
sub-element.
    Based upon EPA's review of Virginia's January 28, 2019 SIP 
revision, EPA is proposing to determine that Virginia's submittal 
satisfies the infrastructure elements of CAA section 110(a)(2)(A), (B), 
(C), (D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M) for 
the 2015 ozone 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 included in the docket for 
this rulemaking action available at www.regulations.gov, Docket ID 
Number EPA-R03-OAR-2019-0162.

III. Proposed Action

    EPA is proposing to find that Virginia's January 28, 2019 submittal 
satisfies the following infrastructure requirements of CAA section 
110(a) for the 2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), 
(D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M). As 
discussed previously, Virginia's submittal did not address the 
following infrastructure elements: The portion of CAA section 
110(a)(2)(C) related to NNSR; CAA section 110(a)(2)(D)(i)(I) related to 
interstate transport; and CAA section 110(a)(2)(I) pertaining to the 
nonattainment requirements of part D, title I of the CAA. Therefore, 
EPA is not taking action on these elements. 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

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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 
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).
    The SIP is not proposed for approval 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 proposing to 
approve Virginia's submittal addressing the infrastructure requirements 
of CAA section 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), 
(G), (H), (J), (K), (L), and (M) for the 2015 ozone NAAQS 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, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: November 21, 2019.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2019-26145 Filed 12-3-19; 8:45 am]
 BILLING CODE 6560-50-P


