Approval and Promulgation of Air Quality Implementation Plans; Virginia; Section 110(a)(2) Prevention of Significant Deterioration Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 58682-58686 [2014-23106]
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58682
Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations
C. Cunningham Bridge across the Trent
River, mile 0.0, at New Bern, NC. The
deviation is necessary to allow the
annual Neuse River Bridge Run
participants to safely complete their
race without interruptions from bridge
openings. This deviation allows the
bridge draw span to remain in the
closed-to-navigation position for three
hours to accommodate the race.
DATES: This deviation is effective from
6:30 a.m. to 9:30 a.m. on October 18,
2014.
ADDRESSES: The docket for this
deviation, [USCG–2014–0845] is
available at https://www.regulations.gov.
Type the docket number in the
‘‘SEARCH’’ box and click ‘‘SEARCH.’’
Click on Open Docket Folder on the line
associated with this deviation. You may
also visit the Docket Management
Facility in Room W12–140 on the
ground floor of the Department of
Transportation West Building, 1200
New Jersey Avenue SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
deviation, call or email Mrs. Jessica
Shea, Coast Guard; telephone (757) 398–
6422, email jessica.c.shea2@uscg.mil. If
you have questions on viewing the
docket, call Cheryl Collins, Program
Manager, Docket Operations, telephone
202–366–9826.
SUPPLEMENTARY INFORMATION: The event
director for the annual Neuse River
Bridge Run, with approval from the
North Carolina Department of
Transportation, owner of the
drawbridge, has requested a temporary
deviation from the operating schedule to
accommodate the Neuse River Bridge
Run.
The US 70/Alfred C. Cunningham
Bridge operating regulations are set out
in 33 CFR 117.843(a). The US 70/Alfred
C. Cunningham Bridge across the Trent
River, mile 0.0, a double bascule lift
Bridge, in New Bern, NC, has a vertical
clearance in the closed position of 14
feet above mean high water.
Under this temporary deviation, the
drawbridge will be allowed to remain in
the closed-to-navigation position from
6:30 a.m. to 9:30 a.m. on Saturday,
October 18, 2014 while race participants
are competing in the annual Neuse
River Bridge Run.
Under the regular operating schedule
where the bridge opens on signal during
the timeframe for the race, the bridge
opens several times every day for
recreational vessels transiting to and
from the local marinas located
upstream. Although openings occur
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throughout the day, the morning hours
have the fewest vessel transits.
Vessels able to pass through the
bridge in the closed position may do so
at any time and are advised to proceed
with caution. The bridge will be able to
open for emergencies and there is no
alternate route for vessels to pass. The
Coast Guard will also inform the users
of the waterways through our Local and
Broadcast Notices to Mariners of the
change in operating schedule for the
bridge so that vessels can arrange their
transits to minimize any impact caused
by the temporary deviation.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the effective period of this
temporary deviation. This deviation
from the operating regulations is
authorized under 33 CFR 117.35.
Dated: September 17, 2014.
Waverly W. Gregory, Jr.,
Bridge Program Manager, Fifth Coast Guard
District.
[FR Doc. 2014–23291 Filed 9–29–14; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2013–0211, EPA–R03–
OAR–2013–0510; FRL–9917–17–Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Section 110(a)(2) Prevention of
Significant Deterioration Requirements
for the 2008 Ozone and 2010 Nitrogen
Dioxide National Ambient Air Quality
Standards
two separate submittals addressing the
infrastructure requirements for the 2008
ozone and 2010 nitrogen dioxide (NO2)
NAAQS. This action approves the
prevention of significant deterioration
(PSD) portions of the infrastructure
requirements of the CAA for the
Commonwealth’s SIP submittals for the
2008 ozone and 2010 NO2 NAAQS.
This final rule is effective on
October 30, 2014.
DATES:
EPA has established two
dockets for this action under Docket ID
Numbers EPA–R03–OAR–2013–0211 for
the 2008 ozone docket and EPA–R03–
OAR–2013–0510 for the 2010 NO2
docket. 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 either electronically through
www.regulations.gov or in hard copy for
public inspection 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 the Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Ellen Schmitt, (215) 814–5787, or by
email at schmitt.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
AGENCY:
I. Background
The Environmental Protection
Agency (EPA) is approving revisions to
the Virginia State Implementation Plan
(SIP) 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 for the
implementation, maintenance, and
enforcement of such NAAQS. The plan
is required to address basic program
elements, including, but not limited to,
regulatory structure, monitoring,
modeling, legal authority, and adequate
resources necessary to assure attainment
and maintenance of the standards.
These elements are referred to as
infrastructure requirements. The
Commonwealth of Virginia has made
On May 21, 2014, EPA published a
notice of proposed rulemaking (NPR) for
the Commonwealth of Virginia. 79 FR
29142. In the NPR, EPA proposed
approval of the infrastructure elements
of section 110(a)(2)(C), (D)(i)(II), and (J)
of the CAA as they relate to Virginia’s
PSD program for the 2008 ozone and
2010 NO2 NAAQS. The formal SIP
revisions were submitted by Virginia on
July 23, 2012 and May 30, 2013 for the
2008 ozone and the 2010 NO2 NAAQS,
respectively.
