[Federal Register Volume 79, Number 85 (Friday, May 2, 2014)]
[Rules and Regulations]
[Pages 25019-25021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10110]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0006; FRL-9910-34-Region 3]


Approval and Promulgation of Implementation Plans; Virginia; 
Regional Haze Five-Year Progress Report State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia through the Virginia Department of Environmental Quality 
(DEQ). Virginia's SIP revision addresses requirements of the Clean Air 
Act (CAA) and EPA's rules that require states to submit periodic 
reports describing progress towards reasonable progress goals (RPGs) 
established for regional haze and a determination of the adequacy of 
the state's existing implementation plan addressing regional haze 
(regional haze SIP). EPA is approving Virginia's SIP revision on the 
basis that it addresses the progress report and adequacy determination 
requirements for the first implementation period for regional haze.

DATES: This final rule is effective on June 2, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0006. 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 
Virginia's submittal are available at the Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 25, 2014 (79 FR 10451), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, 
EPA proposed approval of Virginia's progress report SIP, a report on 
progress made in the first implementation period towards RPGs for Class 
I areas in the Commonwealth and Class I areas outside the Commonwealth 
that are affected by emissions from Virginia's sources. This progress 
report SIP and accompanying cover letter also included a determination 
that Virginia's existing regional haze SIP requires no substantive 
revision to achieve the established regional haze visibility 
improvement and emissions reduction goals for 2018.
    States are required to submit a progress report in the form of a 
SIP revision every five years that evaluates progress towards the RPGs 
for each mandatory Class I Federal area within the state and in each 
mandatory Class I Federal area outside the state which may be affected 
by emissions from within the state. See 40 CFR 51.308(g). In addition, 
the provisions under 40 CFR 51.308(h) require states to submit, at the 
same time as the 40 CFR 51.308(g) progress report, a determination of 
the adequacy of the state's existing regional haze SIP. The first 
progress report SIP is due five years after submittal of the initial 
regional haze SIP. On October 4, 2010, Virginia DEQ submitted the 
Commonwealth's first regional haze SIP in accordance with the 
requirements of 40 CFR 51.308.\1\ The progress report SIP revision was 
submitted by Virginia on November 8, 2013 and EPA finds that it 
satisfies the requirements of 40 CFR 51.308(g) and 308(h).
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    \1\ On June 13, 2012, EPA finalized a limited approval of 
Virginia's October 4, 2010 regional haze SIP to address the first 
implementation period for regional haze (77 FR 35287). In a separate 
action, published on June 7, 2012 (77 FR 33642), EPA finalized a 
limited disapproval of the Virginia regional haze SIP because of the 
Commonwealth's reliance on the Clean Air Interstate Rule (CAIR) to 
meet certain regional haze requirements, which EPA replaced in 
August 2011 with the Cross-State Air Pollution Rule (CSAPR) (76 FR 
48208, August 8, 2011). In the aforementioned June 7, 2012 action, 
EPA finalized a Federal Implementation Plan (FIP) for Virginia to 
replace the Commonwealth's reliance on CAIR with reliance on CSAPR. 
Following these EPA actions, the DC Circuit issued a decision in EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 
cert. granted 133 U.S. 2857 (2013) vacating CSAPR and keeping CAIR 
in place pending the promulgation of a valid replacement rule. EPA 
believes that the EME Homer City decision impacts the reasoning that 
formed the basis for EPA's limited disapproval of Virginia's 
regional haze SIP based on Virginia's reliance upon CAIR and expects 
to propose an appropriate action regarding the limited approval and 
limited disapproval of the regional haze SIP upon final resolution 
of EME Homer City.
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II. Summary of SIP Revision

