83 FR 20002 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide and 2012 Fine Particulate Standards
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 88 (May 7, 2018)
Federal Register Volume 83, Issue 88 (May 7, 2018)
| Page Range | 20002-20004 | |
| FR Document | 2018-09653 |
[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)] [Proposed Rules] [Pages 20002-20004] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-09653] [[Page 20002]] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0601; FRL-9977-42--Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Regional Haze Plan and Visibility for the 2010 Sulfur Dioxide and 2012 Fine Particulate Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule; supplemental. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is issuing a supplement to its March 1, 2018 proposed approval of the Commonwealth of Virginia's (the Commonwealth or Virginia) request to change reliance on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State Air Pollution Rule (CSAPR) to address certain regional haze requirements and to convert the Agency's limited approval/limited disapproval of Virginia's regional haze SIP to a full approval. EPA's March 1, 2018 notice of proposed rulemaking (NPR) also proposed to approve the ``visibility element'' 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). This supplemental proposal clarifies the infrastructure elements the Agency is proposing to approve for the 2010 SO2 National Ambient Air Quality Standards (NAAQS) and proposes to remove EPA's June 7, 2012 federal implementation plan (FIP) for Virginia which replaced reliance on CAIR with reliance on CSAPR to address certain deficient regional haze requirements identified in the Commonwealth's regional haze state implementation plan (SIP). EPA is seeking comment only on the issues raised in this supplemental proposal and is not reopening for comment other issues raised in its prior proposal. This action is being taken under the Clean Air Act (CAA). DATES: Written comments must be received on or before June 6, 2018. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03- OAR-2017-0601 at http://www.regulations.gov, or via email to spielberger.susan@epa.gov. 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, 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. 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 schmitt.ellen@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On July 16, 2015, the Virginia Department of Environmental Quality (VA DEQ) submitted a revision to the Virginia SIP to update its regional haze plan to change reliance from CAIR to CSAPR and to meet visibility requirements in section 110(a)(2)(D) of the CAA. On March 1, 2018 (83 FR 8814), EPA published a notice of proposed rulemaking (March 1, 2018 NPR) proposing to take the following actions: (1) Approve Virginia's July 16, 2015 SIP submission that changes reliance on CAIR to reliance on CSAPR for certain elements of Virginia's regional haze program; (2) convert EPA's limited approval/limited disapproval of Virginia's regional haze program to a full approval; and (3) approve the prong 4 portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS and of its July 16, 2015 infrastructure SIP submission for the 2012 PM2.5 NAAQS. EPA is not reopening the public comment period to submit comment on the issues addressed in the March 1, 2018 NPR. II. Specific Issues Addressed in This Supplemental NPR Removal of Partial Regional Haze FIP On June 7, 2012, EPA finalized a limited approval and a limited disapproval of several SIP revisions submitted by VA DEQ meant to address regional haze program requirements.\1\ The limited disapproval of these SIP revisions was based upon Virginia's reliance on CAIR as an alternative to best available retrofit technology (BART) and as a measure for reasonable progress. To address deficiencies in CAIR- dependent regional haze SIPs for several states, including Virginia, EPA promulgated FIPs that replace reliance on CAIR with reliance on CSAPR to meet BART and reasonable progress requirements in Virginia and other states in that same action. Consequently, for these states, this particular aspect of their regional haze requirements was satisfied by a FIP (hereafter referred to as partial RH FIP). On July 16, 2015, the Commonwealth of Virginia submitted a SIP revision changing its reliance from CAIR to CSAPR in its SIP to meet BART for visibility purposes and for addressing reasonable progress requirements, thereby removing Virginia's need for the partial RH FIP. --------------------------------------------------------------------------- \1\ 77 FR 33643. Virginia's SIP revisions are dated July 17, 2008, March 6, 2009, January 14, 2010, October 4, 2010, November 19, 2010, and May 6, 2011. --------------------------------------------------------------------------- In its March 1, 2018 NPR, EPA proposed to approve the July 16, 2015 SIP revision which would change Virginia's reliance upon CAIR to reliance upon CSAPR for the BART and reasonable