81 FR 11711 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Infrastructure Requirements for the 2012 Fine Particulate Matter National Ambient Air Quality Standards
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 44 (March 7, 2016)
Federal Register Volume 81, Issue 44 (March 7, 2016)
| Page Range | 11711-11716 | |
| FR Document | 2016-04755 |
[Federal Register Volume 81, Number 44 (Monday, March 7, 2016)] [Proposed Rules] [Pages 11711-11716] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-04755] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0838; FRL-9943-26-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Infrastructure Requirements for the 2012 Fine Particulate Matter National Ambient Air Quality Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised 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. The Commonwealth of Virginia has made a submittal addressing the infrastructure requirements for the 2012 fine particulate matter (PM2.5 ) NAAQS. This action is being taken under the CAA. DATES: Written comments must be received on or before April 6, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03- OAR-2015-0838 at http://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by email at [email protected]. SUPPLEMENTARY INFORMATION: On July 16, 2015, the Commonwealth of Virginia (Virginia) through the Virginia Department of Environmental Quality (VADEQ) submitted a revision to the Commonwealth's SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS. [[Page 11712]] I. Background On July 18, 1997, the EPA promulgated a new 24-hour and a new annual NAAQS for PM2.5 (62 FR 38652). On October 17, 2006, the EPA revised the standards for PM2.5 , tightening the 24- hour PM2.5 standard from 65 micrograms per cubic meter ([mu]g/m\3\) to 35 [mu]g/m\3\, and retaining the annual PM2.5 standard at 15 [mu]g/m\3\ (71 FR 61144). Subsequently, on December 14, 2012, the EPA revised the level of the health based (primary) annual PM2.5 standard to 12 [mu]g/m\3\. See 78 FR 3086 (January 15, 2013).\1\ --------------------------------------------------------------------------- \1\ In EPA's 2012 PM2.5 NAAQS revision, EPA left unchanged the existing welfare (secondary) standards for PM2.5 to address PM related effects such as visibility impairment, ecological effects, damage to materials and climate impacts. This includes an annual secondary standard of 15 [mu]g/m\3\ and a 24-hour standard of 35 [mu]g/m\3\. --------------------------------------------------------------------------- Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affect the content of the submission. The content of such SIP submission may also vary depending upon what provisions the state's existing SIP already contains. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. As mentioned earlier, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. II. Summary of SIP Revision On July 16, 2015, the VADEQ provided a SIP revision to satisfy certain section 110(a)(2) requirements of the CAA for the 2012 PM2.5 NAAQS.\2\ This revision addressed the following CAA infrastructure elements which EPA is proposing to approve: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). A detailed summary of EPA's review and rationale for finding Virginia's submittal addresses these requirements in section 110(a)(2) may be found in the technical support document (TSD) for this rulemaking action which is available on line at www.regulations.gov, Docket ID Number EPA-R03-OAR-2015-0838. --------------------------------------------------------------------------- \2\ To clarify, the ``2013 PM2.5 NAAQS'' referred to in the Virginia SIP submittal is the same as the ``2012 PM2.5 NAAQS'' EPA refers to in this rulemaking action. The final rule for this NAAQS was signed by the EPA Administrator on December 14, 2012, thereby it has been called the ``2012 PM2.5 NAAQS.'' However, the final rule was published in the Federal Register on January 15, 2013, with an effective date of March 13, 2013, resulting in it also being referred to as the ``2013 PM2.5 NAAQS.'' --------------------------------------------------------------------------- This rulemaking action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA and Virginia's July 16, 2015 SIP submittal did not address this element. Virginia's obligations under section 110(a)(2)(I) will be addressed in a separate process if applicable or necessary for the 2012 PM2.5 NAAQS. This rulemaking action also does not include proposed action on requirements under section 110(a)(2)(D)(i)(I) of the CAA because Virginia's submittal did not include any provisions for this element; therefore, EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS for Virginia. Finally, at this time, EPA is not proposing action on the portion of Virginia's July 16, 2015 infrastructure SIP submittal addressing section 110(a)(2)(D)(i)(II) for visibility protection for the 2012 PM2.5 NAAQS. Although Virginia's submittal referred to a July 16, 2015 regional haze SIP revision submittal to address requirements in section 110(a)(2)(D)(i)(II) for visibility protection for the 2012 PM2.5 NAAQS, EPA intends to take separate rulemaking action on the July 16, 2015 regional haze SIP revision and on the portion of the July 16, 2015 infrastructure SIP submission for section 110(a)(2)(D)(i)(II) (visibility protection) as explained in the TSD. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. III. EPA's Approach To Reviewing Infrastructure SIPs EPA is acting upon the SIP submission from Virginia that addresses the infrastructure requirements of section 110(a)(1) and (2) of the CAA for the 2012 PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of section 110(a)(1) of the CAA. Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) of the CAA includes a list of specific elements that ``[e]ach such plan'' submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as infrastructure SIP submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of title I of the CAA, ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) of the CAA addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\3\ EPA [[Page 11713]] therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \3\ For example: Section 110(a)(2)(E)(i) of the CAA provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) of the CAA provides that states must have a SIP approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) of the CAA provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ``each'' SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements.\4\ Section 110(a)(2)(I) of the CAA pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) of the CAA requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) of the CAA allows up to two years or in some cases three years, for such designations to be promulgated.\5\ This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. --------------------------------------------------------------------------- \4\ See, e.g., ``Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162, at 25163--65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). \5\ EPA notes that this ambiguity within section 110(a)(2) of the CAA is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) of the CAA provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. --------------------------------------------------------------------------- Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ``a plan'' to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.\6\ Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.\7\ --------------------------------------------------------------------------- \6\ See, e.g., ``Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the state separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and ``Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). \7\ On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal. --------------------------------------------------------------------------- Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.\8\ --------------------------------------------------------------------------- \8\ For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. --------------------------------------------------------------------------- EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) of the CAA requires that attainment plan SIP submissions required by part D have to meet the ``applicable requirements'' of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. [[Page 11714]] Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.\9\ EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).\10\ EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) of the CAA that are relevant in the context of infrastructure SIP submissions.\11\ The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. --------------------------------------------------------------------------- \9\ EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. \10\ ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. \11\ EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations. --------------------------------------------------------------------------- As an example, section 110(a)(2)(E)(ii) of the CAA is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi- member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focus upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) of the CAA includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (SSM); (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.\12\ It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. --------------------------------------------------------------------------- \12\ By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. --------------------------------------------------------------------------- EPA's approach to review infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have [[Page 11715]] grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ``implementation, maintenance, and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II) of the CAA, because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II) of the CAA. Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) of the CAA authorizes EPA to issue a ``SIP call'' whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.\13\ Section 110(k)(6) of the CAA authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.\14\ Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.\15\ --------------------------------------------------------------------------- \13\ For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ``Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011). \14\ EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ``Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). The EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). \15\ See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). --------------------------------------------------------------------------- IV. Proposed Action EPA is proposing to approve the following elements of Virginia's July 16, 2015 infrastructure SIP revision for the 2012 PM2.5 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Virginia's July 16, 2015 SIP revision provides the basic program elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2012 PM2.5 NAAQS. This proposed rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process where necessary and applicable. Additionally, this proposed rulemaking action does not include rulemaking action on section 110(a)(2)(D)(i)(I) (interstate transport of emissions) or (D)(i)(II) (visibility protection) for the 2012 PM2.5 NAAQS. EPA will take later, separate action on Virginia's requirements for section 110(a)(2)(D)(i)(I) and (D)(i)(II) (visibility protection) for the 2012 PM2.5 NAAQS. 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 counter- parts. . . .'' 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 [[Page 11716]] 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 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 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 (Public Law 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, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2012 PM 2.5 NAAQS for the Commonwealth of Virginia, is not being 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 will 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). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: February 19, 2016. Shawn M. Garvin, Regional Administrator, Region III. [FR Doc. 2016-04755 Filed 3-4-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules 11711
TABLE 1 OF § 165.801—SECTOR OHIO VALLEY ANNUAL AND RECURRING SAFETY ZONES—Continued
Date Sponsor/name Location Safety zone
53. 1 day—July 4th ................................ Cities of Cincinnati, OH and Newport, Newport, KY .......... Ohio River, Miles 469.6–470.2 (Ken-
KY/July 4th Fireworks. tucky and Ohio).
54. 2 days—second weekend in July .... Marietta Riverfront Roar/Marietta Marietta, OH ......... Ohio River, Mile 171.6–172.6 (Ohio).
Riverfront Roar.
55. 1 day—1st weekend in July ............. Gallia County Chamber of Commerce/ Gallipolis, OH ........ Ohio River, Mile 269.5–270.5 (Ohio).