    On November 8, 2013, Virginia submitted a SIP revision to address 
progress made towards RPGs of Class I areas in the Commonwealth and 
Class I areas outside the Commonwealth that are affected by emissions 
from Virginia's sources. This progress report SIP also includes a 
determination of the adequacy of the Commonwealth's existing regional 
haze SIP.
    Virginia has two Class I areas within its borders: James River Face 
Wilderness Area (James River) and Shenandoah National Park 
(Shenandoah). Virginia mentions in the progress report SIP that 
Virginia sources were also identified, through an area of influence 
modeling analysis based on back trajectories, as potentially impacting 
nine Class I areas in five neighboring states: Dolly Sods Wilderness 
Area in West Virginia; Great Smoky Mountains National Park and Joyce 
Kilmer--Slickrock Wilderness Area in North Carolina and Tennessee; 
Linville Gorge, Shining Rock and Swanquarter Wilderness Areas in North 
Carolina; Cohutta and Wolf Island Wilderness Areas in Georgia; and Cape 
Romaine Wilderness Area in South Carolina.
    The provisions in 40 CFR 51.308(g) require a progress report SIP to 
address seven elements. EPA finds that Virginia's progress report SIP 
addressed each element under 40 CFR 51.308(g). The seven elements and 
EPA's conclusion are briefly summarized below; however, the detailed 
rationale for EPA's action is explained in the NPR and will not be 
restated here. No adverse public comments were received on the NPR.
    The provisions in 40 CFR 51.308(g) require progress report SIPs to 
include a description of the status of measures in the approved 
regional haze SIP; a summary of emissions reductions achieved; an 
assessment of visibility conditions for each Class I area in the state; 
an analysis of changes in emissions from sources and activities within 
the state; an assessment of any significant changes in anthropogenic 
emissions within or outside the state that have limited or impeded 
progress in Class I areas impacted by the state's sources; an 
assessment of the sufficiency of the approved regional

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haze SIP; and a review of the state's visibility monitoring strategy. 
As explained in detail in the NPR, EPA finds that Virginia's progress 
report SIP addressed each element and has therefore satisfied the 
requirements under 40 CFR 51.308(g).
    In addition, pursuant to 40 CFR 51.308(h), states are required to 
submit, at the same time as the progress report SIP, a determination of 
the adequacy of their existing regional haze SIP and to take one of 
four possible actions based on information in the progress report. One 
possible action is submission of a negative declaration to EPA that no 
further substantive revision to the state's existing regional haze SIP 
is needed. In its progress report SIP, Virginia submitted a negative 
declaration that it had determined that the existing regional haze SIP 
requires no further substantive revision to achieve the RPGs for Class 
I areas affected by Virginia's sources. As explained in detail in the 
NPR, EPA concludes Virginia has adequately addressed 40 CFR 51.308(h) 
because the visibility data trends at the Class I areas impacted by the 
Commonwealth's sources and the emissions trends of the Commonwealth's 
largest emitters of visibility-impairing pollutants both indicate that 
the Commonwealth's RPGs for 2018 will be met or exceeded. Therefore, 
EPA concludes Virginia's progress report SIP meets the requirements of 
40 CFR 52.308(h).

III. Final Action

    EPA is approving Virginia's Regional Haze five-year progress report 
SIP revision, submitted November 8, 2013, as meeting the applicable 
regional haze requirements as set forth in 40 CFR 51.308(g) and 
51.308(h).

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

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information that: (1) Are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts . . . .'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
PSD, NSR, or Title V program consistent with the Federal requirements. 
In any event, because EPA has also determined that a state audit 
privilege and immunity law can affect only state enforcement and cannot 
have any impact on Federal enforcement authorities, EPA may at any time 
invoke its authority under the CAA, including, for example, sections 
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions 
of the state plan, independently of any state enforcement effort. In 
addition, citizen enforcement under section 304 of the CAA is likewise 
unaffected by this, or any, state audit privilege or immunity law.

V. Statutory and Executive Order Reviews

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

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     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 July 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 to approve Virginia's regional haze five-year progress 
report SIP revision 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, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

    Dated: April 21, 2014.
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 an 
entry for Regional Haze Five-Year Progress Report at the end of the 
table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *

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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
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                                                  * * * * * * *
Regional Haze Five-Year Progress   Statewide..........         11/8/13  5/2/14 [Insert page
 Report.                                                                 number where the
                                                                         document begins].
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[FR Doc. 2014-10110 Filed 5-1-14; 8:45 am]
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