The July 23, 2012 and May 30, 2013
Virginia infrastructure SIP submissions
indicated that the approved Virginia SIP
(plus measures submitted but not yet
fully approved by EPA for the SIP)
addressed requirements for a PSD
program as required for section
110(a)(2)(C), (D)(i)(II) and (J) of the
Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY:
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CAA.1 In Virginia, construction and
modification of stationary sources are
covered under Article 8, Permits for
Major Stationary Sources and Major
Modifications Locating in Prevention of
Significant Deterioration Areas (9VAC5–
80–1605 et seq.) which is included in
the approved Virginia SIP. See 40 CFR
52.2420(c). Article 8 also requires that
construction and modification of major
stationary sources will not cause or
contribute to a violation of any NAAQS
(9VAC5–80–1635, Ambient Air
Increments and 9VAC5–80–1645,
Ambient Air Ceilings) and requires
application of Best Available Control
Technology (BACT) to new or modified
sources (9VAC5–80–1705, Control
Technology Review). On August 5,
2011, Virginia submitted a revision to
its SIP which incorporated
preconstruction permitting
requirements for sources of fine
particulate matter (PM2.5) into Virginia’s
PSD program. Subsequent to Virginia’s
submittal, two decisions by the United
States Court of Appeals for the DC
Circuit addressed the Federal PM2.5
program and impacted EPA’s ability to
fully approve the PSD SIP revisions
submitted by Virginia.2 Virginia
consequently submitted additional
revisions to its PSD program addressing
preconstruction permitting
requirements for sources of PM2.5. On
February 25, 2014, EPA fully approved
these revisions to Virginia’s PSD
program. 79 FR 10377. With these
revisions fully approved, Virginia’s SIPapproved PSD program now contains all
of the emission limitations, control
measures, and other program elements
required by the CAA and 40 CFR 51.166
for all required pollutants, including
PM2.5. Id. (also approving Virginia’s
infrastructure SIP submittals for the
1997 8-hour ozone and PM2.5 NAAQS,
the 2006 PM2.5 NAAQS, and the 2008
lead NAAQS for PSD requirements in
section 110(a)(2) of the CAA).
1 Virginia’s July 23, 2012 infrastructure SIP
submission for the 2008 ozone NAAQS cited to
Virginia’s existing approved PSD program to
address section 110(a)(2) requirements for PSD.
However, the May 30, 2013 infrastructure SIP
submission for the 2010 NO2 NAAQS cited to
Virginia’s existing approved PSD program plus
additional regulatory provisions submitted to EPA
but not yet fully approved into the SIP to address
section 110(a)(2) requirements for PSD.
2 See Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir. 2013) (remanding EPA’s
rules implementing the 1997 PM2.5 NAAQS,
including the 2008 rule, ‘‘Implementation of New
Source Review (NSR) Program for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)’’), and Sierra
Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013) (vacating
and remanding provisions at 40 CFR 51.166(i)(5),
(k)(2) and 52.21(i)(5), (k)(2) relating to PM2.5
significant impact levels and significant monitoring
concentrations for PSD).
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Section 110(a)(2)(C) of the CAA
requires each state’s SIP to ‘‘include a
program to provide for . . . regulation
of the modification and construction of
any stationary source within the areas
covered by the plan as necessary to
ensure that national ambient air quality
standards are achieved, including a
permit program as required in . . . this
subchapter.’’ Similarly, section
110(a)(2)(J) requires that for each
NAAQS the state’s SIP must ‘‘meet the
applicable requirements of . . . part C
of this subchapter (relating to
prevention of significant deterioration of
air quality and visibility protection).’’
Section 110(a)(2)(D)(i)(II) of the CAA
requires each state’s SIP to include
provisions which will prevent
emissions from within the state
interfering with the measures required
by another state for implementing PSD.
As discussed in EPA’s May 21, 2014
NPR, when reviewing infrastructure SIP
submittals, EPA focuses on the
structural PSD program requirements
contained in part C as well as EPA’s
PSD regulations. These structural
requirements call for the PSD program
to address all NSR pollutants, including
greenhouse gases (GHGs).