Gallipolis River Recreation Festival.
56. 1 day—July 4th ................................ Kindred Communications/Dawg Dazzle Huntington, WV ..... Ohio River, Mile 307.8–308.8 (West
Virginia).
57. 1 day—Last weekend in August ...... Swiss Wine Festival/Swiss Wine Fes- Ghent, KY ............. Ohio River, Mile 537 (Kentucky).
tival Fireworks Show.
58. 1 day—Saturday of Labor Day University of Pittsburgh Athletic De- Pittsburgh, PA ....... Allegheny River, Mile 0.0–0.25 (Penn-
weekend. partment/University of Pittsburgh sylvania).
Fireworks.
59. Sunday, Monday, or Thursday from Pittsburgh Steelers Fireworks .............. Pittsburgh, PA ....... Ohio River, Mile 0.3–Allegheny River,
September through January. Mile 0.2 (Pennsylvania).
60. 3 days—Third weekend in Sep- Wheeling Heritage Port Sternwheel Wheeling, WV ....... Ohio River, Mile 90.2–90.7 (West Vir-
tember. Festival Foundation/Wheeling Herit- ginia).
age Port Sternwheel Festival.
61. 1 day—Second Saturday in Sep- Ohio River Sternwheel Festival Com- Marietta, OH ......... Ohio River, Mile 171.5–172.5 (Ohio).
tember. mittee fireworks.
62. 1 day—Second weekend of October Leukemia and Lymphoma Society/ Nashville, TN ........ Cumberland River, Mile 190.0–192.0
Light the Night Walk Fireworks. (Tennessee).
63. 1 day—First Saturday in October .... West Virginia Motor Car Festival ......... Charleston, WV ..... Kanawha River, Mile 58–59 (West Vir-
ginia).
64. 1 day—Friday before Thanksgiving Kittanning Light Up Night Firework Dis- Kittanning, PA ....... Allegheny River, Mile 44.5–45.5
play. (Pennsylvania).
65. 1 day—First week in October .......... Leukemia & Lymphoma Society/Light Pittsburgh, PA ....... Ohio River, Mile 0.0–0.4 (Pennsyl-
the Night. vania).
66. 1 day—Friday before Thanksgiving Duquesne Light/Santa Spectacular ..... Pittsburgh, PA ....... Monongahela River, Mile 0.00–0.22,
Allegheny River, Mile 0.00–0.25, and
Ohio River, Mile 0.0–0.3 (Pennsyl-
vania).
* * * * * (NAAQS) are promulgated, the CAA confidential business information (CBI)
Dated: January 5, 2016. requires states to submit a plan for the or other information whose disclosure is
R.V. Timme,
implementation, maintenance, and restricted by statute. Multimedia
enforcement of such NAAQS. The plan submissions (audio, video, etc.) must be
Captain, U.S. Coast Guard, Captain of the
Port Ohio Valley.
is required to address basic program accompanied by a written comment.
elements including, but not limited to, The written comment is considered the
[FR Doc. 2016–05032 Filed 3–4–16; 8:45 am]
regulatory structure, monitoring, official comment and should include
BILLING CODE 9110–04–P
modeling, legal authority, and adequate discussion of all points you wish to
resources necessary to assure attainment make. The EPA will generally not
and maintenance of the standards. consider comments or comment
ENVIRONMENTAL PROTECTION These elements are referred to as contents located outside of the primary
AGENCY infrastructure requirements. The submission (i.e. on the web, cloud, or
Commonwealth of Virginia has made a other file sharing system). For
40 CFR Part 52 submittal addressing the infrastructure additional submission methods, please
[EPA–R03–OAR–2015–0838; FRL–9943–26– requirements for the 2012 fine contact the person identified in the FOR
Region 3] particulate matter (PM2.5) NAAQS. This FURTHER INFORMATION CONTACT section.
action is being taken under the CAA. For the full EPA public comment policy,
Approval and Promulgation of Air DATES: Written comments must be information about CBI or multimedia
Quality Implementation Plans; Virginia; received on or before April 6, 2016. submissions, and general guidance on
Infrastructure Requirements for the making effective comments, please visit
ADDRESSES: Submit your comments,
2012 Fine Particulate Matter National http://www2.epa.gov/dockets/
identified by Docket ID No. EPA–R03–
Ambient Air Quality Standards commenting-epa-dockets.