progress elements of Virginia's regional haze program. EPA also proposed to convert EPA's limited approval/limited disapproval of Virginia's regional haze program to a full approval based on Virginia's SIP revision changing reliance upon CAIR to reliance upon CSAPR. In this action, EPA proposes to remove the Agency's partial RH FIP for Virginia which replaced reliance on CAIR with reliance on CSAPR to address certain deficient regional haze requirements identified in the Commonwealth's regional haze SIP. EPA's proposed action to remove this FIP for Virginia is in accordance with section 110(l) of the CAA and will not impact any regional requirements as Virginia will have, when this action is final, a fully approved regional haze program and the ability to rely on CSAPR for certain regional haze requirements, incorporated in its SIP. Section 110(a)(2)(J) Visibility Requirement The CAA requires states to submit, within three years after promulgation of a new or revised NAAQS, SIP revisions meeting the applicable elements of sections 110(a)(1) and (2). SIP revisions that are intended to meet the requirements of section 110(a) of the CAA are often referred to as [[Page 20003]] infrastructure SIPs and the elements under 110(a) are referred to as infrastructure requirements. EPA acted on the majority of the infrastructure elements within Virginia's infrastructure SIP submittals for the 2010 SO2 and 2012 PM2.5 NAAQS, but concluded that it would take separate action on 110(a)(2)(J) for visibility for 2010 SO2 as well as on 110(a)(2)(D)(i)(II) for visibility (also known as prong 4) for both the 2010 SO2 and 2012 PM2.5 .2 3 --------------------------------------------------------------------------- \2\ On March 4, 2015 (80 FR 11557), EPA approved portions of Virginia's June 18, 2014 submittal for the 2010 SO2 NAAQS addressing the following: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J) (consultation, public notification, and prevention of significant deterioration), (K), (L), and (M). \3\ On June 16, 2016 (81 FR 39208), EPA approved portions of Virginia's July 16, 2015 submittal for the 2012 PM2.5 NAAQS addressing the following: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). --------------------------------------------------------------------------- In its March 1, 2018 NPR, EPA proposed to approve prong 4 for both the 2010 SO2 and 2012 PM2.5 NAAQS,\4\ however the Agency did not address section 110(a)(2)(J) of the CAA as it relates to visibility protection. For this section, EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, the visibility and regional haze program requirements under part C do not change. Therefore, when EPA took action on Virginia's infrastructure SIP submittal for the 2010 SO2 NAAQS,\5\ the Agency could have approved 110(a)(2)(J) for visibility; however, it inadvertently neglected to do so at that time. EPA is now taking action to remedy this unintentional omission by proposing approval of Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS specifically for section 110(a)(2)(J) for visibility as well as for prong 4 which we proposed for approval on March 1, 2018. --------------------------------------------------------------------------- \4\ In its analysis for the March 1, 2018 NPR, EPA proposed to find that if revisions to the Commonwealth's regional haze SIP were fully approved, then the prong 4 portions of Virginia's infrastructure SIP submittal for the 2010 SO2 and 2012 PM2.5 NAAQS meet applicable requirements of the CAA. \5\ See 80 FR 11557. (approving Virginia's June 18, 2014 submittal for the 2010 SO2 NAAQS for CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J) (consultation, public notification, and prevention of significant deterioration), (K), (L), and (M)). --------------------------------------------------------------------------- EPA is soliciting comments on the specific issues discussed in this document referring to the proposed: (1). Removal of the partial regional haze FIP which replaced reliance on CAIR with reliance on CSPAR to address certain regional haze requirements as finalizing our March 1, 2018 NPR will give Virginia's regional haze SIP full approval; and (2). approval of Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS section 110(a)(2)(J) for visibility (in addition to approval for 110(a)(2)(D)(i)(II)). These comments and those received during the comment period for the March 1, 2018 NPR will be considered before taking final action. III. Proposed Action EPA is proposing removal of the partial regional haze FIP which replaced reliance on CAIR with reliance on CSPAR to address certain regional haze requirements and approval of Virginia's June 18, 2014 infrastructure SIP submittal for the 2010 SO2 NAAQS for section 110(a)(2)(J) for visibility. IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ``privilege'' for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1- 1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information ``required by law,'' including documents and information ``required by federal law to maintain program delegation, authorization or approval,'' since Virginia must ``enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .'' The opinion concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ``[t]o the extent consistent with requirements imposed by federal law,'' any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since ``no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.'' Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its regional haze 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 Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and [[Page 20004]] Regulatory Review. This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. Paperwork Reduction Act (PRA). This action does not impose an information collection burden under the PRA. Therefore, its recordkeeping and reporting provisions do not constitute a ``collection of information'' as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c). Regulatory Flexibility Act (RFA). 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. Unfunded Mandates Reform Act (UMRA). This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. 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. 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 any Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this action. 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 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 an economically significant regulatory action based on health or safety risks subject to Executive Order 13045. The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In addition, pursuant to CAA section 307(d)(1)(B), EPA proposes to determine that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the withdrawal of the provisions of the Virginia regional haze regional FIP that apply to changing reliance on CAIR to reliance on CSAPR to address certain deficient regional haze requirements is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under section 110(c) of the CAA. Furthermore, section 307(d)(1)(V) of the CAA provides that the provisions of section 307(d) apply to ``such other actions as the Administrator may determine.'' EPA proposes that the provisions of 307(d) apply to EPA's action on the Virginia SIP revision. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Authority: 42 U.S.C. 7401 et seq. Dated: April 19, 2018. Cosmo Servidio, Regional Administrator, Region III. [FR Doc. 2018-09653 Filed 5-4-18; 8:45 am] BILLING CODE 6560-50-P
![20002 Federal Register / Vol. 83, No. 88 / Monday, May 7, 2018 / Proposed Rules
ENVIRONMENTAL PROTECTION Do not submit electronically any regional haze program requirements.1
AGENCY information you consider to be The limited disapproval of these SIP
confidential business information (CBI) revisions was based upon Virginia’s
40 CFR Part 52 or other information whose disclosure is reliance on CAIR as an alternative to
[EPA–R03–OAR–2017–0601; FRL–9977– restricted by statute. Multimedia best available retrofit technology
42—Region 3] submissions (audio, video, etc.) must be (BART) and as a measure for reasonable
accompanied by a written comment. progress. To address deficiencies in
Approval and Promulgation of Air The written comment is considered the CAIR-dependent regional haze SIPs for
Quality Implementation Plans; Virginia; official comment and should include several states, including Virginia, EPA
Regional Haze Plan and Visibility for discussion of all points you wish to promulgated FIPs that replace reliance
the 2010 Sulfur Dioxide and 2012 Fine make. EPA will generally not consider on CAIR with reliance on CSAPR to
Particulate Standards comments or comment contents located meet BART and reasonable progress
outside of the primary submission (i.e., requirements in Virginia and other
AGENCY: Environmental Protection
Agency (EPA). on the web, cloud, or other file sharing states in that same action. Consequently,
system). For additional submission for these states, this particular aspect of
ACTION: Proposed rule; supplemental.
methods, please contact the person their regional haze requirements was
SUMMARY: The Environmental Protection identified in the FOR FURTHER satisfied by a FIP (hereafter referred to
Agency (EPA) is issuing a supplement to INFORMATION CONTACT section. For the as partial RH FIP). On July 16, 2015, the
its March 1, 2018 proposed approval of full EPA public comment policy, Commonwealth of Virginia submitted a
the Commonwealth of Virginia’s (the information about CBI or multimedia SIP revision changing its reliance from
Commonwealth or Virginia) request to submissions, and general guidance on CAIR to CSAPR in its SIP to meet BART
change reliance on the Clean Air making effective comments, please visit for visibility purposes and for
Interstate Rule (CAIR) to reliance on the http://www2.epa.gov/dockets/ addressing reasonable progress
Cross-State Air Pollution Rule (CSAPR) commenting-epa-dockets. requirements, thereby removing
to address certain regional haze Virginia’s need for the partial RH FIP.
