[Federal Register Volume 78, Number 185 (Tuesday, September 24, 2013)]
[Rules and Regulations]
[Pages 58462-58465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22974]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0451; FRL-9901-22Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Section 110(a)(2) Infrastructure Requirements for the 2008 
Lead National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Virginia pursuant to the Clean Air Act 
(CAA). Whenever new or revised

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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. Virginia has made a 
submittal addressing the infrastructure requirements for the 2008 lead 
(Pb) NAAQS.

DATES: This final rule is effective on October 24, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0451. All documents in the docket are listed on 
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 [email protected].

SUPPLEMENTARY INFORMATION:

I. Summary of SIP Revision

    On June 11, 2013 (78 FR 34970), EPA published a notice of proposed 
rulemaking action (NPR) for the Commonwealth of Virginia proposing 
approval of Virginia's March 9, 2012 submittal to satisfy several 
requirements of section 110(a)(2) of the CAA for the 2008 Pb NAAQS. The 
NPR proposed approval of the following infrastructure elements of 
section 110(a)(2): (A), (B), (C) (for enforcement and regulation of 
minor sources), (D)(i)(I), (D)(i)(II) (for the visibility protection 
portion), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K), (L), and 
(M), or portions thereof necessary to implement, maintain, and enforce 
the 2008 Pb NAAQS. EPA is taking separate action on the portions of 
section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to Virginia's 
prevention of significant deterioration (PSD) program and section 
110(a)(2)(E)(ii) as it relates to section 128 (State Boards). Virginia 
did not submit section 110(a)(2)(I) which pertains to the nonattainment 
requirements of part D, Title I of the CAA, since this element is not 
required to be submitted by the 3-year submission deadline of section 
110(a)(1), and will be addressed in a separate process.
    The rationale supporting EPA's proposed action, including the scope 
of infrastructure SIPs in general, is explained in the NPR and the 
technical support document (TSD) accompanying the NPR and will not be 
restated here. The TSD is available online at www.regulations.gov, 
Docket ID Number EPA-R03-OAR-2012-0451. No comments were received on 
the NPR.

II. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts . . .'' The opinion concludes 
that ``[r]egarding Sec.  10.1-1198, therefore, documents or other 
information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
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.

III. Final Action

    EPA is approving the following section 110(a)(2) elements of 
Virginia's March 9, 2012 SIP revision: (A), (B), (C) (for enforcement 
and regulation of minor sources), (D)(i)(I), (D)(i)(II) (for the 
visibility protection portion), (D)(ii), (E)(i), (E)(iii), (F), (G), 
(H), (J), (K), (L),

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and (M), or portions thereof. EPA is taking separate action on the 
portions of section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to 
Virginia's PSD program and section 110(a)(2)(E)(ii) as it relates to 
section 128 (State Boards). This action does not include section 
110(a)(2)(I) which pertains to the nonattainment requirements of part 
D, Title I of the CAA, since this element is not required to be 
submitted by the 3-year submission deadline of section 110(a)(1), and 
will be addressed in a separate process.

IV. 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);
     Udoes 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 November 25, 2013. 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, which satisfies certain infrastructure requirements of 
section 110(a)(2) for the 2008 Pb NAAQS for the Commonwealth of 
Virginia, 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, Lead, Reporting and recordkeeping requirements.

     Dated: August 29, 2013,
W.C. Early,
Acting Regional Administrator, Region III.
    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, the table in paragraph (e) is amended by adding 
the entry at the end of the table for Section 110(a)(2) Infrastructure 
Requirements for the 2008 Lead NAAQS. The amendment reads as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

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                                                     State
  Name of non-regulatory SIP       Applicable      submittal     EPA approval         Additional explanation
           revision             geographic area       date           date
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                                                  * * * * * * *
Section 110(a)(2)              Statewide........       3/9/12  9/24/13 [Insert   This action addresses the
 Infrastructure Requirements                                    Federal           following CAA elements or
 for the 2008 Lead NAAQS.                                       Register page     portions thereof:
                                                                number where      110(a)(2)(A), (B), (C) (for
                                                                the document      enforcement and regulation of
                                                                begins and        minor sources), (D)(i)(I),
                                                                date].            (D)(i)(II) (for the visibility
                                                                                  protection portion), (D)(ii),
                                                                                  (E)(i), (E)(iii), (F), (G),
                                                                                  (H), (J), (K), (L), and (M).
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[FR Doc. 2013-22974 Filed 9-23-13; 8:45 am]
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