On June 23, 2014, the United States
Supreme Court issued a decision
addressing the application of PSD
permitting requirements to GHG
emissions. Utility Air Regulatory Group
v. Environmental Protection Agency,
134 S.Ct. 2427. The Supreme Court said
that EPA may not treat GHGs as an air
pollutant for purposes of determining
whether a source is a major source
required to obtain a PSD permit. The
Court also said that EPA could continue
to require that PSD permits, otherwise
required based on emissions of
pollutants other than GHGs, contain
limitations on GHG emissions based on
the application of BACT. In order to act
consistently with its understanding of
the Court’s decision pending further
judicial action to effectuate the decision,
EPA is not continuing to apply EPA
regulations that would require that SIPs
include permitting requirements that
the Supreme Court found
impermissible. Specifically, EPA is not
applying the requirement that a state’s
SIP-approved PSD program require that
sources obtain PSD permits when GHGs
are the only pollutant (i) that the source
emits or has the potential to emit above
the major source thresholds, or (ii) for
which there is a significant emissions
increase and a significant net emissions
increase from a modification (e.g. 40
CFR 51.166(b)(48)(v)). EPA anticipates a
need to revise federal PSD rules in light
of the Supreme Court opinion. In
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58683
addition, EPA anticipates that many
states will revise their existing SIPapproved PSD programs in light of the
Supreme Court’s decision. The timing
and content of subsequent EPA actions
with respect to EPA regulations and
state PSD program approvals are
expected to be informed by additional
legal process before the United States
District Court for the District of
Columbia Circuit. At this juncture, EPA
is not expecting states to have revised
their PSD programs for purposes of
infrastructure SIP submissions and is
only evaluating such submissions to
assure that the state’s program correctly
addresses GHGs consistent with the
Supreme Court’s decision.
As discussed in the May 21, 2014
NPR and herein, EPA finds Virginia’s
approved SIP meets the statutory
obligations relating to a PSD permit
program required by section
110(a)(2)(C), (D)(i)(II), and (J) of the CAA
for the 2008 ozone and 2010 NO2
NAAQS. See 79 FR 10377 (providing
full approval to Virginia’s PSD program
as addressing requirements in the CAA
and in 40 CFR 51.166). The detailed
rationale for EPA’s action is explained
in the NPR and will not be restated here.
With respect to GHGs, EPA has
determined that Virginia’s SIP is
currently sufficient to satisfy section
110(a)(2)(C), (D)(i)(II), and (J) of the CAA
for the 2008 ozone and 2010 NO2
NAAQS because the PSD permitting
program previously approved by EPA
into the SIP continues to require that
PSD permits (otherwise required based
on emissions of pollutants other than
GHGs) contain limitations on GHG
emissions based on the application of
BACT. Although Virginia’s approved
PSD permitting program may currently
contain provisions that are no longer
necessary in light of the Supreme Court
decision, this does not render the
infrastructure SIP submission
inadequate to satisfy section
110(a)(2)(C), (D)(i)(II), and (J). As
previously mentioned, the Virginia SIP
currently contains the necessary PSD
requirements and the application of
those requirements is not impeded by
the presence of other previously
approved provisions regarding the
permitting of sources of GHGs that, in
light of the Supreme Court decision,
EPA does not consider necessary at this
time. Accordingly, the Supreme Court
decision does not affect EPA’s proposed
approval of Virginia’s infrastructure SIP
as it relates to section 110(a)(2)(C),
(D)(i)(II), and (J).
II. Summary of SIP Revision
On July 2, 2013, EPA proposed
approval of the 2008 ozone submittal for
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the following infrastructure elements:
Section 110(a)(2)(A), (B), (C) (for
enforcement and regulation of minor
sources and minor modifications),
(D)(i)(II) (for visibility protection),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J)
(relating to consultation, public
notification, and visibility protection
requirements), (K), (L), and (M). 78 FR
39651. Subsequently, EPA published a
Final Rulemaking Notice (FRN) on
March 27, 2014, which approved the
Virginia 2008 ozone submittal for those
specific elements. 79 FR 17043.
On August 5, 2013, EPA proposed
approval of the 2010 NO2 submittal for
the following infrastructure elements:
Section 110(a)(2)(A), (B), (C) (for
enforcement and regulation of minor
sources and minor modifications),
(D)(i)(II) (for visibility protection),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J)
(relating to consultation, public
notification, and visibility protection
requirements), (K), (L), and (M). 78 FR
47264. Subsequently, on March 18,
2014, EPA published a FRN which
approved the Virginia 2010 NO2
submittal for those specific elements. 79
FR 15012.
In both EPA’s March 27, 2014 and
March 18, 2014 FRNs, EPA indicated
that it was taking separate action on
certain infrastructure elements from
Virginia’s infrastructure SIP submittals
as they related to PSD and section 128
of the CAA. This final rulemaking
action approves the infrastructure
elements of section 110(a)(2)(C),
(D)(i)(II), and (J) of the CAA as they
relate to Virginia’s PSD program for the
2008 ozone and 2010 NO2 NAAQS. EPA
will take later separate action on section
110(a)(2)(E)(ii) of the CAA as it relates
to section 128 for the 2008 ozone and
2010 NO2 NAAQS.
III. Public Comments
EPA received two comments on the
May 21, 2014 NPR proposing approval
of Virginia’s July 23, 2012 and May 30,
2013 SIP submissions addressing the
PSD infrastructure elements for the 2008
ozone and 2010 NO2 NAAQS. A full set
of the comments is provided in the
docket for this final rulemaking action.
A summary of each comment and the
EPA’s response is provided in this
section.
Comment: One commenter stated,
‘‘[t]hese regulations will destroy the
cheap coal energy for our population’’
and requested a new President to
reverse EPA’s climate change policies.
The commenter also suggested EPA
should ‘‘go through Congress,’’
presumably on climate change issues.
EPA Response: EPA thanks the
commenter for the concerns expressed.