FOR FURTHER INFORMATION CONTACT:
requirements and to convert the In its March 1, 2018 NPR, EPA
Ellen Schmitt, (215) 814–5787, or by
Agency’s limited approval/limited proposed to approve the July 16, 2015
email at schmitt.ellen@epa.gov.
disapproval of Virginia’s regional haze SIP revision which would change
SIP to a full approval. EPA’s March 1, SUPPLEMENTARY INFORMATION: Virginia’s reliance upon CAIR to
2018 notice of proposed rulemaking reliance upon CSAPR for the BART and
I. Background reasonable progress elements of
(NPR) also proposed to approve the
‘‘visibility element’’ of Virginia’s On July 16, 2015, the Virginia Virginia’s regional haze program. EPA
infrastructure SIP submittals for the Department of Environmental Quality also proposed to convert EPA’s limited
2010 sulfur dioxide (SO2) and 2012 fine (VA DEQ) submitted a revision to the approval/limited disapproval of
particulate matter (PM2.5) national Virginia SIP to update its regional haze Virginia’s regional haze program to a
ambient air quality standards (NAAQS). plan to change reliance from CAIR to full approval based on Virginia’s SIP
This supplemental proposal clarifies the CSAPR and to meet visibility revision changing reliance upon CAIR to
infrastructure elements the Agency is requirements in section 110(a)(2)(D) of reliance upon CSAPR. In this action,
proposing to approve for the 2010 SO2 the CAA. On March 1, 2018 (83 FR EPA proposes to remove the Agency’s
National Ambient Air Quality Standards 8814), EPA published a notice of partial RH FIP for Virginia which
(NAAQS) and proposes to remove EPA’s proposed rulemaking (March 1, 2018 replaced reliance on CAIR with reliance
June 7, 2012 federal implementation NPR) proposing to take the following on CSAPR to address certain deficient
plan (FIP) for Virginia which replaced actions: (1) Approve Virginia’s July 16, regional haze requirements identified in
reliance on CAIR with reliance on 2015 SIP submission that changes the Commonwealth’s regional haze SIP.
CSAPR to address certain deficient reliance on CAIR to reliance on CSAPR EPA’s proposed action to remove this
regional haze requirements identified in for certain elements of Virginia’s FIP for Virginia is in accordance with
the Commonwealth’s regional haze state regional haze program; (2) convert section 110(l) of the CAA and will not
implementation plan (SIP). EPA is EPA’s limited approval/limited impact any regional requirements as
seeking comment only on the issues disapproval of Virginia’s regional haze Virginia will have, when this action is
raised in this supplemental proposal program to a full approval; and (3) final, a fully approved regional haze
and is not reopening for comment other approve the prong 4 portions of program and the ability to rely on
issues raised in its prior proposal. This Virginia’s June 18, 2014 infrastructure CSAPR for certain regional haze
action is being taken under the Clean SIP submission for the 2010 SO2 requirements, incorporated in its SIP.