OAR–2015–0838 at http://
AGENCY: Environmental Protection www.regulations.gov, or via email to FOR FURTHER INFORMATION CONTACT:
Agency (EPA). fernandez.cristina@epa.gov. For Ellen Schmitt, (215) 814–5787, or by
comments submitted at Regulations.gov, email at schmitt.ellen@epa.gov.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
ACTION: Proposed rule.
follow the online instructions for SUPPLEMENTARY INFORMATION: On July
SUMMARY: The Environmental Protection submitting comments. Once submitted, 16, 2015, the Commonwealth of Virginia
Agency (EPA) is proposing to approve a comments cannot be edited or removed (Virginia) through the Virginia
state implementation plan (SIP) revision from Regulations.gov. For either manner Department of Environmental Quality
submitted by the Commonwealth of of submission, the EPA may publish any (VADEQ) submitted a revision to the
Virginia pursuant to the Clean Air Act comment received to its public docket. Commonwealth’s SIP to satisfy the
(CAA). Whenever new or revised Do not submit electronically any requirements of section 110(a)(2) of the
national ambient air quality standards information you consider to be CAA for the 2012 PM2.5 NAAQS.
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I. Background revision addressed the following CAA III. EPA’s Approach To Reviewing
On July 18, 1997, the EPA infrastructure elements which EPA is Infrastructure SIPs
promulgated a new 24-hour and a new proposing to approve: Section EPA is acting upon the SIP
annual NAAQS for PM2.5 (62 FR 38652). 110(a)(2)(A), (B), (C), (D)(i)(II) submission from Virginia that addresses
On October 17, 2006, the EPA revised (prevention of significant deterioration), the infrastructure requirements of
the standards for PM2.5, tightening the (D)(ii), (E), (F), (G), (H), (J), (K), (L), and section 110(a)(1) and (2) of the CAA for
24-hour PM2.5 standard from 65 (M). A detailed summary of EPA’s the 2012 PM2.5 NAAQS. The
micrograms per cubic meter (mg/m3) to review and rationale for finding requirement for states to make a SIP
35 mg/m3, and retaining the annual Virginia’s submittal addresses these submission of this type arises out of
PM2.5 standard at 15 mg/m3 (71 FR requirements in section 110(a)(2) may section 110(a)(1) of the CAA. Pursuant
61144). Subsequently, on December 14, be found in the technical support to section 110(a)(1), states must make
2012, the EPA revised the level of the document (TSD) for this rulemaking SIP submissions ‘‘within 3 years (or
health based (primary) annual PM2.5 action which is available on line at such shorter period as the Administrator
standard to 12 mg/m3. See 78 FR 3086 www.regulations.gov, Docket ID Number may prescribe) after the promulgation of
(January 15, 2013).1 EPA–R03–OAR–2015–0838. a national primary ambient air quality
Pursuant to section 110(a)(1) of the standard (or any revision thereof),’’ and
CAA, states are required to submit SIPs This rulemaking action does not these SIP submissions are to provide for
meeting the applicable requirements of include any proposed action on section the ‘‘implementation, maintenance, and
section 110(a)(2) within three years after 110(a)(2)(I) of the CAA which pertains enforcement’’ of such NAAQS. The
promulgation of a new or revised to the nonattainment requirements of statute directly imposes on states the
NAAQS or within such shorter period part D, title I of the CAA, because this duty to make these SIP submissions,
as EPA may prescribe. Section 110(a)(2) element is not required to be submitted and the requirement to make the
requires states to address basic SIP by the 3-year submission deadline of submissions is not conditioned upon
elements such as requirements for section 110(a)(1) of the CAA and EPA’s taking any action other than
monitoring, basic program Virginia’s July 16, 2015 SIP submittal promulgating a new or revised NAAQS.
requirements, and legal authority that did not address this element. Virginia’s Section 110(a)(2) of the CAA includes a
are designed to assure attainment and obligations under section 110(a)(2)(I) list of specific elements that ‘‘[e]ach
maintenance of the NAAQS. Section will be addressed in a separate process such plan’’ submission must address.