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However, the comments are not
germane to the present rulemaking. This
rulemaking action approves Virginia’s
infrastructure SIP submittals for the
2008 ozone and 2010 NO2 NAAQS as
fully addressing the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) of the CAA for the 2008
ozone and 2010 NO2 NAAQS. While
Virginia’s SIP-approved PSD program
includes greenhouse gases as a regulated
pollutant, EPA is not approving those
provisions in this rulemaking action.
The commenter’s concerns regarding
coal energy and EPA’s actions on
climate change issues are irrelevant to
this rulemaking action, and therefore no
further response is required.
Comment: Another commenter
remarked on Virginia’s environmental
assessment (audit) ‘‘privilege’’ discussed
in Section III of EPA’s May 21, 2014
NPR under ‘‘General Information
Pertaining to SIP Submittals from the
Commonwealth of Virginia,’’ which is
also included in Section IV of this
rulemaking action. The commenter
stated he wrote ‘‘to support the docket
as written’’ and stated there needs to be
a sufficient level of disclosure of
emissions in environmental law to
ensure emission limits are met. The
commenter also stated that the
Commonwealth of Virginia’s laws seem
to meet this standard, and therefore the
commenter supported ‘‘their proposal.’’
EPA Response: In this rulemaking
action, EPA is approving Virginia’s
infrastructure SIP submissions as
meeting PSD requirements in section
110(a)(2)(C), (D)(i)(II) and (J) of the CAA
for the 2008 ozone and 2010 NO2
NAAQS. EPA is not approving any
Virginia privilege or immunity law into
the Virginia SIP nor taking any
rulemaking action on any such Virginia
provisions. As discussed in the NPR and
in Section V of this rulemaking action,
Virginia’s law regarding an
environmental assessment (audit)
‘‘privilege’’ for voluntary compliance
evaluations performed by a regulated
entity provides a privilege that protects
from disclosure documents and
information that are the product of a
voluntary environmental assessment. As
discussed in the NPR and in Section IV
of this rulemaking action, the Virginia
Attorney General’s January 12, 1998
opinion stated that Virginia’s audit
privilege law is inapplicable to
enforcement of any Federally authorized
program, 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.’’ EPA has
determined that Virginia’s privilege and
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immunity statutory provision will not
preclude the Commonwealth from
enforcing its PSD program consistent
with the Federal requirements, and EPA
has also determined that a state audit
privilege and immunity law can affect
only state enforcement and has no
impact on Federal enforcement
authorities. However, in this rulemaking
action, EPA is not approving any of
Virginia’s privilege and immunity
statutory provisions into the Virginia
SIP, and our discussion merely provides
EPA’s long-held interpretation of
Virginia’s statutory privilege provision
as not impacting enforcement of the
CAA or interfering with Federally
required programs such as a PSD
permits program. While the commenter
is mistaken regarding the substance of
our rulemaking action here, the
commenter did not disagree with EPA.
Thus, EPA thanks the commenter for his
input. As the comment is not related to
this rulemaking action which approves
Virginia’s SIP submissions as meeting
PSD requirements of section 110(a)(2) of
the CAA for the 2008 ozone and 2010
NO2 NAAQS, no further response is
required.
IV. Final Action
EPA is approving the formal SIP
revisions submitted by Virginia on July
23, 2012 for the 2008 ozone NAAQS and
May 30, 2013 for the 2010 NO2 NAAQS
as they meet the infrastructure
requirements relating to a PSD permit
program pursuant to section
110(a)(2)(C), (D)(i)(II), and (J) of the
CAA.
V. 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
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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 § 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 PSD
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
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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.
VI. 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 Order 12866 (58 FR 51735,
October 4, 1993);
• 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
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methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
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 December 1, 2014. 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,
approving Virginia’s July 23, 2012 SIP
submission for the 2008 ozone NAAQS
and May 30, 2013 SIP submission for
the 2010 NO2 NAAQS as meeting the
PSD elements in section 110(a)(2) of the
CAA, 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, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements.
E:\FR\FM\30SER1.SGM
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58686
Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations
Dated: September 9, 2014.
William C. Early,
Acting Regional Administrator, Region III.
Authority: 42 U.S.C. 7401 et seq.
Infrastructure Requirements for the 2008
Ozone NAAQS.’’
The revisions read as follows:
Subpart VV—Virginia
Therefore, 40 CFR part 52 is amended
as follows:
2. In § 52.2420:
a. In the table in paragraph (e), revise
the entry for ‘‘Section 110(a)(2)
Infrastructure Requirements for the 2010
Nitrogen Dioxide NAAQS.’’
■ b. In the table in paragraph (e), revise
the entry for ‘‘Section 110(a)(2)
1. The authority citation for part 52
continues to read as follows:
■
§ 52.2420
■
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
■
*
Identification of plan.
*
*
(e) * * *
*
*
Name of non-regulatory SIP revision
Applicable geographic
area
State submittal date
EPA approval date
Additional explanation
*
*
Section 110(a)(2) Infrastructure Requirements for the 2010 Nitrogen
Dioxide NAAQS.
