[Federal Register Volume 76, Number 135 (Thursday, July 14, 2011)]
[Proposed Rules]
[Pages 41444-41446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17766]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0160; FRL-9438-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Virginia; Section 110(a)(2) Infrastructure Requirements 
for the 1997 8-Hour Ozone and the 1997 and 2006 Fine Particulate Matter 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve submittals from the Commonwealth 
of Virginia pursuant to the Clean Air Act (CAA) sections 110(k)(2) and 
(3). These submittals address the infrastructure elements specified in 
CAA section 110(a)(2), necessary to implement, maintain, and enforce 
the 1997 8-hour ozone and fine particulate matter (PM2.5) 
national ambient air quality standards (NAAQS) and the 2006 
PM2.5 NAAQS. This proposed action is limited to the 
following infrastructure elements which were subject to EPA's 
completeness findings pursuant to CAA section 110(k)(1) for the 1997 8-
hour ozone NAAQS dated March 27, 2008 and the 1997 PM2.5 
NAAQS dated October 22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M), or portions thereof; and the 
following infrastructure elements for the 2006 PM2.5 NAAQS: 
110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and 
(M), or portions thereof.

DATES: Written comments must be received on or before August 15, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0160 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2010-0160, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0160. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access system'' which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy 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: Marilyn Powers, (215) 814-2380, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 41445]]

I. Background

    On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS (62 
FR 38856) and a new PM2.5 NAAQS (62 FR 38652). The revised 
ozone NAAQS is based on 8-hour average concentrations. The 8-hour 
averaging period replaced the previous 1-hour averaging period, and the 
level of the NAAQS was changed from 0.12 parts per million (ppm) to 
0.08 ppm. The new PM2.5 NAAQS established a health-based 
PM2.5 standard of 15.0 micrograms per cubic meter ([mu]g/
m\3\) based on a 3-year average of annual mean PM2.5 
concentrations, and a twenty-four hour standard of 65 [mu]g/m\3\ based 
on a 3-year average of the 98th percentile of 24-hour concentrations. 
EPA strengthened the 24-hour PM2.5 NAAQS from 65 [mu]g/m\3\ 
to 35 [mu]g/m\3\ on October 17, 2006 (71 FR 61144).
    Section 110(a) of the CAA requires States to submit State 
Implementation Plans (SIPs) that provide for the implementation, 
maintenance, and enforcement of new or revised NAAQS within three years 
following the promulgation of such NAAQS. In March of 2004, 
Earthjustice initiated a lawsuit against EPA for failure to take action 
against States that had not made SIP submissions to meet the 
requirements of sections 110(a)(1) and (2) for the 1997 8-hour ozone 
and PM2.5 NAAQS, i.e., failure to make a ``finding of 
failure to submit the required SIP 110(a) SIP elements.'' On March 10, 
2005, EPA entered into a Consent Decree with Earthjustice that 
obligated EPA to make official findings in accordance with section 
110(k)(1) of the CAA as to whether States have made required complete 
SIP submissions, pursuant to sections 110(a)(1) and (2), by December 
15, 2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008 for the 
1997 PM2.5 NAAQS. EPA made such findings for the 1997 8-hour 
ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 
FR 62902) for the 1997 PM2.5 NAAQS. These completeness 
findings did not include findings relating to: (1) Section 110(a)(2)(C) 
to the extent that such subsection refers to a permit program as 
required by Part D of Title I of the CAA; (2) section 110(a)(2)(I); and 
(3) section 110(a)(2)(D)(i)(I), which has been addressed by a separate 
finding issued by EPA on April 25, 2005 (70 FR 21147). Therefore, this 
action does not cover these specific elements.
    This action also does not include the portions of 110(a)(2)(C), 
(D)(i)(II), and (J) as they pertain to a permit program as required by 
Part C of Title I of the CAA, and the portion of 110(a)(2)(D)(i)(II) as 
it pertains to visibility. These portions of these elements will be 
addressed by separate actions.

II. Summary of State Submittal

    Virginia provided multiple submittals to satisfy the section 
110(a)(2) requirements that are the subject of this proposed action for 
the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 
NAAQS. The submittals shown in Table 1 address the infrastructure 
elements, or portions thereof, identified in section 110(a)(2) that EPA 
is proposing to approve.

Table 1--110(a)(2) Elements, or Portions Thereof, EPA Is Proposing to Approve for the 1997 Ozone and PM2.5 NAAQS
                                      and the 2006 PM2.5 NAAQS for Virginia
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          Submittal date               1997 8-Hour ozone             1997 PM2.5                2006 PM2.5
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December 10, 2007................  B, E, G, H, J, M.
December 13, 2007................  A, C, D(ii), F, G, K, L.
July 10, 2008....................  .........................  B, E, G, H, J, K, M.
September 2, 2008................  .........................  A, C, D(ii), F, G, K, L.
June 8, 2010.....................  E(ii)....................  E(ii).
June 9, 2010.....................  E(ii)....................  E(ii).
August 30, 2010..................  .........................  G.......................  G.
April 1, 2011....................  .........................  ........................  A, B, C, D(ii), E, F, G,
                                                                                         H, J, K, L, M.
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    EPA analyzed the above identified submissions and is proposing to 
make a determination that such submittals meet the requirements of 
section 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), 
(L), and (M), or portions thereof, for the 1997 8-hour ozone and 
PM2.5 NAAQS and the 2006 PM2.5 NAAQS. A detailed 
summary of EPA's review of, and rationale for approving Virginia's 
submittals may be found in the Technical Support Document (TSD) for 
this action, which is available online at http://www.regulations.gov, 
Docket number EPA-R03-OAR-2010-0160.

III. 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 (1) That are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that 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

[[Page 41446]]

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 
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.

IV. Proposed Action

    EPA is proposing to approve Virginia's submittals that provide the 
basic program elements specified in the CAA sections 110(a)(2)(A), (B), 
(C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or portions 
thereof, necessary to implement, maintain, and enforce the 1997 8-hour 
ozone and PM2.5 NAAQS and the 2006 PM2.5 NAAQS. 
EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

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 proposes to approve 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 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 proposed rule, pertaining to Virginia's section 
110(a)(2) infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Volatile organic compounds.

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

    Dated: June 27, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-17766 Filed 7-13-11; 8:45 am]
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