110(a) imposes the obligation upon if applicable or necessary for the 2012 EPA has historically referred to these
states to make a SIP submission to EPA PM2.5 NAAQS. This rulemaking action SIP submissions made for the purpose
for a new or revised NAAQS, but the of satisfying the requirements of section
also does not include proposed action
contents of that submission may vary 110(a)(1) and (2) as infrastructure SIP
on requirements under section
depending upon the facts and submissions. Although the term
110(a)(2)(D)(i)(I) of the CAA because ‘‘infrastructure SIP’’ does not appear in
circumstances. In particular, the data
Virginia’s submittal did not include any the CAA, EPA uses the term to
and analytical tools available at the time
provisions for this element; therefore, distinguish this particular type of SIP
the state develops and submits the SIP
for a new or revised NAAQS affect the EPA will take later, separate action on submission from submissions that are
content of the submission. The content section 110(a)(2)(D)(i)(I) for the 2012 intended to satisfy other SIP
of such SIP submission may also vary PM2.5 NAAQS for Virginia. Finally, at requirements under the CAA, such
depending upon what provisions the this time, EPA is not proposing action ‘‘nonattainment SIP’’ or ‘‘attainment
state’s existing SIP already contains. on the portion of Virginia’s July 16, plan SIP’’ submissions to address the
More specifically, section 110(a)(1) 2015 infrastructure SIP submittal nonattainment planning requirements of
provides the procedural and timing addressing section 110(a)(2)(D)(i)(II) for part D of title I of the CAA, ‘‘regional
requirements for SIPs. Section 110(a)(2) visibility protection for the 2012 PM2.5 haze SIP’’ submissions required by EPA
lists specific elements that states must NAAQS. Although Virginia’s submittal rule to address the visibility protection
meet for infrastructure SIP requirements referred to a July 16, 2015 regional haze requirements of section 169A of the
related to a newly established or revised SIP revision submittal to address CAA, and nonattainment new source
NAAQS. As mentioned earlier, these requirements in section review permit program submissions to
requirements include basic SIP elements 110(a)(2)(D)(i)(II) for visibility address the permit requirements of
such as requirements for monitoring, protection for the 2012 PM2.5 NAAQS, CAA, title I, part D.
basic program requirements, and legal Section 110(a)(1) of the CAA
EPA intends to take separate rulemaking
authority that are designed to assure addresses the timing and general
action on the July 16, 2015 regional haze
attainment and maintenance of the requirements for infrastructure SIP
SIP revision and on the portion of the submissions and section 110(a)(2)
NAAQS. July 16, 2015 infrastructure SIP provides more details concerning the
II. Summary of SIP Revision submission for section 110(a)(2)(D)(i)(II) required contents of these submissions.
On July 16, 2015, the VADEQ (visibility protection) as explained in The list of required elements provided
provided a SIP revision to satisfy certain the TSD. EPA is soliciting public in section 110(a)(2) contains a wide
section 110(a)(2) requirements of the comments on the issues discussed in variety of disparate provisions, some of
CAA for the 2012 PM2.5 NAAQS.2 This this document. These comments will be which pertain to required legal
mstockstill on DSK4VPTVN1PROD with PROPOSALS
considered before taking final action. authority, some of which pertain to
1 In EPA’s 2012 PM
2.5 NAAQS revision, EPA left required substantive program
unchanged the existing welfare (secondary) ‘‘2012 PM2.5 NAAQS’’ EPA refers to in this provisions, and some of which pertain
standards for PM2.5 to address PM related effects rulemaking action. The final rule for this NAAQS
such as visibility impairment, ecological effects,
to requirements for both authority and
was signed by the EPA Administrator on December
damage to materials and climate impacts. This 14, 2012, thereby it has been called the ‘‘2012 PM2.5 substantive program provisions.3 EPA
includes an annual secondary standard of 15 mg/m3 NAAQS.’’ However, the final rule was published in
and a 24-hour standard of 35 mg/m3. the Federal Register on January 15, 2013, with an 3 For example: Section 110(a)(2)(E)(i) of the CAA
2 To clarify, the ‘‘2013 PM
2.5 NAAQS’’ referred to effective date of March 13, 2013, resulting in it also provides that states must provide assurances that