*
Statewide ..................
*
5/30/13 ....
*
3/18/14, 79 FR 15012
*
*
This action addresses the following CAA
elements,
or
portions
thereof:
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii),
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L),
and (M) with the exception of PSD elements.
This action addresses the following CAA
elements,
or
portions
thereof:
110(a)(2)(C), (D)(i)(II), and (J) with respect to the PSD elements.
This action addresses the following CAA
elements,
or
portions
thereof:
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii),
(E)(i), (E)(iii), (F), (G), (H), (J), (K), (L),
and (M) with the exception of PSD elements.
This action addresses the following CAA
elements,
or
portions
thereof:
110(a)(2)(C), (D)(i)(II), and (J) with respect to the PSD elements.
9/30/14 [Insert Federal Register citation].
Section 110(a)(2) Infrastructure Requirements for the 2008 Ozone
NAAQS.
Statewide ..................
7/23/12 ....
3/27/14, 79 FR 17043
9/30/14 [Insert Federal Register citation].
*
*
*
*
*
*
*
ENVIRONMENTAL PROTECTION
AGENCY
the EPCRA section 313 list pursuant to
its authority to add chemicals and
chemical categories because EPA has
determined that this category meets the
EPCRA section 313(d)(2)(C) toxicity
criterion.
Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the OEI Docket is (202) 566–1752.
40 CFR Part 372
DATES:
This final rule is effective on
September 30, 2014, and shall apply for
the reporting year beginning January 1,
2015 (reports due July 1, 2016).
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2014–23106 Filed 9–29–14; 8:45 am]
BILLING CODE 6560–50–P
[EPA–HQ–TRI–2012–0110; FRL–9915–59–
OEI]
RIN 2025–AA34
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is adding a nonylphenol
category to the list of toxic chemicals
subject to reporting under section 313 of
the Emergency Planning and
Community Right-to-Know Act (EPCRA)
of 1986 and section 6607 of the
Pollution Prevention Act (PPA) of 1990.
EPA is adding this chemical category to
tkelley on DSK3SPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:57 Sep 29, 2014
EPA has established a
docket for this action under Docket ID
No. EPA–HQ–TRI–2012–0110. All
documents in the docket are listed in
the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the OEI Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.
NW., Washington, DC. This Docket
ADDRESSES:
Addition of Nonylphenol Category;
Community Right-To-Know Toxic
Chemical Release Reporting
Jkt 232001
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
Daniel R. Bushman, Environmental
Analysis Division, Office of Information
Analysis and Access (2842T),
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
DC 20460; telephone number: 202–566–
0743; fax number: 202–566–0677; email:
bushman.daniel@epa.gov, for specific
information on this notice. For general
information on EPCRA section 313,
contact the Emergency Planning and
Community Right-to-Know Hotline, toll
free at (800) 424–9346 (select menu
option 3) or (703) 412–9810 in Virginia
and Alaska or toll free, TDD (800) 553–
7672, https://www.epa.gov/superfund/
contacts/infocenter/.
SUPPLEMENTARY INFORMATION:
E:\FR\FM\30SER1.SGM
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Agencies
[Federal Register Volume 79, Number 189 (Tuesday, September 30, 2014)]
[Rules and Regulations]
[Pages 58682-58686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23106]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2013-0211, EPA-R03-OAR-2013-0510; FRL-9917-17-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Section 110(a)(2) Prevention of Significant Deterioration
Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National
Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to the Virginia State Implementation Plan (SIP) 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 for the implementation, maintenance, and enforcement of
such NAAQS. The plan is required to address basic program elements,
including, but not limited to, regulatory structure, monitoring,
modeling, legal authority, and adequate resources necessary to assure
attainment and maintenance of the standards. These elements are
referred to as infrastructure requirements. The Commonwealth of
Virginia has made two separate submittals addressing the infrastructure
requirements for the 2008 ozone and 2010 nitrogen dioxide
(NO2) NAAQS. This action approves the prevention of
significant deterioration (PSD) portions of the infrastructure
requirements of the CAA for the Commonwealth's SIP submittals for the
2008 ozone and 2010 NO2 NAAQS.
DATES: This final rule is effective on October 30, 2014.
ADDRESSES: EPA has established two dockets for this action under Docket
ID Numbers EPA-R03-OAR-2013-0211 for the 2008 ozone docket and EPA-R03-
OAR-2013-0510 for the 2010 NO2 docket. 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 either electronically through
www.regulations.gov or in hard copy for public inspection 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 the
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by
email at schmitt.ellen@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On May 21, 2014, EPA published a notice of proposed rulemaking
(NPR) for the Commonwealth of Virginia. 79 FR 29142. In the NPR, EPA
proposed approval of the infrastructure elements of section
110(a)(2)(C), (D)(i)(II), and (J) of the CAA as they relate to
Virginia's PSD program for the 2008 ozone and 2010 NO2
NAAQS. The formal SIP revisions were submitted by Virginia on July 23,
2012 and May 30, 2013 for the 2008 ozone and the 2010 NO2
NAAQS, respectively.