Air Act (CAA). NAAQS and of its July 16, 2015 Section 110(a)(2)(J) Visibility
DATES: Written comments must be infrastructure SIP submission for the Requirement
received on or before June 6, 2018. 2012 PM2.5 NAAQS. EPA is not
ADDRESSES: Submit your comments, reopening the public comment period to The CAA requires states to submit,
identified by Docket ID No. EPA–R03– submit comment on the issues within three years after promulgation of
OAR–2017–0601 at http:// addressed in the March 1, 2018 NPR. a new or revised NAAQS, SIP revisions
www.regulations.gov, or via email to meeting the applicable elements of
II. Specific Issues Addressed in This
daltland on DSKBBV9HB2PROD with PROPOSALS
spielberger.susan@epa.gov. For sections 110(a)(1) and (2). SIP revisions
comments submitted at Regulations.gov, Supplemental NPR that are intended to meet the
follow the online instructions for Removal of Partial Regional Haze FIP requirements of section 110(a) of the
submitting comments. Once submitted, CAA are often referred to as
comments cannot be edited or removed On June 7, 2012, EPA finalized a
1 77 FR 33643. Virginia’s SIP revisions are dated
from Regulations.gov. For either manner limited approval and a limited
July 17, 2008, March 6, 2009, January 14, 2010,
of submission, EPA may publish any disapproval of several SIP revisions October 4, 2010, November 19, 2010, and May 6,
comment received to its public docket. submitted by VA DEQ meant to address 2011.
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![Federal Register / Vol. 83, No. 88 / Monday, May 7, 2018 / Proposed Rules 20003
infrastructure SIPs and the elements our March 1, 2018 NPR will give including documents and information
under 110(a) are referred to as Virginia’s regional haze SIP full ‘‘required by federal law to maintain
infrastructure requirements. EPA acted approval; and (2). approval of Virginia’s program delegation, authorization or
on the majority of the infrastructure June 18, 2014 infrastructure SIP approval,’’ since Virginia must ‘‘enforce
elements within Virginia’s submittal for the 2010 SO2 NAAQS federally authorized environmental
infrastructure SIP submittals for the section 110(a)(2)(J) for visibility (in programs in a manner that is no less
2010 SO2 and 2012 PM2.5 NAAQS, but addition to approval for stringent than their federal
concluded that it would take separate 110(a)(2)(D)(i)(II)). These comments and counterparts. . . .’’ The opinion
action on 110(a)(2)(J) for visibility for those received during the comment concludes that ‘‘[r]egarding § 10.1–1198,
2010 SO2 as well as on 110(a)(2)(D)(i)(II) period for the March 1, 2018 NPR will therefore, documents or other
for visibility (also known as prong 4) for be considered before taking final action. information needed for civil or criminal
both the 2010 SO2 and 2012 PM2.5.2 3 enforcement under one of these
In its March 1, 2018 NPR, EPA III. Proposed Action
programs could not be privileged
proposed to approve prong 4 for both EPA is proposing removal of the because such documents and
the 2010 SO2 and 2012 PM2.5 NAAQS,4 partial regional haze FIP which replaced information are essential to pursuing
however the Agency did not address reliance on CAIR with reliance on enforcement in a manner required by
section 110(a)(2)(J) of the CAA as it CSPAR to address certain regional haze federal law to maintain program
relates to visibility protection. For this requirements and approval of Virginia’s delegation, authorization or approval.’’