in the Virginia SIP submittal is the same as the being referred to as the ‘‘2013 PM2.5 NAAQS.’’ they have adequate legal authority under state and
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![Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules 11715
grown by accretion over the decades as Significantly, EPA’s determination that V. General Information Pertaining to
statutory and regulatory requirements an action on a state’s infrastructure SIP SIP Submittals From the
under the CAA have evolved, they may submission is not the appropriate time Commonwealth of Virginia
include some outmoded provisions and and place to address all potential In 1995, Virginia adopted legislation
historical artifacts. These provisions, existing SIP deficiencies does not that provides, subject to certain
while not fully up to date, nevertheless preclude EPA’s subsequent reliance on conditions, for an environmental
may not pose a significant problem for provisions in section 110(a)(2) as part of assessment (audit) ‘‘privilege’’ for
the purposes of ‘‘implementation, the basis for action to correct those voluntary compliance evaluations
maintenance, and enforcement’’ of a deficiencies at a later time. For example, performed by a regulated entity. The
new or revised NAAQS when EPA although it may not be appropriate to legislation further addresses the relative
evaluates adequacy of the infrastructure require a state to eliminate all existing burden of proof for parties either
SIP submission. EPA believes that a asserting the privilege or seeking
inappropriate director’s discretion
better approach is for states and EPA to disclosure of documents for which the
provisions in the course of acting on an
focus attention on those elements of privilege is claimed. Virginia’s
section 110(a)(2) of the CAA most likely infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be legislation also provides, subject to
to warrant a specific SIP revision due to certain conditions, for a penalty waiver
the promulgation of a new or revised among the statutory bases that EPA
relies upon in the course of addressing for violations of environmental laws
NAAQS or other factors. when a regulated entity discovers such
For example, EPA’s 2013 Guidance such deficiency in a subsequent
action.15 violations pursuant to a voluntary
gives simpler recommendations with compliance evaluation and voluntarily
respect to carbon monoxide than other IV. Proposed Action discloses such violations to the
NAAQS pollutants to meet the visibility Commonwealth and takes prompt and
requirements of section EPA is proposing to approve the appropriate measures to remedy the
110(a)(2)(D)(i)(II) of the CAA, because following elements of Virginia’s July 16, violations. Virginia’s Voluntary
carbon monoxide does not affect 2015 infrastructure SIP revision for the Environmental Assessment Privilege
visibility. As a result, an infrastructure 2012 PM2.5 NAAQS: Section Law, Va. Code Sec. 10.1–1198, provides
SIP submission for any future new or 110(a)(2)(A), (B), (C), (D)(i)(II) a privilege that protects from disclosure
revised NAAQS for carbon monoxide (prevention of significant deterioration), documents and information about the
need only state this fact in order to (D)(ii), (E), (F), (G), (H), (J), (K), (L), and content of those documents that are the
address the visibility prong of section (M). Virginia’s July 16, 2015 SIP product of a voluntary environmental
110(a)(2)(D)(i)(II) of the CAA. assessment. The Privilege Law does not
revision provides the basic program
Finally, EPA believes that its
elements specified in section 110(a)(2) extend to documents or information
approach with respect to infrastructure
of the CAA necessary to implement, that: (1) Are generated or developed
SIP requirements is based on a
maintain, and enforce the 2012 PM2.5 before the commencement of a
reasonable reading of sections 110(a)(1)
NAAQS. This proposed rulemaking voluntary environmental assessment; (2)
and (2) because the CAA provides other
action does not include action on are prepared independently of the
avenues and mechanisms to address
section 110(a)(2)(I) which pertains to the assessment process; (3) demonstrate a
specific substantive deficiencies in
nonattainment planning requirements of clear, imminent and substantial danger
existing SIPs. These other statutory tools
part D, title I of the CAA, because this to the public health or environment; or
allow EPA to take appropriately tailored
element is not required to be submitted (4) are required by law.