The July 23, 2012 and May 30, 2013 Virginia infrastructure SIP
submissions indicated that the approved Virginia SIP (plus measures
submitted but not yet fully approved by EPA for the SIP) addressed
requirements for a PSD program as required for section 110(a)(2)(C),
(D)(i)(II) and (J) of the
[[Page 58683]]
CAA.\1\ In Virginia, construction and modification of stationary
sources are covered under Article 8, Permits for Major Stationary
Sources and Major Modifications Locating in Prevention of Significant
Deterioration Areas (9VAC5-80-1605 et seq.) which is included in the
approved Virginia SIP. See 40 CFR 52.2420(c). Article 8 also requires
that construction and modification of major stationary sources will not
cause or contribute to a violation of any NAAQS (9VAC5-80-1635, Ambient
Air Increments and 9VAC5-80-1645, Ambient Air Ceilings) and requires
application of Best Available Control Technology (BACT) to new or
modified sources (9VAC5-80-1705, Control Technology Review). On August
5, 2011, Virginia submitted a revision to its SIP which incorporated
preconstruction permitting requirements for sources of fine particulate
matter (PM2.5) into Virginia's PSD program. Subsequent to
Virginia's submittal, two decisions by the United States Court of
Appeals for the DC Circuit addressed the Federal PM2.5
program and impacted EPA's ability to fully approve the PSD SIP
revisions submitted by Virginia.\2\ Virginia consequently submitted
additional revisions to its PSD program addressing preconstruction
permitting requirements for sources of PM2.5. On February
25, 2014, EPA fully approved these revisions to Virginia's PSD program.
79 FR 10377. With these revisions fully approved, Virginia's SIP-
approved PSD program now contains all of the emission limitations,
control measures, and other program elements required by the CAA and 40
CFR 51.166 for all required pollutants, including PM2.5. Id.
(also approving Virginia's infrastructure SIP submittals for the 1997
8-hour ozone and PM2.5 NAAQS, the 2006 PM2.5
NAAQS, and the 2008 lead NAAQS for PSD requirements in section
110(a)(2) of the CAA).
---------------------------------------------------------------------------
\1\ Virginia's July 23, 2012 infrastructure SIP submission for
the 2008 ozone NAAQS cited to Virginia's existing approved PSD
program to address section 110(a)(2) requirements for PSD. However,
the May 30, 2013 infrastructure SIP submission for the 2010
NO2 NAAQS cited to Virginia's existing approved PSD
program plus additional regulatory provisions submitted to EPA but
not yet fully approved into the SIP to address section 110(a)(2)
requirements for PSD.
\2\ See Natural Resources Defense Council v. EPA, 706 F.3d 428
(D.C. Cir. 2013) (remanding EPA's rules implementing the 1997
PM2.5 NAAQS, including the 2008 rule, ``Implementation of
New Source Review (NSR) Program for Particulate Matter Less Than 2.5
Micrometers (PM2.5)''), and Sierra Club v. EPA, 705 F.3d
458 (D.C. Cir. 2013) (vacating and remanding provisions at 40 CFR
51.166(i)(5), (k)(2) and 52.21(i)(5), (k)(2) relating to
PM2.5 significant impact levels and significant
monitoring concentrations for PSD).
---------------------------------------------------------------------------
Section 110(a)(2)(C) of the CAA requires each state's SIP to
``include a program to provide for . . . regulation of the modification
and construction of any stationary source within the areas covered by
the plan as necessary to ensure that national ambient air quality
standards are achieved, including a permit program as required in . . .
this subchapter.'' Similarly, section 110(a)(2)(J) requires that for
each NAAQS the state's SIP must ``meet the applicable requirements of .
. . part C of this subchapter (relating to prevention of significant
deterioration of air quality and visibility protection).'' Section
110(a)(2)(D)(i)(II) of the CAA requires each state's SIP to include
provisions which will prevent emissions from within the state
interfering with the measures required by another state for
implementing PSD. As discussed in EPA's May 21, 2014 NPR, when
reviewing infrastructure SIP submittals, EPA focuses on the structural
PSD program requirements contained in part C as well as EPA's PSD
regulations. These structural requirements call for the PSD program to
address all NSR pollutants, including greenhouse gases (GHGs).
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat
GHGs as an air pollutant for purposes of determining whether a source
is a major source required to obtain a PSD permit. The Court also said
that EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs, contain limitations
on GHG emissions based on the application of BACT. In order to act
consistently with its understanding of the Court's decision pending
further judicial action to effectuate the decision, EPA is not
continuing to apply EPA regulations that would require that SIPs
include permitting requirements that the Supreme Court found
impermissible. Specifically, EPA is not applying the requirement that a
state's SIP-approved PSD program require that sources obtain PSD
permits when GHGs are the only pollutant (i) that the source emits or
has the potential to emit above the major source thresholds, or (ii)
for which there is a significant emissions increase and a significant
net emissions increase from a modification (e.g. 40 CFR
51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules
in light of the Supreme Court opinion. In addition, EPA anticipates
that many states will revise their existing SIP-approved PSD programs
in light of the Supreme Court's decision. The timing and content of
subsequent EPA actions with respect to EPA regulations and state PSD
program approvals are expected to be informed by additional legal
process before the United States District Court for the District of
Columbia Circuit. At this juncture, EPA is not expecting states to have
revised their PSD programs for purposes of infrastructure SIP
submissions and is only evaluating such submissions to assure that the
state's program correctly addresses GHGs consistent with the Supreme
Court's decision.