section, EPA recognizes that states are June 18, 2014 infrastructure SIP Virginia’s Immunity law, Va. Code
subject to visibility and regional haze submittal for the 2010 SO2 NAAQS for Sec. 10.1–1199, provides that ‘‘[t]o the
program requirements under part C of section 110(a)(2)(J) for visibility. extent consistent with requirements
the CAA. In the event of the IV. General Information Pertaining to imposed by federal law,’’ any person
establishment of a new NAAQS, the SIP Submittals From the making a voluntary disclosure of
visibility and regional haze program Commonwealth of Virginia information to a state agency regarding
requirements under part C do not a violation of an environmental statute,
change. Therefore, when EPA took In 1995, Virginia adopted legislation regulation, permit, or administrative
action on Virginia’s infrastructure SIP that provides, subject to certain order is granted immunity from
submittal for the 2010 SO2 NAAQS,5 the conditions, for an environmental administrative or civil penalty. The
Agency could have approved assessment (audit) ‘‘privilege’’ for Attorney General’s January 12, 1998
110(a)(2)(J) for visibility; however, it voluntary compliance evaluations opinion states that the quoted language
inadvertently neglected to do so at that performed by a regulated entity. The renders this statute inapplicable to
time. EPA is now taking action to legislation further addresses the relative enforcement of any federally authorized
remedy this unintentional omission by burden of proof for parties either programs, since ‘‘no immunity could be
proposing approval of Virginia’s June asserting the privilege or seeking afforded from administrative, civil, or
18, 2014 infrastructure SIP submittal for disclosure of documents for which the criminal penalties because granting
the 2010 SO2 NAAQS specifically for privilege is claimed. Virginia’s such immunity would not be consistent
section 110(a)(2)(J) for visibility as well legislation also provides, subject to with federal law, which is one of the
as for prong 4 which we proposed for certain conditions, for a penalty waiver criteria for immunity.’’
approval on March 1, 2018. for violations of environmental laws Therefore, EPA has determined that
EPA is soliciting comments on the when a regulated entity discovers such Virginia’s Privilege and Immunity
specific issues discussed in this violations pursuant to a voluntary statutes will not preclude the
document referring to the proposed: (1). compliance evaluation and voluntarily Commonwealth from enforcing its
Removal of the partial regional haze FIP discloses such violations to the regional haze program consistent with
which replaced reliance on CAIR with Commonwealth and takes prompt and the federal requirements. In any event,
reliance on CSPAR to address certain appropriate measures to remedy the because EPA has also determined that a
regional haze requirements as finalizing violations. Virginia’s Voluntary state audit privilege and immunity law
Environmental Assessment Privilege can affect only state enforcement and
2 On March 4, 2015 (80 FR 11557), EPA approved Law, Va. Code Sec. 10.1–1198, provides cannot have any impact on federal
portions of Virginia’s June 18, 2014 submittal for a privilege that protects from disclosure enforcement authorities, EPA may at
the 2010 SO2 NAAQS addressing the following: documents and information about the
CAA section 110(a)(2)(A), (B), (C), (D)(i)(II) for any time invoke its authority under the
prevention of significant deterioration, (D)(ii), (E), content of those documents that are the CAA, including, for example, sections
(F), (G), (H), (J) (consultation, public notification, product of a voluntary environmental 113, 167, 205, 211 or 213, to enforce the
and prevention of significant deterioration), (K), (L), assessment. The Privilege Law does not
and (M).
requirements or prohibitions of the state
3 On June 16, 2016 (81 FR 39208), EPA approved
extend to documents or information plan, independently of any state
portions of Virginia’s July 16, 2015 submittal for the that: (1) Are generated or developed enforcement effort. In addition, citizen
2012 PM2.5 NAAQS addressing the following: CAA before the commencement of a enforcement under section 304 of the
section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention voluntary environmental assessment; (2) CAA is likewise unaffected by this, or
of significant deterioration, (D)(ii), (E), (F), (G), (H), are prepared independently of the
(J), (K), (L), and (M). any, state audit privilege or immunity
4 In its analysis for the March 1, 2018 NPR, EPA assessment process; (3) demonstrate a law.
proposed to find that if revisions to the clear, imminent and substantial danger
Commonwealth’s regional haze SIP were fully to the public health or environment; or V. Statutory and Executive Order
daltland on DSKBBV9HB2PROD with PROPOSALS
approved, then the prong 4 portions of Virginia’s (4) are required by law. Reviews
infrastructure SIP submittal for the 2010 SO2 and
2012 PM2.5 NAAQS meet applicable requirements
On January 12, 1998, the Additional information about these
of the CAA. Commonwealth of Virginia Office of the statutes and Executive Orders can be
5 See 80 FR 11557. (approving Virginia’s June 18, Attorney General provided a legal found at http://www2.epa.gov/laws-
2014 submittal for the 2010 SO2 NAAQS for CAA opinion that states that the Privilege regulations/laws-and-executive-orders.
