[Federal Register Volume 83, Number 136 (Monday, July 16, 2018)]
[Rules and Regulations]
[Pages 32794-32796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15049]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0337; FRL-9980-68--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Interstate Transport Requirements for the 2012 Fine 
Particulate Matter Standard

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 (the Commonwealth or Virginia). This revision pertains to the 
infrastructure requirement for interstate transport of pollution with 
respect to the 2012 fine particulate matter (PM2.5) national 
ambient air quality standards (NAAQS). EPA is approving this revision 
in accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on August 15, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0337. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., 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 through 
http://www.regulations.gov, or please contact the person identified in 
the ``For Further Information Contact'' section for additional 
availability information.

FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, (215) 814-2021, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 9, 2018 (83 FR 21233), EPA published a notice of proposed 
rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA 
proposed approval of Virginia's submittal to address the infrastructure 
requirements under section 110(a)(2)(D)(i) of the CAA for the 2012 
PM2.5 NAAQS. The formal SIP revision was submitted by 
Virginia through the Department of Environmental Quality (VADEQ) on May 
16, 2017.

II. Summary of SIP Revision and EPA Analysis

    Virginia's May 16, 2017 SIP submittal includes a summary of annual 
emissions of oxides of nitrogen (NOX) and sulfur dioxide 
(SO2), both of which are precursors of PM2.5. The 
emissions summary shows that emissions from Virginia sources have been 
steadily decreasing for sources that could potentially contribute, with 
respect to the 2012 PM2.5 NAAQS, to nonattainment in, or 
interfere with maintenance of, any other state. The submittal also 
included currently available air quality monitoring data for 
PM2.5, and its precursors SO2 and NO2, 
which Virginia alleged show that PM2.5 levels continue to be 
below the 2012 PM2.5 NAAQS in Virginia.
    Additionally, Virginia described in its submittal several existing 
SIP-approved measures and other federally enforceable source-specific 
measures, pursuant to permitting requirements under the CAA, that apply 
to sources of PM2.5 and its precursors within Virginia. 
Virginia concludes that the Commonwealth does not significantly 
contribute to, nor interfere with the maintenance of, another state for 
the 2012 PM2.5 NAAQS.
    A detailed summary of Virginia's submittal and EPA's review and 
rationale for approval of this SIP revision as meeting CAA section 
110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS may be found in 
the NPR and Technical Support Document (TSD) for this rulemaking 
action, which are available online at www.regulations.gov, Docket 
number EPA-R03-OAR-2017-0337.
    EPA used the information in the 2016 PM2.5 Memorandum\1\ 
and additional information for the evaluation and came to the same 
conclusion as Virginia. As discussed in greater detail in the TSD, EPA 
identified the potential downwind nonattainment and maintenance 
receptors identified in the 2016 PM2.5 Memorandum, and then 
evaluated them to determine if Virginia's emissions could potentially 
contribute to nonattainment and maintenance problems in 2021, the 
attainment year for moderate PM2.5 nonattainment areas. EPA 
concluded Virginia was not significantly contributing to nonattainment 
nor interfering with maintenance with 2012 PM2.5 NAAQS by 
any other state.
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    \1\ ``Information on the Interstate Transport ``Good Neighbor'' 
Provision for the 2012 Fine Particulate Matter National Ambient Air 
Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I),'' 
Memorandum from Stephen D. Page, Director, EPA Office of Air Quality 
Planning and Standards (March 17, 2016). A copy is included in the 
docket for this rulemaking action.
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III. Public Comments

    Two anonymous public comments were received on the NPR. The first 
comment generally discussed greenhouse gases and climate change and was 
determined to not be relevant nor specific to this rulemaking action. 
Thus, no response is provided for this comment. The second comment 
expressed that the commenter would not like to see particulate 
pollution from Virginia or any state degrade Allegheny County, 
Pennsylvania's air. As explained in the proposed rulemaking in detail, 
EPA determined that Virginia's emission sources do not contribute 
significantly to nonattainment, nor interfere with maintenance, of the 
2012 PM2.5 NAAQS in another state. EPA also concluded

[[Page 32795]]

that Allegheny County, Pennsylvania was likely to attain the 2012 
PM2.5 NAAQS without the need for further emission 
reductions. Thus, EPA does not expect emissions from Virginia to 
degrade Allegheny County, Pennsylvania's air quality.

IV. Final Action

    EPA is approving the May 16, 2017 SIP revision addressing the 
interstate transport requirements for the 2012 PM2.5 NAAQS 
to the Virginia SIP because the submittal adequately addresses section 
110(a)(2)(D)(i)(I) 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 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.

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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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

[[Page 32796]]

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 September 14, 2018. 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, addressing Virginia's interstate transport for the 
2012 PM2.5 NAAQS, 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, Particulate matter.

    Dated: July 2, 2018.
Cosmo Servidio,
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)(1) is amended by adding 
a second entry for Section 110(a)(2) Infrastructure Requirements for 
the 2012 Particulate Matter NAAQS after the first entry to read as 
follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e)* * *
    (1)* * *

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                                                             State
  Name of  non-regulatory SIP     Applicable  geographic   submittal   EPA approval date  Additional explanation
            revision                       area               date
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                                                  * * * * * * *
Section 110(a)(2)                Statewide..............     05/16/17  7/16/2018,         Docket 2017-0337. This
 Infrastructure Requirements                                            [Insert Federal    action addresses the
 for the 2012 Particulate                                               Register           infrastructure
 Matter NAAQS.                                                          citation].         element of CAA
                                                                                           section
                                                                                           110(a)(2)(D)(i)(I).
 
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[FR Doc. 2018-15049 Filed 7-13-18; 8:45 am]
 BILLING CODE 6560-50-P