As discussed in the May 21, 2014 NPR and herein, EPA finds
Virginia's approved SIP meets the statutory obligations relating to a
PSD permit program required by section 110(a)(2)(C), (D)(i)(II), and
(J) of the CAA for the 2008 ozone and 2010 NO2 NAAQS. See 79
FR 10377 (providing full approval to Virginia's PSD program as
addressing requirements in the CAA and in 40 CFR 51.166). The detailed
rationale for EPA's action is explained in the NPR and will not be
restated here. With respect to GHGs, EPA has determined that Virginia's
SIP is currently sufficient to satisfy section 110(a)(2)(C),
(D)(i)(II), and (J) of the CAA for the 2008 ozone and 2010
NO2 NAAQS because the PSD permitting program previously
approved by EPA into the SIP continues to require that PSD permits
(otherwise required based on emissions of pollutants other than GHGs)
contain limitations on GHG emissions based on the application of BACT.
Although Virginia's approved PSD permitting program may currently
contain provisions that are no longer necessary in light of the Supreme
Court decision, this does not render the infrastructure SIP submission
inadequate to satisfy section 110(a)(2)(C), (D)(i)(II), and (J). As
previously mentioned, the Virginia SIP currently contains the necessary
PSD requirements and the application of those requirements is not
impeded by the presence of other previously approved provisions
regarding the permitting of sources of GHGs that, in light of the
Supreme Court decision, EPA does not consider necessary at this time.
Accordingly, the Supreme Court decision does not affect EPA's proposed
approval of Virginia's infrastructure SIP as it relates to section
110(a)(2)(C), (D)(i)(II), and (J).
II. Summary of SIP Revision
On July 2, 2013, EPA proposed approval of the 2008 ozone submittal
for
[[Page 58684]]
the following infrastructure elements: Section 110(a)(2)(A), (B), (C)
(for enforcement and regulation of minor sources and minor
modifications), (D)(i)(II) (for visibility protection), (D)(ii),
(E)(i), (E)(iii), (F), (G), (H), (J) (relating to consultation, public
notification, and visibility protection requirements), (K), (L), and
(M). 78 FR 39651. Subsequently, EPA published a Final Rulemaking Notice
(FRN) on March 27, 2014, which approved the Virginia 2008 ozone
submittal for those specific elements. 79 FR 17043.
On August 5, 2013, EPA proposed approval of the 2010 NO2
submittal for the following infrastructure elements: Section
110(a)(2)(A), (B), (C) (for enforcement and regulation of minor sources
and minor modifications), (D)(i)(II) (for visibility protection),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (relating to
consultation, public notification, and visibility protection
requirements), (K), (L), and (M). 78 FR 47264. Subsequently, on March
18, 2014, EPA published a FRN which approved the Virginia 2010
NO2 submittal for those specific elements. 79 FR 15012.
In both EPA's March 27, 2014 and March 18, 2014 FRNs, EPA indicated
that it was taking separate action on certain infrastructure elements
from Virginia's infrastructure SIP submittals as they related to PSD
and section 128 of the CAA. This final rulemaking action approves the
infrastructure elements of section 110(a)(2)(C), (D)(i)(II), and (J) of
the CAA as they relate to Virginia's PSD program for the 2008 ozone and
2010 NO2 NAAQS. EPA will take later separate action on
section 110(a)(2)(E)(ii) of the CAA as it relates to section 128 for
the 2008 ozone and 2010 NO2 NAAQS.
III. Public Comments
EPA received two comments on the May 21, 2014 NPR proposing
approval of Virginia's July 23, 2012 and May 30, 2013 SIP submissions
addressing the PSD infrastructure elements for the 2008 ozone and 2010
NO2 NAAQS. A full set of the comments is provided in the
docket for this final rulemaking action. A summary of each comment and
the EPA's response is provided in this section.
Comment: One commenter stated, ``[t]hese regulations will destroy
the cheap coal energy for our population'' and requested a new
President to reverse EPA's climate change policies. The commenter also
suggested EPA should ``go through Congress,'' presumably on climate
change issues.
EPA Response: EPA thanks the commenter for the concerns expressed.
However, the comments are not germane to the present rulemaking. This
rulemaking action approves Virginia's infrastructure SIP submittals for
the 2008 ozone and 2010 NO2 NAAQS as fully addressing the
PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J)
of the CAA for the 2008 ozone and 2010 NO2 NAAQS. While
Virginia's SIP-approved PSD program includes greenhouse gases as a
regulated pollutant, EPA is not approving those provisions in this
rulemaking action. The commenter's concerns regarding coal energy and
EPA's actions on climate change issues are irrelevant to this
rulemaking action, and therefore no further response is required.