section 110(a)(2)(A), (B), (C), (D)(i)(II) for prevention
of significant deterioration, (D)(ii), (E), (F), (G), (H),
law, Va. Code Sec. 10.1–1198, precludes • Executive Order 12866: Regulatory
(J) (consultation, public notification, and prevention granting a privilege to documents and Planning and Review and Executive
of significant deterioration), (K), (L), and (M)). information ‘‘required by law,’’ Order 13563: Improving Regulation and
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![20004 Federal Register / Vol. 83, No. 88 / Monday, May 7, 2018 / Proposed Rules
Regulatory Review. This action is not a substantial direct costs on tribal proposed rules does not preclude the
significant regulatory action and was governments or preempt tribal law as Agency from initiating the same or a
therefore not submitted to the Office of specified by Executive Order 13175 (65 similar rulemaking at a future date. It
Management and Budget (OMB) for FR 67249, November 9, 2000). does, however, close out the entry for
review. In addition, pursuant to CAA section these rulemakings in EPA’s Semiannual
• Paperwork Reduction Act (PRA). 307(d)(1)(B), EPA proposes to determine Regulatory Agenda. Should the Agency
This action does not impose an that this action is subject to the decide at some future date to initiate the
information collection burden under the provisions of section 307(d). Section same or similar rulemaking, it will add
PRA. Therefore, its recordkeeping and 307(d) establishes procedural an appropriate new entry to EPA’s
reporting provisions do not constitute a requirements specific to certain Semiannual Regulatory Agenda to
‘‘collection of information’’ as defined rulemaking actions under the CAA. reflect the initiation of the action, and
under 44 U.S.C. 3502(3) and 5 CFR Pursuant to CAA section 307(d)(1)(B), EPA will issue a new notice of proposed
1320.3(c). the withdrawal of the provisions of the rulemaking.
• Regulatory Flexibility Act (RFA). Virginia regional haze regional FIP that DATES: As of May 7, 2018, the proposed
This action will not have a significant apply to changing reliance on CAIR to
economic impact on a substantial rules published on November 23, 1994,
reliance on CSAPR to address certain at 59 FR 60519; November 23, 1994, at
number of small entities under the RFA. deficient regional haze requirements is
This action will not impose any 59 FR 60525; June 26, 1996, at 61 FR
subject to the requirements of CAA 33260; and September 17, 1999, at 64
requirements on small entities. section 307(d), as it constitutes a
• Unfunded Mandates Reform Act FR 50671, are withdrawn.
revision to a FIP under section 110(c) of
(UMRA). This action does not contain ADDRESSES: The docket for this action,
the CAA. Furthermore, section
an unfunded mandate of $100 million or identified under docket identification
307(d)(1)(V) of the CAA provides that
more as described in UMRA, 2 U.S.C. (ID) number EPA–HQ–OPPT–2012–
the provisions of section 307(d) apply to
1531–1538, and does not significantly or 0423, is available at http://
‘‘such other actions as the Administrator
uniquely affect small governments. www.regulations.gov or at the EPA
may determine.’’ EPA proposes that the
• Executive Order 13132: Federalism. Docket Center (EPA/DC), 1301
provisions of 307(d) apply to EPA’s
This action does not have federalism Constitution Ave. NW, Washington, DC.
action on the Virginia SIP revision.
implications. It will not have substantial The Public Reading Room is open from
direct effects on the states, on the List of Subjects in 40 CFR Part 52 8:30 a.m. to 4:30 p.m., Monday through
relationship between the national Environmental protection, Air Friday, excluding legal holidays. The
government and the states, or on the pollution control, Incorporation by telephone number for the Public
distribution of power and reference, Intergovernmental relations, Reading Room is (202) 566–1744, for the
responsibilities among the various Nitrogen dioxide, Ozone, Particulate OPP Docket it is (703) 305–5805, and
levels of government. matter, Reporting and recordkeeping the telephone number for the OPPT
• Executive Order 13175: Docket is (202) 566–0280. For more
requirements, Sulfur oxides.
