[Federal Register Volume 83, Number 162 (Tuesday, August 21, 2018)]
[Rules and Regulations]
[Pages 42219-42223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17448]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0601; FRL-9982-32--Region 3]


Air Plan Approval; Virginia; Regional Haze Plan and Visibility 
for the 2010 Sulfur Dioxide and 2012 Fine Particulate Matter Standards

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) on July 16, 2015. This SIP 
submittal changes Virginia's reliance on the Clean Air Interstate Rule 
(CAIR) to reliance on the Cross-State Air Pollution Rule (CSAPR) for 
certain elements of Virginia's regional haze program. EPA is approving 
the visibility portion of Virginia's infrastructure SIP submittals for 
the 2010 sulfur dioxide (SO2) and 2012 fine particulate 
matter (PM2.5) national ambient air quality standards 
(NAAQS) and approving element (J) for visibility of Virginia's 
infrastructure SIP submittal for the 2010 SO2 NAAQS. EPA is 
also converting the Agency's prior limited approval/limited disapproval 
of Virginia's regional haze program to a full approval and withdrawing 
the federal implementation plan (FIP) provisions addressing our prior 
limited disapproval. This action is being taken under the Clean Air Act 
(CAA).

DATES: This final rule is effective on September 20, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID

[[Page 42220]]

Number EPA-R03-OAR-2017-0601. 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: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On July 16, 2015, the Virginia Department of 
Environmental Quality (VA DEQ) submitted a revision to its SIP to 
update the Commonwealth's regional haze plan and to meet the visibility 
requirements in section 110(a)(2)(D) of the CAA for the 2010 
SO2 and 2012 PM2.5 NAAQS.

I. Background

    On March 1, 2018 (83 FR 8814), EPA published a notice of proposed 
rulemaking (NPR) addressing SIP revisions from the Commonwealth. In the 
NPR, EPA proposed to take the following actions: (1) To approve 
Virginia's July 16, 2015 SIP submission that changed Virginia's 
reliance on CAIR to reliance on CSAPR for certain elements of 
Virginia's regional haze program; (2) to convert EPA's limited 
approval/limited disapproval \1\ of Virginia's regional haze program to 
a full approval; and (3) to approve portions of Virginia's June 18, 
2014 infrastructure SIP submission for the 2010 SO2 NAAQS 
and its July 16, 2015 infrastructure SIP submission for the 2012 
PM2.5 NAAQS addressing the visibility provisions of section 
110(a)(2)(D)(i) of the CAA. EPA subsequently published a second, 
supplemental NPR proposing to remove the FIP for the Commonwealth that 
addressed the issues associated with the Agency's prior limited 
disapproval. 83 FR 20002 (March 1, 2018). The supplemental NPR also 
proposed approval of the provisions in Virginia's June 18, 2014 
infrastructure SIP submittal for the 2010 SO2 NAAQS 
addressing the requirements of section 110(a)(2)(J) of the CAA.
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    \1\ 77 FR 33642 (June 7, 2012).
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II. Summary of SIP Revision and EPA Analysis