action, depending upon the nature and
On January 12, 1998, the
severity of the alleged SIP deficiency. by the 3-year submission deadline of
Commonwealth of Virginia Office of the
Section 110(k)(5) of the CAA authorizes section 110(a)(1) of the CAA, and will
Attorney General provided a legal
EPA to issue a ‘‘SIP call’’ whenever the be addressed in a separate process opinion that states that the Privilege
Agency determines that a state’s SIP is where necessary and applicable. law, Va. Code Sec. 10.1–1198, precludes
substantially inadequate to attain or Additionally, this proposed rulemaking granting a privilege to documents and
maintain the NAAQS, to mitigate action does not include rulemaking information ‘‘required by law,’’
interstate transport, or to otherwise action on section 110(a)(2)(D)(i)(I) including documents and information
comply with the CAA.13 Section (interstate transport of emissions) or ‘‘required by federal law to maintain
110(k)(6) of the CAA authorizes EPA to (D)(i)(II) (visibility protection) for the program delegation, authorization or
correct errors in past actions, such as 2012 PM2.5 NAAQS. EPA will take later, approval,’’ since Virginia must ‘‘enforce
past approvals of SIP submissions.14 separate action on Virginia’s federally authorized environmental
13 For example, EPA issued a SIP call to Utah to
requirements for section programs in a manner that is no less
address specific existing SIP deficiencies related to 110(a)(2)(D)(i)(I) and (D)(i)(II) (visibility stringent than their federal counter-
the treatment of excess emissions during SSM protection) for the 2012 PM2.5 NAAQS. parts. . . .’’ The opinion concludes that
events. See ‘‘Finding of Substantial Inadequacy of ‘‘[r]egarding § 10.1–1198, therefore,
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639 Samoa, Arizona, California, Hawaii, and Nevada documents or other information needed
(April 18, 2011). SIPs); 69 FR 67062 (November 16, 2004) for civil or criminal enforcement under
14 EPA has used this authority to correct errors in (corrections to California SIP); and 74 FR 57051 one of these programs could not be
privileged because such documents and
mstockstill on DSK4VPTVN1PROD with PROPOSALS
past actions on SIP submissions related to PSD (November 3, 2009) (corrections to Arizona and
programs. See ‘‘Limitation of Approval of Nevada SIPs). information are essential to pursuing
Prevention of Significant Deterioration Provisions 15 See, e.g., EPA’s disapproval of a SIP submission
Concerning Greenhouse Gas Emitting-Sources in enforcement in a manner required by
from Colorado on the grounds that it would have federal law to maintain program
State Implementation Plans; Final Rule,’’ 75 FR
included a director’s discretion provision
82536 (December 30, 2010). The EPA has
inconsistent with CAA requirements, including
delegation, authorization or approval.’’
previously used its authority under CAA section Virginia’s Immunity law, Va. Code
110(k)(6) to remove numerous other SIP provisions section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
that the Agency determined it had approved in (July 21, 2010) (proposed disapproval of director’s Sec. 10.1–1199, provides that ‘‘[t]o the
error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 discretion provisions); 76 FR 4540 (January 26, extent consistent with requirements
FR 34641 (June 27, 1997) (corrections to American 2011) (final disapproval of such provisions). imposed by federal law,’’ any person
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![11716 Federal Register / Vol. 81, No. 44 / Monday, March 7, 2016 / Proposed Rules
making a voluntary disclosure of affect small governments, as described ENVIRONMENTAL PROTECTION
information to a state agency regarding in the Unfunded Mandates Reform Act AGENCY
a violation of an environmental statute, of 1995 (Public Law 104–4);
regulation, permit, or administrative 40 CFR Part 52
• does not have federalism
order is granted immunity from [EPA–R05–OAR–2014–0860; FRL 9943–30–
implications as specified in Executive
administrative or civil penalty. The Region 5]
Order 13132 (64 FR 43255, August 10,
Attorney General’s January 12, 1998
opinion states that the quoted language 1999);
Air Plan Approval; Wisconsin; Base
renders this statute inapplicable to • is not an economically significant Year Emission Inventories for the 2008
enforcement of any federally authorized regulatory action based on health or 8-Hour Ozone Standard
programs, since ‘‘no immunity could be safety risks subject to Executive Order
afforded from administrative, civil, or AGENCY: Environmental Protection
13045 (62 FR 19885, April 23, 1997);
criminal penalties because granting Agency (EPA).
• is not a significant regulatory action ACTION: Proposed rule.
such immunity would not be consistent subject to Executive Order 13211 (66 FR
with federal law, which is one of the SUMMARY: The Environmental Protection
28355, May 22, 2001);
criteria for immunity.’’ Agency (EPA) is proposing to approve a
Therefore, EPA has determined that • is not subject to requirements of
State Implementation Plan (SIP)
Virginia’s Privilege and Immunity section 12(d) of the National
revision submitted by the Wisconsin
statutes will not preclude the Technology Transfer and Advancement Department of Natural Resources
Commonwealth from enforcing its Act of 1995 (15 U.S.C. 272 note) because (WDNR) on November 14, 2014, to
program consistent with the federal application of those requirements would address emission inventory
requirements. In any event, because be inconsistent with the CAA; and requirements for the Sheboygan,
EPA has also determined that a state
• does not provide EPA with the Wisconsin nonattainment area and the
audit privilege and immunity law can Wisconsin portion of the Chicago-
discretionary authority to address, as
affect only state enforcement and cannot Naperville, Illinois-Indiana-Wisconsin
have any impact on federal enforcement appropriate, disproportionate human
health or environmental effects, using (IL–IN–WI) nonattainment area under
authorities, EPA may at any time invoke the 2008 ozone National Ambient Air
its authority under the CAA, including, practicable and legally permissible
methods, under Executive Order 12898 Quality Standard (NAAQS). EPA is
for example, sections 113, 167, 205, 211 proposing to approve the 2011 Volatile
or 213, to enforce the requirements or (59 FR 7629, February 16, 1994).