Consultation and Coordination with information about the docket and
Indian Tribal Governments. This action Authority: 42 U.S.C. 7401 et seq. instructions about visiting the EPA/DC,
does not have tribal implications, as Dated: April 19, 2018. go to http://www.epa.gov/dockets.
specified in Executive Order 13175. It Cosmo Servidio, FOR FURTHER INFORMATION CONTACT:
will not have substantial direct effects Regional Administrator, Region III. Angela Hofmann, Director, Regulatory
on any Indian tribes, on the relationship [FR Doc. 2018–09653 Filed 5–4–18; 8:45 am] Coordination Staff (7101M), Office of
between the federal government and Chemical Safety and Pollution
BILLING CODE 6560–50–P
Indian tribes, or on the distribution of Prevention, 1200 Pennsylvania Ave.
power and responsibilities between the NW, Washington, DC 20460–0001;
federal government and Indian tribes. ENVIRONMENTAL PROTECTION telephone number: (202) 564–0258;
Thus, Executive Order 13175 does not AGENCY email address: hofmann.angela@
apply to this action. epa.gov.
• Executive Order 13045: Protection 40 CFR Parts 152, 156, 174 and 180
of Children from Environmental Health SUPPLEMENTARY INFORMATION:
Risks and Safety Risks. EPA interprets [EPA–HQ–OPPT–2012–0423; FRL–9977–08]
I. Does this action apply to me?
Executive Order 13045 as applying only
Withdrawal of Proposed Rules;
to those regulatory actions that concern This action is directed to the public
Discontinuing Several Rulemaking
health or safety risks that EPA has in general, and may be of particular
Efforts Listed in the Semiannual
reason to believe may interest to those persons who follow
Regulatory Agenda
disproportionately affect children, per proposed rules issued under the Toxic
the definition of ‘‘covered regulatory AGENCY: Environmental Protection Substances Control Act (TSCA), the
action’’ in section 2–202 of the Agency (EPA). Federal Food, Drug, and Cosmetic Act
Executive Order. This action is not an ACTION: Withdrawal of proposed rules. (FFDCA), or the Federal Insecticide,
economically significant regulatory Fungicide, and Rodenticide Act
action based on health or safety risks SUMMARY: EPA is withdrawing several (FIFRA). Since others may also be
subject to Executive Order 13045. proposed regulatory requirements interested, the Agency has not
daltland on DSKBBV9HB2PROD with PROPOSALS
The SIP is not approved to apply on described in the proposed rules attempted to describe all the specific
any Indian reservation land as defined identified in this document for which entities potentially interested.
in 18 U.S.C. 1151 or in any other area the Agency no longer intends to issue a
II. Why is EPA issuing this withdrawal
where EPA or an Indian tribe has final regulatory action. This document
of proposed rules?
demonstrated that a tribe has identifies the proposed rules and
jurisdiction. In those areas of Indian provides a brief explanation for the This document serves two purposes:
country, the rule does not have tribal Agency’s decision not to pursue a final 1. It announces to the public that EPA
implications and will not impose action. The withdrawal of these is withdrawing certain proposed rules
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Document Created: 2018-05-05 02:48:33
Document Modified: 2018-05-05 02:48:33
| 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; supplemental. | |
| Dates | Written comments must be received on or before June 6, 2018. | |
| Contact | Ellen Schmitt, (215) 814-5787, or by email at [email protected] | |
| FR Citation | 83 FR 20002 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Sulfur Oxides |
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