    In order to correct the deficiencies identified in the June 7, 2012 
limited disapproval of Virginia's regional haze program by EPA, the 
Commonwealth submitted a SIP revision to the Agency on July 16, 2015 to 
replace reliance on CAIR with reliance on CSAPR in its regional haze 
SIP.\2\ Specifically, the July 16, 2015 SIP submittal changes the 
Virginia regional haze program to specify that the Commonwealth is 
relying on CSAPR in its regional haze SIP to meet the best available 
retrofit technology (BART) for certain electric generating units (EGUs) 
and reasonable progress requirements to support visibility improvement 
progress goals for Virginia's Class I areas, Shenandoah National Park 
and the James River Wilderness Area.
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    \2\ Virginia was included in the CSAPR federal trading programs 
on August 8, 2011. 76 FR 48208.
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    As did EPA's partial regional haze FIP for Virginia, the 
Commonwealth's July 16, 2015 regional haze SIP revision relies on CSAPR 
to address the deficiencies identified in EPA's June 2012 limited 
disapproval of Virginia's regional haze SIP. As discussed in the NPR in 
greater detail, EPA finds that this revision satisfies Virginia's BART 
requirements for its EGUs and reasonable progress requirements and 
therefore allows for a fully approvable regional haze program. With 
today's final approval, the Commonwealth has a SIP in place to address 
all of its regional haze requirements. EPA finds that Virginia's 
reliance in its SIP upon CSAPR for certain BART and reasonable progress 
requirements is in accordance with the CAA and regional haze rule 
requirements (including 40 CFR 51.308(e)(2)), as EPA has recently 
affirmed that CSAPR remains an appropriate alternative to source-
specific BART controls for EGUs participating in CSAPR.\3\ Because the 
deficiencies in Virginia's regional haze SIP associated with the 
Commonwealth's reliance on CAIR that were identified in EPA's prior 
limited disapproval are addressed through the Commonwealth's revised 
SIP, the Agency is now fully approving Virginia's regional haze SIP. 
Additionally, EPA finds that the prong 4 portions of Virginia's 
infrastructure SIP submittals for the 2010 SO2 NAAQS and the 
2012 PM2.5 NAAQS are fully approvable as Virginia now has a 
fully approved regional haze SIP.\4\
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    \3\ See 82 FR 45481 (September 29, 2017) (affirming the validity 
to EPA's determination that participation in CSAPR satisfies the 
criteria for an alternative to BART following changes to the 
program.)
    \4\ Virginia's 2010 SO2 NAAQS and 2012 
PM2.5 NAAQS infrastructure SIP submissions relied on the 
Commonwealth having a fully approved regional haze program to 
satisfy its prong 4 requirements. However, at the time of both 
infrastructure SIP submittals, Virginia did not have a fully 
approved regional haze program as the Agency had issued a limited 
disapproval of the Commonwealth's regional haze plan on June 7, 
2012, due to its reliance on CAIR.
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    The specific details of Virginia's July 16, 2015 SIP revision and 
the rationale for EPA's approval are discussed in the NPR \5\ and 
supplemental NPR \6\ and will not be restated here. Thirteen public 
comments were submitted to the docket identified in EPA's proposed 
actions; however, none of the comments were specific to the rulemaking 
and thus are not addressed here.
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    \5\ 83 FR 8814 (March 1, 2018).
    \6\ 83 FR 20002 (May 7, 2018).
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III. Final Action

    EPA is taking the following actions: (1) Approving Virginia's July 
16, 2015 SIP submission that changed Virginia's reliance on CAIR to 
reliance on CSAPR for certain elements of Virginia's regional haze 
program; (2) converting EPA's limited approval/limited disapproval of 
Virginia's regional haze program to a full approval; (3) withdrawing 
the FIP provisions that address the limited disapproval of Virginia's 
regional haze program; (4) approving the portions of Virginia's June 
18, 2014 infrastructure SIP submission for the 2010 SO2 
NAAQS and its July 16, 2015 infrastructure SIP submission for the 2012 
PM2.5 NAAQS addressing the visibility provisions of CAA 
section 110(a)(2)(D)(i); (5) and approving the portion of Virginia's 
June 18, 2014 infrastructure SIP for the 2010 SO2 NAAQS 
addressing CAA section 110(a)(2)(J).

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

[[Page 42221]]

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.

V. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities because small 
entities are not subject to the requirements of this rule. 83 FR 8814 
(March 1, 2018) and 83 FR 20002 (May 7, 2018).

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments. There are no Indian reservation lands in Virginia. 
Thus, Executive Order 13175 does not apply to this rule.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

L. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(B), this action is subject to the 
requirements

[[Page 42222]]

of CAA section 307(d), as it revises a FIP under CAA section 110(c).

M. Congressional Review Act (CRA)

    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).

N. 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 October 22, 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 may not be challenged later in proceedings to 
enforce its requirements. See CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Regional haze, Reporting and recordkeeping requirements, Sulfur 
oxides, Visibility.