Comment: Another commenter remarked on Virginia's environmental
assessment (audit) ``privilege'' discussed in Section III of EPA's May
21, 2014 NPR under ``General Information Pertaining to SIP Submittals
from the Commonwealth of Virginia,'' which is also included in Section
IV of this rulemaking action. The commenter stated he wrote ``to
support the docket as written'' and stated there needs to be a
sufficient level of disclosure of emissions in environmental law to
ensure emission limits are met. The commenter also stated that the
Commonwealth of Virginia's laws seem to meet this standard, and
therefore the commenter supported ``their proposal.''
EPA Response: In this rulemaking action, EPA is approving
Virginia's infrastructure SIP submissions as meeting PSD requirements
in section 110(a)(2)(C), (D)(i)(II) and (J) of the CAA for the 2008
ozone and 2010 NO2 NAAQS. EPA is not approving any Virginia
privilege or immunity law into the Virginia SIP nor taking any
rulemaking action on any such Virginia provisions. As discussed in the
NPR and in Section V of this rulemaking action, Virginia's law
regarding an environmental assessment (audit) ``privilege'' for
voluntary compliance evaluations performed by a regulated entity
provides a privilege that protects from disclosure documents and
information that are the product of a voluntary environmental
assessment. As discussed in the NPR and in Section IV of this
rulemaking action, the Virginia Attorney General's January 12, 1998
opinion stated that Virginia's audit privilege law is inapplicable to
enforcement of any Federally authorized program, 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.'' EPA has determined
that Virginia's privilege and immunity statutory provision will not
preclude the Commonwealth from enforcing its PSD program consistent
with the Federal requirements, and EPA has also determined that a state
audit privilege and immunity law can affect only state enforcement and
has no impact on Federal enforcement authorities. However, in this
rulemaking action, EPA is not approving any of Virginia's privilege and
immunity statutory provisions into the Virginia SIP, and our discussion
merely provides EPA's long-held interpretation of Virginia's statutory
privilege provision as not impacting enforcement of the CAA or
interfering with Federally required programs such as a PSD permits
program. While the commenter is mistaken regarding the substance of our
rulemaking action here, the commenter did not disagree with EPA. Thus,
EPA thanks the commenter for his input. As the comment is not related
to this rulemaking action which approves Virginia's SIP submissions as
meeting PSD requirements of section 110(a)(2) of the CAA for the 2008
ozone and 2010 NO2 NAAQS, no further response is required.
IV. Final Action
EPA is approving the formal SIP revisions submitted by Virginia on
July 23, 2012 for the 2008 ozone NAAQS and May 30, 2013 for the 2010
NO2 NAAQS as they meet the infrastructure requirements
relating to a PSD permit program pursuant to section 110(a)(2)(C),
(D)(i)(II), and (J) of the CAA.
V. 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
[[Page 58685]]
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
PSD 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.
VI. 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 Order
12866 (58 FR 51735, October 4, 1993);
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 rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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 December 1, 2014. 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, approving Virginia's July 23, 2012 SIP submission
for the 2008 ozone NAAQS and May 30, 2013 SIP submission for the 2010
NO2 NAAQS as meeting the PSD elements in section 110(a)(2)
of the CAA, 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
[[Page 58686]]
Dated: September 9, 2014.
William C. Early,
Acting Regional Administrator, Region III.
Therefore, 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:
0
a. In the table in paragraph (e), revise the entry for ``Section
110(a)(2) Infrastructure Requirements for the 2010 Nitrogen Dioxide
NAAQS.''
0
b. In the table in paragraph (e), revise the entry for ``Section
110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS.''
The revisions read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable State submittal
revision geographic area date EPA approval date Additional explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Statewide......... 5/30/13......... 3/18/14, 79 FR This action addresses
Infrastructure Requirements 15012. the following CAA
for the 2010 Nitrogen Dioxide elements, or portions
NAAQS. thereof:
110(a)(2)(A), (B),
(C), (D)(i)(II),
(D)(ii), (E)(i),
(E)(iii), (F), (G),
(H), (J), (K), (L),
and (M) with the
exception of PSD
elements.
9/30/14 [Insert This action addresses
Federal Register the following CAA
citation]. elements, or portions
thereof:
110(a)(2)(C),
(D)(i)(II), and (J)
with respect to the
PSD elements.
Section 110(a)(2) Statewide......... 7/23/12......... 3/27/14, 79 FR This action addresses
Infrastructure Requirements 17043. the following CAA
for the 2008 Ozone NAAQS. elements, or portions
thereof:
110(a)(2)(A), (B),
(C), (D)(i)(II),
(D)(ii), (E)(i),
(E)(iii), (F), (G),
(H), (J), (K), (L),
and (M) with the
exception of PSD
elements.
9/30/14 [Insert This action addresses
Federal Register the following CAA
citation]. elements, or portions
thereof:
110(a)(2)(C),
(D)(i)(II), and (J)
with respect to the
PSD elements.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2014-23106 Filed 9-29-14; 8:45 am]
BILLING CODE 6560-50-P