Organic Compounds (VOC) and Oxides
prohibitions of the state plan, In addition, this proposed rule, which of Nitrogen (NOX) emission inventories
independently of any state enforcement satisfies certain infrastructure in the November 14, 2014, submittal as
effort. In addition, citizen enforcement requirements of section 110(a)(2) of the part of the Wisconsin SIP.
under section 304 of the CAA is CAA for the 2012 PM2.5 NAAQS for the DATES: Comments must be received on
likewise unaffected by this, or any, state Commonwealth of Virginia, is not being or before April 6, 2016.
audit privilege or immunity law. approved to apply on any Indian ADDRESSES: Submit your comments,
VI. Statutory and Executive Order reservation land as defined in 18 U.S.C. identified by Docket ID No. EPA–R05–
Reviews 1151 or in any other area where EPA or OAR–2014–0860 at http://
Under the CAA, the Administrator is an Indian tribe has demonstrated that a www.regulations.gov or via email to
required to approve a SIP submission tribe has jurisdiction. In those areas of Aburano.Douglas@epa.gov. For
that complies with the provisions of the Indian country, the rule will not have comments submitted at Regulations.gov,
CAA and applicable federal regulations. tribal implications and will not impose follow the online instructions for
42 U.S.C. 7410(k); 40 CFR 52.02(a). substantial direct costs on tribal submitting comments. Once submitted,
Thus, in reviewing SIP submissions, governments or preempt tribal law as comments cannot be edited or removed
EPA’s role is to approve state choices, specified by Executive Order 13175 (65 from Regulations.gov. For either manner
provided that they meet the criteria of FR 67249, November 9, 2000). of submission, EPA may publish any
the CAA. Accordingly, this action comment received to its public docket.
List of Subjects in 40 CFR Part 52 Do not submit electronically any
merely approves state law as meeting
federal requirements and does not information you consider to be
Environmental protection, Air
impose additional requirements beyond Confidential Business Information (CBI)
pollution control, Incorporation by
those imposed by state law. For that or other information whose disclosure is
reference, Intergovernmental relations,
reason, this proposed action: restricted by statute. Multimedia
Particulate matter, Reporting and
• Is not a ‘‘significant regulatory recordkeeping requirements.
submissions (audio, video, etc.) must be
action’’ subject to review by the Office accompanied by a written comment.
of Management and Budget under Authority: 42 U.S.C. 7401 et seq. The written comment is considered the
Executive Order 12866 (58 FR 51735, Dated: February 19, 2016. official comment and should include
October 4, 1993); discussion of all points you wish to
Shawn M. Garvin,
• does not impose an information make. EPA will generally not consider
Regional Administrator, Region III. comments or comment contents located
collection burden under the provisions
[FR Doc. 2016–04755 Filed 3–4–16; 8:45 am] outside of the primary submission (i.e.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.); BILLING CODE 6560–50–P on the web, cloud, or other file sharing
• is certified as not having a system). For additional submission
significant economic impact on a methods, please contact the person
substantial number of small entities identified in the FOR FURTHER
under the Regulatory Flexibility Act (5 INFORMATION CONTACT section. For the
U.S.C. 601 et seq.); full EPA public comment policy,
• does not contain any unfunded information about CBI or multimedia
mandate or significantly or uniquely submissions, and general guidance on
VerDate Sep<11>2014 16:20 Mar 04, 2016 Jkt 238001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\07MRP1.SGM 07MRP1](https://thefederalregister.org/doc/81_FR_11755/page/6.svg)
Document Created: 2018-02-02 15:07:50
Document Modified: 2018-02-02 15:07:50
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before April 6, 2016. | |
| Contact | Ellen Schmitt, (215) 814-5787, or by email at [email protected] | |
| FR Citation | 81 FR 11711 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Particulate Matter and Reporting and Recordkeeping Requirements |
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