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

    Dated: August 8, 2018.
Andrew R. Wheeler,
Acting Administrator.

    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. Section 52.2420 is amended by revising the entries for ``Regional 
Haze Plan'', ``Section 110(a)(2) Infrastructure Requirements for the 
2010 Sulfur Dioxide NAAQS'', and ``Section 110(a)(2) Infrastructure 
Requirements for the 2012 Particulate Matter NAAQS'' in the table in 
paragraph (e)(1) to read as follows:


Sec.  52.2420  Identification of plan.

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

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                                                                           State
 Name of non-regulatory SIP revision    Applicable  geographic  area     submittal                EPA approval  date             Additional  explanation
                                                                           date
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                                                                      * * * * * * *
Regional Haze Plan...................  Statewide....................         7/16/15  8/21/18, [Insert Federal Register          Full Approval.
                                                                                       citation].                                See Sec.  Sec.
                                                                                                                                  52.2452(g).
 
                                                                      * * * * * * *
Section 110(a)(2) Infrastructure       Statewide....................         6/18/14  3/4/15, 80 FR 11557......................  Docket #2014-0522. This
 Requirements for the 2010 Sulfur                                                                                                 action addresses the
 Dioxide NAAQS.                                                                                                                   following CAA
                                                                                                                                  elements, or portions
                                                                                                                                  thereof: 110(a)(2)
                                                                                                                                  (A), (B), (C),
                                                                                                                                  (D)(i)(II) (PSD),
                                                                                                                                  (D)(ii), (E)(i),
                                                                                                                                  (E)(iii), (F), (G),
                                                                                                                                  (H), (J)
                                                                                                                                  (consultation,
                                                                                                                                  notification, and
                                                                                                                                  PSD), (K), (L), and
                                                                                                                                  (M).
                                                                            12/22/14  4/2/15, 80 FR 17695......................  Docket #2015-0040.
                                                                                                                                  Addresses CAA element
                                                                                                                                  110(a)(2)(E)(ii).
                                                                             7/16/15  8/21/18, [Insert Federal Register          Docket #2017-0601. This
                                                                                       citation].                                 action addresses the
                                                                                                                                  following CAA
                                                                                                                                  elements:
                                                                                                                                  110(a)(2)(D)(I)(II)
                                                                                                                                  for visibility and
                                                                                                                                  110(a)(2)(J) for
                                                                                                                                  visibility.
 
                                                                      * * * * * * *
Section 110(a)(2) Infrastructure       Statewide....................         7/16/15  6/16/16, 81 FR 39210.....................  Docket #2015-0838. This
 Requirements for the 2012                                                                                                        action addresses the
 Particulate Matter NAAQS.                                                                                                        following CAA
                                                                                                                                  elements, or portions
                                                                                                                                  thereof: 110(a)(2)(A),
                                                                                                                                  (B), (C), (D)(i)(II)
                                                                                                                                  (PSD), (D)(ii), (E),
                                                                                                                                  (F), (G), (H), (J),
                                                                                                                                  (K), (L), and (M).
                                                                             7/16/15  8/21/18, [Insert Federal Register          Docket #2017-0601. This
                                                                                       citation].                                 action addresses the
                                                                                                                                  following CAA element:
                                                                                                                                  110(a)(2)(D)(I)(II)
                                                                                                                                  for visibility.
 
                                                                      * * * * * * *
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* * * * *

0
3. Section 52.2452 is amended by removing and reserving paragraphs (d), 
(e), and (f) and by adding paragraph (g) to read as follows:


Sec.  52.2452  Visibility protection.

* * * * *
    (g) EPA converts its limited approval/limited disapproval of 
Virginia's regional haze program to a full approval. This SIP revision 
changes Virginia's reliance from the Clean Air Interstate Rule to the 
Cross-State Air Pollution Rule to meet the regional haze SIP best 
available retrofit technology

[[Page 42223]]

requirements for certain sources and to meet reasonable progress 
requirements.

[FR Doc. 2018-17448 Filed 8-20-18; 8:45 am]
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